QUESTION-

1) Bincangkan bagaimanakah pengecaman (identification) seseorang suspek boleh dibuat menurut Seksyen 9 (Akta Keterangan 1950).

2) Nyatakan juga permasalahan dan cabaran-cabaran (jika ada) yang terdapat dalam teknik pengecaman tersebut dengan merujuk kepada autoriti yang relevan.

Identification of Person

a)Identification by fingerprint

Fingerprint Identification is the method of identification using the impressions made by the minute ridge formations or patterns found on the fingertips. No two persons have exactly the same arrangement of ridge patterns, and the patterns of any one individual remain unchanged throughout life. Fingerprints offer an infallible means of personal identification. Other personal characteristics may change, but fingerprints do not. By comparing fingerprints at the scene of a crime with the fingerprint record of suspected persons, officials can establish absolute proof of the presence or identity of a person.

Fingerprint is a biometric modality that is often used in a security setting. Fingerprint databases are in use worldwide for the purposes of personal identification, border control as well as to facilitate criminal forensic investigation. Many countries have multiple fingerprint databases, with each database serving a specific purpose. In Malaysia, there are at least 4 different fingerprint databases; namely PDRM-MAFIS (Polis Di Raja Malaysia- Malaysian Automated Fingerprint Identification System), PDRM-BIOFIS (Polis Di Raja Malaysia-Biometric Identification System), NRD-AFIS (National Registration Department- Automated Fingerprint Identification System), and NERS (National Foreigners Enforcement and Registration System).[1]

The consolidation of fingerprint databases will enable cross-referencing to be done easily. For instance, the PDRM-BIOFIS fingerprint database contains the fingerprints of criminals. These criminals are often under travel restriction, and upon cross-referencing with the NERS fingerprint database will allow easy refusal of entry and exit at immigration points.

Identification of fingerprint is often useful and regularly resorted to when necessary. In the case of PP v. Toh Kee Huat[2] , Ong J acquitted the accused at the close of the prosecution because the only evidence against the accused was his fingerprint and the ‘accused’s fingerprint’, among other unidentified ones on the window of the car, which was left standing in a place accessible to anyone, cannot be legally sufficient to infer his guilty.

“With respect, I do not understand what is meant by, legally sufficient’. At any rate, the weight of evidence of finger prints can never be decried. The respondent’s finger print was found on the side surface of the glass. The mark could not have been made there except after someone (if not himself) had unlawfully tampered with the locked car to gain entry. That finger print could only have been made during the hours of darkness when the car was taken, or before its discovery next morning. The position of the mark alone makes it self-evident that was not made by a casual passer-by.” There is no question that a clear prima facie case had been made out which if rebutted warrants a conviction. [3]

b) Identification by voice

When the identification of the accused person is in question, it can be proved or disproved by adducing similarity or dissimilarity of the accused’s characteristics. And, one of the characteristics by which a person can be identified is his or her voice.

In relation to the cases of identifying the voice of the accused by the witness who heard the voice of the offender, the court has to mainly depend on the perception or the assertion of the witnesses regarding the voice of the offender. There is real possibility of mistake on expense of the surrounding circumstances when the witness perceived the voice. For example- the medium through which he perceived, the ability to remember the way the offender spoke, ability to compare the voices accurately, how long he heard the offender and the time passed between hearing the offender and the accused voice.

Basically, voice identification is a comparison of a known voice to an unknown voice to determine the identity of the unknown voice. This type of identification can be categorized as a real evidence for example a tape recording of the offender's voice. Here, the court may be invited to make the identification by comparing the voice on the recording with the defendant's voice. However, if there is no recording of voice but someone heard the voice of the offender, it is solely depended on those witnesses to identify the accused on the basis of their memory.

Even though identification of voice on the telephone is admissible nevertheless its weight is a matter of opinion. This can be seen in in the case of Teng Kum Seng v. Public Prosecutor[4], the identity of the accused was established by his three victims who were able to recognise his voice on the telephone, which was found to be similar, when he telephoned the three victims when attempting to put them in fear of injury in furtherance of extorting money from them. According to Thomson CJ, what weight is to be attached to such evidence, particularly in the case of Chinese voice, may be a matter of opinion. But it was a matter on which the magistrate was entitled to form his own opinion and as to its admissibility, there is no issue with it.[5]

c) Identification Parades

Identification of parade is admissible under section 9 of the Evidence Act 1950 as provided in the case of Jaafar bin Ali v PP[6]. Question often arises regarding to when the identification parades should be held. Such question can be answered in the case of PP v Sarjeet Singh[7] whereby Abdul Malik Ishak JC stated that the necessity of holding an identification parade can only arise where the accused persons are not previously known to the witnesses. Such statement also confirmed by Sikri J in Jadunath Singh v State of UP[8] whereby he mentioned that the prosecution should hold an identification parade specially if an accused says that the alleged eye-witnesses did not know him previously. Augustine Paul J in the case of Jaafar also quoted the judgment in R v Cape[9] whereby in a case where the witness knew the accused well and the latter’s sole defence was one of the malicious fabrication by the witness no useful purpose could have been served by the giving of a Turnbull warning. Therefore, when the accused is caught red-handed, there is no need for an identification parade.

