Altantuya trial judge erred, ex-cops should never have been convicted, rules Court of Appeal

V. Anbalagan, TMI

The prosecution in the Altantuya Shaariibuu murder case knew that its case had holes but was hoping for the Court of Appeal to invoke a special provision to uphold the convictions of former police commandos Azilah Hadri and Sirul Azhar Umar.

Instead, the Court of Appeal's three-man bench found that the two should have been acquitted at the trial stage. The judges said the prosecution was aware that the trial judge had failed to thoroughly analyse the evidence in the trial.

The prosecution had wanted the Court of Appeal to correct the defects to sustain the conviction but the judges were not convinced.

Judge Datuk Tengku Maimun Tuan Mat, who wrote the grounds, said the prosecution had conceded that there were various non-directions by the trial judge, Mohd Zaki Md Yassin, and urged the three-man bench to use a provision in the Court of Judicature Act 1964 to cure the defects.

In exceptional cases, she said, an appellate court could uphold a conviction despite the misdirection.

"However, 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," she said.

Tengku Maimun said the circumstances relied upon by the prosecution had not been fully and cogently established and the chain of evidence was not complete.

"We cannot say if a reasonable tribunal properly directed, would have convicted the appellants (Azilah Hadri and Sirul Azhar Umar) on available evidence.

"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," she said.

She said the cumulative effect of these non-directions rendered the convictions of the appellants unsafe.

Tengku Maimun also said that the prosecution’s case relied on circumstantial evidence.

"It is our judgment that the circumstantial evidence are insufficient and not strong enough to sustain the finding of guilt," she said.

Tunku Maimun said the appellate court was conscious that a heinous crime had been committed but the benefit of the doubt must be given to the policemen.

The Court of Appeal also ruled that Deputy Superintendent Musa Safri, the former aide-de-camp of then-Deputy Prime Minister Datuk Seri Najib Razak, could have unravelled events which could have contradicted political analyst Abdul Razak Baginda’s statement in his affidavit which formed part of the prosecution’s evidence.

And the failure to call him to the murder trial proved fatal to the prosecution’s case as there was no rebuttal against Abdul Razak's statement.

On that note, the trial judge had acquitted and discharged him without calling for his defence.

However, there were discrepancies in the affidavit with former police corporal Sirul Azhar's statement with regards to the senior officer, which only Musa could have unravelled.

This was stated in the 47-page unanimous judgment written by Tengku Maimun.