[Timbalan (TPR), Jabatan Peguam Negara] Sanderasegaran A/l Nithenanham

[Timbalan (TPR), Jabatan Peguam Negara] Sanderasegaran A/l Nithenanham

The Federal Court held the trial judge's omission to name the specific limb of s.300 did not occasion a miscarriage of justice where the prosecution had clearly relied on and adduced evidence proving s.300(c); the appellate court may re-examine evidence to determine whether elements were established; the non-production of Peruwati did not warrant an adverse inference because her evidence would have been cumulative of SP6 and did not create a gap; the defence failed to raise reasonable doubt; accordingly the Court of Appeal's substitution was set aside, the High Court conviction under s.302 restored and an appropriate sentence imposed under the amended law.

Citation
05(L)-68-04/2022(A) (Mahkamah Persekutuan)
Parties
Appellant: Public Prosecutor; Respondent: Sanderasegaran a/l Nithenanham
Court
L
Jurisdiction
Malaysia
Judgment Date
29 November 2023
Case Number
05(L)-68-04/2022(A) (Mahkamah Persekutuan)
Procedural Posture
Criminal Appeal / Federal Court Judgment on Appeal From Court of Appeal and High Court
Outcome
Appeal allowed; decision of Court of Appeal set aside; High Court conviction restored under section 302 Penal Code
Legal Topics
Murder (s.302 Penal Code), Culpable Homicide Not Amounting to Murder (s.304(a) Penal Code), Section 300 Limbs (intent/knowledge), Prima Facie/no Case to Answer, Adverse Inference (s.114 Evidence Act 1950), Appellate Review of Factual Findings, Sentencing and Abolition of Mandatory Death Penalty Act 2023
Source Language
Malay/English
Criminal Law Evidence Procedure Forensic Pathology Murder (s.302 Penal Code) Culpable Homicide Not Amounting to Murder (s.304(a) Penal Code) Section 300 Limbs (intent/knowledge) Prima Facie/no Case to Answer +3 more

Case Brief

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Parties

Public Prosecutor

Appellant

Sanderasegaran a/l Nithenanham

Respondent

Procedural Posture

Criminal Appeal / Federal Court Judgment on Appeal From Court of Appeal and High Court

Legal Issues

  1. 1 Whether omission to specify which limb of s.300 Penal Code at trial prejudiced prosecution and caused miscarriage of justice
  2. 2 Whether non-calling of witness Peruwati attracts adverse inference under s.114 Evidence Act 1950
  3. 3 Whether the defence raised a reasonable doubt on the prosecution case

Ratio Decidendi

The Federal Court held the trial judge's omission to name the specific limb of s.300 did not occasion a miscarriage of justice where the prosecution had clearly relied on and adduced evidence proving s.300(c); the appellate court may re-examine evidence to determine whether elements were established; the non-production of Peruwati did not warrant an adverse inference because her evidence would have been cumulative of SP6 and did not create a gap; the defence failed to raise reasonable doubt; accordingly the Court of Appeal's substitution was set aside, the High Court conviction under s.302 restored and an appropriate sentence imposed under the amended law.

Court Disposition

Appeal allowed; decision of Court of Appeal set aside; High Court conviction restored under section 302 Penal Code

Orders

  • Decision of the Court of Appeal set aside and High Court conviction under section 302 Penal Code restored
  • Sentence imposed: 35 years imprisonment from date of arrest