Javier Edgardo Silva, 42, was in tears when the chairman of the three-member bench, Hanipah Farikullah, announced that his appeal against conviction and sentence was being allowed.
Hanipah said the bench found there was merit on the issue of failure to strictly follow Section 180 (3) of the Criminal Procedure Code (CPC).
That provision states that the court must call upon the accused to enter his defence if it finds that a prima facie case had been made on the offence charged.
“The judicial commissioner (JC) had misdirected himself by reviewing his own findings at the end of the prosecution’s case,” said Hanipah, who sat with M Gunalan and Hashim Hamzah.
Hanipah said the JC was not vested with such powers under the law.
“The decision of the High Court is set aside and the appellant is acquitted,” she said.
Silva was charged with trafficking 2.8kg of cocaine at the Kuala Lumpur International Airport (KLIA) at about 6pm on June 5, 2017.
Today, his counsel, Abdul Rashid Ismail, submitted that the JC had ordered Silva to enter his defence on March 22, 2019 on the double presumption of the accused being in possession and trafficking of the drugs.
He said Silva told the court that he opted to give evidence when the defence started its case later.
The Federal Court, in a landmark ruling on April 4, held trial judges could not use the double presumption in trafficking cases when an accused is ordered to enter his defence.
Rashid said the JC, on April 23, asked the defence and the prosecution to make further submission despite the apex court’s ruling.
On May 28, the JC changed his findings that Silva was presumed to be in possession and transported the drugs, as defined under Section 2 of the Dangerous Drugs Act.
“The JC seriously misdirected himself as he could not review his ruling as that is in breach of the provision,” said Rashid, who was assisted by Siti Nurani Zahidi.
On Sept 27, after hearing the defence, the JC found Silva guilty and sentenced him to death.
Deputy public prosecutor Mohd Dusuki Mokhtar submitted that the JC could use his inherent powers to review his earlier ruling.
“He did not cause any prejudice to the appellant (Silva) in conducting the review,” said Dusuki, who was assisted by Nurul Farhana Khalid.