Anwar Ibrahim Sodomy II – The Recorded Truth 15 August 2011 August 16, 2011Posted by malaysianstory in Anwar Ibrahim, Malaysian Story, Sodomy II.
Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP : Semua hadir kecuali MM
PB : RK, SN, Datuk Param Cumaraswamy
WB : Zambri Idrus (for complainant)
[9.38 a.m.] Pihak-pihak masuk ke Kamar Hakim
[9.53 a.m.] Pihak-pihak keluar dari Kamar Hakim
MY: YA, pihak-pihak masih sama. Turut hadir ialah En. Zambri peguam pemerhati dan En. Mark Trowel.
SN: YA, we have so far interviewed 19 witnesses. There are yet 6 witnesses that are made available. YA, I think the prosecution requires time to make available the other 6 witnesses. We have been told that those 6 witnesses can be made available this week. We have also indicated to the prosecution all the witnesses that we are going to call. I believe my learned friend is agreeable per what we discuss.
MY: The defence has given me the list of witnesses and I confirmed that we have discuss and both parties agree that we shall start next Monday.
YA: Defence confirmed Monday will start the defence, on 22nd August. Prosecution, make the arrangement and defence will start your defence on Monday whatever the outcome of the interview.
[10.25 a.m.] Adjourned
Anwar Ibrahim Sodomy II – The Recorded Truth 08 Ogos 2011 August 9, 2011Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II.
Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP: Semua hadir kecuali MHZ
PB: KS, SN, Marissa,
WB: Zambri Idrus (for complainant)
Expert for Defence: Prof. David Wells, Dr. Brian McDonalds
Keputusan permohonan 44-197-2011 & 44-204-2011
KS: Pihak-pihak seperti dahulu.
YA: Ini keputusan mahkamah bagi permohonan 44-197-2011 dan 44-204-2011. Setelah meneliti kedua-dua hujahan yang dikemukan kedua-dua belah pihak, mahkamah metuskan bahawa : (a) apabila pendakwa menawarkan mana-mana saksi kepada pembela dki akhir kes pendakwaan maka menjadi tanggungjawab pendakwa untuk memastikan saksi-saksi tersebut hadir di mahkamah bila diperlukan oleh pihak pembela; (b) pihak pembela pula mempunyai hak untuk meneramah saksi-saksi yang ditawarkan tertakluk kepada syarat saksi-saksi itu sendiri bersetuju untuk ditemuramah. Berdasarkan kedudukan yang dinyatakan seperti di atas maka permohonan 44-197-2011 & 44-204-2011 dibenarkan dengan perintah seperti yang dipohon dalam kedua-dua permohonan tersebut.
MY: Terima kasih.
YA: So when can you fulfil this obligation? Or maybe you want to stand down for a while? Stand down for a while.
[9.40 a.m.] Stand down.
[10.12 a.m.] Pihak-pihak masuk ke Kamar Hakim
[10.22 a.m.] Pihak-pihak keluar dari Kamar Hakim
MY: YA, pihak-pihak seperti dahulu. Berikutan dengan perintah yang YA berikan sebentar tadi, pihak pendakwa memerlukan masa untuk membuat urusan temubual saksi-saksi ini. Saya telah berbincang dgn En. Karpal dan yang lain-lain. Kami memohon untuk diberi masa seminggu untuk urusan saksi-saksi untuk ditemubual kerana (2) daripada saksi-saksi ini tiada di Malaysia. Ini adalah tertakluk kepada pihak-pihak yang akan merayu.
YA: So start next week, 15 Ogos – 26 Ogos 2011.
MY: Much obliged.
[10.27 a.m.] Adjourned.
Anwar Ibrahim Sodomy II – The Recorded Truth 03 Ogos 2011 August 8, 2011Posted by malaysianstory in 1Malaysia, Anwar Ibrahim, Malaysian Story, Sodomy II.
Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
1 comment so far
Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP : Semua hadir
PB : KS, SN, Datuk Param Cumaraswamy, Ramkarpal
WB : Teoh Lib Peng (for Bar Council)
Permohonan Jenayah 44-197-2011 & 44-204-2011
KS: Memperkenalkan barisan Peguambela dan Pendakwa Raya
YA: Kita ada 2 permohonan hari ini, kalau pihak-pihak tiada bantahan, kita dengar 2 sekali. Isu yang sama kan?
KS: Isu yang sama YA.
YA: So kita dengar sekali, ok? Setuju?
KS: Ya, YA.
KS: My Lord, there are two motions before your Lordship. First 197, the other is 204. There was an affidavit in reply to the application 197. I take your Lordship to Para 11 of the affidavit MH. Para 11 adverts to this.
“Selanjutnya saya mengatakan pemohon melalui peguambelanya S.N Nair memaklumkan kepada Sarjan Ahmad bin Abdullah pada 25 Mei 2011 dan kemudian disahkan sekali lagi pada 26 Mei 2011, yang saksi-saksi yang dinyatakan di bawah ini tidak diperlukan untuk ditemubual oleh pihak pemohon.”
Then it is followed by the name of 8 witnesses My Lord. There is no affidavit by Sarjan Ahmad. The affidavit is only by Encik Hanafiah. Clearly this part of the affidavit would be inadmissible. It has been said that when we look at the midst of the matter, we are asking for witnesses in 197, 5 witnesses that has been set out in the motion: 1) Haji Hasanuddin 2) Dato Mohd Rodwan, 3) Tan Sri Musa Hassan 4) YB Dato’ Seri Najib Razak 5) Datin Seri Rosmah Mansur.
And the second motion we have the list of 15 witnesses we wish to produce in court. Second, we wish to be given the right to interview them. The names appear in the list of witnesses offered to us. Below the subject, in the Criminal Procedure Code or elsewhere, with the regard to offering of the witnesses at the close of the case of the prosecution. This has been a practice for a long time, and a practice which is taken for the significance of the law.
I take your Lordship to tab number 8, first case in 1932, the case of C. Sanmugam. I take you to what is the relevance and significance issue there. It is the judgment of J. Whiteley about the contention of the Solicitor General. We go on to what the judge had said.
YA: Hold on. Page 75, which para?
KS: The right hand column, below there. I’ve highlighted that.
“In a trial by the Jury the prosecuting officer is not bound to call as a witness for the crown or tender for cross-examination a witness who gave evidence in the preliminary inquiry whose evidence in his opinion is unnecessary, hostile or not believed. But such witness must be in attendance. If the accused or his counsel wishes to have such witness called not called by the Crown, then the witness becomes his witness and the prosecuting officer will have the right of cross-examination.”
That case adverted to trial by jury and the position in matter involved in the inquiry.
I take you to what had decided in the case of Teh Lee Tong v Rex  22 MLJ, tab 7 of the list. This is important.
In this case the learned Judge considered the question whether it is incumbent on the prosecution in a summary trial to call as witnesses all persons from whom statements have been taken. He summarised the position as follows:
(1) All witnesses from whom statements have been taken should be brought to the Court by the prosecution, except those whose evidence will clearly and obviously throw no light on the case; any witness not so brought to Court must be made available to the accused, should he desire to call him.
(2) Having brought the witnesses to Court the prosecuting officer is not bound to call or to offer for cross-examination a witness whose evidence is in his opinion unnecessary or is obviously hostile.
(3) The existence of witnesses brought to Court but not called or offered for cross-examination under (2) above must be brought to the attention of the Court so that they are available to be called by the defence, or by the Court should the Court consider this necessary.
So what is important My Lord is the first paragraph; it should be brought to the court by the prosecution. None of these witnesses has been called to the court. Then it arises what happened when the witnesses is offered to the defence.
I take you to tab 9, the case of Wong Kue v Public Prosecutor  2MLJ 97:
“The defence has every right to interview police witnesses offered to the defence and the defence should be given a reasonable time for this purpose. A period of 15 minutes to interview six witnesses as in this case, is certainly not reasonable especially when a request for more time was made at the end of the period. Failure to give a reasonable time for the defence to interview these witnesses amounts to a gross injustice.”
It is our submission that none of these witnesses has been brought to court for the purpose of being offered to the defence. What we have now is the affidavit filed by Encik Hanafiah and that is to the effect that these witnesses are not compelled to the court, but only compelled to do so upon being subpoena.
I take you, with regard to the second exhibit, in the application of DSAI, application 197. That is a letter from the prosecuting officer, one of the Investigating Officer in this case, dated 18th of July 2011. It set out in Para 3, 5 witnesses who were in fact made available. It is in reply to our contention that these witnesses be interviewed to the court. Be that as it may, there was an understanding in chambers, in fact that was accepted by the prosecution that they will be brought to court. There is a situation perhaps it is not a protocol yet, but subsequently, they were for the purpose of 5 witnesses accepted for the purpose of being interviewed brought to court. And that we have here, in the letter itself, that some of the witnesses are not prepared for the purpose of being interviewed. In particular I will take you to para 6:
“Seterusnya saksi-saksi berikut tidak mahu ditemubual tetapi akan hadir ke Mahkamah jika disubpoena”.
In another words, some of the witnesses are refused to come to court pursuant to the understanding that they will be available to be interviewed here. For the witnesses to say now after they have been offered, that they are being subpoena, in fact in our view, are amounts to contempt of court. They have been offered to the defence, and the defence had been accepted them for the purpose of being interviewed, and their refusal would amounts to contempt.
The assertion that they must be subpoena, and that was the central  in the reply by my learned friend to subpoena this witness. Some of them had indicated that they don’t want to come. That is the difference if the witnesses being subpoena, than the witnesses have been offered to the defence. When it comes to subpoena, I take your Lordship to the normal format of it in the Criminal Procedure Code that is in the Form 31. The second part of it, my Lord. [Read]. The word ‘testify’ would imply without the right to be interviewed, that not be include the right to be interview the witness. The rationale in offering witnesses to the defence, a witness from whom the statement has been taken, is to ensure that the witnesses are in the court for the purpose of the interview. They can’t say they don’t want to be interviewed. They can’t deny that position. And this has been done all the time My Lord.
And this is the procedure that, as I said earlier as the force of law, DSAI is entitled to a fair trial, and in the report is the case of Lee Kwan Who v PP  5 MLJ 301. I take your Lordship to page 303.
“The expression law in Art 5(1) of the Constitution included written law and the common law of England, i.e. the rule of law and all its integral components and in both its procedural and substantive dimensions. Thus it is settled law that the rule of law has both procedural and substantive dimensions”.
It is wrong for the Prime Minister to insist him to be subpoena, together with the other 4 witnesses who require the subpoena before the main trial. And for the other witnesses to say that they don’t want to be interviewed. They first must be interviewed. The must come for the purpose of being interviewed. They can’t by way of affidavit express that intention. They have to face defence counsel for the purpose of being interviewed. They can decline to answer question. They can incline . But the defence couldn’t be denied the right had been denied the right, the right to these witnesses to be produced for the purpose of interviewed.
And this particularly important My Lord because all the witnesses from whom the statement is taken. The law is very clear. They must under the law be brought to court. The defence has every right to interview them, based on the two authorities I cited. The position is as simple as that. It has been done centuries ago since British had landed in Penang. I can’t see the difficulties why the Prime Minister has been so stubborn with another three witnesses who want to be subpoena, and the rest who don’t want to come, and also the one who insisting that he wants to come only with his lawyer: Encik Hasanuddin. We have no objection if he wants to come with his lawyer. Fair enough, he can come. But he must come. He cannot take shelter in the affidavit sworn. It is a very dangerous precedent set by your Lordship if your Lordship not allowing our application this time. This is not a threat but a gentle reminder to your Lordship of the consequences that should fall in the system. As far as this is concern, the precedent set put by your Lordship will bind them. And such situation ought not and cannot be allow to come about. Your Lordship duty is to hold the law. A law which has been there all the time. The law in which has been implemented in this court.
It would not be any departure from the law. Any departure from it would be amount to unconstitutional conduct. What is important is this my Lord, the alibi witnesses would come to court at any time, in fact even on the day of the hearing itself to give the evidence. And then the introduction of Section 402A of Criminal Procedure Code. This is now an opportunity for the list of alibi witnesses to be given to the prosecution, if the defence is intended to use alibi as their defence.
The rationale was this, for the prosecution to verify the truth of what the alibi witnesses are going to say i.e. being interviewed. And that interviewed is as result of Sec 112 of Criminal Procedure Code. 112 provides for a witness to say the truth, unless it came under the proviso. Otherwise, what had been stated is the truth. If the argument of opportunity to interview, in our case, alibi witnesses, we have opportunity to know from them what they have told the police in the 112 statement. And the alibi must be investigates is a trite law. I take you to the case of Lee Kwan Woh. It is at page 316 para 31 to the effect that the police must investigate the alibi.
How we will know what that they have said and we have the right to know from the witnesses, in the course of the investigation on what did you said in your statement to the police? So it must put in the perspective on whether or not to call the witness in the course of the defence. Can we be denied the opportunity to know that? Or from other aspect to know from this witnesses if they have been threatened by the police for the course of verification of the alibi. Can we be denied this? It is not the simple thing by saying that you subpoena the witnesses. And in this case, the alibi witnesses were offered by the prosecution, which ordinarily they need not be. What the police do is take the 112 statement and in the event of they getting evidence, and if they get something otherwise lose the 112 statement for the purpose of impeaching them.
YA: But in this case they had offered?
KS: In this case they had converted to prosecution witnesses and then offered to us. I don’t know why my learned friend is so . What the intention is, I don’t know. That is not the point. We want  which appears to be lacking in this case. So the position is as simple as that My Lord. I can’t understand why we are refused something which is so trite and simple. That is it.
YA: Kalau takde dah, I’ll hear from the prosecution.
KS: That is it all, My Lord. That is what it is.
YA: Ok, prosecution.
MY: YA, I would conceit, number 1: that the defence has the right to interview the witnesses. Number 2: that at the close of the prosecution case, the prosecution need to offer or has to be made available from whom the statement is recorded, including the alibi witnesses. Whether or not those phrases ‘to offer and be made available’ can be translated to have them produce physically or does it mean that it is an imply undertaking by the prosecution the case that you need to call those witnesses offered or made available as defence witnesses, then it would be the prosecution’s obligation to have subpoena applied and issued and serve on those witnesses whom they want to call as witnesses.
My lord,  said, foundation of justice is good faith. Now where is the good faith in this application? First of all, most of the witnesses, my learned friend referred to para 11 Mohd Hanafiah’s affidavit, but what I want to say is this, there was a letter written by the IO to the defence counsel and it was exhibited in their own application as ‘DSAI 2’, which was copied to us.
If I may refer you to para 4 of this letter which was referred to and annexed to the affidavit of DSAI. It says that he following witnesses A to H and later on, most of the names were mentioned in the second application, it was the defence who want to  with their interview. And then with regard to the PM and wife, Tan Sri Musa and Rodhwan, it is Encik Hanafiah’s reply where it stated that they couldn’t have anything material to testify for the purpose of this trial, with regard to the particular charge made against DSAI. If I may refer to paragraph 21 in enclosure 4 of the first Usul, if I may read as to what Hanafiah’s says:
“Selanjutnya saya menyatakan dakwaan pihak pemohon, yang mengatakan pemohon telah dinafikan peluang untuk perbicaraan yang adil jika saksi-saksi yang dirujuk di perenggan-perenggan 7 dan 8 Affidavit Pemohon tidak diwajibkan hadir untuk ditemubual oleh pihak pemohon tidak mempunyai asas kerana pihak pemohon sendiri telah mengatakan keterangan-keterangan keempat-empat saksi yang dinyatakan dalam perenggan 7 Affidavit Pemohon tidak relevan, memudaratkan dan tidak boleh diterima sebagai keterangan. Kenyataan saya ini disokong oleh penghujahan pihak pemohon sendiri yang mana saya lampirkan sebagai eksibit dan ditanda ‘MHZ-1’ di mana:
21.1 pihak pemohon telah berhujah bahawa semua keterangan SP1 berhubung pengaduan yang dibuatnya kepada Perdana Menteri Dato Seri Najib Tun Razak pada 24 Jun 2008 antara jam 8.00-8.30 pm di kediamannya di Taman Duta tidak boleh diterima masuk;
21.2 pihak Pemohon telah berhujah menggesa Mahkamah mengenepikan keterangan berhubung pertemuan SP1 dengan SAC 1 Dato’ Mohd Rodwan bin Mohd Yusof atas alasan ianya tidak relevan, memudaratkan dan tidak boleh diterima masuk; dan
21.3 pihak pemohon telah berhujah menggesa Mahkamah mengenepikan keterangan berhubung perbualan telefon antara SP1 dengan Tan Sri Musa bin Hassan atas alasan sama.”
Obviously the evidence with relation to the incident similar but past incident and my learned friend had after having all those evidence being adduced by complainant admitted at the close of the prosecution’s case that all these witnesses highly prejudicial, and not relevant to the charge and therefore not admissible. Now, the law said this. Form 31 talks about a witness who have been subpoena, who can give material evidences. The defence themselves with regard to those witnesses, saying that they are highly irrelevant and prejudicial, and it referred to something which is not covered under the charge. It is not something which is referred to the incident happened on 26th.
Anything other than those incident would be highly prejudicial, we agreed. So why now you want to interviewed them, because you said that what the complainant told Najib, Musa and Rodwan are inadmissible, but now you want to call them. Because those are the only area that Saiful was cross examined with regard to the role of Najib, Musa and Rodwan.
Now with regard to those witnesses mentioned in second application. YA, with regard to the second application where 10 witnesses were mentioned, most of the names mentioned in MHZ-3 in their own notice of alibi. So when the defence put up the notice of alibi, for the police interview them to verify what is the material evidence that those witnesses could give. We give the notice of alibi to say that we weren’t there, but we were alleged to be where the offence took place. And these are the witnesses who can testify to them. Obviously they knew before hand but they wouldn’t want to submit those witnesses for the police to be interviewed. They are their witnesses. So what is there to interviewed? Because in this list, we have the name of the bodyguard and all those people who attended the meeting on the date of incident.
And the two maids of En. Hasanudin, at no time of the close of the prosecution case that we made available in the 71 witnesses until this application on the 1st of August 2011 the defence has never indicated they want to interview this two witnesses including Abdullah Sani bin Said.
So where is the good faith? Only two or three days ago. It was never indicated to us that they want to interview these people. And now they are saying “I have the right”. Yes, you have the right.
YA, before I go to the case law with regard to your right to interview may I just refer to the authority that my learned friend has referred. The first case, case no.8 is Shanmugam. The relevant paragraph start from the right hand column from the second paragraph until the last paragraph. What this case says is this, if you have called the witnesses during preliminary enquiry then you must made them available by producing them in the court whether called or not. You must produce them in court.
“…by a trial by jury, the prosecuting officer is not bound to call as a witness for the Crown or tender for cross-examination a witness who gave evidence in the preliminary enquiry whose evidence in his opinion is unnecessary, hostile or not believe but such witness must be in attendance.”
So it refers to witnesses who had their deposition recorded in the permittal proceeding.
In the case of Teh Lee Tong v. Rex  22 MLJ 94, my learned friend referred to this case as authority to say that we must produce. Can I start with the first sentence, the headnotes?
“The fact that a witness is really a defence witness is a sufficient reason for not tendering him for cross-examination.”
What all the case law seems to say is this, at the end of the day you must tender this people for cross-examination and for that purpose these people must be produced in court. So it says if those people are clearly such as alibi witnesses then we have no obligation to have them in court.
“In this case the learned Judge considered the question whether it is incumbent on the prosecution in a summary trial to call as witnesses all persons from whom statements have been taken. He summarised the position as follows:
(1) All witnesses from whom statement have been taken should be brought to the Court by the prosecution, except those whose evidence will clearly and obviously throw no light on the case; any witness not so brought to Court must be made available to the accused, should he desire to call him.”
Those people who we didn’t bring we must bring. In our case we brought all witnesses whom we wanted to call and those whom we didn’t bring, make them available. This is exactly what we did. We make them available, we give the list of witnesses, please indicate to us whom you want and we will bring them. But the case law seems to suggest we made available this people for the purpose of examination that means to be called as witnesses and not for the interview.
If I may refer your Lordship to our bundle, the case of Khoon Chye Hin v PP  27 MLJ 105. If I invite your Lordship to page 109, para B on the left,
“It is, of course, well settled that in a criminal case prosecuting counsel, provided there is no wrong motive, has a discretion as to whether or not to call any particular witness and in particular has a discretion not to call in support of his case a witness whom he does not believe to be a witness of truth.
In the case of Reg v Woodhead, Alderson B. referred to:—
“The rule which the Judges have lately laid down, that a prosecutor is not bound to call witnesses merely because their names are on the back of the indictment.”
He went on to say:—
“The witnesses, however, should be here, because the prisoner might otherwise be misled; he might, from their names being on the bill, have relied on your bringing them here, and have neglected to bring them himself. You ought, therefore, to have them in Court, but they are to be called by the party who wants their evidence.”
Again, in the case of Reg v Cassidy, Parke B. said that he considered the correct principle was:—
“That the counsel for the prosecution should call what witnesses he thought proper, and that, by having had certain witnesses examined before the grand jury whose names were on the back of the indictment, he only impliedly undertook to have them in Court for the prisoner to examine them, as his witnesses.””
Again, there is this kind of committal proceeding and those witnesses whom you called already before the grand jury you should produce in court. But in our case there is no such grand jury, no preliminary enquiry. And what would apply will be the second phase what my learned friend had said, the case of Teh Li Tong which said those that I did not bring I just need to make available if the defence desire to call. That’s all.
And reference is also made to the case of Adel Muhamamed El Dabbah, just below the case I read just now. And what the case said is we made available people who we think can give material evidence. In fact the word ‘material evidence’ appeared in the form.
YA, we know in this case that the witness mentioned about other incidents. The investigation was on all those incidents other than covered by the charge. But for the purpose of this case, for this charge which the AG decided to charge we did not see how other witnesses are relevant.
In fact the defence would know because the charge made reference to a particular place, particular time. They would have known whether or not he was there or was not there. And here in this case he was sure he wasn’t in that particular unit and he had submitted as exhibited in “MHZ-3” the list of witnesses of alibi to support his defence that he wasn’t in the unit. Very specific defence. Of course other than the fact if he can rebut the evidence of the chemist and the forensic doctors.
With regard to whether or not he has the right to interview, the case of Husdi v PP  2 MLJ 304 and Horace Henry Bryant v Victor Richard Dickson  CCA 146 referred to in this particular case of PP v Ramli Bin Yusuff Criminal Revision No. K 43-08-2008 (tab 6) which is the latest case to discuss the right to interview.
This is a judgment by J Datuk Clement Skinner (as he then was). So what he said ultimately is this, at page 15 after having discuss the cases, S.112, the right to silence, Husdi and Bryant and Dickson,
“In the result, for the reasons given above I find that the accused’s right to interview prosecution witnesses only arises when the prosecution has waived the privilege over the witness statements of such witness and the witness agrees to be so interviewed.”
So if YA is to read the case, what happened in this case was the list of witnesses was supplied earlier even before the commencement of the trial. Now the defence wants to interview the witnesses. So they are saying, “Look if I were to allow you to interview the witnesses it is as good as nullifying the decision in Husdi which said 112 statement is privilege.” Because it is as good as giving you the 112.
So to reconcile with Husdi, your right will only arise when I no longer want to call this person or as in the case of Bryant v. Dickson, the defence counsel wrote to the prosecuting counsel and asked whether or not they want to call a particular witness and the prosecution said : No, we are not going to call, we have no objection for you to do that.
