Standard of Proof Not Met in Sodomy ll

by Singa Pura Pura

The whole of the prosecution’s evidence, taken in its entirety at this stage, would not even pass the test enunciated in the Federal Court in Balachandran v. PP [2005] 1 CLJ 85 FC, namely, that:

“The result is that the force of the evidence adduced must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts exist or did happen. In order to make a finding either way the court must, at the close of the case for the prosecution, undertake a positive [maximum] evaluation of the credibility and reliability of all the evidence.

“The test at the close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? This must, as of necessity, require a consideration of the existence of any reasonable doubt in the case for the prosecution. If there is any such doubt there can be no prima facie case. As the accused can be convicted on the prima facie evidence – it [the evidence] must have reached a standard which is capable of supporting a conviction beyond reasonable doubt … The prima facie evidence which was capable of supporting a conviction beyond reasonable doubt will constitute proof beyond reasonable doubt.”

The prosecution’s evidence would also not satisfy the locus classicus formulated by His Lordship Dato’ Justice Gopal Sri Ram JCA (as his Lordship then was) at the Court of Appeal in Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734 CA. The headnote to that case reads: “[3] Under s. 180 of the Criminal Procedure Code (Revised 1999), the duty of a judge, sitting alone, at the close of the case for the prosecution, is to determine, as a trier of fact, whether the prosecution has made out a prima facie case against the accused. The judge has only one exercise to undertake; he must subject the evidence of the prosecution to a maximum evaluation and then ask himself this question: If I decide to call upon the accused to enter on his defence, and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution’s case? If the answer is in the negative, then no prima facie case has been made out, and the accused is entitled to an acquittal.”

On the totality of the evidence thus far adduced by the prosecution, no trial judge – properly directing his mind to the law, the testimony of the witnesses, and the reliability and quality of the medical, DNA, documentary and other evidence – would be prepared to convict Dato’ Seri Anwar Ibrahim assuming he elects to remain silent. The evidence is simply not sufficient to prove each and every essential ingredient of the charge, not even on a balance of probabilities let alone the criminal standard of proof required.

The prosecution’s spread of incriminating evidence over the essential ingredients that constitute an offence is often inversely proportionate to the sufficiency, reliability and quality of the evidence itself. The more the evidence is stretched, the thinner the spread is. The thinner the spread is, the more the adversarial holes of doubt that tend to develop in the prosecution’s case.

In describing what a prima facie case means to the trial judge at the close of the case for the prosecution, Vincent Ng J (as he then was) rightly stated in PP v. Ong Cheng Heong [1998] 4 CLJ 209 HC that: “It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered and which has gone through the process of evaluation. Any evidence which is not safe to be acted upon, should be rejected.”

Recently, and aptly, Jeffrey Tan JCA in the Court of Appeal reiterated in Roslan Abdullah v. PP [2010] 1 CLJ 685 CA that: “That uncertainty, if any, until settled by the Criminal Procedure Code (Amendment) Act 2006, was only in relation to the ‘prima facie case’. In relation to the evaluation of the prosecution evidence, it has long been settled that the evaluation could not be suspended until after the close of the entire case. That has been the law since Khoo Hi Chiang, where it was held that “the duty of the court, at the close of the case for the prosecution, is to undertake, not a minimal evaluation of the evidence tendered by the prosecution in order to determine whether or not the prosecution evidence is inherently incredible (the Haw Tua Tau test) but a maximum evaluation of such evidence, to determine whether or not the prosecution has established the charge against the accused beyond all reasonable doubt.” In Tan Boon Kean, it was held “that at the close of the case for the prosecution, the duty of the court is to carry out a maximum evaluation of the evidence.” And in Arulpragasan Sandaraju, it was held that the court before calling the accused to enter upon his defence must be satisfied that the prosecution had made out a case against the accused beyond all reasonable doubt, which would therefore call for a maximum evaluation of the evidence tendered by the prosecution. The duty of a trial court at the end of the prosecution case remains the same, despite the 1997 amendment to s. 180 of the CPC.”

In PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457 FC, Gopal Sri Ram JCA sitting in the Federal Court, again, propounded thus: “This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the accused to enter upon his or her defence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution evidence admits of two or more inferences, one of which is in the accused’s favour, then it is the duty of the court to draw the inference that is favourable to the accused.”

In the present case against Dato’ Seri Anwar Ibrahim there are not only two inferences one of which is in favour of him. The prosecution’s case admits of numerous possible inferences, and most of these possible inferences are plainly in favour of Dato’ Seri Anwar Ibrahim.

“Put shortly, what the trial court is obliged to do under ss. 173(f) and 180 of the CPC is to ask itself the question: If [assuming] the accused elects to remain silent, as he is perfectly entitled to do, am I prepared to convict him on the evidence now before me?” The obvious answer to that question is ‘no’. It would be unsafe to do so. The evidence simply does not meet the standard of proof required.

[Writer's note: The purpose of the brief opinion above is not to offer gratuitous advice to the learned judge respecting the state of our criminal procedure or the law of evidence. Rather, it is to attempt to offer the lay public a rough legal-sketch against which they may scrutinise and evaluate the legal mechanics and the decision-making process by which the court will arrive at its decision as to whether Dato’ Seri Anwar Ibrahim should be called on to enter upon his defence to the charge under s. 377B Penal Code. The facts and evidence presented by the prosecution could easily be gleaned from the alternative media's coverage of the trial. The Rakyat can then decide for themselves whether the decision that the court delivers on 16 May 2011 is in accord with the law of the country. No thing and no person can ever deny that the Rakyat is perfectly entitled to do that.]