Sunday, February 23, 2020

LTTE related case - DISCHARGE not amounting to acquittal(DNAA) and not ACQUITTAL is just?

LTTE case accused persons - The question now is what will the Deputy Public Prosecutors(DPPs) and the Judge do when the case comes up, after the Public Prosecutor/Attorney General Tommy Thomas decided to discontinue proceedings against them?

DNAA - Discharge Not Amounting to Acquittal, in my opinion, is what the DPPs should be asking the court to do, and the Judges should rightfully end it with a DNAA order.

DNAA means that there is a possibility of charging and trying them again in the future if new and evidence emerges...If not, that is it ...

The other thing that the DPPs may apply for ...and/or the Judge may order is ACQUITTAL. If acquitted, then the law is that they cannot again be charged in the future.

Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same (or similar) charges following a valid acquittal or conviction

Article 7  Protection against retrospective criminal laws and repeated trials (FEDERAL CONSTITUTION)
(2) A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.

The same is also stated in the Criminal Procedure Code in Section 302 - Person once convicted or acquitted not to be tried again for same offence

Now, in all these LTTE cases, the trial is not completed - let alone commenced. Thus, if new evidence emerges later on, they can always be charged for these offences again if they are 'discharged not amounting to acquittal(DNAA)', but not possible or extremely difficult if they are acquitted.

This is also made clear in Section 302(5) of the Criminal Procedure Code that states '  (5) The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.'

Acquittal should happen only after a full trial.

It is hoped that the DPP and the lawyer for the accused, especially when they are also MPs or politicians of PH parties, in the interest of justice should only ask for DNAA - not acquittal. Judges do not have to follow what the DPP or the lawyer asks - he makes his own decision but I do hope that decides to order a DNAA.

We recall the case of National Feedlot Corporation Sdn Bhd (NFCorp) executive chairman Datuk Seri Dr Mohamad Salleh Ismail was today acquitted of two charges of criminal breach of trust (CBT) involving RM49.7 million. There the DPP Syed Faisal told the court that Attorney-General Tan Sri Mohamed Apandi Ali had consented to give Salleh a discharge not amounting to an acquittal following a letter of representation sent to the Attorney-General’s Chambers in September. Shafee, the lawyer, '...said his client should be freed because of special circumstances of the case, and that an acquittal should be given since the trial had started...'. The judge then acquitted - and not DISCHARGE.

The problem is that even if new evidence was found, strengthening the case today, almost impossible to charge again for the same offence. Not sure whether the prosecution appealed against that acquittal order. WAS JUSTICE DONE? - see COWGATE, National Feedlot Corporation, Sharizat (UMNO Wanita Chief), Mohd Salleh CBT charges dropped?

The only way forward to ensure justice is done, is for a DNAA order now - they go free just like an acquittal, but if later other evidence emerge, there is still the possibility of charging any of them for the same or similar offences.

Nobody wants the decision to be seen as 'politically influenced' as amongst the accused are Pakatan Harapan Assembly persons and members of a PH political party?

The real big concern is WHY did the AG(Public Prosecutor) charge them in the first place. Prosecution really must ensure that there is sufficient evidence to convince a Judge to convict before charging anyone. If not do not charge yet, investigate more and get enough evidence first...How many others are now undergoing trial..

If prosecution and police do not do their work properly, and simply charge people - this will lead to great INJUSTICE ...Note in one of the death in custody case, several police officers were charged...but they were all acquitted..The court, amongst others had this to say..

Apa yang jelas adalah selepas Simati ditangkap semula, tiada keterangan dikemukakan apa seterusnya telah berlaku kepada Simati memandangkan SP41 dan SP45 menyatakan lokap D9 adalah kosong pada waktu itu. Pada masa yang sama, SP17 mengesahkan Tertuduh 1 tidak berada di pejabat D9 di antara jam 11.00 pagi hingga jam 5.00 petang pada hari kejadian. Begitu juga dengan Tertuduh 3 dan 4 tidak kelihatan di pejabat D9 pada masa yang sama. Tertuduh-Tertuduh telah pergi mejalankan siasatan di luar pejabat, iaitu, ke IPK Negeri Sembilan dan juga ke Hospital Universiti Kebangsaan Malaysia (HUKM) Cheras untuk menemubual saksi SP21.
In short, the prosecution had failed to find and produce sufficient evidence - There is a serious need to improve investigation and prosecution in Malaysia - see that judgment in Dhamendran - Death in Custody > Criminal Prosecution Against 4 police fails - Judgments of High Court & Court of Appeal

Then we have those famous cases, where prosecution failed to call material witnesses -  Kasitah Gaddam & Eric Chia - Prosecution's failure to call witnesses - Was it just incompetence OR....?

Charge, try and they get acquitted - That will protect the wrongdoers, even when further evidence emerges later.

Maybe, the new Public Prosecutor should look again at the Cowgate case...

Back to the LTTE related cases, now SOSMA has still got to be repealed...and some of these sections under which they have been charged need to reviewed and then amended(or repealed).

It was a sad day when Siti Noor Aishah Atam for possession of books, not even banned in Malaysia, was convicted and sentenced to 5 years imprisonment from the date of arrest. She was arrested, so I believe, on 22/3/2016, and that means about 1 year and 7 months of her prison sentence have been served. 

“Bahawa kamu pada 22 Mac 2016 jam lebih kurang 12.25 tengahari di sebuah rumah dialamat Lot 1241, Jalan Lapangan Terbang Sura, dalam Daerah Dungun, dalam Negeri Terengganu, telah memiliki 12 buah buku yang merupakan item yang berunsur perbuatan keganasan dan berkaitan dengan Kumpulan Pengganas iaitu Kumpulan Pengganas Jemaah Islamiah (JI), Islamic State(IS) dan Al Qaeda(AQ) sepertimana di Lampiran A dan dengan itu kamu telah melakukan satu kesalahan dibawah Seksyen 130JB(1)(a) Kanun Keseksaan dan boleh dihukum dibawah peruntukan yang sama.
Siti Noor Aishah Atam, I believe should be PARDONED and released immediately

See relevant posts:-

Siti Noor Aishah Atam - Release her, and Repeal section 130JB Penal Code?

KLSCAH CRC makes it 37 groups calling for the release of Siti Noor Aishah Atam and all victims of Detention Without Trial laws? 

Flawed Section 130JB Penal Code must not be used pending repeal Release Siti Noor Aishah Atam in prison for possession of unbanned books? (15 Groups)

Terrorist - Mufti also asks who Malaysia say they are..? HAMAS? PLO? IRA? - Siti Noor Aishah Hatam?


See also earlier relevant post:- 

Ensure sufficiency of evidence before charging anyone - AG discontinues cases of 12 charged with LTTE related crimes

AG' Tommy Thomas's FULL Statement when he discontinued proceedings - Read first to follow the discussion?







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