Better to let 10 guilty men go free

In 2009, two police commandos; Azilah Hadri and Sirul Azhar Umar were convicted by the High Court of the murder of Altantuya Shaaribuu. Last week, the Court of Appeal, in a unanimous decision by a three-man panel, Datuk Seri Mohamed Apandi Ali, Datuk Linton Albert and Datuk Tengku Maimun Tuan Mat, overturned the conviction of the two accused and freed them and in doing so sent shockwaves that reverberated throughout the country. 

Understandably, people are shocked and outraged. The decision was met with derision, criticism and ridicule. Conspiracy theories mushroomed, as people tried to make sense of the Court of Appeal’s decision. Who killed Altantuya? they asked, since all those who were charged with her murder have now been freed?

Several reasons were put forth by the Court of Appeal as grounds for its decision. Amongst others, it found that the High Court judge had erred by not taking into account several important issues such as the alibi and telephone logs of one of the accused. It also found that there were also inconsistencies in the testimonies of the prosecution witness leading to the discovery of the crime scene. 

According to the Court of Appeal, the High Court judge also did not make a finding on how the two accused could come into possession of the explosives used in the murder, since the type of explosives used were not found in the police armoury. Most importantly, the Court of Appeal held that the failure of the prosecution to call a material witness was essential. This material witness, the Court of Appeal held, should have been called to unfold the narrative which the prosecution's case was based on. 

Thus, the culmulative effect of these doubts raised by the counsel for the accused rendered the convictions ‘unsafe’. A conviction would be ‘safe’ if it is established that the two accused were guilty of the murder beyond reasonable doubt. 

Remember the basic principles of the criminal justice system. A person is innocent until he or she is proven guilty. There is a presumption of innocence that may be rebutted by evidence in a criminal trial. A person should not be incarcerated until the charge is proven against him or her. The accused must also be allowed to defend himself or herself from the charge. The burden of proof is on the prosecution, to collect and present enough compelling evidence to convince the Court that the accused is guilty.  The prosecution must do so by showing that there is no reasonable doubt that he or she did it. If even one reasonable doubt is raised, then the accused should be acquitted. 

By overturning the decision, the Court of Appeal is not saying that no one killed Altantuya. It is not even saying that the two accused did not kill the victim. What the Court of Appeal is saying is that the evidence presented at trial is not enough to prove, beyond reasonable doubt, that the two accused are guilty. Thus, because there is not enough to prove, the decision of the High Court judge to convict the two is wrong and should be overturned. 

It is not easy to prove a criminal charge against a person. This is how it should be. 

If a person is convicted, his or her liberties would be taken away. Sometimes, as in the Altantuya case, a guilty verdict would result in death. In order to justify these state-sanctioned violations of liberties, it must adequately be established that the person is guilty of the offence in question. 

The prosecution would have the entire machinery of the State at its disposal to investigate and prepare the case against the accused. The accused would not have such tools at his or her disposal. To balance this out, these principles of the criminal justice system were established. 

The English jurist, William Blackstone, expressed what is now known as the ‘Blackstone formulation’ for criminal law . According to the formulation, the criminal justice system must always err on the side of innocence, even if it means that with this current system guilty men would also escape punishment. 

We may believe that the two accused are guilty. We may think that with the evidence we have seen, it is very likely that two did commit the murder. We may also feel that in this case, justice has not been delivered for the victim. 

But at the same time, we can never be completely sure. The truth is out there and even if there is a small chance that they were innocent of the crime, then the benefit of doubt should go to the accused. Remember the Blackstone formulation - "It is better that 10 guilty persons escape than that one innocent suffer".

There is nothing wrong with criticising or disagreeing with the decision. But let us criticise the decision if the decision is indeed wrong. Not because we did not get the decision that we wanted.

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