KUALA LUMPUR: The acquittal by a lower court of a sales manager charged with causing the death of a policeman and seriously injuring another while driving under the influence of alcohol has been allowed to stand.
This came after the Court of Appeal today dismissed the prosecution’s application for an extension of time to file its notice of appeal against a High Court’s ruling exonerating the accused, N Mohan Rao.
In a majority decision, Justice M Gunalan, who led a three-member bench, said there were no cogent reasons put forward to justify the exercise of the court’s discretion in the prosecution’s favour.
He said a “breakdown in communication” and an “oversight” on the part of prosecutors were “manifestly insufficient reasons” to justify the request for extension of time.
“This court, when exercising its discretion, must do it judiciously and sparingly for such applications, especially when it comes to criminal matters,” said Gunalan.
Justice SM Komathy concurred.
Justice Ahmad Zaidi Ibrahim, who dissented, said the reasons given were acceptable as the delay was only five days.
“Moreover, the application would not have prejudiced the respondent (Mohan),” Zaidi said, adding that the appeal should be heard as there were also serious questions of law to be determined by the court.
Earlier, deputy public prosecutor Norzilati Izhani Zainal told the bench that the notice of appeal should have been filed by June 14.
“We admit there was a delay, but we filed (an application for) an extension of time to appeal against the High Court ruling on June 19,” she said.
Norzilati said the DPP who conducted the case had overlooked the matter, though he had briefed his superior.
Counsel Rajan Navaratnam, appearing for Mohan, said Rule 58 of the Court of Appeal Rules 1994 makes it mandatory for an applicant to file the notice of appeal within 14 days of a decision.
On May 31, Justice Noorin Badaruddin set aside a four-year jail sentence and a RM15,000 fine imposed on Mohan, 49, by magistrate Puteri Nursheila Rahimi on March 25 last year.
Allowing the appeal, Noorin said the magistrate had erred by failing to evaluate and analyse the entire evidence put forth by the defence. She also said the prosecution had not proven the mens rea (criminal intent) element relating to the accused’s mental state.
She added that the magistrate should also have taken into account other factors such as the nature and condition of the road where the fatal accident happened.
The magistrates’ court had earlier found Mohan guilty after ruling that the defence had failed to raise a reasonable doubt to the prosecution’s case.
Puteri also ordered Mohan’s driving licence to be suspended for five years and for the details of his conviction to be endorsed on the driving licence.
Mohan was charged with driving his Toyota Vios while under the influence of alcohol into another car that was being checked by several policemen, including Zamiri Sinsian, 25 and Osman Ibrahim, 23.
The accident, which happened at Jalan Semantan heading towards the city at 3.30am on Dec 5, 2018, caused Zamiri’s death while Osman suffered traumatic brain injuries.