Defence of Insanity in Malaysia: PP v. Shalima Bi – Case Commentary (by K. Segaran)

The following article was published in the Johor Bar’s newsletter, “Johor Bar Info”. This article is reproduced on this website with the author’s permission. The author, Mr. K. Sandrasegaran, of Messrs Tay, Bernard & Cheong, hopes that the legal fraternity in Melaka will benefit from the following analysis.


Introduction

The defence of unsoundness of mind is legislated at s. 84 of the Penal Code and it reads:

Act of a person of unsound mind

84. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature  of  the act, or that he is doing what is either wrong or contrary to law.

To succeed, the accused has to establish that at the time of the commission of the act, by reason of unsoundness of mind, he was incapable of knowing the nature of the act, or incapable of knowing what he was doing as wrong or contrary to law. The question whether the accused was suffering from such an affliction at the time of the commission of the act was determinable not only by medical evidence and expert opinion, but also by his conduct and the state of his mind before and after the crucial time. This legal insanity defence depends very much on the evidence. In John Nyumbei v PP [2007] 2 CLJ 509, it was held:

[1] The test for insanity under s. 84 of the Penal Code is a legal and not a medical test. Legal insanity under s. 84 is of such a kind that impairs the cognitive faculties of a person. It must make the offender incapable of knowing the nature of his act, or that what he is doing is wrong or contrary to law.

[2] Where the defence of insanity is raised a court must consider the following matters:

(i)  whether the accused person has successfully established, as a preliminary issue, that at the time of committing the act he was of unsound mind; and

(ii) if he was of unsound mind, whether he has proven that his unsoundness of mind was of a degree to make him incapable of knowing the nature of his act as being wrong or against the law. The court should also consider the circumstances which come after the crime which is a material consideration in deciding whether the appellant had satisfied the test under s. 84.

[3] The burden of proof rests upon the person who raises the defence of insanity, viz the accused. However the requisite standard/degree of proof is on a balance of probabilities as in a civil case. The onus being on the accused to satisfy the court on a balance of probability, in order to succeed in a defence of unsound mind, in the sense required by s.84 of the Penal Code, that was needless to say a correct statement of law (PP v Zainal Abidin Mohd Zaid [1993] 1 CLJ 147 FC; Rajagopal v PP [1976] 1 LNS 122 FC; Goh Yoke v PP [1969] 1 LNS 48 FC). That onus is not a heavy one. The burden is no higher than which rests upon a party in civil proceedings. Where the defence of insanity succeeds a bare killing without proof of intention, it will not amount to murder.

Trial at the High Court

The accused person, Shalima Bi was charged at the Johor Bahru High Court for the murder of one Garanurharba bt Abdul Shukur (the deceased).The facts of the case can be seen in the Court of Appeal decision at PP v Shalima Bi [2016] 2 CLJ 231. At the end of the trial at the High Court, Justice Halim bin Aman acquitted and discharged the accused on the ground that she was insane at the time she committed the act. On appeal by the public prosecutor, the Court of Appeal set aside the order of acquittal and discharge, convicted and sentenced her to death. On 29 September 2016, the Federal Court allowed the appellant’s appeal against the order of the Court of Appeal and affirmed the order of the High Court. Only the Court of Appeal’s judgment was reported, supra. The Federal Court, presided by Justice Suriyadi Halim Omar did not provide a written judgment ([2016] 1 LNS(0) 8). In the interest of the legal fraternity, I produce the salient parts of my submission, both oral and written at the High Court, the Court of Appeal and before the panel at the Federal Court which I verily believe to the best of my knowledge had persuaded the apex Court to reverse the Court of Appeal’s decision.

The Prosecution case

At the close of the prosecution’s case, fifteen witnesses had given evidence to establish a prima facie. The defence did not dispute the actus reus of the charge and the line of defence which the defence attempted to establish during cross-examination of the prosecution witnesses was one relating to insanity which is dealt under section 84 of the Penal Code.

During the prosecution’s case itself, the accused took a course of action to rely on the evidence of Dr. Badi’ah Yahya, consultant forensic psychiatrist from Hospital Permai Tampoi (SD2) through her report (exhibit D29) to satisfy the trial court that she was insane. The said report was tendered as a defence exhibit through the Investigation Officer (SP13) during the prosecution case itself. The purpose of tendering D29 was without any doubt an attempt by the accused to establish the fact that at the time of the commission of the offence the accused was insane and did not know the consequences of her act, i.e. her mental condition was unstable at the time of the killing.

