Aizz Amidie Bin Aziz & Ors v Pendakwa Raya

Appellant(s):

• Mohd Hafify Bin Mat Nawi
• Mohd Uwais Bin Mat Nawi

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Datuk Mohd Radzi Bin Abdul Hamid

• Five accused were jointly charged and convicted of murder under section 302 read with section 34 of the Penal Code for the killing of a young man, arising from a dispute over a motorcycle-burning incident that escalated into a chase and fatal attack with swords/parangs in a swampy area.
• The prosecution's case rested substantially on the eyewitness account of a surviving companion of the deceased (a protected witness, UPS-1), corroborated by a second protected witness (UPS-3) who was also present and pursued, along with medical and circumstantial evidence.
• At trial, three prosecution witnesses were permitted to testify as protected witnesses under section 265A of the Criminal Procedure Code (CPC) following an in-camera inquiry under the Witness Protection Act 2009, after an earlier interlocutory appeal challenging the constitutionality of section 265A CPC had been dismissed as premature by the Court of Appeal.
• The trial court convicted all five accused and sentenced each to 36 years' imprisonment and 12 strokes of whipping; all five appealed against both conviction and sentence.

• Whether the trial judge erred in failing to appreciate that the protected witness's (UPS-1) repeated refusal to answer certain cross-examination questions (to avoid revealing identity) deprived the appellants of a fair trial.
• Whether sections 265A and 265C of the CPC (protection of witness identity) override the general provisions on adverse inference for refusal to answer under section 148(2)(d) of the Evidence Act 1950, and the interaction with sections 32A and 146 of the Evidence Act 1950.
• Whether the trial judge erred in failing to properly evaluate and appreciate the defence case put forward by the appellants, including alibi and denial defences raised for the first time during the defence case rather than during cross-examination of prosecution witnesses.

• The Court held that sections 265A and 265C of the CPC, which expressly operate "notwithstanding any written law to the contrary," take precedence over the general provisions of the Evidence Act 1950 (including sections 146 and 148(2)(d)); accordingly, no adverse inference arose from the protected witness's justified refusal to answer identity-revealing questions, and no unfairness or breach of the right to cross-examine was established, as extensive and effective cross-examination had in fact taken place.
• The Court affirmed the trial judge's credibility findings on the protected witnesses, holding that the trial judge, as the trier of fact with the advantage of observing witnesses directly, was best placed to assess credibility and that appellate courts should not disturb such findings absent clear error.
• The Court upheld the trial judge's rejection of the various defences (including alibi not properly notified under section 402A CPC, and defences raising new persons/facts only during the defence case without having been put to prosecution witnesses) as afterthoughts and bare denials failing to raise reasonable doubt; the convictions under section 302 read with section 34 of the Penal Code and the sentences of 36 years' imprisonment and 12 strokes of whipping were affirmed, and all appeals were dismissed.