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2023 MarsdenLR 116
COURT OF APPEAL PUTRAJAYA
MUHAMMAD KHAIRUANUAR BAHARUDDIN – Appellant
Versus
PP – Respondent
[Criminal Appeal No: W-05(M)-143-04/2021]
Circumstantial evidence can sustain a conviction if it unerringly points to the accused's guilt; however, absence of direct intent to kill can result in a conviction for a lesser offense.
Headnote:(A) Penal Code - Section 302 - Culpable homicide not amounting to murder under s 304(b) - Accused initially convicted of murder but appeal allowed - Evidence presented indicated circumstantial proof of guilt, but lacked direct intent to kill - Conviction reduced to culpable homicide due to absence of premeditation and intent. (Paras 85, 86, 91, 96)
(B) Circumstantial Evidence - The court emphasized that while circumstantial evidence can lead to a conviction, it must point unerringly to the accused's guilt without any reasonable doubt. (Paras 66, 92)
(C) Last Seen Together Principle - The court applied this principle, indicating that the accused was the last person seen with the deceased, which created a presumption of guilt absent a plausible explanation from the accused. (Paras 66, 86)
(D) Burden of Proof - The prosecution must prove the charge beyond a reasonable doubt, and the accused bears the burden of providing a plausible explanation for the circumstances surrounding the death. (Paras 89, 91) (E) Conduct of the Accused - The accused's actions post-incident, including attempts to avoid scrutiny, were considered in evaluating intent. (Paras 25, 27, 92) (F) Final Decision: Conviction under s 302 set aside; substituted with a conviction for culpable homicide not amounting to murder under s 304(b) with a sentence of ten years' imprisonment. (Paras 96)
| Table of Content |
|---|
| 1. introduction of the appeal case. (Para 1 , 2) |
| 2. factual background of the prosecution's case. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 3. court's findings on the prosecution's case. (Para 27 , 28 , 29) |
| 4. defendant's arguments and narrative. (Para 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60) |
| 5. court's conclusion on the trial. (Para 64 , 65 , 66 , 67) |
| 6. legal reasoning regarding the conviction. (Para 84 , 85 , 86 , 87 , 88 , 89 , 90 , 91) |
Introduction
[1] This is an appeal by the Appellant, Muhammad Khairuanuar Baharuddin ("the Accused"), against the decision of the High Court which found that the Accused was guilty of the charge and convicts the accused on the charge under s 302 of the Penal Code. The Accused was sentenced to death.
[2] After reading the written submissions filed, hearing both parties orally and perusing the records of appeal, we unanimously decided to allow the appeal.
The Prosecution Case
[3] The charge against the Accused reads as follows:
"Bahawa kamu pada 6 November 2015, antara jam 7.30 pagi hingga 7.30 malam, bertempat di sebuah rumah di alamat F-03, Lojing Heights 1, Jalan 1/27C, Seksyen 5; Wangsa Maju, di dalam Wilayah Persekutuan Kuala Lumpur telah membunuh XXXXX XXXXXX XXXXX XXXX XXXXX (No MyKad: XXXXXX-XX-XXXX) dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum dibawah s 302 Kanun Keseksaan."
[4] The learned High Court Judge had outlined the material facts of prosecution case in his grounds of judgment which we respectfully adopt them with modification whenever necessary.
[5] To prove their case, the prosecution called 15 witnesses.
[6] The material facts adduced by the prosecution disclosed that the deceased was the youngest child of Farah Adiba Md Othman ("PW7") and she was born on 13 August 2013. PW7 had another child named Fatin Arissa who was born in 2011. The father of both the deceased and Fatin Arissa is Mohd Zafil Ibrahim ("PW1"). PW1 and PW7 however, divorced in 2013.
[7] PW7 thereafter the divorce married the Accused who is the accused in this case in June 2015.
[8] PW1 also married to Tengku Aisya Tengku Nong Idris ("PW2"). According to both PW1 and PW2, they last saw the deceased on 19 October 2015. This was just after the deceased and Fatin Arissa spent two days with them before both the deceased and Fatin Arissa were sent back to PW7.
[9] PW1 and PW2 had noticed that there were bruises on the body of the deceased whilst she was in their care between 17 October 2015 and 19 October 2015. In particular, PW1 noticed bruises on the ribs and the thighs of the deceased. PW1 also testified that the deceased had told him, "Akit... akit, Papa Bi buat". This happened whenever PW2 wanted to wash the deceased after she passed motion or wanted to give the deceased a bath. According to PW1, "Papa Bi" mentioned by the deceased is referred to the accused.
[10] PW2 also testified that she saw bruises to the side of the deceased's forehead and the ribs when the deceased was bathing. As she washed the deceased's bottom, the deceased remarked, "akit... akit... Papa Bi wat". PW2 had inquired of PW7 about the bruises and was told that PW7 was unaware of this because it was her husband at the time, the accused, who took care of the deceased.
[11] PW7 testified that the accused had repeatedly urged her to let him take care of the deceased through his WhatsApp messages. PW7 said that she took the deceased from PW1 and handed her to the care of the accused on 18 October 2015 after he requested for her. The accused also told PW7 that there was no need to send the deceased to the baby sitter.
[12] According to PW7, on the 4 November 2015, when she left the deceased with the accused, the deceased screamed and cried. PW7 said that each time she left the deceased with the accused, the deceased wou