Brief facts

The accused is the second wife to Mohd Kassim Abu Hussein while the deceased was his first wife. At the time of the incident, the accused was alleged to have poured hot oil from the pan from the kitchen on the deceased. The children of the deceased who were asleep were awoken from the shouts of the deceased asking for help. When the children woke up, the deceased was seen bleeding and suffered burns on her body. One of the deceased’s daughter, SP2 told that the deceased informed her that the accused poured hot oil on the deceased and that the accused had warned SP2 not to make noise otherwise she too would be killed while pointing a knife towards SP2.

The prosecution relied on circumstantial evidence and also to the evidence of SP2, who did not witness the incident as she was asleep then but was told by the deceased as follows :-

“Selepas itu saya terdengar ibu menjerit. Saya terkejut dari tidur. Ibu saya masuk ke dalam bilik saya dahulu. Saya lihat ibu berdarah dan berlumuran minyak. Ibu kesakitan dan berlari menjerit berlari dalam bilik. Masa itu, pintu bilik saya tak berkunci, tapi tertutup. Saya dengar ibu menjerit  kesakitan. Selepas itu, saya tanya ibu kenapa jadi begini. Dia jawab masa dia nak pergi ke toilet, dia lihat Shalima duduk atas sofa. Selepas dia keluar dari toilet, ibu lihat atas dapur gas ada 1 periuk. Selepas itu ibu berlalu dan sebelum masuk ke bilik, ibu tertoleh ke belakang. Shalima ambil periuk yang ada atas dapur gas dan curah atas ibu saya. Sebelum ibu mati, ibu beritahu saya hal ini …”

The medical report of the consultant forensic psychiatrist (D29), inter alia states: It is obvious that the accused had a long history of mental illness way back in her home country Myanmar where the accused’s mother and brother suffered from mental illness (sakit jiwa) and had been in treatment in Myanmar. And since 2004 the accused had been admitted many times in Hospital Permai for severe psychotic depression including short term psychosis. The accused received electroconvulsive therapy (using convulsive response to electric shocks) in 2007 and was prescribed medicine each time she was admitted to hospital. After her discharge from hospital, the accused was told that she never takes the medicine as instructed. The severe psychotic depression (kemurungan teruk) is a major depressive episode with delusion affecting the accused with tendency of severe risk in committing suicide. The doctor also reported that the accused had difficulty in controlling her physical acts and emotions and her behavior which is unexpected could endanger her life also. SP2, the daughter of the deceased, in no uncertain terms had testified that she was scared of the accused immediately after the incident. SP2 testified:-

TPR : Masa itu, kamu berdiri di pintu, Shalima berdiri lebih kurang  dekat almari itu, ok. Dan kamu nampak dia pegang pisau. Dia buat apa masa itu? Berdiri dengan pisau apa dia buat?

Jawab : Dia nak tikam saya. Jarak dia dengan saya dalam anggaran 3 kaki.

TPR  :  Tadi kamu kata Shalima pada masa itu hendak tikam kamu

Dia ada cakap apa-apa?

Jawab :  Dia bagi tahu saya, dia tak nak dengar suara ibu saya, suruh ibu saya tutup mulut dan tidak bagi saya cakap apa. Kalau tak dia tikam ibu saya. Lepas itu saya nampak dia, dia rambut Shalima terkembang, tak ikat, kembang, matanya sangat merah, saya pun takut. Saya terlalu takut, saya terus masuk ke dalam bilik tidur saya dan kunci bilik.

TPR :  Kamu, jadi kamu takut sangat, jadi kamu masuk dalam bilik dan kunci bilik? Masa, masa kamu berdiri dekat pintu ini ok, nampak Shalima, apa acu pisau nak tikam kamu ini semua. Masa itu adik-adik kamu di mana?

Jawab : Dalam bilik. Mereka menangis, depan, dekat ibu saya. Masa itu ayah, sebab tadi kamu kata ayah keluar kan, ayah dah balik? Selepas pintu saya tutup 5 minit, saya dengar ayah saya balik.

TPR :  Lepas kamu tutup pintu, kamu kunci kan? Masa itu ada Shalima buat apa-apa?

Jawab : Shalima kata diam. Shalima menjerit diam. Tutup mulut kamu  semua, kalau tak aku bunuh kamu semua. Kami pun duduk dalam bilik, dan kami pun nangis.

