Govt fails in bid to have appeal heard over death of detainee

 

Lawyer M Visvanathan explaining to V Santhi and P Vathian the outcome of the case on Oct 30 last year, with lawyers R Karnan (right) and V Sanjay Nathan (left) looking on.

PUTRAJAYA: The Federal Court has dismissed the government’s leave application to challenge a Court of Appeal ruling that the police were negligent in the death of a businessman detained in a Shah Alam police lock-up six years ago.

Justice Mary Lim, who led a three-member bench, said the applicant’s questions of law failed to cross the threshold as required under Section 96 of the Courts of Judicature Act 1964.

An applicant must satisfy the Federal Court that the proposed appeal contains novel legal and constitutional questions of public importance which are being raised for the first time.

Sitting with Lim were Justices Nordin Hassan and Abu Bakar Jais.

The government said a key question that should be considered by the apex court was whether the civil court could entirely rely on the findings of a coroner for aggrieved parties to prove a negligence claim.

Last December, Putrajaya framed seven questions in a move to have the merits of the appeal heard by the Federal Court.

Another question posed by the government was whether a coroner in an inquest proceeding, under Section 337 of the Criminal Procedure Code, could impose a civil liability on a party.

The government also asked whether evidence given by a doctor who was not specialised in a particular field of medicine amounted to an expert opinion.

Lim today also ordered that the assessment of damages be conducted by the High Court in Shah Alam.

On Oct 30 last year, a three-member bench chaired by Justice Lee Swee Seng ruled that businessman S Thanabalan’s widow, V Santhi, and father, P Vathian, had sufficiently discharged their burden of proof on the totality of evidence.

Lee, who sat with Justices Supang Lian and Azhahari Kamal Ramli, said an award of aggravated damages was justified as Thanabalan had been denied timely access to medical attention.

The award was also made due to the deplorable conditions of the lock-up which saw Thanabalan detained in a cramped cell with no access to clean water.

He said a post-mortem report certified Thanabalan’s cause of death as leptospirosis, which was normally associated with the consumption of food and water infected with the leptospira bacteria found in rat urine.

On Dec 21, 2020, coroner Rofiah Mohamad ruled that police negligence led to Thanabalan’s death.

She said forensics confirmed that Thanabalan had myocardial bridging — a heart condition that normally would not kill anyone.

Rofiah said the detainee had possibly died at the Shah Alam police headquarters or on the way to the hospital because he was brought in dead.

The inquest into his death started in 2019. Thanabalan died in police custody on April 17, 2018.

Lawyers M Visvanathan, V Sanjay Nathan and V Pushan Qin Nathan represented Santhi and Vathian.

Senior federal counsel Zeti Zurina Kamaruddin and Siti Syakimah Ibrahim as well as federal counsel Ashraf Abd Hamid appeared for the government. - FMT