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Anwar Ibrahim Sodomy II – The Recorded Truth – 4 Mac 2011 March 8, 2011

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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, Datuk Param Cumaraswamy, Ram Karpal (SN, Datuk CV Prabhakaran, Marissa dan Radzlan tidak hadir)
WB:    Zambri Idrus (for complainant)
AI hadir.

[9.23 a.m.]
Sambung bicara perbicaraan dalam perbicaraan.

MY:     Kes ditetapkan untuk sambung perbicaraan dalam perbicaraan bagi rakan saya yang bijaksana, KS untuk memanggil saksi mereka yang ketiga. Tetapi sebelum itu saya memohon untuk memanggil semula DSAI di bawah S.138 (4) Akta Keterangan untuk further cross. There are certain things that I want to ask in order for me later on to adduce the evidence during rebuttal if necessary. I believe KS has no objection.
KS:    I have no objection, YA.

Cross examination of DW1 under S.138(4) Evidence Act

TWT DW1 mengangkat sumpah di dalam BI.

Q:     Yesterday you inform the court neither you were informed the grounds of arrest at the time a few hundred meters from your house nor at the IPK nobody informs you.
A:     I was very clear that at the time of arrest and in the 20 minutes or half an hour so in the car, I kept on insisted why am I arrested and no grounds were given.

Q:    In the IPK?
A:    When we were brought up after sometimes I think Supt. Taufik…Yes, there is a document served, I may have signed the document.

Q:    Did you remember what document it is?
A:    He said “You are under arrest” or so. Yes, to that effect. That was in the IPK, YA. I was very clear yesterday I was made a reference to the fact that throughout the journey to the IPK.

Q:    Would I be correct to suggest that the document that you signed one of the was warrant of arrest?
A:    I don’t recall that the paper was warrant of arrest but certainly there is a reference to the arrest because then Supt. Taufik left soon afterwards.

MY:    I’m showing a photostat copy of a document.
KS:     I propose the original to be produced.
MY:    Wait.
KS:    You can’t show the copy of that. YA, inadmissible evidence is shown to DSAI.
MY:     At this point in time, I don’t think that we should.
YA:     If you want to masukkan secondary evidence, primary evidence..Generally you have to put in primary evidence unless you satisfy certain conditions.
MY:     Yes, I’m just showing. It won’t be marked as P because I will be calling the witness.
KS:    That’s not the point.
YA:    They are not tendering it as exhibit.
KS:    It’s the document being used for purpose of evidence to confront DSAI. That is the point.
MY:     I remember in Mona Fendi’s case this issue was raised. When the accused was arrested what was found on them was a photostat copy of a land title. The counsel insisted that the original must be produced. So, I arrested him and I found the photostat copy, what original do you want? This is real evidence. We will show later on that this is real evidence.
KS:     Forget Mona Fendi. Is there any authority to that effect?
MY:    I just want to ask DSAI whether [] or otherwise. First the question is whether or not this is the warrant of arrest that he gives you.
KS:     It should be otherwise, the original copy not the photostat copy.

