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Anwar Ibrahim Sodomy II – The Recorded Truth 03 Ogos 2011 August 8, 2011

Posted by malaysianstory in 1Malaysia, Anwar Ibrahim, Malaysian Story, Sodomy II.
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Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Pihak-pihak:
PP :    Semua hadir
PB :    KS, SN, Datuk Param Cumaraswamy, Ramkarpal
WB :    Teoh Lib Peng (for Bar Council)
AI hadir

[9.46 a.m.]

Permohonan Jenayah 44-197-2011 & 44-204-2011

KS:    Memperkenalkan barisan Peguambela dan Pendakwa Raya
YA:    Kita ada 2 permohonan hari ini, kalau pihak-pihak tiada bantahan, kita dengar 2 sekali. Isu yang sama kan?
KS:    Isu yang sama YA.
YA:    So kita dengar sekali, ok? Setuju?
KS:    Ya, YA.
KS:    My Lord, there are two motions before your Lordship. First 197, the other is 204. There was an affidavit in reply to the application 197. I take your Lordship to Para 11 of the affidavit MH. Para 11 adverts to this.
“Selanjutnya saya mengatakan pemohon melalui peguambelanya S.N Nair memaklumkan kepada Sarjan Ahmad bin Abdullah pada 25 Mei 2011 dan kemudian disahkan sekali lagi pada 26 Mei 2011, yang saksi-saksi yang dinyatakan di bawah ini tidak diperlukan untuk ditemubual oleh pihak pemohon.”
Then it is followed by the name of 8 witnesses My Lord. There is no affidavit by Sarjan Ahmad. The affidavit is only by Encik Hanafiah. Clearly this part of the affidavit would be inadmissible. It has been said that when we look at the midst of the matter, we are asking for witnesses in 197, 5 witnesses that has been set out in the motion: 1) Haji Hasanuddin 2) Dato Mohd Rodwan, 3) Tan Sri Musa Hassan 4) YB Dato’ Seri Najib Razak 5) Datin Seri Rosmah Mansur.
And the second motion we have the list of 15 witnesses we wish to produce in court. Second, we wish to be given the right to interview them. The names appear in the list of witnesses offered to us. Below the subject, in the Criminal Procedure Code or elsewhere, with the regard to offering of the witnesses at the close of the case of the prosecution. This has been a practice for a long time, and a practice which is taken for the significance of the law.
I take your Lordship to tab number 8, first case in 1932, the case of C. Sanmugam. I take you to what is the relevance and significance issue there. It is the judgment of J. Whiteley about the contention of the Solicitor General. We go on to what the judge had said.
YA:    Hold on. Page 75, which para?
KS:    The right hand column, below there. I’ve highlighted that.
“In a trial by the Jury the prosecuting officer is not bound to call as a witness for the crown or tender for cross-examination a witness who gave evidence in the preliminary inquiry whose evidence in his opinion is unnecessary, hostile or not believed. But such witness must be in attendance. If the accused or his counsel wishes to have such witness called not called by the Crown, then the witness becomes his witness and the prosecuting officer will have the right of cross-examination.”
That case adverted to trial by jury and the position in matter involved in the inquiry.
I take you to what had decided in the case of Teh Lee Tong v Rex [1956] 22 MLJ, tab 7 of the list. This is important.
In this case the learned Judge considered the question whether it is incumbent on the prosecution in a summary trial to call as witnesses all persons from whom statements have been taken. He summarised the position as follows:
(1)    All witnesses from whom statements have been taken should be brought to the Court by the prosecution, except those whose evidence will clearly and obviously throw no light on the case; any witness not so brought to Court must be made available to the accused, should he desire to call him.
(2)    Having brought the witnesses to Court the prosecuting officer is not bound to call or to offer for cross-examination a witness whose evidence is in his opinion unnecessary or is obviously hostile.
(3)    The existence of witnesses brought to Court but not called or offered for cross-examination under (2) above must be brought to the attention of the Court so that they are available to be called by the defence, or by the Court should the Court consider this necessary.
So what is important My Lord is the first paragraph; it should be brought to the court by the prosecution. None of these witnesses has been called to the court. Then it arises what happened when the witnesses is offered to the defence.
I take you to tab 9, the case of Wong Kue v Public Prosecutor [1967] 2MLJ 97:
“The defence has every right to interview police witnesses offered to the defence and the defence should be given a reasonable time for this purpose. A period of 15 minutes to interview six witnesses as in this case, is certainly not reasonable especially when a request for more time was made at the end of the period. Failure to give a reasonable time for the defence to interview these witnesses amounts to a gross injustice.”