So when the prosecution has waived their right either as in the case of Bryant v. Dickson or at the close of the prosecution case with regard to witnesses whom they have not call then only your right….
YA: As to what? As to call the witnesses as witness? Kita dah close prosecution case so that mean you are not going to call this people anymore?
YA: So that was settled.
MY: That means we waived our right, we have no priority right over the witness then only your right to interview arises. But it said this right is subjected to those witnesses agreeing to be interviewed.
In fact in this particular case if you can look at page 2 of the judgment,
“The brief facts leading up to the making of the order are these.
The accused in the case is charged with an offence under the Anti-Corruption Act 1997. Prior to the commencement of the trial the defence wrote to the prosecution requesting for a list of the prosecution witnesses and also notifying the prosecution of their intention to interview witnesses who may be called by the prosecution.
The prosecution supplied the defence with a list of prosecution witnesses, but refused to allow their witnesses to be interviewed by the defence.
The defence has taken the stand that there are no proprietary rights in a witness and therefore the defence is entitled to interview the prosecution witnesses in preparing for its case, after having put the prosecution on notice of their intention to do so. The defence then wrote letters to certain prosecution witnesses with a view to interviewing them. Some of these witnesses have replied, agreeing to be interviewed whilst others did not respond.
The prosecution then intervened and advised or instructed these witnesses not to be interviewed by the defence as they had been subpoenaed to attend the trial.”
Of course in this case the learned judge talks about the right to silence. I quite disagree. To me it is not the right to silence; it’s the right to decline. I don’t have to decline because here we are talking about where is the law that can compel you to give statement.
Here the judge discusses Rule 34, which we have exhibited in our bundle. And Rule 34 is not the rule which confers the power for you to compel. And he discuss s.112. In fact in our bundle we exhibited s.111 where the police can actually give you notice, ask you to come, if you don’t want to come lodge a report to the Magistrate and have a warrant of arrest issued for you to be produced before. That’s compulsion. And there are many other laws with regard to the power of investigation where they have the power to compel. But, none given to counsel or to the court except by way of a subpoena. Even subpoena, if the law has provide certain particular method of securing attendance subpoena cannot be applied if that method after being employed failed to secure the attendance.
We have the cases. In fact just for the benefit of the court we have had in our bundle these cases of Raymond v. Tapson  Chancery Division Vol.XXII 430 (tab 7) which talks about any party can apply for subpoena; Ismail v. Hasnul : Abdul Ghafar v. Hasnul  1 MLJ 108 (tab8) where the court talks about discretion to control the subpoena from being abused, if the witnesses cannot give relevant evidence the court can just set aside the subpoena; Rex v. Baines & Anor [1908-1909] Vol. XXV The Times Law Reports 79 (tab 9)where it talks the same thing and Exparte Simmons  1 KB 165 (tab 11) is one case where a particular method is employed provided by the law to secure attendance failing which you cannot apply for subpoena and you must use that method provided by the law.
So whether or not you can interview, all the case law seems to suggest you have the right but provided that they are prepared. And following the letter that the IO wrote, these people are not prepared. They said: if you want, have me subpoenaed. So all Mr. Karpal has to do is tell me I want Najib and I will apply subpoena from this court and then it’s up to Najib to set it aside, or Musa, or Rodwan for the matter.
But, you can’t asked the court and the court unfortunately is not vested with any authority to compel a witness to come here to be interviewed. There is no proviso. So your right is subjected to the other party’s right to decline to be interviewed.
So we agree there, En. Karpal has the right. But as I said this is not done in good faith, adding a few more names on the 1st of August to be interviewed when they had not at no time.
YA, our duty is when we close our case we make available the list of witnesses, you tell us whom you want and we will immediately supplied for subpoena. And then have them produce here. After that En Karpal can say : Look, before that I want to interview. But what he did was this – before I decide whom I want to call I want to interview first. . And we give undertaking that we will make the necessary arrangement but we can’t just like the court cannot, we cannot compel these people.
But of course Dr. Khairul Annas came, Mumtaz came and few others came. 8 others, they choose not to come. Hasanudin refused to come. He said to talk to his counsel. Now I heard he said subpoena me. But these are Dato’ Seri Anwar Ibrahim’s friend, not the prosecution friend. All the while I thought En. Ibrahim Yaakob is En. Hasanuddin until I call him as a witness then he turns out to be Ibrahim Yaakob because the record refuses him having presence from the hearing where he shouldn’t be. Because I don’t know how this Hasanuddin looks like. And all these witnesses who attended the meeting are all known to Anwar, they are not our witness.
Like En. Karpal said, you ask us to record and we record. . And the law said people from whom we recorded the statement we must made available, so we make available. You cannot say why are you doing this, what motive. There is no motive because the law says so. But making available and offering those witnesses to you does not equal to having them physically in court and that what the case no. 7 said – those whom I record statement I must bring and then call. If I don’t call and don’t bring to court I must made them available but it does not mean having the physically presence in court.
And the case of Abdullah Zawawi v PP  2 MLJ 16 said the practice of making available and offering these witnesses to the defence, witnesses from whom statement was recorded is a practice to prevent the invocation of s.114(g) Evidence Act.
And then we have a lose copy, a Court of Appeal case of Yusri bin Pialmi v PP  3 MLJ 445. Holding no.5 is the dissenting judgment of Kang Hwee Gee JCA. The principle is acceptable. It is a good law.
“It is always been the practice that the prosecution at the close of its case, offer or make available to the defence, witnesses whom it did not call to give evidence but those whose statements had been recorded in the course of police investigation. The practice has the force of procedural law to ensure that an accused is afforded all the means at his disposal to call any witness to testify on his behalf…”
And the case of Abdullah Zawawi, tab no.2 at page 18 of the report…
YA: Sorry Datuk. Apparently you use the word offering…
MY: Or make available. Offer or make available. Because in English cases they says tender, meaning you have there in the court and tender there.
Then Abdullah Zawawi case, at para I of the right hand column,
“The practice of making available a witness or witnesses from whom statements have been taken is to prevent the defence from commenting upon the honesty of the prosecution and thus invoking the often-quoted presumption of adverse inference under section 114 (g) of the Evidence Act.”
So, YA the closest you can come to this is what the case of Teh Lee Tong said: those whom we didn’t bring to court we must made available. So meaning making available does not mean making it physically presence. It is just as in this case of…
YA: So, bagi list saja cukup? Is that what you are saying?
MY: Yes. Because if you want just indicate to us…if your Lordship were to look at the case of Khoon Chye Hin and also the case of Adel Muhammed El Dabbah, they said maybe after having look at the name they may decide on whom they want to call so they make…
YA: So you make an offer by giving the list and they tell you I want this fellow, does that mean that you have to physically…
MY: Yes, then we will have to. The indication is…
YA: You have to?
MY: The indication must be you want them as witnesses. Because all the cases referred to call them as witness to be examined not for interview.
So the case on interview will be the case of PP v Ramli bin Yusuf. That’s the only case. In fact, the case of Bryant v. Dickson also the same, it said of course before that they went for interview. It said it will be good for you to interview before you call them. I mean it’s mentioned in the case of Bryant v. Dickson.
If I may read to your Lordship Bryant v. Dickson, tab 5, page 151 starting from the second paragraph.
“Another point taken is that Campbell was not called at the trial. It is said that it was the duty of the prosecution to have supplied the defence with a statement which Campbell had admittedly made to the prosecution. The prosecution, for reasons which one can well understand, did not call Campbell. Is there a duty in such circumstances on the prosecution to supply a copy of the statement which they have taken to the defence? In the opinion of the Court there is no such duty, nor has there ever been. In the first place, if they had supplied a copy of the statement of Campbell, that would not have enabled the defence to put the statement in. The statement which Campbell made could have become evidence only if he had been called as a witness. But it is said that it was the duty of the prosecution to put that statement at the disposal of the defence. In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence a witness whom the prosecution know can, if he is called, give material evidence. That they did in this case, because when a letter was sent by the defence to the director of Public Prosecutions, the reply of the Director of Public Prosecutions showed quite clearly that the prosecution did not intend to call him, but he added: “There is no objection to your taking a statement from Campbell if you wish to do so”.”
This would appear as far as the court is concern tantamount to make it available. Because, “In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence …”. And this they did. How they do it is just by telling I’m not going to call, if you want to record the statement you can. And that as far as this case is concern is enough to making it available.
“There is no objection to your taking a statement from Campbell if you wish to do so”. That was said well before the trial. It was said after the close of the police court proceedings, when the defence knew that Campbell was not being called by the prosecution, and therefore could quite well themselves have gone to Campbell and taken a statement from him. Campbell was at the Court. Who brought him to the Court I do not know, nor is it material to inquire, but the defence could have called him if they had liked. No doubt Mr. Scott Henderseon would not have been so unwise as to call him without having a statement from him, but if the defence did not choose to take a statement and find out what he was prepared to say, that is not a matter with which the prosecution are concerned.”
That’s all, YA. Make available. That’s all. And that so if you wish to record the statement. As far as the prosecution, we have done that. And now his right to interview arises. What about the other party? The case of PP v Ramli Bin Yusuff said your right is subjected to the other person’s right to decline. And in this case before your Lordship those witnesses have declined to be interviewed which they have the right to do so, their constitutional right to do so.
My Lord, one more thing I want to add. My learned friend with regards to the alibi said this: these people have gone to see the police; the police have recorded their statement. I thought the purpose of interviewing a witness is to ascertain what he knows about the fact. Anwar should know how much information he has with regard to the case. But Mr. Karpal said I want to interview this witness to know what the witness told the police. I mean that cannot be the reason. The reason is to know how your evidence can help me, how much do you know whether it is relevant or not. In this case they already knew otherwise they wouldn’t identify this witness. But to say that I need to see this people to find out from them what they told the police is not the purpose of the interview. Like I said, there is no good faith. This is not  says when he says that the foundation of justice is good faith and obviously in this particular application that is lacking.
I urged your Lordship to dismiss this application and to order the defence to indicate to the prosecution whoever they want to call so that we can make the necessary arrangement to help them in court when the trial resume next week. Much obliged.
KS: I would  because my learned friend has updated me with the case of Yusri Bin Pailmi v PP. It is vey clear my Lord. If I could read it.
YA: Tab berapa tu?
KS: It is the lose copy that my learned friend referred to just now. It set out the law very very clearly my Lord. In fact, it is what your Lordship ought to be guided by. I read it.
“It is always been the practice that the prosecution at the close of its case, offer or make available to the defence, witnesses whom it did not call to give evidence but those whose statements had been recorded in the course of police investigation. The practice has the force of procedural law to ensure that an accused is afforded all the means at his disposal to call any witness to testify on his behalf. The prosecution’s failure in not offering or making them available under the circumstances has given rise to the question of whether the accused had been afforded a fair trial. ”
Here 71 witnesses were offered. We indicated we require 25. Undertstanding between the parties in the chamber in fact before your Lordship that the venue will be here, in court itself that they were to be interviewed and that understanding was implemented.
And to say the rest don’t want to come is not for the prosecution to say, it is for them to tell the defence that they don’t wish to come. It is for the defence to enquire from them what statement they have made in the course of the police investigation. It is not only the question of alibi witnesses here, its’ other witnesses. We can’t object to the  of the evidence relating to the Prime Minister, it could be beyond that. My learned friend can’t impose us as to the evidence, which we want to elicit from the witnesses. And again we have again indicated in the second application that we need the two maids of En. Hasanuddin, the two Indonesian maids. They have not been indicated anywhere here my Lord that they don’t wish to be interviewed. Why are they not being made available? They are material witnesses.
I take you to the question of expense my Lord. Once the witness is offered to the defence then the prosecution bears the expenses my Lord for the attendance of that witness during the course of the trial. We want them to attend as witnesses, subpoena that then we would have bear the expenses.
YA: I think this one we already agreed if you want them as your witness just let them know and they will supply the subpoena. They will serve it, they will…
KS: Yeah, but we need them.
YA: And that’s for?
KS: Attendance in court.
YA: They agree to testify in court but you are asking them to be interviewed. Now, that’s the dispute sekarang ni.
KS: My Lord, automatically if we accept the witnesses it is the interview as of right. 
YA: So now you are asking them to produce the witnesses on their own expenses for purpose of being interviewed.
KS: Of course. That is the purpose of offering. . And my learned friend refers to this case of tab 6, page15,
“In the result, for the reasons given above I find that to the accused’s right to interview prosecution witnesses only arises where the prosecution has waived the privilege over the witness statements of such witness and the witness agrees to be so interviewed.”
. Where is the waiver of the privilege? . If a witness is offered it is automatically that we have the right to see the witness, talk to the witness. That’s the purpose of offering. It is done all the time. What a  exercise being taken but something real. It is not for my learned friend to say that the witnesses are not material witnesses. It is only for the defence to decide whether they are material after we interview them. And facts that statements were taken from these witnesses shows that they would be material. Otherwise why take statement from witnesses? And on the  why is the evidence is not material?
I can’t see we have to go in elaborate exercise to come to the conclusion that the witnesses is offered must be physically there to say what he wants and for us to decide in the right of what he say, even to the asking my Lord to what he said in 112 statement. He is our witness. Once offered, we accept. It’s like a contract my Lord, you offer we accept. It is as simple as that. In fact in all these years, in all these centuries, in England and in anywhere in the world that is what is done where the English law applies in court.
We urged your Lordship to very carefully consider this position that we have the right for their attendance in court and  of the prosecution. We have the right to see them physically, we have the right to talk to them. They have the right then to refuse to become a witness. Of course we will not use someone who is against us. It may have been we have elicit some evidence from the witness.
It is not only the question here of alibi. The credibility of the complainant here could be  through witnesses who had been offered. Attack his credibility. His visit to the PM’s house. Statement taken from Datin Rosmah in evidence. Are those material witnesses my Lord? Can they say they will not come and you subpoena us. Had they not being offered and we wanted them then we would subpoena them my Lord, that we would have to subpoena them. And that is when personal subpoena arises. And witness other than one offered is thought to be material for the defence to call. Those are the situation. And that is the situation. And that situation is not here.
The Indonesian maids are to be made available. They are in Indonesia. You can’t make available or offer someone who are not around. It is impossible. Make available or offers someone who are not around.
We urged your Lordship to carefully consider the position.
YA: Ya. Ada lagi ke?
KS: It is not as simple as my learned friend appears to make it.
YA: Ya, anything else you want to add?
KS: I think that is what I’m trying to impress upon your Lordship. The importance of…
YA: Yes, it is very important. I know.
KS: We need a ruling with this sensible and for affording Dato’ Seri Anwar Ibrahim a fair trial. He is entitled to that. You can’t deny him that. Nobody can. We urged your Lordship to make order in terms in relation to the two applications before your Lordship.
YAL: Saya perlu meneliti segala otorito-otoriti yang dikemukakan. Obviously I need time. Since you are coming back on Monday, so I think I’ll deliver it on Monday. I’ll deliver it on Monday, 8th August 2011.
[11.08 a.m.] Adjourned.
Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
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Di hadapan YA Dato’ Hasan Bin Lah, H.M.R
YA Dato’ Hj Abdul Malik Bin Haji Ishak, H.M.R
YA Dato’ Haji Ahmad Bin Maarop, H.M.R
PP: NH, WCK, NB, NAA, MM
PB: KS, Ram Karpal
AI tidak hadir
Rayuan Jenayah: W05-162-6-2011
NH: Sebelum rakan saya memulakan rayuan, pihak kami telah memfailkan notis memaklumkan kami ada bantahan awal untuk dihujahkan sekiranya diizinkan. YA, kami telah menyediakan hujahan bertulis untuk bantahan awal yang telah dikemukakan kepada mahkamah dan juga ikatan autoriti berkaitan bantahan awal.
YA Dato’ Hasan : Teruskan.
NH: Mohon izin untuk berhujah di dalam Bahasa Inggeris, YA.
The appeal today is against the decision of the trial judge not to recuse himself from hearing the criminal proceedings against the Appellant.
Our preliminary objection as mentioned in our notice earlier to the Appellant and this honorable court is that the ruling of the trial judge not to recuse himself is not appealable. The trial judge’s ruling is clearly not within the purview of the definition of ‘decision’ in Section 3 of the Court of Judicature Act 1964.
YA, just to inform the honorable court this is the third application to recuse the trial judge by the Appellant and this honorable court on appeal pertaining to the second application has decided that the judge ruling not to recuse himself is not appealable as it is not within the purview of the definition of ‘decision’ as provided by Section 3 of the Court of Judicature Act 1964. It is reported in Dato’ Seri Anwar Ibrahim v PP  2 CLJ 845.
Our reason for this objection is stated at page 10 of our written submission. If I may refer YA to page 10 at paragraph 16. As mentioned here, the ruling of the learned trial judge, in refusing to acquiesce to the Appellant’s third application for recusal is clearly not within the purview of the definition of ‘decision’ in Section 3 of Court of Judicature Act 1964.
The said ruling was made in the course of a trial, i.e. at the close of the prosecution case. It must be emphasized YA, that the said ruling had not finally disposed the rights of the Appellant.
YA, the rights of the Appellant to appeal against the decision of the high court are governed by Section 50 of the Court of Judicature Act 1964 which provides that:
50. Jurisdiction to hear and determine criminal appeals
(1) Subject to any rules regulating the proceedings of the Court of Appeal in respect of criminal appeals, the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court—
(a) in the exercise of its original jurisdiction; and
(b) in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by the Sessions Court.
(2) An appeal shall lie to the Court of Appeal, with the leave of the Court of Appeal, against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates’ Court but such appeal shall be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision.
The word ‘decision’ as appeared in Section 50 of the Court of Judicature Act is defined in Section 3 of the same Act:
“decision” means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does nit finally dispose of the rights of the parties.
YA, as we stated here, in the explanatory notes when the word ‘decision’ in Section 3 of the Court of Judicature Act was amended, the reasons for the amendment were stated as follows:
“Pada masa ini, semasa mendengar kes, jika mahkamah membuat keputusan tentang kebolehterimaan apa-apa keterangan atau dokumen, pihak yang tidak berpuas hati boleh memfailkan rayuan. Jika rayuan sedemikian difailkan, mahkamah terpaksa memberhentikan pendengaran kes itu sementara menanti keputusan rayuan itu oleh mahkamah atasan. Ini menyebabkan pendengaran itu lambat selesai, lebih-lebih lagi apabila rayuan difailkan terhadap tiap-tiap keputusan yang dibuat oleh mahkamah bicara. Pindaan ini mencadangkan untuk membantu mempercepat pendengaran kes di mahkamah bicara.”
In Dato’ Seri Anwar Ibrahim v PP  1 MLJ 321 at tab 11 of our bundle, the Court of Appeal when deliberating on the ambit of the word ‘decision’ in Section 3 of the Court of Judicature Act opined at page 335 that:
“A decision made pending the trial of the charges against the appellant is not, in our considered opinion, a decision (ruling) that had the effect of finally determining the rights of the appellant. It is only the outcome of the trial that would have the effect of finally disposing of his rights. A decision on bail (by the court of first instance), whether the grant or refusal of it, will not finally determine the rights of the appellant in the outcome of his trial. That being so, the order of the High Court in refusing to admit the appellant to bail is not appealable to the Court of Appeal.”
Similarly in Saad Bin Abas & Anor v Public Prosecutor  1 MLJ 129, the application of Section 50(2) of the Court of Judicature Act was explained by the Court of Appeal at page 138 as follows:
“So, for the purpose of s 50(2), this court has to first ascertain whether the ‘decision’ of the High Court in ordering the applicants before us to enter on their defence was a ruling that had the effect of finally disposing of their rights. Certainly not, and it would only happen after a decision had been made at the close of the defence.”
And in our case it is at the close of the prosecution case.
YA, in Regina v Collins  1 QB 710 at tab 12, the coa of England, pursuant to a motion filed with regards to the decision of the court below in refusing to order further particulars of a count in an indictment held that:
“…the court had no jurisdiction to hear the application; that the Court of Appeal (criminal division), having the same powers as its predecessor, the Court of Criminal Appeal, which was created by the Criminal Appeal Act 1907, had no statutory jurisdiction to hear an interlocutory appeal; that since the court was created by statute, it had no powers beyond those conferred on it by Parliament. Accordingly, there was no inherent jurisdiction to hear interlocutory appeals.”
The above case did not define ‘interlocutory’ nor ‘interlocutory appeal’. However, in Black’s Law Dictionary (Eight Edition), the word ‘interlocutory’, (when referring to an order, judgment, appeal etc.) is defined as ‘interim or temporary, not constituting a final resolution of the whole controversy.’
On the other hand, the phrase ‘interlocutory appeal’ is defined in Black’s Law Dictionary (eight Edition) as ‘an appeal that occurs before the trial court’s final ruling on the entire case.”
It cannot be gainsaid that the appeal filed by the Appellant herein is actually an interlocutory appeal as it was ‘an appeal that occurs before the trial court’s final ruling on the entire case.’ Such being the case, the definition of the word ‘decision’ in section 3 of the Court of Judicature Act would clearly preclude the Appellant from pursuing with this appeal.
If I may refer YA to tab 11 of our bundle where J NH Chan at page 330 had further explained at paragraph D,
“The real distinction is between (for want of a better word) what is called final judgments and orders and interlocutory judgments and orders. In general, a judgment or order which determines the principal matter in question is termed ‘final’: see 26 Halsbury’s Laws of England, para 505 at p 238. Actually, the use of the term ‘final’ is tautological as all judgments and orders are final. The term (final) is used for the purpose of distinguishing between judgments and orders and ‘interlocutory’ judgments and orders. The difference is that judgments and orders which are not termed ‘interlocutory’ judgments and orders are appealable under the new meaning of the word ‘decision’ as defined in s 3 by the 1998 amendment. In other words, judgments and orders which determine the principal matter in question are termed ‘final’ judgments and orders, and they are appealable. But, those judgments and orders which give no final decision on the matters in dispute (which are termed ‘interlocutory’ judgments and orders) are now no longer appealable.”
YA, in fact, this Honorable Court when deliberating on an appeal filed by the same Appellant pursuant to his second application for recusal in Dato’ Seri Anwar Ibrahim v PP  2 CLJ 845 at tab 7 of our bundle. May I refer first to the head notes in paragraph E at page 845,
“The accused had during the course of the trial filed an application to recuse the learned trial judge on the grounds that the trial judge had intimidated the accused’s learned counsel with contempt proceedings. The trial judge dismissed the recusal application. The accused filed this appeal against the said decision. The learned Deputy Public Prosecutor raised a preliminary objection on the ground that the ruling of the trial judge was not within the purview of ‘decision’ in s. 3 read with s. 50(1) of the Courts of Judicature Act 1964 (‘the Act’), as it was made in the course of a trial and did not finally dispose of the accused’s rights under the charge.”
Then it was decided by this honorable Court, If I may refer to paragraph 16 of page 851,
“ The intention as manifested in s. 3, read with s. 50(1)(a) and the Explanatory Statement, is clear and unambiguous ie, to bar the filing of an appeal against a ruling made by a trial court and also to help expedite the hearing of cases in trial courts. In other words, while the law allows appeals against a judgment, sentence or order, it expressly excludes all appeals against all rulings made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties. Put simply, the intention of Parliament in enacting s. 3 and s. 50(1)(a) is to exclude interlocutory appeals in criminal causes or matters.”
