DELEGATUS NON POTEST DELEGARE PART 9 – AZILAH AND SIRUL’S APPEAL

Azilah and Sirul’s appeals to the Court of Appeal against their convictions and sentences were heard in June 2013. The panel of Judges who heard these appeals were, Apandi Ali (the head of the panel). Linton Albert and Tengku Maimun (the present Chief Justice).
Interestingly, Kitson Foong, the lawyer who had previously represented Sirul was to make another appearance in the preparation of his client’s appeal. He was not however, part of the defence team which eventually turned up to argue the appeal.

The judgment of the Court of Appeal

Tengku Maimun, an erudite Judge of the highest calibre, wrote the judgment of the Court in which both Azilah and Sirul were acquitted of the charges brought against them. This judgment, which was delivered on the 23 August 2013, would eventually be overturned by the Federal Court two years later, so unfortunately for Azilah and Sirul, it must have been wrong.

There were a number of reasons why the Court of Appeal found the decision of the High Court to have been erroneous. Much judicial criticism was levelled at the High Court Judge’s failure to evaluate the evidence properly, connect the dots in a judicious manner and overall sloppiness. The conclusion arrived at was as follows:
“The circumstances relied upon by the prosecution had not been fully and cogently established and the chain of evidence is not complete…. The circumstantial evidence are (sic) insufficient and not strong enough to sustain the finding of guilt….”

In other words, the prosecution was found to have made a complete hash of their case.

But not insignificantly, the Court was unimpressed by the prosecution’s failure to call Musa Safri (photo) as a witness, despite their promises to do so. Justice Tengku Maimun remarked as follows:
“It is our judgment that from the facts of this case, namely the role of DSP Musa in bringing the two appellants into the picture of the entire episode, his evidence is essential to unfold the narrative upon which the prosecution’s case is based”.

Justice Tengku Maimun appeared to be more than baffled as to why the prosecution had jeopardised the entire foundation of their case by the simple failure to call one witness of paramount importance, bearing in mind 84 other witnesses had been called. It was not as if Musa Safri couldn’t be traced. He was sitting at his desk at Bukit Aman biding his time till retirement.

The Court found that this failure to call Musa Safri as a witness was sufficient enough to invoke an evidential presumption adverse to the prosecution.

In other words, if Musa Safri had given evidence, the presumption is his evidence would have destroyed the prosecution’s case. Therefore, the benefit of this potential doubt ought to have been given to the two accused.

After 7 years of incarceration, Azilah and Sirul were finally free, as promised.

Autrefois Acquit?

It is to be recalled that Razak Baginda was acquitted by the High Court without his defence being called. The prosecution did not appeal against this finding. This means that Razak Baginda may remain a free man forever, even if fresh charges are contemplated against him (based on the evidence revealed in Azilah’s latest SD3).

There a legal rule known as ‘autrefois acquit’ which prevents this happening. What this means is that anyone who is charged for an offence and is acquitted, cannot be charged again based on the same facts. It is also called the ‘double jeopardy rule’.

Article 7(2) of the Federal Constitution deals with this as does section 303 of the Criminal Procedure Code.

However, Article 7(2) does not forbid a re-trial where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted.

This is where the fun starts and Razak Baginda’s worries begin.

Azilah’s latest Federal Court Motion for a review of his conviction

Azilah’s (photo) SD3 was filed in support of his Motion to the Federal Court to review his conviction and sentence and for an order for a re-trial. The only way this application will succeed is if the Federal Court accepts that his evidence is indeed ‘fresh’ and was unavailable at the trial. If it does, then there is every possibility the Federal Court may make an order remitting the entire matter back to the High Court for another trial.

If this happens, Razak Baginda’s and Najib’s positions become precarious.

Both face the possibility of being charged for abetment. Azilah and Sirul will, of course, be charged for the main offence of murder, once again.

Will Najib and Razak Baginda try and prevent Azilah’s Motion?

We have heard rumblings from Najib’s star counsel that he will be applying to intervene in the Motion filed by Azilah in the Federal Court. To do so, Najib will have to prepare and affirm an affidavit saying why he feels Azilah is not telling the truth when he said that Najib had asked him to finish off Altantuya for good. A sumpah laknat will not be sufficient this time.

Razak Baginda (photo) will have to do the same as he too was implicated in Azilah’s SD3

The Federal Court now comprises a brand-new team of dedicated Judges who will look at the situation objectively, in accordance with the law and of course, established legal principles. They will no doubt use their judicial discretion wisely and in the interests of justice. If they feel there is sufficient evidence to warrant a re-trial, they will order one.

Sirul is still in Villawood

In the mean time we await the inevitable. Let us not forget the ‘missing link’. Sirul is languishing in Villawood under detention at the moment because the Australian authorities have refused him a protection visa. The Australians can’t send him home because he has been sentenced to death. Australian law says they can’t do this so they appear to be stuck with Sirul forever.

The only way out of this quagmire is for Sirul to affirm a further affidavit in support of Azilah’s Motion saying he was under directions from ‘the Malaysian Government’ to shoot Altantuya. This is what he has already sworn to before the Administrative Appeals Tribunal in Sydney when appealing against the decision of the Australian Immigration Minister not to grant him a protection visa.

If the Federal Court sets aside Sirul’s conviction and orders a re-trial, the Australians will make sure he is on the next flight to Kuala Lumpur.

Matters are going to become very interesting very shortly.