PUTRAJAYA – A 66-year-old American today escaped the gallows over the death of his ex-wife in a hotel almost five years ago after the Federal Court substituted his murder conviction to one of culpable homicide not amounting to murder.
The three-member Federal Court bench led by Chief Justice Tun Tengku Maimun Tuan Mat allowed United States 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 Datuk Seri Mohd Zawawi Salleh and Datuk Harmindar Singh Dhaliwal, however, sentenced Mickelson to seven years’ jail from the date of his arrest on November 26, 2016, after substituting the charge of murder to one of culpable homicide under Section 304(b) of the Penal Code.
One of Mickelson’s lawyers, Grace S. Nathan, said after looking at all the evidence, the court found that there was no intention on the part of the appellant to commit murder.
She said following today’s decision, Mickelson will be released in a few weeks’ time, taking into account the 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 November 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 and that he had killed her.
In today’s appeal hearing, Mickelson’s lead counsel, Datuk N. Sivananthan, argued that Mickelson had absolutely no intention to inflict fatal injury on the deceased.
“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 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 of 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. – Bernama, July 14, 2021
