The prosecution could not and are not able to determine who actually threw the brick that caused grievous bodily harm (GBH) on a police officer.
Policeman Dedi Abd Rani was hit on the head by a brick during an illegal assembly in Batu Caves on Nov 25. The protesters were lock-in the compound of the temple and were fired with water cannon and tear gas.
In Criminal Law, the prosecution must provide evidence, beyond any reasonable doubt that each of the 31 or any of them was the person who had acted to cause the GBH, and at the time when the accused acted, he had malicious intention to cause grievous bodily harm or to kill the officer. That's what the judge would require from the prosecution, i.e Actus Reus and Mens Rea.
For Actus Reus, the prosecution must prove that, the act was unlawful and caused GBH; the act was voluntary; the act was factual and intended to cause GBH or death (factual means the prosecution must determine beyond reasonable doubt who was the actual person that throw the brick that caused GBH to the police officer); that the act was a substantial and operative cause of GBH; and the chain of causation was not broken by any intervening events.
In short, The prosecution has to prove: the act was dangerous; the act caused the injury; the act was directed at the victim, and that the dangerous act was factual.
If the prosecution is able to prove all the elements of Actus Reus (ie, all of them), then they had to further proved that the required mens rea are present, which are: that the accused had the malicious intend to inflict GBH or death, and that the accused could foresee that his act would result in some physical harm (recklessness is insufficient for attempted murder).
The prosecution need to establish that the accused either had the intention to cause some harm.
If prosecution can prove beyond reasonable doubt of both actus reus and mens rea, the accused will still have the defence of: self-defense, mistake of fact (it can unreasonable), intoxication, insanity and necessity.
In R v Dyos , D (defendant) and V (victim) were involved in a fight at a community centre, in the course of which D struck V on the head with a brick. V died nine days later, and the pathologist found two substantial head wounds (one caused by D, the other of unknown origin), one or both of which was the cause of death, but from either of which V might have recovered. Cautley J withdrew the murder charge from the jury saying the Crown Prosecution had failed to prove beyond reasonable doubt that D's act was the cause of death.
In AG v Edward Joseph and A. Sanderasegan Judge Lim Yee Lan said the prosecution had not made out a prima facie case against both accused. Judge Lim said she agreed with the defence that it would be wrong to conclusively identify the first accused as the person who assaulted the victim which caused his death. She also said the identification of the second accused by the victim's wife five months after the murder was of "poor quality".
G. Edward Joseph, 49, and A. Sanderasegan, 48, were jointly charged with murdering entrepreneur Lim Moon Lin, 35 . The offence was allegedly committed near the office of T.S. Lau Holdings Sdn Bhd, Kuchai Entrepreneur Park, off Jalan Kuchai Lama, Kuala Lumpur, on Jan 27, 2002.
Both of them are bodyguards of a prominent businessman. The High Court acquitted them without calling for their defence. Here, someone died of murder, and no one was held responsible because the prosecution failed to adduce factual evidence, that is, which one of the two bodyguards killed the victim, or both did. Also, it took the police 5 months to identify the 2nd accused.
Quote from Abdul Gani Patail:
"I can be very strict, but I don't think this is the right time to be," he said.
"When we exercise the law, we have to look at it fairly.
It is my judgment that this is the fairest thing to do.
"We can't pinpoint who exactly did it or rather who was the one who 'threw the brick' at the person who was badly injured."