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012020020927

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012020021095

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SHAHRUL NIZAM BIN JAMAL ABDUL NASIR ALAMIR

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SHAHRUL NIZAM BIN JAMAL ABDUL NASIR ALAMIR

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012020020614

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Case: Azahan Bin Mohd Aminallah v Public Prosecutor

Fact:

The defendant was first charged with the rape of this 15-years-old daughter in early December 1996 at the session court on 26 January 1997. His daughter, the prosecution's main (PW2) witness, said that he had multiple further sexual encounters with the appellant between 1991 and 1995. Following the prosecution's case, the initial charge against the appellant was amended, and three further charges were filed against him due to prosecution witness 2 testimony. The appellant, whose counsel did not represent them, was asked to submit his case. From the dock, he elected to make an unsworn statement, but the court, however, dismissed the unsworn statement and found him guilty on all four counts, and sentenced him to 18 years in jail and two strokes of the rotan for each accusation. The appellant took his case to the Court of Appeal after losing in the High Court. The method of actually presenting evidence of prior sexual intercourse from PW2 during her examination-in-chief was found to be unsatisfactory by the court of appeal. The appellant was tried for more than three similar offenses committed over a period of more than a year. He was accused of committing four separate acts of rape over a five-year period. This was a violation of section 164(1) of the  Civil Procedure Code (CPC).

Held:

When deciding whether to admit similar fact evidence, a court must perform a balancing act, assessing the probative value of the evidence against its prejudicial effect, as implied by section 14 and section 15 of the Evidence Act 1950. Prosecution witness 2 (PW2) testimony about the appellant's earlier acts of intercourse with her was relevant and admissible in this case. However, the court must still decide if the probative value of her evidence outweighs its prejudicial effect. The session's court's conclusion contained no balancing exercise needed by section 14 and section 15 of the Evidence Act. This is a significant misrepresentation that resulted in a serious miscarriage of justice since the sessions court added three more charges against the appellant based on similar fact evidence. Because of poor investigation and prosecution, this case was riddled with major flaws. In addition, the session's court violated the requirements of the Civil Procedure Code (CPC) and Evidence Act. Allowing the appeal, the case was dismissed and the sentence set aside.

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Case: Borgman v DPP

Fact:

Criticized specific purpose test and affirmed striking similarity test but added that SFE should not be admitted if it is too prejudicial. Thus, SFE can be admitted if the probative value outweighs its prejudicial effect. In this case, the accused was charged with violating the modesty of 2 schoolboys. The accused was the principal of the school. The modus operandi of the accused is that he always made night check-ins for every dorm and invited students of his to his room. In his room, he will then instruct the victim(s) to conduct gross indecency. The method of how the accused orchestrated the whole situation is by:
a) Using his authority as a principal.
b) Picking a specific time when other students are asleep.
c) Being passive during the act.

Held:

There could be a possibility of fabrication or concoction and prejudicial effect in which the court will reject the evidence from the boys. However, the statements made by the boys during cross-examination happen to be consistent. It is encouraged to look into the striking similarities of the boys' stories rather than their physical attributes. The court further affirmed the striking similarity and stressed that there should be no prejudicial effect on the accused person. The evidence must have more probative value than prejudicial effect (this depends on the facts of the case).

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In our opinion, the existence of sections 11(b), 14, and 15 of EA 1950, allows for those on trial to have a chance at being viewed and judged fairly based on the current case instead of previous misconducts that might have occurred. The fundamental example of similar fact evidence is when the prosecution introduces evidence of other similar crimes committed or alleged to have been committed, by the accused in order to prove that he or she is guilty of the charged offense. It is unfair to lay out evidence of previous misdemeanors or mistakes as it is more than likely to cloud the judgment and opinions of the jury. It is only human nature for us to immediately link someone's current affiliations to their past actions, thus leading the jury's decision to become unjust. We believe that similar fact evidence is a slippery slope to tread on that might discourage the jury and judge to see the current case as it is instead of seeing the alleged as the person they were in the past. We believe that turning over a new leaf is possible and that focusing on only the evidence related to the current case would allow for a smoother and fair trial for all parties.

