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Anwar Ibrahim Sodomy II – The Recorded Truth –10 Ogos 2010 August 10, 2010

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******* The Full English Version (In Blue) After “+++++++++++”

Mahkamah Tinggi Jenayah 3 KL

Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Permohonan Mengenepikan Pertuduhan

Pihak-pihak:

PP:      Semua hadir

PB:      KS, SN, Marissa, Radzlan, Ram Singh (Datuk Param Cumaraswam tidak hadir)

WB:     Zamri Idrus (for SP1), Mr. Leong (Bar Council)

AI hadir

Hujahan Balas untuk 44-176-2010

[9.12 a.m]

KS: My Lord both corum are still the same like yesterday. The core of my learned friend submission is, the entire affidavit of DSAI contained hearsay and that it will be the end of this application. My learned friend relied on Order 41 rule 5 of RHC. RHC applied to criminal application by conduct. And my learned friend referred to authorities in relation to habeas corpus application. We can take it My Lord that the RHC applies to an affidavit. What does order 41 rule 5 entails? [read order 41 rule 5[] para  2 of this rule, order 38 rule 2 does not apply. And it was also referred by learned friend in his submission. An affidavit only can contain such facts that the deponent may be able to his own knowledge to prove. If it perused the affidavit of DSAI, it will answer my learned friend’s point straightaway. [read and refer para 2 of affidavit DSAI]. This is his knowledge, whole knowledge of the fact.  [] that must be accepted by your Lordship. It contained no hearsay, far from it, it contains assertion of facts which are true. Whether this assertion is rebutted? Put aside the affidavit of Jude Blacious and Mohamad Hanafiah Zakaria. Has the assertion of facts is been rebutted?

I take you Lordship to (1837 that is decided by the Privy Council)-  the last authority in our bundle, tab 20, page 400, para 6 referred.). It applies to affidavit evidence.

My Lord, no affidavit filed by either Saiful or the DPP, Farah. These are My Lord witnesses in possession of the circumstances as what would have been asserted against them. Unrebutted evidence of DSAI. I don’t wish to repeat the contents of what I have read yesterday. What is important is that it is clear that DSAI affidavit stands unrebutted. My learned friend said My Lord, Mohamad Hanafiah Zakaria’s affidavit adverts to what is in public knowledge and relied upon all this various newspaper cutting. This is hearsay, as to the authorities I referred before. Assuming for a moment those newspaper clipping should be taken into account, what is there My Lord is not what Saiful would be privy to.

My Lord, my learned friend stated that documents given to the defence under sec 51A of Criminal Procedure Code. What did the prosecution had? My Lord must carefully consider. [Refer case of DSAI v PP tab 19, para 4 page 318].

The appellant had asked for the documents listed in this appeal and these documents are in the possession of the IO. All has not being supplied to the appellant. [read and refer case]

What was not supplied, the prosecution had in his possession, items from ‘a’ to ‘n’. it is sufficient with regards to the relationship between Farah and Saiful, and Farah who is privy to IP and Saiful would have access to all the documents. My learned friend said that in what way the defence is prejudiced] it not so much a matter of prejudice here. It is a matter of perception, perception that Saiful is privy to these documents. It is sufficient that perception goes beyond. My Lord, she is a DPP. She is a qualified person in AGC. In any event, she had not affirmed any affidavit to rebut. The assertion of truth the assertion of facts stated in affidavit DSAI. Here, the judge has to go back and see through all this assertion.

My learned friend referred to various cases of abuse of process. For example, my learned friend had cited the case Mac Donald. Each case has to be taken into each particular facts of case. That is the proposition. I apply that proposition in our case. We say there had been abuse of power by prosecution, and other process, in that the Prosecution is not bona fide. Refer to authority tab 17. Boo Are Ngor [read]. I would repeat what is stated at page 151.