Q:     Will you agree?
A:    …

KS:     YA, before DSAI reply to that we want a ruling on that. Inadmissible evidence can’t be used to confront a witness in the witness box. [] law.
MY:     YA, what I know is that in the course of cross-examination even under S.159, inadmissible evidence can be shown and the witness is asked whether he recall signing a document similar to this nature and it doesn’t have to be marked even.
KS:    There is no authority, YA.
MY:    We can read []. If we start reading all the literature then we will have this discussion. Especially if the document is required just for purpose of refreshing memory. DSAI recall signing [] a certain document. So, I just want to show could this be one of the document. Because after that I want him to look at the back of the document. There was a signature with a date there, 16.07.2008 2.45 petang. Whether or not he remembers signing the document.
YA:    Basically you are using it to refresh memory and nothing else?
MY:    My problem is this, YA. If I were to talk about S.136 on how this is admissible, after DSAI signed it Supt. Taufik make a photocopy of that. That photocopy is fact and this is the photocopy. So this is real evidence, this is what he did. You can challenge the witness later on and there is no way. But how do you change the fact that this witness whom I proposed to call will say that  around 2.45 p.m. at IPK he had this document shown to DSAI and said that “I executed the warrant on DSAI and get DSAI to sign..”.
KS:    YA, my learned friend is giving evidence. This is not a submission.
MY:    YA, under S.136 before document or any evidence is determine to be admissible, YA is at liberty to ask the party who proposed to do it in what manner this would be relevant and I’m saying it. And now we are talking about the photocopy so I will say this, because this is what the witness will say. If the court agrees with me that it is okay then this is real evidence. We are not [] it to the witness yet. This is real evidence, the thing that he did, this is the copy that he did. And I’m showing DSAI the copy that Supt. Taufik made.
YA:    Yes, KS?
KS:     With respect YA, my learned friend can’t just throw sections as he pleases. What does S.136 says? It is for the court to decide on the admissibility of evidence. How that can apply in this situation, I can’t understand. He talks about S.159.
MY:    You read s.136.
KS:    Forget S.136. S.136 talks about court to decide on the admissibility of evidence. That doesn’t apply. What does S.159 says? The evidence on refreshing memory. And S.159(3) where a witness may refresh his memory by reference to any document he may with permission from the court refer to a copy of that document. A copy of that document provided the court is satisfied that there is sufficient reason for the non-production of the original. So, how does it apply? A copy. What is the meaning of a copy of document? Photostat copy is not a copy. I’ll produce the authorities in a minute if I’m given that opportunity.
What about the proviso? Provided that the court is satisfied that there is sufficient reason for non-production of the original. Where is the evidence, where is the basis for it to be satisfied of the non-production of the original. Don’t play around with sections.
MY:     YA,…
KS:     I’m not finish. This is a serious matter. Don’t chuckle. We say that S.136 is irrelevant, general provision. Of course court will decide on the admissibility of the evidence. Refreshing memory, S.159. my learned friend is relying on S.159. we also now rely on S.159. Thanks for finding it. But what does it says? A copy of the document.
YA:     So, S.159? I mean, they can rely on photostat copy provided sufficient ground given that the original copy cannot be produced. So now your complaint is because there is no evidence to show why the original is not here?
KS:     No, that’s the 2nd part. A copy, what is being produced now in which DSAI is being confronted is the photostate copy. In law, a copy does not include photostat copy. Could we have an adjournment, YA?
YA:     Come again? A copy…
KS:    A photostat copy does not come within a copy. And it is a requirement under S.76 of Evidence Act with regard to primary evidence, secondary evidence. All that is learnt in law school. My learned friend has forgotten that or perhaps being [].
YA:    I want to hear your submission.
KS:     It is my submission. It is so elementary.
YA:    Lagi?
KS:    So, could I be given an opportunity to produce the authority? I don’t rely on sections, I will rely on the authority. Short adjournment, YA. I will find it.
MY:    I know of cases that carbon copy is the original.
YA:    We are not talking about carbon copy here, we are talking about photostat copy.
MY:    Yes, but a photostat copy is still a copy. Newspaper reports can also be shown. It is discussed in detailed both in Paul’s book and Sarkar’s. But, I’m not going to agree to a stand down for my learned friend. I’ll move to another question.
KS:     YA, a ruling has to be made on this.
YA:    If they are not proceeding with that one, we can proceed.
KS:    We can’t go on. We want a ruling before you move on.
MY:    YA,…
YA:    If they are not proceeding or persuading that matters so what is the ruling for?
KS:    Of course if my learned friend is not pursuing.
MY:    I’ll come back.
KS:    He’s going to come back. We want a ruling.
MY:    Let me finish with the rest of the question and only I’ll come back. Then we can stand down for submission.
KS:     YA, we’ve made submissions. In fact my learned friend submitted, there should be a ruling.
MY:    So, can we stand down for a ruling?
KS:    And for me to get the authority.
YA:     That mean there are further submission from you?
KS:     Yes.
MY:    If there is further submission, let me finish. I’ve got one or two question.
KS:    No, on this ruling.
YA:    If he has one or two question yang tak relate dengan benda ni, we move on and then we come back for submission. Just to save time. []
KS:    Let us see what are the one or two questions are.
YA:    Yang itu tarik balik, ya.

Q:    Pertaining to this document….

KS:    Not pertaining to that document.
MY:    I’ve just got one question on it.

Q:     You remember signing certain document, but you can’t remember what exactly is the document?
A:    I recall signing a document presented by Supt. Taufik…

Q:    But you can’t remember the document?
A:    …

MY:    I move to another question.

Q:    At the time of recording of your statement, didn’t you ask Jude as why you are required there?
A:    This is not relating to the first document you talked about, isn’t  it?

Q:    No. Subsequently before you were taken to see Jude and Jude recorded your statement, prior to the recording, didn’t you ask him why you were there?
A:    Yes, I did asked why am I arrested, why am I required to give a statement. He said “Based on the police report”. I then insisted I want to see the police report. I think about 4-5 months later this police report was never produced. [] the case which was raised earlier.

Q:    Did he tell you exactly that you were there because there was an allegation by `En. Saiful?
A:    Yes.

Q:    In fact this conversation between you and DSP Jude was recorded. Are you aware of it?
A:    Yes, I’m aware of it.

Q:    And it appears in your 112 statement? []
A:    In relation to the police report, I did asked and the report was never given. Sorry, it was never read to me.

Q:    On 14 Nov 2008, your 112 statement was [] to be served on your counsel. Did you read it?
A:    I don’t recall the date.

Q:    But, would you agree that you have read your statement?
A:    I’ve seen the statement.

Q:    So did your counsel, Nair at least. []?
A:    I assume the counsel must have read it.

Q:    So, you have seen the copy of statement that was served on your counsel. Did you make any objection or any complaint that the copy of that statement that was served on you or your counsel was not the copy of the original that was recorded from you? Did you make any complaint?
A:    I did make a lot of complaints on the document served.

Q:    No. With regard to this 112 statement? Did you say that the statement is not recorded from you? The copy served on you. []
A:    I don’t recall any protest or objection on the 112 statement.

MY:     YA, I’m showing the original to DSAI of the 112 statement.

Q:     Please look at this document from page 1 till the end. See whether or not your signature appears there and can you confirm this is the statement recorded from you by Jude on 16.07.2008 and 17.07.2008?
A:    Yes, I did signed and initialled on every page.

Q:    Can you confirm this is your statement?
A:    For now, yes. But after my experience with the police and the prosecution, I’m very careful to make sure that there is no change or alterations. I’m not making it. I’ve gone through this.

Q:    Can you confirm that? If not we can compare it with the copy served to you.

KS:     Let him go through it.

A:     Ya, YA.

MY:    Can this document be marked as an exhibit for TWT? But there is only one page of this that I want to refer and mark for the purpose of this trial within a trial. I’m sorry, two pages.

