Alowonle Oluwajunon Gilbert v. PP [2024] MLRA 266

Alowonle Oluwajunon Gilbert v. PP [2024] MLRA 266

Court of Appeal (Putrajaya)

Penal Code – Sections 302 of Penal Code [“Act 574”] – Murder

1.    The Deceased was a nurse, renting an apartment at Third Avenue Condominium in Cyberjaya.

2.    On May 9 2019, at around 12:37 a.m., the Deceased and the Appellant was seen entering the lift to go to her house unit.  The Appellant was then seen leaving the building at approximately 7:00 a.m. on the same morning.

3.    The Deceased, who was expected to work later that evening, did not arrive and had not been seen or heard from since 12:37 a.m.

4.    Six days later, on May 15 2019, her landlady discovered the naked body of the Deceased on the bedroom floor.  The Deceased was covered in blood and had sustained 17 injuries, including bruises, cuts, and slash wounds to her chest, neck and head.

5.    The Appellant was arrested and charged with murder after his shirt that was found to have the Deceased’s blood on it.

6.    The Appellant denied killing the Deceased and he claimed for an alibi.  However, the Appellant’s claim was rejected by the Court.

7.    The High Court Judge convicted the Appellant and sentenced him to death under section 302 of the Penal Code [Act 574].

8.    Aggrieved by the decision of the High Court, the Appellant proceeded to appeal against the conviction and sentence of the High Court.

9.    The appeal against the conviction was dismissed on 9 August 2023.

10.  The Court of Appeal then proceed to decide on the appeal of sentence.

1.    Whether any of the factors in the present case warranted the Court affirming the imposition of death penalty?

(a)      The Court of Appeal (“the Court”) held that, until recently, the death sentence was the mandatory punishment prescribed by the law for the offence of murder under section 302 of the Penal Code [“Act 574”].  However, the mandatory death penalty was amended when the Abolition of Mandatory Death Penalty Act 2023 [“Act 846”] came into force.  Section 302 of Act 574 is amended as follows:

“Whoever commits murder shall be punished with death or imprisonment for a term of not less than 30 years but not exceeding 40 years and if not sentenced to death, shall also be punished with whipping of not less than 12 strokes.”

(b)      The Court stated that the above amendment confers the Court the discretion to impose either death sentence or imprisonment of 30 to 40 years, aiming to reserve the death penalty for the most serious and exceptional cases of murder.  However, there are no explanations or illustrations provided by the same on what factors the Judge should consider when deciding whether to impose the death penalty.

(c)      As such, the Court referred to the judgment of the Indian Supreme Court that provides the explanation of section 302 of the Indian Penal Code.  By referring to the case of Machhi Singh and Others v. State of Punjab [1983] AIR 957, the Indian Supreme Court laid down five factors to be considered by the Court in exercising its discretion to impose the death penalty which as follows:

“1. Manner as to how the murder was committed;

2.  The motive for commission of the murder;

3.  The nature of the crime;

4.  Magnitude of the crime; and

5.  The personality of the victim.”

(d)      The Court held that in order to assist in this determination, it would be helpful to look at other Indian cases for guidance on the types of murders that have received the death penalty, particularly those that fall into the “rarest of rare” category.

(e)      The Court further referred to the case of Suresh v. State of Uttar Pradesh AIR [2001] SC 1344 whereby, the accused murdered his brother and the latter’s family members including minor children at night when they were fast asleep with an axe and chopper by cutting their skulls and necks for a piece of land.  It was held that the murder of the innocent victims was a grotesque and diabolical act, where any other punishment than the death penalty was unjustified.

(f)        In another case of Ravji v. State of Rajasthan, AIR [1996] SC 787; [1996] 2 SCC 175; LNIND [1995] SC 1247, the accused killed his wife and three minor children while they were asleep.  He injured his mother with an axe with the intention of killing her when she intervened.  He also went to the neighbour’s house and killed the husband and wife and fled from the scene.  The Court held that the death sentence was the appropriate punishment as the accused had a solemn duty to protect his family members but he betrayed the trust reposed in him in a very cruel and premeditated way without any provocation.

(g)     The Court held that the above cases indicate that the death penalty has been applied in instances of murder that are particularly brutal, heinous, or shocking, evoking a strong reaction not only from the judicial system but also from the society as a whole.  The Court believe that the death penalty is warranted in cases involving hired and serial killers, individuals who rape and murder for sexual gratification, those who dismember their victims, armed criminals, and people who plan and carry out murders in a cold-blooded fashion.

(h)      The Court looked into the present case, whether there are any of the factors warrant the Court in affirming the imposition of the death penalty.  In mitigation, the Appellant urged the Court to set aside the death sentence and impose imprisonment as he is now 40 years of age, that this was his first offence, and that he be given a chance to reform.  According to the Appellant, he and the Deceased were in a relationship and were planning to get married and start a business in Nigeria. He had no intention to kill her.

(i)        On the other hand, the prosecution argued that the murder carried out by the Appellant was particularly brutal, noting that the deceased had sustained 17 injuries and had ultimately died from a slash to her neck and they consequently urged the Court to uphold the death sentence.

(j)        There was no evidence showed that the Appellant had premeditated the attack on the Deceased or had any motive to kill her.  The event leads up to the murder suggest that a sudden misunderstanding had occurred prior to the killing.  Therefore, the trial Judge found that it is undoubtedly correct that the Deceased died in a brutal manner but disregarding the legislative intent of section 302 and imposing the death penalty on every murder conviction would undermine the purpose of the law.

1.    The Court highlighted the imposition of the death penalty must be reserved for the most heinous and exceptional circumstances.

2.    While the murder was brutal, the Court emphasized the need for discretion in sentencing, particularly following legislative changes that allow for alternative penalties.

3.    In addition to that, factors such as premeditation, motive, and the nature of the crime must be carefully considered.