YA, then at paragraph 17,
“ As the definition of ‘decision’ in s. 3 is clear and unambiguous, it is the duty of the court to give effect to it. This Court has no powers beyond those conferred by Parliament. Accordingly, there is no jurisdiction to hear an interlocutory appeal i.e. Interim appeal against a ruling which does not constitute a final resolution to the whole controversy, or “an appeal that occurs before the trial court’s final ruling on the entire case” (see Black’s Law Dictionary, 8th edn, and Regina v Collins, supra). Justice demands that cases should move without unnecessary interruption to their final conclusion. The right of a party who is aggrieved by a ruling, after all, is not being compromised, as the party can always raise the issue during the substantive appeal, if any, which may be filed after the trial process is brought to its conclusion.”
YA, we go straight to paragraph 19,
“ In the instant appeal, the ruling of the learned trial judge in dismissing the accused’s second recusal application was made in the course of the trial which does not finally dispose of the rights of the accused and is therefore not a decision within the ambit of s. 3 read with s. 50(1)(a). It is only the outcome of the trial that would have the effect of finally disposing of his rights.”
It goes on further at paragraph 20,
“ The underlying reason behind the amendment to the definition of ‘decision’ in s. 3, introduced by Amendment Act A1031 of 1998 with effect from 31 July 1998, is to stop parties from filing appeal after appeal on rulings made by the trial court in the course of a trial, thereby stifling a trial before the trial court: See Dato’ Seri Anwar Ibrahim v. PP  9 CLJ 625 FC.”
And the conclusion at paragraph 21,
 On the foregoing grounds, we unanimously sustained thepreliminary objection and dismissed this appeal in limine.”
At page 862 of the same case, J Abdul Malik Ishak stated in paragraph 56,
“ The ruling by the learned trial judge is interlocutory in nature and made in the course of the trial and it is not final. And since the ruling of the learned trial judge is not appealable, this court has no jurisdiction to hear the appeal.”
YA, This Honorable Court in Dato’ Seri Anwar Ibrahim v Public Prosecutor (Court of Appeal. Criminal Appeal No. W-05-178-2010 – Unreported), tab 9 of our bundle which was an earlier appeal filed by the Appellant against the ruling of the learned trial Judge in refusing to allow the defence to inspect the section 112 statement of the complainant, had held that:
“(1) We are of the view that the ruling of the learned trial Judge was made in the course of a trial where the rights of the Appellant has not been fully disposed off. Therefore the ruling in refusing to allow the statements of the complainant recorded under section 112 Criminal Procedure Code, to be produced for inspection by the Appellant is not within what is envisaged by the definition of “decision” as provided for by section 3 of Courts of Judicature Act 1964.
(2) Our jurisdiction to hear and determine the appeal is governed by section 50 of Courts of Judicature Act 1964. We have no jurisdiction to hear an appeal which is not against a decision made by the High Court.”
Further at paragraph 31 of our written submission, The Court of Appeal in the above case then proceeded to examine the term “decision” as defined in section 3 of the CJA, the explanatory statement accompanying the amendment to the term “decision” and the relevant authorities illustrating the said term.
Having done do, the Court of Appeal held that:
“(4) It cannot be gainsaid that the appeal filed by the Appellant herein is really an interlocutory appeal as it is an appeal that occurs before the trial’s court final ruling on the entire case.
(5) Therefore we have no jurisdiction to hear and determine this appeal.”
The Federal Court had also recently dealt with the same issue in Dato’ Seri Anwar Ibrahim v Public Prosecutor  6 MLJ 585, tab 8 of our bundle in paragraph 24,
“ The underlying reason behind the amendment to the definition of ‘decision’ in s 3 of the CJA, introduced by Amendment Act A1031 of 1998, which came into effect on 31 July 1998 is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial. This is what the amendment seeks to achieve as evident from the explanatory statement to the Bill which reads:
2 Clause 2 seeks to amend section 3 of Act 91.
At the moment, in the course of hearing a case, if the court decides on the admissibility of any evidence or document, the dissatisfied party may file an appeal. If such appeal is filed, the court has to stop the trial pending the decision of the appeal by the superior court. This cause a long delay in the completion of the hearing, especially when an appeal is filed against every ruling made by the trial court. The amendment is proposed in order to help expedite the hearing of cases in trial courts.”
And the conclusion of the above case is,
 For the above reasons, we agree with the Court of Appeal that the ruling of the trial court in this case is not a ‘decision’ as defined in s 3 of the CJA and hence it is not appealable. In the light of our decision, it is therefore not necessary for us to consider grounds 3 and 4 of the petition.”
Applying the principles as enunciated by both the Federal Court in the above case and also the latest decision of the Court of Appeal in Dato’ Seri Anwar Ibrahim v PP  2 CLJ 845, it is rather obvious that the ruling of the learned trial Judge is refusing to acquiesce to the demand of the defence for him to be recused, is definitely a non-appealable ruling.
On this preliminary issue alone, we respectfully urge this Honorable Court to dismiss the Appellant’s appeal for want of jurisdiction.
YA Dato’ Hasan: Sebelum itu, perayu memang tidak hadir ya, En.Karpal?
KS: He is here.
YA Dato’ Hasan: Kenapa tak datang depan?
YA Dato’ Hasan: Okay, proceed.
KS: My learned friend starts off by saying that this is the third attempt by the Appellant to recuse the learned trial judge. The number of attempts is not an issue, my lord. An accused has the right to exhaust any remedy he has. The number of attempts does not count.
What we have here is the interpretation of the word ‘decision’ in Section 3 or rather the amendment of Section 3 of the Court of Judicature Act. That of course is  would be Section 50 of the Court of Judicature Act with the right of appeal of an accused person.
I take your Lordship straight away to what is at hand. We refer to our submission.
The respondent has given notice of preliminary objection that pursuant to Section 50 and the definition of ‘decision’ in section 3 of the Court of Judicature Act 1964 and having regard to the decision of this Court in Dato’ Seri Anwar Ibrahim v PP  2 CLJ 845 [Tab 1] and in which J Abdul Malik had the occasion to say to the court the issue having arisen in the course of the trial and having been decided, that decision is not a final order and, therefore, it could not be appealed to the Court of Appeal.
My Lord, Malik J had occasioned to say this to Honorable Court; and the issue having arisen in the course of the trial and having been decided, that decision is not a final order and therefore, it could not be appealed to the Court of Appeal.
The order of the trial judge dated 6th June 2011 is against his refusal to recuse himself for further proceeding with the trial in disqualifying himself so to do.
What has to be noted is that the Federal Court has had occasion to consider the issue relating to final order in Dato’ Seri Anwar Ibrahim v Public Prosecutor  9 CLJ 625 [TAB 2]. However, the Federal Court there was dealing, not with an order of recusal, but with a ruling relating to the recording of a statement under Section 112 of the Criminal Procedure Code.
It is to be noted that this issue relating to recusal of a judge arose in this court in Dato’ Seri Anwar Ibrahim v Public Prosecutor  2 CLJ 845.
It was a unanimous decision of the Court of Appeal that the intention as manifested in the definition of decision in section 3 of the Act, read with the Section 50(1)(a) of the Act and the Explanatory Statement, was clear and unambiguous i.e. to bar the filing of an appeal against a ruling made by a trial court and also expedite the hearing of cases in trial courts. The intention of Parliament in enacting Section 3 of the Act, read with section 50(1)(a), was to exclude interlocutory appeals in criminal caused or matters.
The Court of Appeal went on further to hold as the definition of ‘decision’ in section 3 of the Act is clear and unambiguous; it is the duty of the court to give effect to it. The court has no powers beyond those conferred by Parliament. Accordingly, there was no jurisdiction to hear an interlocutory appeal i.e. interim appeal against a ruling which does not constitute a final resolution of the whole controversy or an appeal that occurs before the trial court’s final ruling on the entire case.
The Court of Appeal went on further to hold the ruling of the learned trial judge in dismissing the accused’s recusal application was made in the course of the trial which did not finally disposed the right of the accused and was therefore not a decision within the ambit of Section 3 read with Section 50(1)(a) of the Act. It was only the outcome of the trial that would have the effect of finally disposing his rights with Abdul Malik Ishak JCA, while concurring, held the ruling by the learned trial judge was interlocutory in nature and made in the course of the trial and was not final. Since the ruling of the trial judge was not appealable, the court has no jurisdiction to hear the appeal. Hence the appeal should be dismissed for want of jurisdiction.
It is submitted with respect that the abovementioned rulings by the Court of Appeal are erroneous. The Court of Appeal is not bound by its own decisions.
In Dalip Bhagwan Singh v Public Prosecutor  1 MLJ 1 [TAB 3], the Federal Court at page 14 stated,
‘In Malaysia, the Federal Court and it forerunner, i.e. the Supreme Court after all appeals to the Privy Council were abolished, has never refused to depart from its own decision when it appeared right to do so’.
However, at the same page preceding the above passage appears the following caveat,
‘Experience in the United Kingdom has shown that the power ‘to depart from a previous decision when it appear right to so’ has been used very sparingly’.
In Tunde Apatira & Ors v Public Prosecutor  1 MLJ 259 [TAB 4] at pages 263-264, in delivering the judgment of the Federal Court, Gopal Sri Ram JCA (as he then was) had occasion to say,
‘With respect, we are unable to accept the learned deputy’s invitation to depart from Muhammed bin Hassan for three reasons. In the first place, Muhammed bin Hassan is a very recent decision of this court. It is bad policy for us as the apex court to leave the law in a state of uncertainty by departing from our recent decisions. Members of the public must be allowed to arrange their affairs so that they keep well within the framework of the law. They can hardly do this if the judiciary keeps changing its stance upon the same issue between brief intervals. The point assumes greater importance in the field of criminal law where a breach may result in the deprivation of life or liberty or in the imposition of other serious penalties. Of course, if a decision were plainly wrong, it would cause as much injustice if we were to leave it unreversed merely on the ground that it was recently decided. In a case as the present this court will normally follow the approach adopted by the apex courts of other Commonwealth jurisdictions as exemplified by such decisions as R v Shivpuri  2 All ER 334’.
In R v Shivpuri  2 ALL ER 334 [TAB 5] at page 345 the House of Lords stated,
‘Firstly, I am undeterred by the consideration that the decision in Anderton v Ryan was so recent, the 1966 Practice Statement is an effective abandonment of our pretention to infallibility. If a serious embodied in a decision of the House has distorted the law, the sooner it is corrected the better. Secondly, I cannot see how, in the very nature of the case, anyone could have acted in reliance in the law as propounded in Anderton Ryan in the belief that he was acting innocently and now find that, after all, he is to be held to have committed a criminal offence. Thirdly, to hold the House bound to follow Anderton v Ryan because it cannot be distinguished and to allow the appeal in the case would, it seems to me, be tantamount to a declaration that the 1981 Act left the law of criminal attempts unchanged following the decision in v Smith  3 ALL ER 1109,  AC 476. Finally, if contrary to my present view, there is a valid ground on which it would be proper to distinguish cases similar to that considered in Anderton v Ryan, my present opinion on that point would not foreclose the option of making such a distinction in some future case.’
The propositions which can be distilled from the abovementioned authorities are as follows:
 the Federal Court has never refused to depart form its own previous decision when it appeared right to do so;
 Experience in the United Kingdom has shown that the power to depart from a previous decision when it appears right to do so has been used very sparingly;
 if a decision were plainly wring it would cause as much injustice if the court were to leave it unreserved; and
 if a serious error embodied in a decision of a court has distorted the law, the sooner it is corrected the better.
It is submitted, this principles equally apply to the Court of Appeal.
It is accepted that an appeal is merely a continuation of proceedings by way of rehearing [see Balasingham v Public Prosecutor  1 MLJ 193 [TAB 6]; See also Adzhaar Ahmad v Public Prosecutor  4 MLJ 85 [TAB 7]] in which Alauddin J (as he then was) had occasion also to say “that an appeal is merely a continuation of proceedings by way of rehearing”.
If this is the position in law, and it has to be, then this court should carefully consider whether if it had, in the first instance sat, and had come to the conclusion that the learned trial judge ought to have been recused, then that would have been the end of the matter. The trial would have had to be, as a consequence, commenced de novo. This would have meant that the order made would have been final and not an interlocutory or interim one.
Under these circumstances, this court should have the jurisdiction to hear the appeal. The position is as simple as that.
It is respectfully prayed therefore, that this court has the jurisdiction to hear the appeal and consider the merits of it.
Then again, this court should consider if a sanction or consent to prosecute is fundamentally defective in that they are unsigned, and an application is made for a ruling on that and if the court rules against that, would that mean it would not be a final order but had to be raised only on appeal on the reasoning that the trial should be expedited as this was the intention of Parliament in bringing about the amendment to the word decision in Section 3. Such a position would be untenable and would be against public interest in that public expense would be involved in proceeding with a hopeless trial. That could not have been the intention of the Parliament.
We say at this circumstances My Lord, the decision made by this court regarding the same matter should be reviewed, and we pray that this appeal should be proceed with the merits. Much obliged.
YA Dato’ Hasan: Yes, Dato’ Nordin?
NH: Only on one matter, My Lord. Regarding one of the case cited in the written submission, this is what we have to say, YA. We should not be part with the decision of this Honourable Court on the same issue because based on the principle cited, we submit that there is no serious error, the decision is the correct decision and also the other principle which say that this court to reverse decision must be used sparingly and not . So we submit that we should not be part with the decision based on the reasoning and based on what the law had provide.
YA Dato’ Hasan: Kami akan bagi keputusan setelah naik semula nanti. Court tangguh selama setengah jam.
[10.24 a.m.] Stand down.
YA Dato’ Hasan: Ini merupakan keputusan kami, yang merupakan keputusan sebulat suara. Ini adalah permohonan perayu terhadap hakim perbicaraan, di mana hakim perbicaraan telah menolak permohonan tersebut. Perayu antara lainnya telah memohon untuk hakim perbicaraan menarik diri daripada mendengar perbicaraan atas sebab berat sebelah. Kami perlu menentukan samaada keputusan yang dibuat pada 6 Jun 2011 oleh hakim perbicaraan boleh dirayu ataupun tidak. Dalam kata lain, sama ada keputusan tersebut termasuk di dalam seksyen 3 Akta Mahkamah Kehakiman. Permohonan yang dibuat oleh perayu untuk hakim perbicaraan menarik diri daripada mendengar kes tersebut berdasarkan alasan-alasan lain dan hakim perbicaraan telah menolak permohonan tersebut. Semasa rayuan perbicaraan di Mahkamah ini, isu yang sama dibuat iaitu samaada keputusan mahkamah tersebut boleh dirayu.
Kami telah menimbang hujah daripada kedua-dua belah pihak mengenai perkara ini dan kami berpendapat kami tiada sebarang sebab untuk kami tidak bersetuju dengan keputusan yang dibuat oleh Mahkamah Tinggi, mengenai isu yang sama. Dengan itu, kami memutuskan bahawa, keputusan yang diputuskan oleh Hakim perbicaraan pada 6 Jun 2011 bukanlah keputusan sebagai ditakrifkan di bawah Seksyen 3 CJA, bukanlah keputusan yang ‘finally disposed the right of the accused’.
Dengan alasan tersebut, kami membenarkan bantahan awal yang dibuat oleh pihak pendakwaraya, dan seterusnya menolak rayuan ini. Dan alasan penghakiman bertulis akan disediakan kemudian.
NH: Much obliged, YA.
KS: YA, we have instruction from our client to apply for stay of proceeding pending the outcome of the appeal to Federal Court. We would like to use the case of Rowstead in which it will apply to this court also. We read para 3 of this case at page 122 [read].
NH: We submit My Lord that this case of Rowstead System is not applicable in our case, because the issues of Section 2 is never argued in this case and Section 3 is with regard to the jurisdiction in which this Honorable Court  to appeal. Obviously this court has no jurisdiction, and cannot grant bail just merely because of Rowstead. That is our submission YA.
KS: The principle of this case  declare  a just sitting in own cause. In any event the Federal Court allow the appeal, and if your Lordship , 
Let me say once again that your Lordship ought to seriously consider our application. We will file the appeal as soon as possible, maybe tomorrow itself.
YA Dato’ Hasan: Kami sebulat suara menolak permohonan untuk stay oleh perayu, dan alasan penghakiman akan kami berikan kemudian.
[11.13 a.m.] Appeal dismissed.
Tags: Anwar Ibrahim, Malaysian Story, Mohd Saiful Bukhari, Sodomy II
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Mahkamah Tinggi Jenayah 3 Kuala Lumpur
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP: Semua hadir
PB: KS, SN, Datuk Param Cumaraswamy, Dato’ CV Prabhakaran, Ramkarpal, Marissa, Radzlan
WB: Zambri Idurs (for complainant), Teoh Lib Peng (for Bar Council)
Keputusan di akhir kes pendakwaan.
MY: YA, pihak-pihak masih yang sama dan En. Zambri Idrus peguam pemerhati untuk pengadu dan En. Teoh Lib Peng peguam pemerhati bagi majlis peguam dan juga penterjemah kepada pemerhati antarabangsa.
YA: I’ve already made my decision before Friday so that doesn’t affect my decision.
KS: In that case I leave it to the court.
YA: Ini keputusan mahkamah di akhir kes pendakwaan. The accused, Dato’ Seri Anwar Ibrahim is charged under S.377B of the Penal Code for committing carnal intercourse against the order of the nature on one Mohd. Saiful Bukhari bin Alan, i.e. PW1. The charge read as follows:
“Bahawa kamu, pada 26 Jun 2008 antara jam 3.01 petang dan 4.30 petang di alamat Unit 11-5-1, Desa Damansara Condominium, No. 99, Jalan Setiakasih, Bukit Damansara, dalam Wilayah Persekutuan Kuala Lumpur telah
dengan sengaja melakukan persetubuhan yang bertentangan dengan aturan tabii dengan Mohd Saiful Bukhari bin Azlan dengan memasukkan zakar kamu ke dalam duburnya; dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 377B Kanun Keseksaan.”
The case for the Prosecution
The prosecution called 26 witnesses including the complainant, PW1. The case for the prosecution started with PW1. He testified in his examination-in-chief among other things he started working as a volunteer with the accused from early March 2008 at the invitation of his friend, Rahimi.
From end of April 2008 until his resignation on 27th June 2008 PW1 was the personal assistant to the accused. As a personal assistant to the accused PW1 was paid official salary of RM1000 by someone he called Kak Jun. Other unofficial payments like allowance was paid by the accused, the amount depending on the number of trips.
PW1’s duty includes arranging meetings for the accused and communicating with agents and Members of Parliament from the party. He also assisted the Chief of Staff in preparing the work schedule and he was also involved in filing confidential documents like bank account. He was also responsible to oversee the accused hand phone and the accused will hand over his hand phone to PW1 to check on the SMS received.
At around 10.30 a.m. on 26.6.2008 PW1 was reminded by the accused of his earlier instruction given the previous day for PW1 to be at unit 11-5-2, Desa Damansara Condominium, No. 99, Jalan Setiakasih, Bukit Damansara. Unit
11-5-2 and unit 11-5-1 i.e. the unit mentioned in the charged belong to the accused friend, En. Hasanuddin.
PW1 was directed to be at the condominium at 2.15 p.m. on the same day. He left the office at about 1.45 p.m. He took along with him some documents received by him from the Chief of Staff, en. Ibrahim Yaakob i.e. PW24 to be delivered to the accused. PW1 drove to Desa Damansara Condominium in a Fiat van bearing registration WPK 5925. He arrived at the condominium at around 2.45 p.m.
To enter the compound of the condominium he had to pass the Security Guard stationed at the entrance of the condominium. There, PW1 had to mention the word ‘Mokhtar’ before being allowed to enter. From there PW1 drove to the visitor’s parking lot at P4. From visitor’s parking lot walked to the lift at level P4 which took him to level P2. From there he walked to a door. This door leads him to the lift that took him to the unit 11-5-1. This door has automatic locking system. PW1 had to press number 11-5-2 and a male voice answered ‘Ya’. When PW1 mentioned the word ‘Mokhtar’ the door was unlocked from inside. From there PW1 took the lift to the 5th floor and went straight to unit 11-5-1. According to PW1 although he was told to go to the unit belonging to En. Hasanuddin i.e. unit 11-5-2 he went straight to unit 11-5-1 because every time he went there he was asked by the accused to go to unit 11-5-1.
Upon arriving at unit 11-5-1, PW1 opened the door which was not locked, entered the place and put his shoes on the floor behind the door. In unit 11-5-1 PW1 noticed the accused was already seated at the dining table. PW1 sat at the table facing the accused and placed the document which he brought along with from the office on the table. After having sat down at the table the accused and PW1 discuss work schedule.
Not long after that the accused ask PW1 and I quote “Can I fuck you today?” PW1 said he refused initially and the accused asked him “Why?” PW1 responded by saying he did not wish to do that that day. He was then instructed in an angry tone by the accused to go to the master bedroom. PW1 complied and went into the master bedroom followed by the accused. In the room the accused went to the end of the room to close the curtain and proceeded to the door to switch off the light in the room. Having done so the accused then directed PW1 to clean himself in the bathroom. PW1 did not bath but merely wipe himself in the bathroom and came out covered only with towel. He saw the accused at the corner right of the bed and the accused was standing wearing a white towel and he asked PW1 to come to him. At that moment the accused hug PW1 while standing. Further evidence of PW1 was given in camera where PW1 described in detail how his anus was penetrated by the accused with the aid of lubricant known as KY Jelly. The carnal intercourse against the order of nature completed and PW1 went into the shower. He did not clean his anus but merely wipe his body with little water.
After PW1 and the accused was fully dressed the accused invited PW1 to the dining table. Ready on the table was curry puff, a thermos of hot water and 3in1 Nescafe. PW1 ate curry puff and had a drink. After 20 minutes PW1 left the unit 11-5-1. When PW1 left the unit the accused was still in the unit.
On 27th June 2008 in the accused’s office at the Tropicana Merchant Square PW1 sent an email to the accused conveying PW1 desire to resign. The reason he gave in the email for resigning were he was indisciplined and thus always came late. He felt the pressure because he was given room in the office over those who are more qualified. According to PW1 the real reason for him resigning was because he did not wish to be sodomised again.
On 28th June 2008 PW1 accompanied by his uncle En. Tuah bin Alip went to Tawakal Hospital at Jalan Pahang but failed to see any doctor because he was told at the counter that it was half day. PW1 and En. Tuah then went to Pusrawi Hospital at Jalan Tun Razak where he mat Dr. Mohd Osman bin Abdul Hamid. PW1 informed Dr. Osman that he had stomach ache and pain in the anus. PW1 was examined by Dr. Osman.
While Dr. Osman was inserting something into PW1’s anus PW1 told Dr. Osman that he was sodomised and needed an examination. Upon hearing this Dr. Osman immediately stopped examining PW1 Dr. Osman instead told PW1 Pusrawi Hospital did not have the facility for forensic analysis. PW1 was further informed by Dr. Osman that medical report form private hospital could not be used as evidence in court. PW1 was then directed by Dr. Osman to go to a government hospital. Dr. Osman suggested PW1 to go to Hospital Kuala Lumpur as it was the nearest hospital.
PW1 went to Kuala Lumpur Hospital and registered himself as an outpatient. That was at around 3.00 p.m. He was then referred to one Dr. Daniel. PW1 informed Dr. Daniel he wanted to be examined because he was sodomised by Dato’ Seri Anwar Ibrahim. Upon hearing this Dr. Daniel issued a referral letter and directed PW1 to One Stop Crisis Center (OSCC) at the Emergency Department. He arrived at the OSCC at around 3.30 p.m.
