PUTRAJAYA: An Argentinian man escaped the gallows after the Court of Appeal here set aside his conviction and death sentence for trafficking 2.8kg of cocaine four years ago.

A three-member panel led by Justice Datuk Hanipah Farikullah on Friday (Dec 17) ordered Javier Edgardo Silva, 42, to be acquitted after finding the conviction was due to a misdirection by the trial judge and there was merit in the appeal.

Justice Hanipah, in her judgment, said the court was in agreement with the contention of Silva’s counsel in that based on Section 180(3) of the Criminal Procedure Code, the Judicial Commissioner (JC) had misdirected himself by reviewing the prima facie findings at the end of the prosecution’s case during the defence stage.

“The learned Judicial Commissioner is not vested with such power under the law when he had already made his decision that there was a prima facie case.

“Therefore, the decision by the (Shah Alam) High Court is set aside and the appellant is acquitted of this charge,” said Justice Hanipah, who sat with Justices Datuk M. Gunalan and Datuk Hashim Hamzah.

Silva had appealed against the decision of the Shah Alam High Court sentencing him to death on Sept 27, 2019 after he was found guilty of the charge of trafficking the drug at the Baggage Reclaim Area, Level 3, International Arrival Hall, Kuala Lumpur International Airport (KLIA) Main Building in Sepang, about 6 pm on June 5, 2017.

Earlier, Silva’s counsel, Abdul Rashid Ismail, submitted that the JC had on March 22, 2019 ordered Silva to enter his defence, based on the double presumption and the JC’s invoked presumption of possession and trafficking.

“The Federal Court in a landmark ruling on April 4, 2019 held that the trial judge could not use the double presumption in trafficking cases when an accused is ordered to enter defence.

“The JC had on April 23, 2019, asked the defence and prosecution to make further submissions following the apex court’s ruling despite having cautioned him. On May 28, the JC changed his findings that the appellant was presumed to be in possession and transported the drug as defined under Section 2 of the Dangerous Drugs Act,” he said.

The lawyer said the JC had seriously misdirected himself as he could not review his ruling as that was in breach of the provision.

Deputy Public Prosecutor Datuk Mohd Dusuki Mokhtar submitted that the JC could use his inherent powers to review his earlier ruling.

“He did not cause any prejudice to the appellant in conducting the review,” said Mohd Dusuki. – Bernama



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