Section 69
Persons permitted to take body samples
of Syariah Courts Criminal Procedure Code
(1)
A body sample may only be taken by -
(a)
a person registered under the Medical Practitioners and
Dentists Act (Chapter 112); or
(b)
any Religious Enforcement Oflicer or police officer suitably qualified or trained who is authorised by the Chief Religious
Enforcement Officer or Con~missioner of Police for that purpose.
(2)
Before taking a body sample. the person permitted under subsection (1) to take it must satisfy himself that such taking will not endanger the person from whom it is to be taken.
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(3)
The fact that a body sample has been taken under this section shall be recorded by the person taking it in 'such form or maimer as may be required by the Chief Religious Enforcement Officer or Commissioner of
Police.
(4)
A person from whom a body sample is lawfillly required under section 68 who refuses, without reasonable excuse. to give a body sample or to allow it to be taken from him, or who otherwise hinders or obstructs the taking of a body sample is guilty of an offence under section 231 of the
Syariah Penal Code Order. 20 1 3 (S 69/20 1 3).
Interpretation, re sections 68 and 69 70.
In sections 68 and 69 -
"appropriate consent" means -
(a)
in relation to a person who is mukalluL his consent in writing; or
(b)
in relation to a person who is mumaiyiz but has not attained the age of mukallaf; the consent in writing of both that person and of his parent or guardian, given to the Religious Enforcement Officer or police oficer in charge of the case after the person concerned or his parent or guardian, as the case may be, has been informed by the Religious
Enforcement Officer or police oficer of the purpose for which a body sample is required and the manner by which it is to be taken;
"body sample" means -
(a)
a sample of head hair, including the roots thereof;
(b)
a sample taken from a nail or from under a nail;
(c)
a swab taken from any part, other than a private part, of a a person's body but not any other body orifice;
(d)
a swab taken from a person's mouth;
(e)
saliva;
#,I an impression of any part of a person's body other than an impression of a private part or an impression of the face;
(g)
an intimate sample. being a body sample that is obtained by means of any invasive procedure;
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"intimate sample" means -
(a)
a sample of blood, semen or any other tissue fluid, urine or hair other than head hair;
(b)
a dental impression; or
(c)
a swab taken from a private part of a person's body or from a person's body orifice other than the mouth;
"private part", in relation to a person's body, means the genital or anal area and includes the breasts in the case of a woman.
Breath tests 71.
(1)
Where a Religious Enforcement officer or police officer has reasonable cause to suspect that a person has committed an offence under section 104(3) or (5) of the Syariah Penal Code Order, 201 3 (S 691201 3).
such Religious Enforcement officer or police officer may forthwith require the person for a specimen of his breath for breath test.
(2)
A person may be required under subsection (1) to provide a specimen of his breath either at or near the place where he is required to do
SO.
(3)
A breath test required under subsection (1) shall be conducted by a Religious Enforcement Officer or police officer.
(4)
A Religious Enforcement Officer or police officer may arrest any person without warrant if -
(a)
as a result of the breath test he has reasonable cause to suspect there is alcohol in that person's breath or blood;
(b)
such persoil fails to provide a specimen of his breath for breath test when required to do so under this section and the Religious
Enforcement officer or police officer has reasonable cause to suspect that he has alcohol in his body; or
(c)
he has reasonable cause to suspect that that person is under the influence of alcohol or any intoxicating drink.
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Provision of specimen for analysis 72.
(1)
In the course of an investigation whether a person arrested under section 7 l(4) has committed an offence under section 104(3) or (5) of the
Syariah Penal Code Order, 2013 (S 6912013), a Religious Enforcement
Officer or police officer may. subject to this section, require him -
(a)
to provide a specimen of his breath for a breath test. for analysis: or
(b)
to provide at any hospital a specimen of his blood or urine for laboratory test, notwithstanding that he has already been required to provide a specimen of his breath for a breath test under section 7 1.
(2)
A breath test required under this section shall be conducted by a
Religious Enforcement Officer or police oficer.
(3)
A Religious Enforcement Officer or police officer shall, on requiring any person under this section to provide blood specimen or urine for laboratory test, warn him that failure to provide a specimen of blood or urine may-make him liable under section 231 of the Syariah Penal Code
Order, 201 3 (S 691201 3).
(4)
A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence and liable on conviction under section 23 1 of the Syariah Penal Code
Order, 201 3 (S 691201 3).
Evidence in proceedings for offences under section 104 of S 6912013 73.
(1)
In proceedings for an offence under section 104(3) or (5) of the
Syariah Penal Code Order, 201 3 (S 691201 3), proof of alcohol in a specimen of breath or blood, as the case may be, provided by the accused shall be taken into account.
(2)
Proof of alcohol in a specimen of breath may be given by the production of a document or documents purporting to be either a statement automatically produced by the breath-analyser or other device and a certificate signed by a Religious Enforcement Officer or police oficer to the effect that the statement relates to a specimen provided by the accused at the date and time shown in the statement.