SP4, daughter of the deceased testified that the accused had undergone treatment for 3 – 5 months in Hospital Permai and frequently held in Pekan Nenas camp and behaved like a mad person (orang gila) until the police were forced to send her to Hospital Permai. SP4’s father had also visited the accused at hospital. SP4 said:-

Mah :  Dia ditahan di mana?

Shafika : OKT ditahan di Kem Pekan Nenas Yang Arif. Begini Yang Arif, bila OKT di tahan dengan polis semasa meminta sedekah, pihak polis akan menghantarnya ke Kem Pekan Nenas. Kemudian ketika di penjara Yang Arif, OKT berkelakuan seperti orang gila dan polis tidak tahan lalu OKT di hantar ke Hospital Permai untuk rawatan, Yang Arif. Dan pihak hospital akan hubungi bapa saya. Masa di rumah biasa sahaja, bila di rumah dia tidak makan ubat.

Mah : Berapa kali dia kena tahan dekat Pekan Nenas?

Shafika  :   Ada 2, 3 kali.

Mah  :  2, 3 kali ditahan dekat Pekan Nenas, baik. Kalau di tahan dekat Pekan Nenas, dia di hantar ke Tampoi, berapa lama dia di dalam?

Shafika : Saya pun tak tahu la, ada 2, 3 bulan pun ada. Kadang-kadang 5, 6 bulan pun ada. Nanti hospital lepaskan dia, ubat yang hospital bagi, dia makan itu saje. Nanti dia tak sambung makan ubat, dia ok saje. Nanti dia minta sedekah ok saje. Nanti dia ditangkap dia buat macam orang gila balik. Nanti polis hantar dia hospital balik. Masa itu dia makan ubat apa. Kalau minta sedekah dia ditangkap, dia baru buat macam orang gila pergi hospital.

Insp Nora (SP14) also testified that she had knowledge of the accused’s mental state and was kicked by the accused during interrogation. The accused also had used vulgar words at SP14 “Polis bodoh”. SP13 agreed that the accused was insane due to mental disorder. And His Lordship had also made observations of the demeanor of the accused during trial.

From the evidence of the witnesses for the prosecution as above, it is evident that the accused was not her usual self at any time and that the accused was seriously depressed before the incident. The accused’s senses and rational behavior had left her. The acts and conduct of the accused during the relevant period in question had determined a case of brief reactive psychosis. Further the fact that the accused was also shouting during police interrogation and during the trial showed that she is certainly not capable of deep thought. SP2, SP4, SP9 and SP14 are not interested witnesses. Their evidence of the major depressive episodes of the accused together with D29, after being scrutinized by His Lordship and matched against the objective evidence, particularly the conduct of the accused before and after the incident showed that the accused suffered from severe psychosis (psychotic depression) that amounted to a mental illness properly characterized as an abnormality of mind and that it was a defence that substantially impaired her mental responsibility at the time of the killing.

Based on the above report coupled with the evidence of SP2, SP4, SP9, SP14 and the demeanor of the accused observed during trial, on the question that the accused did suffer from unsoundness of mind at the time of the commission of the act, it is trite on an act of a person of unsound mind that :-

  • Whether accused at the time of the killing suffering from any “abnormality of mind” in the broad sense is a question for the judge. On this question medical evidence is of importance but the judge is entitled to take into consideration all the evidence including the acts or statements of the accused and his demeanor. He is not bound to accept the medical evidence if there is other material before them which, conflicts with it and outweighs it. The etiology of the abnormality of mind (whether it arose from a condition of arrested or retarded development of mind or any inherent causes or was induced by disease or injury) does seem to be a matter determined on expert evidence.
  • Inability to exercise will power to control physical acts is sufficient to entitle the accused to the benefit. Difficulty in controlling his physical acts, depending on the degree of difficulty, may be sufficient. It is for the judge to decide upon the whole of the evidence whether such inability or difficulty has not as a matter of scientific certainty but on the balance of probabilities, been established and in the case of difficulty whether the difficulty is so great as to amount in their view to a substantial impairment of the accused’s mental responsibility for his acts.
  • In law the burden of proving insanity which is on a balance of probability, rests on the accused. This is a question of fact which must be decided in light of all the evidence before the Court, including medical opinion.

The crucial question nevertheless arises, assuming the judge was satisfied on the balance of probabilities that the accused was suffering from insanity was the abnormality such as substantially impaired his mental responsibility for his act in doing or being a party to the killing? This is a question of degree and essentially one for the judge, a matter upon which the judge may quite legitimately differ from doctors.

