LAW 596

SEP 2012 JAN 2013

FINAL

Question 1

On 16 October 2010 Minah, aged 16 years, was asleep in a dormitory of an all-girls

residential school at Jalan Ulu, Shah Alam. The main door of the dormitory, which
opened outwards, was left slightly open to provide ventilation as it was a hot and
humid night.

In the middle of the night, Minah felt a sensation of her panty being removed and of
someone groping her genital area. Being drowsy from a dose of cough medication
taken just before she slept, she could not overcome her drowsiness and drifted back
to sleep.

When she again felt a sensation, this time, of something trying to intrude into her
private parts, she shouted in reaction. She felt a withdrawal of something and a
scratch on her thigh. As she forced her eyes open, she saw two figures running away
from beside her bed and screamed.

Wardens of the hostel responded to the screams of Minah and the other occupants
of the dormitory. A search led to the arrest of:-

(i) a person (X1), later identified as Oren, hiding under the bed
(ii) another person (X2), later identified as Apel, hiding at the outside corridor
behind the main door of the dormitory.

The police were informed. On arrival of Insp. Alfa, Apel and Oren were surrendered
to him. An examination of Apel and Oren led to the discovery of:-

(i) a pair of girls panty (P1) in the pocket of Apel (X2).

(ii) stains of blood under the nail of Orens (X1) index finger. This was
recovered by Insp. Alfa with a swab (P2).

Under questioning, Apel refused to say anything. However, Oren said:-

On 17 October 2010 at about 2.00 a.m. I saw Apel, a fellow jaga kereta, break
into the dormitory of a girls school at Jalan Ulu, Shah Alam. As I was curious,
I followed him inside. There was sufficient light from the corridor through the
slightly open door for me to see Apel remove the panty of one of the
occupiers. As he groped the private parts of the sleeping girl, the girl suddenly
screamed. I was frightened and in agitation, I fled. I was arrested while hiding
under a bed in the dormitory.
Based on the police investigation and experts reports, the following charges were
framed against:-

(i) Oren
That you on 17 October 2010 at about 2.00 a.m. in the dormitory of Alam
Girls School, Jalan Ulu, Shah Alam in the District of Shah Alam in the state of
Selangor, had sexual connection with Minah by the introduction of your finger
into the vagina of the said Minah without her consent and thereby committed
an offence punishable under section 377 CA of the Penal Code.

(ii) Apel

That you on 17 October 2010 at about 2.00 a.m. in the dormitory of Alam
Girls School, Jalan Ulu, Shah Alam in the District of Shah Alam, in the state
of Selangor, committed house trespass and thereby committed an offence
punishable under section 448 of the Penal Code.

On being charged, both Oren and Apel claimed trial. A joint trial was ordered. On the
date of hearing on 5 May 2011 before Astro, the following witnesses gave evidence:-

(i) Minah

I am a resident of the Alam Girls School, Jalan Ulu, Shah Alam. On 16 October
2010, at lights out at 10.00 p.m. I went to sleep in the dormitory with the other girls.
My bed is beside the door. As it was a hot night, the door was left slightly ajar to
increase ventilation. In the middle of the night, I felt my panty being removed and of
something moving around my genital area. As I was drowsy from a cough medicine I
took before I went to sleep, I thought the sensation was a bad dream. I drifted back
to sleep. I was then shocked awake when I fell something probing my private parts.
In reaction, I screamed and felt a sharp pain on my thigh. On opening my eyes, I saw
two fleeing figures. The lights were switched on by the warden. I was given
assistance and later sent to hospital for an examination. I also attended an
identification parade but could not identify the two persons but I identified my panty
(P1).

(ii) Beta

I am a warden of the Alam Girls School. On 17 October 2010 at about 2.00 a.m. I
was startled awake by screams from the dormitory. On proceeding there, I was told
there were two intruders. I searched the dormitory and found a man (X1) hiding
under one of the empty beds. I arrested him. From documents he carried, he was
Oren. I later surrendered Oren to Insp. Alfa.

(iii) Omega

I am a warden of the Alam Girls School. On 17 October 2010 at about 2.00 a.m. I
responded to screams in the dormitory. On being told there were two intruders, I
discovered a male (X2) in the outside corridor hiding behind the dormitory door. I
arrested him. He was Apel. I also found in his possession a pair of panty (P1). I later
surrendered Apel and the panty (P1) to Insp. Alfa.
(iv) Insp. Alfa

I am the investigating officer. On 17 October 2010 I investigated a case where a

student of the Alam Girls School was sexually assaulted by two intruders. On arrival,
I took custody of Oren and Apel. Minah was sent for a medical examination. On
examining Oren and Apel, I found traces of blood on Orens right index finger which I
removed with a swab (P2). I later took possession of blood samples of Minah (P3A),
(P3B), Oren (P4) and Apel (P5) which, together with (P2), I sent to Dr. Kemist for
examination.

(v) Dr. Medik

On 17 October 2010 I attended to Minah. I found slight lacerations in her vagina and
a scratch on her right thigh just beside her private parts. There was slight bleeding
from the private parts and the scratch. I took a swab of the vaginal bleeding (P3A)
and from the thigh (P3B). I later took specimens of blood of Oren (P4) and Apel (P5)
which I gave to insp. Alfa.

(vi) Dr. Kemist

I examined five (5) specimens: - Swab (P2), specimen blood Minah (P3A) and (P3B),
blood Oren (P4) and blood Apel (P5). My examination showed a match of the DNA
profile between specimen (P2) and (P3A)(P3B)

(vii) Insp. Saturn

I held an identification parade. Minah could not identify the assailants but identified
her panty (P1)

The prosecution closed its case and following submissions, Astro adjourned further
hearing till 14 May 2011.

(a) Assume that you represented Oren. In that capacity, submit that Oren has no
case to answer.
(20 marks)

On14 May 2011, on resumption of trial, DPP Constar, who prosecuted, applied for
leave to recall Dr. Kemist to adduce further evidence that:-

I received specimens (P2), (P3A), (P3B), (P4) and (P5) from Insp. Alfa

After recording the further evidence of Dr. Kemist and further cross-examination,
Astro ordered Oren and Apel to enter their defences to enable them the chance to
explain their presence in the dormitory. In their defence:-

(i) Oren denied that he had committed any offence

(ii) Apel claimed that he was all the time outside the dormitory and never
intruded at any time inside the dormitory. This defence was rejected for
non-compliance with notice under section 402A of the CPC.
 (b) Do you agree with Astros rejection of Apels defence because of non-
compliance with section 402A CPC?
(10 marks)

At close of the defence, Astro:-

(i) reserved judgment on Apel

(ii) convicted Oren and sentenced to a 2-year term of imprisonment.

(c) Assume you are Astro. In that capacity, decide whether you would convict
or acquit Apel.
(20 marks)

(d) On 16 July 2011, Olga, the wife of Oren consulted you for advice, as Oren
was not concerned with his conviction: -

(i) whether Oren has grounds to appeal against his conviction on 14 May
2011 by Astro (do not discuss issues already answered in (a)
above).
(20 marks)

(ii) how to first commence the process of making the appeal and his
chances of succeeding in his application.
(10 marks)

(e) Based on your answer in (d)(i) prepare Orens Petition of Appeal.

(20 marks)