Q:    First, can you read to the court aloud. Can you confirm that this thing transpired?
A:    Yes. I did signed this.

Q:    Can you please read to the court?
A:    [read: Sebelum memulakan rakaman percakapan ke atas Dato’ Seri Anwar b. Ibrahim di bawah S.112 KPJ beliau juga ada ditanya sama ada boleh rakaman video dibuat disepanjang rakaman percakapan ini dijalankan. Atas nasihat peguam, beliau telah meminta rakaman percakapan beliau dicatat sepenuhnya dan beliau akan sahkan dan rakaman video tidak diperlukan.]

Q:    Now is this particular page that is the body of the statement. Can you read it?

KS:    What page is it?
MY:    Page 2 of the actual statement.

Q:    Can you read the first portion?
A:     [read : DSP Jude: Bagi menjawab soalan saya, sebelum Dato’ Seri menandatangani borang rakaman percakapan Dato’ Seri meminta penjelasan rakaman ini dibuat bermaksud pertuduhan dan ia telah dijelaskan oleh DSP Jude bahawa terdapat satu laporan polis yang dibuat Travers Report 4350/08 oleh seorang lelaki Melayu bernama Mohd Saiful Bukhari Azlan yang mendakwa tuduhan Dato’ Seri meliwat beliau pada 26.06.2008 jam lebih kurang 3.00-4.00 petang di unit 11-5-1, Kondominium Desa Damansara, Jalan Setiakasih, Bukit Damansara, Kuala Lumpur]. That is the charge.

Q:    Can you confirm that is what transpired?
A:    Ya, YA. Saya tidak pernah nafikan dari awal charge disebut. Yang saya tanya ground of arrest, apa alasan.

MY:     YA, actually this particular page that I really want to have admitted for our purpose..in order for me to have this admitted that’s why I require DSAI to look at the whole of this document. I mean, he signed all the pages of the document.

Q:    You signed on every page of the document, right?
A:    Initial.

Q:    Here it says that you asked and you were told of the allegations against you by Saiful.
A:    Yes.

Q:    You told the court yesterday you remember reading before signing that “Rakaman percakapan telah selesai”. I’m showing page 21 of this statement and the last page of the second half of the statement. Can you tell the court whether or not that appears in anyone of the pages the word or the phrase “Rakaman telah selseai”?
A:    [read- rakaman percakapan dibacakan. Rakaman percakapan ini selesai pada 16.07.2008 jam 17.42.

Q:    It says that the recording ended there?
A:    Bagi faham saya, bagi upaya saya menguasai Bahasa Melayu bila kita sebut percakapan ini telah selesai, ia telah selesai.

MY:     I leave the rest for submission, YA. That will be all my cross. So now, coming to this document, I need to put the witness to notice of this document or else I will [] the case of Chow Ben Huat which was cited before your Lordship and the case of Ong Su Chin. Even if I don’t have it marked, I brought him to notice. That’s all I need to do. So I won’t do anything at this juncture. I will call the witness if necessary, produce it again and then we’ll have a submission whether or not it is admissible. The photocopy of the document. Otherwise…
YA:     In short you are not pursuing that matter just now?
MY:    Because my duty is just to put DSAI to notice.
YA:    Re, KS?
KS:    I take it that my learned friend is not pursuing the document?
YA:    Yes.
KS:    He has come to his senses. Can I have the copy of the 112 statement?
MY:    We have supplied to them.
YA:    They don’t have it right now. Just give it to them
MY:    Can I just photostat the relevant pages that is crucial for this?
KS:    We already have a copy of that. What is the problem?
MY:    Only two pages.
KS:    The whole document.
KS:     Can we have a short break?
YA:     You can re on some other matters.
KS:     No. That one.
YA:    That’s the only one?
KS:    Yes.
MY:     If that is the only one, the two pages is only crucial.
YA:    Cannot proceed without that one?
KS:    I have to look at that one first before I can proceed.
MY:     YA, I proposed for a stand down.
KS:    I’ve been deny of the copy, YA.
YA:    You have the copy, kan?
KS:    This is served a long time ago. I must have a look at it now. I want to refresh my memory under S.159.
MY:    YA, I proposed for 15 stand down.
KS:    That’s right.
YA:     15 minutes 15 minutes la. Hari ni Jumaat, we have to stop early.
[9.52 a.m.] Stand down.

[10.31 a.m.]
MY:     May the document be marked as exhibit in TWT?
YA:     TWT P1.

TWT 1 – DSAI’s 112 statement on 16.07.2008

Re-examination of TWT D1 by KS.

Q:    Look at page 2 of TWT P1. There are 2 signatures, one is by DSP Jude Pierera on the right and there is one more which is yours?
A:    Yes.

Q:    Are you aware that a copy of the 112 statement was served on your solicitors?
A:    Yes.

Q:    And you have been shown of it?
A:    Yes.

Q:    Look at it. I refer now to your copy, the one served to your solicitors.
A:    Yes.

KS:     May we marked it as TWT D2?
YA:    Now you want to mark the copy?
KS:    Yes, the one served on him. The original was not served. There is a reason for it.

TWT D2 – A copy of DSAI’s 112 statement that is served on his counsel on 16.07.2008

Q:    Have a look at both of this document. Is there any differences in the copy supplied to you or your solicitors and the one referred to you?
A:    Yes.

