Written by: Averroes
(1.0) Mona Fandey, the Witch
(1.1) Court of Appeal Facts
In the Court of Appeal case of Juraimi bin Husin v Public Prosecutor [1998] 1 MLJ 537, it was an appeal from the Temerloh High Court before a judge and jury which lasted 69 days. There were viral spread of public media in the printing and media industry. In this case, it was mentioned that the jury trial had been repealed under the Criminal Procedure Code (CPC).
On the wee hours of 2nd of July 1993, Dato Idros or aka, Dato' Mazlan, was a member of the Legislative Assembly of Pahang. His whereabouts raised many brows, when he vanished. A police report was lodged for his disappearance, and a a police investigation was conducted.
His entire body was decapacitated into 18 pieces and recovered from the house in Ulu Dong, which the three accused occupied. It was found buried in the premises. They were then subsequently arrested and jointly charged for murdering Dato' Mazlan as under section 302 of the Penal Code (PC).
The three accused were, Juraimi Husin, Mohd Affandi and Maznah (or Mona Fandey). The lawyers representing them were, the late En. Karpal Singh for Juraimi and En Gulam Mustaffa for both Affandi and Mona Fandey.
According to Exhibit P223, which is an evidence used throughout the entire proceeding, it contains the vivid narration of how the deceased met his demise. It described that Juraimi attacked Dato Mazlan, while was lying flat on his back. He admitted to swinging the axe and hacked his neck three times until it was severed.
He later then cut up the body into 18 parts, buried the remains in a hole in the ground that he dug and prepared. He admitted that he did all of this under the instruction of Affandi and in the presence of Mona Fandey. What Juraimi said in Exhibit P223 was a confession under section 17 of the Evidence Act 1950( EA).
(1.2) What happened next?
These were all circumstantial evidence to point that Mona Fandey and Affandi were accomplices to the murder. Even if they did not commit the act of murder with the axe, but they had common intention and instructed Juraimi to do so. Therefore, instructing or planning is also considered as murder.
Before the murder, on the 2nd of July 1993, Dato Mazlan withdrew RM300,000 from his banks. He was last seen in his car with Affandi heading towards the house in Ulu Dong. Around 3am on 3rd of July 1993, Affandi and one person checked in at Plaza Hotel at Kuala Lumpur.
They checked out of the hotel on 4th July, and checked at a different hotel which is the Park Royal Hotel. They left his car in the basement of the car park back in Plaza Hotel. This was suggested to evade and cool down the act of murder from detection of the authorities.
Between 3rd to 18th July 1993, Affandi and Mona went on a shopping spree with more than RM200,000 spent. RM160,000 was spent on the morning of 3rd July 1993. The payments were made in RM1000 notes, which are the same denomination from Dato Mazlan's withdrawal.
Affandi and Mona were in financial straits (difficult situation) before 3rd July, it was suspicious how they can be rich in a night. The Dato' shoes were found in Juraimi's room without any explanation.
Both of them defended that that they sold Dato Mazlan a walking stick, songkok and talisman, which were alleged to possess magical powers amounting to RM2,000,000. They also said that they earlier received RM500,000 from Dato Mazlan, probably as deposit. Hence, the money they spent was not from the murder, but before the fateful event.
In that case, why did they not spend the money before his death, but after?
Also, the accused had Dato Mazlan's identity card or NRIC in their possession. They gave it to one witness on 9th July 1993 to sell of his car. They were also in possession of his watch, to be given to her brother on 5th July.
They rode on a limousine to travel back to their home in Ulu Dong, bought a land on their house to develop a resort. They even discussed with a potential buyer to sell of Dato Mazlan's car which he lost during a gaming as well as claimed that he had borrowed money from them and that he wanted to repay them by selling the car.
When the buyer met the murderers at Room 2005 of Park Royal Hotel on 9th July, they told him that he was ashamed because of his gaming addiction. These were false, since the Dato was already dead. For the crime scene, since the hole was already dug, there was high tendency that the murder was delicately planned.
It became apparent that murder took place, when the Dato' Mazlan's cousin paid a visit to the Ulu Dong house, but Juraimi denied where he had been. He then told the truth that he hid an exe and burnt Dato Mazlan's sarong and trousers. From all of this, it puzzled together an irresistible conclusion that the three accused committed the murder and it was all premeditated.