After about 30 minutes at the OSCC a doctor came and tool blood pressure from PW1. PW1 informed the said doctor his reason for seeking treatment especially about him being sodomised. At about 4.30 p.m. the said doctor came again and advised PW1 to lodge a police report, without which forensic examination could not be performed on PW1. After waiting for half to an hour two policemen came with form for PW1 to lodge his report. PW1 made his report as in exhibit P3 while in the OSCC.
At about 9.00 p.m. PW1 was examined by 3 doctors. They were Emergency Care Specialist, Dr. Khairul Nizam B. Hassan i.e. PW2, General Surgeon, Dr. Mohd Razali B. Ibrahim i.e. PW3, and Forensic Pathalogist, Dr. Siew Sheue Feng. Also present was Dr. Razuin Bt. Rahimi, PW23 who fill the pro forma, exhibit D28.
Thorough examination of whole PW1’s body including the anus was done. Specimens were taken from PW1. Each specimen were put in container and sealed. PW1 were asked to put his signature on each of the seal. While PW1 was being examined the investigating officer, DSP Judy Blacious a/l Pierera i.e PW25 came.
The next day PW1 handed to PW25 KY Jelly (exhibit P4), a pair of long sleeve Ralph Lauren (exhibit P11), a pair of black trouser (exhibit P12), a pair of green shirt (exhibit P13), a pair of grey underwear (exhibit P14) and a pair of dark blue underwear (exhibit P15). PW1 further informed that since the day he was sodomised until the day he was examined by PW2, PW3 and PW4, PW1 did not pass motion.
PW1 was cross-examined at length. During cross-examination Pw1 denied meeting Dato’ Seri Najib who was then the Deputy Prime Minister ether on 27th or 28th June 2008. However PW1 admitted he had gone to the house of
Tuan Haji Khairul Anas who was then the Special Officer to Dato’ Seri Najib on 24th June 2008. From there he was brought by Khairul Anas to Dato’ Seri Najib’s residence where he met YAB Dato’ Seri Najib at about 8.00 p.m. The meeting with Dato’ Seri Najib took place for about 20 minutes where PW1 told his problem to Dato’ Seri Najib. Dato’ Seri Najib did not advise PW1 to lodge a police report. PW1 denied he was brought to see Dato’ Seri Najib by Dato’ Mumtaz.
PW1 then said on the way back from YAB Dato’ Seri Najib’s residence PW1 received a call from ASP Rodwan requesting PW1 to meet at Milia Hotel. PW1 met ASP Rodwan at Milia Hotel where he told ASP Rodwan the problem he faced. ASP Rodwan did not offer any advice. He also did not advise PW1 to lodge a police report but he did ask PW1 to meet him at Concorde Hotel on the next day, i.e. 25th June 2008. PW1 went to Concorde Hotel on 25th
June 2008 but ASP Rodwan did not turn up. After that there was no further communication between ASP Rodwan and PW1.
PW1 also denied Inspector General of Police, Tan Sri Musa Hassan had contacted him. However PW1 admited he did telephoned Tan Sri Musa Hassan to inform Tan Sri Musa about the problem faced by PW1 but Tan Sri Musa
Hassan angrily put down the telephone and warned PW1 not to telephone him again.
PW1 admitted meeting En. Mohd Ezam Mohd Nor at Rawang. He was taken to see En. Mohd Ezam at 12.00 midnight 27.6.2008 until 1.00 a.m. 28.6.2008 by En. Rahimi and En. Tuah who was PW1’s uncle. During the meeting
PW1 informed Ezam that he was sodomised by the accused. En. Tuah was the first person PW1 told about thye incident occurred on 26.6.2008, the next person was Mohd Ezam and other than that was also informed was Dato’ Mumtaz.
PW1 was then cross-examined where in the middle of August 2008 PW1 had ‘mengangkat sumpah laknat’ at a mosque. PW1 agreed that the date that PW1 ‘angkat sumpah laknat’ was near the date the accused was to be named as a candidate in a by-election for Permatang Pauh province but stressed that it was only a coincidence that the two dates were near to each other.
The prosecution then call Dr. Khairul Nizam B. Hassan as PW2, Forensic Pathalogist Dr. Siew Sheue Feng as PW3 an Dr. Mohd Razali B. Ibrahim as PW4. All three of them had attended PW1 together at OSCC at around 9.00 p.m. 28.6.2008.
PW2 testified that on 28.6.2008 at 7.00 p.m. he was the Surgeon on-call. He received a phone call from a medical officer. He was informed that he is required to be present at a special room at OSCC, Emergency Unit of Kuala Lumpur Hospital at 9.00 p.m. because there was a sodomy case and he was informed the patient was already brought to the said room. PW2 testified he arrived at the said room at 9.00 p.m. upon arrival he saw Dr. Siew and Dr.
Khairul was already there. They were then briefed about the case by a police officer. After the briefing PW2, PW3 and PW4 proceeded to attend PW1.
PW2 examined the bottom part of PW1’s body which involves the anal and the rectum. He started with the external part of the anus followed by internal part. PW2 used protoscope to examine the internal part. PW2 found the area around the anal opening to be a bit moist compared to other areas. He did not find any evidence showing injury, trauma or fissure. PW2 then conducted protoscopic examination to see whether there was any accumulation of fluid inside or was there any injury or fissure that suggest trauma to the inner part to which he found none.
Initially PW2 tried to insert the protoscope without lubricant to see whether it could enter easily but because of the normal process of the closing of the anal canal PW2 found difficulty in inserting the protoscope into the anus. With the aid of lubricant PW2 managed to put the protoscope into PW1 and found there was no accumulation of fluid, injury or fissure suggesting trauma to the inner part.
PW2 took sample for DNA analysis. He took peri anal swab, high rectal swab and low rectal swab for seminal analysis. All these samples were handed to Dr. Siew Sheue Feng, PW3 to be put into the respective container, labeled and sealed.
Dr. Siew give evidence that he attended PW1 together with PW2 and PW4 at about 9.00 p.m. 28.6.2008 at OSCC, Emergency Unit of Kuala Lumpur Hospital. His main duties were to handle the forensic specimens collected in this case.
PW3 testified that he was informed by PW1 that PW1 had been sodomised by a high profile public figure. The last incident happened on 26.6.2008. PW3 specifically asked whether condom or lubricant was used to which PW1 said no condom was used, only lubricant was used. PW1 also informed PW3 that PW1 had gone to Pusrawi Hospital before coming to Kuala Lumpur Hospital. PW1 did not said plastic was inserted into his anus. PW3 asked PW1 whether there was ejaculation to which PW1 replied there was ejaculation. PW1 asked whether force was used to which he said no force was used.
PW3 further testified that he was present with Dr. Razali and Dr. Khairul (PW4) when PW1 was being examined. PW3 confirmed that Dr. Razali took swab from peri anal region, low rectal swab and high rectal swabs from PW1 while Dr. Khairul (PW4) took swabs from oral cavity at the left peritonsilar recess, below the tongue, from the left nipple and areola. Also taken by Dr. Khairul was penile swab from meatus and coronal sulcus of PW1’s penis. All specimens were put into containers, labeled and sealed by PW3, handed to PW25 to be sent to the Chemistry Department for analysis.
Dr. Khairul testified as PW4. He confirmed that he had examined PW1 together with PW2 and PW3. He took swabs from oral cavity at the left peritonsilar recess, below the tongue, from the left nipple and areola. Also taken by PW4 was the swab from meatus and coronal sulcus from PW1’s penis. All specimens were put into containers, labeled and sealed by PW3.
On 11 July 2008, Clinical Forensic Department of Kuala Lumpur Hospital received a chemist report (exhibit P25) regarding the result of the analysis conducted on the specimens collected. PW2, PW3 and PW4 then prepared
Laporan Forensik Klinikal i.e. exhibit P22 dated 22nd July 2008 signed by all three of them where they give conclusion or summary as follows:
1. No conclusive clinical findings suggestive of penetration to the anus/rectum and no significant defensive wound on the body of the patient; and
2. The presence of male DNA types from swabs “B5”, “B7”, “B8” and “B9” are best interpreted with the identification of the sites of sampling.
PW2, PW3 and PW4 were examined on their conclusion as stated in the exhibit P22. PW2 explained that the first conclusion was merely based on clinical examination conducted on PW1. When it was mentioned ‘no conclusive clinical findings suggestive of penetration’ does not mean there was no penetration. This is because sodomy can happened without causing any injury. To enable him to conclusively conclude whether there is penetration or otherwise he need to have both results, .i.e. clinical result and laboratory result on analysis on the specimens. At the time P22 was prepared they did not know the exact spot where specimens marked B5, B7, B8 and B9 were taken. That was the reason why they decided to put in exhibit P22 the second conclusion which reads: the presence of male DNA types from swabs B5, B7, B8 and B9 are best interpreted with the identification of the sites of sampling.
PW2 further testified after knowing specimen B5 contain swab from peri anal region of PW1, B7 and B8 contain high rectal swab from PW1, B9 low rectal swab from PW1, he was of the opinion there was penile penetration.
PW3 were also asked with the conclusion in exhibit P22. PW3 explained at the time P22 was prepared PW2, PW4 and himself did not know the exact location where the specimen B5, B7, B8 and B9 were taken. Without knowing where those specimens were taken they were unable to interpret the result obtained by the chemist. Thus in P22 they stated ‘the presence of male DNA types from swabs B5, B7, B8 and B9 are best interpreted with the identification of the sites of sampling’. Now that he know that B5, B7, B8 and B9 were respectively taken from peri anal region of PW1, high and low rectal swab of PW1, PW3 concluded there was anal penetration and it was consistent with penile penetration.
Likewise PW4 was asked about the conclusion in exhibit P22. He also gave the same explanation as that of PW3.
PW2, PW3 and PW4 were cross-examined. PW2 testified that PW1’s bowel was empty at the time he conducted the examination but agreed to the suggestion of the counsel that this was not consistent with PW1’s evidence who testified he had not passed motion since the day of the incident. PW2 explained this was because the lower part of the rectum was not a reservoir of feces. Feces were stored in the colon until the sigmoid area. All the digested food would be kept there. When mass-movement which was a psychological process that happened in which the body tried to expel whatever digested thing after it had been processed and absorbed happened there would be a sensation that you want to defecate but this did not mean the feces will move to the rectum. And if the place one was in socially in common pain one could basically prevent the feces to moving from the sigmoid to the rectum.
PW2 further explained that the specimen of high rectal swab was tekan in the rectum, 9 cm from the anus. Counsel suggested that it was impossible to find specimen high up the rectum because any specimen would have laid down due to mass-movement, peristalsis, gas and gravity. PW2 did not agree with this suggestion because human bowel is not a straight line like a pipe, it was a folded area, folded mucosa so material sits there, not necessarily all will come out immediately. Some would still be left at the area he took the high rectal swab.
PW3 was cross-examined extensively on medical history taken from PW1. PW3 said he took medical history of PW1 where PW1 said he was sodomised by a public figure. The incident took place early March 2008. At that time PW1 was the personal assistant to the said public figure. PW3 further explained that what question to ask regarding medical history depended on what the complaint was. If patient complain of tenesmus like in ID16 the question to be asked under medical history would be along the line whether there is bleeding, any pain when passing motion and any blood in the stool. But in this case PW1 complained that he was being sodomised therefore the question asked for the purpose of the medical history would be more towards the complaint in which whether PW1 had pass motion and had seen other doctors before coming to Kuala Lumpur Hospital.
PW3 denied he knew where sample B-B9 were collected when he together with PW2 and PW4 prepared the exhibit P22. PW3 further testified the marking B-B9 were not made by him. He only came to know B5, B7, B8 and B9 were respectively taken from peri anal region of PW1, high and low rectal swab o PW1 while giving evidence in court.
PW4 was also cross-examined. He testified that PW1 was calm while being interviewed. PW4 did not take sample from the back of PW1 although he was aware that in cases where there is contact in sodomy, contact DNA may be obtained from the contact area. PW4 did not do so after taking into account the incident happened 2 days before PW1 was examined.
PW4 was also asked whether he was briefed by DSP Judy regarding the complaint made by PW1. PW4 said he was told PW1 was sodomised by a well known figures. PW4 came to know of oral sex while interviewing PW1 when PW1 told PW4 he was asked to perform oral sex. PW4 was then referred to “Borang Pemeriksaan Kesihatan”, exhibit D28 which was filled up by Dr. Razuin, PW23. PW4 agreed that may of the columns in the form was not filled up and in D28 it was stated attempted sodomy and attempted oral sex.
Dr. Razuin bt. Rahimi was called as PW23. She was the one who prepared D28. She was the medical officer at the Medical Forensic, Kuala Lumpur Hospital at that time. At 7.30 p.m. on 28 June 2008 she was directed by Dr. Siew to be present at OSCC. PW23 arrived at the OSCC at 8.30 p.m. There she met DSP Judy Blacious. DSP Judy Blacious told PW23 that there was a sodomy case involving Mohd Saiful Bukhari as the complainant and Dato’ Seri Anwar Ibrahim. DSP Judy then introduced PW1 to PW23. PW23 interviewed PW1. PW1 told PW23 he has been sodomised and the last incident happened on 26 June 2008 at about 3.15 p.m. PW23 asked PW1 whether there was penetration, ejaculation occurred and lubricant used. PW1 replied there was penetration, ejaculation occurred and lubricant was used.
Subsequently PW2, PW3 and PW4 came to examined PW1. PW23 remain with PW2, PW3 and PW4 while examining PW1. PW23’s function was to interview PW1 and taking notes while PW1 was being examined by PW2, PW3 and PW4. D28 was prepared by PW23.
The prosecution then called Dr. Seah Lay Hong, PW5. She was attached at the Chemistry Department Petaling Jaya as a government chemist. She testified that at 7.55 p.m. on 30.6.2008 she received from DSP Jude Blacious 12 envelopes respectively marked B, B1, B2, B3, B4, B5, B7, B8, B9, B10 and B11, that is exhibit P31-P42. All were sealed with PDRM 330 seal. PW5 issued acknowledgment receipt, P30. PW5 then handed envelope marked B11 to
Mr. Mohan a/l K.P. Gangadharan for toxicology analysis. Envelope marked B, B1, B2, B3, B4, B5, B7, B8, B9, B10 and B11 were registered with laboratory number (PJ) FOR 6334/08-0.
At 4.45 p.m. on 01.07.2008 PW5 received from PW25 another 8 exhibit as follows :
1. Six envelopes respectively marked “A”, “A3”, “A4”, “A5”, “A6”, and “A6” and sealed “Polis Di-Raja Malaysia 330” i.e. exhibit P43, P44, P45, P46, P47 and P48;
2. One package marked “A1” sealed “Polis Di-Raja Malaysia 330” and “Forensic Polis Di-Raja Malaysia” i.e. exhibit P49; and
3. One package marked “A2” and sealed “Polis Di-Raja Malaysia 330” and “Forensic Polis Di-Raja Malaysia” i.e exhibit P50.
PW5 issued exhibit P51 i.e. the acknowledgment receipt for all 8 exhibit above. These exhibits were registered with laboratory number (PJ) FOR 6334/08-2.
Upon examining envelope B, B1. B2, B3, B4, B5, B6, B7, B8, B9, and B10, PW5 found inside:
a) B – a plastic packet i.e. exhibit P31A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6A;
b) B1 – a plastic packet i.e. exhibit P32A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6B;
c) B2 – a plastic packet i.e. exhibit P33A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6C;
d) B3 – a plastic packet i.e. exhibit P34A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6D;
e) B4 – a plastic packet i.e. exhibit P35A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6E;
f) B5 – a plastic packet i.e. exhibit P36A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6F;
g) B6 – a plastic packet i.e. exhibit P37A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6G;
h) B7 – a plastic packet i.e. exhibit P38A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6H;
i) B8 – a plastic packet i.e. exhibit P39A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6I;
j) B9 – a plastic packet i.e. exhibit P40A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6J; and
k) B10 – a plastic packet i.e. exhibit P41A inside which was a FTA card labeled Mohd Saiful Bukhari bin Azlan bearing blood stain specimen i.e. exhibit P6K.
The plastic receptacle P6A-P6J and P6K were respectively sealed with “KEMENTERIAN KESIHATAN MALAYSIA, JABATAN PERUBATAN FORENSIK HOSPITAL KUALA LUMPUR” security labels and similarly labeled “Mohd Saiful Bukhari bin Azlan”. PW5 found the presence of semen on swab B5, B7, B8 and B9. No semen was detected from swab B, B1, B2, B3, B4, and B6.
Examination on package marked A, and A1-A7, PW5 found inside:
a) A – an envelope (sealed “FORENSIK POLIS DI-RAJA MALAYSIA”) i.e. exhibit P43A containing a strand of pubic hair taped on a paper i.e. exhibit P43B;
b) A1 – a carpet i.e. exhibit P49A bearing no seminal stains;
c) A2 – a duvet i.e. exhibit P50A bearing no seminal stains
d) A3 – a pair of black trousers i.e. exhibit P12 bearing seminal stains at two spots which PW5 marked as A3(a) and A3(b) i.e. exhibit P12A and P12B;
e) A4 – a long-sleeved blue and white striped shirt (‘Ralph Lauren’ label) bearing no detectable seminal stains i.e. exhibit P11;
f) A5 – a dark blue underwear (‘Levi’s’ label) bearing no detectable seminal stains i.e. exhibit P15;
g) A6 – a grey underwear (‘Levi’s’ label) i.e. exhibit P14 bearing seminal stains at two spots which PW5 marked as A6(a) and A6(b) i.e. exhibit P14A and P14B; and
h) A7 – a long-sleeved green shirt (‘G2000’ label) bearing no detectable seminal stains i.e. P13.
PW5 carried out DNA testing using Multiplex Polymerase Chain Reaction technique on:
a) swabs P6A – P6J;
b) blood specimen P6K;
c) hair P43B; and
d) seminal stains on P12 and P14.
The DNA typing results indicated the following:
a) The DNA profiles derived from the seminal stains (spots A3(a) and A3(b) of trousers A3 distinguishes one common male contributor having a DNA profile matching the profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari bin Azlan”).
b) The DNA profiles derived from the seminal stains of underwear A6 distinguished:
i) one male contributor from semen spot A6(a) with a DNA profile matching the profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”);
ii) two male contributors from semen spot A6(b), one contributor with a DNA profile matching the profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”) and one other unknown male contributor whom PW5 named as “Male Y”.
c) No foreign source DNA was derived from swab B, B1, B2, B3, B4 and B6 (all labeled “Mohd Saiful Bukhari Bin Azlan). Swabs B, B1, B3, B4 and B6 indicated a common male-origin DNA profile concordant with the profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”). Swab B2 indicated no DNA profile.
d) The DNA profile derived from swab B5 (labeled “Mohd Saiful Bukhari Bin Azlan”) consisted of a mixture of male DNA types concordant with being contributed by the donor of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”), “Male Y” and one other male contributor.
e) The DNA profiles derived from swab B7 (labeled “Mohd Saiful Bukhari Bin Azlan”) consisted of ale DNA types from two individuals, one having DNA profile matching that of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”) and one matching the DNA profile of “Male Y”.
f) The DNA profiles derived from swab B8 (labeled “Mohd Saiful Bukhari Bin Azlan”) indicated one dominant male contributor concordant with the DNA profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”) and “Male Y” as a minor contributor.
g) The DNA profiles derived from swab B9 (labeled “Mohd Saiful Bukhari Bin Azlan”) consisted of ale DNA types from two individuals concordant with being contributed by the donor of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”) and “Male Y”.
h) Hair A indicated no DNA profile.
Prosecution’s 6th witness was Pn. Nor Aidora Binti Saedon. She was also a chemist attached at Jabatan Kimia Malaysia Petaling Jaya. PW6 testified that on 17th July 2008 at 6.56 p.m. she received from investigating officer DSP Jude Blacious a/l Pereira :
a) an envelope marked “D” i.e. exhibit P57 containing a stand of hair taped onto a piece of white paper i.e. exhibit P57A;
b) an envelope marked “D1” i.e. exhibit P58 containing a white toothbrush i.e. P58A;
c) an envelope marked “D2” i.e. exhibit P59 containing a ‘Good Morning’ towel i.e.P59A bearing one strand of hair which PW6 collected and marked as D2(a) i.e. exhibit P60; and
d) an envelope marked “D3” i.e. exhibit P61 containing an empty ‘CACTUS’ mineral water plastic bottle i.e. P61A,
Using the PCR technique, PW6 carried out DNA profiling analysis on swab from the toothbrush (exhibit P58A), swab from the towel (exhibit P59A), swab from the bottle (exhibit P61A), the hair (exhibit P57A) and also the hair D2(a) found on the towel (exhibit P60A).
DNA profiles were successfully developed from the swabs from toothbrush, towel and the bottle but not from the hairs. These DNA profiles matched each other indicating that the DNA identified originated from the same source. PW6 then compared the DNA profiles she obtained with that obtained and reported by Dr. Seah Lay Hong in her chemist report, exhibit P25. PW6 found DNA profile developed from the swabs of toothbrush, towel and bottle to match with the DNA profiles of “Male Y” reported by Dr. Seah Lay Hong in her report, exhibit P25 thus indicating that the DNA identified originated from the same source.
En. Amidon Bin Anan, PW15 was the Head of the Crime Scene Investigation at Polis Di-Raja Malaysia Forensic laboratory. He testified to the effect that on 30th June 2008 he was asked by investigating officer DSP Jude Blacious to go to unit 11-5-1 and unit 11-5-2 of the condominium. From unit 11-5-1 PW15 collected a strand of hair (exhibit P43C) and placed it in envelope (exhibit P43). At unit 11-5-2 PW15 seized a carpet (exhibit P49A) and duvet (exhibit P50A). Carpet (exhibit P49A) was wrapped with brown paper (exhibit P49). Duvet (exhibit P50A) was wrapped with exhibit P50. All the exhibit were then handed to the investigating officer DSP Jude Blacious.
At 11.40 a.m. 17th July 2008 PW15 went to lock-up cell of D9, IPK Kuala Lumpur. He found on the floor a strand of hair (exhibit P57A) which he put tag number “4”, a white toothbrush (exhibit P58A) which he put tag number “5”, and a white ‘Good Morning’ towel (exhibit P59A) which he put tag number “6”. On the wall near the toilet of the lock-up cell was a mineral water bottle (exhibit P61A) which he put tag number “7”.
PW15 then without touching or removing the items found in the lock-up cell instructed L/Kpl Hazri, PW14 to take photographs of those items. PW14 took 12 photograph i.e. P78A-L of those items.
PW15 then instructed Insp. Nurayuni, PW16 to prepare 4 envelopes i.e. P57, P58, P59 and P60 and to write the particulars of the items in front of the said envelopes. The envelopes were marked “4”, “5”, “6” and “7” respectively.
PW15 then received all envelopes from PW16 and PW15 personally placed the hair in envelope marked “4”, toothbrush in envelope marked “5”, ‘Good Morning’ towel in envelope marked “6” and the mineral water bottle in envelope marked “7”. PW15 then signed at the back of the four envelopes and sealed all the said envelopes. PW15 confirmed that the four envelopes which contained the items found in the lock-up cell were as shown in photograph no. 13 and 14 of exhibit P78.
