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Anwar Ibrahim Sodomy II – The Recorded Truth – 24 November 2010 November 24, 2010

Posted by malaysianstory in 1Malaysia.
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******* The Full English Version (In Blue) After “+++++++++++”

Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak:
PP: semua hadir kecuali NH dan MM
PB: KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Ram Singh, (Marissa, Radzlan tidak hadir)
Experts for the defence: Prof. David Wells (Dr. Brian MacDonalds tidak hadir)
AI hadir

[11.48 a.m.]
YA: Berkenaan permohonan peguambela semalam, S159, I agree  that S.159 talks about refreshing evidence while under examination. The question is whether the word “while under examination” includes circumstances while the court is during recess. To my mind it is. Because to conclude otherwise would cause injustice because the witness could look at whatever it is and to deny the right of the defence under S.160 of Evidence Act. Therefore, I allow the defence application for the pro forma to be produce and shown to the defence according to S.159.
As regards to the application of SP3 for contempt and direction for investigation to be conducted against SP3 for the reason of interfering with the justice, I’m of the view what was done by SP3 is neither calculated to interfere with the course of the justice nor would he be held for contempt or to be investigated under the Penal Code. So, application for contempt is dismissed.

MY: My Lord, I seek clarification. Some question were post to the witness which he could not answer. Nothing very material but with regards to i/c number of …

YA: Now what is it that you are trying to say?

MY: Do we need to make available everything?

YA: That is what he said,. He said he referred to the pro forma.

MY: He did not refer to the whole thing before he answered any. That is my problem. S.159…

YA: But as far as my ruling is concerned, he said he refer to the whole pro forma.

MY: So that’s why I’m seeking your Lordship’s clarification. S.159 talks about witness referring to a particular part or the whole part of a particular document in answering question. He has not referred to any during examination. And when he turn up, no question were being asked as regards to what he referred.

YA: Whatever it is, it is my ruling. The pro forma is to be made available to the defence.

MY: We will accept that.

KS: We want it now.

MY: He said it is in his possession, so I take it he has it. We don’t have it.

YA: Panggil saksi.

MY: YA, saksi dalam toilet.

KS: Perhaps he is refreshing his memory in the toilet.

KS: Meanwhile YA, we have this issue to disqualify your Lordship.

YA: In the meantime we can continue to examine SP3 until the application is being filed.

KS: Precisely. It would not be proper for us to proceed with the cross-examination of SP3 as there is this application to disqualify your Lordship.

YA: We still can proceed.

KS: Inconsistent. I don’t think we can do that. We should do something that []. We cannot say in one breath that your Lordship should be disqualify and continue with the trial.

MY: My stand has always been this, my Lord. Until the application is before the court, we should proceed at least with the cross examination.

KS: We can’t do that. It is not proper. It is our right to have your Lordship recused.

MY: Then there’s no point.

KS: We can’t do that.

MY: Can we stay the order?

KS: It doesn’t matter if we get it or not.

YA: So you don’t want to proceed with the cross-examination of the witness?

KS: We ought not to.

MY: As I have indicated to my learned friend just now, in case the original is shown to him he may want copies to be made. Copies are also to be made for me. Perhaps we need 3 copies for cross reference also.

YA: We stand down for a while.

[11.55 a.m.] Stand down

[12.25 p.m.] Pihak-pihak masuk ke Kamar Hakim.
[12.51 p.m.] Pihak-pihak keluar dari Kamar Hakim.

[12.59 p.m.]
MY: Kes untuk sambung pemeriksaan balas SP3

KS: In view of the development of the stay we are unable to proceed with the cross-examination of this witness. We’ve filed just now my Lord, a notice of motion supported by the affidavit of DSAI seeking the recusal of your Lordship from further hearing this trial. We’ll give the reasons in details tomorrow morning, my Lord when the matter comes for hearing tomorrow morning.
The ground is this, my Lord. Yesterday 23rd of November 2010, your Lordship has intimidated the counsel that is me and therefore DSAI has serious concern that he will get a fair trial if your Lordship continue presiding in this trial. DSAI is entitled to a fair trial and with regards to Article 151 of the Federal Consitution and that being the position it will be inconsistent for us in the face of this application asking for your Lordship recusal to proceed with the cross-examination. Inconsistent. Inconsistent. This cannot be done. And we don’t intend to do it.
I see that the date for the application is for tomorrow morning.

YA: It’s today.