It was very suspicious and obvious that they were involved, how can broke celebrities suddenly become rich and were at all time closely associated with a DUN member. All of the three accused finally confessed to their heinous acts.
(1.3) Interrogation of Juraimi and Mona Fandey
The first accused was then arrested on 13th July 1993. On the 22nd July 1993, ASP Mahpop was with Juraimi during interrogation. Juraimi said "mayat ada ditanam dalam stor belakang rumah dan saya boleh menunjukkan kepada encik".
Juraimi also brought the ASP to the place of incident, and said "Di sini saya tanamkan kepala". He also pointed as to where Dato' Mazlan's pistol were hidden.
For Mona Fandey, she was arrested on 20th July 1993 and a statement of caution was recorded from her by DSP Takbir Ahmad. There, he was escorted by Lance Corporal Noraini Yaakob and Mona Fandey wished to meet the DSP. Two meetings took place. The female policewoman was with Mona.
According to the prosecution, Mona wanted to tell the DSP of the events that caused Dato' Mazlan's death and insisted to tell him. He administered her the cautioned statement under section 113 of CPC. She then recited the events leading to the death of Dato Mazlan. The DSP did not reduce what she said into writing.
During the second meeting, the DSP told her about the cautioned statement again and recorded her details. After recording, he asked Mona to sign her statement and that Mona gave her statement which is Exhibit P228 on her own free volition.
(2.0) Legal Evaluation
(2.1) First Accused (Juraimi)
The first accused tendered the following grounds to say that he should be acquitted from the murder. These would include matters such as;
(i) Jury not given an opportunity to consider the weight to be given to the statement made by the first accused. The Exhibit 223 was not adduced during the voir dire and not repeated before the jury.
(ii) A misdirection of the standard of proof at close of prosecution's case, whereby En. Karpal Singh submitted that learned judge's direction contrary to section 214 of the CPC, where the burden was higher than required by law, which misled the jury.
(iii) Wrongful admission of discovery statements of first accused as under section 27 of EA. This was because, the information given by Juraimi to the ASP were all inadmissible as it was produced when he was subjected to improper and illegitimate perssure and was involuntary.
(iv) First accused's statement were wrongly admitted in evidence, as his statements were involuntary and the evidence in voir dire not produced before the jury
(v) Misdirection on section 304 of the PC, as the learned judge did not told the jury of the issue of culpable homicide.
(vi) Misdirection on defence of insanity, because Juraimi was supposed to be ordered to be sent to the General Hospital, Kuantan for observation for his alleged insanity. However, nothing was said about during the trial, hence trial concluded.
It was contrary to sections 342 and 343 of the CPC. It was argued that he was unaware of his actions, under the influence of a spell and was in a zombie-like trance. It was only after being arrested, when Affandi touched his shoulder, he realised his actions.
(vii) Non-direction on prejudicial aspects of the case, as the jury was moved by the blood and gore from the photographs of the decapitated body. Since the judge did not remind the jury not to be affected by the photographs.
The court then went on to answer each of the grounds stated above and held that;
(i) The court did not apply the decision in Yaacob v PP [1966] 1 MLJ 67 as this case was different from that. Actually, the accused is able to call all the witnesses who gave evidence in trial within the trial. There was no miscarriage of justice.
(ii) There was no prejudice resulting from the alleged misdirection of standard of proof. By requiring the higher standard, the prejudice, it was visited upon the prosecution team, not the accused.
(iii) There was no wrongful admission, as it was too late to argue that he was extorted, or given threat or duress as it was the duty of the counsel to have objected.
(iv) Section 113 of the CPC similar to section 24 of the Evidence Act 1950 (EA) provides for the admission of statements in evidence. The court upheld the trial court that inside the voir dire trial (trial within a trial to determine admissibility), after hearing all the evidence, the first accused gave the statement voluntarily without any threat, promise or inducement and free mind.
(v) It depends on whether the jury ought to have known the possibility of an alternate verdict under section 304 of PC. However, the judge was not bound to direct the jury to that, if the evidence is weak to suggest otherwise. This was because, there was no evidence to suggest to the exceptions under section 300 of the PC.
