NOR HAFIZ BIN HANAPI [Timbalan (TPR), Jabatan Peguam Negara]

NOR HAFIZ BIN HANAPI [Timbalan (TPR), Jabatan Peguam Negara]

Appeal allowed and conviction set aside because the trial judge's reliance on the child witness and RVT recording without contemporaneous demeanour notes (s271 CPC) and absence of authoritative evidence on clinical treatment procedures created a material evidential gap as to whether the contact was sexual; the conviction was therefore unsafe.

Citation
CB-42JSKS(A)-1-02/2023 (Mahkamah Tinggi)
Parties
Appellant: Nor Hafiz bin Hanapi; Respondent: Pendakwa Raya
Court
A
Jurisdiction
Malaysia
Judgment Date
27 November 2023
Case Number
CB-42JSKS(A)-1-02/2023 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal (sexual Offences Against a Child) / Appeal From Sessions Court to High Court (judgment on Appeal)
Outcome
Appeal allowed; conviction and sentence quashed and set aside
Legal Topics
Sexual Assault, Sexual Offences Against Children (section 14), Credibility and Demeanour, Child Witness Testimony, Clinical Procedure Evidence, Fiduciary/position of Trust
Source Language
Malay/English
Criminal Law Sexual Offences Child Protection Evidence Law Medical Law Sexual Assault Sexual Offences Against Children (section 14) Credibility and Demeanour +3 more

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Parties

Nor Hafiz bin Hanapi

Appellant

Pendakwa Raya

Respondent

Procedural Posture

Criminal Appeal (sexual Offences Against a Child) / Appeal From Sessions Court to High Court (judgment on Appeal)

Legal Issues

  1. 1 Whether conviction safe given reliance on child witness without contemporaneous demeanour notes under s271 CPC and reliance on RVT recording
  2. 2 Whether prosecution proved that the touching was sexual within meaning of Section 14 AKSKK 2017
  3. 3 Whether absence of evidence as to clinical treatment procedure created a material gap making conviction unsafe

Ratio Decidendi

Appeal allowed and conviction set aside because the trial judge's reliance on the child witness and RVT recording without contemporaneous demeanour notes (s271 CPC) and absence of authoritative evidence on clinical treatment procedures created a material evidential gap as to whether the contact was sexual; the conviction was therefore unsafe.

Court Disposition

Appeal allowed; conviction and sentence quashed and set aside

Orders

  • Conviction and sentence of the Sessions Court are quashed and set aside