It is our submission that none of these witnesses has been brought to court for the purpose of being offered to the defence. What we have now is the affidavit filed by Encik Hanafiah and that is to the effect that these witnesses are not compelled to the court, but only compelled to do so upon being subpoena.
I take you, with regard to the second exhibit, in the application of DSAI, application 197. That is a letter from the prosecuting officer, one of the Investigating Officer in this case, dated 18th of July 2011. It set out in Para 3, 5 witnesses who were in fact made available. It is in reply to our contention that these witnesses be interviewed to the court. Be that as it may, there was an understanding in chambers, in fact that was accepted by the prosecution that they will be brought to court. There is a situation perhaps it is not a protocol yet, but subsequently, they were for the purpose of 5 witnesses accepted for the purpose of being interviewed brought to court. And that we have here, in the letter itself, that some of the witnesses are not prepared for the purpose of being interviewed. In particular I will take you to para 6:
“Seterusnya saksi-saksi berikut tidak mahu ditemubual tetapi akan hadir ke Mahkamah jika disubpoena”.
In another words, some of the witnesses are refused to come to court pursuant to the understanding that they will be available to be interviewed here. For the witnesses to say now after they have been offered, that they are being subpoena, in fact in our view, are amounts to contempt of court. They have been offered to the defence, and the defence had been accepted them for the purpose of being interviewed, and their refusal would amounts to contempt.
The assertion that they must be subpoena, and that was the central [] in the reply by my learned friend to subpoena this witness. Some of them had indicated that they don’t want to come. That is the difference if the witnesses being subpoena, than the witnesses have been offered to the defence. When it comes to subpoena, I take your Lordship to the normal format of it in the Criminal Procedure Code that is in the Form 31. The second part of it, my Lord. [Read]. The word ‘testify’ would imply without the right to be interviewed, that not be include the right to be interview the witness. The rationale in offering witnesses to the defence, a witness from whom the statement has been taken, is to ensure that the witnesses are in the court for the purpose of the interview. They can’t say they don’t want to be interviewed. They can’t deny that position. And this has been done all the time My Lord.
And this is the procedure that, as I said earlier as the force of law, DSAI is entitled to a fair trial, and in the report is the case of Lee Kwan Who v PP [2009] 5 MLJ 301. I take your Lordship to page 303.
“The expression law in Art 5(1) of the Constitution included written law and the common law of England, i.e. the rule of law and all its integral components and in both its procedural and substantive dimensions. Thus it is settled law that the rule of law has both procedural and substantive dimensions”.
It is wrong for the Prime Minister to insist him to be subpoena, together with the other 4 witnesses who require the subpoena before the main trial. And for the other witnesses to say that they don’t want to be interviewed. They first must be interviewed. The must come for the purpose of being interviewed. They can’t by way of affidavit express that intention. They have to face defence counsel for the purpose of being interviewed. They can decline to answer question. They can incline []. But the defence couldn’t be denied the right had been denied the right, the right to these witnesses to be produced for the purpose of interviewed.
And this particularly important My Lord because all the witnesses from whom the statement is taken. The law is very clear. They must under the law be brought to court. The defence has every right to interview them, based on the two authorities I cited. The position is as simple as that. It has been done centuries ago since British had landed in Penang. I can’t see the difficulties why the Prime Minister has been so stubborn with another three witnesses who want to be subpoena, and the rest who don’t want to come, and also the one who insisting that he wants to come only with his lawyer: Encik Hasanuddin. We have no objection if he wants to come with his lawyer. Fair enough, he can come. But he must come. He cannot take shelter in the affidavit sworn. It is a very dangerous precedent set by your Lordship if your Lordship not allowing our application this time. This is not a threat but a gentle reminder to your Lordship of the consequences that should fall in the system. As far as this is concern, the precedent set put by your Lordship will bind them. And such situation ought not and cannot be allow to come about. Your Lordship duty is to hold the law. A law which has been there all the time. The law in which has been implemented in this court.