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(3)
Proof of alcohol in a specimen of blood may be given by the production of a document purporting to be a certificate signed by an authorised analyst that alcohol found in a specimen of blood identified in the certificate.
(4)
A document purporting to be such a statement or certificate. or both, as is mentioned in subsection (2) or (3) is admissible in evidence on behalf of the prosecution in pursuance of this section only if a copy of it has been handed to the accused when the document was produced or has been served on him not later than 7 days before the hearing.
(5)
A document purporting to be a certificate is not so admissible if the accused. not later than 3 days before the hearing or within such further time as the Syariah Court may in special circumstances allow. has served notice on the prosecution requiring the attendance at the hearing of the person by whom the docun~ent purports to be signed.
(6)
A copy of a certificate required by this section to be served on the accused or a notice required by this section to be served on the prosecution may be served personally or sent by registered post.
(7)
Evidence of the alcohol in a specimen of breath or blood under this section is qarinah.
Public not to have right to compel Religious Enforcement Officer or police officer to investigate alleged offences 74.
Nothing in this Chapter is deemed to confer any right on any member of the public to compel any Religious Enforcement Officer or police officer to investigate whether or not an offence has been committed, but it shall be the duty of any Religious Enforcement Officer or police officer making an investigation under this Chapter on request in that behalf by the informant to inform him whether the prosecutor propose to prosecute and, if so, in respect of what offences.
Admission of certified copy of information as evidence 75.
In any proceedings under this Code, a copy of an entry relating to an information reduced to writing under section 66 and purporting to be certified as a true copy by a Religious Enforcement Officer or police officer may be admitted in Syariah Court as evidence of the contents of the original information and of the time. place and manner in which the information was so recorded.
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Procedure where seizable offence suspected 76.
( 1 ) If from the information received or otherwise, a Religious
Enforcement Officer or police officer has reason to suspect the commission of a seizable offence, he shall, unless the offence is of a nature which the
Chief Syar'ie Prosecutor has directed as unnecessary to be reported to him.
forthwith send a report of the information to the Chief Syar'ie Prosecutor and shall proceed in person or depute one of his subordinate officers to proceed to the place the offence is committed to inquire into the facts and circumstances of the case and to take such measures as may be necessary for the discovery and. where appropriate, arrest of the offender:
Provided that -
(a)
when any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the Religious Enforcement Officer or police officer receiving the information need not proceed in person or depute a subordinate officer to make an inquiry at the place where the offence is committed;
(b)
if it appears to the Religious Enforcement Officer or police officer receiving the information that there is no sufficient ground to proceed or proceed further in the matter, he need not do so.
(2)
In each of the cases mentioned in subsection (l)(a) and (b), the
Religious Enforcement Officer or police officer receiving the information shall state in his report, if any, his reasons for not complying with subsection (1).
Power to require attendance of witnesses 77.
(1)
A Religious Enforcement Officer or police officer making an investigation under this Chapter may by order in writing require the attendance before himself of any person who from the information given or otherwise appears to be acquainted with the circumstances of the case. and such person shall attend as so required.
(2)
If any such person refuses to attend as so required, such
Religious Enforcement Oficer or police officer may report such refusal to a
Syar'ie Judge who may, thereupon in his discretion, issue a summons or warrant to secure the attendance of such person as required by the order mentioned in subsection (1).
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Examination of witnesses by Religious Enforcement Officers or police officers 78.
(1)
A Religious Enforcement Officer or police officer making an investigation under this Chapter may examine orally any person supposed to be acquainted with the facts and circumstances of the case and shall reduce into writing any statement made by the person so examined.
a
(2)
Such person shall be bound by law to answer all questions which are related to such case which are raised to him by the officer.
(3)
Any person who makes a statement under this section shall be bound by law to state the truth, whether or not the statement is made wholly or partly as answers to the questions.
(4)
A Religious Enforcement Officer or police officer who examines any person under subsection (1) shall in first instance inform such person of subsections (2) and (3).
(5)
A statement made by any person under this section shall, whenever possible, be reduced to writing and signed or affixed with a thumbprint by the person making it in the presence of two witnesses, as the case may be, after the statement is read over to him in a language in which he made it and after he has been given an opportunity to make any correction he may wish.
Statement to Religious Enforcement Officer or police officer 79.
(1)
Except as provided in this Code or any other written law, no statement made before a Religious Enforcement Officer or police officer in an investigation made under this Chapter shall be used as evidence in the
Syariah Court.
•
(2)
When any witness is called to give evidence in the Syariah Court other than the accused. the Syariah Court may, on request of any party to the trial, allow the witness to refer to any statement made by the witness in the course of an investigation by the Religious Enforcement Officer or police officer under this Chapter and, if it thinks necessary in the interests of justice, directs the accused to be furnished with a copy of such statement to allow him to impeach the credibility of the witness in the manner provided by the
Syariah Courts Evidence Order, 2001 (S 6312001).
