Musa Aman – Only DNAA should have been granted

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Musa Aman - Photo: Wikipedia

Malaysians Against Death Penalty and Torture (Madpet) is appalled to hear that the former Sabah Chief Minister, Musa Aman, has been acquitted and not given a discharge not amounting to an acquittal (DNAA) of all 46 criminal charges against him involving corruption and money laundering relating to timbers concessions, all of which involving a total of about RM400m.

High Court judge Muhammad Jamil Hussin acquitted him after Deputy Public Prosecutor Azhar Abdul Hamid told the court that the prosecution intended to withdraw all the charges during case management here (The Star, 9 June 2020).

An acquittal means that Musa cannot again be charged for the same offence, even if new evidence surfaces later proving he was guilty beyond reasonable doubt. That is the reason, why in a criminal trial, it is unwise to acquit and usually only a DNAA is given.

Once acquitted, cannot ever be charged for the same offence even if strong evidence emerges

Article 7(2) of the Federal Constitution states:

(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.

Section 302(1) of the Criminal Procedure Code states:

A person who has been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 166 or for which he might have been convicted under section 167.

Whilst the public prosecutor does have the power to discontinue proceedings in a criminal trial, this will justly follow with the granting of a DNAA, which means that the accused may or may not be charged again at a later date.

If later there emerges new evidence, sufficient in the mind of the prosecution for them to succeed in proving the charges beyond reasonable doubt, the prosecution does have the ability to charge again the person who had received a DNAA. This is not the case if a person had previously been acquitted for the same offence.

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Justice demands the maintenance of this right and ability for the prosecution to charge again, if need be, in the future – for no one wants the prosecution to be denied this choice anymore. This will mean criminals can escape justice.

An acquittal, on the other hand, means that the alleged perpetrator can never again be charged for the same offence, even if very strong evidence emerges later proving that he or she is most likely guilty. This is absurd.

If discontinued mid-stream, before end of trial, only DNAA not acquittal

Thus, justly, in most criminal cases, if they are discontinued midway, the courts ought only order a DNAA – never an acquittal.

An acquittal is usually granted after the prosecution has closed its case, or at the end of the trial after the judge had the full opportunity to consider all evidence submitted during the trial. In this Musa Aman case, the trial is yet to even begin with the calling of the first witness.

It must be pointed out that even if an application to strike out the charge in a criminal trial is successful, the court should never grant an acquittal. Such applications usually are based on technicalities, not really on evidence as to guilt or innocence.

In the Musa Aman case now, the trial has yet to even begin, and we are still at the stage of case management. The judge has yet to hear or receive any evidence from any witness, and as such the acquittal for not just one but all 46 different charges is simply wrong.

So, the judge’s decision to acquit at this stage, without even having the opportunity of considering all the available evidence that would have been submitted through witnesses during the trial is flawed. How can any judge decide to acquit without first hearing all the evidence, from witnesses and/or otherwise?

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Only judge can acquit – not public prosecutor

It must be pointed out that all that the attorney general (or public prosecutor) can do is to discontinue proceedings, and not acquit anyone.

Article 145(3) of the Federal Constitution provides:

(3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.

The attorney general (also the public prosecutor) clearly has no power to acquit anyone – hence keeping anyone safe from the possibility of being charged again for the same offence in the future.

Section 254(1) of the Criminal Procedure Code states:

(1) At any stage of any trial, before the delivery of judgment, the Public Prosecutor may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the charge and thereupon all proceedings on the charge against the accused shall be stayed and the accused shall be discharged of and from the same.

Section 254(3) clarifies:

(3) Such discharge shall not amount to an acquittal unless the Court so directs.

Hence, it is only the judge who can order an acquittal, and as such Madpet is of the opinion that High Court judge Muhammad Jamil Hussin erred in his decision to acquit Musa Aman, and the prosecution, rightly and justly, should immediately appeal this decision to the Court of Appeal.

Judge erred, and prosecution must appeal

The failure of the prosecution to appeal would negatively impact the public perception of the administration of criminal justice in Malaysia. More so, when this case involves a politician, who is now seen to be aligned with the government of the day, who was charged when the Pakatan Harapan government ruled.

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People may now question the independence of the public prosecutor and/or prosecution. One may wonder whether their actions are determined by the government of the day or some other wrong reasons, when they really ought to act independently in upholding the cause of justice, even if means having to charge and try a sitting prime minister or minister.

Like judges, the public prosecutor and prosecutors must not just be independent but must also be seen to be independent.

The crimes alleged are very serious crimes concerning corruption and money laundering involving a former chief minister, allegedly done whilst he was in power. Public interest demands justice be done.

A DNAA, after all, puts the accused in the same position as any ordinary person, in that he can at any time be charged for any offence, if he breaks the law. There seems to be no justification for an outright acquittal in this case.

If Musa Aman believes that the prosecution had wrongly charged him, he can also always commence a civil suit and claim damages. The prosecution must, after all, never charge anyone without first acquiring sufficient evidence, which they believe is sufficient to convince the court beyond reasonable doubt that the person accused is guilty. To do otherwise, would be wrong and may even be an abuse of power.

Justly no one ought to be acquitted before the end of a fair trial, let alone before even the trial has commenced. A DNAA should be the only thing granted before the completion of a trial, if and when the prosecution elects to discontinue proceedings.

The prosecution must appeal, and hopefully the Court of Appeal will remedy the error and grant Musa Aman a DNAA.

The option for Musa Aman “to be tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him” must always justly be there.

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)

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