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Anwar Ibrahim Sodomy II – The Recorded Truth – 13.5.2010 May 14, 2010

Posted by malaysianstory in Anwar Ibrahim, Malaysian Story, Najib Tun Razak, Sodomy II, Transformation in PKR.
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Mahkamah Tinggi J3
Dihadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak: Seperti terdahulu [dengan kehadiran Raymond Leong bagi pihak Majlis Peguam]

[09:25 am]
JB: Bicara permohonan No: 44-127-2010

MY: Pihak-pihak seperti yang sama. Pagi ini untuk pendengaran permohonan bagi menangguhkan prosiding

Permohonan penangguhan prosiding
Hujahan Pemohon
KS: This application is supported by affidavit DSAI. We are asking for a stay of proceeding, pending disposal of appeal by the Court of Appeal which is filed yesterday. Refer to DSAI affidavit, the basis of application at para 7 that the order that YA given is a final order and therefore it is appealable to the Court of Appeal.
We must show that it is final order. Refer to s.50(1) Courts of Judicature Act 1964 [Tag 2][read] in relation of jurisdiction of Court of Appeal for criminal appeal.
We have the word ‘decision’ in s.3 of Courts of Judicature Act 1964. The meaning of ‘decision’ means any judgment … [read] that finally disposed the right of the parties.
Refer Tag 4 decision of Federal Court against YA decision will not be apply here. The discussion at page 7 of Tag 4. Various cases referred on this issue but it is about the ‘finality of the order’.
It is final order for these reasons, if the appeal succeed or if the Lordship made a decision in our favour for the supply of s.112 st, then YA of course have ruled and the ruling was very clear adopted the submission of MY. What came up in this application is whether the hunch we have is related to non-consensual intercourse against the order of nature. YA have taken the approached bet 377B and 377C is the enhancement of penalty. YA decision that the offence is the same. The reason by YA does not back up our ruling here. I put it this way, the evidence talk about the chicken, but the charge talks about the duck. It is the position here, the evidence by SP1 relates to non-consensual sex, if the statement under s.112 or any other statement that have been supplied to us will be able to shows contradiction, namely it would be consensual coz the charge is under s.377B. I said this because the effect of this would be for impeachment.
Refer to Tag 5, case of Metrolim [][][read] but this is go beyond that, the evidence in court which contradict the charge. The position that we said, it is the end of the case, therefore it is final order, and not an interlocutory order, it may be in term as a ruling but it finally dispose the right of the parties.
With regards of the proceeding if the application is not allowed, then if we succeed, this proceeding will be nugatory. Refer to Kosma’ case [read]. What are special circumstances? In the DSAI affidavit, special circumstances no. 2, if the stay is not allowed, the proceeding will be nugatory. In the case of Brad Andrew and …
Refer to [] [read]
Here, it is a nugatory if the court does not allowed a stay, there is other circumstances, it is the 1st time this kind of situation came up in this country, whereby the evidence given in court, statement given under oath does not reflection the charge itself. This is what happen here. MY refers to s.422 CPC, speak of irregularity, curable, but this go beyond irregularity, the impact explode the whole charge. MY also refer to s.167 EA [read].
If the evidence of PW1 is rejected, worthless, more independent evidence cannot save the position.
Refer to Tag 10 of PP bundle. S.167 and the other laws, S.167 applies in civil and criminal case, in the case of Juraimi [read].

We saying that without the evidence of SP1, excluded in the point that demolishing the charge, S.167 or S.422 will not apply. Even if they bring a million witnesses after that, it will waste the court time and the money of the tax payer. It is as simple as that. Much obliged, under that circumstances, we pray YA to allow this application.

Hujahan Responden
MY: This application for stay, it has been misconceived, the file following the appeal notice, the notice is related to ruling by the court. The issue here not whether or not SP1 should be impeach, but whether or not the hunch entitle the defence is entitle for S.112 statement and if they’re then we will supply to the defence. Next is whether there is a material discrepancy. We’re saying about the hunch, we did not go to that yet. So, as far as PP is concern, S.3 of Courts of Judicature Act 1964 preclude the Notice of Appeal so there is no basis for a stay this morning.
If I refer to S.3, Courts of Judicature Act 1964 [read]
The phrase of ‘any ruling’ to be read disjunctively, in fact this have been the stand of this court, any ruling is still a ruling, and therefore it is unappealable.
The case of Raymond Chia and case of PP v RK Menon [Tag 5][read]. So at Tag 4 is the case where the defence asked for the statement made in the course of investigation[][], therefore it is admissible and defence is entitle for it.
The court agreed and ordered for it to be supplied, the PP appeal, but the court say it is unappealable [read].
Here the question of supply do not arise, the issue is whether there was a hunch and the basis of the hunch? If not about the right to the statement.
Refer to Tag 4, it concern of ruling made pursuance to the defence application, it come from the other phrase ‘finally dispose the right of the parties’. Here, KS talk about interlocutory, I refer to [Tag 1] the word ‘interlocutor / interlocutory [read]. Again, it is not final and not appealable.
Supposing that if I’m wrong, then we’ll have to see whether there is any special circumstances, referring to DSAI affidavit, there is a merit in that and something noble. Something noble is not the law, it do not give right to special circumstances.
Refer to Kosma’s case, para 20 and 21 [read]
If the merit holding No.2, the merit of the parties is no a consideration. For completeness I refer to whether it will be nugatory.
Tag 10 refered. Read S.60 of Courts of Judicature Act 1964.
The Federal Court reverted it back to the trial to be [][]
So, to sum up, if I may say, 1st, by virtue S.3 of Courts of Judicature Act 1964, this is a procedure ruling and do not dispose the right of the parties. Secondly, Kosma’s said even if it with merit, it is not relevant and the appeal will not be rendered nugatory. Pray for this trial to continue with SP1 evidence.