Basically there is no written law regarding to the procedure for identification parade. According to Zakaria Yatim J in the case of Ong Lai Kim v PP[10], he stated that there is no specific provision in the Criminal Procedure Code (CPC) or in the Evidence Act itself but reference could be made in the old section 113(111) of the CPC to a statement made in the course of an identification parade. Nonetheless such section had been substituted with a new section 113 vide Act A324 making no more reference regarding to identification parades. Such condition making it as a crucial challenge for the authority regarding to the process on how a fair and reasonable identification parade should be carried out. In general the practise of Malaysia in dealing identification parade is that all people on the parade should be of the same nationality, same station in life and no great disparity of ages as compared to that suspected person. In addition, the police must not do anything which might prevent the identification being absolutely independent.[11]

Generally, the identification must be held at the earliest opportunity and all available witnesses should be required to attend at the very first parade. In England, such parade should be arranged by the officer on duty in charge of the station and not by the officer in charge of investigation. Furthermore, the witnesses must not be allowed to see the accused until the moment when everything is ready and they walk in to pick him out, and they should not have been previously assisted by photographs or by any verbal or written description. The accused should be placed among a number of persons consisting not less than 10 if one accused or 15 if two and so on. The persons be placed must not involve any police officers and such place selected for the parade must be well lighted. The witnesses should be brought in one by one, and are usually directed to touch the person they identify. On top of that, Yong Pung How CJ in Thirumalai Kumar v PP[12] stated that the persons in the line-up need not be of exactly the same description but quoting the statement in R v Wong Shing[13], the more similar their general appearance, the greater the reliability of the identification. However, if a witness failed to identify the accused at the identification parade but did so when the accused was presented to her after the parade had been dismissed, such identification would render highly irregular and prejudicial.[14]

There is no express provision in Malaysian Law regarding to the use of a one-way mirror in holding an identification parade, thus the English procedure relating to it is applicable pursuant to section 5 of the CPC according to Zakaria Yatim J in Ong Lai Kim v PP[15]. Where there are two or more suspects, separate identification parades must be held with not less than nine to ten persons and such persons must also be different for each identification parade. Moreover, if there are two or more identifying witnesses, they must be kept separately but there will be no objection if the witnesses are proven not given communication between themselves especially when the moment where one of the witnesses had viewed the persons in the parade. If there is a procedural breach in conducting an identification parade, such failure would not lead the parade to be fatal unless there is evidence of bad faith or a “deliberate flouting” of procedural requirements rather than mere inefficiency, the identification will probably not be upheld as provided in the case of Thirumalai and PP v Ong Phee Hoon James[16]. Therefore, to avoid such breach, it would be the duty of the police officers to conduct the parade properly and fairly. If the identify activity failed during the identification parade, such incident would not render the dock identification fatal provided that ample evidence had been presented to the learned judge to affirm the accused identity as stated in Ong Poh Cheng v PP[17].

Conflict arises when the disputed evidence of identification is not in relation to the accused but of another person.[18] In general, such conflict used to be solved using the principles of Turnbull directions. It is important to remember that Turnbull directions are required when the case against an accused person depends wholly or substantially on the correctness of an identification of him which the defence alleges to be mistaken.[19] Furthermore in Bath[20], the Court of Appeal held that where there is evidence at the relevant time the defendant was with another person, the purported identification of the other person should be subjected of a Turnbull direction as well. In other words, Turnbull directions are necessary to establish the identity of a person who is not the accused only if his identity is relevant to determine the identity of the accused which is in issue.[21] Apart from that, where there is non-identification of an accused at the identification parade, such evidence must be given in court as per Wee Chong Jin CJ in Ismail & Anor v PP[22] Last but not least, such evidence of identification at the parade only at best be considered as supporting evidence in the case of ST Shinde v State of Maharashtra[23].

In summary, the benefits of identification parades include that they are less suggestive than other methods of ‘picking out’ (such as pointing to a suspect in a prison yard or in the court house); they avoid the prejudicial tendency of photographs to suggest to the witness and/or the jury that the suspect has an existing criminal record; they provide a more holistic means to observe suspects than the static two-dimensional framing of a photo; and they allow the suspect (or their lawyer) to be present to observe the identification process.[24]

d) Identification by photograph

Identification by photographs is one of the examples of real evidence, for instance, photographs taken at the scene of the crime. Basically, identification by photographs is made in assisting the police to find out who is the accused of the crime. The use of photographs to assist the police to effect an arrest towards the accused does not receive any objection unless it does not followed what it should be done or the rules in identifying the accused. In order to identify a person, the photographs should be shown to the witness before an arrest take place. This can be seen in the case of Lai Ah Kam & Anor v R in which it has been stated that when a crime has been committed there is no objection to a witness being shown by Police a number of photographs and being asked if he could recognize one as that of a wanted man who has been arrested. When the examination of a number of photographs is made to assist the Police to effect an arrest there is no objection to it provided that there has been no prompting and that nothing has been done by the police to suggest that a particular photograph may be that of a wanted man. It is otherwise when a photograph has been shown to a witness after arrest; and if that has been done it may be a ground for quashing a conviction.[25] Here, it shows that if the photographs have been shown to the witness after arrest, the weight of reliable on the method of identification by photographs can be weakened and may be unreliable. In addition to that, it was stated in the case of R v Gross, there is no suggestion that the photo was shown to any witness after the arrest, so it does not appear that the action of the police in any way lessened the value of the identification at the parade.[26]

Besides that, the general rule that usually been used is that once a man has been arrested, the identification should be by personal inspection. This was said by Laville J in the case of Public Prosecutor v Kok Heng & 2 Ors in which it was held that, that while identification by photograph before arrest is acceptable in law, it has always been held that once a man has been arrested the identification should be by personal inspection.[27] The important thing that one should know is that the identification by photographs will be rejected if it is followed by an identification parade as being irregular.[28] This is because, if the accused was identified by photographs and then followed by an identification parade, it may be prejudicial towards the accused. For example, in a criminal case, a witness has been called by the police to identify the accused by showing some series of photographs and the witness had pick out any of them who resembles the person whom he thinks he will be able to identify. Then, the identification followed by an identification parade in which the accused had been gathered together with the other suspects of the case in the parade. In identifying the accused, the witness is more direct to choose the person whom he thinks he will able to identify by identification of photographs before this. This can bring prejudice towards the accused as it had revealed the identity of the accused before the identification parade takes place.