Q:    Can you tell us what are the major differences? We don’t want to go into the smaller one.
A:    On page 1 there is “SULIT” in the original, there is no “SULIT” in the copy. There is …

Q:    Not only page 1? Is the entire document?
A:    Yes.

Q:    Every page?
A:    Well, I have the chance to look very fast but I certainly can identify and mark major differences.

Q:    No. The word “SULIT” first. It’s [], isn’t it?
A:    Yes. The word “SULIT” in every page…

Q:    One by one. The word or the cop “SULIT” is in every page?
A:    In every page of the original.

Q:    But not in yours?
A:    But not in the copy except for the ….

Q:    Does it appear at all?
A:    No, it does not appear at all in the copy.

Q:    I take you to page 2 of TWT P1. Is that in the copy supplied to you?
A:    Page 2 of the one referred to me earlier and the one I read is in the original with my signature is not in the copy and there is no signature.

Q:    It is not in the copy at all?
A:    Yes. Not at all. In fact the entire paging is difference. This is a new page inserted in the original is not there in the copy.

Q:    So there is an inclusion of page in TWT P1?
A:    Yes. The inclusion with both my signature and Supt. Jude Pierera signature.

Q:    But entirely missing in TWT D2?
A:    Yes.

Q:    All that is entirely missing?
A:    It is not there in the copy.

Q:    It is not there at all?
A:    Yes.

Q:    There are other minor differences there, isn’t it?
A:    Yes.

KS:    I don’t have to go into that all. I’ll leave it for submission if necessary.

Q:    I come back to the statement recorded by Mr. Jude Pierera on 16.07.2008 at 2.45 p.m. until about 5 something?
A:    Yes.

Q:    In this statement, were you cautioned?
A:    Yes.

MY:     YA, may I interject? This is a re-examination. You are not supposed to introduce something new. I did not ask on caution. I only ask with regard to whether or not he was informed, he got to know the reason of arrest. That’s all. This is re-examination.
YA:     Re must have to comply with what arise from cross. KS, you know that.
KS:     It could be relevant to some extent, YA. But it does not matter, I don’t want to []. We don’t do that.

Q:    In reference to that page in which it is recorded “Rakaman percakapan telah selesai.” Page 21.
A:    What do you want me to do? Look at the original or the copy given to us?

Q:    The original.
A:    There are differences, so i…

Q:    Oh yeah, I supposed we have to refer to both. It appears also in the copy anyway. It makes no difference, doesn’t matter. “Rakaman percakapan selesai”. Is it there?
A:    Yes.

Q:    What do you have in mind at the point of time when you signed document to the effect that rakaman percakapan telah selesai?
A:    I gave full explanation truthfully, I denied the charge and I cooperated fully with Supt. Jude. I answered every question. And when he said “Percakapan selesai”, I did asked him “Are you sure if everything is finish or settled? He said “Rakaman percakapan selesai”. So my understanding was and he did affirmed this that we are quite finish. YA, why did I pursue this? Because I want to be released. Because the only concern that he wanted a statement from me. He did cautioned me. Even if it is meant, could be deemed as incriminating, I said “No. I will give full cooperation” and I did answer. And it was completed.

Q:    What is “selesai” implied to you? Did you go back?
A:    “Selesai” which means it is finished.

Q:    And you go back home?
A:    Yes.

Q:    Were you at any time given grounds of arrest by Mr. Jude?
A:    This question was raised to Supt. Jude and as far as I can recall, it is clear to me that there was no grounds given except reading the charge, not even a police report read or shown to us.

Q:    Charge read and then you recorded your statement?
A:    Yes.

Q:    That’s all?
A:    He did cautioned.

Q:    Of course he did cautioned. And then take your statement?
A:    Yes.

Q:    No grounds initially for that matter at any point of time during the recording or the interview?

YA:    That is what he said. No ground were given. He had been saying that.

Q:    By Jude. No grounds of arrest given by him?
A:    Yes.

Q:    Except for the recording of the statement under S.112?
A:    Yes, and I did asked. I mean, I was advised by the counsel always start by asking the grounds for the arrest.

Q:    And you were not given those by Jude?
A:    I was not given those. Not by Jude.

Q:    What do you have in mind of the word “grounds”? what does it indicate to you? Grounds?
A:    The reasons, not just based on somebody’s reports. There must be reasons why you arrest a person. To me it is elementary, YA. You just don’t arrest a person and say that somebody report and that’s it. You must have grounds. The police must have some basis for the arrest.

KS:     That’ll be all for my re.
MY:     YA, with your kind permission just to ask 2 questions. One is for clarification which of the two because there are two pages here with regard to the original document.
YA:    The other question?
MY:    The second question is with regard to the second half of the statement was something that was dependant of what was recorded earlier. Something new. Just to confirm with him.
YA:     Question through court?
MY:    Yes.
YA:    Go ahead.

Q:     The clarification is this…

KS:    Subject to cross.
YA:    Of course. No, subject to re. Your are not crossing, you know. This is your witness.
KS:    I’m sorry, subject to re.

Questions through court

Q:    Dato’ Seri, you were saying that the copy you had that was served on you didn’t have this page 2. This is with regard to before the actual statement was recorded. The one that where it is stated that you asked for the whole thing to be recorded fully.
A:    Yes.

Q:    And only that are not with you? The rest are with you?
A:     YA, this page is completely out. I don’t have a copy of that page which is signed. But the rest are with me with as I noted some differences.

Q:     So, can you confirm the court that the page which you read where you asked Jude and he explained to you was in your copy? Page 2 of the actual statement, is it there in your copy?
A:    Yes.

