My posting herein may draw unhappiness and unsatisfactory feeling but I do hope that you read my posting with open mind and do not cloud yourself with emotion feelings.
.On 16/10/2008, the Federal Court acquitted Mohd Abbas Danus Baksan of murdering a 10-year old girl, Nurul Huda Abdul Gani. The Federal Court’s decision draw mixed feelings and reactions among the people with many quarters are not happy with the decision. To better understand what happened, let me take you to revisit the case.
.http://www.malaysianbar.org.my/legal/general_news/nurul_huda_murder_case_acquitted_on_grounds_of_insufficient_evidence.html.
On 17/1/2004, the whole nation was shocked to learn that a cute 10-year old girl by the name of Hurul Huda Binti Abdul Gani of Gelang Patah Johor was brutally gang raped, sodomised and strangled to death. Police's investigation brought to the arrest of a Security Guard by the name of Mohd Abbas Danus Baksan who, at the time of the alleged crime was manning the security booth of Tenaga Nasional Berhad’s main substation in Kampung Pekajang, Tanjung Kupang, Johor Baru. The heinous crime was said to have been committed by Mohd Abbas on 17/1/2004 between 9.20am and 1.00pm. Police’s investigation also revealed the presence of two (2) other persons who were unnamed. In fact, when Mohd Abbas was first charged in court (for murder), he was charged of committing the offence with two (2) other persons who were unnamed.
.In this case, Mohd Abbas was charged for rape and murder. In his trial for rape in the Sessions Court, he admitted to committing the offence, thus was sentenced accordingly. However, during his trial for murder at the High Court, he did not admit to committing the offence but putting the blame on two (2) other persons namely Suyaimi and Jojo. While Suyaimi was made a prosecution's witness, Jojo's whereabout could not be established. After hearing 26 witnesses and producing 29 items as evidence during the 21-days trial, the High Court found him guilty for murder, hence he was sentenced to death.
.http://thestar.com.my/news/story.asp?file=/2004/8/28/nation/8775746&sec=nation.He filed an appeal with the Court of Appeal against his conviction (on murder). In the Court of Appeal, the appellant’s (Mohd Abbas) main argument was that the Judicial Commissioner at the High Court had failed to sufficiently appreciate the prosecution’s evidence and the appellant unsworn statement when arriving at his findings. In particular, there was insufficient appreciation of the circumstantial evidence relied on by the prosecution. The Court of Appeal, in dealing with the issue raised by the Appellant said that the circumstantial evidence relied on by the prosecution was sufficiently corroborated and inference was made against the Appellant. As such, the Court of Appeal dismissed the Appellant’s appeal and upheld the punishment meted out by the High Court i.e. death sentence. Mohd Abbas lodged an appeal with the Federal Court against the decision of the Court of Appeal.
.http://www.kehakiman.gov.my/judgment/coa/latest/Crpp%2042%20Mohd%20Abbas%20bin%20Danus%20Baksan%20v%20PP%20%20(J-05-71-04).htm.Now, after the High Court and the Court of Appeal found Mohd Abbas guilty for murder, what made the Federal Court in a unanimous decision differed from the two (2) previous Courts?
.In criminal case, there are two (2) elements that must be proven by the prosecution during the trial i.e. the
mens rea and the
actus reas.
Mens rea means the intention to commit the crime and
actus reas means the action, which causes the crime to be committed. If the prosecution is only able to prove only one (1) of the two (2) elements mentioned above, the Court may acquit the accused or punish him/her with a lower punishment. On top of that, the prosecution's burden of proof is "
beyond reasonable doubt". "
Beyond reasonable doubt" means there shall be no single doubt in the prosecution's case and what the accused need to do is to raise at least one doubt (which is reasonable) to throw out the prosecution's case. There was a joke to illustrate what is “
beyond reasonable doubt”?. An accused was charged for murder and knowing very well that he is going to lose his case, after the Court resume the proceedings and before the Judge delivering his decision and sentence, the accused stood up and told the Judge that the victim (that had been murdered) is on the way to the Court room and should arrive shortly. The Judge took the trouble and interestedly waited for the victim to walk in. After waiting for a couple of minutes (and the victim was still not walking into the Court room), the Judge told the accused that he (the accused) was bluffing and the Court was going to deliver its decision. The accused stood up and told the Judge that he had managed to raise a reasonable doubt and therefore, he should be acquitted. The Judge was stunned and the accused explained that if the Judge believed that the prosecution had proven the case "beyond reasonable doubt", the Judge should not believe in what the accused said about the victim coming in to the Court room.