Furthermore, in order for the police to ask the witness to identify the accused or criminal by using photographs, the police must show a series of photographs and not the photograph of the actual person whom the police have already identified. This statement can be supported by the case of Ong Lai Kim v Public Prosecutor. In this case, Zakaria Yatim J agree with the learned Deputy Public Prosecutor by referring Sarkar’s Law of Evidence (13th Ed) at page 98 states that there is no objection to the police who are seeking for information as to the person or persons who may have committed a crime showing the persons who are able to identify the criminal a photograph or series of photographs to see if they can pick out any one of them who resembles the person whom they think they will be able to identify. What is objectionable is, if a witness has identified an accused person, for the police to try and corroborate the evidence of that witness by showing him or her photograph of the actual person whom they have already identified.[29] The police also must show a series of photographs of different people to the person or the witness for him to identify the accused of the criminal as has been stated in the case of Habee Bur Rahman v Public Prosecutor.[30]

Identification of a person by using the method of identification by photographs should not contain any information to show that the suspect is of bad character.[31] The photographs that lead to prejudicial evidence of bad character were admitted as likely to prejudice the fair trial of the accused. According to Section 54(1) of the Evidence Act 1950, the evidence of bad character of the accused is only admissible if evidence of his good character has been given. If the photographs showed to the witness that showing the bad character of the accused, it would tend to show that the accused has committed or convicted of other offences. This can be illustrated in the case of Loke Soor Har v Public Prosecutor as the crucial issue on the accused’s trial for murder was the identification of the murderer. To establish the accused person’s identity, a police officer had shown to the identifying witness some photographs of known pickpockets. This evidence was held to be prejudicial as it led to the impression that the appellant was a known pickpocket, and should not have been admitted.[32]

Another case that can be referred regarding the identification by photographs is Chooi Kam Woh v R as the subsequent personal identification is weakened if there was an earlier identification by photographs. In this case, someone was seen by a detective taking the bicycle of the complainant. The thief was not caught. A few days later the detective was shown 200 photographs from which he picked out one of the appellants. The appellant was later arrested in Kuala Lumpur and subsequently identified by the detective more than three months after the offence. There was absolutely no other evidence against the appellant. The procedure adopted is usual and perfectly legitimate, but the effect of subsequent identification is thereby weakened.[33]

Along the same line, a photofit picture constructed under the direction of a witness to the crime is admissible[34] and does not breach the hearsay evidence rule.[35] In R v Cook, Watkins LJ said that the production of the sketch or photofit by a police officer making a graphic representation of a witness’s memory as another form of the camera at work, albeit imperfectly, and not produced contemporaneously with the material incident but soon or fairly soon afterwards.[36] For example in the case of murder, the witness to the crime can be called to construct under his direction to the police officer the sketch of the accused that might be the murderer. That sketch is admissible since it forming a class of its own. However, it was necessary to give a Turnbull warning in which it means that in order to prove the accused is the perpetrator of the crime based on the photofit picture or sketch, it must follow the guidelines laid down in Turnbull’s case. There is a need for a thorough and accurate warning and directions to juries on the dangers of the quality of identification.[37] The accuracy of the identification that is something we need to take into account. According to Richard May, the jury should have access to all relevant information in assessing the accuracy of identification.[38] In our opinion, the photofit picture should be constructed as soon as after the event of the crime takes place. This is because if there is an ample time between the times of the event taken place and when the photofit picture is constructed, the witness’s memory may not be the same as on the day of the event. The form of photofit picture should be made soon after the event to guarantee the accuracy of the identification.

e) Identification by DNA

Nature of DNA Evidence

Technology has changed many aspects of the criminal justice system, and the use of DNA evidence represents one of the best examples of how technology has altered the criminal justice landscape. DNA, or deoxyribonucleic acid, is the basic building block of life. The information encoded in an organism's DNA acts as a blueprint for the organism's biological development and functioning. DNA exists in the cells of all living organisms, and by testing the DNA found in a person's cell, scientists can come up with a DNA profile for that individual. Violent crime scenes often contain a wide variety of biological evidence, most of which can be subjected to DNA testing. Although not always visible to the naked eye, such evidence often is key to solving a crime, obtaining a conviction, or exonerating the falsely accused[39].

Analyzing DNA Evidence

Investigators can collect DNA evidence from a number of different sources. Almost any biological evidence can contain DNA, although not every sample contains sufficient amounts of DNA to enable DNA profiling. Forensic investigators will analyze the biological samples to get a DNA profile of the individual that the samples came from. If investigators already have suspect in mind, they can collect samples to compare to the evidence collected at the scene. There are also databases of DNA profiles that investigators can use to identify suspects by comparing the database information to the DNA profile obtained from the biological evidence.

Safeguarding and preserving evidence is fundamental to the successful solution of a crime. DNA evidence is not unassailable. Errors in the collection and handling of the biological samples used for the DNA analysis can result in the exclusion of DNA evidence at trial. Similarly, if a lab contaminates the biological sample or is found to use unreliable methods, a judge may reject the DNA evidence at trial. When challenging DNA evidence, defense counsel will usually focus on the behaviour of the investigators and forensic analysts in an attempt to cast doubt on the results of DNA profiles, rather than attack the reliability of DNA profiling as a whole[40].

