Case Brief

Dewi Nadia Alias

v
Public Prosecutor

Lecutrer’s Name : Madam Farahizah Binti Ab Jalal Bekri

No. Name Matric Number

1. MUHAMMAD NURKHADZIM BIN AHMAD 161547

SHARIBI

2. FITHRIYAANI HAFZHAN BINTI MOHD SHAARI 160682

3. AMIRAH BINTI ABDUL RAZAK 160352

 Dewi Nadia Alias v. Public Prosecutor

Citation

Dewi Nadia Alias v Public Prosecutor [2015] 3 MLRA 541

Identification of Parties

- Appelant : Dewi Nadia Binti Alias

- Respondent : Public Prosecutor

Date of the Case

10th March 2015

Legal Issues

- Whether trial judge fairly appreciated defence of appellant.

- Whether trial judge correctly convicted appellant based on circumstances alluded to

in his grounds of judgement.

- Whether trial judge considered evidence favourable to appellant.

- Whether evidence irresistibly pointed to guilt of appellant.

Facts of the Case

Dewi Nadia Alias, the appellant appeal against her conviction and sentence for the

offence of the murder of her stepdaughter under s302 of the penal code. The appellant

was found guilty by the high court as the appellant was the only adult during the

material time and her versions of the events was contradicted with the story of SP11

and SP8.The result of the post-mortem was blunt force trauma which the same with

the sign of child abuse and it was the cause of the death of the deceased. The appellant

found that the Judicial commission had failed to fairly appreciate her defence as the

result of the post-mortem stated that the injury was about 12-24 hours from the time

of the death which anyone could get access to her stepdaughter including her husband.

The appellant also contended that the JC had failed to consider the evidence which

was favourable to her and that JC had misdirected himself as to the admissibility of

the evidence of the child witness, SP 13. Therefore, the main issues to be considered

were whether the JC was correct in convicting the appellant for murder based on the

circumstances as alluded to in his grounds of judgement and whether the evidence of

SP13 was admissible.

Procedural History

- 9th January 2011 : Nur Dania Qistina was found death between 6.00 a.m. until 9.00

a.m.
- 11th January 2011 : The report has been lodged by the authority about the death of

Nur Dania Qistina

- 22nd January 2011 : Norafizan Ludin and Dewi Nadia Alias as charged by the

Magistrate Court in Johor Bharu.

- 21st February 2011 : Re-mention of the case in the Magistrate Court.

- 25th - 28th October 2012 : Proceeding in the High Court

- 20th November 2012 : Judge of the High Court in Johor Bharu dismissed the charges

for Norafizan Ludin but keep preserved the charges for Dewi Nadia Alias

- 18th July 2013 : Dewi Nadia Alias was convicted of the murder under Section 302 of

the Penal Code by the judge of High Court of Malaya in Johor Bharu

- 10th March 2015 : Judicial Commissioner dismissed the appeal by the Appellant

(Dewi Nadia Alias) in the Court of Appeal and uphold the conviction under Section

302 of the Penal Code and sentenced to death

Decision of the Court

The appellant was thus convicted for murder and sentenced to death

Ratio Decidendi

- The post mortem on the deceased’s body was carried by SP5. From the post

morterm, SP5. From the post mortem, SP5 stated that there’s no injuries were

caused by force blunt trauma to the chest and abdomen. The JC found that it

was the appellant who have inflicted the injuries as she was the only adult with
 the deceased and the two other children when the victim met death. The

majority found that the JC had failed to consider and appreciate the evidence

favourable to the appellant.

- SP5 also stated that the injuries sustained by the deceased were between 15 to

24 hours prior to her death. During that period of time, there must be a

possibility that there was any other adult who had access to the deceased and

inflicted the injuries on the deceased. JC failed to consider that the appellant’s

husband (SP12) also can be the one who had access to the deceased between

15 and 24 hours before the deceased met death. Moreover, there was no

evidence from SP8 or SP11 that they heard the deceased crying during the

incident to prove that the appellant is the person who had inflicted injuries.

- The statement and explanation from the appellant to SP8 and SP11 is different

and inconsistent, but the different statement must be viewed in a positive

context, that the appellant panicked and she was not in the right frame of mind.

In addition, JC failed to appreciate the appellant’s statement that the deceased

fell in the bathroom corroborated with testimony from SP13 and evidence

from SP12.