On the same day, 17th July 2008 at 12.40 p.m. PW15 handed all exhibit to DSP Judy Blacious at IPK Kuala Lumpur. PW15 and PW25 then signed a handing over form i.e. exhibit P80.
PW17, DSP Yahya Bin Abdul Rahman was the officer in-charge of the lock-up D9, IPK Kuala Lumpur. He testified that there was only one cell at D9, IPK Kuala Lumpur. On 16th July 2008 at 11.05 p.m. the accused was brought in the cell. He was taken out on 17th July 2008 at 8.00 a.m. PW17 testified that the accused brought along a mineral water bottle and two towels when he was brought into the cell. The accused was the only occupier of the cell during that period.
Being the officer in-charge PW17 visited the lock-up from time to time. The  of the visit he gave to L/Kpl Nik Rosmady Bin Nik Ismail, PW18 who was on duty guarding the lock-up a package of ‘Good Morning’ towel, a toothbrush, toothpaste and a bar of soap to be handed to the accused.
On 17th July 208 after the accused was brought out of the cell PW17 saw ‘Good Morning’ towel and toothbrush on the cell’s floor while the mineral water bottle was on the toilet wall as shown in photograph P78. PW17 then instructed the policemen on duty to lock up the cell and not to allow anybody to touch any of the things in the cell.
L/Kpl Nik Rosmady, PW18 testified to the effect that he was on duty to guard the lock-up at D9 on 16th July 2008. He reported for duty on 16th July 2008 at 1.00 a.m. when he reported for duty there was no detainee in the lock-up.
At 11.05 p.m. 16th July 2008 the accused was brought into the cell. PW18 then received from PW17 a plastic packet containing a towel, a toothbrush, toothpaste and a bar of soap. He handed this package to the accused. The accused took the package and put on the cell floor. PW18 finished his duty at 1.30 a.m. on 17th July 2008. His duty was taken over by Konstabel Mohd Azry Bin Mohd Toyib, PW19. Before ending his duty PW18 check the lock-up and saw the accused was still inside the cell.
PW19 was on duty until 7.25 a.m. 17th July 2008. His duty was taken over by L/Kpl Mohd Jasni Bin Jaafar, PW20.
PW20 testified that he reported for duty at 7.26 a.m. 17th July 2008. He saw the accused was in the cell. He saw the accused went to the toilet and brushed his teeth. At 8.10 a.m. the accused was brought out from the cell. PW20 then lock the cell.
Other than the witnesses mentioned above the prosecution also called PW8, PW9, PW10, PW11, PW12 and PW13. Their evidence was in relation to installation, seizure and handling of CCTV recording at the guardhouse and also at the management office of the condominium. From the recording it was shown vehicle including that driven by PW1 were seen entering and leaving the condominium. From the recording of the CCTV around the lift area it was shown individual including PW1 used the said lift.
Ahmad Humaizi Bin Awang, PW22 an officer from Road Transport Department gave evidence relating to the registered owner of vehicle recorded in the CCTV entering and leaving the condominium. One of the car bearing registration number WMK6 was registered in the name of Anwar Bin Ibrahim, no. kad pengenalan 470810-07-5095.
Jude Blacious a/l Pereira, PW25 was the investigating officer of this case. He testified inter alia he was on duty 28th June 2008 who was present at OSCC when the three doctors examined PW1. At 12.45 a.m. on 29.6.2008 he received from PW3 plastic package i.e. exhibit P27 containing exhibit P6A-P6L while in the same room. He brought back exhibit P27 containing exhibit P6A-P6L to his office and kept it in the cabinet in his office at IPK Kuala Lumpur. He then locked the cabinet.
At 7.30 p.m. on 29.6.2008 at his office he received from PW1 KY Cream (exhibit P4) as stated in search list (exhibit P10). He also received a long-sleeved shirt (exhibit P11), a pair of black trousers (exhibit P12), a long-sleeved shirt (exhibit P13), a grey underwear (exhibit P14) and a dark blue underwear (exhibit P15) from PW1. This seizure was recorded in the search list (exhibit P7, P8 and P9). These entire exhibit were kept in his cabinet at his office.
On 30.6.2008 at about 9.00 a.m. PW25 took out exhibit P27 containing exhibit P6A-P6L from his cabinet. He opened exhibit P27 and put all the containers (exhibit P6A-P6L) in envelope as follows:
a) P6A – in envelope which he marked “B”
b) P6B – in envelope which he marked “B1”
c) P6C – in envelope which he marked “B2”
d) P6D – in envelope which he marked “B3”
e) P6E – in envelope which he marked “B4”
f) P6F – in envelope which he marked “B5”
g) P6G – in envelope which he marked “B6”
h) P6H – in envelope which he marked “B7”
i) P6I – in envelope which he marked “B8”
j) P6J – in envelope which he marked “B9”
k) P6K – in envelope which he marked “B10”
l) P6L – in envelope which he marked “B11”.
On the same day at 7.55 p.m. PW25 handed over all the envelopes with the content to Dr. Seah at the Chemistry Department for analysis. Together with the envelope was form POL 31, exhibit P24. PW25 was given receipt, exhibit P30 by Dr. Seah acknowledging receiving those exhibit.
PW25 further testified that on 30 June 2008 at around 3.05 p.m. he was at unit 11-5-1 and unit 11-5-2 with En. Amidon Bin Anan, the Head of Crime Scene Investigation at the Polis Di-Raja Malaysia Forensic laboratory. PW25 received from PW15 envelopes (exhibit P4) containing a strand of hair (exhibit P43B) at unit 11-5-1, a paper package (exhibit P49) containing carpet (exhibit P49A) and package (exhibit P50) containing duvet (exhibit P50A) which were collected from En. Amidon at unit 11-5-2.
On 1.07.2008 PW25 marked the envelopes containing a strand of hair as “A”, package containing carpet as “A1”, package containing duvet as “A2”, envelope containing black trousers as “A3”, envelope containing a long-sleeved shirt as “A4”, envelope containing dark blue underwear as “A5”, envelope containing grey underwear as “A6” and envelope containing green long-sleeved shirt as “A7”.
On the same day at 4.45 pm, PW25 handed this exhibits to Dr. Seah. Accompanying the exhibits was POL 31, exhibit P29. He was given receipt, exhibit P51 as the acknowledgment. All those exhibits that were handed over to
PW5 were return, this time were chemist seal to P25 on 7th July 2008 at 11.30 am together with chemist report, exhibit P25.
PW25 received 2 hard disk, exhibits P76 and P77 on 30.6.2008 from residence manager; Encik Haris bin Mohamad, PW12. He marked Hard disk 1 and Hard disk 2. These two hard disks were then handed over to Chief Inspector Fauziah, PW8 at Forensic Laboratory at IPD Cheras on 3.7.2008 at 10.15 am. These 2 hard disks were subsequently returned to PW25 on 24.9.2008.
PW25 also testified at 12.40 noon, 17 July 2008, at the lock up of D9 IPK Kuala Lumpur, he received from PW15 exhibit P57A: a hair strand, a white toothbrush: exhibit P58A, a white Good Morning towel: exhibit P59A, and a mineral water bottle: exhibit P61A. All these exhibits were in the envelopes exhibit P57, P58, P59 and P61 respectively which were sealed with PDRM Forensic seal. PW25 put his marking on those exhibits as “D”, “D1”, “D2” and
“D3” respectively. On the same day, at 6.56 pm, PW25 handed these exhibits to Puan Nor Aidora Saedon for analysis. On 22.7.2008 received that from PW6 these exhibits which were sealed with chemist seal together with chemist report (P52).
Now, it is time for the decision at the end of the case for the prosecution. At the close of the prosecution’s case, what was needed to be proved is a prima facie case. Under Sec 180(4) of Criminal Procedure Code, a prima facie case is said to be made out when the prosecution had adduce credible evidence proving each ingredient for the offence which if unrebutted or unexplained would warrant a conviction. As being held in the case of Looi Kow Chai & Ors v PP  1 CLJ 734, in determining whether the prosecution had successfully establish a prima facie case or not, the court must subject the prosecution’s evidences to maximum evaluation. It was held in that case, and I quote:
“The correct test to be applied in determining whether a prima facie had made out under Section 180 of Criminal Procedure Code was that as encapsulate in the judgment of Hashim Yeop Sani J (as he then was) in Datuk Mokhtar
Hashim & Anor v PP. Therefore a judge sitting alone under Section 180 of Criminal Procedure Code must subject the prosecution’s evidences to maximum evaluation and ask himself a question: if I decided to call upon the accused to enter defence, and he elects to remain silent, am I prepared to convict him on the totality of evidence contained in the prosecution’s case? If the answer is in the negative, then no prima facie case had been made out, and the accused would be entitled to an acquittal.”
Subjecting the evidence of the prosecution to the maximum evaluation to determine if the defence was to be called did not mean that the prosecution had to prove the case beyond reasonable doubt at this intermediate stage.
In our case, the accused is charge committing on PW1 carnal intercourse against the order of nature. To prove a prima facie case, the prosecution needs to prove that on 26th June 2008, between 3.01 pm and 4.30 pm at Unit 11-5-1 Desa Damansara Condominium, the accused voluntarily introduced his penis into PW1’s anus. The prosecution relied on PW1’s evidence to prove its case where PW1 clearly testified that he was at the place mentioned in the charge. While PW1 was there, the accused introduced his penis into PW1’s anus until the accused ejaculated. This evidence from PW1 if accepted clearly established a prima facie case for an offence of carnal intercourse against the order of the nature as stated in the charge. So the question here is whether PW1 was a credible and truthful witness and whether his evidence as to what transpired between him and the accused at the Unit 11-5-1 was true and could safely be relied upon.
If the court finds that PW1 not to be a credible witness, then the accused has to be acquitted without have to look at the corroborative evidence to support PW1’s evidence. In the case of Director of Public Prosecutor v Killbourne
 1 ALL ER, Lord Hillsome said at page 425:
“Corroboration is only required and afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness’s testimony should be rejected and the accused acquitted. Even if it could be found that evidence of capable of being corroboration in other’s testimony, corroboration can only be afforded to or by a witness which is otherwise to be belief. If a witness’s testimony falls or insufficient, the question his needing or capable of corroboration does not arise.”
Realizing the fact that the charge against the accused is whether the evidence of PW1 could be accepted or not, it was not surprised defence had either in cross examination of PW1 or in the submission tried to play a picture of PW1 as someone who had zero credibility, and thus his evidence could not be belief and must be rejected. PW1 was subjected to lengthy cross examination which sometimes bothering to a harassment. It was put to him by the defence counsel that he was not a good muslim, he came from a broken family, he was even labeled a traitor when he admitted for being a Barisan Nasional’s supporters but voted for PKR’s candidate on the last general election.
With greatest respect to the defence I found that all these are irrelevant and merit no further consideration in determining PW1’s credibility. However upon raised by Mr. Karpal in his submission with regard to PW1’s credibility merit careful consideration. Encik Karpal submitted while PW1 submitted that the evidence occurred without his consent PW1 had never try to escape although he had ample opportunity to do so. PW1 instead follow all the instruction given by the accused. PW1’s act of eating and drinking after the incidents, did not try to get help from the occupier at 11-5-2, or to the security guard, did not immediately lodge a police report, and attended PKR’s function on the next day, did not reflect on the attitude of someone who had been sodomised by the accused. Therefore, according to the learned counsel, PW1 had lied when he said in his police report the incident occurred without his consent.
Thus, the entire evidence of PW1 could not be believed and must be rejected.
Learned counsel urged the court not just reject PW1’s evidence, but also to charge PW1 under Section 196 of Penal Code. In other words, what the defence was saying is that since PW1 testified that the incident performed on him was without his consent, but at the same time he failed to run away from the place of incident, failed to ask for help from the occupier of unit 11-5-2, did not tell it to the security guard, and did not lodge a police report immediately, it follows that PW1 would not only lying on insisting that he had not consented to be sodomised, but he also fabricated false evidence with intention to procuring the accused’s conviction for an offence of sodomy which never took place. I find it is not tenable to use PW1’s failure to escape when he had the opportunity, failure to seek help or failure to complaint to the security guard as indicative that the offence did not take place.
Under normal circumstances, such failure would be construed to mean that the incident was indeed took place, but it was consensual which was not relevant in our case. And in any event, PW1 was never asked to explain why he did not run or seek help from the occupier of Unit 11-5-2 or complaint to security guard or make police report immediately. However from the established facts, borne out by the evidence of PW1 it was not difficult to understand why PW1 had acted the way he did though he insisted that he did not consented to be sodomised.
PW1 was a young man aged 22 years old under the employment of the accused. He was not just any employee, but the accused’s personal assistant who had to deal directly with the accused. PW1 idolized the accused since he was a child. He like working with the accused and found him to be charismatic. The accused was generous with PW1 and PW1 was given a special treatment by the accused like presented him with a suit even he was working there less than 2 months. He also was given preferential treatment when he was allocated a room in the office amongst senior colleague.
The interview with the doctors, in particular, Dr. Razuin and from PW1’s own evidence suggested on the incident of 28th June was not something unaccepted. PW1 had reported to various people before but no one advise him to lodge a police report and some were even skeptical. In fact the people like Encik Ezam, Mumtaz and his uncle himself, even discourage PW1 from lodging a police report because they were concerned about PW1’s future. The people in Unit 11-5-2 were all accused’s friends.
Based on those facts and circumstances, PW’s failure to run away to complaint to people in Unit 11-5-2 or to lodge a police report is understandable. It could not be a basis to find that PW1 is not a credible witness. After finding PW1 credible was not affected by his failure to run away, seek help from the occupier of Unit 11-5-2 or to lodge a police report immediately, the next question is whether the evidence itself given by PW1 showing that the accused had introduced his penis into PW1’s anus could be accepted as credible, and is it safe for the court to rely on it to ask the accused to enter his defence. In determining this issue, it is imperative to determine from our side whether there was an opportunity for such act to take place. This is because, without the opportunity, this incident would not occur. (See Sarkar’s Law Evidence page 218). Evidence affording the opportunity for the offence to take place can be established firstly from the relationship between PW1 and the accused. It was not in dispute PW1 was the accused’s personal assistant. In that capacity, he had to manage the accused work’s schedule and he had to accompany the accused in meeting. It was the accused on 25th June 2008 directed PW1 to be present at Desa Damansara Kondominium on 26th June 2008.
On 26th June 2008, 10.30 am, the accused reminded PW1 to go there to discuss work schedule. In between 12.15 to 12.30 on 26th June, the accused called his Chief of Staff Ibrahim Yaakob, PW23 that he had left a document in an envelope required in the meeting behind, in the office. PW1 was then asked by Ibrahim Yaacob to send the envelope to the accused who was then having a meeting at 11-5-2 of the said condominium. The CCTV showed that PW1 were in fact went to the said condominium. This fact which was not disputed showed that the accused and PW1 were in the same vicinity during the time period mentioned in the charge. Thus, affording an opportunity for the offence mentioned in the charge to occur. Presence of opportunity however did not necessarily mean that the incident took place.
In Sarkar’s Law Evidence 16TH Edition page 218 stated, the judge must be on his gut, against dumping hastily from opportunity for to commission of a crime. There can be no crime without opportunity but that was a  between an opportunity and commission.
In our case, besides there was an opportunity for the offence to take place, the evidence of PW1 showed the offence did in fact occurred. PW1 was subjected to lengthy cross examination. PW1 said fastly and consistently in detail on how the accused had introduced his penis into PW1’s anus with the aid of the lubricant. Nothing came out from the lengthy cross examination on PW1 or from the evidence of other prosecution’s witnesses that could suggest what PW1 had told the court that his evidence was something which is not probable. I find PW1’s evidence remains intact. He had truthfully and without embarrassment or exaggeration in his evidence narrated in  detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted, would establish all the ingredients that are required to prove a charge against the accused.
In PP v Mohd Ali at page 528, in the absence of contradiction, however, and in the absence of any elements of inherent probability, the evidence of any witness, whether police witness or not to give evidence of affirmation should be normally be accepted. However for cases involving sexual offences like in our case it is desirable though not technically essential to look for corroborative evidence to support the complainant’s evidence.
In PP v DSAI  3 MLJ, Ariffin J had occasion to see at page 267, nevertheless in a case of this nature which is a sexual offence, corroboration of Azizah’s evidence which desirable though not technically essential and the court to give sufficient attention to the matter. In the same case, Ariffin J after referring to  All ER 1962 375 which stated “a charge in 377 is one very easy to bring and very difficult to refute, and in the evidence in support of those charge must be very convincing. The evidence of such charge must also be corroborated. It is said that it is unsafe to convict on the uncorroborated testimony of whom the said complaint is said to be committed on, unless for any reason that testimony is of special way (see ).”. “It is trite law that complainant evidence on the said offence required corroboration, although a conviction founded upon an uncorroborated evidence of the complainant is not illegal provided that the presiding judge must warned himself of the danger of convicting uncorroborated evidence. ”(see Chiu Nang Hong v PP).
The object of corroboration as explained by Raja Azlan Shah (as Royal Highness then was) in PP v Datuk Haji Harun bin Idrin  1 MLJ 15 at page 19, I quote,
“The object of corroboration is not of doubt to satisfy the court that the witnesses are telling the truth and it is safe to act upon them. It is not necessary that the corroboration could be of the actual commission of the crime, for then that would be an independent commission of the offence. It would be enough corroboration for the offence of relevant circumstances connecting the accused with the crime.”
It was contended by the defence that PW1 was not a truthful witness and his evidence must be rejected and the court need not have to look for the corroborative evidence. As I had stated earlier in this judgement, I found PW1 to be a credible witness, there is nothing improbable about his evidence. His evidence was reliable; therefore the next question to be decided is whether there is evidence to corroborate PW1’s evidence. There was no dispute that the accused had directed PW1 to go to said Condo on 26th June 2008 at about 2.15pm to discuss his work schedule. PW1 testified he did go the condo as directed.
Encik Ibrahim Yaakob (PW24) testified that the accused called him about 12.15pm to deliver the envelope to him at the condo. PW1 was then directed by PW24 to deliver the said envelope to the accused. PW1’s evidence was shown that he delivered the said envelope at about 2.45 pm on 26.6.2008 and he was there between 3.01 pm and 4.30 pm at unit 11-5-1 that day. I find PW24 corroborated PW1’s evidence that PW1 and the accused were at the condominium affording not only opportunity but also confirming the vicinity of time.
PW1 arrived at the condo and take a lift to 5th floor recorded on CCTV further provided independent corroborative evidence supporting the presence of PW1 at the said condo. PW1 driving a Fiat van bearing registration WPK 5925 which according to the Head Unit Record of Kuala Lumpur, Transport Department, Encik Ahmad Humaizi bin Awang, belonging to the father of PW1’s fiancée at that time was seen entering the compound of Desa Damansara Condominium, at 14.47.44 on 26th June 2008 as recorded by Camera 1 on Hard Disk 1 (P68C).
According to PW11, Mohd Sharizuan an analyst at Cyber Security, the time shown on the said harddisk was late by 9 minutes 15 second compared to Malaysian Standard time. To determine the real time, 9 minutes and 15 second must be added to the time shown on the hard disk. This make the time PW1 entered the compound of the said condominium at 2.56.59 pm.
PW1 was then seen taking a lift to 5th floor at 14.42.56. The same thing happened, according to PW1 Mohd Zabiril Adil the time shown at Hard Disk 2 (exhibit P67C) located at management office was late by 19 minutes when
compared to Malaysian Standard Time. The time PW1 came out from the lift was at 3.01.56 pm. PW1 was then seen entering the lift at 5th floor to leave the building at 15.11.38 as recorded by Camera 7 on Hard Disk 2. The actual time PW1 leave the building was 4.30.38pm.
The car bearing registration WPK 5925 drove by PW1 was seen leaving the compound of condo at 16.35.05 as recorded by Camera 5 on the same day. The actual time PW1 seen leaving the condominium is 4.44.20. From recording of Camera 4 on Hard Disk 1, the car bearing the registration number of WMK 6, which according to PW22 belong to the accused was seen arriving at the said condo at 12.19.58 which was 12.29.30 for the actual time.
Someone resembling the accused was seen taking the lift from level P1 to 5th floor and exited the 5th floor at 12.15.11 as recorded by CCTV which was 12.24.11pm (the actual time). The same person was seen leaving the 5th floor and took the lift to P1 at 17.14.54 as recorded by CCTV which was 5.32.54 pm (the actual time). The car bearing registration number WMK 6 left the compound of condominium at 17.13.23 as recorded by CCTV which was 5.13.23 pm. The actual time was 5.39.44pm.
Based on the said evidence the learned counsel for the defence submitted that the evidence did not show PW1 did in fact go to 5th floor. According to the learned counsel, during the period PW1 was seen arriving then leaving the said condominium, PW1 was in fact hiding at one of the floors. I find it is hard to accept this submission in the light of PW1’s clear evidence that he went to the 5th floor and CCTV showed the same. I find the submission by the counsel is nothing but mere speculation without any basis to support it.
Based on the above evidence, I find that the accused and PW1 were at the vicinity of the crime scene within the period mentioned in the charge. The presence of the accused at the vicinity of the crime scene and the proximity of the time to the commission of the offence should goes to the opportunity for the offence to take place. More importantly there are corroborative evidence, that means support to the credibility to PW1’s evidence.
Corroborative evidence as to what transpired between the accused and PW1 at Unit 11-5-1 could be found in the medical history of PW1 as evidence by Dr. Razuin who interviewed PW1 and Dr. Siew. She had been informed by PW1 that he had been sodomised by the accused. Lubricant was used and the accused fondled PW1’s breasts. PW1 informed PW23 that there was penetration and ejaculation as well. These are noted and reflected in the pro forma report, ID28.
Likewise Dr. Siew, PW3 also testified that he was informed by PW1 that he was sodomised by a high profile public figure for at least two months and the last incident happen was on 26th June 2008. When asked by PW3 if the condom used, PW1 said no condom was used. PW1 affirmed that lubricant was used and there was penetration. He also confirmed that ejaculation was happen.
The history given by PW1 was also noted in the medical report (P22) which was prepared by the 3 doctors, PW2, PW3 and PW4. It is stated under the heading ‘History’ [read]. This medical history narrated by PW1 and noted by medical doctors PW2, PW3 and PW4 is corroborated evidence.
The more crucial evidence which corroborated evidence of PW1 on the factum of penetration by the accused’s penis into PW1’s anus was the evidence of the medical doctors PW2, PW3, PW4 and chemist, PW5. PW2, PW3, PW4’s evidence showed swabs were taken from PW1. Among the swabs is P6F taken from peri anal region, P6H and P6I taken from high rectal region and P6J taken from low rectal region. These swabs were put in the containers sealed and handed to IO (PW25) to be handed to PW5 for analysis.
From these swabs, PW5 confirmed the presence of semens. PW3 testified according to forensic principle, every contact leaves traces and in this case swabs P6F, P6H and P6I and P6J were taken from the rectal of PWI in which the semens were found. It means, there had been a male organ contacting the rectal region leaving sperms in that area. This was a clear evidence of penetration.