Reply
KS: MY tried to pin me down with something I say 30 yrs ago. MY refered to Raymond Chia – 1985 position, MY is living in the past, let’s go the present. This is what “decision” under S.3 of Courts of Judicature Act 1964, then there was an amendment in August 1988 said ‘finally dispose the right of the parties’. It does make a ruling in the trial appealable. The intention of Parliament, if the ruling will dispose the right of the parties. The parties here is PP and DSAI. The evidence of W is impeach render the charge worthless. There is a difference between consensual and non-consensual. The offence can’t be the same, the sentence.

YA: With due respect, I didn’t say that in my judgment.
KS: When YA agreed with MY submission. It is 2 different offences, by my analogy “duck/ chicken”?
Putting aside the Kosma’s nugatoriness, like our two applications has been allowed [][], unless if we want to take it piece by piece, the evidence without any interruption. It is more than 2 weeks. Previously, Court of Appeal have said that what YA said have been reversed. I apply for a stay. It would be in the interest of the justice.

Ct: Stand down
[10:10 am]

[10:38 am]
Mahkamah bersidang semula
JB: Kes dipanggil semula

Keputusan
YA: First, the ruling I made yesterday was a procedural ruling, it does not dispose the right of the parties. Therefore, no right of appeal. For a stay, there must be special circumstances, usually the reason is the application is with merit. However, from DSAI affidavit, there is no special circumstances, therefore the application for stay disallowed.

Mahkamah tangguh
[10:40 am]
[10:45 am]
Mahkamah bersidang semula
JB: Kes untuk sambung bicara
MY: Kes untuk sambungan pemeriksaan balas PW1
KS: I’ve an instruction to apply for a stay at Court of Appeal.
YA: Ok, no more here, must be from Court of Appeal.
KS: I’m asking for an early date.
YA: May I see the parties in chamber?
[10:47 am]

MY, NH, KS, PC, RK, SN ke kamar hakim atas arahan YA.

[10:55 am]

[10:56 am]
JB: Kes dipanggil semula
MY: Panggil SP1

SP1 – bersumpah semula dalam Bahasa Malaysia
KS: I was made to understand some witnesses for identification is here.
MY: Ezam datang 2.30 pm but Rahimi still cannot be contacted.

Q: Selepas 26. 6. 2008, ada jumpa dengan wartawan? In that year?
A: Ada. On the 26th itself, tak ada jumpa wartawan

Q: Perjumpaan dengan wartawan, boleh kamu teliti laporan ini?
[Rujuk SP1 dengan satu laporan wawancara]

YA: What is that? A press statement?
KS: An interview with Malaysia Kini.

Q: Boleh teliti laporan itu? “Diliwat tanpa rela”? Ini adalah Malaysia Kini bertarikh 15 Ogos 2008.
MY: It is hearsay, but you can refer W on that but just to refresh memory. If KS asked the W, whether remember the interview, but not to the content. Because it is as good as tendering the document in court.
KS: If he deny the interview, I will call the press.
YA: Now SP1 can read 1st, then confirm.

[SP1 baca laporan / wawancara secara senyap]

YA: Habis baca?
A: Ya

KS: You confirm that this is your interview? Adakah yang dicatit benar?
YA: As to his statement?
KS: Yes

A: Ya, there is one thing “Ini kali pertama diliwat”. Ada kesilapan di sini “Ini kali pertama kamu diliwat”. The answer is correct.

Q: The answer is correct?
A: Yes

Q: No mistake what so ever?
A: Yes

MY: Ini masalah saya, benda ini tak boleh masuk, so apa yang correct, yang tak correct? Ini untuk refresh memory, now you’re referring to the content. Ini masalah, mahkamah tak tahu apa content dia begitu juga saya. Now, no longer to that, it is inadmissible.

YA: No short cut, you have to go one by one.
KS: Ada kesilapan di sana?
A: Ya

KS: Can we mark that?
YA: No, you can’t mark that. There is no point of marking because it is inadmissible.
Q: Apa kesilapan yang ada? Muka surat?
A; Muka surat 3 ada kesilapan.

Q: Ini kali pertma kamu diliwat? Ya pertama kali
A: ya

Q: Ini yang dicatit tidak benar?
A; Saya tersilap interpret soalan

Q: Yang lain ok?
A: Can I go thru one by one
Q: You dah gone thru?
[SP1 tiada jawapan]

KS: You can go thru that again

[SP1 membaca semula wawancara tersebut secara senyap]

Q: The rest is correct?
A: Looks like it

Q: Is the rest ok?
A: You are trying to trap me

MY: Saya tak nampak nilai soalan ini

KS: You tak tahu apa soalan ini?
YA: Benda-benda ini akan jadi benda tak berguna, we don’t have it, apa yang benar, apa tak yang benar, document itu tak ada pada court

KS: We will supply it to the court

YA: Yang lain benar, apa yang benar tak tahu?
KS: Ok

Q: Why you look so scared?
A: You’re trying to trap me, I cannot confirm 100% this is what I said.

