Detention of locals acquitted of criminal charges unusual, say lawyers

 

Shanti Dorairaj (centre), claims her son, T Nhaveen, was murdered, and wants the five accused persons acquitted by the court arrested and detained pending an appeal.

PETALING JAYA: The prosecution will be taking a highly unusual step if it seeks the assistance of the court to detain locals acquitted of criminal charges, said lawyers.

They said such a move is usually only applied in respect of foreigners since they are potential flight risks and, once acquitted, would be extremely difficult to locate for purposes of an appeal.

Lawyer N Sivananthan said he is not aware of any instance when  the prosecution has sought the detention of an acquitted local person.

“I have not seen it happen in my 31 years of practising criminal law,” he told FMT.

Sivananthan was commenting after the mother of the late T Nhaveen was reported on Saturday as threatening to go on a hunger strike unless prosecutors secure arrest warrants for the five accused acquitted by the court last month of his murder.

On Oct 3, the High Court in Penang acquitted S Gopinaath, 30, J Ragesuthan, 22, S Gokulan, 22, and two underaged persons without calling for their defence to charges of killing Nhaveen, then 18, at a park on Jalan Bunga Raya on June 9, 2017.

The Attorney-General’s Chambers (AGC) filed a notice of appeal on Oct 13 and is now awaiting the appeal records from the court.

Shanti Dorairaj, through activist Arun Doraisamy and family lawyers, had previously urged the AGC to arrest the five, who she fears will leave the country prior to the disposal of the appeal.

Sivananthan said Section 56A of the Courts of Judicature Act 1964 and Rule 58(3) of the Rules of the Court of Appeal 1994 empowers the prosecution to apply for a person to be detained despite his acquittal.

The rule states that as soon as the public prosecutor files a notice of appeal, the Court of Appeal may, on an application by the public prosecutor, issue a warrant directing that the accused be arrested and brought before it.

“This can be done but usually applies only to foreigners, not Malaysians. Even if they apply and the Court of Appeal entertains the application, bail will most likely be given,” he added.

Sivananthan, however, said the court could blacklist the passports of the five to prevent them from leaving the country.

Kitson Foong said the prosecution would have to show to the court that the local was a potential flight risk before the court issues an arrest warrant.

“But this will be an uphill task. Only in a rare and exceptional circumstance will the court entertain the prosecution’s application,” he added.

Foong said the court is also mindful of the fundamental right under the Federal Constitution that no person shall be deprived of his liberty save in accordance with the law.

“Usually there is no good reason to continue detaining locals acquitted of an offence,” he added.

Lawyer A Srimurugan said it would be premature for the prosecution to make an application to detain the five since it has yet to obtain the appeal records comprising the notes of evidence, grounds of judgment and exhibits from the trial court.

“What if the trial judge had given cogent reasons in arriving at his decision and the prosecution decides against filing its petition of appeal,” he asked.

Srimurugan said the AGC should be given the time and space to  perform their duties in the public interest.

“At this juncture, no one should pressure them. The prosecutor’s client is the public, and not Nhaveen’s family members and supporters alone,” he added. - FMT