TOPIC: ALIBI

 The accused in his defence may seek to forward alibi before he is allowed to do so;
he has to satisfy the requirement in S.402A CPC.

 The object of S.402A is :-

(a) prevent the fascination of alibi evidence and enable the police to investigate
and interview witnesses to establish the validity of such defence
(b) Alert prosecution to the fact and alibi may be relied on so after making such
investigation that the alibi is true, he may decide to withdraw the charge or
offer no evidence.

 Alibi is not defined but in the case of Ho Jin Lock (1999) 4 MLJ 625; “what is
ordinarily and means is the accused presence elsewhere is essentially consistent
with his presence at the time alleged and therefore with participation in the crime.

 In short, alibi is a defence that places the accused at the relevant time of the crime
in the different place than the scene involved and so removes there from as to
render it impossible for him to be the guilty party.

 Evidence in support of an alibi can include evidence given by the accused himself
when he elects to give evidence on oath.

 In the case of Vasan Singh (1988) 3 MLJ 412; it was stated to establish alibi,
accused must describe where he was at the time of the offence and what he was
doing. He could be traveling and the evidence he tenders would be a ticket and
endorsement on his passport.

 The defence of alibi must be distinguished from a defence of denial in Vasan Singh;
the Supreme Court stated the defence of bare denial would be a simple statement
of ‘I did not do it’.
1. Requirement of Notice

 Notice is a condition precedent for the admissibility of the evidence of alibi –

Raggapula (1982) 1 MLJ 41

 Notice given must be actual notice. In the case of Husin (1988) 2 MLJ 222; the
accused sought to rely on the evidence of alibi. He gave no notice but has made a
cautioned statement allegedly containing the defence of alibi.

 In reference to the Supreme Court, it was held that there are no authority to
support a vital legal preposition in moving recognition of constructive notice under
S.402 A

2. At Any Time

 Notice can be given at any time during the trial. In Lim Chean Lian (1981) 2 MLJ
41, the meaning of commencement of trial has stated the commencement of the
trial itself and not on the date the charge is read.

 The purpose of notice is to enable the police to verify the truth of the alibi by
interviewing the witnesses named therein.

 Notice is mandatory and it is material whether the police did take statement from
alibi witnesses in the course of investigation – Lim Chean Lean

 Notice must give particular place where the accused claimed to have been and
name and addresses of witnesses he intends to call to establish alibi.

 But there is no requirement in S.402A that the accused must provide the name of all
persons who are present at the place but who he did not wish to call – Saad Hassan
(1988) 1 CLJ 88
 Means that you can call one person as witness but this does not stop her evidence
from mentioning other people’s presence

3. Right to the Accused given Evidence

 Defence of alibi is a legitimate defence and often the only evidence of the innocent
man.

 The difficulty for the court is when one have to exclude a defence for non-
compliance before S.402A.

 It would be a miscarriage of justice to deny the accused from putting his defence –
Ng Thian Soong (1990) 2 MLJ 148

 In the case of San Ah San (1988) 1 CLJ 80; three accused was charge for the
offence of murder. The 1st and 2nd accused gave notice of alibi, the 1st and 2nd
accused were represented by the same counsel but counsel failed to give notice of
alibi for the 2nd accused.

 The question goes to whether the 2nd accused to give evidence that he is not the
shop when the murder is committed that he was at the 3 rd accused’s house and
whether he would be permitted to ask the 3rd accused’s mother as his witness

 The court ruled as follows:-

(a) in so far as the 3rd accused is concerned, it could not call the 2 nd accused as
his witness because the 2nd accused was not named in his notice
(b) that the 3rd accused could not stop by giving alibi evidence on his own behalf
as itself his own notice.
(c) as for the 2nd accused, he cannot elicit evidence from the 3rd accused that he
was with the 3rd accused as this would be the evidence of an alibi and he did
not serve notice.
 (d) for the 2nd accused is precluded from adducing evidence for an alibi, by his
non-compliance with S.402A, it is still open to him to forward a defence that
he was not there. That he was wrongly identified and draw attention to
existence to other evidence that is the evidence of 3 rd accused that the 2nd
accused was with him.

4. Consideration of Alibi Defence

 The burden of proving on alibi lies on the accused, in so far as the accused is
concern, all he needs to do is to raise a reasonable doubt that he was not the person
at the scene of the crime.
 The accused only need to raise a doubt – Llian (1988) 1 MLJ 421 & Arumugam
(1995) 1 CLJ 58
 And this is not necessary for this to be achieved that the evidence of the accused
should be corroborated – Shanmugam (1963) 29 MLJ 23

CREDIT OF WITNESSES

 The question is whether the case is established depends on evidence adduce.

 The credibility of the witness’s stories should be based on its consistencies with the
facts and circumstances alleged, weight is given to the stories probability by other
factors such as corroboration, which would strengthen its credible extrinsic
circumstantial evidence, will the same.

 Easily, the demeanor and tone in which the witness gives evidence would forfeited
the probability of the story.

