Anwar Ibrahim Sodomy II – The Recorded Truth – 18 June 2010

Hujahan Permohonan Case Note Dr. Hospital Kuala Lumpur di bawah Per. 5(1) Federal Constitution(FC)
Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

[9.40 a.m.]
Pihak-pihak:
PP:     Semua hadir
PB:     KS, SN, Datuk Param Cumaraswam, Sangeet Kaur, (Marissa, Radzlan, Ram Karpal Singh tidak hadir)
AI tidak hadir

MY:     Kes untuk pendengaran permohonan oleh AI berdasarkan notis usul 44-139-2010. Pihak pendakwaan masih sama. Pemohon masih peguam-peguam yang sama. Pihak-pihak bersedia.

YA:     Kita ada dua permohonan. Salah satu kena withdraw.

KS:     Yes YA. We will go for 44-139-2010.

YA:     Permohonan 44-138-2010 dibatalkan. Sekarang untuk perbicaraan permohonan 44-139-2010.

KS:     YA, we’ve prepared the submission. The basis of the application is stated from page 1 to 3 of our submission. [read submission]

MY:     My Lord, the respondent has prepared a written submission, we are opposing the application because of the following reasons: no.1 – no specific law is cited to support this application as per page 4-5; no.2 – there are no contradictions in the evidence given by SP2 in court and the earlier findings in the medical report dated 13.07.2008 at page 5-11; no.3 – the documents requested are not necessary for the purpose of cross-examination of SP2 and the other 2 doctors as per page 11-12; and no.4 – the defence is not entitled to inspect those documents as per page 12-22.

At page 1 to page 3, we cited the application of the applicant. [read page 2, items i, ii, iii and iv]

[read page 3, para 2, 3 and 4]

Our first contention is that why it should be dismissed is because no specific law is cited to support this application. Article 5(1) of FC is general in application.   This application is made based on Article 5(1) FC. To what we want to know is that, in a course of the trial, the meanings of the Criminal Procedure Code (CPC) and other relevant law must be taken into consideration.

Before, their application is made under S.51 and S.51A of CPC, but here nothing was stated. This morning, apparently by looking at my learned friend was citing S.51CPC by referring to Raymond Chia and DSAI.

My answer is this, S.51 may be invoked, but it must only be invoked after seeing all the relevant law. For example, S.11EA and S.402A CPC.

[read page 4, para 9], [read case at tab 14]

YA:     You are saying that intitulement only stated Article 5 of FC and the case which is too general.

MY:     Yes. [read page 6, para 12]. With regard to AI’s affidavit which says that there are contradictions, we do not see any contradiction. We have SP2 repeating the clinical findings which at that point in time was done based on the fact the location of the swab was still unknown. NST is the only newspaper that said the doctor changed his opinion, and I don’t know how they got it.

In Husdi, contradictions happen outside the court. But here, both the documents and testimony of the witness are in court. Now they want to see something outside the court.

YA:     But they did not say this. They are saying their expert need the documents. I don’t think that they have said about the hunch.

MY:     But in AI’s affidavit says there are contradictions. Why do you need the documents outside the court when the documents are actually in court? Hunch is based on something outside the court as referred to Mokhtar Hashim’s case.

They want for example, complete medical history of SP1. SP2 has already testified as to the medical history of SP1. If they want further they should ask it during cross-examination. This is what cross-examination is all about. They asked for the standard sexual assault Performa and sexual assault kits used in examining SP1. We’ve even asked about the experiences and qualifications of SP2, the equipment used was also asked. As an expert, he must know how the procedure is being done because as a forensic scientist, he knows exactly what need to be observed. If they want something more, it could be elicited from cross-    examination. We’ve stated in our submission in page 9.

YA:     Your last statement, you mean to say that during cross-examination they may ask about it and not at this stage?

MY:     Yes. They may ask. In fact, we’ve already asked those questions.  If they want to challenge the procedure etc, they may ask if they want to ensure it.  Because he don’t need the documents in order to advise the defence in preparing for cross-examination of the doctors.

[read page 10, para 25]

[read page 11,para 27]

[read page 12, para 32]

[read page 14,para 34]

[read page 14, para 35]

We refer to PP v Ramasami [read page 16, para 37].

[read page 18, para 40]

[read page 19, para 41]

We also referred to case Wong Kok Keong and Balachandran. We also had an extract of Sarkar’s Law of Evidence [read page 19 and 20, para 43].

[read tab 5 on S.159 EA] [read S.160] Until and unless SP2 made reference to all the documents when he is being questioned, the entitlement to look at the documents is prohibited by the law.

[read page 20, para 44]

[read page 20, para 45]

[read page 21, para 46] This is supported by commentary of Augustine Paul     [read tab 18, pg 1131, second para]

It is stated in our summary, whether or not the defence is entitled, the documents must first be admissible; no.2, even if not admissible, they can inspect if the documents are being used in refreshing the memory of the witness; and no.3, there must be something to make the court convinced that it is not consistent as in Husdi and Mokhtar Hashim’s case.

The application should be dismissed based on this 3 basis ; firstly, there is no entitlement, secondly – there no contradictions between what is said in court and outside court, thirdly – those documents are not necessary as to helped the expert to advise the defence for cross-examination.

There is no basis for the application either at this juncture or at any time because the documents asked for are inadmissible and the defence are not entitled to it under S.161, lastly there is no basis for any hunch as per Mokhtar Hashim’s case so as to enable the court to supply the documents first to them.

I pray for the application to be dismissed.

KS:      We are not going on inconsistency but rather the incapacity of our expert to advice. And this is not being challenged by the Prosecution in the affidavit.

YA:    Under the law, is he legally entitled?

KS:     Yes. It is necessary for advising us.  That is what the law says. Whatever materials asked is relevant to the application. I can’t see why the prosecution are opposing this application. The experts need it and say it, not us. Thus, we pray under the circumstances for our application to be allowed.  A fair trail includes fair procedures.

MY:     In the case of Ng Hee Tong, it is clear what we cannot answer in the affidavit.

YA:     Ng Hee Tong’s case is clear. When can the party can come back for decision? Petang ni boleh tak?

KS:     We have matter in Seremban.

YA:     Not all of you will be in Seremban, right? I cannot give full judgement, but I can give order. Come back at 12.00 pm.

[10.34 a.m.] Stand down.

[12.02 p.m] Kes dipanggil semula.

MY:     Pihak-pihak masih sama.

YA:     After going through the submissions of both parties, I find there is no provision and legal basis for the documents to be supplied. Therefore I hereby dismissed the application

[12.03 p.m. – permohonan jenayah selesai]