Q:    The one that you asked?
A:    Yes.

MY:     It’s there in TWT2.

Q:    Can you refer to the statement TWT2. After page 21, that is the 2nd half of the statement. Can you just glance quickly to it ? Would you agree with me that you were questioned pertaining with something in relation to what transpired in the newspaper when you were sent to medical examination?
A:    Not entirely.

Q:    Not entirely but substantively that was the question?
A:    Factual is not too correct because part of series of questions, not the main part.

Q:    If I …
A:    I stand to be corrected, YA. It’s not really fair to get me to answer in half a minute. Can I just look at it?

YA:    2 questions dah jadi 10.
MY:    It is pertaining to that.

A:    Yes, YA. The major part was in relation to the visit to the hospital and the examination by the doctors at HKL.

MY:     That will be all.
KS:    Re-examination , YA.

Q:    Look at TWT 1, page 2. Where you signed and also did Mr. Jude.
A:    Yes.

Q:    It is not numbered but it is in the second [] in that set of document?
A:    Yes.

Q:    And my learned friend is referring to TWT 2.
A:    Yes.

Q:    In TWT 2, is it similar in the page included?
A:    No.

MY:    YA, so that my learned friend didn’t get confuse. I merely ask him to confirm that what he didn’t have is the one with regard to the video recording. Then I ask him to refer Page 2 because the second set there is explanation there written in Page 2.
YA:    Page 2 of what?
MY:    Page 2 of the actual statement.
YA:    But you only tender this part. I mean, the court is only given this part to refer to.
MY:    You have that, YA. We tender the whole thing. But I advise your interpreter maybe for your [] because you are only referring to those 4 pages only. Because while the witness has confirmed that the whole of his statement…
YA:    So, you are tendering the whole document as exhibit?
MY:    Yes. My worry is that your Lordship should not be reading the whole of the statement. So, for your purpose I advised the interpreter to only photostat this page and the page where Jude was asked the reason for the arrest…
YA:    Page berapa?
MY:    That is page 2. Explanation in page 2.
YA:    “Bagi menjawab soalan saya…”?
MY:    Yes. “Bagi menjawab soalan saya…Dato’ Seri menandatangani..”.
YA:    Okay.
MY:    And then page 21 of TWT 1 and the last page of the second part of the statement.
YA:    So, you are referring to which one?
MY:    So when I ask Dato’ Seri, he confirm that this page 2 of the actual statement he confirm he has that.
YA:    Okay.
MY:    That’s all. I’m not saying on the first part.
KS:    I refer to what my learned friend referred to.

Q:    Is there signature by you or Jude or by both? What is [] there?
A:    In reference to page 2 of the report, now that I have seen the copy, I honestly have to study whether this one showed and clear. But notwithstanding if this page 2 is being referred to now, there is no similar signature as in the new page 2.
YA:    Yang ‘bagi menjawab soalan saya?’?
MY:    Sebelum Dato’ Seri menandatangani. And then, at page 21 of TWT 1, and the last page of the statement, because …
YA:    So now you are referring to which ..
MY:    So now, when I asked Dato’ Seri to confirm that his page 2 of the actual statement, to confirm that he has that. So I am not saying about the first..

Q:    Ok. Now, (to DSAI) please look at what my learned friend referred to, did you and Jude signed on top of that?
A:    Notwithstanding the page 2 that is being referred to now, there’s no similar signature in this (pointing to TWT 1)’s page 2. I’m referring to the 2nd page 2.

Q:    Was the 2nd page 2 included is not paginated?
A:    No.

Q:    Ok, my learned friend referred to the next one’s page 2. On top of that there is endorsement isn’t it? Which is not similar to the one inserted? The wording of it, what was the difference between these two?
A:    No signature by either me or Mr. Jude at page 2.

YA:    Let me have a look at TWT 2.

(They are discussing which page, because all parties seem confused on which page is referred to).

YA:    This one is served on the counsel kan, TWT 2. The original produced by the prosecution is TWT1. So we are now at the stage of referring to the page 2 of the statement. So you asked about the difference?
KS:    Yes.
YA:    So Dato’ Seri was saying that there was difference, apa?
A:    In the page two that I am referring to now (TWT 2), there was no signature, unlike the other page 2. We can’t have 112 statements with 2 versions, that is my point YA. There are 2 versions, one sent to us that is claimed to be original, shown to me now.

Q:    What is sent to you is not a copy on the thing that they have?
A:    Clearly, what was sent to me, that was claimed to be a copy of the original, is not a copy of original.

Q:    In the first two pages of TWT 1, this is the first time you are seeing them?
A:    Yes. The first page look somewhat similar without the word ‘sulit’, without the correction of the [] and without the page number. The 2nd page, is not there in the copy supplied. In fact, in the copy supplied, there is only a signature of Jude Pereira, which looks quite different. On the original, you have the signature and the name, on the copy, we have the signature which is quite different, and there is no name. so clearly to my mind, as I seen, we are talking about 2 different documents, which are not a copy to each other.

KS:    We ask for this document to be recorded.
YA:    Everything is recorded.
KS:    The first page of TWT 1, there’s a signature with a designation. And the next one, there is nothing there, except the purported signature at the bottom on the right, YA.
AI:    YA, the signature is clearly different.