The mental illness of the accused

The Court of Appeal held that the accused was not medically insane and only suffering from Borderline Personality Disorder (BPD) which was not even a major mental illness. However, according to SD2, the accused did suffer from psychotic disorder, severe depression, hallucinations and delusions apart from borderline personality disorder (BPD). It was the opinion of SD2 that the accused was suffering from mental illness which would substantially impair her mental responsibility for her acts; BPD was not the only disorder the accused suffered. Obviously the accused’s mental illness had impaired her cognitive faculties as she was described by SD2 as an abnormal person and her brain function constitutes only 10% of a normal person.

The treatment given to the accused in the hospital since 2004 till the date of the appeal in the Federal Court is similar to that of an acute exacerbation of schizophrenia supervision (SD2 testified that the accused’s mental state is “ke arah gila”) and also treatment with antipsychotics. The accused could not control her acts as SD2 testified that the appellant had in fact poured hot coffee to other patients in the hospital. Although there are no witness to the incident on 2 February 2011 the evidence being entirely circumstantial, the inference that the appellant may have lost her control of her cognitive faculties and lack of intention to kill could not be dismissed totally. The cause of death of the deceased was due to burns as a result of hot oil being poured on her face. It may be described as an attack ‘at random at anyone in his way’ and not a ‘focus attack’. The accused asserts an affirmative defence of insanity and therefore entitled to a liberal rule of admissibility. SD2 also testified:

“OKT menghidap psikosis jangka pendek yang boleh berlaku secara berulang dan sifat impulsivenya disifatkan sebagai patologi (tidak normal) dan ini boleh berlaku ketidaknormalan fungsi otak SD1 di mana tidak boleh mengawal emosi dan impulsive SD1 telah mencurahkan air panas kepada pesakit lain di hospital tanpa fikirkan kesannya. Impulsif merupakan daya tindak fungsi psikologi manusia melalui mekanisma kognifik dan tingkah laku”

In the premises it was contended that the accused was medically insane and the next issue to be determined was whether the accused was legally insane.

Motive

The Court of Appeal held as the clearest and hard evidence on the presence of motive on the part of the accused based on SD2’s report at exh. D29, in that the accused was envious of the attention the husband was giving to the deceased. The presence of motive negates the accused’s defence of insanity and equally the lack/absence of motive is an important indication of insanity. (Yeo Ah Seng v PP [1967] 1 MLJ 231 FC; PP v Jong Chin [1995] 4 MLJ 300). In reply to the Federal Court it was submitted that from the evidence the relationship between the accused and the deceased and her children who only stayed with the accused for two weeks prior to the incident was on friendly terms with one another. The accused had said repeatedly “saya suka dia (si mati). It is pertinent to note that the prosecution throughout the prosecution case and/or during the cross examination of the defence witness did not establish any evidence of motive for the killing of the deceased.

Legal and Evidential Burden

The Court of Appeal held that the learned trial judge was thinking of the ‘reasonable doubt test as laid down in Mat v PP [1963] 29 MLJ 263, and not of rebuttal evidence which has no application to the present case as the accused had a legal burden and not merely an evidential burden to discharge. In reply to this, attention was brought to the Federal Court on ss. 101 and 105 of the Evidence Act 1950 with particular reference to the defence of insanity. By virtue of s.101, the prosecution has the legal burden to prove its case beyond reasonable doubt (Balachandran v PP [2005] 1 CLJ 85). This rule has a number of exceptions. For example, if the accused is relying on one of the exception, as in this case where the defence is relying on section 84 of the Penal Code, then the accused has the evidential burden of proving that he comes within one of the exceptions stated in the section. This does not mean that the prosecution’s burden of proving the guilt of the accused shifts to the accused. The accused merely has to establish insanity.Section 105 of EA 1950 states that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances. It is a cardinal principle of criminal law that every accused person is presumed to be innocent until his guilt is established. This section is an important qualification to the general rule that in a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution. The English law on these points have been clearly laid down by the House of Lords in the leading case of Woolmington v DPP. The House of Lords held that the prosecution not only must prove the guilt of the accused beyond doubt and that it had also to prove the mens rea for the offence, even if that accused was unable to establish his innocence. If at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given either by the prosecution or by the prisoner as to whether the accused killed the deceased with a malicious intention, the prosecution has not made out the case, and the prisoner is entitled to the benefit of doubt and he must be acquitted.