(vi) There was no material before the judge to determine the soundness of mind of Juraimi. The lawyer for Juraimi should have pursued and argue on this point, but because of his silence, the judge was entitled to assume that he did not want to argue more.
Moreover, because of the answers given by Juraimi under the cross-examination and the contents of the cautioned statement under Exhibit 223, it is illogical to say that he was insane, because how was he able to confess and explain everything if he was under a zombie spell?
(vii) It was not prejudicial, because with the photographs it helped to show that the crime was committed and deliberately to facilitate the burial which the jury may look into.
(2.2) Second and Third accused (Mona and Affandi)
Lawyer Gulam Mustaffa representing Affandi and Mona Fandey also used the same grounds as Juraimi, but with additional grounds on the following;
(i) Insanity Point whereby, if Juraimi was insane, then the other accused would have been as well as under section 84 of the PC.
(ii) There was an issue on the admissibility and weight of Mona Fandey's cautioned statement. This was because, when she told the DSP about the chronology of events, she thought that it was only social in nature and had nothing to do Dato' Mazlan's death. The DSP merely told her to sign blank pieces of paper.
It was that in the Exhibit P228, it was the imagination of the DSP only. Moreover, the officer who recorded her statement was closely associated with the investigation of the crime scene that Mona was charged.
(iii) There was a misdirection under section 30 of the EA that a confession would cause others to mean the same confession.
(iv) Section 34 of the PC was misconstrued in this case for common intention. It was when a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if the act were done by him alone. (see Mahbub Shah v King Emperor (1945) 72 IA 148 at 153).
(v) On the issue of circumstantial evidence, the learned judge to did not inform the jury of the nature of circumstantial evidence. Secondly, the circumstantial evidence was of no quality that no reasonable jury would be direct to have convicted the accused upon its strength.
(vi) Mona's lawyer argued that the learned judge did not adequately direct the jury on the weight ought to be given to the statement.
(vii) There were issues of miscarriage of justice, for not complying with the Yaacob case, in a criminal appeal, where errors in evidence or procedure, for court to consider which may affect the reasonable doubt mind, based on admissible evidence on the record. If not, then the conviction maintains.
The court then went on to answer the abovementioned additional grounds as such;
(i) Court found that the argument of insanity was blatant falsehood, as they were all conscious and not under a spell or zombie-like condition when, Juraimi attacked Dato Mazlan as the other two watched.
(ii) Court found that it would be impossible for the DSP to fabricate Mona's statements. Exhibit P228 contains vivid accounts of what ked to the commission of the crime. It was very detailed as to how Dato Mazlan died and it amounted to confession under section 17(2) of the EA.
Even if there are matters which are irrelevant under Exhibit P228, but they are facts of similar evidence necessary to establish their case. The prejudicial statements are to be kept away from the jury. Moreover, it is not required to inform the jury of the evidence in the voir dire as the rule in Yaacob was not followed.
(iii) Court discovered that, there were circumstances of section 30 of EA being fulfilled, as they all had common intention.
(iv) Court disagreed that there was no common intention. In fact, the common intention may be proven through circumstantial evidence.
(v) The judge gave exceptional care to explain what is circumstantial evidence to the jury. There was also sufficient admissible evidence before the jury that would have established the offence.
(vii) Although, the judge told the jury that the statement of Mona from dock was unsworn, they were bound to consider and decide if it raised reasonable doubts in their minds.
(vii) Finally, despite not following the Yaacob case and a possible substantial miscarriage of justice, as under section 60 of the Courts of Judicature Act 1965, read with tandem with section 167 of the EA, court found that there was no miscarriage of justice.
Even if the evidence in voir dire were repeated before a jury, it made no difference to the weight attached to his confession.
(3.0) Conclusion
To conclude, according to surah An-Nisa', verse 48;
"Surely, Allah does not forgive that a partner is ascribed to Him, and He forgives anything short of that for whomsoever He wills. Whoever ascribes a partner to Allah commits a terrible sin."
In life, there are no easy shortcuts to become successful and to amass a large fortune. Everything in life requires effort and a strong will. If we work hard and smart enough, we will reach what we so desire in life.
(4.0) References;
https://muftiwp.gov.my/en/artikel/al-afkar/3064-al-afkar-40-jenis-jenis-syirik
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