All 3 doctors further testified that based on the history of PW1, and the sites where the swabs of B5 contained swab of peri anal region of PW1, in B7 and B8 which contained high rectal swab from PW1, and B9 which contain low rectal swab from PW1 that could positively conclude there was a penal penetration on PW1’s anus. PW2, 3 and 4 were subjected to lengthy cross examination including on their finding which showed no scaring, fissures or any signed of recent injury to the exterior of PW1’s anus. And also to the conclusion of the summary of the exhibit P22 which stated “No Conclusive Clinical Finding Suggestive of Penetration to the Anus of Rectum, and No Significant
Defensive Wound on the Body”. As to the summary in P22 which stated “No Conclusive Clinical Finding Suggestive of Penetration to the Anus of Rectum and No Significant Defensive Wound on the Body”, PW2, PW3 and PW4
explained did not mean that there was no penetration. Penetration could take place without causing any injury. PW3 and PW4 explained the absence of any injury to the anus could happen due to 1) the duration to see the doctors,
2) no undue force used, and 3) the used of lubricants.
In Chapter 41 under Clinical Forensic Evidence, the author explains that ‘non consenting intercourse need not produce any objective signs of injury to genital  or anus. In the same chapter but dealing with the penetration to the anus, the author explains that penetration to the anus; either as consenting or non consenting act rarely produces injuries in adults. However, forceful unlubricated penetration may produce signs of blunt trauma. Injuries at that sign may include fissure, heamiathorma, and lacerations.
In this case, PW1’s evidence which was recorded in the medical history, noted by PW23 showed lubricants was in fact used. Based on PW1’s testimony, and what he told doctors during the history taking, no undue force was used by the accused and this was reflected in pro forma D28. Hence I find, nothing inconsistent in the doctor’s finding that there was no scarring, fissure or any signs of injury to that external area of PW1’s anus.
The defence also submitted that the evidence of PW2, PW3 and PW4 should be rejected because they were not experts. On the issue of expert witness, Hashim Yeop J in Dato Mokhtar bin Hashim v PP explain to qualify to you, to give such evidence, the witness must certify the court that he is indeed an expert, that he is specially skilled of enquiry carried out by him. An expert is one who is particularly trained in any art, trade, profession being possessed or particular knowledge concerning the same. The witness must have made a special study of the subject or have acquired special experiences on the subject.
In Junaidi bin Abdullah v PP, Mohd Azmi Supreme Court J said,
“In our view, the test to be applied for the purpose of Section 45 of the Evidence Act is this. First, does the nature of the evidence require special skill? Second, if so, has the witness acquire special skill either by academic qualification or by experience so that he has adequate knowledge to express opinion on the matter.”
Suffian LP in PP v Sulaiman said,
“As to whether or not Mr. Lam is an expert, it is true that this is a preliminary skill to determine, but it is the question upon which in practice  prevails. This is because, for the expert must be skilled, he may not do so by special study. He may be so by experience and the fact that he did not acquire knowledge professionally goes merely to the weight and not to the credibility.”
In our case, the evidence showed that PW2, is a General Surgeon attested to Hospital Kuala Lumpur. He obtained his MBBS in 1998 and Masters of Surgery in 2007. He started as medical doctors in 1998 and as specialist by
2007. Up to the time he testified to court he conducted examination of anus in about 100 cases, 2 of which are sodomy cases.
PW3, is a professional forensic medical specialist at HKL. He obtained a Bachelor Degree of Medicine and a Bachelor of Surgery from Manipal  Education, India in 1997. He also holding a  in Medical Pathologist specialize in
Forensic in 2004. He also undergone training and courses in Human Anatomy  at University of Tennessee of USA and a special training in sexual assault cases in  Greece. PW3 conducted between 200 and 300 examination so far and approximately 20 of those cases were sodomy cases. He had also done collection of samples more than hundred times and had given evidence in court before. He had handled about 50 cases of sexual assault.
As for Dr. Khairul Nizam (PW3) he is currently attached to Hospital Putrajaya. Before this, he was attached to HKL. He obtained his Bachelor of  from Bangalore University India in 1996. He obtained his Master in Medicine specializing in Emergency Medicine in 2006 from the USM. He joined the Emergency and Trauma Department HKL since 2004 until 2008 until he was transferred to Putrajaya Hospital. He had attended over 20 sodomy cases.
Based on the academic qualification and the experience of PW2, PW3 and PW4 and on the authorities I cited above, I find no difficulties in accepting PW2, PW3 and PW4 as expert witness they are qualified and competent not only to conduct examination, take samples of PW1 but also to give interpretation based on their observation during examination of PW1.
Encik Nair, one of the learned counsels to the defence submitted further to the effect that PW2’s evidence as to taking the examination was not reliable. This was because PW2 was not asked and record the bowel habit of PW1 although PW2 admitted and it was crucial to ask it. Thus the counsel urged the court to assume that PW1 to have normal bowel habit of defecating once a day. It was further submitted that PW1 had defecated before he was examined on 28th June 2008 and even if there was at all any traces of semens, seminal fluid as alleged therefore a lot had been all passed out leaving us absolutely nothing even if PW1 managed to hold back defecation, his rectum is said to be . This according to the counsel contradict PW2’s evidence that he testified on the PW1’s rectum to be empty.
With regard to this issue, it is important to study PW1’s evidence together of that PW2. PW1 clearly testified that he did not pass motion because he wanted to preserve evidence. It was clear that it was a conscious effort of PW1 not to pass motion. PW2’s evidence showed in short that a man could have conscious effort in delay motion. PW2 evidence that he found PW1’s anus is empty when PW1 was examined, he explained that this was because that the lower part of the rectum not a reservoir of feaces. This is restored in the colon until the sigmoid area. All the restored food would be kept there when a mass movement which was a psychological process that happen in which a body tries to expel what  after it had been processed and  defecate. But this doesn’t mean that feaces move to the rectum. And if the feaces , could prevent the feaces from moving from sigmoid to the rectum.
PW2 further explained that specimen labeled high rectal swab was taken in the rectum 9cm from the anus. Counsel suggested that it was impossible that specimen in high rectum because any specimen will lead to mass movement  and gravity. PW2 did not agree to this suggestion because human bowel was not  but  afforded mucosa, so material could still stick there. Not necessary all will come out immediately. Some could be left in the area  high rectal swab.
I find PW2’s evidence as stated above, given in the cross examination adequately explained the issue raised by Mr. Nair. I found his explanation to be possible. I accept his evidence that he collected P6F from peri anal region, P6H and P6I from high rectal region and P6J from low rectal region of PWI which was subsequently confirmed by PW4 that it contained semens. Hence I find the evidence of PW3 and PW4 who testified based on the location exhibits were collected, there was penal penetration as corroborative evidence at the factum of penetration.
The other crucial evidence to be accepted was further corroboration evidence from DNA evidence from Dr. Seah and Puan Aidora. Dr. Seah testified that she carried out the differential extraction of B7 which was the exhibit P6H the high rectal swab from PW1. The non sperm extract was the single source blood profile which matches the blood sample taken from PW1. The sperm extract was a mixed profile in which the dominant contributor which PW5 had called Male Y. this sperm extract of Male Y was also found in P6I which was another high rectal swab and P6J which was low rectal swab collected from PW1.
Puan Nor Aidora binti Saedon testified that she was given a white toothbrush, Good Morning towel, an empty mineral water bottle, and a strand of hair for analysis. Except for the strands of hair, the DNA profile were derived from the other 3 exhibits, matches each other and from the same origin. PW6 then made a comparison of DNA profile on those items with the DNA profile of Male Y derived by Dr. Seah from the swabs taken from PW1’s anus. PW6 found the DNA profile developed by her matched the DNA profile of Male Y developed by PW5 thus proving that the DNA came from the same source.
The evidence of PW15, PW16, PW17, PW18, PW19 and PW20 collectively showed that the said toothbrush, Good Morning towel, an empty mineral water bottle, and a strand of hair were collected at the cell occupied by the accused. The accused was the last and the only occupant of the cell before the exhibits were collected. When the accused was entering the cell, he brought along a mineral bottle. He was also issued a Good Morning towel, a white toothbrush, a tube of toothpaste and soap. This evidence if accepted that the unknown contributor of semen Male Y found in PW1’s anus came from the accused.
The defence submitted that the evidence from both PW5 and PW6 should be rejected because the evidence given was real with doubt and unexplained scientific details thus make them unreliable. The learned counsel for the defence submitted in short that the reliability of PW5’s evidence was highly questionable for the following reasons:
• She had departed from the standard guidelines to determine drop out. She was selective on what she considered as stutter.
• She failed to make available the record of the DNA’s volume used during the PCR process.
• The samples were contaminated as evidence DNA of Male Y was detected.
• There was element of degradation in the samples.
It was further submitted that the evidence of PW5 should be rejected on the ground that it is unreliable, then Male Y will be as good as non existence, thus make the PW1’s evidence remain uncorroborated.
In dealing with chemist evidence, the Supreme Court in PP v Lam San had said, with regard to the evidence of the chemist, unless the evidence would be so inherently incredible that no reasonable person can belief that it would be true, it should be accepted as prima facie evidence. As long as the evidence is credible, there is no necessity for the chemist to show what he/she did in his laboratory.
Therefore the issue now is whether the evidence of SP5 and SP6 were not credible. It could not be denied that Dr. Seah Lay Hong appeared in court with impeccable credentials. She is a forensic scientist attest to the Chemist
Department of Malaysia. She is 52 years old and currently heading the Serious Crime Unit. She first obtained the Bachelor of Science (Hons) majoring in Chemistry. She went on to obtain Master of Medical Science and she has a
PHD in Forensic DNA. Her main function at her unit is to undertake and supervise the analysis of serious cases like murder, sexual assault and drug trafficking that require a thorough examination. Her curriculum vitae  to be extensive. Beside that, she also a member of  Genetic Society and also a member of Malaysian Forensic Science Society. On average, she received 5-20 cases per month and 10-20 exhibits. She was given evidence in the court about 10 times a year and her evidence to the best of her knowledge had been accepted by the court. She had given a lengthy and detail reasons for the examination and analysis that she had conducted as to the conclusion she had arrived. She had conducted the DNA analysis within the latest techniques. With regard to the issue of allele drop out and how she had treated stutter, she was asked in length in cross examination. She answered every question convincingly. She said that all interpretation of mixture is based on their validation study and experience. With regard to T-value, and when drop out was considered, she said it is of no significant in this case  mathematical approach and not interpretation. She further explains that Jabatan Kimia
Malaysia had adopted the 50RFU equated to T-Value. PW1’s treatment to stutter range by the defence and also PW6 was also explained that JKM has its own guidelines to determine a stutter. The range of stutter established through a validation studies is 15% to 20% of the real . The threshold to consider a peak is 50 RFU and stutter not be reported at PCR summary, PW5 also explained that peak height doesn’t affect any conclusion and pull out which occurs in electropherogram due to overloading does not affect the reading of the electropherogram as the pull out does not create the falls of  of peak. The result will still be accurate. Going through the detail explanation of the analysis and examination conducted by PW5 and her impeccable credential as forensic scientist and she also has PHD in Forensic DNA, PW5 is without doubt an expert especially in the area of DNA analysis. There is no reason for this court to exclude her evidence in this court regarding this case.
Same with Puan NorAidora. She is competent in term of her academic and professional qualification and experience. There is no reason to doubt her finding and opinion. With regard to the possibility of contamination and degradation of the samples examined by PW5 as raised by the defence, the testimony of PW5 showed that she had taken into her consideration the possibility of degradation and contamination. She explained that degradation will always happen in DNA examination and analysis but what is important is whether the degradation is so severe which resulted in the entire DNA had been destroyed and therefore no profile could be obtained or developed.
In this case, where the DNA profile could be developed, it means though there might be some slight degradation but it was not substantial enough to destroy the DNA. In this case, PW5 confirmed that despite the possibility of degradation and contamination, the profile obtained from swabs taken from PW1’s anus was clear and unambiguous. This means the degradation if any was not substantial and of no effect to the quality to the profile of the samples.
With regard to the contamination, the evidence of 3 medical doctors who examined and took swabs, clearly shown that all samples collected from PW1 were immediately placed and sterile in air tight container, labeled, dated and signed by both PW3 and PW1. They were sealed and placed in plastic bag before handed over to PW25 to be handed over PW5 for examination, with the sealed still intact. In the absence of the evidence to show otherwise, I found the possibility of contamination of those samples after they were collected from PW1 to be too remote.
As regard to those samples examined and analyze by PW6, a good profile was obtained. This means that even if there was contamination and degradation, it was insufficient to affect the quality of DNA profile. With regard to contamination, PW6 explained that if there was a contamination, one was unable to see all the 18 alleles at the loci D3S158 and all the traces samples which she was analyze. The reagent blank is still blank thus no contamination to the samples.
Another issue raised by the defence was tempering the evidence by IO, when he opened the plastic packet containing samples collected from PW1. Counsels submitted that this was done with sole purpose to temper the swab taken from PW1’s rectum. Regarding this issue, it is important to remember that DNA profile which was collected, Male Y was sperm extract. This profile was found to match the profile of DNA found of items collected from the cell occupied by the accused.
Most importantly, the items collected from the cells handed to the IO on the 17th July 2008. By that time, the samples taken from PW1 was already with PW5 at the Chemistry Department. The said samples were handed to PW5 on 30th June 2008. Therefore there is no way for the IO to used the DNA samples obtained from the cells to temper with the samples collected from PW1, if that what the defence was suggesting. In any event, the DNA profile found from the items in the cells was contact DNA whereas found in the high and low rectal swab was from seminal extract.
As submitted by learned Senior DPP, where was the IO going to get the seminal sample which was subsequently found to match the DNA profile found in the items used by the accused in the cells.
Based on all the above reasons, I found the prosecution through the evidence of PW1 which had been corroborated in material particularly had proved all the facts required to prove all the ingredients of the charge. I find the prima facie case as defined under Section 180 of Criminal Procedure Code had been made out against the accused. Therefore, the accused is called to enter his defence.
MY: Much obliged.
YA: So when can I hear the defence?
YA: Tomorrow holiday.
KS: We need time My Lord.
YA: Can I see both of you inside? Now?
[10.47 a.m.] Mahkamah ditangguhkan.
[10.52 a.m.] Kedua-dua pihak masuk ke kamar hakim.
[11.10 a.m.] Kedua-dua pihak keluar dari kamar hakim.
*Kes pembelaan telah ditetapkan pada 6/6/2011 sehingga 30/6/2011*
Anwar Ibrahim Sodomy II – The Recorded Truth – 23 Mac 2011 March 23, 2011Posted by malaysianstory in Anwar Ibrahim, Malaysian Story, Sodomy II.
Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
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Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP: Semua hadir kecuali NH
PB: KS, SN, Datuk Param Cumaraswamy, Ram Karpal, Marissa
MY: YA, kecuali Dato’ Nordin, pihak-pihak masih sama.
YA: At the end of trial within a trial I had ruled the toothbrush, the Good Morning towel and plastic bottle and evidence related to those items especially on the evidence relating to the DNA analysis conducted on those items could not be tendered as evidence. There was no doubt even at that time those evidence were relevant and admissible but I have excluded them on the ground that they were obtained through unfair means.
The decision to exclude those evidence was based on the evidence available at that time especially the evidence tendered during trial within a trial. It was made without the benefit of the evidence from the Investigating
Officer who was not called as witness in the trial within a trial. The evidence tendered in court at that time without the investigating officer tend to support the defence assertion that the accused was illegally arrested and his subsequent detention in the cell was nothing but to deploy designed to collect the DNA samples by trick.
Now in the light of the evidence adduced from the Investigating Officer and the Arresting Officer during the main trial, it is clear that the arrest of the accused are in fact lawful. His subsequent detention in the cell was indeed lawful and for a lawful purpose. Thus, the detention of the accused in the cell could not longer said to be done for the purpose of obtaining DNA evidence from him by trick as alleged by the defence.
In those circumstances, the court has no discretion but to allow those items collected from the cell and all evidence related to those items tendered as evidence. Therefore, I now ruled that those items and all evidence related to those items are admissible and could be tendered as evidence. My earlier ruling regarding this matter are accordingly reversed.
With regard to the application to compel the accused to give DNA sample, the learned DPP relied on Section 73 and Section 165 of the Evidence Act.
Section 73(2) specifically talks about directing any person who write any words or figures for the purpose to enabling the court to compare those words or figures with any word or figures to be written by that person. Section 73 (3) extended it to include finger impression.
After reading this section again and again, I find no amount of judicial creativity to justify extending this clear provision to also include DNA sample. Therefore, the application by the learned DPP to compel the accused to give his
DNA sample has to be rejected on the simple ground that there is no legal provision empowering the court to do so. That’s all.
MY: Much obliged. YA, as a matter of confirmatory I have to recall two witnesses just to tender the exhibits marked before as ID.
YA: But the exhibits can be tendered as P, kan?
MY: Yes, but I don’t want any problem to arise later because we have tendered it but for some reason they are marked as ID. I don’t have the witnesses here, YA. Can we do it tomorrow? I just want to call Aidora and Amidon.
Just to tender. Because today seems to be everything to be okay but I cannot afford any problem to arise later because there might be some challenges to it.
YA: So you cannot proceed with the case today because you don’t have those witnesses?
MY: Yes, I want to call the witnesses. After that I think it will take me about 20 minutes for both witnesses. And then I will close the case. Tomorrow, YA.
YA: Mr. Karpal?
KS: I have to be in the Court of Appeal in the morning. But that’s alright.
YA: Just to mark as exhibit. 9.00 a.m. tomorrow.
[9.04 a.m.] Adjourned.
Anwar Ibrahim Sodomy II – The Recorded Truth – 15 Mac 2011 March 18, 2011Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II.
Tags: Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II
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Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP: Semua hadir
PB: SN, Datuk Param Cumaraswamy (KS, Ram Karpal, Dato’ CV Prabhakaran, Marissa, Radzlan tidak hadir)
WB: Zambri Idrus (for complainant)
MY: YA, hari ini telah ditetapkan untuk hujahan balas oleh pihak pembelaan.
SN: My Lord, I’ve been informed by Mr. Karpal Singh at about 11 p.m. yesterday, that his youngest brother who was in Penang High Court passed away, and he went there yesterday itself. I was also informed by Mr. Karpal that there is ceremony in the community. And being the eldest brother, he has to conduct personally and he won’t be able to make it to court at least on Monday.
YA: Why can’t be tomorrow?
SN: There will be a lot of certain things that he must conduct as the eldest brother, and it is very religious and customary. It is his responsibility
YA. So as a result of which, I wish that this matter will be postpone to at least Monday.
YA: Datuk Yusof?
MY: YA, it is very difficult for me to object, and that considering that Encik Karpal is not that mobile, I believe that I have no objection to this application because considering the religious and ritual that they have to go through.
SN: There will be put the ashes in the sea and I believe, there are full of ceremony event take place in this 4, 5 days, YA, because of the ritual. As a result of this, I think it is unfortunate that the timing is caught with the court case and all. We hope Your Lordship will consider Mr. Karpal’s situation.
YA: So then we continue on Monday lah, at 9 a.m.
Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
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Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP: Semua hadir
PB: KS, Datuk Param Cumaraswamy, Ram Karpal (SN, Datuk CV Prabhakaran, Marissa dan Radzlan tidak hadir)
WB: Zambri Idrus (for complainant)
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.
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?
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.
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.
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.
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?
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?
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?
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?
Q: Here it says that you asked and you were told of the allegations against you by Saiful.
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?
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?
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.
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?
Q: Are you aware that a copy of the 112 statement was served on your solicitors?
Q: And you have been shown of it?
Q: Look at it. I refer now to your copy, the one served to your solicitors.
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?
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?
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?
Q: All that is entirely missing?
A: It is not there in the copy.
Q: It is not there at all?
Q: There are other minor differences there, isn’t it?
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?
Q: In this statement, were you cautioned?
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?
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?
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?
Q: That’s all?
A: He did cautioned.
Q: Of course he did cautioned. And then take your statement?
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?
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?
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.
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?
Q: The one that you asked?
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.
Q: It is not numbered but it is in the second  in that set of document?
Q: And my learned friend is referring to TWT 2.
Q: In TWT 2, is it similar in the page included?
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..”.
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.
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?
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?
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.
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?
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?
Q: Would you agree with me, that the recording statement is part of the investigation?
Q: And statements were in fact recorded on that day?
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.
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?
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?
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?
Q: Dan adakah ini salinan yang kamu buat dalam fail kamu?
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?
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?
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.
Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
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Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
TRIAL WITHIN A TRIAL
MY: Kes ditetapkan untuk perbicaraan dalam perbicaraan berikutan bantahan rakan saya, KS, berkaitan dengan penangkapan dan penahanan.
KS: DSAI will be giving evidence, under oath. SN will be the witness in this trial within a trial.
YA: So he shouldn’t be here.
KS: Yes, he shouldn’t be here. He will go.
YA: Yes, Mr. Karpal?
KS: Can we call DSAI?
TWT D1: Dato’ Seri Anwar Ibrahim
63 tahun, Ketua Pembangkang di parlimen Malaysia, alamat masih sama.
DSAI angkat sumpah dalam BM.
KS: Do you wish to giving evidence in English or BM?
AI: Saya pohon kebenaran untuk cakap dalam Bahasa Inggeris, memandangkan beberapa isu yang dibangkitkan dengan Datuk, itu agak teknikal berdasarkan keterangan awal, kalau boleh saya ingin berBahasa Inggeris.
YA: It is your right, tapi kena angkat sumpah semula dalam BI.
DSAI angkat sumpah sekali lagi dalam BI.
Q: Dato’ Seri, when was you were being arrested?
A: 16th of July 2008, 1 p.m.
Q: Let us start on the very beginning. On the 3rd of July 2008, can you tell us what happen?
A: At about 9 a.m, I was called by the MACC Putrajaya to give evidence to MACC with regard to my earlier police report on the fabrication of evidence in the 1998’s assault by the then IGP Tan Sri Rahim Noor against the AG Tan Sri Ghani Patail and the then IGP Musa Hassan. I was there accompanied by my 3 counsels, Datuk Paramcumaraswamy, Sivarasa, and Mr. SN Nair.
Q: Tell us what happened there?
A: At 10 a.m approximately we were brought in by Tuan Sazali of MACC for series of interview and questions with regards to the police report and he took down extensive notes. At about 12, I then informed him that I have an appointment, I have been summoned by the police to go to IPD at 2 pm. I requested that the interview be referred to a later date to allow me to go to police station on time.
Q: Which is at the IPK Jalan Tuah?
Q: When you were told  prior to go to Putrajaya?
A: I was Informed around 14th July by Sankaran Nair who was in touch with Supt. Jude Pereira. Then I was supposed to appear on the 16th. But I have told Sankaran Nair to inform Supt. Jude that I’ve been  on the earlier date given by MACC, so he requested for 2 pm, and this was agreed upon by both parties; Jude and Sankaran Nair on my behalf.
Q: You were said that you go to Putrajaya on the 16th together with 3 counsels on which you mentioned earlier. You have to leave Putrajaya for the purpose of coming to KL to give your statement?
Q: You said you were together with Datuk Param at that time?
A: The officer, Sazali was kind enough and he make notes of that. And I believe this was written by him to say that he has to defer the investigation until a later date because Anwar has an appointment with the police at IPK at 2 pm at that particular day.
Q: You left Putrajaya together with Datuk Param?
A: Yes we left soon afterwards, and first sent Datuk Param to the Golf Club at Mont Kiara, and then I with Sankaran Nair and Sivarasa went straight to my house for Zohor prayer so that I can come back to IPK on time at 2 o’clock.
Q: During the journey to your home, did anything happen?
