The Court of Appeal decided today that hhe bench will visit Plaza Masalam in Shah Alam, where political aide Teoh Beng Hock died while assisting in the Malaysian Anti-Corruption Commission (MACC) investigations.

The bench will also decide, probably at its next sitting on March 28, whether the burden of proof of “beyond reasonable doubt” was applied correctly by the coroner in the inquest into Teoh's death, or whether the threshold should have been lower than the balance of probabilities, as applied in civil cases.

Justice Mohd Ariff Mohd Yusof, who heads the three-member bench, made the order on the visit to Plaza Masalam, where the Selangor MACC headquarters is located, during the proceedings today.

"The visit will have to be conducted before March 28," Justice Mohd Ariff said.

This will be the third official visit to the scene of Teoh's death, which will include the window where he was reported to have fallen from. It is an unprecedented move by judges from a superior court, such as the Court of Appeal or the Federal Court, to conduct a site visit and this may be the first.

The first visit was made during the inquest conducted by coroner Azmil Muntapha Abas and the second during the Royal Commission of Inquiry chaired by former Federal Court judge James Foong.

The other judges sitting in the Court of Appeal today are Justices Mah Weng Kwai and Hamid Sultan Abu Backer.

Teoh was found dead on July 16, 2009, at the Plaza Masalam after an overnight interrogation by Selangor MACC officers.

The coroner's court returned an open verdict , saying it was death not due to suicide or homicide.

The decision was upheld by the Shah Alam High Court upon a hearing into an application for a revision of the coroner's findings.

However, at the RCI, the panel found that Teoh could have been driven to suicide by the MACC.

The Court of Appeal is the final opportunity for Teoh's family to review the coroner's decision on “beyond reasonable doubt” of the burden of proof and decide declared an open verdict on Teoh's death.

'Pictures not clear'

Justice Mohd Ariff mooted the idea to visit the site as the bench complained that the pictures were not clear.

This resulted in the judge asking the Teoh family lawyer, Gobind Singh Deo, if it would be worthwhile for the bench to visit the scene to better evaluate the case.

Gobind replied that it would be better if the bench wishes to do so, and Justice Mohd Ariff's decision for the visit was further supported by Hamid Sultan, who asked about the size and opening of the window at the MACC office.

However, the court also ordered Gobind to provide clearer pictures to the court before it goes for the site visit.

Burden of proof ramifications

Hamid Sultan also pointed out that the burden of proof in an inquest could be lower, as it was not a court proceeding, as stipulated under Section 328 of the Criminal Procedure Code.

That section states that determining the “cause of death” includes not only the apparent cause of death as ascertainable by inspection or post mortem examination of the body of the deceased, but also all matters necessary to enable an opinion to be formed as to the manner in which the deceased came by the death and as to whether the death resulted in any way from, or was accelerated by, any unlawful act or omission on the part of any other person.

The judge highlighted these words enabling an opinion that suggests a lower burden of proof than “beyond reasonable doubt” as in a criminal proceeding or a balance of probabilities in civil cases.

Gobind had earlier asked the court to decide whether the coroner, in making a finding of a homicide in an inquest, is required to apply the standard of “beyond reasonable doubt”.

The bench noted there is a practice of directives on adopting the “beyond reasonable doubt” test, but noted the directives governing magistrates cannot overrule a statute or law, as pointed out by Justice Hamid in the meaning of Section 328.