By Hafiz Yatim | The Edge Malaysia
Lawyers of two accused, who had been found guilty of murdering Deputy Public Prosecutor (DPP) Datuk Anthony Kevin Morais, told the Court of Appeal on Thursday that there is no evidence to suggest that their clients were involved in his death.
At best, the evidence only points to an offence of kidnapping or hiding evidence, they argued.
Amer Hamzah Arshad, who appeared for S. Nimalan, said the conviction of his client for murder by High Court judge Datuk Azman Abdullah — who has since been elevated to the appellate court — was unsafe, as his client’s role in the case was only to show where the barrel containing Kevin’s body was disposed of, in a swamp in Subang Jaya.
He argued that his client did not know the content of the barrel, but was merely showing the place where it was dumped.
Hence, Amer Hamzah said the High Court cannot infer that Nimalan was involved in the murder, as it could not be determined how the DPP died, despite the cause of death being identified as asphyxiation.
“The pathologist ruled that Kevin died before his body was placed in the barrel containing cement, as there were no signs of struggle.
“She (the pathologist) also found that the haematoma and contusion marks on the body did not cause Kevin’s death,” he added.
Amer Hamzah added that hence, the trial judge was misconceived to think that his client was involved in the murder, as it was not determined how Kevin actually died.
“It was incumbent for the prosecution to prove Nimalan and others had committed acts that contributed or led Kevin to suffer from asphyxia. The alleged act by the accused must be identified and proven to show a conviction is sustainable,” he added.
The pathologist, he said, only presumed from testimony that the discovery of Kevin’s body inside the cemented barrel resulted in the DPP’s death, and this wrongly implicated his client, as the element of murder under section 300 had not been proven.
“At best, my client can only be faced with section 365 (for kidnapping) or 201 (hiding of evidence) under the Penal Code. It is truly unsafe to convict Nimalan of murder merely by his act of showing where the barrel was,” he added.
Amer Hamzah in the last session also suggested that a charge of murder under section 302 of the Penal Code had not been proven, and the court may consider an offence under culpable homicide not amounting to murder.
‘No common intention proven’
Senior lawyer Kitson Foong, who appeared for money changer S. Ravi Chandran, also agreed that there was no common intention proven by the prosecution that his client was involved in the murder.
He added that through the testimony of G. Gunasekaran, the 54th prosecution witness, who was initially charged with the others for murder, Ravi Chandran would at the most be charged under section 365 for kidnapping.
“Ravi Chandran and Gunasekaran had at one point discussed a plan to abduct Kevin for purposes of collecting debts. We say the prosecution had not manage to prove the common intention to the allegation of committing murder,” Foong added.
The trial judge, he said, alluded towards an offence of kidnapping in his judgement and not murder.
Both of them were submitting in the appeal of Nimalan and Ravi Chandran, where the two were among the six convicted of murdering Kevin.
Gunasekaran was initially charged with murder, but pleaded guilty to an offence of disposing of evidence, and had served a two-year jail sentence. He testified after serving the sentence.
The others found guilty of murdering Ken and ordered to face the death sentence were Col (Rtd) Dr. R. Kunaseegaran, 57, R. Dinishvaran, 31, and unemployed individuals AK Thinesh Kumar, 30, and M. Vishwanath, 30.
Amer Hamzah also pointed out that the court should also treat Gunasekaran’s evidence with caution, as he had been freed from the murder offence despite being everywhere in the scene, adding that he may have testified in his interests of implicating others.
The hearing of the appeal before a three-member bench led by Datuk Hadhariah Syed Ismail, Datuk Ahmad Zaidi Ibrahim, and Datuk Azmi Arifin is set to continue on Dec 14, with counsel Afifudin Afifi submitting on Vishwanath’s appeal, and the prosecution, led by DPP Datuk Mohd Dusuki, replying.