Q: You cannot confirm what you said in page 3?
A: Yes

Q: The rest is ok?
A: Maybe ada, tapi saya tak nampak lagi ada yang salah atau tidak, jadi saya tak berani confirm 100%
Q: Kamu bohong?
A: Maksud saya [saksi tak sempat habiskan jawapan]

Q: Bukan maksud, tetapi apa yang ada di sana, Liwat muka surat 1 “dia tak pernah diliwat sebelum ini?”
A: Maksud saya diliwat [jawapan dipotong oleh KS]

Q: Dia tak pernah diliwat sebelum ini?
A: Ada first page. You are trying to put the words[][]]

YA: What is the evidence? You keep asking apa yang ada di situ, apa yang tidak ada di situ.
Q: Ada bagitahu reporter, bahawa awak diliwat oleh Anwar untuk kali yang pertama berlaku ke atas dirinya dan awak tak pernah diliwat sebelum ini?
You don’t argue
A: Jawapan saya, saya ada bagitahu begitu

Q: Diliwat adalah kali pertama?
A: Ya

YA: You dah tanya tadi

Q: Saya katakan kamu telah berbohong di makamah ini?
A: Tak setuju

Q: Kamu bohong di mahkamah apabila kata ada jumpa dengan TPM pada masa itu pada 24 Jun 2008 bahawa awak diliwat oleh DSAI?
A: Tolong ulang

Q: You’re telling lies, that why you want me to repeat. Kamu bohong di makamah apabila kata ada jumpa dengan TPM pada masa itu dan buat aduan pada 24 Jun 2008 bahawa awak diliwat oleh DSAI beberapa kali?
A: Tidak setuju

Q: Berbalik kepada keterangan dalam makamah, ada 2 adik-beradik? Kamu yang sulong?
A: Setuju

Q: You’re from a broken family?
A: Ya, ibubapa saya bercerai

Q: Ibubapa bercerai?
A: Ya

Q; Sebelum Mac 2008, adakah benar kamu menyokong BN khasnya UMNO? Penyokong kuat?

MY: Apa relevan ini, penyokong kuat ke tak? The issue is 26 Jun
KS: This is political conspiracy

MY: The law say that this is something collateral, may or may not allow by the court. I think it is S.148 EA [read]. I must say it come under (b) and (c)[][]
KS: Cross exam of a W normally in wide latitude, we are saying there is a political conspiracy. By the TPM then, why the Deputy of UMNO he went to see? We are saying there is political conspiracy if YA looked at the circumstances and would be relevant.

MY: Not long ago, before the Session Court, the defence refer to Zuma’s case, went to the apex court, one of the basis to strike out the charge is political conspiracy. [][] More than 10 years ago, political conspiracy is not relevant. Unless it is so necessary, I did not see the relevant or important of the question. SP1 is a very young man, why asked about broken family and political conspiracy?

KS: MY referring to cases but did not produce it. Let’s trash it out whether it is relevant. It is[][]

YA: At this stage I allow the question.

Q: Penyokong kuat BN?
A: Saya sokong BN tapi undi saya pada Sivarasa and Elizabeth Wong, mereka adalah wakil di tempat saya.

Q: Sokong BN, tetapi undi PKR?
A: This is free country

YA: Itu komen, bukan soalan

MY: Exactly what this S.148 EA is try to prevent
KS: It goes to the credibility.
MY: It is not for you to decide.
YA: Other question.

Q: Penyokong kuat BN dan undi PKR, ini pengkhianat?
A: Pengkhianat kepada siapa, tidak setuju

Q: 24 Jun 2008, ada nyatakan aduan pada TPM telah diliwat oleh DSAI?
A: Setuju

Q: Cadang pada kamu apa yang terjadi dirancang oleh kamu dengan bantuan polis dan TPM?
A: Boleh eloborate apa yang terjadi, apa yang jadi?

Q: Diliwat 26hb dengan bantuan polis dan TPM?
A: Tak setuju

Q: Kenapa berjumpa dengan DSP Rodwan?
A: Saya ceritakan masalah saya telah diliwat beberapa kali di dalam dan di luar negara

Q: Tadi kata yang pertama sahaja, ada dalam hitam putih, dalam Malaysia kini?
A: Tak setuju

Q: Kamu pembohong besar?
A: Tak setuju

YA: Let me see S.148, Bar Council is here isn’t it?

Q: Berbohong besar atas pernyataan tadi, kata yang pertama?
A: Tak setuju

YA: Proceed

Q: Ada ambil langkah-langkah untuk betulkan apa di dalam Malaysia kini?
A: Tidak buat apa-apa, saya tak baca sebab saya tak tahu

Q: Bukan dalam Malaysia kini sahaja, ini adalah kenyataan umum, bukan 1 atau 2, banyak?
A: Saya salah interpret soalan

MY: Dia dah jawab soalan
KS: MY help to answer for you, even he’s not under oath.

Q: Because you didn’t read?
A: Saya terlepas pandang

Q: Adakah biasa beri press conference then betulkan apa yang benar?
A: Saya biasa baca

Q: Ada blog?
A: Ada

Q: Kamu biasa baca?
A: Ya. Mistake

Q: Beri amaran sekali lagi, cakap yang benar? Bolah dipenjarakan 7 tahun?
A: Ya

KS: I don’t want you to go to prison, that why I keep reminding you.
MY: That is not for KS to decide.
YA: Please ask question KS.

Q: You’re not telling the truth?
A: No

Q: Kejadian 26 Jun 2008?
A: Ya

Q: 26 Jun tak mandi? Langsung tidak?
A: Saya ada bilas badan

Q: Bukan mandi?
A: Of course morning 26hb I took a bath

Q: Lepas pagi?
A: Lepas kejadian saya tak mandi dan hanya bilas, saya nak simpan bukti

Q: Buat laporan polis 28hb? Apa ini? Simpan bukti 26hb? Kenapa tak pergi balai polis terus? Bukti ada di sana?

YA: Apa soalannya?