A: Sankaran Nair was first being in communication with Supt Jude, who was curious about my whereabouts, and Sankaran Nair said that we were then on our way to Segambut. We were then will be at IPK as scheduled at 2 p.m. And Supt Jude confirmed then; yes, so we proceeded to Segambut.
Q: Do you identify Jude?
Q: Call him for identification.
A: Yes, this is Supt Jude.
Supt Jude dicamkan.
Q: What happen then?
A: On the way to my house in Segambut, and then immediately saw a mark vehicle blocked the route with few others police petrol cars and at about 10-15 commando special force, UTK squad, with balaclava on and with submissions guns around the area. So we have to stop abruptly.
Q: What would be the time?
A: Close to 1 pm.
Q: These commandos from UTK, were they armed?
A: Yes, I could see from the vehicle, with Sankaran Nair sits in the in front, they were armed.
Q: In what way were they armed?
A: I believe it is the submission guns.
Q: You at that point of time, was in the car?
A: Yes. I seated at the back, and Sankaran Nair was sitting in front beside the driver.
Q: What happen there?
A: Of course we have to stop. I remained in the car, Sankaran Nair met the officer who was dressed in uniform. One officer was in uniform, and then he approached the car, I overheard the conversation. I was asked to remain in the car and Sankaran Nair asked question to the officer.
Q: Do you overhear the conversation between SN Nair and the officer?
A: YA, you can expect the standard question like why are we stopped, what are you want to do and he said “arahan untuk menangkap DSAI.”
Q: How could you hear that from your car?
A: The car window, I make sure that..because I wanted to go out from the car but Sankaran Nair stopped me from coming out from the car before he could settle with the police officer.
Q: What was the rest of the conversation?
A: Sankaran Nair of course said that we were, Anwar was returning to the house for Zohor prayer, and he was summoned to meet Jude at 2p.m, so why did you need to arrest him now?
Q: Did the officer reply?
A: The officer merely said that “Arahan dan saya mesti bawa DSAI ke motokar saya untuk dibawa ke IPK. Saya diminta menangkap DSAI ke IPK dengan kenderaan saya.”
Q: What else the conversation between them?
A: YA, from what I could recall, Mr. Nair keep on repeating the questions like “what was the charge”, and the officer, I must say that he was quite polite and he wasn’t rude and just say, “look sir, saya terima arahan untuk menangkap DSAI”.
Q: What happened?
A: Then, Mr. Nair approached me and said that I have to come down from the car and move on to the other police vehicle.
Q: So you go down?
A: Yes but I am very upset, I was quite displeased, and I said to the police officer; “I’m going to the police station, so what is the point”? Mr. Nair then insisted that he will join me in this car. The police politely said to me, “Dato’ Seri, arahan adalah tangkap dan tolong datang ke motokar saya”. I said to Nair, “all right”, and then I followed.
Q: Were you at any time given ground for your arrest by the officer?
A: No, Sankaran Nair insisted, and the standard replies were “arahan, tangkap, naik motokar saya”. And the same position when I went to the other car, police vehicle, I asked the officer..(tak habiskan jawapan)
Q: What did you asked?
A: I said; “Apasal buat kat saya macam ni lagi?”
Q: Very polite?
A: He was polite, I must say. He was not rude, and he knew I was angry in fact, and he said “saya terima arahan, saya harap DSAI ikut saya”. Saya kata; “tapi, berapa kali dah? Dan saya nak pergi ni, dah bagitahu Jude.
Tuan tahu, pasal apa”? “Nak pukul saya?” I did ask repeatedly, because every time YA bila polis nak tangkap, trauma saya ialah kena pukul. Jadi saya tanya dia, dan dia bagitahu, “we will not beat you up”.
Q: This officer, he sat with you, in the car?
A: He was sitting at the front seat, I was at the backseat in the middle, and both to the right and left were the commando from UTK. So I was sitting in the middle.
Q: They were in uniform?
A: Senior officer in front was in uniform, but the UTK commando staffs were not in uniform.
Q: The officer, do you at any time know his identity?
A: Yes, he is very fair, wear spectacles…
Q: Did he mention his name?
A: He did mention I suppose, but I cannot recall his name.
Q: Can you identify him?
Supt Ahmad Taufik bin Abdullah dicamkan.
Q: Upon reaching the IPK, where did he take you?
A: He escorted me to I can’t remember what floor.
Q: What was the room that you were taken?
A: YA I was brought to one large meeting room.
Q: Who was in the meeting room?
A: Not immediately but few minutes later some other senior officers appeared. Supt. Taufek left, I recall Supt Jude was there, the chief of the commando, Tuan Yahya and also a very senior officer who is in charge of police legal affairs, Tuan Razali.
Q: DSP Yahya, he was here the other day giving evidence?
Q: Tell us what happen?
A: Of course I kept on asking them about…(tak habiskan jawapan)
Q: Before that, lawyers were there, at that time?
A: Yes, at that time, few minutes afterward, Mr. Sankaran Nair appeared, and join us.
Q: Any other lawyer there?
A: Mr. Sivarasa joined a bit later.
Q: What happen there?
A: I started by asking all the senior officers on “who gave this instruction, you know that I am supposed to appear, why am I arrested?”. And the standard answer is that I need to cooperate and there were keen to continue with the investigations and asked for my statement. But I said to them that “I have already agreed, and then why did you arrest me, just for asking my cooperation to give statement.”
Q: Did you make statements that day?
A: Yes, sometimes later I was escorted to a smaller room by a police sergeant, 5 to 10 yards away, and Jude Pereira was there and also one of my counsel, Sivarasa.
Q: For what purpose?
A: I was told to give statement to be recorded under Section 112 of CPC.
Q: Was the statement recorded?
A: Yes, about 2.30 until about 5.30 also, Jude Perreira asked some question, and I gave him answers.
Q: Did you sign the statement?
A: Yes, after completion, Jude said he was finished, and I remembered asking him “are you sure?” and he said “yes” so the statement recorded “sudah selesai” jam 5.40…
Q: You were shown the statement?
A: Yes, and I signed on every page.
Q: What was stated on the end of the paper?
Q: What were the exact words?
A: ‘Percakapan selesai’ and I asked him “are you sure there are no other questions?” Because I keen to go back home, and then he answered “yes” and then I signed.
Q: And it is recorded that ‘rakaman percakapan selesai’?
Q: Then, what happen?
A: I was brought back to the main meeting room. It was very late for Asar prayer, and they gave the facilities for Solat Asar. Then, I just waited there, the senior officers appear, and from time to time I was asking them, “You told me the main purpose is to take my statement, I have completed my statement, but why am I here”? And they said you just wait for a while.
Q: Anything happen after that?
A: I waited, and nothing happen, and after maghrib prayer, around 8 o clock, Jude said to me, that we are going to the hospital now, and then they escorted me to HKL.
Q: Any particular room?
A: I believe it was 20 something room, 28 I supposed.
Q: Were you examined there?
A: Yes I was brought in, and Jude entered the room with me and my counsel Sivarasa. We were met by director of the hospital but they all left, leaving Jude Pereira, Sivarasa and one consultant surgeon – E Boon Leong and one consultant physician- Dato Jayendran Sinnadurai.
Q: Did they request anything?
A: They gave me certain forms, they want blood sample for DNA, hair and then some body swabs and then I said what is the law and what is the requirements, and then they were said that they want to get the blood sample for the purpose of DNA from me.
Q: Did you agree to it?
A: No, I said let me consult with my counsel. So I did consult with my counsel, and my counsel advised to cooperate to all the examinations, but not to give the samples.
Q: You complied with the advice of the counsels not to give the blood sample?
A: Yes, the doctors asked me again, I answered, one, it was the legal advice, second is my personal experience in 1998, where we have in evidence for fabrication of evidence, and blood sample is stolen from HKL.
Q: Were you being examined then?
A: Yes, but before that, I told the doctors that I don’t want to be examined in front of my lawyers, the police officers, the nurses, and they complied. So all the other including Jude Pereira had to leave and waited at the door, and these 2 doctors, asked me to take off my pants, coat, shirt, leaving me only with my singlet and underwear. And then after checking the upper part, I was asked to remove my underwear to measure private part, the length of my pubic hair, which is really degrading and demeaning and then they check my penis and anus.
Q: That was the extent of the examination?
Q: Any swabs taken?
A: No, but all the external, the anus and the penis part were examined using all the cotton buds and whatever, except the insertion of the equipment was not done because I did not agree to those.
Q: After the examination were you taken back to the police station?
A: After the examination, the doctor asked me number of questions regarding the alleged sodomy and I cooperated and reply, after taking quite extensive notes, and after about 45 minutes, my examination completed and I left the hospital.
Q: And you were taken back to the IPK?
A: Yes, and brought to the same meeting room and I waited there for some time.
Q: What would be the time when you reach IPK?
A: About 11 o clock I came back. But YA, repeatedly I asked, and they all say that after the examination, you’re going back. I asked Jude, and Sankaran Nair asked Jude, and he said after your statement recorded, you’re going back home.
Q: Did they send you home?
A: No. After 11.30, they just said, Dato’ Seri, you are required to be here, and we will escort you to the cell. I said, this is strongly unfair, you told me that you will release, and why do I need to be detain? Standard answer by
the police, that they got instruction to put me in the cell.
Q: Before went to the lock up?
A: YA, I was brought in into the lockup, an hour later. At that time, when I first brought in, I don’t remember been given anything, but all together I remember all items given to me. One hour later I was brought back to the meeting room where Azizah and Nurul Izzah were there. I was allowed to meet them for about 15 minutes, and they said they brought.(tak habiskan jawapan)
Q: Did Yahya give you anything?
A: Yes, Azizah brought in, but I wasn’t allowed to touch and take anything. She was passing them to Yahya, and what was given other than the small white towel which was provided…(tak habiskan jawapan}
Q: What did exactly Yahya give you?
A: Two medium size towels, toothbrush, toothpaste and soap and the bottle mineral water.
Q: Any towel?
A: One white towel, one very small towel.
Q: This small towel, did you remember the type of it?
A: I don’t remember anything.
Q: If it shown to you, can you identify it? Good Morning towel?
Q: In the lock up, were you alone?
A: Yes. In the lock up I was alone; of course there were guards there that you can see from distance, because this is the lock up on its own. This lock up has steel bars on both sides, and I did appeal to Tuan Yahya because of on my back condition, I cannot be left on the semens floor, which was very cold.
Q: The lock up was it air conditioned?
A: Yes I believe it was, and it is part of the office of the security area. So it was very cold, and the semens floor was really cold, and you can’t lean on the wall, because it just only steel bars on 4 corners. So you have to actually, sleep on the semen floor.
Q: What is the condition of this lock up?
A: YA, I don’t expect VIP treatment but I don’t really regard it of being a normal lock up, it was deployable,  and there was no washroom but the laboratory was awfully dirty.
Q: You placed in the lock up at what time?
A: From 11 until about 8.30 on the following day.
Q: You were putting there in the night?
A: Yes, 11.30.
Q: You were taken out from the lock up at any time?
A: At about 12 something, about 15 minutes meeting with Azizah, Nurul Izzah with the presence of police officers, and then I was brought back to the police lock up.
Q: Was there any statement taken at the morning?
A: Yes, 8.30 in the morning I was brought back to the meeting room for few minutes then Jude Pereira instructed me to go to a small room where he said he wanted to continue as he has now some additional question and lawyer Sivarasa was there.
Q: And there were statement taken from you?
A: Yes. I did protest on two grounds; 1) he promised that I will be released after the statement taken previously; 2) he said that he had finished recorded statement from me. But he says no, there are more questions he needed to ask, and that one is under Section 112 of CPC so I have to obliged.
Q: When were you 
A: I was there from approximately 8.30 to 9.30 Less than one hour.
Q: Was the statement signed by you?
A: Yes. The same procedure were followed, I was cautioned, I re-read, make corrections, every page signed.
Q: What happened after that? After you have completed making your statement.
A: I was brought back to the meeting room and asked to wait.
Q: You waited until when?
A: I waited for few hours and I think Tuan Yahya and Tuan Razali mentioned to me that “Yes, we are waiting for your car and you’ll soon be released”.
Q: So, you are allowed to go home?
A: Yes, YA. For medical treatment.
Q: You went back home?
Q: And after that for medical treatment?
Q: You left at about 12.30?
Q: Why medical treatment?
A: Because I was in excruciating pain. I was given immediately  jab.
KS: That would be all for my question.
Cross-examination by MY
Q: Dato’ Seri, how long was Mr. Nair talking to this officer who were there to effect the arrest of you?
A: About 5 minutes.
Q: 5 minutes. 300 seconds. During that time you were saying that at no time the police officer told you that you were arrested because of this case?
A: No. YA, to be honest, not only Mr. Nair asked the question, I asked the question in the car and there was no answer given.
Q: I put it to you Supt. Ahmad Taufik informed you that you were arrested because of this offence.
A: YA, no time did he…I mean, he was very polite, I wouldn’t deny that. But I kept on repeating and he said “Arahan tangkap Dato’ Seri pergi ke IPD”
Q: Upon reaching the IPK where you were placed in the meeting room, there were a number of senior officers there. Didn’t anyone of them tell you that why you were there? About the arrest, the ground of arrest?
A: They were there, yes and most of the discussion was about the need to get me to give a statement to Jude Pierera.
Q: And the statement is pertaining to the report?
A: Jude Pierera during 112 statement…
Q: You knew then the statement required from you was pertaining the report lodged by Saiful Bukhari?
A: Yes, by Jude Pierera in the meeting room.
Q: Not only you knew that, you were told.
A: I was told in the room, not in the meeting room, the second room, the smaller room where we went with Sivarasa that is recorded under S.112 with reference to this case.
Q: In fact way back on 14.07.2008 you knew you were required to go there for the purpose.
A: On 14.07.2008, I was told by Sankaran Nair that I am supposed to go to IPK or IPD to give a statement to Jude Pierera.
Q: Was there any other offences that you could think of which made the police arrested you on that day?
A: I commit no offence, YA. And you want to say that? What have not they said to me? Antinational treason, Yahudi agent, I don’t know what they want me for. There are 101 allegations in the daily papers, including not wearing a Malaysian batik.
Q: As far as you are concern, there was only one report against you during that material time and that report was by En. Saiful?
A: There are a few reports made against me on political issues including the one made by Saiful Bukhari’s.
Q: But on 14.97.2008 you were informed you were required to give statements pertaining to the report?
A: As far as I could recall there was nothing specific.
Q: Because it was your counsel who told you?
Q: You said Nair was in communication with Jude on 16.07.2008?
Q: And you were told about it by Nair?
A: I was in the car with Nair when Nair was in phone conversation with Jude Pierera.
Q: You yourself didn’t hear Jude?
A: Yeah, I heard Nair having a conversation.
Q: You heard him having conversation but you personally wouldn’t know whether or not that person with whom Nair was having conversation was Jude. You couldn’t confirm that until Nair told you.
A: Yes. That is very consistent with what I told the MACC at 12.00 p.m.
Q: Would you agree with me right from the time you were taken by Supt. Taufik until you were released the next day the police had been treating you with respect. They treated you well, no physical abuse and nothing. Do you agree with me?
A: It is true that there is no physical abuse but no question of the fact that I was treated were alike Botak Chin’s standard of high  criminal. No normal person is ever placed in that lock-up.
Q: So, your problem is with regard to the condition of the lock-up, not the treatment?
A: Not the lock-up, the way I was treated. I was not told what was the offence, I was dragged like Al-Qaeda agent.
Q: You didn’t say that you were dragged. You said the officer was very polite to you.
A: The officer was polite. I don’t deny that. And I volunteered a statement. I was not asked.
Q: You didn’t say you were dragged. You cannot say that. I mean you have to talk about fact. Were you dragged into the car?
A: YA, what do you called that? In this condition with machine guns, armed team police cars. You say that is a normal arrest, YA?
Q: Were you physically dragged into the car?
A: There was no physical abuse.
Q: You were taken to the hospital?
A: But being in the lock-up, sleeping on the cement floor, is that not physical abuse?
MY: YA, my complaint will be the same with the defence counsel. I ask question, you answer. KS will ensure you explain.
Q: You were taken to the hospital and were asked to give your blood specimens and you refused on advice of the counsel. Who is the counsel?
A: The entire team from Haji Sulaiman downwards had always briefed me and at that point in time Sivarasa was there and prior to that Nair. All persistently advise me and I have explained it to the doctors. One of the doctors agreed to me. It is very important.  nodded and said “I appreciate your predicament”.
Q: Did you refuse and did you know they wanted this for purpose of investigation?
A: I knew there were attempts to fabricate and  unfair.
Q: Did you know that they wanted this for the purpose of the investigation? Because you told the court that the doctor asked you about this alleged sodomy. So, you knew it is for that purpose?
A: I did explain to the doctors and the doctors did record it.
Q: That is not the answer. Did you know that they wanted the blood specimens for the purpose of this investigation?
A: Yes, they told me and I explained to them the experience both in 1998, the fabrication, the  charges and the continuing attempt now, YA. It is not something I’m saying it now in the court. I said it to the police and to the doctors.
Q: Dato’ Seri, the other question was this. You were given a mineral water. Would you agree with me that this mineral water was given to you when you were placed in the meeting room? In fact you had a drink there and brought this bottle back.
A: Yes. YA, whatever was given at any time before you enter the lock up, none could be brought by me. It has to be given by the police officer. Whether the same bottle was used I wouldn’t know.
Q: Most of the time you were with your lawyers?
A: No. Most of the time I was with the police.
Q: In the meeting room you were with your lawyers, when you were arrested you were with your lawyers, upon reaching there the lawyers were waiting for you. In fact before your statement was recorded, would you agree that you had meeting with your family members first? Because statement was only recorded at 3.00 o’clock. And you were there at 1.00 something.
A: My family members were not there.
Q: Your lawyers were there?
A: Yes, my lawyers were there. My family members were not allowed to be brought in until late night.
Q: Would you agree that statement was, in fact you can confirm that statements were recorded from you from 3-8 on the 16.07.2008?
Q: Before that?
A: I was asked to sit in the meeting room alone with the police officers coming back and forth.
Q: And then the next day, between 8.30-9.30?
Q: And this time in the presence of your lawyers?
Q: In fact when all the statements taking you were with your lawyers?
Re-examination by KS
Q: You said just now Mr. [eee bue leong] said “Dato’ Seri, I understand your predicament”. He said that?
A: Yes. YA, there are two doctors, one Is consultant physician [datuk dr. jeyandran] and one is consultant surgeon [ee bun leong]. In medical report, only Jeyandran signed, but EE Bun Leong did not. signed but not . Jeyandran was asking me for blood samples, Ee bun Leong said “Dato’ Seri, I understand the predicament to your deciosn. You are not compelled to do anything. You are right”. Because I said to thenm “:You follow my case, you know blood samples were stole from HKL in 1998”. So ee bun leong I could sense that he was listening and said “I leave it to you, I understand”
Q: And you are aware that he did not signed the medical report?
A: Yes, he did not signed. His name appear, his position, but he did not signed.
Q: You used the word “dragged” just now. Anything in literal or ?
A: , but I was not physically dragged. That’s why I volunteered the statement from the beginning, and the police was polite.
YA: I understand that it is not physically dragged.
KS: My learned friend gives the other impression just now when I questioned Dato’ Seri.
Q: Were you ever at any time given grounds of arrest?
A: The point of arrest until the meeting room, all the senior officers was there but none of them made any reference to the charge. Only when I went to the room with Siva with Jude Pierera, Jude Pierera did mentioned the police report and the charge. Even at that time police report was not given. We appealed to him “Please show us that report, it was not given to us”.
Q: I’m talking about ground of arrest. Grounds of arrest were never given to you at any time?
Q: Right from the time you were arrested to the time when you are released?
A: It is established fact that the police report was not given to us and I was not told of the ground of arrest.
Q: Did they give you grounds of arrest? They took your statement. Did they give you the grounds of arrest?
A: No. they did not. They just said there is a police report and I asked where is it and it was not given to me. I was not given any basis but they said “You are required under S.112 CPC” and I said “I understand the law”.
Q: When you take the statement, no mention of the ground of arrest?
KS: No further question.
YA: Next witness will be Sankaran nair?
TWT DW2: Sankaran Nair
TWT DW2 affirm the oath in English.
Advocate & Solicitor. 55 years old.
Q: On 16.07.2008, did you go to Putrajaya together with DSAI?
A: I did.
Q: What was the purpose of going there?
A: I was acting as solicitor for DSAI in the matter of his report to ACA for certain matters.
Q: Tell us what happened. From where did you go and with whom, apart from DSAI.
A: I and another lawyer, Mr. Sivarasa met at DSAI house and we fetched Datuk Param along the way and we proceeded and reached there at about 10.00 a.m.
Q: And the purpose is for DSAI to give a statement?
A: To give a statement in respect of his police report against Tan Sri Ghani and Tan Sri Musa Hassan for black eye incident.
Q: How long were you there together with Dato’ Seri at the MACC office in Putrajaya?
A: He was supposed to give the statement for the entire day but DSAI was aware and we keep reminding him again and again that he has to be at IPK at 2.00 p.m. because I have told DSP Jude that we will be at IPK KL at 2.00 p.m. we did tell the officer recording at about 12.00 p.m. that we had to leave otherwise we will be late. And as a result, the officer recorded down what has been said about our meeting in IPK with DSP Jude. And we left at about 12.00 p.m.
Q: You left for where?
A: We was supposed to drop Datuk Param and naik satu kereta ke IPK. But the time we reached Selangor Club in Kiara…
Q: What was the purpose at Selangor Club?
A: Datuk Param’s car was there so we have to drop him there and it was nearly 12.35 p.m. at that time. Since there was so much time left DSAI suggested that he wants to pray and freshen up before we proceed to IPK and Kiara is near to DSAI’s house so we went to his house.
Q: What happened on the way?
A: By the time we passed Garden School at merely 12.30 or 12.40, DSP Jude asking me “Where are you?” and I said “Look, we are still early. We are going back to DSAI’s house, and he’ll pray and freshen up and I’ll asure you I’ll be bring him at 2.00 sharp”.
A: To the IPK.
Q: Anything happened on the way to DSAI’s house in Segambut?
A: In about 10 minutes thereafter as we proceeded to DSAI’s house mengikut Jalan Segambut Dalam, we have to get to DSAI’s house through a slip road and as we entered the slipped road, we were ambushed by several police cars. And I particularly remember a green unmarked wheeler  and there were about 10 or so balaclava clad and platoon commanders and they all having armed and very menacing surrounded DSAI’s vehicle.
Q: After that what happened?
A: I told DSAI to remain in the car because the situation is rather menacing since I don’t expect machine gun to arrest one man and then plus too many cars. We were quite alarmed. In fact, DSAI was quite alarmed, threaten and fearful of himself. We just sat for a while and I told DSAI , don’t come out and I will talk to the officer. When I opened the door, an officer I think Supt Taufik if I can recall, he is Superintendent because he is in uniform.
Q: Is he here? If I call him will you be able to identify him?
Q: Supt. Jude also, can you identify?
Supt. Taufik and Supt. Jude identified.
Q: Carry on.
A: This things is in our mind because the last time we told the police that we will surrender DSAI in 1998 the last time when we told that we will surrender DSAI in 1998 without any problems if you ask us to bring him and thereafter we expected them to invite him to the police station, they stormed the house. So, that fear operated in all of us, me and DSAI that it is happening again.
