DELEGATUS NON POTEST DELEGARE PART 10 – THE FEDERAL COURT REVERSAL

On the 13 January 2015, the Federal Court delivered its decision in the appeal brought by the prosecution against the order acquitting Azilah and Sirul made by the Court of Appeal in 2013.

The Judges of the Federal Court felt the Court of Appeal was wrong. They reinstated the convictions and sentences passed on both accused by the High Court. This was probably the most sensible thing to do in the circumstances because of the overwhelming evidence against the two accused

Sirul leaves the country before the Appeal is heard

In the intervening period between the decision of the Court of Appeal to free both accused and the decision of the Federal Court to lock them up again, both Azilah and Sirul had been granted unlimited access to roam the world at their leisure. Azilah confidently chose to remain in Malaysia.
Sirul, not being as confident, thought it wiser to seek alternative habitation in Australia. He left in 2014 sometime to stay with his son in Ipswich, Queensland.
He was not in Court when the order for his acquittal was set aside by the Federal Court, so the Malaysian police requested Interpol issue a red notice for his arrest so he could be locked up again, in Malaysia.

The gist of the Federal Court’s decision

Why did the Federal Court decide to reinstate Azilah and Sirul’s convictions ?

Well, to cut a long judicial story short, the five Judges who sat to hear the appeals felt there was more than sufficient evidence to convict and that the High Court Judge was correct. What is most interesting though, is the manner in which the Judges dealt with the Musa Safri issue and his absence as a witness at the trial.

If we recall, the Court of Appeal Judges were less than impressed with the absence of Musa Safri as a witness. They felt this was of paramount importance so much so the benefit of his absence as a witness ought to have been given to both accused.

The Federal Court disagreed. Justice Suriyadi Halim Omar (photo), in delivering the judgment of the Court, had this to say:
“As there was no serious dispute about this relationship (between Razak Baginda and Altantuya), we are therefore unable to see how much more details DSP Musa Safri could produce that would contribute to the respondents’ (Azilah and Sirul’s) defences. The calling of DSP Musa, let alone the tendering of the SMS, would not have affected the evidence pertaining to Baginda’s previous relationship one tiny bit”.

What on earth??? Who cares about the relationship?

Let us put that aside for a moment.

Justice Suriyadi was, of course, referring to the ‘exculpatory’ affidavit Razak Baginda had filed in support of his application for bail at the High Court stage. Remember, this was the affidavit, which very unusually, secured his acquittal. This affidavit explained Razak Baginda’s relationship with Altantuya, Musa Safri and Azilah.

Justice Suryadi went on to say the following:
“We also observed that DSP Musa never instructed the first respondent (Azilah) how to assist Baginda but merely was told to meet up with him; the first respondent (Azilah) thereafter acted on his own discretion and sensibilities”.

What on earth???

A Commando acting on his own ‘discretion and sensibilities’? These are highly trained automatons. They follow orders. Nothing else.

All these convoluted deductions were based solely on the contents of an ‘exculpatory’ affidavit sworn by one of the accused, who was never called to give evidence on oath, and who was never cross-examined on those contents to test their veracity?

What species of law was relied upon here? It is an anathema to legal and judicial protocol to rely on untested evidence especially in a criminal trial, where the life and the liberty of the accused is at stake

His Lordship’s conclusion was the coup de grace

“We therefore conclude that the non-calling of DSP Musa or the non-tendering of all the alleged SMS had not in any way caused unfairness to the respondents (Azilah and Sirul). We fail to see how the presumption of adverse inference under s. 114(g) of the Evidence Act 1950 could be applicable here”.

Remember, the non-calling of Musa Safri as a witness was one of the main grounds the Court of Appeal relied upon in acquitting Azilah and Sirul. Those Judges felt this was of such significance that the convictions were unsafe.

What if Musa Safri had been called as a witness?

So, in other (more simplified) words, the implications of this judgment are that no one was interested in what Musa Safri had to say or what the smses between him, Azilah and Razak Baginda were about.

No one was interested in the fact that Azilah and Sirul’s counsel were prevented from cross-examining Musa Safri.

No one seemed to consider the possibility that Musa Safri may have cracked under astute and relentless cross-examination by some very capable counsel, and revealed what may have been the truth … that Azilah was given instructions to kill Altantuya and he roped in Sirul to do the dirty work.

What would the implications have been if such revelations had been made

Would Musa Safri have confessed to the circumstances alluded to in Azilah’s latest affidavit

Would Musa Safri’s potential evidence have sealed Razak Baginda’s fate and implicated others?

Was it therefore unfair of the prosecution not to have called Musa Safri when his evidence could possibly have improved Azilah and Sirul’s position and downgraded Razak Baginda’s?

None of these issues were addressed by the Court. More surprisingly, nowhere in the entire very lengthy judgment, did the judges ever consider asking themselves one simple question – why did Azilah and Sirul do this? This was never addressed.

Instead, part of the judgment, pulsating with an aura of palpable relief, mentioned in passing that “the acquittal of Baginda at the end of the prosecution’s stage is of no concern to us as no appeal had been filed against that acquittal.

Phew!

Razak Baginda’s exculpatory affidavit

From the contents of this affidavit (sworn to by Razak Baginda (photo) as the complete utter and unassailable truth), a few very curious admissions emerge. Reference is made to paragraph 34(b).

i. Razak Baginda knew Azilah had killed 6-10 people in the past and Azilah appeared proud of that fact.
ii. Razak Baginda was at pains to insist that Azilah refrain from dealing with Altantuya in the same manner.
iii. Razak Baginda insisted Azilah discard the idea of getting rid of Altantuya in the way suggested simply because her family would then blame him and his family for it.
iv. Razak Baginda also ‘believed’ Azilah, as a police officer, would not do anything untoward, or which would be against the law, with regard to the decreased.

Right, let’s put things into perspective here.
Razak Baginda knows he is dealing with a serial murderer, and all he can think of is to ‘insist’ Altantuya does not suffer the same fate as the rest of Azilah’s victims because it could possibly cause some friction between families?!

What about the more important issues here, like taking someone’s life for instance? You would have to be some kind of sicko not to want someone killed merely because it might inconvenience your family.

Razak Baginda goes on to say he didn’t think Azilah would do that because he was a police officer?

This man is a highly trained assassin for goodness sake. He is certainly not an ordinary constable sitting at the front desk of a police station in some remote village recording complaints of stolen chickens.

Razak Baginda must have been plain stupid to think Azilah would not have done anything against the law. For crying out loud, this man had killed 6-10 people in the past. He is most certainly not a law abiding citizen.

So why did Razak Baginda not simply thank Azilah for his offer and dismiss him from the allocated task promptly and immediately?

After all, he had hired Bala and his team to keep Altantuya away. Why was that not enough ‘protection’? If Razak Baginda was concerned it wasn’t, then why not just lodge a police report over the harassment he was receiving?

But he couldn’t could he? He didn’t want to implicate a ‘VVIP’ who was involved.

So much for an ‘exculpatory’ affidavit. .

Meanwhile much was happening in the Land Down Under. Sirul managed to get himself arrested and thrown into a detention centre, much to his chagrin, but much to the delight of the truth-seekers of this world.

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