Friday, 18 April 2014

Anwar's Sodomy2: Written Judgement of The Court of Appeal is out today

From the NST 18 April 2014:

KUALA LUMPUR: An 85-page written judgment on opposition leader Datuk Seri Anwar Ibrahim's second sodomy case revealed that his choice of giving a statement from the dock was an important factor that led to his conviction at the Court of Appeal in March.

On March 7, a three-man bench, headed by Datuk Balia Yusof Wahi delivered the unanimous decision after finding Anwar, 67, guilty of sodomising his former aide Mohd Saiful Bukhari Azlan, 29, and sentenced him to five years' jail.

In the judgment released to the media today, the panel ruled that Anwar's choice to give a statement from the dock instead of a sworn testimony during the defence stage of the trial at the High Court raised flags questioning Anwar's reluctance to put his evidence to the test of cross-examination.

The bench also concurred with the trial judge that Anwar's statement from the dock was a mere denial as he did not dispute the fact that he was at the scene of the crime at the material time and date as stated in the charge.

"A credible defence is one that answers the evidence thrown at it by the prosecution.

"It is also imperative that the respondent (Anwar) explain his case."

On Anwar's alibi, the coram stated that Anwar had given notice before the commencement of the trial, that his line of defence was an alibi.

"But at the trial, it appears that this defence was never pursued for reasons best known to him.

"It is pertinent to note that an alibi represents a complete defence to exculpate the respondent from the offence charged."

The panel also said that among the witnesses named in the notice of alibi was Anwar's wife Datuk Seri Dr Wan Azizah Wan Ismail and his Chief of Staff.

"These witnesses in particular, would have been available and were at the respondent's disposal had his alibi been genuine."

On a possible contamination of the semen samples, the coram said PW25 (Prosecution Witness 25 Investigating Officer Supt Jude Blacious Pereira) had merely cut open P27 (the plastic) to remove the receptacles (containing the semen samples) to be put into separate envelopes.

"The tampering of semen samples with exhibits in P27 is devoid of any merit as contamination was not proven," they said.

The bench added that the trial judge had erred in giving weight to DW2 (Defence Witness 2 Professor David Lawrence Wells) and DW4 (Dr Brian Leslie Mcdonald) that seemed to be armchair experts rather than relying on testimonies given by PW5 (chemist Dr Seah Lay Hong).

"Evidence of PW5 clearly shows that the deterioration of the samples in this case was not to such an extent which did not permit her to do DNA profiling.

"Hence, the finding by PW5 of sperm cells in the complainant's anus 56 hours after the sodomy incident is not unusual."

As such, the panel said they had no hesitation to conclude that both PW5 and PW6 (chemist Siti Aidora Saedon) were able to obtain perfect DNA profiles which connected Anwar with the offence charged.

"It is crystal clear that the learned trial judge was simply overwhelmed by the evidence of these two expert witnesses called by the defence.

"We find that the judge had overlooked the testimony of DW2 under cross examination regarding the issue of tampering of the containers where DW2 admitted that he could not say that there had been tampering of the containers."

The panel judgment also criticised Anwar's various preliminary applications filed before the Court of Appeal heard the prosecution's appeal.

"Counsel should not intentionally use procedural devices to delay proceedings without any legal basis," the judgment read.

Anwar was charged with committing carnal intercourse against the order of nature against Saiful at the Desa Damansara Condominium in Bukit Damansara between 3.01pm and 4pm on June 26, 2008.

The opposition leader was acquitted of sodomising his former aide after a trial which lasted almost two years in Jan 9, 2012 by High Court judge Datuk Mohamad Zabidin Mohd Diah.

The prosecution appealed against the acquittal on Jan 20, 2012.

After the conviction on March 7, the court allowed an application by learned counsel the late Karpal Singh for a stay of execution of the sentence.

Bail was set at RM10,000 with one surety.

Veteran lawyer Tan Sri Muhammad Shafee Abdullah was appointed as an ad-hoc deputy public prosecutor by the Attorney-General's Chamber representing the government, during the appeal hearing at the Court of Appeal.

Apart from Balia, the other judges on the panel were Datuk Aziah Ali and Datuk Mohd Zawawi Salleh.

For my record and you guys too, you can read or print the FULL judgement in pdf from the site here:


"[6] Based on the above facts, it would be stretching it too far to say that this appeal has been disposed of in haste. It should be noted that most of the applications to adjourn were at the instance of the respondent who had filed one application after another. It can be seen that the first hearing of the appeal was fixed on 22.7.2013 by which time both parties ought to have filed their respective written submissions. However, only the appellant filed its written submissions dated 19.7.2013 together with the bundle of authorities. The court received the respondent’s first written submissions only on 12.2.2014 and another written submissions on the first hearing day i.e. 6.3.2014.

[7] It is in the public interest that criminal appeals be dealt with by the courts as soon as possible. Dilatory practices bring the administration of justice into disrepute. As is often pointed out, “delay is a known defence tactic”. It is not proper for a counsel to routinely fail to expedite hearing an appeal solely for the convenience of his client. Nor will a failure to expedite be reasonable, if done for the purpose of frustrating an opposing party to obtain rightful redress. Counsel should not intentionally use procedural devices to delay proceedings without any legal basis.

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