Q: 26hb ada peluang buat laporan polis selepas kejadian?
A: Ada peluang

Q: Tidak menggunakan peluang itu walaupun ada?
A: Tidak

Q: 27hb pun ada peluang?
A: Ada

Q: Tetapi tak guna peluang itu?
A: Tidak

Q: Kenapa?
A: Saya ingin dapatkan nasihat kerana ini melibatkan maruah dan masa depan saya

Q: Buat laporan pada 28hb? Rujuk P3, pada 5.55 ptg pada 28 Jun? Kenapa buat laporan polis pada hari itu dan bukan sebelumnya?
A: Saya nak dapatkan nasihat dan pandangan seperti pakcik saya, Tuah, Dato’ Mumtaz, rakan saya Rahimi dan saudara Ezam dan seorang guru agama pada 28hb pagi

Q: Balik pada 26hb, nyatakan ada pergi kondo ini? Tiba bila?
A: 2.45 ptg

Q: Hantar fail pada DSAI?
A: Ya

Q: Siapa beri fail?
A: En Ibrahim yaacob, ketua staf DSAI

Q: Bila dapat fail?
A: 1.30

Q: 1.30 dapat fail dan pergi tempat 2.45?
A: Ya

Q: You drove there?
A: Ya

Q: Dari PJ, pejabat PKR?
A: Ya, bukan dari pejabat DSAI

KS: It’s doesn’t matter.
Q: Ambil masa lebih dari 1 jam?
A: Ya

Q: Tak berapa jauh bukan?
A: Tidak

Q: Ada pergi mana-mana sebelum pergi condo?
A: Semasa saya keluar dari pejabat, saya perasan ada motor ekori saya, saya cuba melarikan diri sebab itu ambil masa yang lama untuk sampai

Q: 2.45 sampai tempat ini?
A: Ya

Q: Terus pergi mana?
A: Visitor parking, P4

Q: Lepas itu?
A: Dari parking, naik lif ke P2, naik lif lagi, terus ke Unit kediaman En Hassanuddin

Q: Straight to this condo, 11-5-1?
A: Ya, saya pergi ke unit 11-5-1

Q: Sebelah adalah unit lain?
A: Di hadapan ada

Q: Ada pernah pergi unit itu? Sebelum kejadian?
A: Tidak pernah

Q: Unit ini berapa jauh dari unit kamu tadi, 11-5-1?
A: Berhadapan, Unit 11-5-2

Q: Siapa tuan punya?
A: En. Hassanuddin, tuan rumah yang sama

Q: Ada pernah jumpa En Hassanudin?
A: Ya

Q: Berapa jauh jarak Unit 11-5-1 dengan jarak Unit 11-5-2?
A: Dari sini ke jarak Dato CV

YA: Saya rekod dari kandang saksi ke hujung meja ke dua peguam

Q: Bila masuk dalam unit ini, pintu terbuka?
A: Semasa saya sampai pintu tertutup tetapi tak berkunci

Q; Apa yang dinyatakan dalam keterangan terdahulu, DSAI ada dalam unit itu?
A: Ya

KS: Some part of evidence is in camera,
YA: Finish up yang not in camera

KS: I need time to peruse the NOP 1st
YA: Usually Witness yang minta in camera not the lawyer. Tangguh 2.15 pm.
Petang ini dalam camera, members of public tak boleh ada dalam makamah
MY: Kali terakhir dulu, observer dibenarkan
YA: Ya

Court adjourned
[11:55 am]

[02.30 pm]
Sesi In-Camera
[03:08 pm]
Prosiding di Mahkamah Terbuka
[03:08 pm]

Prosiding di Mahkamah Terbuka
Q: Semalam ada kata jumpa Ezam Md Nor?
A: Ya
Q: Boleh cam Ezam?
A: Ya

KS: Ini Ezam?
A: Ya

Mohd Ezam bin Mohd Nor dicamkan

MY: Ada seorang lagi, investigating officer tak dapat mencari dia semalam, masih mencari lagi
KS: What we do now?

Q: 27hb ada menyertai meeting?
A: Tidak

Q: Ada perjumpaan di pejabat PKR?
A: Ada tetapi saya tak pasti kerana saya tak masuk

KS: Can we stand down for a while? 10 minutes?
YA: Stand down
[03:03 pm]

[03:30pm]
JB: kes dipanggil semula

Q: Pada 27hb Jun 2008, hari Jumaat, pada 10 pagi, ada pergi ke majlis di Merchant Square?
A: Ya, ada pergi lebih kurang 9.30 pagi

Q: Lebih kurang 11 pagi hantar sms ke En Ibrahim Yaacob dengan kandungan “[][][]”?
A: Saya tak ingat

Q: Ada hantar sms, contact?
A: tak ingat, tetapi everyday saya contact dia
Q: Lebih kurang 11.10 minit, kamu ada hantar sms lagi “urgent … trainning… they want to book a flight tickets….?
A: Tak ingat

Q: Ada ke kediaman DSAI lebih kurang pukul 5?
A: Ada, meeting blogger dan AI club

Q: Kamu ditunjukkan gambar pada pukul 7.05 petang?
A: Ya

Q: You look quite happy serving tea?
A: Ya

KS: Gambar as exhibit
MY: Remain as ID till the end of this case, in Dato’ Harun case, Federal Court has said that a document if remain as ID, it should not be considered.
YA: DO you want to mark it as ID?

KS: It doesn’t matter because he admitted to it.
Q: You admitted that you went there and served tea?
A: Yes

Q: Let is remain as ID for what ever it’s worth.

Q: 28hb Jun keesokan hari ada contact dengan pejabat PKR?
A: Saya tak ingat

Q: Ada jumpa dengan sesiapa pada hari itu?
A: Pakcik saya, Tuah, pagi itu saya ke rumah seorang guru agama, saya panggil ‘Atuk” di Gombak, saya tak tahu nama dia

Q: Orang lain? Dato’ Mumtaz?
A: Tidak jumpa Dato’ Mumtaz. Di Hospital ada jumpa Rahimi yang melawat saya di OSCC, selain dari Dr.

