Look, Ma! No Mens Rea!

Establishing Motive

By Hakim Joe

Malaysian Today. Saturday, 11 April 2009 16:44

One of the general orthodox principles in criminal law is intent. However, in criminal jurisprudence, motive is only paramount to the investigation of the case before trial as the relevance of a defendant's intentions to his or her criminal liability cannot exculpate someone who has committed a criminal act.

However, motive and intent are part and parcel of the same felony as both are construed to be referring to whether the individual plans to commit an act that is defined as a crime. The conventional opinion is that motive and intent is inconsequential after a crime has been committed. It does not matter what the reasons are for someone to commit a crime but that he or she is culpable of that particular offence.

Yet motive is critical in establishing blameworthiness. For example, the Law states that it is a crime to kill another human being. What if the defendant killed in self-defense? Will the defendant suffer the same consequences as someone who kills for money, revenge, fun or on orders from a superior? Justice will therefore not be served if motive is disregarded completely.

In the case of the Altantuya murder, the prosecution has proven beyond a doubt that the two defendants were guilty as charged. It would have taken a shorter court time to prosecute if their cautioned statements were admissible but what about motive thence? The two defendants did not possess any motive or intent to commit murder. Yes, monetary rewards were spoken of here but as Corporal Sirul Azhar Umar's statement remained inadmissible, the requirement to investigate who was offering this "reward" becomes insignificant to the court. The prosecution is therefore only concerned about proving guilt.

Someone has been killed and the perpetrators will be punished accordingly. It is besides the point that the two defendants belong to a civil enforcement agency or that they could have been formally ordered to terminate the victim. Owing to the fact that this case involved a lot of high profile people, the news is being carried by quite a few international media. While it can be said that justice has now been served with the death sentences, a few pertinent questions remain unanswered.

Both defendants did not know the victim when she first arrived in this country. They were both ordered to "assist" RB in this case, which was when they first encountered the victim. The person doing the ordering must have a motive here as no official police report was lodged by RB. Did this person, who happens to be the ADC to the PM (DPM during the time of murder), know the victim beforehand? Negative, as it was established from RB that he only seeked assistance from the ADC when he could no longer stand the victim's harassment anymore. Did this ADC therefore voluntarily decide to help his friend by ordering the two defendants to look into the case or was he impelled to doing so by some higher authority? That was never established, as the ADC was never summoned to appear in court. It was therefore never questioned during the trial who was offering the reward, if any, for services rendered.

What about the expunging of the victim's immigration records to show that she has never legally entered this country? Police officers do not have the capability or authority to perform this action but yet it was accomplished accordingly. We are now talking about two distinct branches of the civil service being involved – the police and the immigration department, and this plot to commit murder and to cover the tracks later could only have been completed by someone possessing the authority to involve both the two mentioned civil services.

Why an investigation into this conspiracy was never initiated only causes to reinforce this fact. Additionally, why the ADC was never called up in court points to the fact that the AG's chambers is also involved and that makes three different civil services, not two, that are implicated in this plan to suppress the motive from ever being revealed. Without an official investigation into the motive, the real murderer remains anonymous.

Moreover, why did the court deem Corporal Sirul's cautioned statement inadmissible? Such a written statement can only be rejected by the court in order to protect the defendants and since there was no indication of it being illegally obtained by force, why then the decision to make it inadmissible?

As Corporal Sirul has later admitted in court that the victim's jewellery were kept "at his house after he has murdered her", it would point out that his cautioned statement is legally admissible under Section 27 of the Evidence Act. However, even the defendant's admittance to committing the crime was expunged from court records as the Judge deemed it prejudicial to the defendant.

What we have here are no longer three civil services but four that is abetting in this conspiracy to end this case here without the requirement to reinitiate another investigation. Without establishing motive, the sentencing of the two accused becomes the reason for closing this file permanently.

Who are these people seen to be protecting then? Well, RB was never that important a figure to have involved four civil services coming to his aid even though he was eventually acquitted. That is a fact.

Unless the two accused did the crime on their own volition without incentive or orders from any third party, it can be adduced that they were acting as professional killers and this can be demonstrated by the fact that Corporal Sirul's cautioned statement indicated a monetary payment after the job is satisfactorily completed.

If that was the rationale and the basis for assumption, then who was the one doing the hiring and why was it so important that the victim needed to be disposed of in the manner that it happened?