PRESENT POINT POWER

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Latest UPDATE: Day 15 Trial - July 09 2007

5 grounds to reject 'confession'

R. Surenthira Kumar and Maria J. Dass, from SUN
SHAH ALAM (July 9, 2007): The lawyer defending murder accused Cpl Sirul Azhar Umar today gave five reasons why the court should not admit his client's "confession" that was made to his superior as evidence in the Altantuya Shaariibuu murder case. Kamarul Hisham Kamaruddin told trial judge Datuk Mohd Zaki Md Yasin the burden was on the prosecution to prove that the "confession" by Sirul Azhar was made voluntarily. He was referring to the "confession" that Sirul Azhar's superior, ACP Mastor Mohd Ariff, said was made to him while they were on the flight back from Bangkok to Kuala Lumpur. In a trial-within-a-trial to determine the voluntariness of the "confession" and its admissibility, Sirul Azhar had denied he said anything to Mastor.

Kamarul Hisham (BELOW) submitted the five grounds by citing previous cases and authorities to support his argument.

The five grounds are:
* The prosecution has not proved that the alleged confession was made voluntarily;
* Sirul Azhar was not cautioned on his rights under Section 113 of the Criminal Procedure Code;
* It is unclear whether Sirul Azhar was under arrest when he was taken into Mastor's custody ("confession" not made before magistrate or judge);
* Statement supposedly made by Sirul Azhar was involuntary; and
* Sirul Azhar did not read, correct or sign any statement he allegedly made to Mastor, who had assumed the role of investigating officer, when he attempted to extract information on the murder.

Kamarul Hisham said the prosecution had failed to call two material witnesses, Sgt Jelima Tasiran and Cpl Zamri Abu Bakar, the two UTK personnel who accompanied Mastor to Islamabad to bring back Sirul Azhar. He said Jelima and Zamri, having been with Sirul Azhar, must give evidence to negate the fact they may have exercised duress on Sirul Azhar.
"The prosecution cannot reserve to call witnesses and decide to call later, for this does not discharge its burden of proof," said Kamarul Hisham.

He said the court must look into the entire transaction, from the time Sirul Azhar is picked up from his hotel room in Islamabad until he is taken to the Kuala Lumpur police contingent headquarters, to negate oppressive circumstances, not just the particular time the statement was made.
Kamarul Hisham said Mastor had gone to Islamabad with information and with that in his mind, he had formed an intention to compel Sirul Azhar to follow his instructions, to extract a confession from him. He said there was already effective arrest when Sirul Azhar was escorted by Mastor and the two UTK personnel, and seated between two UTK personnel and asked to carry a backpack to prevent him from escaping. Kamarul Hisham said Mastor did not handcuff Sirul Azhar but he said he would arrest Sirul Azhar if he tried to escape.
He said Mastor sat beside Sirul Azhar and asked him a question with a view to extracting a confession, and at the point of making that statement, Sirul Azhar submitted himself to custody and the confession became inadmissible. "The moment he opened his mouth to tell anything incriminating to Mastor, he was already in custody. That confession to Mastor is not admissible by virtue of Section 26 of the Evidence Act," said Kamarul Hisham. As for involuntariness, he said there are three categories involved - inducement, threat, and promise - but his team will only show suspicious surrounding circumstances when the statement was recorded. He said if confession is made under oppressive circumstances, it overrides the categories of inducement, threat and promise.
"It is our argument that the second accused was in a distraught state, under severe anxiety and mental strain, when Mastor asked him repeatedly for an answer," said Kamarul Hisham.

He said he believes the prosecution will raise the question of Sirul Azhar's credibility, but the defence had pointed out that he is a person who is easily confused and is not a calculative witness. He added that Mastor's testimony about what he observed of Sirul Azhar's state of mind was never challenged at all. "We ask that, based on the five grounds, the alleged confession by the second accused be held inadmissible as evidence," said Kamarul.