This is the consideration that your Lordship ought to be guided and not that of MacDonald. What had been said in the Federal Court []? Is it bona fide? Is the Public Prosecutor bona fide? Is Farah had not been directed to affirm an affidavit by my learned friend and also Saiful?  There lies the mala fide and lack of bona fide. There must be a consideration of public policy. Interest of justice. Is it in the interest of justice in this court to ensure that the process of the court to be used properly.

We say this is the clear cut case of abuse of process of court. We wish not to repeat the authorities referred to yesterday. I did say that I will take one hour to reply yesterday but I will not. So, My Lord the documents, those document has not been given to us, from a to n. So, defence is not privy to those documents. Can this court exclude the probability of Saiful having access to this document? No doubt that Saiful has access to Farah. In fact, he is having more than access. And that means My Lord, he is having access to the investigation paper. The IO, My Lord, coming to court and filed an affidavit as well saying that the investigation paper was only for the prosecution team; my learned friend MY, Mohamad Hanafiah Zakaria, DN, and PN who are privy to the investigation paper.

But DSAI is saying that through his personal knowledge, Saiful was also privy to the investigation paper. That ought to be rebuttted. You can’t by way of calling a third party to come to court to rebut. I said it earlier in my opening address, that this is unprecedented case, not only in this country, but also in the Commonwealth. It is between star witness and one member of the team. Why was she excluded?  If we go into the notes of proceeding, from the first day her name is filed as one of the team.  We would under these circumstances seek your Lordship to consider apart from what is being proved, it is also a perception. Even in any event, the perception should not be excluded.

My Lord should take time to consider as it does not happen anywhere but only here. We urge your Lordship to come to the conclusion that it is abuse of process, and this warrant the charge to be struck off. Your Lordship should act without fear or favour.

YA: I know what my duty is.

KS: I’m impressing your Lordship upon the duty. Much obliged.

YA: That’s all? Obviously I can’t make my decision today. I need time to go through the lengthy submission. Tomorrow is Wednesday? Can we come back at Friday? MY? Definitely I need time.

KS: Monday itself perhaps.

MY: My Lord I think Friday is just nice.

YA: I think I need more that 3 days including the weekends. I put on Monday,16th August. Proper case also will be on Monday.

[9.39 a.m] Adjourn

++++++++++++ English Version +++++++++++++

Criminal High Court 3, Kuala Lumpur

Before Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Application to set aside charges

Parties :

PP : semua hadir

Defence : KS, SN, Marissa, Radzlan, Ram Singh (Datuk Param Cumaraswam

absent)

WB : Zamri Idrus (for SP1), Mr. Leong (Bar Council)

AI present

Reply arguments 44-176-2010

[9.12 a.m]

KS: My Lord both corum are still the same like yesterday. The core of my learned friend submission is, the entire affidavit of DSAI contained hearsay and that it will be the end of this application. My learned friend relied on Order 41 rule 5 of RHC. RHC applied to criminal application by conduct. And my learned friend referred to authorities in relation to habeas corpus application. We can take it My Lord,that the RHC applies to an afidavit. What does order 41 rule 5 entails? [read order 41 rule 5[] para 2 of this rule, order 38 rule 2 does not apply. And it was also referred by learned friend in his submission. An affidavit only can contain such facts that the deponent may be able to his own knowledge to prove. If it perused the affidavit of DSAI, it will answer my learned friend’s point straightaway. [read and refer para 2 of affidavit DSAI]. This is his knowledge, whole knowledge of the fact. [] that must be accepted by your Lordship. It contained no hearsay, far from it, it contains assertion of facts which are true. Whether this assertion are rebutted? Put aside the affidavit of Jude Blacious and Mohamad Hanafiah Zakaria. Has the assertion of facts is been rebutted?.

I take you Lordship to (1837 that is decided by the Privy Council)- the last authority in our bundle, tab 20, page 400, para 6 referred.). It applies to affidavit evidence.