Chain-of-Custody

In order to render DNA evidence admissible, there must be evidence to show:

1) The person who took the bodily samples for analysis;

2) The person from whom such samples were taken; and

3) How the samples were handled, stored and preserved

The requirements of evidence above are basically necessary in proving chain of custody of the evidence. Chain of custody is ‘the witnessed, unbroken, written chronological history of who had the evidence from the time of collection until it is presented as evidence in court.’[41] The chain of custody is a record necessary to lay a foundation for the evidence in question, by showing the absence of alteration, substitution, or change of condition[42]. Specifically, foundation testimony for tangible evidence requires that exhibits be identified as being in substantially the same condition as they were at the time the evidence was seized, and that the exhibit has remained in that condition through an unbroken chain of custody. It is therefore imperative that the prosecution would need to offer testimony by each person who has handled it from the time it was discovered at the crime scene until it is presented in court[43].

Failure to submit the supporting evidence for DNA identification may render them inadmissible. This was what happened in the case of PP v Syed Muhammad Faysal bin Syed Ibrahim. In this case, the court found that there is absolutely no evidence from whose body, by whom and when was the sample of the blood obtained and evidence as to: (a) where the sample of the blood which was taken from a particular person’s body was placed, stored and preserved; or (b) whether it was person’s body was immediately transmitted into a tube for safekeeping; and (d) who had labelled the tube, if the sample of blood was in fact kept in a tube; and (d) where it was kept until it was handed to PW13 on 22 February 2001 by PW12. The court further held that the entire evidence which leads to the DNA profiling of the sample of blood purported to be from the accused and the entire handling of the sample of the blood to be unsatisfactorily and leaves so many material gaps. The accused therefore cannot be penalised for the lack of ingenuity and seriousness in the police investigation and the conduct of the prosecution and he is entitled to the time-honoured benefit of doubt.

Evidentiary value of DNA Evidence

DNA evidence is often seen as corroborative evidence. It may be in the form of the conduct of the accused, demeanour of the victim, former statements or even any other scientific evidence including DNA evidence. Therefore, the question rests whether or not DNA evidence when standing alone is sufficient to secure a conviction? To answer this question, the first issue to be answered is whether or not DNA on its own is enough to prove each element of actus reus and mens rea. For instance, the presence of semen on the vaginal swab from the victim does not automatically suggest the accused had raped the victim. It merely indicates that sexual intercourse had taken place but nothing from the evidence could explain that sexual intercourse was without consent[44].

The significance of the DNA evidence will depend critically upon what else is known about the suspect. In other words, the presence of the accused's DNA at the crime scene is not sufficient. If the accused could explain why his DNA was at the crime scene or if he has a convincing alibi, it will appear that the DNA evidence is less significant. On the other hand, if evidence shows that the accused was near the crime scene or has been identified by a suspect or by other circumstantial evidence, then the DNA evidence becomes very significant. In fact, this approach has been affirmed by our own Court of Appeal in Hanafi bin Mat Hassan v Public Prosecutor.

The evidentiary value of DNA evidence is significant where there is other evidence to link the accused to the crime. VT Singham J in PP v Syed Muhammad Faysal bin Syed Ibrahim found that the piece of evidence is so vital and will become significant if there was evidence that the accused was found near the place of the murder of the deceased at the time the murder took place or to link the accused with the murder if there was other reliable and sufficient circumstantial evidence so as to link the accused with the crime of murder. The court observed DNA evidence as only leads to draw an inference, the weight and value of the evidence still remain within the domain of the trier of fact in our system, the court. Nevertheless, while the admission of DNA evidence is recognised in this jurisdiction, it does not speak as to a fact but it is only an incriminating piece of evidence and the DNA profiling establishes no more than the suspect could be the offender , not that he or she is the offender.

Reliability of DNA Evidence

Although, some people perceive DNA evidence as unassailable proof of guilt, nevertheless, it is subject to challenges like any other scientific analysis because of its nature[45]. Despite the notion that scientific evidence never tells lies, we cannot brush aside any possibility of inaccuracy from resultsobtained since scientific evidence like DNA is dependable upon many extrinsic factors.

There are some issues pertaining to the admissibility of DNA evidence. The first one would be contamination of the DNA evidence. Contamination here does not necessarily during the scene of the crime but also can occur while conducting the DNA test. The process of developing DNA evidence is actually commenced from the place where the alleged crime was committed. It is from the crime scene that samples such as blood stain, seminal stain, finger clipping, hair strand and others are collected for testing. As such, it must be noted that management of the crime scene is also of the utmost important before a concrete DNA analysis can be obtained.

Contamination of samples for DNA test could originate from many sources. Even, the first available man who arrived at the crime scene after the incident occurred can be the source of contamination and even he might be the person who lent a hand to the victim. This is why management of the crime scene should be the first primary concern. There is no guarantee that by the time the forensic team arrive at the scene, it remains intact and fresh as if the crime had just happened.

Failure to observe procedures while collecting samples at the crime scene may cause the DNA result to be inaccurate[46]. There has been an instance where the court rejected the reliability of DNA evidence due to failure to observe proper procedure during investigation. The case was Public Prosecutor v Richard Chia Kok Hiong[47], a case decided by High Court of Brunei Darussalam. Steven Chong J in that case disregarded DNA evidence after he lamented on how the police officers involved in the investigation of the case had little appreciation of the risks of contamination and had disregarded the procedure in the collection, handling and storage of exhibits from the crime scene. Apart from that, there was evidence which revealed that exhibits collected from the crime scene were placed in envelopes which were not sealed and put in boxes. In addition there were no records whatsoever as to the movement of exhibits in the store thus questioning the chain of evidence before they were handed to the lab for testing.