KS: Oh, today. In the afternoon. We are asking for tomorrow morning. We intend to prepare this case fully and properly. As I said earlier, the ground and the law will be adverted to in detail when this matter comes up tomorrow, and not this afternoon. It ought to be tomorrow. Gives us time.
We have given your Lordship notice yesterday that we are going to file for an application to recuse your Lordship. We have to be in the Federal Court together with DSAI this morning to get the decision. In fact we stay up until 1.00 a.m. last night to prepare the notis usul and the affidavit. For that reason we need more time until tomorrow morning to do the getting up and come here well prepare to recuse your Lordship from further hearing this matter.
I have nothing further to say, my Lord. Much more will be said tomorrow morning.

YA: MY?

MY: YA, I really do not know how to respond to this application.

KS: Very simple.

MY: No objection? No. I believe that until the application is heard and we deals with the merits of the application, all this what has been said are mere conjecture. That’s an interpretation of your Lordship. That’s all. I do not wish to say anything further but the case has been fixed for so many days and yesterday we only had less than 10 questions asked before we adjourned. And also today. My concern is only that. I can understand the predicament. It is true it is not inconsistent where on one hand they are saying that you shouldn’t be hearing this until we dispose of the application and at the same time we come here to get only 5-10 minutes of the cross-examination of the witness. But if the court is mindful to grant stay or to postpone to tomorrow, may I apply to this court to excuse SP3 from attending the court tomorrow because he needs to be in the court in Terengganu. The case has been fixed for a week and tomorrow is the last day of the hearing. And I’ve spoken to the Judge requesting for him to have this witness tomorrow or at least this afternoon so that we can finish with the witness. That’s all.

YA: So you contemplate that tomorrow the application will take the whole day?

MY: I think the hearing of the application proper should be done by noon. And your Lordship may need time to make your ruling. But in any case, I don’t think that this witness is able to fly in to Terengganu and come back at time tomorrow morning because he is to testify there. I’m sure the counsel there will have a lot of questions just like KS. So unless we can proceed with this witness this afternoon, I would request for the appearance of this witness to be dispense for today and tomorrow.

YA: We agree that we are unable to proceed with the trial.

MY:    Yes, it’s inconsistent. We accept.

KS: Then my learned friend should not object to our application.

YA: He is not objecting. He is voicing out his concern. Kita sambung besok la. I’ll hear the application tomorrow.

[13.08 p.m.] Adjourn.

“+++++++++” The Full English Version “+++++++++++”

Criminal High Court 3 KL

Before Arif Dato’ Mohamad Zabidin Mohd Diah

24 November 2010

Parties :

PP : All present except NH and MM

Defence : KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Ram Singh, (Marissa, Radzlan absent)

Experts for the defence : Prof. David Wells (Dr. Brian MacDonalds absent)

AI present

[11.48 a.m.]

YA: In reference to Counsel’s request yesterday, S159, I agree that S.159 talks about refreshing evidence while under examination. The question is whether the word “while under examination” includes circumstances while the court is during reccess. To my mind it is. Because to conclude otherwise would cause injustice because the witness could look at whatever it is and to deny the right of the defence under S.160 of Evidence Act. Therefore, I allow the defence application for the pro forma to be produce and shown to the defence according to S.159.

As regards to the application of SP3 for contempt and direction for investigation to be conducted against SP3 for the reason of interfering with the justice, I’m of the view what was done by SP3 is neither calculated to interfere with the course of the justice nor would he be held for contempt or to be investigated under the Penal Code. So, application for contempt is dismissed.

MY: My Lord, I seek clarification. Some question were post to the witness which he could not answer. Nothing very material but with regards to i/c number of …

YA: Now what is it that you are trying to say?

MY: Do we need to make available everything?

YA: That is what he said. He said he referred to the pro forma.

MY: He did not refer to the whole thing before he answered any. That is my problem. S.159…

YA: But as far as my ruling is concerned, he said he refer to the whole pro forma.

MY: So that’s why I’m seeking your Lordship’s clarification. S.159 talks about witness referring to a particular part or the whole part of a particular document in answering question. He has not referred to any during examination. And when he turn up, no question were being asked as regards to what he referred.

YA: Whatever it is, it is my ruling. The pro forma is to be made available to the defence.

MY: We will accept that.

KS: We want it now.

MY: He said it is in his possession, so I take it he has it. We don’t have it.

YA: Call the witness.

MY: YA, the witness is in the washroom

KS: Perhaps he is refreshing his memory in the toilet.

KS: Meanwhile YA, we have this issue to disqualify your Lordship.

