Altantuya Shaariibuu
Court of Appeal overturns High Court conviction, frees two cops from Altantuya’s murder
PUTRAJAYA: Two police special action unit personnel Azilah Hadri and Sirul Azhar Umar escaped the gallows after the Court of Appeal here yesterday discharged and acquitted them from the charge of murdering Mongolian Altantuya Shaariibuu, seven years ago.
A three-member panel of judges led by justice Datuk Seri Mohamed Apandi Ali, and comprising Datuk Linton Albert and Datuk Tengku Maimun Tuan Mat unanimously set aside the death sentence imposed by the Shah Alam High Court after allowing their appeal on conviction and sentence.
In a 4-page summary judgment, the court ruled that the High Court Judge had misdirected himself in convicting them.
Justice Tengku Maimun, who read out the judgment, said the trial judge had misdirected himself by way of non-direction in failing to consider the station diary and in failing to make a finding whether the defence had cast a reasonable doubt on the prosecution’s case that Azilah who was the first accused in the case, was at the scene of the crime.
Justice Tengku Maimun said on Azilah Hadri’s defence alibi, the court did not find anywhere in the trial judge’s grounds of judgment that he had considered whether the station diary showed or tend to show that Azilah’s presence at Bukit Aman at the material time and he could not be or was unlikely to be at the crime scene.
The courtroom was silent when the judge delivered the judgment while Azilah, 34, and Sirul Azhar, 39, looked calm after the verdict.
“Looking at the whole circumstances of this case, it is our judgment that the cumulative effect of the non-directions by the learned trial judge rendered the conviction of the appellants unsafe. We, unanimously allow both appeals,” said Justice Tengku Maimun.
The duo were convicted and sentenced to death by the High Court in 2009, for murdering 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.
In an immediate move, the prosecution led by Solicitor-General II Datuk Tun Abdul Majid Tun Hamzah told the media that the Attorney-General’s Chambers would file an appeal over the duo’s acquittal.
In the judgment, the court set up eight grounds in acquitting Azilah and Sirul Azhar.
Justice Tengku Maimun said the court found that High Court judge Datuk Mohd Zaki Md Yasin had made no finding on whether the prosecution had established that there was a prearranged plan by the two policemen to commit murder and that murder was committed pursuant to the prearranged plan.
“In our judgment, the absence of such a finding by the learned trial judge on the ingredient of common intention amounted to a misdirection by way of non-direction,” she said.
On the call logs and coverage predictions, she said the court found that the testimonies of three witnesses from several telco companies had put into issue the reliability and accuracy of the call logs and the coverage prediction.
Justice Tengku Maimun said it was essential for the trial judge to address his mind to the challenge raised by the defence on the exhibits and to make a finding whether there was an alteration or tampering of the data and whether the authenticity of the data was questionable or otherwise.
“Regrettably, the high court judge failed to do so, which in our judgment amounts to serious misdirection rendering the said exhibits unsafe to be relied upon,” said the judge.
On other grounds, the court held that the trial judge did not direct his mind and did not examine whether the contradictions or inconsistencies in the evidence of the prosecution witnesses were material.
She said the trial judge also did not examine the credibility of the prosecution witnesses and did not address his mind whether Azilah and Sirul Azhar had raised a doubt about the accuracy of the statements by them under Section 27 of the Evidence Act 1950.
Justice Tengku Maimun also said the trial judge did not direct his mind whether the discovery of the crime scene and the deceased’s jewellery was made by virtue and exclusively as a result of the information supplied by the duo and not from other sources.
She said the court found that there was a non-direction by the trial judge in failing to evaluate the evidence before admitting the statements under Section 27.
On another ground, Justice Tengku Maimun said the court found that there was no evidence to show any nexus between slippers with Altantuya’s blood stains which were found in Sirul Azhar’s jeep, with him (Sirul Azhar).
She also said the prosecution had not closed the gap in its case on this issue.
Similarly, the judge said, on the spent cartridge recovered from inside the car of Sirul Azhar who was the second accused, the court found that there was a gap in the prosecution’s case which the trial judge had failed to direct his mind to.
Finally, the court also held the failure of the prosecution to call or offer for cross-examination of DSP Musa Safri who was at that time aide-de-camp of the deputy prime minister Datuk Seri Najib Tun Razak, would have triggered the adverse inference under Section 114 (g) of the Evidence Act, against the prosecution.
“In so far, as the non-calling of DSP Musa is concerned, on the facts of this case, the evidence of DSP Musa is essential to unfold the narrative upon which the prosecution’s case is based on,” said the judge. — Bernama