.Now, in this case, Mohd Abbas was jointly charged for murder with two (2) others who were unnamed. There appeared to be the presence of a third person (which was believed to have been Jojo) in the crime scene when the crime took place. This was further supported by the fact that there was a semen stain on a straw mat at the crime scene which does not belong to Mohd Abbas and Suyaimi. The said semen stain belongs to an unidentified male individual. So, in this case, it is not disputed that there was a third person other than Mohd Abbas and Nurul Huda at the crime scene when the crime took place. The prosecution in proving the case against Mohd Abbas at the High Court was relying on the circumstantial evidence in that: -
.(a) Mohd Abbas was alone at the guardhouse when the victim’s body was found;
.(b) The victim’s path to the shop from her house and return journey would have led her past the guardhouse;
.(c) Mohd Abbas’ demenour when approached by the victim’s family members whereby he claimed that he did not see the victim (when the fact that the victim’s body was lying motionless in the guardhouse’ toilet);
.(d) Mohd Abbas’ demenour in not allowing the police to enter the TNB main station area; and
.(e) Though Mohd Abbas claimed that it was Suyaimi and Jojo who murdered the victim, Mohd Abbas was said to have supposedly to help the girl and informed the police of the crime committed by Suyaimi and Jojo as alleged by him, which he failed to do. It only serves to suggest that he killed the victim and was trying to conceal the evidence.
.Now, to me personally, the circumstantial evidence mentioned above does not form conclusive evidence that Mohd Abbas did murder the victim. All it suggested was that Mohd Abbas was present at the crime scene when the crime took place. Though it was said Mohd Abbas should help the girl and inform the police if at all it was true that it was Suyaimi and Jojo and not him who killed the victim, to me Mohd Abbas would have his own reason for doing so. In this case, he admitted to have raped the victim. As such, it makes sense for him not to cooperate with the police and the victim’s family members (even to the extent that he might try to conceal the evidence) because he had raped the victim. The fact that he was alone at that point of time would added to his fear, as he could be charged for murder too, a crime he claimed that he did not do. So, with due respect, I beg to differ with the argument that Mohd Abbas’ uncooperative demanour can only suggest that he killed the victim, a crime he denied of committing, as it can also suggest that he raped the victim, a crime which he admitted at the Sessions Court.
.So, in this case, the Federal Court was of the opinion that the presence of a third person, which have been proven but that third person’s whereabout could not be established only serves as a doubt in the prosecution’s case. This is because, there was no direct evidence to prove that Mohd Abbas killed the victim (as what the prosecution had was only circumstantial evidence) and that the presence of the third person could also suggest that there was always a possibility that the victim was murdered by that third person. So, while Mohd Abbas admitted to have raped the victim, there was just no conclusive evidence to suggest that he killed the victim. So, in that sense, the Federal Court found doubt in the prosecution’s case and as I mentioned above, the defence (Mohd Abbas) just need to create one reasonable doubt to throw out the prosecution’s case and he did.
.And as I mentioned earlier, the decision by the Federal Court invited mixed reaction from the people. They just could not believe that the criminal involved in heinous crime against a helpless 10-year old girl escaped the gallows. Even the family members of Nurul Huda was shocked to learn that Mohd Abbas is still alive, as they thought that he (Mohd Abbas) had been hanged already.
.However, I have to tell you this. Law is not about common sense. Law is not about emotion feelings and law is not about logic. Law is governed by the rule of law. What I mean is that when we deal with law, we should not use our emotion while common sense and logic is not all. A simple example, a man who had consensual sexual intercourse with a girl aged 15 years 364 days has committed a statutory rape but a man who had consensual sexual intercourse with a girl aged 16 years 1 day is not committing any offence. Reason being because under the law, girls under 16 years of age are minor, hence under the law, they do not have the capability to give their consent but girls of 16 years of age and above are said to be able to give their consent. If we think about it, does that really make sense? In this instance, the two (2) girls’ age was different by three (3) days only but does that really make a different with their capability to give their consent? No right? But the law says it is. To me it does not make sense and is not logic but that is the law. So, in Nurul Huda’s case, while we, the people believe and thought that Mohd Abbas should have been found guilty of murder, the law takes different view and it is because the law does not based on emotion, logic and common sense as we thought it should be. The law looks at the rule of law vis-à-vis evidence surrounding the case.
.While I agree with the finding of the Federal Court, I am not too sure who killed Nurul Huda. It could have been Mohd Abbas who killed her but the evidence tendered in Court does not suggest so.
.In the end, it is better to acquit ten (10) guilty persons (as they shall receive their punishment in the hereafter) than to punish an innocent person (as this may cause great injustice).