(All parties referring to both documents again)

MY:    YA, as long as we have the pages which we are referring to in the cross and the re-examination, because, we are not going to the merit or the content.
KS:    The first page?
MY:    Yes, the court is having it now.
KS:    Now?
YA:    Yes, we are having it now.
KS:    YA, that would be all.
MY:    YA, I need that TWT 2 being supplied to me, later that we can make comparisons.
YA:    So we’ll give it to you.
KS:    Our next witness is R. Sivarasa.

TWT DW3: Sivarasa Rasiah
TWT D3 mengangkat sumpah dalam English.
54 years old, now is an advocate and solicitor and also a member of parliament, Subang.

Q:    How long have you been practiced as advocate and solicitor?
A:    I started at 1987, which make me having 24 years experience.

Q:    Do you know DSAI?
A:    Yes, I know him well.

Q:    0n the 16th of July 2008, do you meet DSAI at any time? When, and under what circumstances?
A:    Well our first meeting that morning was at the MACC office in Putrajaya, where together with Datuk Param and Sankaran Nair as his counsels and solicitors, we accompanied him when he gave his statement to the MACC in respect to police report made by him raising the issue of fabrication of evidence in the speck of what is known as the investigation into the black eyed incident.

Q:    When did you leave Kuala Lumpur that morning?
A:    I can’t remember precisely. It would be early in the morning for us to travel there, I recollect that we’ve spent more than an hour recording the statement, but because of the prior appointment that earlier had been made, at IPK for his statement to be recorded at 2 p.m, we actually told the MACC recording officer,  we could not complete or rather cut short the recording of the statement at MACC and will continue it on another date.

Q:    Talk about prior appointment of DSAI, were you aware of the prior appointment?
A:    I was not personally involved in making of the appointment, but the information was confirmed to us by Mr. Nair. Certainly, we were all aware, because that’s what we represented to the MACC recording officer, I cannot recollect whether it has been recorded in that statement.

Q:    Did you accompany DSAI together with Datuk Param and Mr. Nair in the same car, or did you go separately?
A:    I think we went separately.

Q:    And then, did you come back to KL?
Q:    My recollection is yes, I came back to KL, and then we received news on DSAI’s arrest.

Q:    That would be at what time, you received the news?
A:    Roughly around 1sh, Very shortly after the arrest. The spread of news of the arrest of course like a fire after the arrest was happen, through messages, SMS and so on. When we confirmed that he was brought to IPK, and then I made my way to IPK.

Q:    And that would be at what time?
A:    Sometimes between 1 and 2.

Q:    Was any statement recorded from DSAI at IPK?
A:    Yes. At IPK after arriving, myself and Sankaran Nair were taken to something look like a meeting room, it was on the 7th floor if I’m not mistaken, and there was other police officers presence beside DSAI, I remember ACP Razali and a gentleman called Yahya. We were told that DSAI’s statement would be recorded and that would be all.

Q:    Did you present at that time when Dato’ Seri statements were recorded?
A:    Yes, with my presence because Sankaran Nair decided to leave before the recording statement.

Q:    That recording statement, it was 112 statements, recorded by Mr. Jude?
A:    Yes, Jude Pereira.

Q:    Call we call Jude for identification?

Jude dicamkan oleh Sivarasa.

Q:     You said that the statements were started about?
A:    About 2.30 p.m YA,  until right after 5 to 6 pm. DSAI was not released, and I was with him. At some point, we were told by Jude that they want to take him to Hospital for medical examination.
Q:    Did you accompany him to go to the hospital?
A:    I was not allowed to be in the police vehicle, but I followed him, yes. And I was present with him when he was with the doctors until of course when the examination started.

Q:    When you were with the doctors, what happened there?
A:    The police made a request for a blood sample, specifically for DNA samples.

Q:    By whom in particular?
A:    By officer Jude, the one who present, and he made the request.

Q:    Did DSAI asked for your advice?
A:    Yes, he consulted me and I also consulted 1 and 2 lawyers from the team, and based on that, I advised him to decline to the request. DSAI himself explained to both doctors who were present, why he was declining to the request. Because he said that he has serious doubt about the integrity of the system, based on his experience on what had happened in 1998, where blood sample misused to other purposes on so on, and he asked the doctors to give him assurance that this time it won’t happen, and of course, they couldn’t give him the assurance.After he declined, he agreed to medical examination. The doctors asked me and DSP Jude to step out, medical examination then proceeded, YA.

Q:    Anything else?
A:    After the medical examination, he was taken back to IPK, I was there, I followed him back to IPK and expecting that we had completed whatever the police requested, and he would be released, because that was the representation made to us.

Q:    Who made the representation?
A:    In the first meeting which we have ACP Razali, that was what explicitly said. When he completed the statement at about 5.30,that was my understanding of the situation, that we had completed the recording of the statements. However when we went back to the IPK, Jude then informed me that he was going to detain DSAI for that night. Naturally, I was quite upset about that, and the only response he can give me was that, they haven’t completed recording the statement.

Q:    That was the reason gave by Jude?
A:    Yes, and I said this to him, if your only need is to complete the statement, I gave you my first solicitor’s undertaking now that I would bring him back tomorrow morning to complete the recording of the statement. He said ‘no, this is my decision, we are detaining him for that night.’ With some degree of upsetness, I said to him, ‘this is the serious decision, you are detaining him’, and I said to him that ‘this is wrong’ but he still stick to his decision.
I left IPK because he was taken away from the meeting room from which he was recording the statement. I left IPK probably at late night, and I came back next morning, about 8-8.30 and DSAI was brought back to the same room, for the recording of the statement, which we finished at about half an hour to 45 minutes.

