Tuesday, December 18, 2007

AG no evidence who threw the bricks

Abdul Gani Patail openly admit that the attempted murder charges against the 31 accused is faulty.

The prosecution could not and are not able to determine who actually threw the brick that caused grievous bodily harm (GBH) on a police officer.

Policeman Dedi Abd Rani was hit on the head by a brick during an illegal assembly in Batu Caves on Nov 25. The protesters were lock-in the compound of the temple and were fired with water cannon and tear gas.

In Criminal Law, the prosecution must provide evidence, beyond any reasonable doubt that each of the 31 or any of them was the person who had acted to cause the GBH, and at the time when the accused acted, he had malicious intention to cause grievous bodily harm or to kill the officer. That's what the judge would require from the prosecution, i.e Actus Reus and Mens Rea.

For Actus Reus, the prosecution must prove that, the act was unlawful and caused GBH; the act was voluntary; the act was factual and intended to cause GBH or death (factual means the prosecution must determine beyond reasonable doubt who was the actual person that throw the brick that caused GBH to the police officer); that the act was a substantial and operative cause of GBH; and the chain of causation was not broken by any intervening events.

In short, The prosecution has to prove: the act was dangerous; the act caused the injury; the act was directed at the victim, and that the dangerous act was factual.

If the prosecution is able to prove all the elements of Actus Reus (ie, all of them), then they had to further proved that the required mens rea are present, which are: that the accused had the malicious intend to inflict GBH or death, and that the accused could foresee that his act would result in some physical harm (recklessness is insufficient for attempted murder).

The prosecution need to establish that the accused either had the intention to cause some harm.

If prosecution can prove beyond reasonable doubt of both actus reus and mens rea, the accused will still have the defence of: self-defense, mistake of fact (it can unreasonable), intoxication, insanity and necessity.

In R v Dyos [1979], D (defendant) and V (victim) were involved in a fight at a community centre, in the course of which D struck V on the head with a brick. V died nine days later, and the pathologist found two substantial head wounds (one caused by D, the other of unknown origin), one or both of which was the cause of death, but from either of which V might have recovered. Cautley J withdrew the murder charge from the jury saying the Crown Prosecution had failed to prove beyond reasonable doubt that D's act was the cause of death.

In AG v Edward Joseph and A. Sanderasegan Judge Lim Yee Lan said the prosecution had not made out a prima facie case against both accused. Judge Lim said she agreed with the defence that it would be wrong to conclusively identify the first accused as the person who assaulted the victim which caused his death. She also said the identification of the second accused by the victim's wife five months after the murder was of "poor quality".

G. Edward Joseph, 49, and A. Sanderasegan, 48, were jointly charged with murdering entrepreneur Lim Moon Lin, 35 . The offence was allegedly committed near the office of T.S. Lau Holdings Sdn Bhd, Kuchai Entrepreneur Park, off Jalan Kuchai Lama, Kuala Lumpur, on Jan 27, 2002.

Both of them are bodyguards of a prominent businessman. The High Court acquitted them without calling for their defence. Here, someone died of murder, and no one was held responsible because the prosecution failed to adduce factual evidence, that is, which one of the two bodyguards killed the victim, or both did. Also, it took the police 5 months to identify the 2nd accused.

Observing the facts of the case, and the various videos and photographic proof, the prosecution had a "Mission Impossible" to indict and convict these 31 accused. In fact, if the case goes to court, the defence lawyers may be given the opportunity to produce factual evidence by photo and videos of the brutal and inhuman acts of the police. The protesters in Batu Caves were first forced by the police into the compound of the temple and the gate of the temple were then locked. That's false imprisonment in itself. Thereon, the police shoot water cannons and tear gas into the compound with an intention to cause panic, fear of harm and injuries to the people within the compound which also consists of many innocent people who were within the temple compound doing their regular prayers. By this, the people can in fact sue the police for causing GBH and psychiatric injuries.

I rest my case! It was afterall, echoing Gani, the "Fairest thing to do". After so much suffering, it remains fair!?! fair?

Quote from Abdul Gani Patail:

"I can be very strict, but I don't think this is the right time to be," he said.
"When we exercise the law, we have to look at it fairly.
It is my judgment that this is the fairest thing to do.

"We can't pinpoint who exactly did it or rather who was the one who 'threw the brick' at the person who was badly injured."


Anonymous said...


i say live to fight another day.

Anonymous said...

When something done purposely and knowing in advance it is vague, it is a nuisance!!

With an accusation that could lead to the indication of planned with attempt of murder of police by Hindus, it could mislead the public the impression of Hindus being violence. It is seditious, or at least instigation, isn't it?

Knowing law and distorting law, a kind of double crossing the law, isn't it?

A high official in safeguarding Justice trying to manipulate Justice, abuse of Rights and to put grievance to the People, is selling his own dignity, breach of Duty and an intention of malicious prosecution, isn't it?

Should the whole exercise be considered as scandalous, frivolous or vexatious?

An AG abusing the process of the court?

Should the Judge impose a punitive charge against the AG?

A tragedy to the Public by group of Public Servants!!

Maverick, can you kindly put the respective legal terms onto each of the possible breach or violation of law of MR AG?

When AG trying to fancy with his manipulation of Legal terms and power on the Public, I hope an academician can help the Public to understanding how nonsense it is, also in legal terms? Will you?

Anonymous said...

Power comes from the barrel of the gun : Mao Ze Dong

They have the guns so they call the shots. It is as simple as that. Even you engaged a counsel with the brilliance of Lords Denning and Diplock combined it is not going to help.

Anonymous said...

in the first place, he knows he cant pinpoint! why throw the attempted murder charges and denied them bail? so that, the whole shit show about the goodness of BIG EAR can be played out?

Anonymous said...

"When a stupid man is doing something he is ashamed of, he always declares that it is his duty."

-George Bernard Shaw

Maverick SM said...


For as long as the justice system is not the third branch of the democratic system,and the judiciary is under the control of the executive, then we live in fear and suppression.

Maverick SM said...


It's ironical that the AG takes instruction from the PM. The attorney-general is suppose to carry out his duty in accordance with the law and act without fear or favor in discharging his duties. But we hear the facts that he takes the PM's instruction.

Maverick SM said...


Great quote; but Pm is not stupid; we are!!!

Anonymous said...

remind me chua jui meng during team A and team B war in coalition 2nd largest party (maybe nanyang case, forgotten liao). chua jui meng in a press conference waved some paper said team A cannot do something, and when team A and team B friend each other again, chua said oh the paper thing can be easily dealt with.

what a good sandiwara...

Maverick SM said...


That's good memory; I've forgotten about that!!! Give us the full story!

Anonymous said...

"Maverick, can you kindly put the respective legal terms onto each of the possible breach or violation of law of MR AG?"

This is the most important part of the post!!

Maverick SM said...


AG is my good friend; cannot lah. In this blog he don't know mah; so can talk little lah.

Anonymous said...

And they say there is no oppression of Indian race? Why deny bail for so many days? AG and police are new branch of organized C from UMN. They specialized in legalized intimidation and terrorism on the rakyat. Enforcement? Law and Order? Don't think its in their SOP.