In addition, contamination can occur even while the scientific analysis is conducted. This is due to the fact that laboratory test of DNA involves a complex and lengthy process which includes participation of many people and various techniques. A slight mistake or human error at any of the stages can invalidate the results and reduce the probative value of DNA evidence. In People v Simpson, one of the forensic scientists admitted that he accidently spilled the referral blood sample of the accused at the evidence processing room and afterward handled with other collected samples at the crime scene. The defence has used this reason to suggest that Simpson's blood was inadvertently transferred which explains why the DNA profile was consistent with the accused.15

Furthermore, the court in Richard Chia[48] case also rejected the DNA evidence based on the fact that the court did not have full confidence in the prosecution's stand that contamination could not have happened when the test was conducted in the Singapore laboratory. Based on the explanation given by the defence expert, the court could not rule out the fact that the laboratory findings may have been compromised.

Thus, based on the above principles, it is incumbent for the prosecution to lead evidence that indicated that the laboratory guidelines and procedures had been fully observed since contamination could happen while the test was conducted.

The second issue pertaining to this matter is errors in interpreting the DNA evidence. Another important feature in DNA analysis is in interpreting the result of the random match probability also known as the random occurrence ratio. This method of calculation which has been explained earlier has its fair share of problems. Basically, errors in interpreting and weighing the random match probability can happen on both sides ie the prosecution and the defence[49].

For the prosecution, the situation is referred to as the prosecutor's fallacy. For instance, let us say that the calculatio reveals that the match probability is one out of 27 million people inhabiting Malaysia. This finding tends to suggest that there is a probability that only one person out of 27 millions shares the same DNA profile with the accused. However, it must be noted that the total population in this country is 27 million. Thus, it seems to suggest that he is the only person who has the DNA profile and as such he is the criminal who left the stain and is guilty of the crime. This would be highly discriminatory to the accused and would cause great prejudicial effect to him.

On the hand, there is what is known as the defendant's fallacy. For instance, let us say that the match probability is one out of one million of the male population in Malaysia and the total male population in Malaysia is ten million. In this circumstance, the defendant may argue that there is a probability of ten people being the culprit, ie the probability of his guilt is only 10%. However, this assumption would only be correct if all the persons are equally likely to have committed the crime.

In order to mitigate, these fallacious assumptions, the court in R v Doheny; R v Adams[50] formulated the correct test to be applied when dealing with DNA evidence as a whole. The significance of DNA evidence will depend critically upon what else is known about the suspect. For instance, if he has a convincing alibi at the time of the crime, it will appear highly improbable that he can be responsible for the crime despite his matching DNA profile. However, if he is found to be near to the crime scene or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence now becomes significant.

The principle test enunciated in R v Doheny; R v Adams[51] has been adopted by the Malaysian courts. In Hanafi, whilst reiterating the principle, Augustine Paul JCA vividly explained that the object of DNA evidence was to assess the possibilities of another person having a similar match DNA profile with the accused. Therefore, even if another person has a similar match, his involvement in the crime will be negative if the other evidence is sufficient to connect the accused with the crime.

The third issue is regarding the failure of the expert to explain the evidence. An expert who testifies in court for DNA evidence needs to explain the detail of his analysis thoroughly[52]. It is incumbent for the expert to explain in detail not only the procedure as to how the DNA test was conducted but he must also give reasons on how he arrived at the conclusion. As such, an expert cannot simply read the result of his analysis without explaining it. Where an expert witness gives oral evidence of his conclusions reached on a DNA analysis without explaining the reasns that led to such conclusions, his oral evidence will not be of any evidentiary value. The fact that his reasons are contained in a written report tendered as evidence will not make any difference.

An expert witness is not a witness who testifies on questions of fact. Therefore, an expert needs to explain the ground of his decision as required by s 51 of the Evidence Act 1950. Several cases have shown that this issue has been raised by the defence in challenging the admissibility of DNA evidence. In fact, the court is agreeable with that contention. In Hanafi bin Mat Hassan v Public Prosecutor[53], the court ruled that when testifying, the DNA expert must explain in detail on how he obtained the matching DNA characteristic. In other words, he has to explain all the details as to how the results tabulated in the report were obtained. Apart from that, the DNA expert is also required to explain on how he managed to get the random match probability including the method of calculation used by him.

Failure to satisfy on the above requirements would cause the DNA evidence to have no evidential value. In Public Prosecutor v Loo Seng Yip[54] the DNA expert merely stated that the DNA profile from the blood sample belonged to the accused because it matched with the blood found on the crime scene. He also merely stated that the random occurrence ratio indicated that the probability of a randomly selected unrelated individual having the matching DNA profile is approximately one in four billion as calculated based on the Malaysian Chinese population database. There were no reasons given by the chemist before he arrived at the conclusion of his findings. He neither explained the nature of DNA characteristics and the number of matches that were similar nor as to how he arrived at the random occurrence ratio.

As such, the chemist had only given the evidence of the conclusion without adverting to the reasons that led to such a conclusion. The fact that the required evidence was on the report made no difference to his evidence. This was because the report itself was only considered as a piece of corroborative evidence and could not supplement or substitute the oral evidence that should have been given at the first instance by the expert. It is also settled law that corroborative evidence is not meant to validate the evidence which is deficient or suspect or incredible but only to confirm and support the evidence as satisfactory. Therefore, evidence tendered to corroborate the testimony of a witness cannot be used as substitute of substantive evidence itself[55].