 Although the demeanour is the least weighty evidence in the credibility of the story
– Abraham (1949) 15 MLJ 47
 Demeanour would include the look and manner of the witness, this hesitation, its
doubts, its variation of language and his calmness in his speech – David Anthony
(1985) 1 MLJ 453

 Magistrate is entitled to believe a witness based on his demeanour – Loh Goh Cheng
(1957) MLJ 1

 The Magistrate would tries the fact has the great advantage and seeing and hearing
the witness – Yap Peng Hen (1991) 3 CLJ 1907

 He has the advantage position to decide or the witness’s credibility having heard the
evidence in full, observed the witness as they gave evidence, noting their pauses
and their hesitation and signs of confidence and embarrassment – Lan Chow Soo
(1969) 2 MLJ 49

 The credibility of the witness’s testimony is not only a matter of clear, unequivocal
statements but also converse the law fluently, willingly, unhesitatingly and cordially
a witness’s answers the questions – Aparaf Sathiar (1997) 2 CLJ Supp 391

 Demeanour however should not be confuse with the ability to convinced another
person about one pathetic lives.

 Demeanour may mean the ability to answer at the spur of the moment but whatever
form it takes, it can never replace or substitute the fact which has been establish.

 Demeanour alone therefore, is not always a touch stone of truth – Tunku Mahmood
(1974) 1 MLJ 110

 It is only 1 ingredient in arriving at the findings of credibility, this is because the

frank demeanour, confident tone and the right use of tone indignation can be
stimulated.
 A demeanour can never be a substitute for grounds of evidence which is based on
inherent probability and extrinsic corroboration.

TESTING OF CREDIBILITY

 It would be wrong to be merely impressed with demeanour without considering the

evidence’s discrepancies consideration in such evidence – Tong Hong Kee (1982) 18
MLJ 119

 Impression of demeanour should be tested on the totality of the evidence – Re Oh

Wan Kee (1982) 1 MLJ 368; and probabilities of the case – Tunku Mahmood (1974)
MLJ 110

 In deciding whether to accept or reject the evidence, the test is the consistencies of
the story itself, how it stand whilst cross-examination, and how it fits into the rest
of the evidence and the circumstances of the case – Nordin Atan (2002) 8 CLJ 334

EVALUATING THE CREDIT OF WITNESSES

 No hard and fast rule can be laid down for determining the credibility of witness,
but when a witness gives statement which defer in material aspects, it must be
grounds for believing that he is not a truthful witness – Mohd Kasdi (1969) MLJ 135

 The fact that there are discrepancies in his testimony do not straight away make
him on unreliable witness and make the whole evidence unacceptable – See Lan Mut
(2002) 3 MLJ 640

 If a witness tell lies in one or two point, it is clear that he is not a reliable witness
and as the matter of prudence, the evidence must be scrutinize with care and
indeed with suspicion – Che Omar (1999) 3 MLJ 369

 But it would be wrong to conclude that if he has proved a liar on one or two points,
the whole of his evidence in law must be rejected – Pua Kin Ling (1970) 2 MLJ 61
 It is only when a witness’s evidence on material and obvious matter is so
irreconcilable and benevolent that his whole evidence to be disregarded – Bee Chin
(1985) 1 MLJ 234

 If the witness;-
(a) not a truthful witness

(b) scrutinize the evidence with extra care

act material material

- does not mean in law, - disregard
Should reject

 In the case of Thian Siong Guat (1969) 2 MLJ 63; the court was of the view that in
any cases, there would be discrepancies for the simple reasons; that no 2 persons
can describe the same things in the exact same way

 Sometimes, what may appear to be discrepancies are in reality is the different way
of describing the same thing

 Or it may happen that witnesses were describing the same things, they might have
seen it in a different ways and of different time and that, discrepancies is unlikely
to occur.

 This discrepancies may be minor or serious.

 The court was of the view of absolute truth is beyond human perception and
conflicting versions of an incident even by honest and disinterested witness is a
common experience.

 In weighing the testimony of witnesses, human feasibility of observation, retention,

recollections are often recognize by the court.
 The way you recalls things would affect it

 Forgetfulness and failure to recall exactly a certain events which may not seem
important to the witnesses, do not necessary shake his credibility or renders the
other part of story unworthy to believe.

 Different persons are in doubt of different power of cognizance attentiveness, so it

is not uncommon for 2 witnesses to a common event to describe it in slightly
different versions.

 Such slight dissimilarities between that witness’s evidence and other witnesses’s is
therefore, explicable – Bee Chin (1985) 1 MLJ 234

 The fact that there are discrepancies in evidence might be in their favour of
truthfulness.

 In the case of Dato’ Mohktar Hashim (1977) 1 MLJ 15; the court stated that there
were obvious that there was discrepancies because in the circumstances in which
event happens, every witness did not remember the same thing and they did not
remember accurately every single thing.