YA: In the meantime we can continue to examine SP3 until the application is being filed.

KS: Precisely. It would not be proper for us to proceed with the cross-examination of SP3 as there is this application to disqualify your Lordship.

YA: We still can proceed.

KS: Inconsistent. I don’t think we can do that. We should do something that []. We cannot say in one breath that your Lordship should be disqualify and continue with the trial.

MY: My stand has always been this, my Lord. Until the application is before the court, we should proceed at least with the cross examination.

KS: We can’t do that. It is not proper. It is our right to have your Lordship recused.

MY: Then there’s no point.

KS: We can’t do that.

MY: Can we stay the order?

KS: It doesn’t matter if we get it or not.

YA: So you don’t want to proceed with the cross-examination of the witness?

KS: We ought not to.

MY: As I have indicated to my learned friend just now, in case the original is shown to him he may want copies to be made. Copies are also to be made for me. Perhaps we need 3 copies for cross reference also.

YA: We stand down for a while.

[11.55 a.m.] Stand down

[12.25 p.m.] Parties enter Judge’s Chambers.

[12.51 p.m.] Parties exit Judge’s Chambers.

[12.59 p.m.]

MY: Continuance of case for cross-examination of SP3

KS: In view of the development of the stay we are unable to proceed with the cross-examination of this witness. We’ve filed just now my Lord, a notice of motion supported by the affidavit of DSAI seeking the recusal of your Lordship from further hearing this trial. We’ll give the reasons in details tomorrow morning, my Lord when the matter comes for hearing tomorrow morning.

The ground is this, my Lord. Yesterday 23rd of November 2010, your Lordship has intimidated the counsel that is me and therefore DSAI has serious concern that he will get a fair trial if your Lordship continue presiding in this trial. DSAI is entitled to a fair trial and with regards to Article 151 of the Federal Constitution and that being the position it will be inconsistent for us in the face of this application asking for your Lordship recusal to proceed with the cross-examination. Inconsistent. Inconsistent. This cannot be done. And we don’t intend to do it.

I see that the date for the application is for tomorrow morning.

YA: It’s today.

KS: Oh, today. In the afternoon. We are asking for tomorrow morning. We intend to prepare this case fully and properly. As I said earlier, the ground and the law will be adverted to in detail when this matter comes up tomorrow, and not this afternoon. It ought to be tomorrow. Gives us time.

We have given your Lordship notice yesterday that we are going to file for an application to recuse your Lordship. We have to be in the Federal Court together with DSAI this morning to get the decision. In fact we stay up until 1.00 a.m. last night to prepare the notis usul and the affidavit. For that reason we need more time until tomorrow morning to do the getting up and come here well prepare to recuse your Lordship from further hearing this matter.

I have nothing further to say, my Lord. Much more will be said tomorrow morning.

YA: MY?

MY: YA, I really do not know how to respond to this application.

KS: Very simple.

MY: No objection? No. I believe that until the application is heard and we deals with the merits of the application, all this what has been said are mere conjecture. That’s an interpretation of your Lordship. That’s all. I do not wish to say anything further but the case has been fixed for so many days and yesterday we only had less than 10 questions asked before we adjourned. And also today. My concern is only that. I can understand the predicament. It is true it is not inconsistent where on one hand they are saying that you shouldn’t be hearing this until we dispose of the application and at the same time we come here to get only 5-10 minutes of the cross-examination of the witness. But if the court is mindful to grant stay or to postpone to tomorrow, may I apply to this court to excuse SP3 from attending the court tomorrow because he needs to be in the court in Terengganu. The case has been fixed for a week and tomorrow is the last day of the hearing. And I’ve spoken to the Judge requesting for him to have this witness tomorrow or at least this afternoon so that we can finish with the witness.That’s all.

YA: So you contemplate that tomorrow the application will take the whole day?

MY: I think the hearing of the application proper should be done by noon. And your Lordship may need time to make your ruling. But in any case, I don’t think that this witness is able to fly in to Terengganu and come back at time tomorrow morning because he is to testify there. I’m sure the counsel there will have a lot of questions just like KS. So unless we can proceed with this witness this afternoon, I would request for the appearance of this witness to be dispense for today and tomorrow.

YA: We agree that we are unable to proceed with the trial.

MY: Yes, it’s inconsistent. We accept.

KS: Then my learned friend should not object to our application.

YA: He is not objecting. He is voicing out his concern. We continue tomorrow. I’ll hear the application tomorrow.

[13.08 p.m.] Adjourn.

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