In other words, when dealing with expert evidence the court is primarily concerned with the oral testimony of the expert his analysis and findings. The DNA report that he prepared is just a data analysis documented in order to corroborate his testimony. However, what would be the effect if the DNA report is tendered via s 399(1) of the Criminal Procedure Code and what would be the correct weight to be attached to it?

In Muhammed bin Hassan v Public Prosecutor[56], Chong Siew Fai CJ (Sabah and Sarawak) explained that if the prosecution purports to use procedure under s 399(1) of the Criminal Procedure Code, the rule might apply that the contents of the report must be proved by the report itself, and not by parole evidence. The only disadvantage is that, the contents of the report cannot be subjected to cross-examination by counsel for the accused. Thus, it is submitted that, even if the DNA report can be made admissible by virtue of s 399(1) of the Criminal Procedure Code, it would carry less weight. On the contrary, if an expert testifies on matters based on his analysis, his report would only operate as corroborative evidence to his oral testimony but cannot be regarded as primary evidence by itself.

f) Identification by ear print

The Use of Identification of Earprint

The use of earprint identification has made its way in the worldwide criminal justice system as a means to solve crime. As aptly held in an English case of R v Clarke, it is essential that the English criminal justice system should take into account modern methods of crime detection. It is also wrong to deny to the law of evidence, the advantages to be gained from new techniques and new advances in science.

The earprint identification has been used across the globe in countries like the United Kingdom, Netherlands and the United States. This area of scientific evidence is relatively new compared to other methods like fingerprint identification and the use of DNA. In an English case of R v Dallagher, the case is an important pointer to many discussion and questions that surround the use of earprint identification.

In R v Dallagher, the case has elaborated at length on its importance and reliability as a safe means to convict an accused in a criminal case. The appellant was convicted of murder and sentenced to life imprisonment. At the appeal stage, the appellant put forward an argument that aimed to demolish the credibility of an earprint identification as a reliable method of identification.

The importance of earprint identification

In this case, during the trial stage, the prosecution presented two experts of earprint identification before the Court. They were Mr Van Der Lugt, a Dutch police officer who had specialised in ear print comparison for over a decade and Professor Vanezis, Regius Professor of Forensic Medicine and Science in the University of Glasgow. As for the first expert, Mr Van Der Lugt had 27 years of service as a police officer in Holland, and lectured at the Dutch Police College.

Despite his interest in the area of work of earprint identification, he however has no formal qualification. He had simply become interested in ear print identification and read what was available on that topic. He had built up a portfolio of about 600 photographs and 300 ear prints and from his experience and what he had read he was satisfied that no two ear prints are alike in every particular.

Earprint identification weaknesses

Interesting enough, in this case, the expert opinions from both sides of the appellant and respondent, showed a great debate and analysis of earprint identification of otherwise would be little known and remote as it is still in infancy stage.

The expert opinions from the appellant indicate that the method requires more thorough research and subject to various limitations, hence cannot be regarded as the sole and safe means to convict a person.

The counsel for appellant relied heavily on the report made by Dr Champod who, with two others, after the trial in this case, wrote an article which was published in the Journal of Forensic Sciences. Before joining the Forensic Science Service he was an assistant professor at the University of Lausanne. He accepts that all ears are different, and, as we understand his evidence, that differences between ears can be discerned, but, as he put it in his report, "a high variability between ears does not imply necessarily that a high variability is expressed in marks left by different persons" and the evidence as to that is limited.

Furthermore, since there is not a larger data base to work from, the question is raised as to the value to be attributed to a match. Dr Champod went on to express serious reservations as to the way in which Mr Van Der Lugt and Professor Vanezis expressed their conclusions. In his view-

"(1) Because of the paucity of relevant research and because of court decisions in the Netherlands and United States the process of establishing the source of an unknown ear print based on a comparative examination with ear prints from known donors cannot be regarded as 'generally accepted in the scientific community.'

(2) There is no empirical research, and no peer review to support the conclusion that robust decisions can be founded on comparisons which in turn are critically dependant on the examiner's judgment in circumstances where there are no criteria for testing that judgment.

(3) In the present case the expert expressions of opinion could be viewed as manifestations of the prosecutor's fallacy. They should have said no more than that what they found supported to an appropriate degree the conclusion that the marks on the window were made by the defendant's ear.”

In summary, based on Dr Champod's conclusion, at the present time ear print comparison can help to narrow the field, and may eliminate, but cannot alone be regarded as a safe basis on which to identify a particular individual as being the person who left one or more prints at the scene of a crime. He points out that neither the Forensic Science Service in the United Kingdom nor the Federal Bureau of Investigation in the United States carries out ear print comparisons.

In Malaysian criminal justice system, the Court is yet to employ earprint identification as a new method of identification as stated under Section 9 of Evidence Act 1950. It would be a long way before the method make any progress into the local criminal justice system as the earprint identification is still subject to various debates and questions.

g) Identification by footprint

In almost every criminal investigation it is necessary to determine and prove that a particular person or persons may or may not have been present at the scene of a crime. For this reason, the collection, preservation and analysis of physical evidence has become more frequent in the law enforcement community.

Since criminals must enter and exit crime scene areas it should therefore, be reasonably assumed that they may leave traces of their footwear or bare footprint. Criminals have become smarter and wiser by beginning to frequently wear protection over their hands to avoid leaving fingerprints, and masks over their faces to avoid eyewitness identification. However, they are rarely aware of, or make little attempt to conceal footwear or their bare foot.

