[2011] 7 MLJ A B C D E F G H I Public Prosecutor v Muhammad Rasid bin Hashim (Abang Iskandar J) 881 witness called by the other party, what essentially his client’s case is all about so as to give an opportunity for that witness to either agree or disagree with his proposition of what the case actually is all about, and if necessary, to rebut the same. These two principles are central to litigation, both in civil and criminal, and the learned Chief Justice had indeed opined in Ho’s case it should be observed ever the more so in criminal cases as in such cases, there are no mutual pre-trial discovery of salient facts between parties, as part from a professed defence of alibi, an accused person would normally keep his defence close to his chest. A failure to challenge a material factual assertion would amount to an acceptance of the same by the party against such factual assertion was given as explained by the Federal Court in the case of Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212. While failure to challenge a material fact or an omission to put forth the defence’s case to the relevant witness may not, ipso facto, deal a fatal blow to a belated defence, nevertheless the courts have always regarded such an approach by the defence as one inherently lacking in credibility. It goes not to admissibility but rather, to the appropriate weight that ought to be given to such a defence. In the case of Public Prosecutor v Lin Lian Chen [1992] 2 MLJ 561 Justice Edgar Joseph Jr SCJ had this observation to make with regard to a belatedly disclosed defence, and I quote: ‘A final point needs to be made. The trial judge appreciated correct law when he held, as he did in fact hold, that the defence is entitled, through cross-examination of prosecution witness, to put its case at the earliest possible stage. Indeed, it behoves the defence to do so, for we need hardly say that if a defence is sprung in court for the first time when the accused makes his defence from the box or the dock so that the prosecution is taken by surprise, the accused runs the risk of being criticised for having kept his defence ‘up his sleeve’, so to speak, and it being branded as a recent invention.’ [53] So, from the failure on the part of the defence challenging the SP5 on his answers as reproduced above, it must in law be taken that he had agreed, as an accepted fact, that the white fluid was found in the deceased’s private part as a result of a sexual intercourse, meaning that the accused had penetrated his penis into the deceased private part and that he had ejaculated inside therein. His failure to put forth his defence, namely, putting his middle finger into her private part after first ejaculate in the direction of her private part to SP5 when the defence had the opportunity to do it during cross-examination but only belatedly asserted as such in D64 only served to impress upon this court that it was a line of defence that was created late in the day, probably out of desperation than anything else. I found that defence to be incredible and to be devoid of any grain of any honesty in it. That would dispose of the matter on penetration. [54] The other part of the equation in an alleged rape charge involving an adult female would involve the issue of whether or not the victim had