Q: Bila dapat nasihat dari Dato’ Mumtaz?
MY: KS tak boleh assumed, must lay foundation 1st.
KS: He said that he get advice.
MY: No, he said that he went to seek advice, not get advice.
YA: Then you should ask whether he did get the advice.
Q: Adakah dapat nasihat dari Dato’ Mumtaz untuk buat laporan?
A: Tidak, dia tak setuju untuk saya buat laporan

Q: Buat laporan atas nasihat siapa?
A: On my own will

KS: I will stop at this point, will reserved cross, which I can only do at the end of this case.
MY: Can I start my re-exam?
KS: Don’t be hasty
YA: You nak minta tangguh lagi?
KS: Yes, to tight up beads and end
YA: They are asking for an adjournment.
MY: I can start my re-exam. I only have 3 questions.
KS: It should be at the end of the case.
YA: If it 3 question, you can wait.
MY: I thought that the witness has waited for so long.
YA: Tomorrow?
KS: Since we already filed in NOA, we intent to apply to Court of Appeal for a stay, we need time to do that.
YA: MY?
MY: In the interest of the justice, what ever it means, no objection.
KS: It can only be one thing, for a fair trial
YA: Tangguh hingga 31 Mei 2010.
Court adjourned. [03:42 pm]

+++++++++++ Full English Version ++++++++

J3 High Court, Kuala Lumpur

Before Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Parties : As before [with presence of Raymond Leong for Bar Council]

[09:25 am]

JB: Hearing of application No: 44-127-2010

MY: Parties of the same. To hear application for adjournment of proceedings.

Application for adjournment of proceedings

Applicant’s Statement

KS: This application is supported by affidavit DSAI. We are asking for a stay of proceeding, pending disposal of appeal by the Court of Appeal which is filed yesterday. Refer to DSAI affidavit, the basis of application at para 7 that the order that YA given is a final order and therefore it is appealable to the Court of Appeal.
We must show that it is final order. Refer to s.50(1) Courts of Judicature Act 1964 [Tag 2][read] in relation of jurisdiction of Court of Appeal for criminal appeal.

We have the word ‘decision’ in s.3 of Courts of Judicature Act 1964. The meaning of ‘decision’ means any judgment…[read] that finally disposed the right of the parties.
Refer Tag 4 decision of Federal Court against YA decision will not be apply here. The discussion at pg 7 of Tag 4. Various cases referred on this issue but it is about the ‘finality of the order’.

It is final order for these reasons, if the appeal succeed or if the Lordship made a decision in our favour for the supply of s.112 st, then YA of course have ruled and the ruling was very clear adopted the submission of MY. What came up in this application is whether the hunch we have is related to non-consensual intercourse against the order of nature. YA has taken the approached bet 377B and 377C is the enhancement of penalty. YA decision that the offence is the same. The reason by YA does not back up our ruling here. I put it this way, the evidence talk about the chicken, but the charge talks about the duck. It is the position here, the evidence by SP1 relates to non-consensual sex, if the statement under s.112 or any other statement that have been supplied to us will be able to shows contradiction, namely it would be consensual coz the charge is under s.377B. I said this because the effect of this would be for impeachment.

Refer to Tag 5, case of Metrolim [][][read] but this is go beyond that, the evidence in ct which contradict the charge. The position that we said, it is the end of the case, therefore it is final order, and not an interlocutory order, it may be in term as a ruling but it finally dispose the right of the parties.

With regards of the proceeding if the application is not allowed, then if we succeed, this proceeding will be nugatory. Refer to Kosma’ case [read]. What are special circumstances? In the DSAI affidavit, special circumstances no. 2, if the stay is not allowed, the proceeding will be nugatory. In the case of Brad Andrew and []

Refer to [] [read]

Here, it is a nugatory if the ct does not allowed a stay, there is other circumstances, it is the 1st time this kind of situation came up in this country, whereby the evidence given in court, statement given under oath does not reflection the charge itself. This is what happened here. MY refers to s.422 CPC, speak of irregularity, curable, but this go beyond irregularity, the impact explode the whole charge. MY also refer to s.167 EA [read].

If the evidence of PW1 is rejected, worthless, more independent evidence cannot save the position.

Refer to Tag 10 of PP bundle. S.167 and the other laws, s.167 applies in civil and criminal case, in the case of Juraimi [read].

We saying that without the evidence of SP1, excluded in the point that demolishing the charge, s.167 or s.422 will not apply. Even if they bring a million witnesses after that, it will waste the ct time and the money of the tax payer. It is as simple as that. Much obliged, under that circumstance, we pray YA to allow this application.

Respondent’s statements

MY: This application for stay, it has been misconceived, the file following the appeal notice, the notice is related to ruling by the ct. The issue here not whether or not SP1 should be impeach, but whether or not the hunch entitles the def is entitle for s.112 statement and if they’re then we will supply to the def. Next is whether there is a material discrepancies. We’re saying about the hunch, we did not go to that yet. So, as far as PP is concern, s.3 of Courts of Judicature Act 1964 preclude the Notice of Appeal so there is no basis for a stay this morning.

If I refer to s.3. Courts of Judicature Act 1964 [read]

The phrase of ‘any ruling’ to be read disjunctively, in fact this have been the stand of this ct, any ruling is still a ruling, and therefore it is unappealable.

The case of Raymond Chia and case of PP v RK Menon [Tag 5] [read]. So at Tag 4 is the case where the def asked for the statement made in the course of investigation[][], therefore it is admissible and def is entitle for it.

