JUDGMENT

Thomson CJ (delivering oral judgment):

This appellant was convicted at Johore on 22 April this year for the murder of a woman and her child and was sentenced to death. He has appealed against his convictions.

We have had the benefit of listening to a very thorough and very persuasive argument from Counsel for the appellant for which we are grateful because we have derived much assistance from it. I trust it will not be taken as detracting from that in any way if I say that in our opinion all the grounds of appeal that have been urged upon us are with one exception of little substance.

In the first place we have listened to a careful, accurate and detailed analysis of the evidence against the appellant. That evidence was entirely circumstantial and what the criticism of it amounts to is this, that no single piece of that evidence is strong enough to sustain the convictions. That is very true. It must, however, be borne in mind that in cases like this where the evidence is wholly circumstantial what has to be considered is not only the strength of each individual strand of evidence but also the combined strength of these strands when twisted together to make a rope. The real question is: is that rope strong enough to hang the prisoner?

Again there has been some criticism, not entirely without justification, of the way in which the trial Judge dealt with the need for corroboration of the evidence of two child witnesses. It is unfortunate perhaps that he did not see fit to administer the necessary caution to the jury in the way suggested by us in the case of Chao Chong v. PP [1960] MLJ 238. Nevertheless we are not prepared to say that the terms in which he did administer the caution were wrong.

I now come to the ground of appeal which in our view is of some substance and which has caused us a certain amount of difficulty. The trial Judge commenced his summing-up with certain observations regarding the onus of proof which, with respect, we would describe as unexceptionable. He pointed out that the jury must be sure of the guilt of the accused person. He pointed out that the onus of proving guilt lay upon the prosecution and that that meant the prosecution must satisfy the jury so that they were sure that the accused was guilty of the offences with which he stood charged. He went on to discuss the degree of proof that was necessary and described it as proof beyond reasonable doubt and illustrated what he had to say on the point by reading to the jury the well-known passage from Lord Denning's judgment in the case of Miller v. Minister of Pensions [1947] 2 All ER 372. All that, as has been said, was unexceptionable.

At a later stage, however, (and it is to be remembered that the summing-up lasted for over two hours) when he came to deal with the defence, he made use of an expression which, in our view, was not beyond criticism. This expression was used on a large number of occasions, I think nine in all. It will be sufficient if I refer to one of these. In discussing the evidence given by the appellant which was evidence of an alibi he concluded:

....... if you think that the evidence given by the accused is consistent with the truth then, even though you do not believe it, that is sufficient to bring in a verdict of acquittal.

We are not at all clear as to what these words mean. Indeed I think the only point on which we differ is that among ourselves we take different views as to the possible meaning of these words. That leads to our first criticism which is that they are not calculated to illuminate the minds of a local jury. When we ourselves, who have spent our working lives dealing with the meaning of words, find difficulty in agreeing as to the intention and meaning of these particular words it is difficult to imagine just what impression they would make on the collective mind of a jury.

In the second place, however, and this is a much more fundamental criticism, we are of the opinion that whatever they mean th