Kuala Lumpur – An Australian man has escaped the death penalty for a second time after a Malaysian court rejected an appeal by prosecutors against his acquittal on drug charges.
Dominic Bird, 34, from Perth, was arrested in March 2012 at a cafe near his apartment in Kuala Lumpur and accused of trying to supply an undercover police officer with 167 grammes of methamphetamine — an amount that carries the mandatory death sentence.
He was acquitted after the case against him fell apart amid allegations of corruption on the part of the prosecution’s star witness — Inspector Luther Nurjib — and Bird was set free in September 2013.
Bird was just five minutes from freedom and waiting to board a flight back to Australia when he was re-arrested at the boarding gate of Kuala Lumpur’s International Airport following an 11th-hour appeal by prosecutors.
But the Court of Appeal in Putrajaya on Wednesday rejected the prosecution’s bid to have the High Court’s decision overturned, with Bird again set free, subsequently beating the death penalty for a second time.
Prosecutor Awang Armadajaya told Australia’s Associated Press he would consult with his superiors at the Attorney-General’s office about whether or not to pursue Bird.
The prosecution has 14 days to appeal and Awang said he may seek an injunction to prevent Bird from leaving Malaysia while the Attorney-General’s office considered its options.
In a unanimous decision, the panel of three judges ruled that the trial judge had not erred in throwing out the testimony of Insp Luther and that the defence had presented enough reasonable doubt to warrant acquittal.
Justice Datuk Aziah Ali, who headed the panel of three judges, said that it was clear from the High Court judge’s earlier ruling that he had found Insp Luther to be completely unreliable as a witness.
“That’s the difficulty for you because your witness on whose evidence the case of the prosecution lies has been found to be not credible — a liar,” Justice Aziah said in addressing the prosecutor.
Also questioned was whether it was Insp Luther or Bird who had arrived at the cafe carrying a bag that contained the drugs, after two witnesses at trial gave contradictory testimonies.
The defence alleged it was actually the drug squad detective, and that he had attempted to frame Bird.
Justice Aziah suggested that the fact that the prosecution did not call at least two more police officers who were present at the bust, and allegedly witnessed the drug transaction, raised further doubts about the case against Bird.
Lawyers for Bird immediately set about trying to secure his passport and said plans would be made as soon as possible to book a flight back to Perth.
Bird has always maintained he was set up by Insp Luther, who last year was found guilty of contempt of court and fined RM2,000 after it emerged he had threatened and attempted to bribe a witness in the case.