880 Malayan Law Journal [2011] 7 MLJ SP5: Dengan adanya hubungan seksual sama ada rela atau paksa, sehingga lelaki itu sampai ke peringkat ejakulasi, dengan lelaki itu memasukkan kelamin lelakinya yang tegang ke dalam alat kelamin si mati. [51] Now, I had said that there was penetration of the accused person’s penis into the victim’s private part because the specimen swab taken by SP5 from inside the inner wall of the victim’s private part where the white fluid was detected and which was then sent to SP8 for analysis had shown the result that the DNA profile developed from the specimen was consistent with the DNA profiled from the accused’s blood sample (‘E24’) and the conclusion must be that it had originated from the accused person. At this point it would be pertinent to pause and view the photographs that were referred to the pathologist SP5 by the learned deputy. In those photographs that had been marked as P6(I) and P6(J) the white fluid (‘cecair putih’) would appear to have ‘collected’ in the private part of the deceased. The SP5, upon being asked by the learned deputy as to how the white fluid could be found there, had said that it was through sexual intercourse, either consensual or otherwise. Now, the accused in D64 had tried to again suggest that his DNA could have been there because of this fingering into the victim’s private part. The part of the D64 on this matter is the part where the accused said that when he came to, he saw the deceased lying on the mattress with her sarong having been pushed down to her ankles and that she was clad in only her underwear and a T-shirt. Upon seeing that, the accused said in D64 that he had proceeded to fondle her breasts and that he had then ejaculated in the direction of the deceased’s private part. He also said that he had put his middle finger into the deceased’s private part twice. When he saw blood flowing out from the deceased’s head he became panic and had quickly left the room. [52] From the above, it is quite apparent to my mind that the accused had tried to forward a theory that the white fluid could have been there as in the said photographs (P6K and P6J) as a result of his fingering the deceased’s private part, having earlier on ejaculated in the direction of her private part. But learned counsel did not cross-examine the pathologist on this point nor suggest to him whether the white fluid was found where it was, had been due to other way(s) besides by way of sexual intercourse. As such, the accused’s attempt in D64 in that direction, was a mere afterthought on the part of the defence. The recent case of Tan Kim Ho & Anor v Public Prosecutor [2009] 3 MLJ 151 saw the Federal Court reiterating the long held principle that ought to be observed by counsel during cross-examination. In the course of his deliberation in Tan Kim Ho’s case, the learned Chief Justice had cited the House of Lords decision in Brown v Dunn where it was held that during cross-examination, there are two things which the opposing counsel has to undertake, namely: (i) he must challenge a factual assertion made by the witness called by other party which is not in consonance with his brief, and (ii) he must put forth to the relevant A B C D E F G H I