KUALA LUMPUR – The Singapore Court of Appeal attributed its decision to uphold the execution of Malaysian Nagaenthran Dharmalingam, 34, due to the lack of evidence on his alleged mental instability as well as his lawyers’ “abuse of court process”.
In the judgement delivered late last month, the appellate court presided by Chief Justice Sundaresh Menon, Andrew Phang, Judith Prakash, Belinda Ang and Chao Hick Tin labelled several legal challenges filed by Nagaenthran’s lawyers as a “blatant and egregious abuse of court process” with the aim of delaying the sentence.
It noted that Nagaenthran’s lawyer, M Ravi, had filed two simultaneous applications in two different courts last November.
One was a judicial review application to the Singapore High Court to challenge Nagaenthran’s execution, while the other was a criminal motion at the Court of Appeal for Nagaenthran to be assessed by an independent panel of psychiatrists.
According to the judgement, the appellate court could not understand this as both applications were essentially the same.
After the judicial review application was dismissed at the high court, Ravi had filed an appeal at the Court of Appeal the very same day, the judgement noted.
“It is not clear, nor has it been explained, why it was necessary for the appellant to bring a separate action by way of criminal motion,” the judgement by the Singapore Court of Appeal read.
The five-man panel also referred to an affidavit by Ravi and Nagaenthran’s brother Navinkumar Dharmalingam, noting discrepancies with regard to its filings.
Initially, the court was presented with an affidavit by Ravi and attached to it was another affidavit by Navinkumar testifying that Nagaenthran’s mental condition was deteriorating in prison.
However, while Ravi’s affidavit was affirmed on November 8, Navinkumar’s affidavit was not affirmed. Ravi had in fact told the court that Navinkumar was not able to affirm the affidavit in time, the ruling said.
But later the same day, an affidavit affirmed by Navinkumar on November 5 was filed in court.
“It may in the circumstances be the case that Navinkumar’s evidence was deliberately withheld for the purpose of deploying it in support of a further application, namely the criminal motion, in anticipation of the judicial review application being dismissed.
“It also appears to be the case that Ravi had misrepresented the position in his affidavit dated November 8 when he said that Navinkumar had not been able to affirm his affidavit because of the urgency of matters.”
Affidavits, when presented to a court, must be affirmed – statements made in the affidavit must be sworn by the individual making those assertions along with the seal or signature of a judge, notary public or commissioner of oaths.
Court questioned Ravi’s filing of expert reports by two psychiatrists
It asked why these documents were not initially presented to the high court during the judicial review application.
According to one of the expert reports, the psychiatrist made it clear that the opinion was prepared on short notice, the court noted.
“The respondent has asserted that in these circumstances, the only inference that can be drawn is that the appellant and his counsel deliberately chose to withhold the evidence they had on hand because they intended to drip-feed the applications and the evidence, in order to prevent the conclusion of the matter in any way they could,” the judgement reads.
Also, the Court of Appeal made reference to conduct by both of Nagaenthran’s lawyers – Ravi and L F Violet Netto – in court.
It was pointed out in the judgement that during a hearing on March 1 this year, Netto was 15 minutes late to court with Ravi, who at the time was not allowed to practise law.
Netto sought the court’s permission for Ravi to sit at the lawyer’s table to provide technical support, which she explained was for him to hand documents to her.
However, the judgement said, Ravi barely handed Netto documents. In fact, Ravi appeared to be providing advice or instructions to her, the court said.
“Nearly every submission made by Netto and just about every answer she gave in response to questions from the court over the course of the hour-long hearing was preceded by an often extended, hushed discussion with Ravi.
“This was embarrassing, since Ravi was not permitted to act as a solicitor at this time but appeared to be giving instructions to Netto; it was also disrespectful to the court for such conduct to be carried on in our sight,” the Court of Appeal said.
Poor evidence to support notion Nagenthran was deteriorating mentally
The contention raised by Nagaenthran and his lawyers at the Court of Appeal was that at present, his mental faculties experienced deterioration.
However, to support this assertion, Ravi swore in an affidavit as to Nagaenthran’s mental condition, despite acknowledging he is not an expert on the matter.
Further, the judgement noted that in the past three years, Ravi had only met Nagaenthran once for less than 30 minutes.
“Ravi, as the appellant’s counsel, cannot be said to be a disinterested party and by reason of his engagement as counsel, should not even have been putting himself forward as a material witness,” the judgement read.
Also, the prosecution did intend to submit a report of Nagaenthran’s psychiatric assessment done last year, proving he suffered no abnormalities.
However, the court said that Nagaenthran’s lawyers objected to the admission of that evidence, citing medical confidentiality.
The Court of Appeal said the psychiatric assessment could have probative value to the judiciary in determining Nagaenthran’s mental condition.
“With respect, having called his medical condition into question, we cannot see how the appellant can at the same time, in good faith, prevent access to evidence that pertains to the very condition in question,” the Court of Appeal said.
Meanwhile, with regards to the expert reports by two psychiatrists that Ravi intended to furnish as evidence, the judgement noted that both doctors have not examined or spoken to Nagaenthran or seen his medical records.
In fact, the psychiatrists based their opinion on Ravi and Navinkumar’s affidavits, as well as other psychological reports from 2013 to 2017.
“Given that no reliance can be placed on either affidavit for the reasons we have set out, and that the prior reports relate only to the appellant’s mental faculties from 2013 to 2017 and not to the alleged recent deterioration, the reports of the psychiatrists are devoid of any weight,” the judgement explained.
Nagaenthran was arrested in Singapore in 2009 for trafficking 42.72g of heroin and was found guilty a year later and sentenced to death.
During his trial, it was established that Nagaenthran had an IQ of 69 but the judge ruled that he was on the borderline of having a functional intellect. The court also came to the conclusion that Nagaenthran was aware that what he was doing was a crime.
His execution has been scheduled to take place on April 27. – The Vibes, April 22, 2022
