The Court of Appeal has set aside the death sentence of Gobi Avedian in account of miscarriage of justice, on Monday morning (19 October).
After the judgement was delivered, Gobi met his lawyer, Mr Ravi, face to face through a glass divider, both men holding their palms to the panel. He teared up and bowed to Mr Ravi, repeatedly thanking the lawyer for saving his life.
Mr Ravi represents 32-year old Malaysian death row inmate Gobi who was sentenced to death for drug trafficking by the Court of Appeal which overturned the decision of the High Court to acquit him of the capital charge and convict him on a lesser charge trafficking in a “Class C” controlled drug instead.
On appeal, Gobi’s acquittal was reversed and the Court of Appeal convicted him as charged, sentencing him to death as he did not fulfil the requirements for alternative sentencing in October 2018. His petitions to the president for clemency was rejected in July 2019.
Subsequently, Gobi’s case was taken over by Mr Ravi who proceeded to file an application to reopen the case.
He relied on two new legal arguments, which included the Court of Appeal’s pronouncement in Adili Chibuike Ejike v Public Prosecutor, dated 27st May 2019, to argue that the Court of Appeal had erred in departing from established precedents and wrongly presumed that Gobi was wilfully blind as to the nature of the drugs. As against this, Deputy Chief Prosecutor-cum-Senior Counsel Mohamed Faizal, who led the Prosecution during the appeal and review hearing, had argued that Gobi’s application was an abuse of process.
In the Court of Appeal judgement in which Gobi’s sentence was set aside, it was noted that while the Prosecutions against him during the trial was about wilful blindness, it is “undisputed” that the Prosecution’s case on appeal was that of actual knowledge.
Referencing a Court of Appeal decision in a previous, unrelated case where the Prosecution ran a different case on appeal than the trial, the judgement read: “Nonetheless, in Zainal, we alluded to the importance of the Prosecution running a consistent case so as to ‘give the accused a fair chance of knowing the case that is advanced against him and hat evidence he has adduced (and what standard of proof) in order to meet the case’”.
“We also made similar observations in our recent decision in Public Prosecutor v Wee Teong Boo and other appeal and another matter, where we held that the Prosecution is not permitted to seek a conviction on a factual premise which it has never advance, and which it has in fact denied in its case against the accused person.”
Noting that this point about the change in how the case was run by the Prosecution was brought up based on the potential significant of a previous case, the judgement read: Having reviewed the submissions that were made on this in response to our invitation, and in light of the change in the legal position effected by this judgement, we are satisfied that the Prosecution’s change in the case that it ran on appeal, as compared to that it ran at the trial, prejudiced the Applicant.”
In the conclusion, the judges noted that Gobi’s conviction of the capital charge would only remain safe if the Prosecution had proved beyond a reasonable doubt that he was wilfully blind to the nature of the drugs, which they did not.
“At the trial, the Prosecution only contended that it was ‘not reasonable’ for the Applicant to have believed Vinod and Jega. In the absence of any suggestion that the Applicant in fact disbelieved Vinod’s and Jega’s assurances or suspected that their assurances were untrue, there was no duty on his part to make further inquiries, and we find that he was not wilfully blind to the nature of the drugs.”
Following from that, the judges noted that Gobi’s conviction on the capital charge is set aside, adding, “We are also satisfied that the Applicant’s conviction on the amended charge by the Judge is sound and accordingly reinstate that conviction.”
As such, the Court of Appeal reinstated the sentence of 15 years imprisonment and 10 strokes of the cane which was imposed in respect of the earlier amended charge, and backdated the sentence to the date of Gobi’s remand.
Judge of Appeal Tay Yong Kwang, who wrote the judgment of the initial three-judge apex court including Chief Justice Sundaresh Menon and Judge of Appeal Judith Prakash to allow the Prosecution’s appeal, decided to summarily grant Gobi’s application to reopen his concluded criminal appeal on 20th February, as a single judge without hearing oral arguments, pursuant to new provisions in the Criminal Procedure Code relating to review of concluded cases which came into effect on 31st October 2018.
Speaking in front of the Supreme Courts after the decision was handed down, Mr Ravi noted that this decision has “made judicial history in Singapore.” He explained that the Court of Appeal has reviewed its previous decision to convict Gobi on a capital charge and sentencing him to death, saying that it was “demonstrably wrong”.
Mr Ravi noted that when delivering the first decision, the Court of Appeal did not have the benefit of its definition of wilful blindness which was established in a later case. This definition now been taken into account when the case was reopened.
The lawyer also noted that ‘one of the disturbing things” in today’s decision was the fact that the Court has highlighted how the Prosecution ran a different case at trial and on appeal which calls into questions the fairness of the administration of justice in Gobi’s case by the prosecution.
Background
A husband and a father of two, Gobi was asked to transport controlled drugs by one Vinod into Singapore on a commission basis, as he could not afford to pay his daughter’s hospital bills with his meagre salary as a security guard. Based on representations from Vinod and one Jega, Gobi believed those drugs were “chocolate drugs” which were used in discos that does not amount to serious controlled drugs.
Gobi was arrested at Woodlands Checkpoint when entering Singapore with drugs on 11th December 2014, and subsequently charged with importing 40.22g of diamorphine (heroin).
