VINOD RAJ A/L UTHAYAKUMAR (NO. K/P: 961126-14-5751)

VINOD RAJ A/L UTHAYAKUMAR (NO. K/P: 961126-14-5751)

Where the prosecution relies principally on one witness and fails to call or offer to the defence a material witness (Kesavan) whose presence and signature on a contemporaneous search list raises unresolved doubt, the court may draw the adverse inference under s114(g); the trial court's failure to apply that inference and to give proper weight to the defence's consistent version rendered the conviction unsafe, warranting quashing and acquittal.

Citation
W-05(M)-250-05/2019 (Mahkamah Rayuan)
Parties
Appellant: Vinod Raj a/l Uthayakumar; Respondent: Pendakwa Raya
Court
M
Jurisdiction
Malaysia
Judgment Date
6 September 2021
Case Number
W-05(M)-250-05/2019 (Mahkamah Rayuan)
Procedural Posture
Criminal Appeal / Court of Appeal Judgment
Outcome
Appeal allowed; conviction and sentence quashed; appellant acquitted and discharged
Legal Topics
Possession, Trafficking, Adverse Inference for Non Production of Witness, Burden of Proof, Contemporaneous Document, Chain of Custody
Source Language
Malay/English
Criminal Law Drug Law Evidence Law Possession Trafficking Adverse Inference for Non Production of Witness Burden of Proof Contemporaneous Document +1 more

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Parties

Vinod Raj a/l Uthayakumar

Appellant

Pendakwa Raya

Respondent

Procedural Posture

Criminal Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether prosecution's failure to call Kesavan or offer him to defence attracts adverse inference under s114(g) Evidence Act 1950
  2. 2 Whether prosecution proved possession and distribution beyond reasonable doubt given conflicting versions
  3. 3 Whether trial judge misdirected by failing to give proper weight to defence and contemporaneous documents (search list P10)

Ratio Decidendi

Where the prosecution relies principally on one witness and fails to call or offer to the defence a material witness (Kesavan) whose presence and signature on a contemporaneous search list raises unresolved doubt, the court may draw the adverse inference under s114(g); the trial court's failure to apply that inference and to give proper weight to the defence's consistent version rendered the conviction unsafe, warranting quashing and acquittal.

Court Disposition

Appeal allowed; conviction and sentence quashed; appellant acquitted and discharged

Orders

  • Conviction and sentence quashed
  • Appellant acquitted and discharged from the charge