Sunday, November 14, 2021

Not all murder accused deserve to be hanged, Federal Court tells trial judges(FMT)

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Not all murder accused deserve to be hanged, Federal Court tells trial judges

The Federal Court has reminded trial judges that they must take into account the five exceptions in the Penal Code when deciding on their verdict in murder cases.

PUTRAJAYA: The Federal Court has advised High Court judges hearing murder cases to see if the accused really deserve the death sentence.

Justice Harmindar Singh Dhaliwal said since there is a myriad of factors that can lead a person to commit murder, it is good practice for a judge to satisfy himself if the facts and evidence adduced fall within any of the exceptions listed in Section 300 of the Penal Code.

The five exceptions are provocation, exceeding the right of private defence, public servant exceeding his powers, a sudden fight and consent.

The court has the discretion to reduce the murder charge to culpable homicide not amounting to murder and the accused could instead face a jail term of up to 30 years.

Harmindar said Malaysia practises the adversarial system where two parties in a criminal case would represent their clients.

Harmindar Singh Dhaliwal.

“Even if there is no submission by the accused on this issue (exceptions to murder), it remains the duty of the court to ensure its decision is correct on the facts and the evidence is sustainable in law,” he said.

If it is deemed necessary and appropriate, he said, the court can insist on further submissions on any troubling issue.

“It will be salutary to remember, and we remind ourselves as well, that the twin principles of presumption of innocence and the right to a fair trial are part of our criminal justice system,” he said.

Harmindar made these remarks in a 60-page judgment on why the Federal Court had in July reduced the murder charge faced by an American, Gerald Wayne Mickelson, over the death of his former wife at a hotel room in Kuala Lumpur five years ago.

Chief Justice Tengku Maimun Tuan Mat, Mohd Zawawi Salleh and Harmindar substituted the capital punishment with a seven-year jail sentence.

Mickelson, 66, was convicted by the High Court in September 2018 in the murder of Guilda Mickelson, 61. The Court of Appeal affirmed the conviction.

Harmindar said that in this case, there was more than sufficient evidence of a sudden fight between Mickelson and Guilda.

He said there was no evidence of premeditation or pre-existing malice by Mickelson against his former wife.

“The death of the deceased was caused by the appellant (Mickelson) in the heat of passion,” he said.

He said although it was determined that Mickelson had applied excessive force leading to the death, it could not be said that he had acted in a cruel or unusual manner.

“The fight was started by the deceased and during the sudden fight, no weapons were used,” he said, adding that Mickelson was entitled to the benefit of exception 4 (sudden fight) under Section 300.

Medical evidence revealed Guilda had died of “fatal compression of the neck”, he said.

The facts of the case also revealed that the couple were married in 1982 until their divorce in 2011. However, she remained with Mickelson as she was dependent on him for her needs.

She had even followed him to Malaysia in 2013. - FMT, 10/11/2021

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