PUTRAJAYA: The circumstantial evidence was insufficient and not strong enough to sustain the finding of guilt of two police special action unit personnel in the murder of Mongolian national Altantuya Shaariibuu, said the Court of Appeal in its judgement.
Justice Datuk Tengku Maimun Tuan Mat, in a 47-page judgement released today, said the court was constrained to give the benefit of doubt to Chief Inspector Azilah Hadri and Corporal Sirul Azhar Umar as their guilt had not been satisfactorily proved.
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| Justice Datuk Tengku Maimun Tuan Mat |
"We are conscious that a heinous crime has been committed but the guilt of the appellants (Azilah and Sirul Azhar) had not been satisfactorily proved we are constrained to give the benefit of the doubt to the appellants," she said.
She said the court below had ignored and overlooked salient facts and evidence favourable to the appellants which resulted in serious and substantial miscarriage of justice to the appellants, adding that the cumulative effect of those non-directions rendered the convictions of the appellants unsafe.
Tengku Maimun also said DSP Musa Safri was an important witness to unfold the event and to offer explanation of the facts and to close the gap in the narrative of the prosecution's case.
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| DSP Musa Safri |
"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 on," she said.
On Friday, the Court of Appeal's three-member panel chaired by Justice Datuk Seri Mohamed Apandi Ali freed Azilah and Sirul Azhar on the murder charge after unanimously allowing their appeals.
The other judges who presided on the panel with Mohamed Apandi were justices Datuk Linton Albert and Tengku Maimun.
They (Azilah and Sirul Azhar) had appealed against a High Court decision which convicted and sentenced them to death for Altantuya's murder.
Azilah, 37, and Sirul Azhar, 42, were alleged to have murdered Altantuya, 28, at Mukim Bukit Raja in Shah Alam between 10pm on Oct 19, and 1am on Oct 20, 2006.
Former political analyst Abdul Razak Baginda, 50, who was charged with abetting them, was acquitted by the High Court on Oct 31, 2008 after the prosecution failed to establish a prima facie case against him.
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| Abdul Razak Baginda |
The prosecution did not file an appeal.
In her judgement, Tengku Maimun said the affidavit by Abdul Razak, which had been taken by the trial judge to be part of the prosecution’s evidence, contained prejudicial matters against the appellants and it tended to suggest the guilt of the appellants.
"In fact, since the 3rd accused (Abdul Razak) was acquitted and discharged with no appeal lodged by the prosecution, it appears that whatever that the appellants did in committing the crime was entirely on their own accord.
"However, it must not be overlooked that this ugly and horrendous episode started with the request by the 3rd accused to DSP Musa before the appellants came into the picture.
"The evidence established that the appellants’ task was to patrol the vicinity of the 3rd accused’s house and that the presence of the appellants at the 3rd accused’s house on the night of 19.10.2006 was upon the request for such assistance from the 3rd accused to Azilah," she said.
At the time, Musa was the aide-de-camp of then-deputy prime minister Datuk Seri Najib Tun Razak (now prime minister).
Tengku Maimun said the trial judge had also failed to consider the defence of alibi by Azilah which revealed that he could not have been at two places at the same time on the night of Altantuya's murder.
She also said that the trial judge failed to address his mind to the defence challenge on the exhibits such as the call logs and coverage predicition and to make a finding on the authenticity of the data which were important pieces of evidence to establish Azilah's presence at the scene of the crime.
According to the exhibits, Azilah was at Pekan Subang at 10.15pm and at Kampung Melayu Subang at 10.19pm. However, the police station diary at Bukit Aman indicated that Azilah was there collecting his weapon, a Glock EAH 387 and two bullet magazines, at 10.18pm.
On Sirul Azhar, Tengku Maimun said there was a conflicting and inconclusive account of events as regards to the discovery of a black jacket and jewellery (Altantuya's jewellery).
She said, according to one of the police witnesses, Sirul Azhar had told him he kept the items (jewellery) in the jacket, but the testimony of another officer did not disclose any such statement being made.
Tengku Maimun said the onus on the prosecution where the evidence was of a circumstantial nature, was indeed, a very heavy one.
"The circumstances must be fully and cogently established, the chain of evidence must be complete, the evidence must point irresistibly to the conclusion of the guilt of the accused and there must not be any gaps in the prosecution’s case, and if there were gaps in it, then it was not sufficient," she said.
She said the prosecution had suggested that the presence of the appellants (Azilah and Sirul Azhar) at Hotel Malaya on Oct 18, 2006 was evidence of their intention to commit the crime.
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"However, an inference favourable to the appellants may also be drawn, i.e., that their presence was merely to confirm that the deceased (Altantuya) was indeed, staying at the hotel as per the information given by the private investigator to Abdul Razak, and by Abdul Razak to Azilah," added Tengku Maimun.
Tengku Maimun said the presence of the appellants at Hotel Malaya did not establish a complete chain of evidence against them to find them guilty.
She also said the prosecution had conceded that there were various non-directions by the trial judge and had requested the court to invoke the proviso of section 60(1) of the Courts Judicature Act 1964 to correct the defects to uphold the police commandos's conviction.
"Looking at the whole evidence and circumstances of this case, we are of the view that this is not a fit and proper case for us to invoke the proviso. The circumstances relied upon by the prosecution had not been fully and cogently established, and the chain of evidence is not complete.
"We cannot say if a reasonable tribunal properly directed would have convicted the appellants on available evidence," she said. -- BERNAMA
Read more: ALTANTUYA MURDER: Circumstantial evidence insufficient to sustain guilt of two policemen - Latest - New Straits Times http://www.nst.com.my/latest/altantuya-murder-circumstantial-evidence-insufficient-to-sustain-guilt-of-two-policemen-1.344058#ixzz2d6rA7ubD
