The three-member bench, led by Chief Justice Tengku Maimun Tuan Mat, allowed US citizen Gerald Wayne Mickelson’s appeal to set aside his conviction for murdering Guilda Mickelson and the death sentence imposed on him by the High Court.
The court, which also comprised Federal Court judges Mohd Zawawi Salleh and Harmindar Singh Dhaliwal, however, sentenced Mickelson to seven years’ jail from the date of his arrest on Nov 26, 2016 after substituting the charge of murder with one of culpable homicide under Section 304 (b) of the Penal Code.
When contacted, one of Mickelson’s lawyers, Grace S Nathan, said that after looking at all the evidence available, the court found that there was no intention on the part of the appellant (Mickelson) to commit murder.
She said that following today’s decision, Mickelson would be released in a few weeks’ time, taking into account a one-third sentence reduction.
Mickelson was convicted by the High Court in September 2018 for murdering his 61-year-old ex-wife, also a US citizen, in a hotel room at Lingkaran Syed Putra, Brickfields, between 5am and 11am on Nov 26, 2016. He lost his appeal at the Court of Appeal.
In the High Court, a prosecution witness testified that the hotel received a call through the hotel intercom from the room from a male caller asking for police to be sent to his suite because there was “trouble”.
A duty officer and a security officer went up to the room and the guest, who was later identified as the appellant, told the hotel staff that his ex-wife had died. Mickelson told the staff that he had killed her.
In today’s appeal hearing, Mickelson’s lead counsel N Sivananthan argued that Mickelson had absolutely no intention of inflicting fatal injury on his wife.
“The appellant (Mickelson) had been married to the deceased for 30 years and continued to care for her for another five years after their divorce, adding that one does not spend 35 years caring for and protecting someone only to turn around one day and decide to harm them, much less kill them,” he said.
Sivananthan said the sudden argument was started by the deceased when Mickelson tried to leave the hotel room on the morning of the incident.
“The appellant did not inflict more harm than was necessary against the deceased. The harm inflicted was accidental and necessary to prevent her from strangling him,” he said.
He said Mickelson should be entitled to a full acquittal as he had shown on a balance of probabilities that he was rightfully and lawfully exercising his right to private defence.
Alternatively, Sivananthan submitted that the charge should be for culpable homicide without intention under Section 304 (b) of the Penal Code as the death was a result of a sudden and unpremeditated fight.
In mitigation for a minimal jail sentence, Grace submitted that justice should be tempered with mercy considering Mickelson’s advanced age and the injuries sustained by the deceased were not cruel or unusual.
Deputy public prosecutors Mohd Fairuz Johari and Mohd Zain Ibrahim appeared for the prosecution.