Monday, August 20, 2007

Death Row prisoner files appeal (NST)

Death Row prisoner files appeal
By : V. Anbalagan

A Death Row prisoner demands the court hears his appeal or lets him walk.
He has been languishing and forgotten in jail for too long — nine years and three months. Baha Jambol, 45, says he had also written 11 appeal letters seeking the grounds of judgment. He claims that this delay is prejudicial against him and a miscarriage of justice.

PUTRAJAYA: The absence of a written judgment for nine years has prompted a Death Row prisoner to file an application to the Court of Appeal to be freed.

In his application, Baha Jambol, 45, who is in solitary confinement at the Pengakalan Chepa prison in Kelantan, said that the trial judge failed to provide the written grounds of judgment despite repeated reminders.

In the alternative, Baha wants the court to go through the notes of proceedings in the appeal record and set aside the death sentence.

Baha, a former fish and vegetable vendor at the Pasir Mas market, filed the action through his lawyers at the court registry yesterday afternoon.
There is no record of a condemned person urging an appellate court to allow his appeal by way of notice of motion.

Baha, who named the public prosecutor as respondent, also filed a certificate of urgency for the Court of Appeal to expeditiously hear the case.

He said the incarceration in prison for nine years and three months pending appeal had caused him prejudice and miscarriage of justice.

Baha, before his conviction, was remanded for two years in prison, bringing the total number of years behind bars to 11.

He said the appellate court should allow his appeal on grounds that there had been serious denial of due process and there had been an inordinate and unexplained delay by the trial judge, Tengku Baharuddin Shah Tengku Mahmud.

Tengku Baharuddin is now a judge in the Court of Appeal.

Baha, together with Azman Ahmad, was charged with trafficking in about 50kg of ganja in front of the Gua Musang police station on Dec 31, 1996.

On April 26, 1998, Tengku Baharuddin, who was then posted to the High Court in Kota Baru, found him guilty of the offence and sentenced him to death.

Azman was acquitted without his defence being called.

Baha had filed the notice of appeal against the conviction and sentence with the assistance of prison authorities the day after his sentencing.

A letter was written to the registrar of the High Court on May 29, 1998, requesting that the record of appeal be supplied, but there was no response. Since then, 10 letters, the last one on April 4, were sent to the Court of Appeal, which fixed the appeal date on June 18.

However, the appeal was taken off the list and the written grounds were still not made available.

Karpal Singh, who represents Baha, affirmed an affidavit on behalf of Baha.

He said under the Court of Appeal Rules 1994, a trial judge was required to supply the grounds to be included in the record of appeal as soon as "practicable".

Record of appeal consist of notes of proceedings, written judgment and exhibits.

He said in criminal appeals, an appellate court cannot hear a case without written grounds .

Karpal said the failure to provide the grounds after a long time amounted to a serious denial of due process of law which required immediate appellate court interference.

"The inordinate and unexplained long delay in delivering the grounds of judgment has occasioned a miscarriage of justice as the appellant (Baha) has been languishing on Death Row for more than nine years awaiting hearing of his appeal."

He said the principle of fair trial should be applied even more rigorously where the excessive delay was not caused by the prosecution but the court itself.

Karpal said the long delay in providing the grounds would have prejudiced Baha because the trial judge’s assessment of witnesses would have been blurred.

"The delay would have increased the chances of omission on the part of the trial judge to deal with material facts and issues which ought to have been favourable to the appellant," he said.

In the alternative, he urged the Court of Appeal to go through the notes of proceedings and rule that the trial judge was wrong in finding Baha guilty because he was a driver of the car where the drugs were found while the owner of the vehicle, Azman, was freed.

He said the prosecution had failed to prove actual trafficking of the drug.

On Aug 16, the New Straits Times highlighted the plight of two persons, convicted and sentenced to death, who were languishing on Death Row for five years because another trial judge did not provide the written grounds.

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