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In a nutshell, it can be said that similar fact evidence can only be used if the prosecution passes the affirmative probative test rather than striking similarity. In the instance of R v Lunt, the court stated that in order to determine whether the evidence is positively admissible in the offence charged against the accused, the problem to which the evidence is directed must be discernible. When the concerns include identity, demonstrating intent, or rebutting a defense of unintentional offenses, for example, identical fact evidence may be accepted. The impact of bad character on the admissibility of related fact evidence is not overlooked. Because the admissibility of identical fact evidence is always at the discretion of the presiding judges, it is advisable to reject the evidence if it might affect the judges' views and be irrelevant to its genuine evidential value. As a result, the balancing process would be viewed as an important preventative measure to avoid discrimination against innocent alleged perpetrators.

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Similar Fact Evidence:
Similar fact evidence addresses circumstances in which an accused person's earlier wrongdoing, other than that which inevitably leads to the offense charged, is considered admissible to secure a conviction since it is similar to the offense. Judges have always acknowledged that sections 11(b), 14, and 15 of the Evidence Act 1950 apply to similar fact evidence rules.

Application of Section 54:
1. Evidence of subsequent conduct: Evidence of subsequent conduct is not evidence of bad character.

2. Evidence of other pending or awaiting charges: Evidence relating to other charges that are pending against the accused is not admissible under section 54 of the Act as it tends to show that he had committed those other offenses.

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Inside Maximum Security - S1E1: Life In Lockdown

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How hard is life in prison? We explore the prison regime through the eyes of officers and inmates in Changi’s maximum-security prison.

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Joseph Frey convicted twice in 1991 and 1994 for similar misconducts

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This is the jail booking photo for Joseph Frey, whose conviction for the 1991 rape of a University of Wisconsin-Oshkosh student was overturned. For the first time in well than 20 years, Frey was released from the Winnebago County Jail on July 12, 2013. He was without money, identification, and a place to live. Frey was falsely convicted of sexual assault and kidnapping in 1994 and was sentenced to 102 years in prison. (Source: Sheriff's Office of Winnebago County)

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Karolina Ciasullo and her three daughters Klara, Liliana, and Mila, were killed after their SUV was struck on June 18, 2020. 

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When a driver struck and murdered a woman and her three young girls nearly two years ago, an Ontario court sentenced him to 17 years in prison, saying he "gambled with other people's lives." Brady Robertson's "casual attitude" toward traffic laws deserved a harsh penalty, Ontario Court Justice Sandra Caponecchia told a Brampton, Ont., court Monday.
In the two and a half years leading up to the June 18, 2020 incident in Brampton, which killed Karolina Ciasullo and her three girls, ages six to one, Robertson had amassed 15 driving offences.

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After a week's break, the Johnny Depp v Amber Heard libel trial resumes today - with the actor's legal team set to begin their questioning of his ex-wife following her allegations of physical and sexual abuse.

The hearing is taking place in Fairfax, Virginia, in front of jurors, who have now heard four weeks of testimony from family, friends, medics, expert witnesses and staff members past and present of both Depp and Heard, as well as the former couple themselves.

Lawyers for Depp have rested their case after finishing questioning of his witnesses, with Heard's witnesses now set to give their side of the story for the remaining two weeks of the trial.

After that, it will be down to jurors to decide. Who will they believe?

Over the first four weeks, they have heard shocking insights into the former couple's rows. Aside from the alleged physical violence, claims against Depp included an accusation that he held his dog out of a moving car window and that he painted messages in blood on the wall of a house in Australia after infamously severing his finger. He in turn has accused Heard of defecating in their bed and faking bleeding injuries using nail polish.

"Both sides have done a fair job at exposing the other's less than finer moments", libel and slander expert Kimberly Lau, a partner at New York legal firm Warshaw Burstein, tells Sky News. "What will make this trial particularly challenging for a jury is the fact that both parties are trained actors whose job is to make the audience believe they are, in fact, the role they play.

"The testimony of the witnesses and documentary evidence will be even more essential for the jury to determine who is really telling the truth and who may be merely acting out a role."

Depp is suing Heard for libel over an article published wrote in The Washington Post in December 2018, which his lawyers say falsely implies he physically and sexually abused her - even though it did not mention his name.

He strenuously denies allegations of abuse and throughout the trial has told the court that he is "obsessed with the truth" and accused Heard of being the violent one during their relationship.