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(3)
Any statement made by any person in the presence of? or in the hearing of, a Religious Enforcement Officer or police officer in the course of an identification parade may be admitted as evidence.
(4)
Where any accused had made a statement during the course of an investigation by a Religious Enforcement Officer or police officer, such statement may be admitted in evidence in support of his defence during the course of the trial.
(5)
A statement that amounts to an ikrar made by an accused person before two witnesses who are 'udil in the course of an investigation under this Chapter may be admitted as evidence in the Syariah Court.
(6)
The two witnesses who are 'adil mentioned in subsection (5)
shall not include the Religious Enforcement Officer or police officer carrying out the investigation on the accused or the officer recording such statement.
(7)
The conditions of ikrar as provided in section 23 of the Syariah
Courts Evidence Order. 2001 (S 6312001) shall be applicable to the extent as they relate to criminal proceedings.
No inducement etc. to be used 80.
(1)
No Religious Enforcement Officer, police officer or person having authority shall use any inducement, threat, promise, oppression or violence on any accused person to induce such person to make any statement in the course of an investigation under this Chapter.
(2)
No Religious Enforcement Officer, police officer or other person shall prevent or hinder any person from making, in the course of an investigation under this Chapter, any statement which he might be disposed to make on his own free will.
Proof by written statement 81.
(1)
In any criminal proceedings, a written statement by any person may, subject to the conditions provided in subsection (2), be admissible as evidence to the like extent as oral evidence to the like effect by that person.
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(2)
A statement may be tendered in evidence under subsection (1)
if-
(a)
the statement purports to be signed by the person who made it;
(b)
the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief; and
(c)
before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings:
Provided that paragraph (c) does not apply if the parties agree before or during the hearing that the statement shall be so tendered.
(3)
If a statement tendered in evidence under subsection (1) -
(a)
is made by a person under the age of 15 years qamariah, it shall give his age;
(b)
is made by a person who cannot read it, it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read;
(c)
refers to any document as an exhibit, the copy served on any other party to the proceedings under subsection (2)(c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party on whom it is served to inspect that document or a copy thereof.
a
(4)
Notwithstanding that the written statement of a person may be admissible as evidence by virtue of this section -
(a)
the party by whom or on whose behalf a copy of the statement was served may call the person making the statement to give additional evidence in the case which may include matters which are not contained in the statement; and
(b)
the maker of the statement shall attend the trial for cross-examination and re-examination.
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(5)
So much of any statement as is admitted in evidence by virtue of this section shall. unless the Syariah Court otherwise directs, be read aloud at a the hearing and where the Syariah Court so directs. an account shall be given orally of so much of any statement as is not read aloud.
(6)
Any document or object referred to as an exhibit and identified in a written statement admitted in evidence under this section shall be treated as if it had been produced as an exhibit and identified in the Syariah Court by the maker of the statement.
(7)
A document required by this section to be served on any person may be served -
(a)
by delivering to him or to his Syar'ie Lawyer; or
(bj in the case of a body corporate, by delivering it to the secretary of the body or any person authorised by the body at its registered or principal office or by sending it by registered post addressed to the secretary of that body or any person authorised by the body at that office.
Failure to account for objects, substances or marks 82.
(1)
Subject to the provisions of any other written law, where a person is arrested by a Religious Enforcement Officer or police officer and -
(a)
(i)
there is on his person;
(ii)
in or on his clothing including any type of headgear or footwear;
(iii)
otherwise in his possession; or
(iv)
in any place in which he is at the time of his arrest, any object, substance or mark, or there is any mark on any such object;
(bj that or another Religious Enforcement Officer or police officer investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the Religious Enforcement Officer or police officer;
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(c)
the Religious Enforcement Officer or the police officer informs the person arrested that he so believes, and requests him to account for the presence of the object, substailce or mark; and
(d)
the person fails or refkses to do so.
then if, in any proceedings against the person for the offence so specified. evidence of those matters is given. subsection (2) applies.
(2)
Where this subsection applies, the Syariah Court in determining whether -
(a)
there is a case to answer; and
(b)
the accused is guilty of the offence charged, may draw such inferences from the failure or refusal as appear proper.
(3)
Subsections (1) and (2) apply to the condition of clothing or footwear as they apply to a substance or mark thereon.
(4)
Subsections ( 1 ) and (2) do not apply unless the accused was told in ordinary language by the Religious Enforcement Officer or police officer when making the request mentioned in subsection (I)@) what the effect of this section would be if he failed or refused to comply with the request.
(5)
This section does not preclude the drawing of any inference from a failure or refusal of the accused to account for the presence of an object, substance or mark or from the condition of clothing or footwear which could properly be drawn apart from this section.