It would not be any departure from the law. Any departure from it would be amount to unconstitutional conduct. What is important is this my Lord, the alibi witnesses would come to court at any time, in fact even on the day of the hearing itself to give the evidence. And then the introduction of Section 402A of Criminal Procedure Code. This is now an opportunity for the list of alibi witnesses to be given to the prosecution, if the defence is intended to use alibi as their defence.
The rationale was this, for the prosecution to verify the truth of what the alibi witnesses are going to say i.e. being interviewed. And that interviewed is as result of Sec 112 of Criminal Procedure Code. 112 provides for a witness to say the truth, unless it came under the proviso. Otherwise, what had been stated is the truth. If the argument of opportunity to interview, in our case, alibi witnesses, we have opportunity to know from them what they have told the police in the 112 statement. And the alibi must be investigates is a trite law. I take you to the case of Lee Kwan Woh. It is at page 316 para 31 to the effect that the police must investigate the alibi.
How we will know what that they have said and we have the right to know from the witnesses, in the course of the investigation on what did you said in your statement to the police? So it must put in the perspective on whether or not to call the witness in the course of the defence. Can we be denied the opportunity to know that? Or from other aspect to know from this witnesses if they have been threatened by the police for the course of verification of the alibi. Can we be denied this? It is not the simple thing by saying that you subpoena the witnesses. And in this case, the alibi witnesses were offered by the prosecution, which ordinarily they need not be. What the police do is take the 112 statement and in the event of they getting evidence, and if they get something otherwise lose the 112 statement for the purpose of impeaching them.
YA:    But in this case they had offered?
KS:    In this case they had converted to prosecution witnesses and then offered to us. I don’t know why my learned friend is so []. What the intention is, I don’t know. That is not the point. We want [] which appears to be lacking in this case. So the position is as simple as that My Lord. I can’t understand why we are refused something which is so trite and simple. That is it.
YA:    Kalau takde dah, I’ll hear from the prosecution.
KS:    That is it all, My Lord. That is what it is.
YA:    Ok, prosecution.
MY:    YA, I would conceit, number 1: that the defence has the right to interview the witnesses. Number 2: that at the close of the prosecution case, the prosecution need to offer or has to be made available from whom the statement is recorded, including the alibi witnesses. Whether or not those phrases ‘to offer and be made available’ can be translated to have them produce physically or does it mean that it is an imply undertaking by the prosecution the case that you need to call those witnesses offered or made available as defence witnesses, then it would be the prosecution’s obligation to have subpoena applied and issued and serve on those witnesses whom they want to call as witnesses.
My lord, [] said, foundation of justice is good faith. Now where is the good faith in this application? First of all, most of the witnesses, my learned friend referred to para 11 Mohd Hanafiah’s affidavit, but what I want to say is this, there was a letter written by the IO to the defence counsel and it was exhibited in their own application as ‘DSAI 2’, which was copied to us.
If I may refer you to para 4 of this letter which was referred to and annexed to the affidavit of DSAI. It says that he following witnesses A to H and later on, most of the names were mentioned in the second application, it was the defence who want to [] with their interview. And then with regard to the PM and wife, Tan Sri Musa and Rodhwan, it is Encik Hanafiah’s reply where it stated that they couldn’t have anything material to testify for the purpose of this trial, with regard to the particular charge made against DSAI. If I may refer to paragraph 21 in enclosure 4 of the first Usul, if I may read as to what Hanafiah’s says:
“Selanjutnya saya menyatakan dakwaan pihak pemohon, yang mengatakan pemohon telah dinafikan peluang untuk perbicaraan yang adil jika saksi-saksi yang dirujuk di perenggan-perenggan 7 dan 8 Affidavit Pemohon tidak diwajibkan hadir untuk ditemubual oleh pihak pemohon tidak mempunyai asas kerana pihak pemohon sendiri telah mengatakan keterangan-keterangan keempat-empat saksi yang dinyatakan dalam  perenggan 7 Affidavit Pemohon tidak relevan, memudaratkan dan tidak boleh diterima sebagai keterangan. Kenyataan saya ini disokong oleh penghujahan pihak pemohon sendiri yang mana saya lampirkan sebagai eksibit dan ditanda ‘MHZ-1’ di mana:
21.1 pihak pemohon telah berhujah bahawa semua keterangan SP1 berhubung pengaduan yang dibuatnya kepada Perdana Menteri Dato Seri Najib Tun Razak pada 24 Jun 2008 antara jam 8.00-8.30 pm di kediamannya di Taman Duta tidak boleh diterima masuk;