This trial in the US comes after the former Pirates Of The Caribbean star lost a similar defamation case in the UK, which he brought against the publishers of The Sun, News Group Newspapers (NGN), for publishing an article that referred to him as a "wife-beater" in the headline.

Following a 16-day trial in July 2020, a judge found the content of the article to be "substantially true" and Depp was later refused permission to appeal against the decision at the Court of Appeal.

But this case in America is being heard in front of a jury, rather than just a judge.
'Juries come with an inherent unpredictability
"Having a jury of several individuals - in this case, seven - makes a big difference in the deliberation process," says Ms Lau.

"The opinion of one is not enough; all seven must agree. And while judges, unlike juries, already have an understanding of the law, the jury is comprised of several individuals whose life experiences can have an impact on how they view and weigh the evidence at trial."

As well as being held in front of a jury, proceedings are being broadcast around the world live from the court - unlike the UK, cameras are permitted in courtrooms in the US.

Matthew Dando, a partner and media law expert at London firm Wiggin, says that although televised hearings will not affect the outcome of the trial, they do have an effect on media coverage and public opinion.

"It will inevitably mean that the advocates are not just playing to the people in the courtroom, but directly through television... they're playing directly to the public," he told the PA news agency. "So it affects the dynamic of the trial."

"Juries come with an inherent unpredictability, and that's why if this were being heard again by purely a judge alone you'd probably expect it to go the same way as the UK case," says Alex Wade, also a partner at Wiggin. "But as Matt says, the various counsel in the US will play to the jury."

As it was in the UK, this case is a civil trial, not a criminal one; if Depp loses, it doesn't mean he has been found guilty of a crime.

But as a public figure, the actor has a higher burden of proof for his defamation claims than a private individual, Ms Lau says. The burden is on him to prove "by clear and convincing evidence" that Heard's statements in her Washington Post column "were made with actual malice - which means she knew the statement was false or recklessly failed to verify the claim".
'It's hard to unring a bell'
If Depp wins, the jury will determine damages. He has sued for $50m, but jurors may decide there is a basis to award less or more. Punitive damages could also ordered to be paid on top of compensatory damages.

Heard is counter-suing for $100m - as she is 20 years younger, the potential damages to her career are longer than Depp's, according to Ms Lau - and the same legal burdens and standards apply to her.

Depp has told the trial that whatever the outcome, he has lost. "The second the allegations were made against me... and turned into fodder for the media... I lost then," he told jurors as he took the stand for the first time back in April.
Read more:
The article that sparked the entire case
Why are Depp and Heard in court?
"I lost because that is not a thing that anyone is going just put on your back for a short period of time. I will live with that for the rest of my life."

"It will be tough for Depp to completely salvage his career even if he prevails at trial," says Ms Lau. "The accusations may be enough to make some question the truth no matter what the outcome at trial. It's hard to unring a bell."

The trial, which is set to last until the end of May, continues at the Fairfax County District Courthouse.

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Depp v Heard: 'Who is really telling the truth and who may be merely acting out a role?'

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With just two weeks left of the explosive Johnny Depp v Amber Heard libel trial, Sky News take a look at the possible outcomes and the differences between this case in Fairfax, Virginia, and Depp's libel case against the publishers of The Sun in the UK in 2020.

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A man who sold three firearms to a confidential informant and assaulted a police officer was sentenced today to more than seven years in federal prison.

Joshua Ray Hunley, age 36, from Waterloo, Iowa, received the prison term after a September 27, 2021 guilty plea to one count of possession of a firearm by a felon.

Information from a plea agreement showed that, in September 2020, Hunley, a convicted felon, sold two rifles and a shotgun to a confidential informant, who Hunley knew to be a felon and a methamphetamine user. About four months later, police officers saw Hunley outside a residence in Waterloo at approximately 11:30 p.m. As an officer was speaking with Hunley, the officer saw a small revolver on the ground by Hunley's feet. The officer moved to detain Hunley, who tried to flee. During an ensuing struggle, Hunley hit the officer multiple times in the face and head before the officer managed to take Hunley into custody. Officers found $422 in cash, methamphetamine, marijuana, and ammunition on Hunley's person.

