d) Assume that you are Astro. In that capacity, decide whether to convict or acquit Apel.

The issue is whether the prosecution has proved their case against Apel beyond reasonable doubt.

Section 173(m)(i) CPC provides at the conclusion of the trial, court shall consider all evidence
adduced and shall decide whether prosecution has proved its case beyond reasonable doubt. It is
trite law that the onus is on the prosecution throughout the case to prove the charge against the
accused beyond reasonable doubt as in Arulpragasan. Proof beyond reasonable doubt is not
proof with absolute certainty or proof beyond a shadow of doubt. As in Public Prosecutor v
Saimin, the law does not require proof that overcomes every possible doubt. Duty on the part of
the court is to consider the whole evidence as to the guilt of the accused on the beyond
reasonable doubt test which is Does the defence raise a reasonable doubt as to the truth of the
prosecution case or as to the accuseds guilt? as in Mah Kok Cheong v R. In Miller v Minister
of Pensions, the court explained beyond reasonable doubt as it does not reach certainty but
must carry a high degree of probability. It does not mean proof beyond a shadow of doubt.
Court should never approach a criminal case on the basis of which two conflicting stories it
should believe or which version is more likely to be true but on whether prosecution has
established guilt of the accused beyond reasonable doubt as per Gan Poh Chye v Public
Prosecutor. In order for the court to convict the accused, the court in Mat v Public Prosecutor
laid down the test: i) If you are satisfied beyond reasonable doubt as to the accuseds guilt,
convict. ii) If you accept or believe the accuseds explanation, acquit. iii) If you do not accept the
accuseds explanation, do not convict but consider: a) If you do not accept or believe the
accuseds explanation and that explanation does not raise in our mind a reasonable doubt as his
guilt, convict. b) If you do not accept or believe the accuseds explanation but nevertheless it
raises in your mind a reasonable doubt as to his guilt, acquit. Section 173(m)(iii) states if court
finds prosecution has not proved its case beyond reasonable doubt, court shall record an order of
acquittal.
Based on the facts given, Apel was charged for raping Mek in the clearing and the evidence
against Apel are as follows. On the 3 rd January 2017, Kiki saw a man raping Mek in the clearing,
however during identification parade, he could only identify Mek as the victim, but he could not
identify the man rapping Mek. In convicting, the court must believe that not only a crime has
been committed but the crime is committed by the accused. As kiki is the eye witness but
couldnt identify Apel as the man, itd be dangerous to convict. Furthermore, based on the
evidence given by MEk, she herself cannot identify the man who raped her. The identification of
the man who raped her is still not assured by any evidence. Dr. Kemist gave evidence as to the
semen-clearing (P1) matched the DNA profile of Apel. However, the semen was found on a
patch of earth and not inside Meks vagina, this is confirmed by Dr.Kemist where there was no
semen found in Meks private part. The law requires penile penetration in order to prove rape.
Based on all the evidence, Astro should acquit Apel on two basis. There was no evidence that
could link Apel tyo the crime, the evidence only suggested that the crime happened, and Apel
were there at the place of crime. However, there is no link that Apel committed the crime. The
second reason is, the prosecution failed to prove penile penetration. There could be other means
or object that could penetrated or inserted in Meks vagina rather than penile penetration.