21.2 pihak Pemohon telah berhujah menggesa Mahkamah mengenepikan keterangan berhubung pertemuan SP1 dengan SAC 1 Dato’ Mohd Rodwan bin Mohd Yusof atas alasan ianya tidak relevan, memudaratkan dan tidak boleh diterima masuk; dan

21.3 pihak pemohon telah berhujah menggesa Mahkamah mengenepikan keterangan berhubung perbualan telefon antara SP1 dengan Tan Sri Musa bin Hassan atas alasan sama.”
Obviously the evidence with relation to the incident similar but past incident and my learned friend had after having all those evidence being adduced by complainant admitted at the close of the prosecution’s case that all these witnesses highly prejudicial, and not relevant to the charge and therefore not admissible. Now, the law said this. Form 31 talks about a witness who have been subpoena, who can give material evidences. The defence themselves with regard to those witnesses, saying that they are highly irrelevant and prejudicial, and it referred to something which is not covered under the charge. It is not something which is referred to the incident happened on 26th.
Anything other than those incident would be highly prejudicial, we agreed. So why now you want to interviewed them, because you said that what the complainant told Najib, Musa and Rodwan are inadmissible, but now you want to call them. Because those are the only area that Saiful was cross examined with regard to the role of Najib, Musa and Rodwan.
Now with regard to those witnesses mentioned in second application. YA, with regard to the second application where 10 witnesses were mentioned, most of the names mentioned in MHZ-3 in their own notice of alibi. So when the defence put up the notice of alibi, for the police interview them to verify what is the material evidence that those witnesses could give. We give the notice of alibi to say that we weren’t there, but we were alleged to be where the offence took place. And these are the witnesses who can testify to them. Obviously they knew before hand but they wouldn’t want to submit those witnesses for the police to be interviewed. They are their witnesses. So what is there to interviewed? Because in this list, we have the name of the bodyguard and all those people who attended the meeting on the date of incident.
And the two maids of En. Hasanudin, at no time of the close of the prosecution case that we made available in the 71 witnesses until this application on the 1st of August 2011 the defence has never indicated they want to interview this two witnesses including Abdullah Sani bin Said.

So where is the good faith? Only two or three days ago. It was never indicated to us that they want to interview these people. And now they are saying “I have the right”. Yes, you have the right.

YA, before I go to the case law with regard to your right to interview may I just refer to the authority that my learned friend has referred. The first case, case no.8 is Shanmugam. The relevant paragraph start from the right hand column from the second paragraph until the last paragraph. What this case says is this, if you have called the witnesses during preliminary enquiry then you must made them available by producing them in the court whether called or not. You must produce them in court.

It said,
“…by a trial by jury, the prosecuting officer is not bound to call as a witness for the Crown or tender for cross-examination a witness who gave evidence in the preliminary enquiry whose evidence in his opinion is unnecessary, hostile or not believe but such witness must be in attendance.”

So it refers to witnesses who had their deposition recorded in the permittal proceeding.

In the case of Teh Lee Tong v. Rex [1956] 22 MLJ 94, my learned friend referred to this case as authority to say that we must produce. Can I start with the first sentence, the headnotes?

“The fact that a witness is really a defence witness is a sufficient reason for not tendering him for cross-examination.”

What all the case law seems to say is this, at the end of the day you must tender this people for cross-examination and for that purpose these people must be produced in court. So it says if those people are clearly such as alibi witnesses then we have no obligation to have them in court.

“In this case the learned Judge considered the question whether it is incumbent on the prosecution in a summary trial to call as witnesses all persons from whom statements have been taken. He summarised the position as follows:
(1)  All witnesses from whom statement have been taken should be brought to the Court by the prosecution, except those whose evidence will clearly and obviously throw no light on the case; any witness not so brought to Court must be made available to the accused, should he desire to call him.”

Those people who we didn’t bring we must bring. In our case we brought all witnesses whom we wanted to call and those whom we didn’t bring, make them available. This is exactly what we did. We make them available, we give the list of witnesses, please indicate to us whom you want and we will bring them. But the case law seems to suggest we made available this people for the purpose of examination that means to be called as witnesses and not for the interview.

If I may refer your Lordship to our bundle, the case of Khoon Chye Hin v PP [1961] 27 MLJ 105. If I invite your Lordship to page 109, para B on the left,

“It is, of course, well settled that in a criminal case prosecuting counsel, provided there is no wrong motive, has a discretion as to whether or not to call any particular witness and in particular has a discretion not to call in support of his case a witness whom he does not believe to be a witness of truth.

In the case of Reg v Woodhead, Alderson B. referred to:—
“The rule which the Judges have lately laid down, that a prosecutor is not bound to call witnesses merely because their names are on the back of the indictment.”

He went on to say:—
“The witnesses, however, should be here, because the prisoner might otherwise be misled; he might, from their names being on the bill, have relied on your bringing them here, and have neglected to bring them himself. You ought, therefore, to have them in Court, but they are to be called by the party who wants their evidence.”

