PUTRAJAYA (Oct 14): The Court of Appeal ruled unanimously on Wednesday to allow an appeal by the police and the government, overturning the High Court's RM1.1 million award to the mother of Dutch model Ivana Smit.

The High Court, in its judgement, found the authorities negligent in investigating her death almost nine years ago.

The three-member bench, led by Datuk Mohamed Zaini Mazlan, also set aside the High Court's order for the police and government to pay RM100,000 in costs to the family.

Justice K Muniandy, the third judge on the bench, announced the unanimous decision.

He praised High Court judge Roz Mawar Rozain for her respectful handling of the hearing and her comprehensive judgement, but held that a private individual cannot bring a negligence suit against an investigative authority in this way.

“This court finds the learned judge fell into error in the evaluation of evidence by treating findings and notes of proceedings from the prior inquest and criminal revision proceedings (at the High Court) as conclusive, substantive proof in a civil trial de novo (afresh).

“The 2019 criminal High Court order (in revision of the inquest) order substituting a finding of death by person or persons unknown” was a judicial determination requiring the case to be investigated under Section 302 of the Penal Code, it was not an inter partes civil adjudication establishing actionable tortious fault or civil liability against the investigative officers,” he added.

The learned judge, Muniandy, said, fell into fundamental legal error by creating a private common law duty of care owed by police officers to individual complainants or next of kin regarding the manner in which a criminal investigation is managed.

“It is established and binding law in Malaysia and across Commonwealth jurisprudence (in the Joseph Anthony case) that law enforcement authorities owe a general public duty to the community at large to preserve peace and investigative crime, but no private law duty of care sounding in damages to individual victims or their relatives for investigative omissions, delays and perceived failures,” the judge said.

The public policy rationale is clear, Muniandy said, that law enforcement cannot be subjected to the threat of private civil litigation by dissatisfied parties, which would compromise the independent deployment of resources and paralyse criminal investigations.

Muniandy said the High Court judge had exceeded her jurisdiction and appeared to undermine the claim for misfeasance and malfeasance, which is not actionable in this case.

“The learned judge correctly highlighted deeply concerning lapses in the initial handling of the [crime] scene, the hasty inclination towards suicide and the profound communication failure with Smit’s family. Her ladyship’s grounds serve as a vital reminder to our law enforcement agencies of the highest standards of diligence expected of them by the public.

“However judicial empathy, however noble, cannot override settled legal principles governing civil liability, statutory interpretation and the law of evidence,” the judge reasoned.

He added that while the bench is allowing the appeal, he warned that the police and government should not be interpreted as an exoneration of past shortcomings nor as a licence to rest on their laurels regarding this case and overcome the shortcomings.

“Ivana’s death on Malaysian soil remains an unresolved tragedy. The police remain bound by their continuous statutory duty to pursue every viable lead under the reclassified murder investigation. The police are duty-bound to conduct this investigation with unyielding diligence and to provide transparent and regular updates to the family,” he said.

Zaini, who also sat with judges Datuk Ong Chee Kwan and Muniandy, said they would each write separate judgements on this case, and it would be available in two weeks.

Counsel Datuk N Sankara Nair, representing Smit's mother Christina Carolina Gerarda Johanna Verstappen, said while he respected the appellate bench decision, he questioned how his client could seek justice over the police inaction to investigate rightly.

"The police have been asked to provide quarterly updates to the family but failed to do so.

"Justice has failed today," he said.

Also present at the proceedings was the Netherlands' Deputy Ambassador Pieter Blusse.

Verstappen had named the inspector of general of police, investigating officer ASP Faizal Abdullah, home minister and government as defendants in the suit.

Sankara in a prepared statement also said while understandably, the courts are bound by judicial precedent and the doctrine of stare decisis (to stand by things decided), in part to guard against the opening of the floodgates of negligence claims against government agencies.

“I shudder to think of the far more disturbing consequence, the opening of the floodgates to unchecked and wanton negligence by those very agencies, particularly the police, leaving victims without effective legal redress. The courts are, after all, the last bastion of justice for those seeking accountability from the state.

“My clients and I are profoundly disappointed with today's decision. Nevertheless, whilst we respectfully accept the decision of the court, we do so with a clear conscience, knowing that we have pursued every available avenue thus far in our quest for justice.

My clients now have one final avenue of recourse, an appeal to the Federal Court, subject to obtaining leave. We remain steadfast in our belief that accountability must never be sacrificed at the altar of legal technicalities, particularly where the conduct of public authorities is concerned,” he added.

Senior federal counsel Liew Horng Bin appeared for the government and police in Wednesday’s appeal.

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