My Lord, no affidavit filed by either Saiful or the DPP, Farah. These are My Lord witnesses in possession of the circumstances as what would have been asserted against them. Unrebutted evidence of DSAI. I don’t wish to repeat the contents of what I have read yesterday. What is important is that it is clear that DSAI affidavit stands unrebutted. My learned friend said My Lord, Mohamad Hanafiah Zakaria’s affidavit adverts to what is in public knowledge and relied upon all this various newspaper cutting. This is hearsay, as to the authorities I referred before. Assuming for a moment those newspaper clipping should be taken into account, what is there My Lord is not what Saiful would be privy to.

My Lord, my learned friend stated that documents given to the defence under sec 51A of Criminal Procedure Code. What did the prosecution had? My Lord must carefully consider. [Refer case of DSAI v PP tab 19, para 4 page 318].

The appellant had asked for the documents listed in this appeal and these documents are in the possession of the IO. All has not being supplied to the appellant. [read and refer case]

What was not supplied, the prosecution had in his possession, items from ‘a’ to ‘n’. it is sufficient with regards to the relationship between Farah and Saiful, and Farah who is privy to IP and Saiful would have access to all the documents. My learned friend said that in what way the defence is prejudiced] it not so much a matter of prejudice here. It is a matter of perception, perception that Saiful is privy to these documents. It is sufficient that perception goes beyond. My Lord, she is a DPP. She is a qualified person in AGC. In any event, she had not affirm any affidavit to rebut. The assertion of truth, the assertion of facts stated in affidavit DSAI. Here, the judge has to go back and see through all this assertion.

My learned friend referred to various cases of abuse of process. For example, my learned friend had cited the case Mac Donald. Each case has to be taken into each particular facts of case. That is the proposition. I apply that proposition in our case. We say there had been abuse of power by prosecution, and other process, in that the Prosecution is not bona fide. Refer to authority tab 17. Boo Are Ngor [read]. I would repeat what is stated at page 151.

This is the consideration that your Lordship ought to be guided and not that of MacDonald. What had been said in the Federal Court []? Is it bona fide? Is the Public Prosecutor bonafide? Is Farah had not been directed to affirm an affidavit by my learned friend and also Saiful? There lies the malafide and lack of bona fide. There must be a consideration of public policy. Interest of justice. Is it in the interest of justice in this court to ensure that the process of the court to be used properly.

We say this is the clear cut case of abuse of process of court. We wish not to repeat the authorities referred to yesterday. I did say that I will take one hour to reply yesterday but I will not. So, My Lord the documents, those document has not been given to us, from a to n. So, defence is not privy to those documents. Can this court exclude the probability of Saiful having access to this document? No doubt that Saiful has access to Farah. In fact, he is having more than access. And that means My Lord, he is having access to the investigation paper. The IO, My Lord, coming to court and filed an affidavit as well saying that the investigation paper was only for the prosecution team; my learned friend DY, Mohamad Hanafiah Zakaria, DN, and PN who are privy to the investigation paper.

But DSAI is saying that through his personal knowledge, Saiful was also privy to the investigation paper. That ought to be rebuttted. You can’t by way of calling a third party to come to court to rebut. I said it earlier in my opening address, that this is unprecedented case, not only in this country, but also in the Commonwealth. It is between star witness and one member of the team. Why was she excluded? If we go into the notes of proceeding, from the first day her name is filed as one of the team. We would under these circumstances seek your Lordship to consider apart from what is being proved, it is also a perception. Even in any event, the perception should not be excluded.

My Lord should take time to consider as it does not happen anywhere but only here. We urge your Lordship to come to the conclusion that it is abuse of process, and this warrant the charge to be struck off. Your Lordship should act without fear or favour.

YA: I know what my duty is.

KS: I’m impressing your Lordship upon the duty. Much obliged.

YA: that’s all? Obviously I can’t make my decision today. I need time to go through the lengthy submission. Tomorrow is Wednesday? Can we come back at Friday? DY? Definitely I need time.

KS: Monday itself perhaps.

MY: My Lord I think Friday is just nice.

YA: I think I need more that 3 days including the weekends. I put on Monday,16th August. Proper case also will be on Monday.

[9.39 a.m] Adjourn

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