Again, in the case of Reg v Cassidy, Parke B. said that he considered the correct principle was:—
“That the counsel for the prosecution should call what witnesses he thought proper, and that, by having had certain witnesses examined before the grand jury whose names were on the back of the indictment, he only impliedly undertook to have them in Court for the prisoner to examine them, as his witnesses.””

Again, there is this kind of committal proceeding and those witnesses whom you called already before the grand jury you should produce in court. But in our case there is no such grand jury, no preliminary enquiry. And what would apply will be the second phase what my learned friend had said, the case of Teh Li Tong which said those that I did not bring I just need to make available if the defence desire to call. That’s all.

And reference is also made to the case of Adel Muhamamed El Dabbah, just below the case I read just now. And what the case said is we made available people who we think can give material evidence. In fact the word ‘material evidence’ appeared in the form.

YA, we know in this case that the witness mentioned about other incidents. The investigation was on all those incidents other than covered by the charge. But for the purpose of this case, for this charge which the AG decided to charge we did not see how other witnesses are relevant.

In fact the defence would know because the charge made reference to a particular place, particular time.  They would have known whether or not he was there or was not there. And here in this case he was sure he wasn’t in that particular unit and he had submitted as exhibited in “MHZ-3” the list of witnesses of alibi to support his defence that he wasn’t in the unit. Very specific defence. Of course other than the fact if he can rebut the evidence of the chemist and the forensic doctors.

With regard to whether or not he has the right to interview, the case of Husdi v PP [1979] 2 MLJ 304 and Horace Henry Bryant v Victor Richard Dickson [1946] CCA 146 referred to in this particular case of PP v Ramli Bin Yusuff Criminal Revision No. K 43-08-2008 (tab 6) which is the latest case to discuss the right to interview.

This is a judgment by J Datuk Clement Skinner (as he then was). So what he said ultimately is this, at page 15 after having discuss the cases, S.112, the right to silence, Husdi and Bryant and Dickson,

“In the result, for the reasons given above I find that the accused’s right to interview prosecution witnesses only arises when the prosecution has waived the privilege over the witness statements of such witness and the witness agrees to be so interviewed.”

So if YA is to read the case, what happened in this case was the list of witnesses was supplied earlier even before the commencement of the trial. Now the defence wants to interview the witnesses. So they are saying, “Look if I were to allow you to interview the witnesses it is as good as nullifying the decision in Husdi which said 112 statement is privilege.” Because it is as good as giving you the 112.

So to reconcile with Husdi, your right will only arise when I no longer want to call this person or as in the case of Bryant v. Dickson, the defence counsel wrote to the prosecuting counsel and asked whether or not they want to call a particular witness and the prosecution said : No, we are not going to call, we have no objection for you to do that.

So when the prosecution has waived their right either as in the case of Bryant v. Dickson or at the close of the prosecution case with regard to witnesses whom they have not call then only your right….

YA:    As to what? As to call the witnesses as witness? Kita dah close prosecution case so that mean you are not going to call this people anymore?

MY:    Yes.

YA:    So that was settled.

MY:    That means we waived our right, we have no priority right over the witness then only your right to interview arises. But it said this right is subjected to those witnesses agreeing to be interviewed.

In fact in this particular case if you can look at page 2 of the judgment,

“The brief facts leading up to the making of the order are these.

The accused in the case is charged with an offence under the Anti-Corruption Act 1997. Prior to the commencement of the trial the defence wrote to the prosecution requesting for a list of the prosecution witnesses and also notifying the prosecution of their intention to interview witnesses who may be called by the prosecution.

The prosecution supplied the defence with a list of prosecution witnesses, but refused to allow their witnesses to be interviewed by the defence.

The defence has taken the stand that there are no proprietary rights in a witness and therefore the defence is entitled to interview the prosecution witnesses in preparing for its case, after having put the prosecution on notice of their intention to do so. The defence then wrote letters to certain prosecution witnesses with a view to interviewing them. Some of these witnesses have replied, agreeing to be interviewed whilst others did not respond.

The prosecution then intervened and advised or instructed these witnesses not to be interviewed by the defence as they had been subpoenaed to attend the trial.”

Of course in this case the learned judge talks about the right to silence. I quite disagree. To me it is not the right to silence; it’s the right to decline. I don’t have to decline because here we are talking about where is the law that can compel you to give statement.

Here the judge discusses Rule 34, which we have exhibited in our bundle. And Rule 34 is not the rule which confers the power for you to compel. And he discuss s.112. In fact in our bundle we exhibited s.111 where the police can actually give you notice, ask you to come, if you don’t want to come lodge a report to the Magistrate and have a warrant of arrest issued for you to be produced before. That’s compulsion. And there are many other laws with regard to the power of investigation where they have the power to compel. But, none given to counsel or to the court except by way of a subpoena. Even subpoena, if the law has provide certain particular method of securing attendance subpoena cannot be applied if that method after being employed failed to secure the attendance.