Thus, footprint identification even though it is less common as compared to fingerprints identification, it can also lead to an important part in proving that the suspect was at the crime scene. A footprint is the impression that a person leaves in the earth after they walk on it. So, in discussing the process of identifying footprints, it can be divided into two which are identification of footwear and identification of bare footprint.

Footwear

Criminals often don masks or gloves to conceal their identity. However, they must walk to and from the scene. Each foot strike carries with it the possibility of identification of their footwear as the sole source of that mark.

Footprint identifications are less common than for fingerprints for several reasons. First, such marks are not as commonly sought or recovered by crime scene investigators. Second, the clarity of reproduction required for conclusive individualization is not often present. Third, individualization is only possible when random, "accidental" characteristics have been imparted to the sole of the shoe that are reproduced in the impression[57]. When this accidental detail is present in sufficient quantity and quality, it is possible to individualize a print to a specific shoe, to the exclusion of all other possible sources[58]. Even when conclusive individualization is not present, it is still possible to limit the number of shoes that could have made a mark.

Bare footprint

Bare footprint identification is the use of bare footprint that has usually been left at a scene of crime by the perpetrator of that crime. This is a relatively unusual technique used in the identification process in the Western world, where the shod foot predominates[59]. Bare footprint identification is, however, more frequently used as a method in identification in those countries, where barefoot walking is commonplace. Even though the habit of walking barefooting in the house is common in Malaysia, it is however no cases yet to be reported on the arresting of perpetrator after identifying their bare footprint.

There are however, circumstances where footprints can be associated with crime scenes in the West. These can include crimes of a sexual nature where the perpetrator has removed his clothing prior to, or during the crime and where the offenders with forensic awareness have removed their footwear prior to the criminal act in the mistaken belief that they would be safer from conviction when leaving only a bare footprint at the scene[60]. There have also been examples of footprints being used as evidence in crimes of violence, where the criminal has removed and destroyed their blood-stained clothing and footwear, inadvertently leaving their bare footprints in blood at the scene[61].

Identification of thing

a)Identification of an article.

Identification of an article falls under identification of thing. This type of identification was illustrated in the case of Balfour v Public Prosecutor[62]. In this case, the appellant was tried at the Assizes in Seremban on charges of house-breaking by night with intent to steal, and theft in a dwelling. The appellant entered the hawker’s house while the family member was not at home. Once the hawker came home, she found that her door open and her room ransacked. She then went to the Police Station where she specified $80/- in cash, a ring and a bracelet as articles missing.

One of the witnesses, Suppiah witnessed the appellant hand the jewellery to the Chinese proprietor of another refreshment stall. Suppiah informed two detectives who were on duty and they went to the stall where the appellant was still there. The proprietor indicated the appellant as the one who had handed to him a gold ring, a child’s bracelet and a necklace which then handed to the detectives. The complainant identified as hers the three articles brought in by the detectives.

In identifying the identity of the articles, the Officer-in-charge and Police District should have borrowed half-a-dozen or more common articles of jewellery then laid them on table with the three articles recovered and then said to the complainant to pick out the jewelleries which belong to them. If she had picked out all three articles, their identity would have been clearly establish and also the omission of the necklace from her report would have been made good. The omission would not affect her credit as it is a common experience that not all the articles stolen are missed on the first inspection but it detracts a little from the weight of her evidence as to the necklace. On the other hand, she mentioned a ring and bracelet missing in the report before she could have known of the arrest, that these two articles were in the possession of the appellant and that they are of a type natural to her but unusual to the appellant. In these circumstances we are of opinion that the identity of the articles was sufficiently proved.[63]

Based on this case, the identification of an article is established if the complainant can identify the articles missing. Even if there is an omission as to the report regarding the missing necklace, however, it will not affect her identification.

However, there are some challenges faced while identifying things. Since the same principle applies to the identification of a person, therefore, the challenges may be the same. One of the challenges is that the authenticity of the things. The authenticity of the things can be doubted as there are some things which look alike. When the identification was done at the police station, and it gets messed up with other things, the victim may not able to identify correctly. He/she may just pick something which looks like the missing item. When he/she got home, only then he/she realized that they had picked wrong item, which is not belong to them.

Stress experienced by the victim may be one of the challenges. During the identification, it may appear that high levels of arousal, stress, fear or anxiety are detrimental to eyewitness accuracy[64] in relation to identification. During the identification of thing being held, the victim may feel pressure or stress as his things are missing. Thus, it may detrimental to the identification process. Another reason why such arousal is detrimental to eyewitness accuracy is that such levels of arousal are atypical for the person and cognitive functions are disrupted.[65] Those challenges may finally lead to non-identifications. As common articles are being laid down on the table, the victim may identify other things than the one belong to them. This is a serious but common error in human judgment.[66]

----------------------- [1] Chiung Ching Ho, C.Eswaran, Consolidation of Fingerprint Databases: Challenges and Solutions in the Malaysian context, [2] 1 MLJ 76 [1965] [3] Mohd Akram b. Hj. Shair Mohamed, Identification Evidence And The Turnbull Guidelines: Should Our Courts Follow? [4] [1960] 1 MLJ 225

[5] A. Paul, Evidence: Practice and Procedure, 4th Edition, LexisNexis, Kuala Lumpur, 527. [6] [1998] 4 MLJ 406.

[7] [1994] 2 MLJ 290.

[8] AIR 1971 SC 363.

[9] (1996) 1 Cr App R 191.

[10] [1991] 3 MLJ 111.

[11] Prima Facie Journey, Various Types of Identifications, http://primafaciejourney.blogspot.com/2012/11/various-types-of-identification.html (9 November 2014). [12] [1997] 3 SLR 434.

