[2005] 5 MLJ 334 AZAHAN BIN MOHD AMINALLAH v PUBLIC PROSECUTOR

1. AZAHAN BIN MOHD AMINALLAH v PUBLIC PROSECUTOR
[2005] 5 MLJ 334
The appellant was first charged in the sessions court on 26 January 1997 with the
rape of his 15-year-old daughter 'in early December 1996'. His daughter PW2 the
prosecution's principal witness testified inter alia of several other incidents of sexual
intercourse with the appellant sometime in 1991 and 1995. At the conclusion of the
prosecution's case, in consequence of the evidence of PW2, the first charge against
the appellant was amended and three other charges were framed against him.
The appellant a layman unrepresented by counsel was called to enter his defence.
He chose to make an unsworn statement from the dock. However, the sessions
court rejected the appellant's unsworn statement as a bare denial, convicted him on
all four charges, and sentenced him to 18 years' imprisonment and two strokes of the
rotan, on each charge.
After the High Court, the appellant appealed to the Court of Appeal.
The court of appeal observed that the method of adducing evidence of previous
sexual intercourse from PW2 during her examination-in-chief was most
unsatisfactory. It reflected poorly upon the way in which the case was handled in its
pre-trial stages. It pointed to the original complaint by PW2 not having been
thoroughly investigated by the police.
The Court of Appeal strongly express disapproval of the unsatisfactory and
amateurish way in which the case was handled by both the investigating agency and
those in conduct of the prosecution.
The appellant was tried for more than three offences of the same kind committed
within the space of more than 12 months. He was in fact charged with committing
four separate acts of rape over a period of five years. This constituted a violation of s
164(1) of the CPC.

2. A court when deciding whether to admit similar fact evidence must carry out a
balancing exercise by weighing the probative value of such evidence against its
prejudicial effect as impliedly required by ss 14 and 15 of the Evidence Act 1950.
In the instant case, PW2's evidence as to the appellant's previous acts of intercourse
with her was relevant, and admissible. But that does not, relieve the court of
determining whether the probative value of her evidence outweighed its prejudicial
effect. Nowhere in the judgment of the sessions court was there the kind of
balancing exercise dictated by ss 14 and 15 of the Evidence Act.
This is a serious misdirection and occasioned a serious miscarriage of justice as the
sessions court acted on the similar fact evidence to add three further charges
against the appellant.
This was a case riddled with serious errors because of poor investigation and
prosecution. And the session’s court failed to observe provisions of the CPC and the
Evidence Act.
Held, allowing the appeal, the conviction quashed and the sentence set aside.