The court agreed and ordered for it to be supplied, the PP appeal, but the court say it is unappealable [read].

Here the question of supply do not arise, the issue is whether there was a hunch and the basis of the hunch? If not about the right to the statement.

Refer to Tag 4, it concern of ruling made in pursuance to the def application, it come from the other phrase ‘finally dispose the right of the parties’. Here, KS talk about interlocutory, I refer to [Tag 1] the word ‘interlocutor / interlocutory [read]. Again, it is not final and not appealable.

Supposing that if I’m wrong, then we’ll have to see whether there is any special circumstances, referring to DSAI affidavit, there is a merit in that and something noble. Something noble is not the law, it do not give right to special circumstances.

Refer to Kosma’s case, para 20 and 21 [read]

If the merit holding No.2, the merit of the parties is no a consideration. For completeness I refer to whether it will be nugatory.

Tag 10 refer. Read s.60 of Courts of Judicature Act 1964.

The FC reverted it back to the trial to be [][]

So, to sum up, if I may say, 1st, by virtue s.3 of Courts of Judicature Act 1964, this is a procedure ruling and do not dispose the right of the parties. Secondly, Kosma’s said even if it with merit, it is not relevant and the appeal will not be rendered nugatory. Pray for this trial to continue with SP1 evidence.

Reply

KS: MY tried to pin me down with something I say 30 yrs ago. MY refer to Raymond Chia – 1985 position, MY is living in the past, lets go the present. This is what “decision” under s.3 of Courts of Judicature Act 1964, then there was an amendment in August 1988 said ‘finally dispose the right of the parties’. It does make a ruling in the trial appealable. The intention of Parliament, if the ruling will dispose the right of the parties. The parties here is PP and DSAI. The evidence of W is impeach render the charge worthless. There is a dif between consensual and non-consensual. The offence can’t be the same, the sentence.

YA: With due respect, I didn’t say that in my judgment.

KS: When YA agreed with MY submission. It is 2 different offence, by my anology “duck/ chicken”?

Putting aside the Kosma’s nugatoriness, like our two applications has been allowed [][], unless if we want to take it piece by piece, the evidence without any interruption. It is more than 2 weeks. Previously, Court of Appeal have said that what YA said have been reversed. I apply for a stay. It would be in the interest of the justice.

Ct: Stand down

[10:10 am]

[10:38 am]

Court in session again.

JB: Recall the case

Ruling

YA: 1st, the ruling I made yesterday was a procedural ruling, it does not dispose the right of the parties. Therefore, no right of appeal. For a stay, there must be a special circumstances, usually the reason is the application is with merit. However, from DSAI affidavit, there is no special circumstances, therefore the application for stay disallowed.

Court adjourned.

[10:40 am]

[10:45 am]

Court in session again.

JB: Continue with hearing of the case.

MY: Case to continue cross-examination of PW1

KS: I’ve an instruction to apply for a stay at Court of Appeal.

YA: Ok, no more here, must be from Court of Appeal

KS: I’m asking for an early date.

YA: May I see the parties in chamber?

[10:47 am]

MY, NH, KS, PC, RK, SN to chambers as instructed by YA.

[10:55 am]

[10:56 am]

JB: Recall the case

MY: We call SP1

SP1 – takes oath in BM

KS: I was made 2 understnd some witnesses for identification is here.

MY: Ezam is coming at 2.30pm but Rahimi still cannot be contacted.

Q: After 26.6.2008, did you meet with reporters? In that yr?

A: I did. On the 26th itself, I did not meet any reporters.

Q: The meeting with reporters, can you look closely at this report?

[Refers SP1 with an interview report]

YA: What is that? A press statement?

KS: An interview with Malaysia Kini

Q: Look closely at the report. “Sodomized without consent”? This is Malaysia Kini dated 15 Aug 2008

MY: It is hearsay, but you can refer W on that but just to refresh memory. If KS asked the W, whether remember the interview, but not to the content. Because it is as good as tendering the document in court.

KS: If he deny the interview, I will call the press.

YA: Now SP1 can read 1st, then confirm.

[SP1 reads the report / interview in silence]

YA: Finished reading?

A: Yes

KS: U confirm that this is your interview? Is what is written true?

YA: As to his statement?

KS: Yes

A: Yes, there is one thing “First time sodomized”. There is a mistake here “First time you were sodomized”. The answer is correct.

Q: The answer is correct?

A: Yes

Q: No mistake what so ever?

A: Yes

MY: This is a problem, this cannot be included, so what is correct, what is not correct? This is to refresh memory, now you’re referring to the content. The problem is the ct doesn’t know what the content is, and neither do I. Now, no longer to that, it is inadmissible.

YA: No short cut, you have to go one by one.

KS: There is a mistake there?

A: Yes

KS: Can we mark that?

YA: No, u can’t mark that. There is no point of marking because it is inadmissible.

Q: What’s the mistake? Page?

A; There is a mistake on page 3.

Q: This is the first time you were sodomized? Yes, the first time.

A: Yes

Q: This statement is incorrect?

A; I misintepretted the question.

Q: The rest is ok?

A: Can I go thru one by one

Q: U have gone thru?

[SP1 does not respond]

KS: You can go thru that again

[SP1 reads the article again in silence]

Q: The rest is correct?

A: Looks like it

Q: Is the rest ok?

A: You are trying to trap me

MY: I do not see the purpose of the question.

KS: You tak tahu apa soalan ini? You don’t know what the question is?

YA: All this is worthless, we don’t have it, what is true, what is not, the documents are not with the court.

KS: We will supply it to the court

YA: Everything else is true, what is true is not known?

KS: Ok

Q: Why you look so scared?