Q:    In which you were present?
A:    Yes.

KS:    I think that would be all for my questions.

Cross examination by MY.

Q:    This ACP Razali, was he the IO in this case?
A:    No.

Q:    Would you agree with me, that the recording statement is part of the investigation?
A:    Yes.

Q:    And statements were in fact recorded on that day?
A:    Yes.

MY:    That’s all, YA.
KS:    I have no re.
YA:    So that would be all for your witnesses?
KS:    No, YA. In fact, we wish to call the CID chief at that time: Dato’ Bakri, the IGP then, Musa Hassan and also I wish to call Dato’ Seri Hamid Albar. I think these witnesses is necessary in certain development YA.
YA:    Where are they now? Are they in court now?
KS:    They are not.
YA:    Why? You know you want to call them, why didn’t you sepina them? Why don’t you do it earlier?
KS:    We can’t do it in just a day, YA. I think that is necessary YA, for this trial within a trial, for your Lordship to exactly know what had happened. I pray for your Lordship to give us this opportunity.
YA:    Can I see both parties in my chamber please?
[11.21]    Stand down
[11.23]    PP and PB masuk ke dalam chamber.
:Keluar dari Chamber.

[11.53]
KS:    My lord that is the only case for defence, for the trial within a trial.
MY:    YA, saya memohon untuk memanggil saksi rebuttal. Panggil Supt. Taufek.

TWT P1: Supt. Taufek bin Abdullah
Sekarang sedang bercuti untuk melanjutkan pelajaran selama 18 bulan, umur: 49 tahun.

Q:    Pada Julai 2008 di mana Supt bertugas, dan sebagai apa?
A:    Semasa itu saya bertugas di Jabatan Siasatan Jenayah Bukit Aman Bahagian Siasatan Khas, D9.

Q:    Pada 16.7.2008, adakah Supt Taufek melakukan tangkapan ke atas mana-mana orang awam?
A:    Ya, saya ada melakukan tangkapan ke atas DSAI.

Q:    Ada di mahkamah hari ini?
A:    Ada.

DSAI dicamkan oleh Supt Taufek.

Q:    Pada masa tangkapan, adakah Supt memberitahu beliau mengapa beliau ditangkap, atau kalau tak diberitahu adakah ditanya oleh DSAI atau oleh sesiapa yang berada bersamanya?
A:    Ada, saya ada memberitahu sebab-sebab tangkapan, terutama ada ditanya oleh seorang peguam, Encik Sankaran. Saya beritahu dia saya menangkap Dato’ Seri untuk kesalahan di bawah Seksyen 377B Kanun Keseksaan, iaitu satu kesalahan yang lazim ditangkap.

Q:    Masa beritahu Nair ini, di mana DSAI berada?
A:    Dia berada dalam kereta, tetapi pintu telah dibuka dan tak salah saya dia sedang berhubung di telefon.

Q:    Kepada DSAI sendiri, ada Supt. beritahu?
A:    Ada. Selepas ditanya itu, saya bercakap dengan DSAI, bahawa saya harus menangkap DSAI, dan minta beliau mengikut saya.

Q:    Selain daripada memberitahu secara lisan, ada atau tidak beritahu melalui cara lain kepada DSAI mengapa beliau ditangkap?
A:    Selepas tangkapan dibuat, apabila sampai di Ibu Pejabat Polis Kontijen Kuala Lumpur, IO kes iaitu DSP Jude telah menyerahkan kepada saya satu borang tangkap dan minta saya menyempurnakan borang tangkapan tersebut.

Q:    Adakah anda menyempurnakannya?
A:    Ya.

Q:    Ada awak buat apa-apa mengenai waran itu?
A:    Saya ada mencatitkan masa dan lain-lain. Saya juga ada minta DSAI untuk menandatangani borang tersebut.

Q:    Kemudian? Ada waran tersebut pada awak?
A:    Waran itu saya telah serahkan kepada IO bersama-sama dengan IC dan sebagainya.

Q:    Supt Taufek ada apa-apa salinan?
A:    Saya ada buat satu salinan fotostat.

Q:    Pada masa bila buat salinan?
A:    Pada hari yang sama, selepas menyempurnakan dan menandatanganinya. Saya buat salinan untuk simpanan saya.

Q:    Encik ingat bila waran itu dikeluarkan?
A:    Kalau tak salah saya adalah pada 15hb Julai.

Q:    YA, saya ingin merujuk saksi ini satu salinan fotokopi waran. Cuba lihat di belakangnya. Mula-mula boleh Encik sahkan adakah ini salinan yang dibuat oleh kamu?
A:    Ya.

Q:    Dan adakah ini salinan yang kamu buat dalam fail kamu?
A:    Ya.

Q:    Boleh beritahu masa kamu menyempurnakan waran itu, adakah kamu tunjuk saja, atau kamu baca ke?
A:    Saya menunjukkan dan membacakan kepada DSAI.

Q:    Boleh beritahu Mahkamah, di mana tandatangan DSAI?
A:    Di sebelah kanan.

MY:    Di peringkat ini,saya ingin menandakan waran ini sebagai eksibit. Can we mark first as ID.
YA:    Kan dia kata dia buat salinan, yang asal dalam IP kan?
MY:    Ini salinan yang dia buat dan dia simpan. This is what I talked about Mona Fendy. This is real evidence. We mark as ID, but in the course of the whole submission, we will make submission on that.
KS:    YA, this is elementary.
YA:    Ya, they want to take the risk. Kalau tak boleh turn into P, itu on them lah. ID TWT 3.