[13] [1977-1979] HKC 464.

[14] Paul Augustine, Evidence: Practice and Procedure, 4th Edition 2010, Petaling Jaya, Lexis-Nexis, hlm 125.

[15] [1991] 3 MLJ 111.

[16] [2000] 3 SLR 293.

[17] [1998] 4 MLJ 8.

[18] Law in Perspectives, http://legalperspectives.blogspot.com/2010/02/identification-parades-principles.html (9 November 2014).

[19] Abdul Rani Kamarudin, The “Turnbull Guidelines” Proof And Evidence Under The Malaysian Evidence Act 1950, http://irep.iium.edu.my/8693/1/2003_The_'turnbull_guidelines'_proof_and_evidence_under_the_Malaysian_evidence_Act_1950.pdf (9 November 2014).

[20] (1990) Crim LR 716.

[21] Mohd Akram b. Hj. Shair Mohamed. “Identification Evidence And The Turnbull Guidelines: Should Our Courts Follow?” [1989] 2 CLJ 945

[22] [1967] 1 MLJ 241.

[23] AIR 1974 SC 791. [24] Australian Law Reform Commission, Identification Evidence, http://www.alrc.gov.au/publications/13.%20Identification%20Evidence/identification-parades (12 November 2014). [25] [1939] MLJ 306, 307 (CCA). [26] 17 Cr App R 196. [27] [1948] MLJ 171 (HC). [28] Mohd Akram b. Hj. Shair Mohamed, Identification Evidence And The Turnbull Guidelines: Should Our Courts Follow?, [1989] 2 CLJ 945. [29] [1991] 3 MLJ 111 (HC). [30] [1971] 2 MLJ 194 (HC). [31] Augustine Paul, Evidence: Practice and Procedure, Lexis Nexis, Fourth Edition, 2010, pg 99. [32] [1954] MLJ 149, 150 (CA). [33] [1954] MLJ 264 (HC). [34] Augustine Paul, Evidence: Practice and Procedure, pg 100. [35] Datuk Dr. Hj. Hamid Sultan Bin Abu Backer, Janab’s Key To The Law of Evidence, Janab (M) Sdn Bhd, 4th Edition, pg 273. [36] Augustine Paul, Evidence: Practice and Procedure, pg 101. [37] Abdul Rani Kamarudin, The ‘Turnbull Guideline’s Proof And Evidence Under The Malaysian Evidence, IIUM Law Journal, Vol 11, No 2, 2003, pg 266. [38] Richard May, Criminal Evidence, Sweet & Maxwell, Third Edition, 1995, pg 355. [39] DNA Evidence : What law Enforcement Should Know NIJ Journal, Issue No. 249, July 2003 [40]How DNA Evidence Works, http://criminal.findlaw.com/criminal-procedure/how-dna-evidence-works.html#sthash.rabL9tiC.dpuf

[41] R Swanson, NC Chamelin & L Territo Criminal Investigation 8ed (2003) 33.

[42] 12 JJ Miletich Homicide investigation: An introduction(2003) 144.

[43] HJN Van Rooyen A-Z of Investigations: A practical guide (2004) 12.

[44] Mohd Munzil bin Muhamad, Reliability and Conclusiveness of DNA Evidence in Criminal Trial, [2010] 1 MLJ ciii at cvi [45] Semikhodskii, A, Dealing with DNA Evidence a Legal Guide at p 150; No BA097211 Cal Super Ct [1995] WL 479507. [46] Mohd Munzil bin Muhamad, Reliability and Conclusiveness of DNA Evidence in Criminal Trial, [2010] 1 MLJ ciiiat cviii [47] [2007] 3 MLJ 129 at p 166. [48] [2007] 3 MLJ 129 at p 167. [49] Mohd Munzil bin Muhamad, Reliability and Conclusiveness of DNA Evidence in Criminal Trial, [2010] 1 MLJ ciii at cx [50] (1997) 1 Cr App R 369 at p 373. [51] (1997) 1 Cr App R 369 at p 373. [52] Mohd Munzil bin Muhamad, Reliability and Conclusiveness of DNA Evidence in Criminal Trial, [2010] 1 MLJ ciii [53] [2006] 4 MLJ 134 at p 171. [54] [2004] 8 CLJ 496 [55] [2004] 8 CLJ 496 at p 506. [56] [1998] 2 MLJ 273; [1998] 2 CLJ 170 at pp 182-185. [57] Retrieved from https://wilenet.org/html/crime-lab/analysis/imprint.html on 03rd November 2014.

[58] D.S. Hilderbrand, Footwear, The Missed Evidence, 3rd Edition, Staggs Publishing, Arizona, 2013, page 75 [59] T. Thomson, S. Black, Forensic Human Identification An Introduction, CRC Press, United States, 2007, page 316. [60] J.A. DiMaggio, J. Vernon, Forensic Podiatry: Principles and Methods, Humana Press, United States, 2011, page 52. [61] J.A. DiMaggio, J. Vernon, Forensic Podiatry: Principles and Methods, Humana Press, United States, 2011, page 53. [62][1949] MLJ 8.

[63] Balfour v Public Prosecutor [1949] MLJ 8, pg 3. [64] Gary L. Wells, Eyewitness Identification, The Carswell Law Enforcement Series, Canada, 1988, pg 17.

[65] Gary L. Wells, Eyewitness Identification, The Carswell Law Enforcement Series, Canada, 1988, pg 18.

[66] Gary L. Wells, Eyewitness Identification, The Carswell Law Enforcement Series, Canada, 1988, pg 17.