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'It was voluntarily and not made under threat'

SHAH ALAM (July 9, 2007): DPP Tun Abdul Majid Tun Hamzah submitted today there was no inducement for Cpl Sirul Azhar Umar to make a confession, and that it was done voluntarily. He said when Sirul Azhar's superior, ACP Mastor Mohd Ariff, 45, said that all was out and that there was nothing to hide, he did not mean to say "make a confession". However, two to three minutes after he asked him, Sirul Azhar made a statement to Mastor. "Mastor told the defence that if Sirul Azhar had not responded, he would have continued asking but this did not happen because he made the statement to Mastor two to three minutes after," said Tun Abdul Majid. He also noted that Mastor was not cross-examined on whether he induced, threatened or promised Sirul Azhar anything if he made a confession.
On why the prosecution did not call Sgt Jelima Dasira and Kpl Zamri Abu Bakar, the two Special Action Unit (UTK) officials who accompanied Mastor to Pakistan to bring Sirul Azhar back, Tun Abdul Majid said it was immaterial to the trial to call them as they were merely escorts. "Mastor was also never challenged on the method he used to extract a statement from Sirul Azhar and if it involved threat, inducement or promises," he said.

He said Sirul Azhar's credibility should also be questioned.
He said the accused had contradicted himself when he said Mastor had spoken to him in a normal tone and later changed his statement to say that Mastor had spoken to him in a commanding voice.
The accused also said he did not believe the story by Mastor that he was being taken back to Malaysia to clear the police's name following a police report lodged against him by his ex-wife, he said. "Sirul Azhar then admitted that he felt at that time that there was a bigger reason and when asked, he said berkenaan kes ini-lah (it's about this case)," said Tun Abdul Majid. Sirul Azhar told the judge he thought the bigger reason which caused him to be anxious may have been something like death involving his ex-wife. "The credibility of the witness should be questioned here because in my opinion Sirul Azhar knew the truth and knew he could not run away from it," he said.

"Sirul Azhar was caught in a compromising situation when he was told the real reason for him being brought home and he could not run away. He had no choice but to respond," he said. In wrapping up his submission, Tun Abdul Majid said: "The prosecution has discharged its burden of proving the confession was voluntary and not made under threat, violence or oppression and we ask the court that the confession by Sirul Azhar be allowed."

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Sirul already in custody, says lawyer

SHAH ALAM (July 9, 2007): Lawyer Wong Kian Kheong, representing Abdul Razak Baginda, said the information obtained outside Malaysia can be used as evidence. He said under the Aviation Offences Act, a Malaysian aircraft is considered to be Malaysian territory. Sirul Azhar, when he was being brought back here, had boarded a MAS Airbus 330 to fly from Islamabad to Kuala Lumpur via Lahore and Bangkok. As for the arrest, Wong said when Sirul Azhar agreed to return here from Pakistan, the police had taken him into custody, through the words used by them and their actions. On the question of Sirul Azhar's credibility, Wong said the court ought not to admit the confession if a reasonable doubt has been created.

"As for inducement, personnel with the rank of corporal was asked by his superior who had uttered several words before an answer was given. If that is not an inducement, what else?" said Wong.
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What happened today (Day 15)

* Justice Datuk Mohd Zaki Md Yasin heard submissions on the trial-within-a-trial to determine admissibility of murder accused Cpl Sirul Azhar Umar's "confession" to his superior officer ACP Mastor Mohd Ariff.
* Sirul Azhar's counsel, Kamarul Hisham Kamaruddin, submitted on five grounds. He took up most of the morning.
* Abdul Razak Baginda's lawyer ,Wong Kian Kheong, followed suit before the lunch break.
* DPP Tun Abdul Majid Tun Hamzah made his submission after lunch.
* Justice Datuk Mohd Zaki Md Yasin (BELOW)to decide at 2pm today.