We have the cases. In fact just for the benefit of the court we have had in our bundle these cases of Raymond v. Tapson [1882] Chancery Division Vol.XXII 430 (tab 7) which talks about any party can apply for subpoena; Ismail v. Hasnul : Abdul Ghafar v. Hasnul [1968] 1 MLJ 108 (tab8) where the court talks about discretion to control the subpoena from being abused, if the witnesses cannot give relevant evidence the court can just set aside the subpoena; Rex v. Baines & Anor [1908-1909] Vol. XXV The Times Law Reports 79 (tab 9)where it talks the same thing and Exparte Simmons [1994] 1 KB 165 (tab 11) is one case where a particular method is employed provided by the law to secure attendance failing which you cannot apply for subpoena and you must use that method provided by the law.

So whether or not you can interview, all the case law seems to suggest you have the right but provided that they are prepared. And following the letter that the IO wrote, these people are not prepared. They said: if you want, have me subpoenaed. So all Mr. Karpal has to do is tell me I want Najib and I will apply subpoena from this court and then it’s up to Najib to set it aside, or Musa, or Rodwan for the matter.

But, you can’t asked the court and the court unfortunately is not vested with any authority to compel a witness to come here to be interviewed. There is no proviso. So your right is subjected to the other party’s right to decline to be interviewed.

So we agree there, En. Karpal has the right. But as I said this is not done in good faith, adding a few more names on the 1st of August to be interviewed when they had not at no time.

YA, our duty is when we close our case we make available the list of witnesses, you tell us whom you want and we will immediately supplied for subpoena. And then have them produce here. After that En Karpal can say : Look, before that I want to interview.  But what he did was this – before I decide whom I want to call I want to interview first. []. And we give undertaking that we will make the necessary arrangement but we can’t just like the court cannot, we cannot compel these people.

But of course Dr. Khairul Annas came, Mumtaz came and few others came. 8 others, they choose not to come. Hasanudin refused to come. He said to talk to his counsel. Now I heard he said subpoena me. But these are Dato’ Seri Anwar Ibrahim’s friend, not the prosecution friend. All the while I thought En. Ibrahim Yaakob is En. Hasanuddin until I call him as a witness then he turns out to be Ibrahim Yaakob because the record refuses him having presence from the hearing where he shouldn’t be. Because I don’t know how this Hasanuddin looks like. And all these witnesses who attended the meeting are all known to Anwar, they are not our witness.

Like En. Karpal said, you ask us to record and we record. []. And the law said people from whom we recorded the statement we must made available, so we make available. You cannot say why are you doing this, what motive. There is no motive because the law says so. But making available and offering those witnesses to you does not equal to having them physically in court and that what the case no. 7 said – those whom I record statement I must bring and then call. If I don’t call and don’t bring to court I must made them available but it does not mean having the physically presence in court.

And the case of Abdullah Zawawi v PP [1985] 2 MLJ 16 said the practice of making available and offering these witnesses to the defence, witnesses from whom statement was recorded is a practice to prevent the invocation of s.114(g) Evidence Act.

And then we have a lose copy, a Court of Appeal case of Yusri bin Pialmi v PP [2010] 3 MLJ 445. Holding no.5 is the dissenting judgment of Kang Hwee Gee JCA. The principle is acceptable. It is a good law.

“It is always been the practice that the prosecution at the close of its case, offer or make available to the defence, witnesses whom it did not call to give evidence but those whose statements had been recorded in the course of police investigation. The practice has the force of procedural law to ensure that an accused is afforded all the means at his disposal to call any witness to testify on his behalf…”

And the case of Abdullah Zawawi, tab no.2 at page 18 of the report…

YA:    Sorry Datuk. Apparently you use the word offering…

MY:    Or make available. Offer or make available. Because in English cases they says tender, meaning you have there in the court and tender there.

Then Abdullah Zawawi case, at para I of the right hand column,

“The practice of making available a witness or witnesses from whom statements have been taken is to prevent the defence from commenting upon the honesty of the prosecution and thus invoking the often-quoted presumption of adverse inference under section 114 (g) of the Evidence Act.”

So, YA the closest you can come to this is what the case of Teh Lee Tong said: those whom we didn’t bring to court we must made available. So meaning making available does not mean making it physically presence. It is just as in this case of…

YA:    So, bagi list saja cukup? Is that what you are saying?

