AMIRAH BINTI ABU BAKAR

2020470892

The issue is whether Astro may order Oren to enter his defence.

In a criminal trial, the prosecution's case involves the Public Prosecutor

calling witnesses, conducting first examinations, the opposing party cross-examining
these witnesses, and the prosecution conducting a re-examination. Following this
stage, the court must evaluate if the prosecution has proven a prima facie case
against the defendant as per Section 173(f)(i) of the Criminal Procedure Code
(CPC). If the court finds that the prosecution has not established a prima facie case
against the accused based on para (ii) of the same section, the court will issue an
order for the accused's acquittal.

Section 173(h)(i) of the Criminal Procedure Code (CPC) provides that if the
Court is convinced that the prosecution has established a prima facie case on the
original or amended charge, the accused must be called upon to present their
defence. Additionally, Section 173(h)(iii) of the CPC specifies that a prima facie
case is established when the prosecution provides credible evidence proving each
element of the offence, which, if unchallenged, would justify a conviction. In the case
of Mohamad Razi Abu Bakar v PP [2006] 1 CLJ 457,, it was ruled that at the close
of the prosecution stage, the judge must determine if the prosecution has proven its
case beyond a reasonable doubt; failure to do so would constitute a legal
misdirection.

In this instance, the evidence includes Mek's description of sensing something

probing her intimate areas and the matching DNA profiles in blood samples from
both Oren and Mek. Each piece of evidence needs to undergo individual assessment
to ascertain its reliability. Mek's statement qualifies as trustworthy evidence under
Section 173(h)(iii) and Section 180(4) of the CPC, as it originates from her direct
sensory perception. Furthermore, the match between Oren's and Mek's blood
samples, supported by expert testimony from Dr. Kemist, adds to the credibility of
this evidence. Additionally, supplementary corroborative evidence further reinforces
the validity of this blood match evidence.
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The evaluation process involves three matters, (1) every element or single
ingredient of the offence is made out, (2) the accused is implicated in that a nexus is
established between him and the offence, and (3) the evidence is accurate and
credible.

Firstly, to establish a prima facie case, the prosecution must prove that all the
components of the alleged offence, including the actus reus (guilty act) and mens
rea (guilty mind), are substantiated through the presented evidence. As held in the
case of Periasamy s/o Sinappan & Anor v. Public Prosecutor, if the prosecution
fails to demonstrate all the elements of the charge, the prima facie case will be
dismissed.

In the current scenario, Oren is charged under Section 377C of the Penal
Code, relating to the act of sexual penetration by an object. The prosecution's task is
to demonstrate that the insertion of any object or body part, excluding the penis, into
the vagina or anus of another individual occurred without their consent. The
Prosecution presented compelling evidence, including DNA matches between Mek
and Oren's blood samples, supported by Mek's firsthand testimony detailing her
personal experience of feeling something probing her intimate areas. Additionally, Dr.
Kemist confirmed the blood match between Mek and Oren. This successful
establishment of a critical element contrasts with the situation in Periasamy s/o
Sinappan & Anor v Public Prosecutor, as evidenced by Mek's detailed account of
sensing movements and intrusion in her private regions.

The court must also assess whether a direct link exists between the accused
and the alleged offence, ensuring that the presented evidence directly implicates the
accused in the charged offence. This connection is crucial, as seen in Public
Prosecutor v Hanif Basree, where the failure to establish a nexus between the
accused and the offence of murder occurred due to the presence of an unknown
third party's DNA in the evidence. Similarly, any break in the chain of evidence can
absolve the accused of liability, as illustrated in Yeap Theong Tan v Public
Prosecutor.

In applying the law mentioned earlier, the prosecution must prove a direct
connection between the accused and the crime, following the precedent set in the
case of Public Prosecutor v Hanif Basree. Oren is implicated because a link is
established between him and the offense. Referring to the case of PP v Mohd Radzi
bin Abu Bakar, Dr. Kemist's examination found a matching DNA profile between
specimen P2 and specimens P3A and P3B, which belong to Mek. Therefore, it is
reasonable to infer that a connection exists between Oren and the offense of
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2020470892

inserting an object or any part of the body into Mek's private parts under section
377C of the Penal Code.

Lastly, the evidence adduced must be accurate and credible. This means that
the evidence has been scrutinized and evaluated, without which a prima facie case
cannot be established. For example, in the case of PP v Dato' Seri Anwar Ibrahim,
it was established that the evidence must be compelling enough that, if
unchallenged, it is convincing enough for the court to believe in the facts stated in
the charge or to deem their existence so likely that a reasonable person should
proceed on the assumption that those facts are true and did occur.

Applying this principle to the present case, the evidence presented by the
Prosecution, as explained in the first element, has been corroborated, demonstrating
that the evidence is indeed accurate and credible, as it has undergone the evaluation
process. Due to the existence of unchallenged facts, the case of PP v Dato' Seri
Anwar Ibrahim establishes that it would be sufficient for the court to consider the
likelihood of Oren committing the offence under Section 377C of the Penal Code.

To conclude, Astro would order Oren to enter his defence because the
prosecution has made out a prima facie case against him at the close of the
prosecution’s stage.