The Indian law is also the same as laid down in Woolmington case. The burden of proving any     exception as to liability is thrown on the accused by section 105. However it does not relieve the prosecution of its burden to establish the guilt beyond doubt. That burden is never shifted. (Dayabhi v State of Gujarat AIR 1964 SC 1563). In Dayabhi the Supreme Court of India set out the following proposition in respect of doctrine of proof in the context of the plea of insanity: (a) the prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea and the burden of proving that always rests on the prosecution from the beginning to the end of the trial; (b) there is a rebuttal of presumption that the accused was not insane when he committed the crime. The accused may rebut it by placing before the court all the relevant evidence: oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to a civil proceeding; (c) even if the accused was not able to establish conclusively that he was insane at the time when he committed the offence, the evidence placed before the court may raise a reasonable doubt in the mind of the court as well as regards to one or more of the ingredients of the offence including mens rea and in that case the court would be entitled to acquit the accused.

Para (c) supra was specifically highlighted to the Federal Court and the following point raised would have created a reasonable doubt in the minds of the panel as to whether the accused was in command of her mental facilities when she killed the deceased person:

It was the evidence of the accused, her husband and SP4 that the accused does not take the prescription while at home. The accused was discharged from hospital on 24 November 2008 and did not visit further the hospital until 10 August 2010. The incident occurred on 2 February 2011, about 6 months after the accused’s last visit to the hospital. In the specific context of the affirmative defence, the expert (SD2) was trying to explain how she could determine retrospectively what the accused’s mental state or condition was at the time of the crime when she did not observe her condition then. Mental disease is a highly complex area in which diagnosis depends heavily in subjective judgment. The accused said she was “gila”. During the trial she had off-the-wall behavior and chaotic speech as observed by the learned trial judge. She was given medication before attending court to calm her mental state. She had once even stripped her clothes while being brought to the Magistrate’s Court in Kulai, Johor. Due to her continual behavior and treatment during trial it can be reasonably inferred from the circumstances and upon a proper evaluation of the psychiatrist’s opinion, the appellant was legally insane. The acts by the accused immediately after the incident was more consistent with the fact that the accused was insane (tak siuman) and not as expressions of anger, motive and revenge as held by the Court of Appeal. Her insanity described as above exempts her from criminal responsibility as the specie of insanity suffered by the accused as addressed by section 84 Penal Code is the one that impairs the cognitive faculties of a person. SD2 had testified that the accused’s brain function is not normal.

Pertaining to the mainstream defence the accused had testified that at the material time of the incident as she had not taken her prescription, she could not really remember what had happened. By implication due to that failure the tendency for the psychosis suffered by her could have occurred. This statement is pertinent to the accused’s defence as SD2 had said that the prescribed drugs are to reduce the illness and the brief reactive psychosis without which the accused does acts without thinking of the consequences. Since the prosecution stance was that the accused was of sound mind on 2 February 2011, it then become incumbent on the prosecution to establish that the accused had indeed taken her medication. This the prosecution had failed to do so. To a question by Justice Suriyadi on whether the prosecution had challenged/rebutted the accused had not taken her prescribed drugs, the learned DPP agreed no challenge had been made. Thus there was no rebuttal evidence of the statement that the accused did not take her medication. The Court was then adjourned for decision. The following was brought to the attention of the Federal Court:

“Without there being any evidence adduced to establish that she took the prescription and the prescribed dosage on 2 February 2011, via-a-vis the substantive evidence available to indicate that she most probably did not take the medicine whether by inference or otherwise, a reasonable doubt had arisen as to whether she was in command of her mental facilities when she killed the deceased person (by analogy see Mat v PP [1963] 29 MLJ 263). On that premise we submit that it is therefore satisfied on a balance of probability that the accused had established her defence of unsoundness of mind and thus not capable of knowing that her act was wrong or contrary to law.”

Justice Suriyadi said that there is a doubt whetherthe accused was normal and took the prescription/medicine and remarked that the substantive evidence indicating that the accused did not take any medicine on or around the time of the incident was not challenged by the prosecution. The decision was unanimous. The appeal was allowed and all orders of the High Court reinstated.

[In Saeng-Un Udon V PP [2001] 3 SLR 1, the Singapore Court of Appeal held that the evidence of the pathologist who testified that the murder weapon used by the appellant was a heavy instrument and not the one the appellant confessed to have used and this evidence, accordingly to the Court of Appeal, and contrary to the finding of the High Court Judge, was sufficient to raise a reasonable doubt on the cause of the deceased’s death. In reference to expert evidence, the Court of Appeal held that the trial judge “not entitled to venture his own opinion on a matter which was clearly ‘outside the learning of the Court’.

K. SEGARAN
Advocate & Solicitor
Johor Bahru

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