LAW OF EVIDENCE: Evidential Issues and Legal Solutions in the Case of Kim and Leo: Murder of Rose

PROJECT QUESTION
THE CHARGE

The first Accused Kim and the second Accused Leo were charged for the murder of one Rose (“Victim”). The charge reads as follows:

“That you on the 27.06.2023 between 1.00am and 7.10pm at an unnumbered
house at Kampung Tiga in the District of Melaka Tengah, in the State of Melaka, in furtherance of common intention of you all, did commit murder by causing the death of Rose (NRIC XXXX) and you thereby committed an offence punishable under section 302 of the Penal Code and read together with section 34 of the
same code”.

The two Accused have pleaded not guilty and claim trial raising the defence of alibi.

THE PROSECUTION’S NARRATIVE

On the evening of the 27.06.2023, Sion (PW1) and her mother, decided to pay a visit to their aged and senile paternal grandmother, Helen (“Grandma”) at an unnumbered house at Kampung Tiga, (“the House”). Grandma was being cared for in the House by her daughter, the Victim.PW1 and her mother arrived at around 1900 hours and noticed that the House was unusually in darkness. They called out for Grandma and the Victim from the gate but there was no response. PW1 and her mother entered the house. They found Grandma seated alone in the hall in darkness. They proceeded to look for the Victim who resided in quarters adjoining the hall where Grandma was found seated. They
discovered that the sliding door into the Victim’s quarters was ajar and in darkness. Upon turning on the lights they found the Victim’s motionless body on the floor with both her hands and legs bound. The Victim’s face and mouth was bruised and the room looked like it had been ransacked. PW1 sought
assistance and the police and paramedics arrived shortly and the investigation into the Victim’s death commenced and was conducted by ASP Intan (PW2). A postmortem of the Victim was conducted at Melaka General Hospital on the 29.06.2023 by Dr Ali, the Government Forensic Pathologist. Dr. Ali’s certified conclusion as to the cause of death was “traumatic asphyxia and smothering”. The investigation narrowed down to the two Accused and their roommate, Wade (PW3). The two Accused and Wade were tenants occupying the top floor of the House and were known habitual drug users. According to Wade the two Accused had planned to rob the Victim and had sought his assistance. Wade refused to join the two Accused to steal, but instead agreed to drop the two Accused as his pillion to a spot about 200m from the House. 2 hours later, Wade was contacted by Leo to collect both the Accused at the spot where he had dropped them earlier. Wade saw a pouch Kim was carrying was filled with cash. At that point Wade also noticed Kim throwing a black colour handphone into the bush. Wade was initially arrested together with the two Accused but was subsequently released without a arge. Madam Hong (PW4), a goldsmith in Melaka town testified that on the 28.06.2023 while at her shop, she purchased a gold earring from Kim for RM140.00. Following his arrest, the second Accused, Leo provided admissions and information to the Police which led to the recovery of the gold earring as well as a black handphone of the Nokia brand from some bushes. The Victim’s daughter, Cindy (PW5) recognised both the earring and the black Nokia phone as belonging to hernmother, the Victim.

THE EVIDENCE DURING TRIAL

During trial the following evidence was adduced:

a. The testimony from PW3, to establish the Prosecution’s narrative that the two Accused had planned and committed the crime to relieve the Victim of her cash to finance their drug addiction. The testimony of PW3, PW4 & PW5 further supports the narrative that the two Accused were in possession of the proceeds of the crime and had attempted to dispose of the items connected to the crime;

b. the postmortem report prepared by Dr Ali, the Government Forensic Pathologist which certified that the victim’s cause of death was “traumatic asphyxia and smothering”. Dr. Ali however was not present during trial as he had travelled to the Middle East to do volunteer work in a war zone.

c. While PW3 was in police lock up together with the two Accused, he had witnessed a quarrel between the two Accused.PW3 testified as follows: “At that time, Kim threw the food outside the cell. I heard Leo say in a loud and angry voice, “you were the one who killed her. I only tied her.” Following his arrest, Leo provided information to a police officer (PW6) as to the
whereabouts of earring and the handphone. Both the Handphone and the Earring were subsequently recovered and positively identified by PW5.

PROJECT BRIEF

Based on the above facts, identify the evidential issues involved and explain solutions for both the Prosecution and the Defence. Your solutions must be supported by legal authorities. (20 MARKS)

Answer

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