- JC conducted a preliminary enquiry to affirm the understanding of SP13 on

taking the oath and speaking the truth. In fact, SP13 did not understand about

what is oath and speak honestly but her intelligent was sufficient. So, there

was no reason for the court to rejecting the unsworn evidence from SP13.

- The evidences to prove the appellant who caused the deceased’s death were

not strong enough to charge the appellant. So the appeal is allowed.

- If the evidence from every testimony is taken, it was strong enough to prove

that the appellant is the person who inflicted those fatal injuries and caused the
 deceased’s death. It is undeniable that SP13 did not understand the nature of

an oath, but her intelligent was sufficient enough to make her evidence be

accepted by the court because she has a full of understanding on what she’s

talking about. After a careful and meticulous assessment of the entire evidence,

the JC found that the injuries on the deceased was done intentionally. Thus,

the appellant’s conviction and sentence.

Analysis of the Case

The significance of this case (Dewi Nadia Alias v PP) in the Court of Appeal can be

shown by the decision of Judicial Commissioner to change and rely upon the evidence

of the case from using the witnesses of SP13 changed to the results of post-mortem by

SP5 (The Pathologist). The reason the Judicial Commissioner unanimously agreed to

change the basis of this cases’ evidence because the Counsel argued that there is

irreconcilable between the evidence of SP13 and SP5. The short answer to this

argument by the Counsel just that the strength of SP5’s evidence more credible and

rational rather than using SP13’s evidence. There also have the disagreement between

Counsel and Public Prosecutor towards the SP13’ evidence under The Evidence Act

Section 133A that the counsel classified that SP13 is not sufficient intelligence to
justify the reception of the evidence. In addition, this case also which under the Court

of Appeal changed the precedent in the previous court, High Court that genuinely

using SP13’s evidence as the basis of their decision to convict the Appellant under

Section 302 of the Penal Code rather than using post-mortem results by the

Pathologist.

One of the application of law which under this case that can be identified is about

Section 133A of the Evidence Act 1950. The main issue on this section which that

whether the JC was correct in convicting the appellant for murder based on the

circumstances as alluded to in his grounds of judgement; and whether the evidence of

SP13 was admissible. This issues came from the argument that have been made by the

Counsel which him stated the evidence of SP13 is irreconcilable with the evidence of

the pathologist (SP5) that the deceased’s death was not due to drowning. The counsel

questioned why in the first place the persecution called SP13 to be as their evidence

while if the the cause of the death was not due to drowning. The counsel used the

Section 133A of the Evidence Act to justify that the SP13 not eligible to be a witness

because in this act stated that ‘that where a child witness does not understand the

nature of an oath, his evidence can still be admitted if the trial court is satisfied that he

is intelligent enough to understand what he is talking about on important events. The

issue is the counsel complaint that the preconditions for admission of such evidence

under section 133A of the Evidence Act was never met in that the learned JC failed to

enquire whether the child possessed sufficient intelligence to justify reception of her

evidence.
The outcomes for this case based on the applying of law under Section 133A of the

Evidence Act 1950 has made the judges in the Court of Appeal to change their basis

of evidence from using the evidence of SP13 to the evidence of SP5 that more

credible and rational. But, the Appellant cannot change her conviction under Section

302 of the Penal Code because the evidence of this case and reasoning by the judges

proved that the Appellant did something that leads to the murder action which is the

blunt force trauma to the chest and abdomen.

Conclusion

In brief, the decision by the court of appeal to convict Dewi Nadia Alias under s302

of penal code was not wrong as the appellant was failed to convince and shows her

evidence that she was not guilty. Her story was contradicted with the testimony by

SP11 and SP8. Besides, the result of the post-mortem were blunt force trauma which

is consistent with child abuse symptoms and Dewi was the only adult during that time

as her husband was working. Although, she claimed that her husband has a bad

temper that she saw her husband hit the girls( his daughter) but the impact should not

be 77 bruise all over the deceased’s body. This shows that Dewi is the one who was

abusing the child as she was the one who happens to at home at all time. Moreover,

Dewi also could not denied that her husband loves his children especially the

deceased. Hence, there would be no way for the husband to abuse the deceased which

caused the death of his daughter. The appellant was thus convicted for the murder of

her step daughter.