 The court was inclining to think that there were no discrepancies, that this has been
concocted because the version would be too consistent

 The question is whether the existence of discrepancies is sufficient to discredit his

credibility?

 Lengthy and searching of cross-examination of a witness served to emphasis the

truth of the testimony. The fact that the witness are unshaken in cross-examination
is not a sufficient test on credibility.

 The prime consideration is the probability or otherwise of the facts in issue.

 There is no rule of law, that a witness’s testimony must be believed in its entirety
or not at all.

 The court is fully competent for good and cogent reasons to accept one part of a
witness’s testimony and to reject the other.

 It is therefore, necessary to scrutinize the evidence, as this involve the question of

weight to be given in the evidence in the circumstance – Dato’ Haji Harun

 It is appear to the court, having observed the demeanour and after the
considerations of discrepancies to accept parts of the evidence if it considers of the
event to be true or regarded them as trivial and ignore them where they do not
detracts from the maker of the testimony but if he finds that they relate to a
material point, which seriously effects the value of the witness’s testimony, the
court have to weight the evidence carefully to arrive at the truth.

 It is also important that the Magistrate states, whether the testimony of the witness
whom he regards to be unreliable is to be disregarded completely – Mohd Elias
(1983) 2 MLJ 177

 In considering discrepancies, the court have to decide whether they are of such a
nature as to discredit the witness’s testimony entirely and render the whole
evidence worthless and untrustworthy.

 In the absent of any such contradictions and in the absent of inherent improbability,
the evidence of any witnesses should normally be accepted – Dato’ Seri Anwar
(1999)1 MLJ 1
EXAMPLE:

A,B,C were charge for robbing RM 1 million of jewelry from Gem Centre, Plza Kaya,
KL on 1/1/06 at 3 pm. Their trial is on 1/7/06

Prosecution’s Evidence:
 D, is the owner of Gew Centre
 Z, a sales person (Lawa & Cantik)
 OPC Ganas identified A,B,C at identification parade
 B’s fingerprint were found on glass display case of the Gem Centre
 Ganas also
 Dr. Psycho, a chemist, confirming blood at the scene matches B’s DNA profile

NOTICES OF ALIBI WERE GIVEN:

 A gave notice on 15/5 06, between 2-6 pm. He was in Ampang Puncak and E, of
Kampung Luar would be his witness
 B, gave notice on 20/6/06. he was in Plaza Kaya between 2-3 pm on 1/1/06
 C, on 28/6/06 that he was in Kampung Hek

The Day of Trial

 A gave evidence on 1/1/06 he was attending E’s birthday party. Also present were
M,N,P, & C (has not call to give evidence) – Prosecution also objected to evidence
of A
 B gave evidence that on 1/1/06 between 2-3 pm, he was at nearby mamak, he
heard and saw at Plaza Kaya where he heard of robbery and saw person running &
also gave evidence that on 1/1/06 he was outside the centre with B
 C stated in evidence; “I am innocent. I was elsewhere and was wrongly identified”

Questions:

(1) Was the prosecution right and just to object to A’s evidence?

(2) Will you accept C’s evidence?

(3) Can C (i) cross-exam A to draw further evidence to support his defence?
(ii) at close of case in his submission, refer to A’s evidence to
Support his defence?

(4) Can A cross-exam C to support his defence?

Question:
A was charge for causing grievous hurt to B. This incident was evidenced by C, D, E.

B says: “I was approached and hit by A on the face and chest. I suffered a broken nose
and broken ribs. I was an innocent party”.

C says: “I saw A attacked B and with his right fist, pounded B on the face and ribs, I
hears the sounds of broken bones when he punched B”

D says: “I saw a fight and blows exchanged. I saw B falling in agony holding his nose and
ribs after been punched by A”

E says: “I saw A using his fist to punched B; they landed on B’s body”

Dr. F says: “I examined B and found he suffered from a broken nose and broken ribs”

At the trial, B gives evidence as per his police statements. Under cross-exam, he
admitted the fight started when in the quarrel, he punched A first.

C says: “I did not see any fights or A punch B. In fact, B fell and A tried to help him
from falling. A was unsuccessful and B fell on some rock causing injuries to his
nose and ribs”

D says: “I saw a fight between A & B. Blows were exchanged with A, the aggressive
party, landing blows on B’s body”

E gave evidence that:

“I saw A punched B and then B punched A. I cannot remember the places and blows
landed”

Q1: what is your assessment of B’s credibility as a witness?

(i) was the evidence tallied? (ii) does it matter that B started the fight?

Q2: if you are the PO, what would you do on hearing C give the evidence?
- C is a hostile witness, PO would impeach his credit as witness i.e. evidence would not
be acceptable or not there anymore

Q3: Is D & E credible as a witness?

(i) are the charges made up? (ii) do you believe in the quality of the evidence been
adduced?

Q4: if you are the Magistrate, would you call A to enter his defence?
- Problem to deal: (i) Discrepancies (ii) Credit (iii) impeach hostile witness