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Question: Is second accused Cpl Sirul Azhar's alleged "confession" that he killed a Mongolian woman admissible?
Answers:
NO
Defence counsel Kamarul Hisham Kamaruddin
* The prosecution has not proved that the alleged confession was made voluntarily.
* Sirul Azhar was not cautioned on his rights under Section 113 of the Criminal Procedure Code
* It is unclear whether he was under arrest when he was taken into ACP Mastor Mohd Ariff's custody; "confession" not made before magistrate or judge.
* Statement supposedly made by him was involuntary.
* He did not read, correct or sign any statement he allegedly made to Mastor, who had assumed the role of investigating officer, when he tried to extract information on the murder.

YES
DPP Tun Abdul Majid Tun Hamzah
* Sirul Azhar's credibility is questionable, as he had contradicted himself on several points.
* There was no need to call the two other Special Action Unit (UTK) officers who were with Mastor when he brought Sirul Azhar back from Pakistan to testify because they were merely escorting the accused.
* The confession made by Sirul Azhar was voluntary and not under inducement, threat or promises.
* Sirul Azhar had confessed to Mastor as his superior and not as an investigating officer.

Decision:
Justice Datuk Mohd Zaki Md Yasin will give his decision at 2pm tomorrow.

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What happened today (Day 15)
* Justice Datuk Mohd Zaki Md Yasin heard submissions on the trial-within-a-trial to determine admissibility of murder accused Cpl Sirul Azhar Umar's "confession" to his superior officer ACP Mastor Mohd Ariff.
* Sirul Azhar's counsel, Kamarul Hisham Kamaruddin, submitted on five grounds. He took up most of the morning.
* Abdul Razak Baginda's lawyer ,Wong Kian Kheong, followed suit before the lunch break.
* DPP Tun Abdul Majid Tun Hamzah made his submission after lunch.

* Justice Datuk Mohd Zaki Md Yasin to decide at 2pm today.

Question: Is second accused Cpl Sirul Azhar's alleged "confession" that he killed a Mongolian woman admissible?

Answers:

NO
Defence counsel Kamarul Hisham Kamaruddin

* The prosecution has not proved that the alleged confession was made voluntarily.
* Sirul Azhar was not cautioned on his rights under Section 113 of the Criminal Procedure Code
* It is unclear whether he was under arrest when he was taken into ACP Mastor Mohd Ariff's custody; "confession" not made before magistrate or judge.
* Statement supposedly made by him was involuntary.
* He did not read, correct or sign any statement he allegedly made to Mastor, who had assumed the role of investigating officer, when he tried to extract information on the murder.

Decision:

July 09, 2007 19:10 PM
Sirul Azhar Confused When He Allegedly Made His Confession, Court Told

SHAH ALAM, July 9 (Bernama) -- Corporal Sirul Azhar Umar was described in the High Court here today as a robot, in a state of confusion and emotionally oppressed, when he made the alleged confession to his superior on his involvement in the murder of Mongolian Altantuya Shaariibuu. His counsel, Kamarul Hisham Kamaruddin, submitted that Sirul Azhar was not the average reasonable man and could not even understand three questions which were put to him "in one string together". He said the court should not admit the confession as evidence as Sirul Azhar, who is from the Special Action Force, did not give it of his own free will to the squad's deputy commander, ACP Mastor Mohamed Ariff, during their flight from Bangkok to Kuala Lumpur on Nov 6 last year.

Kamarul Hisham said the confession was given involuntarily and was taken under oppressive manner as Sirul Azhar was in a distraught state, under severe anxiety and mental strain in the airplane on his journey back to Kuala Lumpur. This was because Mastor in his testimony had implied that Sirul Azhar must tell him the truth and that he (Mastor) would question him until he got an answer, he said. Kamarul Hisham was submitting at the end of a trial-within-a-trial to establish whether Sirul Azhar's confession to Mastor was given voluntarily.

= = == = = the Judge will decide tomorrow om the admissibility of the confession by Sirul