Hunley was sentenced in Cedar Rapids by United States District Court Judge C.J. Williams. Hunley was sentenced to 87 months' imprisonment. He must also serve a three-year term of supervised release after the prison term. There is no parole in the federal system.

This case was brought as part of Project Safe Neighborhoods (PSN). PSN is the centerpiece of the Department of Justice's violent crime reduction efforts. PSN is an evidence-based program proven to be effective at reducing violent crime. Through PSN, a broad spectrum of stakeholders work together to identify the most pressing violent crime problems in the community and develop comprehensive solutions to address them. As part of this strategy, PSN focuses
enforcement efforts on the most violent offenders and partners with locally based prevention and reentry programs for lasting reductions in crime.

Hunley is being held in the United States Marshal's custody until he can be transported to a federal prison.

The case was prosecuted by Assistant United States Attorney Kyndra Lundquist and investigated by a Federal Task Force composed of the Waterloo Police Department, Federal Bureau of Investigation, and Bureau of Alcohol, Tobacco, Firearms, and Explosives assisted by the Black Hawk County Sheriff's Office and the Cedar Falls Police Department.

Court file information at https://ecf.iand.uscourts.gov/cgi-bin/login.pl.

The case file number is 21-CR-2025.

Follow us on Twitter @USAO_NDIA.

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Felon Sentenced to Over Seven Years in Federal Prison for Selling Firearms and Assaulting a Police Officer

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A man who sold three firearms to a confidential informant and assaulted a police officer was sentenced today to more than seven years in federal prison. Joshua Ray Hunley, age 36, from Waterloo, Iowa, received the prison term after a September 27, 2021 guilty plea to one count of possession of a firearm by a felon.

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Similar Fact Evidence is inadmissible when:

Evidence of any act or activity not covered by the charges against the accused is inadmissible.

When an accused is charged in a single proceeding on multiple charges, evidence on one count is inadmissible in regard to another

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Similar Fact Evidence can be admissible through:

1. Statute

Section 11(b) Evidence Act 1950: Highly Probable

Codified the common law exception into the Evidence Act 195

Section 14 Evidence Act 1950: State of Mind

Any evidence fact demonstrating the existence of a person's mental state

Section 15 Evidence Act 1950: Accidental/Intentional

Evidence may be crucial when it's unclear whether the crime was committed accidentally or with purpose.

2. Common Law

The test is whether the evidence is relevant to such a high degree that its probative worth outweighs its prejudicial effect as in the case of DPP vs Boardman

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Section 11 (b): When facts not otherwise relevant become relevant (b) High Probable

Pedophiles are more likely to insult children

Section 14: Facts showing the existence of the state of mind or of the body or bodily feeling

The doctor issues an incorrect prescription and claims he is unaware of the mistake. He has, however, already been convicted of the same crimes.

Section 15: Facts bearing on the question of whether the act was accidental or intentional

Ali's four girlfriends died as a result of diving without suitable equipment. This fact is significant in demonstrating Ali's intent to kill.

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In criminal proceedings, Section 11(b) is an exemption to the rule prohibiting the admission of comparable fact evidence.

Explanation:
Similar fact evidence, which is a type of bad character evidence that discloses the accused person's previous reprehensible behavior, is inadmissible in Malaysia due to its prejudicial nature. This exclusionary rule, however, is not absolute and is subject to numerous exceptions, some of which have not been unanimously acknowledged, such as Section 11(b). Due to differences in court interpretation and differing schools of thought on its application, the role of Section 11(b) as a technique for admitting similar fact evidence is still unsettled.

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Facts showing the existence of the state of mind or of the body or bodily feeling.

Explanation:
It must show that the state of mind does not exist generally but must be specific (ex: cannot admit evidence of habit under section 14)

Example:
If I may possess knowledge of ill will intention then the evidence can be admitted under section 14.

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Under section 15 of EA 1950 similar fact evidence only would be admissible if it is relevant to determine whether the alleged misconduct is designated or accidental.

Explanation:
Admissibility of similar fact evidence must be carefully applied in cases where the tendered evidence must have immediate rationale inference to the fact in issue as the principle has been adopted in EA 1950.

3 conditions have to be fulfilled:

There must be issues where the act is accidental or intentional.

There must be facts that form part of the series of a similar occurrences.

In doing so,  the accused must be the person concerned.