Two former police commandos were freed today after the Court of Appeal allowed their appeal and overturned their conviction for the 2006 murder of Mongolian Altantuya Shaariibuu (pic).
A three-member bench comprising judges Datuk Seri Mohamed Apandi Ali, Datuk Linton Albert and Datuk Tengku Maimun Tuan Mat made the unanimous decision to allow the appeal by former chief inspector Azilah Hadri and former corporal Sirul Azhar Umar.
Azilah and Sirul were jointly charged and convicted by the High Court in Shah Alam in 2009 for murdering Altantuya, 28, at a forest reserve in Shah Alam in October, 2006.
Both were then with the Bukit Aman Special Action Squad and were in Datuk Seri Najib Razak’s security team. Najib was then the deputy prime minister and defence minister.
In their brief five-minute judgment read out by Tengku Maimun, she said the trial judge failed to consider the defence of alibi filed by Azilah.
"There was nowhere in the grounds of judgment of the learned trial judge that he had considered whether the station diary showed the presence of the first appellant (Azilah) at Bukit Aman at the material time. He cannot be or is unlikely to be at the crime scene.
"On the call logs and coverage predictions (which were produced by the prosecution to show the movements of Azilah the night of the murder), witnesses from telecommunication companies had put into issue the reliability and accuracy of the call logs and the coverage prediction.
"It is essential for the trial judge to address the challenge raised by the defence on the exhibits and to make a finding whether there was in fact an altercation or tampering of data and whether the authenticity of the data was questionable or otherwise.
"Regrettably, the judge failed to do so and this amounts to serious misdirection, rendering the said exhibits unsafe to be relied upon," she read from the judgment.
She said the judge had also failed to examine whether the contradictions or inconsistencies in the evidence of the prosecution witnesses were material and whether they were information supplied by the appellants or from other sources.
"As regards to the issue of possession and control of the explosives, the trial judge also failed to make a further finding to connect the explosives to the appellants. By not making any finding on possession by the two of the explosives, the judge had failed to address this missing link, resulting in yet another misdirection," said Tengku Maimun.
She concurred with the defence that DSP Musa Safri, who was then Najib's aide-de-camp should have been called to unfold the narrative which the prosecution's case was based on.
The court also found that the trial judge made no finding on whether the prosecution has established that there was a pre-arranged plan by the appellants to commit murder.
"Looking at the whole circumstances, it is our judgment that the culmulative effect of the non-directions by the trial judge rendered the convictions unsafe," Tengku Maimun read from the judgment.
Counsel Datuk Hazman Ahmad and J. Kuldeep Kumar represented Azilah, while Kamarul Hisham Kamaruddin and Hasnal Redzua Merican represented Sirul.
DPP Datuk Tun Abdul Majid Tun Hamzah who appeared for the respondent said he will be filing an appeal against the Court of Appeal's decision today.
In an immediate response, DAP national legal head Gobind Singh Deo said the appeal was allowed because of the failure to call material witnesses.
"The strongest evidence would have been who gave the instructions and to whom it was given. Can the AG now tell us who it was?" Gobind tweeted. - August 23, 2013.
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