Circumstantial Evidence

Evidence is separated into two categories:-

• Direct Evidence

Evidence which is attested directly by witnesses, things or documents.

• Circumstantial Evidence

All other forms of evidence.

It should be noted that the nature of circumstantial evidence is weak, leading to various inferences being drawn from the set of facts. However, it may still be possible to secure convictions.

Sunny Ang v PP

The appellant was charged and convicted of the murder of his girlfriend despite the fact that the body of the deceased was never discovered. The facts adduced by the prosecution were so compelling that the court reached the irresistible conclusion that the appellant had murdered the deceased. Among the facts adduced were:-

a) The appellant was declared a bankrupt a year earlier and remained one on the day the offence was alleged to have been committed;

b) The deceased was insured against accidents with several companies;

c) The appellant’s mother was named as a beneficiary in some of the insurance policies;

d) The deceased made a will naming the appellant’s mother as the sole beneficiary;

e) The deceased was a novice diver and yet the appellant had allowed her to dive in dangerous waters;

f) The appellant did not go down to the waters himself when the deceased had failed to resurface;

g) The deceased had not worn gloves which were common when looking for corals;

h) Six days after the incident, flippers were found which were severed at the strap and cut in two places;\

i) Less than 24 hours after her disappearance, the appellant made a formal claim.

Juraimi Hussin & 2 Others v PP

This case was based substantially on circumstantial evidence. There was no direct evidence but the prosecution adduced relevant facts:-

a) The decapitated body of the deceased was recovered from the house occupied by the three appellants;

b) The deceased’s death was caused by the severance of his head by a weapon similar to the axe recovered at the same premises;

c) The day before his death, the deceased withdrew RM300,000 from his bank accounts and the appellants embarked on a spending spree, spending more than RM200,000, payment being made in RM1,000 notes which were in the same denomination of notes in which the deceased had earlier withdrawn;

d) The second and third appellants had financial difficulties;

e) Certain items belonging to the deceased such as his identity card, watch and shoes were found in the appellant’s possession

f) The deceased was last seen alive in his car with the second appellant;

g) The body of the deceased was buried in a hole in the ground soon after he was killed. This meant that the hole must have been dug earlier, leading to the inference that there was a pre-arranged plan on the part of the appellants to kill the deceased

The two cases above illustrate how circumstantial evidence can be strong enough to secure a guilty charge. However, it should also be noted that circumstantial evidence may not be strong enough to even establish a prima facie case.

PP v Sarjit Kaur

The prosecution relied solely on circumstantial evidence in attempting that the accused had murdered her husband. Amongst the facts adduced:-

a) The accused was an unfaithful wife

b) The accused was ill-treated

c) The accused was in a position to benefit financially from the death of her husband

d) Trances of blood stains were found on a dress belonging to the accused;

e) The accused had insisted that the maids together with the three children go to bed earlier than usual

In deciding that the prosecution had failed to establish a prima facie case, Visu Sinnadurai J:-

“…each of the strands of the circumstantial evidence adduced by the prosecution is so brittle that even when tied together they are not strong enough for the prosecution to hold on to. In fact, the entire string of strands does not withstand the weight, but merely snap through lack of sufficient evidence, leaving the prosecution merely to be clutching at straws, not ropes.”

PP v Hanif Basree Abdul Rahman

The prosecution relied on the following pieces of evidence, namely that:-

a) There was no sign of break in into the deceased’s house, suggesting that her killer was someone known to her;

b) The accuse had an intimate relationship with the deceased and had access to her house;

c) The accused was the last person seen with the deceased and was the last person to have had sexual intercourse with her;

d) The DNA profile of the accused present in the face towel was proof that he was responsible for choking  the deceased;

e) The accused’s physique and weight had fit the description that some of the bruises found on the deceased were caused by the weight of a heavy person pressing onto her body;

f) The accused’s height enabled him to climb over the wall at the back of the condominium compound to escape after committing the murder;

g) The conduct of the accused in shaving his pubic hair and clipping his fingernails before giving himself up showed his anxiety and should be viewed as making some preparations to cover his tracks.

In spite of the evidence adduced by the prosecution,  it was held that there were too many doubts in the prosecution case and that the inferences made, which could be viewed against the accused were more favourable to him. The prosecution therefore, had failed to establish a prima facie case.

What is the standard of proof on the prosecution when relying wholly or substantially on circumstantial evidence?

• Kartar Singh v R

It is necessary to distinguish between the effect of direct and of circumstantial evidence. Where there is direct evidence, however slight, the jury are entitled to accept it and the case should be left to them to decide. In the case of circumstantial evidence the position is different. Here the evidence must be that, if it is believed, there is no reasonable alternative to the guilt of the accused. If it is anything less than this, it is no case at all.

• Sunny Ang v PP

… Adding them together, considering them, not merely each one in itself, but altogether, does it or does it not lead you to the irresistible inference and conclusion that the accused committed this crime?... The prosecution case is that the effect of all this evidence drives you inevitably and inexorably to one conclusion and one conclusion only; that it was the accused who intentionally caused the death of this young girl.

The case above discussed circumstantial evidence as that when you look at all the surrounding circumstances, you find such a series of undersigned, unexpected coincidences that, as a reasonable person, you find your judgement is compelled to one conclusion.

• Chan Chwen Kong case

“It must, however, be borne in mind that in cases like this where the evidence is wholly circumstantial what has to be considered is not only the strength of each individual strand of evidence but also the combined strength of these strands when twisted together to make a rope. The real question is: is that rope strong enough to hang the prisoner?”

• Karam Singh case

“In a case where the prosecution relies on circumstantial evidence, such evidence must be inconsistent with any other hypothesis than that of the guilt of the accused.”

The case above suggests that there seem to be a different test which is the “irresistible conclusion test”

• Direct evidence ------- beyond reasonable doubt

• Circumstantial evidence-------- Irresistible Conclusion Test

The question is whether the Irresistible Conclusion Test is higher than Beyond Reasonable Doubt. According to Professor Ahmad Ibrahim, “Felt that there is no need to distinguish (referred to Mc Greevy case)”

However, in the case of Jayaraman, it was held that “In our view the irresistible conclusion test only seems to place on the prosecution a higher burden of proof than in a case where it depends on direct evidence, for in fact to apply the one and one only irresistible conclusion test is another way of saying that the prosecution must prove the guilt of the accused beyond reasonable doubt.” Syed Othman FJ:-  “it was only a play of words”

• McGreevy

It was the duty of the judge to make clear to the jury that they must not convict unless they are satisfied beyond a reasonable doubt of the guilt of the accused.

• Yeap Boon Hai v PP

In a case depending on circumstantial evidence, it is enough if the courts merely say that it is satisfied of the accused guilt. It is suffice to just mention beyond reasonable doubt.

• Juraimi Hussin v PP

No particular form of words is necessary to convey to the minds of the jury the burden that lies upon prosecution when it relies on circumstantial evidence to establish its case. The proposition that circumstantial evidence must when taken together; irresistibly lead to the conclusion that the accused committed the offence is merely another way of saying that the prosecution must prove its case beyond a reasonable doubt. This is because any gap in the circumstances relied upon or inconsistent with guilt would result in the prosecution not having proceed its case beyond a reasonable doubt.

In conclusion, the principle of “Irresistible Conclusion Test” is the same as the principle of “Beyond Reasonable Doubt”.

Sources ; http://malaysianlaw.weebly.com/circumstantial-evidence.html