A: You’re try to trap me, I cannot confirm 100% this is what I said.

Q: You cannot confirm what u said in pg 3?

A: Yes

Q: The rest is ok?

A: Maybe it is, but I cannot see for sure any other mistakes, so I dare not confirm 100%

Q: You lied?

A: I meant [witness was cut-off from continuing]

Q: Not meant, but what is there, Sodomized on page 1 “he was not sodomized before that?”

A: I meant sodomized [KS interrupts witness from continuing]

Q: He was not sodomized before that?

A: There was, 1st page.. You are tryin to put the words[

YA: What is the evidence? You keep asking what is there, what is not there.

Q: Did you tell the reporter that you were sodomized by Anwar for the 1st time and that you were never sodomized before that?

You don’t argue

A: My reply is, that I said it as such.

Q: Sodomized for the 1st time?

A: Yes

YA: You already asked that

Q: I put it to you that you lied in this court

A: I deny it

Q: You lied in court when you said that you met DPM on 24 June 2008 and told him you were sodomized by DSAI?

A: Please repeat.

Q: You’re telling lies, that why u want me 2 repeat. You lied in court when you said that you met DPM on 24 June 2008 and told him you were sodomized several times by DSAI?

A: I disagree.

Q: Going back to testimony in court, you have 2 siblings? You’re the youngest?

A: Yes

Q: You’re from a broken family?

A: Yes, my parents are diveroced.

Q: Divorced parents?

A: Yes

Q; Before March 2008, is it not true that you were an UMNO supporter? A strong supporter?

MY: What is the relevance, supporter or not? The issue is 26 June

KS: This is political conspiracy

MY: The law say that this is something collateral, may or may not allow by the ct. I think it is S.148 EA [read]. I must say it come under (b) and (c)[][]

KS: Cross exam of a W normally in wide latitude, we are saying there is a political conspiracy. By the DPM then, why the Deputy of UMNO he went to see? We are saying there is political conspiracy if YA looks at the circumstances and would be relevant.

MY: Not long ago, before the Session Ct, the def refer to Zuma’s case, went to the apex ct, one of the basis to strike out the charge is political conspiracy. [][] More than 10 yrs ago, political conspiracy is not relevant. Unless it is so necessary, I did not see the relevant or important of the question. SP1 is a very young man, why asked about broken family and political conspiracy?

KS: MY referring to cases but did not produce it. Let’s trash it out whether it is relevant. It is[][]

YA: At this stage I allow the question.

Q: A strong supporter of BN?

A: I supported BN but I voted for Sivarasa and Elizabeth Wong, they are the representatives of my area.

Q: Support UMNO but voted for PKR?

A: This is free country

YA: That’s a comment, not a question.

MY: Exactly what this s.148 EA is try to prevent

KS: It goes to the credibility.

MY: It is not for you to decide.

YA: Other question.

Q: UMNO supporter, but voted for PKR. That’s treason?

A: A traitor to whom? I don’t agree.

Q: 24 June 2008, did you not say that you reported to the DPM that you were sodomized by DSAI?

A: I agree

Q: I put it to you that what happened to you was planned with the assistance of the police and DPM.

A: Please elaborate what happened, what transpired.

Q: Sodomized on 26th with the assistance of the police and DPM?

A: I disagree

Q: Why did you meet DSP Rodwan?

A: I recounted that I was sodomized several times in the country and overseas.

Q: Earlier you said for the first time only, it is in black and white, in Malaysia Kini.

A: I do not agree

Q: You’re a big liar?

A: I do not agree

YA: Let me see s.148, Bar Council is here isn’t it?

Q: A big lie with the comment, saying for the 1st time?

A: I do not agree

YA: Proceed

Q: Did you take any action to correct what appeared in Malaysia Kini?

A: I didn’t do anything. I didn’t read it so I didn’t know.

Q: Not only in Malaysia Kini, this is a general statement, not just 1 or 2, but many?

A: I misinterpreted the question

MY: He has answered that question.

KS: MY help to answer for you, even he’s not under oath.

Q: Because you didn’t read?

A: I overlooked.

Q: Is it normal to give a press conference then correct what is true?

A: I normally read.

Q: Do you blog?

A: I do

Q: You normally read?

A: Yes. Mistake

Q: I warn you again, tell the truth. You can be jailed for 7 years.

A: Yes

KS: I don’t want you to go to prison, that why I keep reminding you.

MY: That is not for KS to decide.

YA: Please ask question KS.

Q: You’re not telling the truth?

A: No

Q: The incident on 26 June 2008?

A: Yes

Q: 26 June didn’t bathe? Not at all?

A: I just wiped my body

Q: But not bathed?

A: Of course morning 26hb I took a bath

Q: After the morning?

A: After the incident I did not bathe, but just wiped my body, I wanted to keep the evidence.

Q: Made the rport of 28th? What’s this? Keep the evidence from 26th? Why didn’t you go straight to the police station? The proof was there?

YA: What is the question?

Q: Did you not have the opportunity to report to the police on 26th?

A: I did have the opportunity.

Q: But you didn’t make use of the opportunity?

A: No

Q: Any opportunity on 27th?

A: There was.

Q: But didn’t use the opportunity?

A: No

Q: Why not?

A: I wanted to get advice as this dealt with my reputation and my future.

Q: Made the report on 28th? Refer Pg 3, at 5.55pm on 28th June? Why make the rport then and not before?

A: I wanted to the the advice and opinion of others such as my uncle Tuah, dato Mumtaz, my friend Rahimi, Ezam and a religious teacher on 29th morning.

Q: Going back to 26th, you mentioned that you went to the condominium. When did you reach there?