MY:    Yes. Because if you want just indicate to us…if your Lordship were to look at the case of Khoon Chye Hin and also the case of Adel Muhammed El Dabbah, they said maybe after having look at the name they may decide on whom they want to     call so they make…

YA:    So you make an offer by giving the list and they tell you I want this fellow, does that mean that you have to physically…

MY:    Yes, then we will have to. The indication is…

YA:    You have to?

MY:    The indication must be you want them as witnesses. Because all the cases referred to call them as witness to be examined not for interview.

So the case on interview will be the case of PP v Ramli bin Yusuf. That’s the only case. In fact, the case of Bryant v. Dickson also the same, it said of course before that they went for interview. It said it will be good for you to interview before you call them. I mean it’s mentioned in the case of Bryant v. Dickson.

If I may read to your Lordship Bryant v. Dickson, tab 5, page 151 starting from the second paragraph.

“Another point taken is that Campbell was not called at the trial. It is said that it was the duty of the prosecution to have supplied the defence with a statement which Campbell had admittedly made to the prosecution. The prosecution, for reasons which one can well understand, did not call Campbell. Is there a duty in such circumstances on the prosecution to supply a copy of the statement which they have taken to the defence? In the opinion of the Court there is no such duty, nor has there ever been. In the first place, if they had supplied a copy of the statement of Campbell, that would not have enabled the defence to put the statement in. The statement which Campbell made could have become evidence only if he had been called as a witness. But it is said that it was the duty of the prosecution to put that statement at the disposal of the defence. In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence a witness whom the prosecution know can, if he is called, give material evidence. That they did in this case, because when a letter was sent by the defence to the director of Public Prosecutions, the reply of the Director of Public Prosecutions showed quite clearly that the prosecution did not intend to call him, but he added: “There is no objection to your taking a statement from Campbell if you wish to do so”.”

This would appear as far as the court is concern tantamount to make it available. Because, “In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence …”. And this they did. How they do it is just by telling I’m not going to call, if you want to record the statement you can. And that as far as this case is concern is enough to making it available.

“There is no objection to your taking a statement from Campbell if you wish to do so”. That was said well before the trial. It was said after the close of the police court proceedings, when the defence knew that Campbell was not being called by the prosecution, and therefore could quite well themselves have gone to Campbell and taken a statement from him. Campbell was at the Court. Who brought him to the Court I do not know, nor is it material to inquire, but the defence could have called him if they had liked. No doubt Mr. Scott Henderseon would not have been so unwise as to call him without having a statement from him, but if the defence did not choose to take a statement and find out what he was prepared to say, that is not a matter with which the prosecution are concerned.”

That’s all, YA. Make available. That’s all. And that so if you wish to record the statement. As far as the prosecution, we have done that. And now his right to interview arises. What about the other party? The case of PP v Ramli Bin Yusuff said your right is subjected to the other person’s right to decline. And in this case before your Lordship those witnesses have declined to be interviewed which they have the right to do so, their constitutional right to do so.

My Lord, one more thing I want to add. My learned friend with regards to the alibi said this: these people have gone to see the police; the police have recorded their statement.  I thought the purpose of interviewing a witness is to ascertain what he knows about the fact. Anwar should know how much information he has with regard to the case. But Mr. Karpal said I want to interview this witness to know what the witness told the police. I mean that cannot be the reason. The reason is to know how your evidence can help me, how much do you know whether it is relevant or not. In this case they already knew otherwise they wouldn’t identify this witness. But to say that I need to see this people to find out from them what they told the police is not the purpose of the interview. Like I said, there is no good faith. This is not [] says when he says that the foundation of justice is good faith and obviously in this particular application that is lacking.

I urged your Lordship to dismiss this application and to order the defence to indicate to the prosecution whoever they want to call so that we can make the necessary arrangement to help them in court when the trial resume next week. Much obliged.

KS:    I would [] because my learned friend has updated me with the case of Yusri Bin     Pailmi  v PP. It is vey clear my Lord. If I could read it.

YA:    Tab berapa tu?

KS:    It is the lose copy that my learned friend referred to just now. It set out the law very very clearly my Lord. In fact, it is what your Lordship ought to be guided by. I read it.