Satu salinan fotokopi waran ditanda sebagai ID TWT 3.

Q:    Taufek, siapa yang mengarahkan kamu menangkap DSAI?
A:    Saya mendapat arahan untuk menangkap DSAI daripada Pengarah Jabatan Siasatan, Dato’ Seri Bakri bin Mohd Zain.

Q:    Arahan ini kamu terima secara langsung ke, atau melalui telefon, atau melalui perantaraan?
A:    Secara langsung.

Q:    Apa arahannya?
A:    Adalah untuk menyediakan pasukan untuk menangkap DSAI sekiranya Dato’ Seri di dalam perjalanan tidak menunjukkan untuk terus ke IPK seperti yang telah diberitahu.

Q:    Sekiranya dalam perjalanan daripada mana?
A:    Saya dimaklumkan dari Putrajaya, dia tidak terus ke IPK Kuala Lumpur, dia harus ditangkap.

Q:    Dan kamu tangkap kerana sebab itu?
A:    Ya.

MY:     Itu sahaja soalan saya YA.

Cross-examination by KS

Q:    Encik Taufek telah berada dalam pasukan polis untuk berapa lama?
A:    Selama 29 tahun.

Q:    Masa yang panjang bukan?
A:    Ya.

Q:    Ada pengalaman yang luas?
A:    Setakat 29 tahun.

Q:    Hari itu tangkapan di buat di mana?
A:    Kalau tak silap saya, adalah di Jalan Segambut 61/1.

Q:    Tanpa waran?
A:    Semasa melakukan tangkapan, memang tiada waran.

Q:    Jadi ada 2 tangkapan yang dibuat hari itu?
A:    Satu tangkapan.

Q:    Satu tangkapan tanpa waran, dan satu tangkapan menggunakan waran? Dua tangkapan bukan?
A:    Satu tangkapan.

Q:    Tangkapan asal di mana?
A:    Di Jalan Segambut.

Q:    Satu atau 2 tangkapan? Kamu ada nyatakan tadi, di IPK ada guna waran. Satu tangkapan di Segambut, dan satu lagi di IPK dengan waran?

YA:    Tangkapan maksud dia, seorang OKT, DSAI kamu tangkap dia 2 kali. Bukan maksud dia 2 orang yang terlibat. Faham?
A:     Faham YA. Tangkapan adalah di Jalan Segambut dan penyempurnaan waran tangkap adalah di IPK.
YA:    I think you put in your submission lah. This is what he understood, whether right or wrong.

Q:    Waran dikeluarkan bila, dan oleh siapa?
A:    Menurut waran itu, adalah pada 15 Julai 2008, dikeluarkan oleh Mahkamah Majistret Kuala Lumpur Wilayah Persekutuan.

Q:    Dan waran itu ada pada simpanan siapa?
A:    Waran ini diserahkan oleh IO semasa di IPK.

Q:    Di dalam simpanan siapa?
A:    IO kes.

Q:    Ketika di tempat tangkapan di Segambut, kamu katakan tadi kamu ada nyatakan sebab tangkapan kepada Encik Nair?
A:    Ya, peguam itu bertanya dengan saya.

Q:    Ya lah, dia tanya dan awak maklumkan dia?
A:    Ya, saya maklumkan dia tentang sebab tangkapan.

Q:    Apa ayat yang digunakan?
A:    Saya memberitahu saya buat tangkapan ini di bawah Seksyen 377B KK, satu kesalahan yang lazim ditangkap.

Q:    Itu sahaja?
A:    Itu sahaja.

Q:    Taufek, tidak boleh bercakap bohong dalam kandang saksi. Kamu telah mengangkat sumpah tadi.
A:    Saya telah mengangkat sumpah dan saya bercakap benar.

Q:    Encik Nair telah memberi keterangan, dan dia kata Encik Taufek tidak memberitahu apa-apa sebab ke atas penangkapan DSAI walaupun dia tanya banyak kali?
A:    YA, saya telah beritahu seperti mana yang telah saya maklumkan.

Q:    Dan kamu kata tadi, kamu telah beritahu sebab tangkapan kepada DSAI ketika beliau berada dalam kereta. Itu pun adalah satu pembohongan.
A:    Seperti mana yang telah saya beritahu tadi, saya telah maklumkan beliau juga.

KS:    That would be all.

Re-examination by MY.

Q:    Cuma satu soalan YA. Encik Taufek ada apa-apa sebab untuk tidak memberitahu Encik Nair dan DSAI tentang sebab apa dia ditangkap?
A:    Tidak ada, YA.

YA:    Ok, terima kasih ya.
MY:    Saya tidak akan memanggil saksi rebuttal lain, YA.
YA:    Yes, now submission.
KS:    YA, this is the important things for you to consider. We want to ask for sometimes to prepare the submission, and probably that would be on Tuesday

morning. We will take sometimes to go through.
YA:    Either petang ini or on Monday lah.
MY:    I prefer this to be submit this afternoon YA, but if your Lordship thinking in indulging my learned friend, perhaps the latest is on Monday. I think we have ample time then. Because this is their application, I’m sure they had thinking about what issue and things that they want to use in their submission.
YA:    Yes, you should be ready in fact by this afternoon pun. Never mind lah, since hari ini pun hari Jumaat, kalau kita buat petang karang pun, maybe takkan siap. So, Monday lah, at 8.30 a.m.

[12.11] Adjourn.

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