A: 2.45pm

Q: Delivering files to DSAI?

A: Yes

Q: Who gave you the files?

A: En Ibrahim yaacob, DSAI Chief of staff.

Q: When did you get the files?

A: 1.30pm

Q: 1.30pm you got the files but went to the place only at 2.45pm?

A: Yes

Q: You drove there?

A: Yes

Q: From PJ, PKR office?

A: Yes, not from DSAI’s office.

KS: It’s doesn’t matter.

Q: Took more than1 hour?

A: Yes

Q: Not too far, correct?

A: No.

Q: Did you go anywhere else before going to the condominium?

A: When I left the office, I felt that I was being followed by a motorcycle, so I tried to shake it off my tail so it took me a bit longer to reach.

Q: Arrived there at 2.45pm?

A: Yes

Q: And then to where?

A: Visitor parking, P4

Q: After that?

A: From the parking, by elevator to P2, then again by elelvator to the residence of En Hassanuddin.

Q: Straight to this condo, 11-5-1?

A: Yes, I went to unit 11-5-1

Q: Next to it there is another unit?

A: Opposite it.

Q: Have you been to that unit? Before the incident?

A: Never

Q: This unit, how far is it from the unit you went to, 11-5-1?

A: Facing, Unit 11-5-2

Q: Who owns it?

A: En. Hassanuddin, the same owner

Q: Have you met En Hassanudin?

A: Yes

Q: What is the distance from Unit 11-5-1 to Unit 11-5-2?

A: From here to where Dato CV is.

YA: I record that it is from the witness stand to the lawyers’ table.

Q: When you entered the apartment, the door was opened?

A: When I arrived, the door was closed but it wasn’t locked.

Q; What you said in your statement earlier, DSAI was in the unit?

A: Yes

KS: Some part of evidence is in camera,

YA: Finish up what was not in camera

KS: I need time to peruse the NOP 1st

YA: Usually Witness who asked for the camera, not the lawyer. Adjourned to 2.15 pm.
This evening’s proceedings in camera, members of public may not be present in court.

MY: The last time, observers were allowed.

YA: Yes

Court adjourned

[11:55 am]

[02:30 pm]

Proceedings “in camera”

[03:08 pm]

Open proceedings in court

Q: Yesterday you said you met Ezam Md Nor?

A: Yes

Q: Can you identify Ezam?

A: Yes

KS: Is this Ezam?

A: Yes

Mohd Ezam bin Mohd Nor is identified

MY: There’s another person, IO, couldn’t find him yesterday, still looking for him.

KS: What we do now?

Q: 27th you joined the meeting?

A: No

Q: There was a meeting at the PKR office?

A: There was, but I can’t be certain as I was not in it.

KS: Can we stand down for a while? 10 minutes?

YA: Stand down

[03:03 pm]

[03:30pm]

JB: Case is recalled

Q: On 27th June 2008, a Friday, at 10am, did you attend a function at Merchant Square?

A: Yes, I did, around 9.30am

Q: About 11am, you sent an sms to En Ibrahim Yaacob which said “[][][]”?

A: I do not remember

Q: Did you send an sms, contact?

A: I can’t remember, but I contacted him everyday.

Q: About 11.10am, you sent another sms “urgent … training… they want to book a flight tickets….?

A: I cannot recall.

Q: Did you go to DSAI’s residence at 5pm?

A: I did, there was a blogger’s meeting and AI club.

Q: You were photographed at 7.05pm?

A: Yes

Q: You look quite happy serving tea?

A: Yes

KS: Photograph as exhibit.

MY: Remain as ID till the end of this case, in Dato’ Harun case, FC has said that a doc if remain as ID, it should not be considered.

YA: Do you want to mark it as ID?

KS: It doesn’t matter because he admitted to it.

Q: You admitted that you went there and served tea?

A: Yes

Q: Let is remain as ID for what ever it’s worth.

Q: Next day, 28th June, were you in contact with the PKR office?

A: I can’t remember.

Q: Did you meet anyone on that day?

A: My uncle, Tuah. Also that morning, I went Gombak, to the house of a religious teacher, whom I call “Atuk”, I don’t know his real name.

Q: Anyone else? Dato Mumtaz?

A: Didn’t meet Dato’ Mumtaz. At the hospital, I met Rahimi who met me at OSCC, besides the doctors.

Q: When did you receive advice from Dato’ Mumtaz?

MY: KS x assumed, must lay foundation 1st.

KS: He said that he get advice.

MY: No, he said that he went to seek advice, not get advice.

YA: Then you should ask whether he did get the advice.

Q: Did you get any advice from Dato Mumtaz to make a report?

A: No, he didn’t agree that I should make a report.

Q: Made the report on whose advice?

A: On my own will

KS: I will stop at this point, will reserved cross, which I can only do at the end of this case.

MY: Can I start my re-exam?

KS: Don’t be hasty

YA: You want to ask for adjourment?

KS: Yes, to tight up beads and end

YA: They are asking for an adjournment.

MY: I can start my re-exam. I only have 3 questions.

KS: It should be at the end of the case.

YA: If it 3 question, you can wait.

MY: I thought that the witness has waited for so long.

YA: Tomorrow?

KS: Since we already filed in NOA, we intent to apply to Court of Appeal for a stay, we need time to do that.

YA: MY?

MY: In the interest of the justice, what ever it means, no objection.

KS: It can only be one thing, for a fair trial

YA: Adjourned until 31st May 2010.
Court adjourned.

[03:42 pm]

Comments»

1. Ubbig - May 14, 2010

Apesal tajuk ni 2 kali…
ke ni 13.5.2010 nye…?

2. Malaysian - May 14, 2010

Sorry for the error… Corrected and thank you


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