Phone records, jewellery sealed their fate

Former police special action force personnel Azilah Hadri's phone records and Sirul Azhar Umar's inability to explain the presence of Altantuya Shaariibuu's jewellery in a jacket at his house led to their conviction and death sentence.

This morning, the Federal Court's five-member bench chaired by Chief Justice Arifin Zakaria unanimously found the pair guilty and allowed the prosecution's appeal to set aside the acquittal at the Court of Appeal.

Federal Court judge Suriyadi Halim Omar, who wrote the majority judgment, said the court is also satisfied that the prosecution had proven the common intention element.

"The discovery of the location of the scene of crime and certain items owned by the deceased came about because of the information obtained from the respondents (Azilah and Sirul).

"With Azilah's call logs establishing that he had made the calls from the scene of the crime, his defence of alibi was unsustainable. By no account could he have been at Bukit Aman or Wangsa Maju at the material time," said the judge.

"The statements made by Sirul did not carry much weight either not because it was unsworn but because his story was inconsistent...

“With the discovery of the deceased’s belongings eg blood-stained slipper in his car, the deceased’s jewellery found in his house, let alone his car was detected at the Kota Damansara (toll) plaza enroute to Puncak Alam totally discredited his unsworn statement that his involvement ended outside Abdul Razak Baginda's house," the judge added.

The jewellery found were a pair of earrings, a Larmens brand wristwatch, and a gold ring.

Justice Suriyadi said there was an abundance of evidence adduced by the prosecution.

Azilah in his alibi stated that he was in Bukit Aman as showed in the police station diary and later had dinner with his then girlfriend in Wangsa Maju.

However she was not called by Azilah's defence.

Time, space and opportunity

Justice Suriyadi said Azilah and Sirul were together in the latter’s car and they eventually ended up at Puncak Alam.

This provided them with the time, space and opportunity to formulate the criminal act.

In his judgment he said while the Court of Appeal faulted the trial judge (Justice Mohd Zaki Yasin) for not addressing his mind on the police station diary which states Azilah was in Bukit Aman, the entry merely showed that he collected a Glock (pistol) at 10.18pm there.

“However, we are unable to agree with the Court of Appeal's decision that the station diary is admissable per se.

“The investigating officer had testified that the station diary was true. But he was not the maker of the entry. Only the maker could confirm the truth of the entry and unless proven by the maker, the contents of the station diary remains hearsay.

"With only a notice of alibi and an unproven station diary to fall back, as opposed to the prosecution's watertight case, it was no surprise that a prima facie case was established,” he said.

The Federal Court judge said police had seized Azilah's mobile phone. Based on the call logs, Azilah made a phone call from Kampung Melayu (Subang) and two other calls at Puncak Alam at about 10.43pm and 11.16pm.

“It is common knowledge that Pekan Subang and Kampung Melayu are close to Puncak Alam, and quite a distance from Bukit Aman (Azilah's alibi).

"What was obvious too is that none of the calls made by Azilah were detected from Wangsa Maju or Bukit Aman, which are very far away from Puncak Alam, the scene of the murder.

“In short the respondents could not have been anywhere else except at those places as indicated by the call-logs, that is Puncak Alam.

“The assertion by Azilah that he was at Bukit Aman to collect the Glock and then leaving Bukit Aman for Putrajaya at 10.20pm was without any corroboration.

"With the call logs being admissable, and making short shrift of the unproved station diary, the alibi defence is no better than a mere denial of the murder accusation,” he said.

The Federal Court was also satisfied that the police did not know the exact location of the crime scene, had it not been pointed out by the two.

“Sirul's conduct of leading the police to the same scene of crime at Puncak Alam separately and independently, merely strengthened the prosecution's case against the two.

"Here the two had independently led the police to the crime scene which is a remote and isolated place and high-up in the hills.

“By logical deduction, they must have been there earlier in order to successfully and unerringly pinpoint the location of the scene of the crime, with Sirul's car as the mode of transport.

"All the evidence point to the respondents (Azilah and Sirul) not only having gone up the hills of Puncak Alam at one point of time, but had gone up in Sirul's car.”

There is abundance of evidence adduced by the prosecution, Justice Suriyadi said and in perusing the evidence the court can safely conclude the respondents had failed to cast a reasonable doubt.

“The Court of Appeal's order is thereby set aside. The order of conviction and the mandatory death sentence against the two by the High Court are restored and affirmed,” he said.

On the non-calling of then Deputy Prime Minister Najib Abdul Razak's former aide de camp, DSP Musa Safri (left), Justice Suriyadi said there is no serious dispute that the exchange between Musa and Abdul Razak Baginda was over an exchange of text messages.

“We also observed Musa never instructed Azilah on how to assist Abdul Razak but merely was told to meet up, with him and Azilah had acted on his own discretion and sensibilities.

“We therefore conclude that the non-calling of DSP Musa or the non-tendering of all the text messages had not in any way caused unfairness to the respondents.

"We fail to see how the presumption of adverse inference under Section 114 (g) of the Evidence Act 1950, could be applicable here,” he said.

The appellate court in acquitting Azilah and Sirul, had ruled the non-calling of DSP Musa was fatal for the prosecution’s case.