“It is always been the practice that the prosecution at the close of its case, offer or make available to the defence, witnesses whom it did not call to give evidence but those whose statements had been recorded in the course of police investigation. The practice has the force of procedural law to ensure that an accused is afforded all the means at his disposal to call any witness to testify on his behalf. The prosecution’s failure in not offering or making them available under the circumstances has given rise to the question of whether the accused had been afforded a fair trial. ”

Here 71 witnesses were offered. We indicated we require 25. Undertstanding between the parties in the chamber in fact before your Lordship that the venue will be here, in court itself that they were to be interviewed and that understanding was implemented.

And to say the rest don’t want to come is not for the prosecution to say, it is for them to tell the defence that they don’t wish to come. It is for the defence to enquire from them what statement they have made in the course of the police investigation. It is not only the question of alibi witnesses here, its’ other witnesses. We can’t object to the [] of the evidence relating to the Prime Minister, it could be beyond that. My learned friend can’t impose us as to the evidence, which we want to elicit from the witnesses. And again we have again indicated in the second application that we need the two maids of En. Hasanuddin, the two Indonesian maids. They have not been indicated anywhere here my Lord that they don’t wish to be interviewed. Why are they not being made available? They are material witnesses.

I take you to the question of expense my Lord. Once the witness is offered to the defence then the prosecution bears the expenses my Lord for the attendance of that witness during the course of the trial. We want them to attend as witnesses, subpoena that then we would have bear the expenses.

YA:    I think this one we already agreed if you want them as your witness just let them know and they will supply the subpoena. They will serve it, they will…

KS:    Yeah, but we need them.

YA:    And that’s for?

KS:    Attendance in court.

YA:    They agree to testify in court but you are asking them to be interviewed. Now, that’s the dispute sekarang ni.

KS:    My Lord, automatically if we accept the witnesses it is the interview as of right. []

YA:    So now you are asking them to produce the witnesses on their own expenses for purpose of being interviewed.

KS:    Of course. That is the purpose of offering. []. And my learned friend refers to this case of tab 6, page15,

“In the result, for the reasons given above I find that to the accused’s right to interview prosecution witnesses only arises where the prosecution has waived the privilege over the witness statements of such witness and the witness agrees to be so interviewed.”

[]. Where is the waiver of the privilege? []. If a witness is offered it is automatically that we have the right to see the witness, talk to the witness. That’s the purpose of offering. It is done all the time. What a [] exercise being taken but something real. It is not for my learned friend to say that the witnesses are not material witnesses. It is only for the defence to decide whether they are material after we interview them. And facts that statements were taken from these witnesses shows that they would be material. Otherwise why take statement from witnesses? And on the [] why is the evidence is not material?

I can’t see we have to go in elaborate exercise to come to the conclusion that the witnesses is offered must be physically there to say what he wants and for us to decide in the right of what he say, even to the asking my Lord to what he said in 112 statement. He is our witness. Once offered, we accept. It’s like a contract my Lord, you offer we accept. It is as simple as that. In fact in all these years, in all these centuries, in England and in anywhere in the world that is what is done where the English law applies in court.

We urged your Lordship to very carefully consider this position that we have the right for their attendance in court and [] of the prosecution. We have the right to see them physically, we have the right to talk to them. They have the right then to refuse to become a witness. Of course we will not use someone who is against us. It may have been we have elicit some evidence from the witness.

It is not only the question here of alibi. The credibility of the complainant here could be [] through witnesses who had been offered. Attack his credibility. His visit to the PM’s house. Statement taken from Datin Rosmah in evidence. Are those material witnesses my Lord? Can they say they will not come and you subpoena us. Had they not being offered and we wanted them then we would subpoena them my Lord, that we would have to subpoena them. And that is when personal subpoena arises. And witness other than one offered is thought to be material for the defence to call. Those are the situation. And that is the situation. And that situation is not here.

The Indonesian maids are to be made available. They are in Indonesia. You can’t make available or offer someone who are not around. It is impossible. Make available or offers someone who are not around.

We urged your Lordship to carefully consider the position.

YA:    Ya. Ada lagi ke?

KS:    It is not as simple as my learned friend appears to make it.

YA:    Ya, anything else you want to add?

KS:    I think that is what I’m trying to impress upon your Lordship. The importance of…

YA:    Yes, it is very important. I know.

KS:    We need a ruling with this sensible and for affording Dato’ Seri Anwar Ibrahim a fair trial. He is entitled to that. You can’t deny him that. Nobody can. We urged your Lordship to make order in terms in relation to the two applications before your Lordship.

YAL:    Saya perlu meneliti segala otorito-otoriti yang dikemukakan. Obviously I need time. Since you are coming back on Monday, so I think I’ll deliver it on Monday. I’ll deliver it on Monday, 8th August 2011.

[11.08 a.m.] Adjourned.

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