And I told him not to come out of the car and I talked to the officer Taufik and I asked him “What is it that you want? We are supposed to be there at 2.00 p.m. and I’ve just spoken to DSP Jude.” And he said “My order are to arrest DSAI and take him to IPK” and I asked him “What is the charge? Why do you have to arrest him?” and he said “My orders are to arrest and bring him to IPK”.
I asked him “Why don’t we go in DSAI’s car? You can escort us and you don’t have a reason for him to be arrested by you” and he said “No. My orders are strict and I am to arrest him and take him into my vehicle”.  and I said “Alright, I have to talk to client”. I then walked to DSAI’s car and opened the door and asked him to come out and told him “Looks like you have to go. They are very strict about this”.
Thereafter I escorted him to the four wheeler vehicle and I asked Supt Taufik “Can I follow? At least let the lawyer be with him” as a fact they are taking him now and to that he said “No. there is no space in the vehicle. There are two escorts and DSAI will be there, so there is no space and you have to come on your own”. So then we followed the vehicle thereafter as soon as DSAI were driven away.
Q: Right off to IPK?
A: Yes, we went to IPK
Q: What happened at the IPK? 
A: As soon we were there, at 7th floor, we were ushered to a meeting room. And there, if I recall there is ACP Razali, DSP Jude and I can’t recall the others who were there together with DSAI and ACP Razali then said to me “Look Mr. Nair, we are not going to detain your client. We just want to take his statement. And after the statement, he may leave”. Soon, the other lawyers just arrived and Datin Seri also arrived and on that assurance we left one lawyers aside and we left the office and waited down stairs.
Q: So, that was your on that day ?
Q: From the time DSAI was apprehended, stopped , did Supt Taufik gives any grounds of arrest to DSAI at any time?
A: Absolutely no, YA. He was rather robotic and says “My instruction is to bring DSAI to IPK”. That’s it.
Q: Was DSAI given grounds of arrest at any time at the IPK by anybody?
A: Not in my presence at all.
KS: That will be all, YA.
Cross-examination by MY
Q: Would you agree with me that Supt Taufik didn’t talk much?
A: As I said he is robotic and all he said is “My order is to arrest DSAI”.
Q: Yes or no?
Q: You asked him why was he there.
Q: And would I be correct to say that he said “I have an order to arrest DSAI pursuant to this offence”?
A: He said “I’m here to arrest”. That’s all.
Q: My instruction is you were told the reason of arrest.
A: No, he did not tell me the reason for the arrest.
Q: There’s one statement you made towards the end, with the assurance that he will be released that night.
Q: I just want to ask this question, if there is no assurance what will happen?
A: If there is no assurance obviously we will then as lawyers will apply perhaps for habeas corpus.
Q: On what ground?
A: On the basis that the arrest was illegal.
A: He has agreed to give statement to the police and there is no reason to arrest. Under S.111 CPC, you don’t arrest the person if you can’t go and apply for a summons before a Magistrate to have him comply it to come to the police station. You don’t arrest a person for that.
Q: Would you agree that S.111 CPC apply to witnesses and not suspect?
A: At that time we don’t know they were  him as what.
Q: Would you agree that DSAI was a suspect?
A: At that time? We don’t know at that time.
Q: Are you aware of all the reports made against DSAI?
A: Of course I’m aware.
A: He can be a witness. He can be anybody. That’s why we did not know at that time what you have decided to treat him as.
Q: In fact the report was published in the newspapers. The whole of Malaysia, if not the whole of the world know there was a report alleging sodomy. Were you aware of that?
Q: Didn’t that make him a suspect?
A: That’s for you to decide. I’m a lawyer.
Q: Yes, because you are a lawyer I ask you.
A: He can be anybody. Anybody that you want him to be.
Q: Allegation is made against you, didn’t that make him a suspect?
A: I am a lawyer. I am not a prosecutor or the police to decide that.
MY: YA, may I ask this question?
Q: You were a police officer before?
A: Of course.
Q: You are a SB (Special Branch) and you were in commercial crime?
Q: When did you call a person a suspect?
A: When I want to take his statement.
Q: . There are many people whose statement are recorded and yet no report is not against them and that doesn’t make them a suspect.
A: Not necessarily.
Q: So, when their statements are recorded, they are a suspect? That’s what you said.
A: You can be. You can also be arrested.
Q: So now, in this particular instance you knew that DSAI’s statement was about to be recorded and it makes him by your answer, a suspect.
A: There is no legal definition of a suspect.
Q: I mean, it is by your definition.
A:  either a witness or an accused.  of suspect. Can you tell me in the CPC the definition of a suspect?
Q: I took it by your definition.
A: You say suspect, I don’t say suspect.
KS: Leave it for submission.
YA: Yeah, this is about the law.
MY: Okay 
YA: We want facts only, not law.
MY: Yes, YA. That’s why sometimes I always wonder whether or not the counsel should be allowed to ask all about the law. But anyway..
Q: You speak to Jude on 14.07.2008?
A: Yes. He called a few times.
Q: What did you talked to him about?
A: There are few conversations between me and him so I don’t know which one are you referring to.
Q: On the 14th.
A: All I know is on the 13th we told him “You have served S.111 and you didn’t serve it on him personally therefore my client is not obliged to come”.
Q: Was that the only conversation?
A: I believe he was asking to fix appointment again.
Q: During that day how many conversations you have I wouldn’t know. But you know that DSAI is required to come to IPK on 16.07.2008?
A: No. That was an agreement he made. 
Q: My suggestion is on 16th July there was no communication at all between you and DSP Jude?
MY: That would be all.
Re-examination by KS.
Q: Were you an experienced or at least police officer?
Q: When did you join the police force?
A: I joined in 1982.
Q: As what?
A: I was a Cadet ASP.
Q: You were in the force for how long?
A: About 8-9 years.
Q: And you have experience of crime investigation?
A: Yes.  in other branches.
Q: In this case were you aware that S.111 order was issued?
A: I was aware when the family called me on Sunday saying that S.111 order was given to the guard at the guard house.
Q: S.111 are addressed to?
A: The name was DSAI on the .
Q: What is the S.111 order?
A: It is an order to appear before a police officer at the police station or in a police station.
Q: As a witness under S.112?
A: As a witness under S.112. That’s true.
KS: That would be all, YA.
MY: I only have one question through the court.
YA: Apa dia?
Q: With regard to S.111, is it true that you don’t recognized that as being served on your client?
A: As I understand the law, S.111 must be served personally on the person required…
Q: And you don’t recognize it?
A: As lawyers, we don’t recognize that.
MY: That’s all.
KS: Just one question.
Q: It was in fact issued?
A: Yes, it was issued. Definitely.
Q: It was a S.111 order?
A: Yes. S.111 order. It was issued.
KS: That would be all.
YA: You can now go out.
KS: We will be calling Mr. Sivarasa. He will be here tomorrow morning.
YA: He is not here now?
KS: He is not here.
MY: I though I don’t want to call rebuttal witness but in view of what he said I have two rebuttal witness, with only one question each.
KS: We must close our case first.
YA: Yeah. And later baru rebuttal boleh call.
KS: You can’t jump the gun.
MY: Most of the thing said we accept.
KS: This is a criminal trial, YA. We must placed before this court all the materials, YA.
YA: Start tomorrow with Sivarasa. You got two rebuttal?
MY: Two rebuttal witnesses, Taufik. I want to ask whether or not he informed. That’s all. 
YA: Okay. But it has to be after Sivarasa.
YA: So boleh habis lah esok?
KS: We’ll try our best.
YA: Continue tomorrow at 9.00 a.m.
[3.52 p.m.] Adjourned.
Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
Anwar Ibrahim Sodomy II – The Recorded Truth – 2 Mac 2011
Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP : Semua hadir
PB : KS, SN, (Datuk Param Cumaraswamy, Dato’CV Prabhakaran,Ram Karpal, Marissa, Radzlan tidak hadir)
Kes disambung semula dengan permohonan pihak pembelaan untuk meminta trial within a trial supaya diadakan di atas bidang kuasa mahkamah.
KS: My Lord, I have to start first?
KS: My Lord, it is our submission, that we need a trial within a trial, for the purpose of laying the ground to show that what has been recovered from the lock up which has been marked as an ID, that those items ought to be excluded as evidence. For doing that, there must be a basis for it. At this stage, I would just perhaps go on bits and pieces of what basis would that be, because at this stage, we need to decide whether there should be a trial within a trial in any event. Our submission would be the arrest of DSAI was illegal, unlawful and what has compounded that rather unlawful means, unlawful methods employed by the police for the purpose of getting those items for DNA analysis. I take you to the case of PP v Mohd Farid bin Mohd Sukis, tab 1 of our bundle. But before that, I will take Your Lordship to the case of Goi Ching Ang v PP  1 MLJ 507, tab 2. That case is ML Federal Court’s decision of 5 men bench. I take you to para 3 under held, page 508. [read]. That was section 27. Here likewise, the principle would apply.I take you to several pages of that case, page 526 of that report. I take you first to the case of Noor Mohamed v The King . [read page 526, tab 2].
[Read] under heading of Principle of Fairness, page 526 and 527]I take you to the aspect of fair trial, in the case of Lee Kwan Woh v PP  5 MLJ 301, tab 7. [Read 303, para 2]Next, to the case of Ramli bin Kechik v PP  2 MLJ 33, tab 3 in our bundle.[Read page 38] I take your Lordship now to the case of R v Sang  A.C 402,that would be tab 4 [read para H, page 402]. Next, Australian case, Cleland v the Queen  151 C.L.R. 1, tab 5, [read para 2, page 1] Then we go to the case of Regina v Fox  1 W.L.R.1126, tab 6 [read para H, page 1126, and para A&B, page 1127]. Next, case of PP v Farid bin Mohd Sukis  3 MLJ 401 again, [read on the head note page 402], elaboration come in the judgment of Augustine Paul at page 412, 413, 414, 415 read].
So by applying those principles, YA, we say that it is necessary for us for your Lordship to exercise the discretion. That can only be done, if we are given opportunity. That opportunity can only be made available substantively and objectively where there is a trial within a trial. On the final say, we’ll be relying on DSAI’s arrest and detention was unlawful. The method employed to secure the evidence which is now being placed before the court was brought in circumstances of unlawful means, and unfair method. Therefore, we submit that there should be a trial within a trial. We pray that YA to follow the case of Mohd Farid where the learned judge has addressed practically within the authorities of English case and . We pray that we will be given opportunities to place that material before the Lordship. That would be all for the moment.
MY: ML, to instruction of evidence in a criminal trial, is to govern by Evidence Act, especially Section 5 and Section136. Section 5 talks about we may only adduce evidence with regards to the existence of non existence of fact in issue, anything that this act declares to be relevant. And Section 136 says that the party adduces to the evidence, than the court will ask in what manner it is relevant. If it can shows that it is relevant, then it is admissible.
Obviously, the evidence pertaining to the collection of exhibits from the lock up is relevant in sense that it has very great probative value. It affords evidence, it affords proof of the guilt of the accused. But of course, in the evidence act, there are certain section which say that before the evidence is admissible, there are 3 conditions: First, Section 24: confession where there is objection to that evidence, the prosecution has to show that the confession had been obtained not from the inducement, threat or promise using by the person in authority. That is the only time when the court will hold a trial within a trial. Where there are no pre conditions to the admissibility, a trial within a trial is not necessary. My Learned friend refers to few cases, from Noor Mohamed is not with regard to a trial within a trial, they also refers to Farid Sukis, and also Goi Ching Ang. If I may just say something about Goi Ching Ang. Goi Ching Ang is one Federal Court’s decision which I think that the case which had been decided wrongly. In the judgment, the court agrees that involuntariness is not an issue, because sec 34 and Sec 27  then how could would say that it is involuntary and then exclude it? Because in the Privy Council in Lam Chi-Ming, page 24, tab 1, [read] says that if it is not voluntary, then it is not admissible. But in the same case, the Privy Council recognizes the fact that though section 27, is found in Ceylon and India, it’s principle and laws were actually lain down in English courts earlier, and then codified by India and Ceylon, and found its way in our relevant act, the things have change. In Lam Chi Ming itself, this is what the court has to say. If I may, [read], para g, page 175. And then at page 178, para c [read].
Section 27 says that voluntariness is not an issue. And how anybody could says that it is proper to obtain it, because it was not recognized. What is being admitted is not the confession. What is admitted is the information leading to the discovery. It shows knowledge only; it does not directly incriminate the accused. So, in Goi Ching Ang, reference was made to Noor Mohamed. Noor Mohamed is the case of similar fact evidence. When you talk about similar fact evidence, obviously it is evidence which does not prove or disprove. That’s why the court is very careful. Even then Noor Mohamed says even though it is a bad character evidence but sometimes because of special features in the evidence, it may need  accused probable to admit it. So Noor Mohamed is not the case to be applied in this situation, but YA, at this juncture, we are not talking about whether or not we want to exclude, we are talking about whether or not there is a need for a trial within a trial.
YA: But I think what they are saying is that falls under the third one, i.e. the evidence obtained from the accused after the commission of the offence. I think that is what they are saying, not confession and admission.
MY: In PP v Mohd Farid bin Mohd Sukis & Anor  3 MLJ 401, the court recognised that it is not confession. At page 412, it says that normally a trial within a trial is held to determine the admissibility of evidence which requires certain conditions to be proved before it can be admitted. Thus, in the case of confession, the precondition of its voluntariness and a trial within a trial must be held to determine whether it was voluntarily made before it can be admitted. Where evidence sought to be admitted is not subject to any such conditions as in our case, it must be admitted without subjecting it to a trial within a trial. This is what it says. And then the later part it says we have to . You must admit first. Now, application has been made to exclude, then the court  whether or not there in the course of obtaining the information, it is so oppressive to tender it, unfair and inadmissible. But . This is what PP v Mohd Farid b. Mohd Sukis said. Now subjecting it…
YA: If I understand you correctly, mark as P first then we have a trial within a trial and if the court decides that it is opression, take it out. Is that what you mean?
MY: No. When it comes to exclusion, all the authority says this: just because the evidence is obtained illegally or improperly it does not follow that the evidences to be excluded. It will only be excluded if it is unfair to the accused, where the prejudicial effect outweighs the probative value. Again, we go back to what  and Nur Muhammad said. If it merely shows that this man is a man of this character rather than the evidence that will  by guilt, the you would exclude it. In this case the evidence that is sought to be adduced confirms the guilt of the accused. In that sense all the cases were saying that this kind of evidence had a strong probative value and you must admit because its probative value outweighs its prejudicial effect. It is not something that is . So YA, even in PP v Mohd Farid b. Mohd Sukis, the court recognises that since this kind of evidence does not fall under the category of S.24 Evidence Act which is confession or admission, then you admit it as . Now, learned judge refers to this cases in para F and G of page 412 of the report where it says that [read: it follows that..] it refers to Cleland v R (1982) 151 CLR 1, with respect of the judge it involves the evidence of confession. Confession, we agree must have a trial within a trial. The High Court of England in Cleland v R is deciding on the volantariness of the confession. So, if that is, it applied .
In para F and G of page 412 [read: it follows that the party seeking the exclusion of this evidence must satisfy the court that the circumstances are such that the court should exercise its discretion in favour of the party making the application. The appropriate way of dealing with it by way of a trial within a trial.]. It seems that all these cases referred to confession. In , at para H and I, it says [read: if the voir dire procedure is not adopted, a defendant is placed at a disadvantage because the impugned statement will not be excluded unless evidence arising during the prosecution case warrants that action. When a voir dire is not conducted, an accused is placed in a situation where he or she can only give evidence during the substantive trial…the result obviously places an accused at a serious disadvantage]. Here it talks about jury trial. In jury trial, the admissibility of a particular evidence when challenged, it is always decided in the absent of the jury. If it is not a jury trial, I don’t see why you need to have a trial within a trial.At page 413, para B, this is what the judge says [read: the holding of a trial within a trial for the purpose under discussion will ensure that all relevant matters to facilitate the making of a ruling are addressed. If such a course is not followed, material evidence may be overlooked as the issue will not be in focus. This will place the defence at a disadvantage. Needless to say, the evidence in dispute can be excluded based even on material available in the substantive trial itself on the issue].
YA: Yalah, kalau boleh di exclude boleh la exclude. Tapi kalau tak boleh lagi which we need to go further, there where the trial within a trial comes in.
MY: Yes. The judge repeated this…
YA: Ya, itu siapa ya? Augustine Paul?
MY: Yes, when he is a High Court judge. And he repeated this in  when he was in the Federal Court. He repeated it, the same passage. First of all, he is relying on the judgement dealing with confession which he himself said that you must have a trial within a trial. And in this case, we are not dealing with confession. We are in predicament now. Apparently he applied the wrong principle to the wrong case.
KS: I wish not to interrupt. But what my learned friend is not quoting what is in here but in the judgment of PP v Mohd Farid b. Mohd Sukis.
YA: Never mind.
KS: We have to put him on the right track. It is substantive trial or  although…
YA: We know that. We have read that case many times.
MY: Then we look what is the position in India. Of course in India, there is no mention about trial within a trial with regard to evidence of the .  they talk about objection, then they talk about exclusion and they talk about R v Sang, Kuruma v The Queen and Nur Muhammad. No mention about trial within a trial. That is maybe why J Augustine Paul made no reference to any Indian cases in his judgment. Our Evidence Act 1950 is in pari materia of India. They didn’t talk about trial within a trial.
Now, let’s see at the position in England. Tab 29 of our bundle, Archbold’s Criminal Pleading, Evidence and Practice 2007. If I may read “Procedure” in page 1666. This is the case where exclusion is sought under S.78 and S.78 is more or less with R v Sang. If I may first refer your Lordship to page 1664 where S.78 of the Police and Criminal Evidence Act 1984 is reproduced. If I may read [read: in any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit]. Under “Procedure” in page 1666, it says [read para 15-458]. But this are materials before the court. [continue reading]. Here reference was made to R v Manji, but the case involves confession. And then we talk about summary trial. [read para 15-460, page 1667]. So, when we abolished the jury trial, what is the difference between summary trial in a lower court and the higher court? None. There is no jury whose mind will be influenced before the court can decides on the admissibility. Because here, your Lordship is both the judge and the jury. So, the question of somebody’s mind is being influenced does not arise.
I refer your Lordship to Blackstone’s Criminal Practice tab 27, page 2153, under the subheading “Procedure” [read – in seems reasonable to suppose…]. Now, they are referring to a situation where the circumstances under which the evidence was obtained is in dispute. Here, so far nobody is disputing how it is obtained when the thing was collected. Because first you must look at what are the conduct that you complained of. And then whether or not that conduct amounts to illegality or impropriety.
If I may read [continue reading – In Manji  Crim LR 512, the accused denied…in general, the judge should decide on the basis of the dispositions, statements and submissions of counsel]. Again, no a trial within a trial.
I now invite your Lordship to the case of R v Sang  AC 402, tab 8. This is in fact the case that lays down the principle of exclusion. At page 432. In this case, there is no a trial within a trial. [read first line para D]. In this case, it involves agent provocateur, whether or not the offence was committed as the result of the incitement of the agent provocateur. [read para E-F]. When you hear it, admit it, and then later on you may want to hear whether or not it should be excluded and then tell the prosecution you cannot rely on this evidence on the submission. [continue reading para F-G]. So, they are saying that when there is no distinction like in the summary trial or like in our trial, then there is no need to hear until the end and then decides if in fact Dato’ Seri Anwar Ibrahim was illegally arrested then hear submission whether or not that arrest is in fact illegal and improper and what is the effect, whether or not that has deprived Dato’ Seri Anwar Ibrahim a fair trial.
It is our submission that if we were to go to by our Evidence Act and pari materia with India and Ceylon which is S.24, there is no trial within a trial. If you go by PP v Mohd Farid b. Mohd Sukis, if any evidence sought to be admitted does not comes within S.24, you admit, and exclude later. And exclusion can be done either through a voir dire or not. If you go to England, it says that if you go under S.78..
YA: Just to clarify, you are saying that if we go by PP v Mohd Farid b. Mohd Sukis, we admit dulu lepas tu buat a trial within a trial and then decides samaada dia proved atau tidak.
MY: So, exclusion can be done either by the evidence that is being adduced or a voir dire.
YA: That one if we go by PP v Mohd Farid b. Mohd Sukis.
YA: That means the only dispute here from what I can see is now we are yet to mark, and you want to have the trial straight without marking the exhibits. That is the difference here now.
MY: Yes. But here in PP v Mohd Farid b. Mohd Sukis which my learned friend is relying says you must admit first.
YA: Mark as P first, then have a trial within a trial and if the court finds that there is substance in what you are  here then we exclude. Is that what you are saying?
MY: Yes. What PP v Mohd Farid b. Mohd Sukis is saying is this, if the conduct complained of or the illegality can be seen from the evidence adduced, you decide by the evidence. If it is not in the evidence, then you have a voir dire.
In England it says evidence in ,  the court has a discretion whether to hold a voir dire or not. But since where there is no real difference in summary trial where the position is the same now because of no jury trial but if you have to do so, you have to wait until the whole of the prosecution stage then you have a voir dire. In R v Sang, the reason why it is done that way YA, is to prevent prospected and lengthy trial within a trial. In R v Sang, the court goes on the assumption that the allegation is true that the offence was insight committed as a result of incitement by the agent provocateur to decide whether it is improper, if improper whether or not this triggers to the discretion of the court to exclude it in the sense that the use of it has been unfair to the accused. The use of it is unfair in the sense that the prejudicial effect outweighs the probative value.
To sum up, for our purpose there shouldn’t be any trial within a trial until the prosecution adduce all its evidence. The exhibits that we attempted to tender through Aidora and Amidon should be admitted as a matter of course and at this juncture the court would later on decide whether or not in order to exclude if there is an objection, a voir dire is needed. And for that both the parties will submit whether or not the conduct complained of is in the evidence adduced during the prosecution case either through the chief or cross-examination. If it is not there then we should hold a voir dire. And this voir dire would have to be held before judgment. This is what the law says. I urge your Lordship to dismiss the application of voir dire at this juncture and to allow us to have the evidence admitted and the exhibits marked as P.
YA: And after that buat voir dire? Is that what you are saying?
MY: Yes. And at the end…
YA: Evidence pasal collection ni dah habis, kan? Pasal nak mark saja from ID to P.
MY: Because today only we were told that this impropriety is attached to the arrest, not yesterday. To the arrest and the detention. So, during cross-examination, nothing is mentioned about the detention to be unfair. I propose for us to wait until we finish because this evidence with regards to arrest may be adduced when the IO gives evidence on that. But if it is still insufficient for them to lay the foundation to say that this is the conduct and this is what we say or complained to be improper or illegal, then we will have a voir dire for them to say what is the conduct. Then, if we concede, we can submit whether or not the conduct is illegal. Because they have to show what is the conduct. If we concede, the court just like in R v Sang will hear submission whether or not that is improper and whether or not it should be excluded.
KS: We would like YA to follow the procedure of PP v Mohd Farid b. Mohd Sukis. I take your Lordship to page 412…
YA: If we by PP v Mohd Farid b. Mohd Sukis, as they pointed out we have to mark as P first and then have a trial within a trial.
KS: Whether it is marked as P first, there is no difference. There must be a trial within a trial for us to lay the basis to exclude it. And then we can only do a trial within a trial not in the general trial.
YA: You want to have a trial within a trial to exclude exhibits which has already be marked as exhibits. As they pointed out, the exhibits have not been marked as exhibits, so how are we going to exclude?
KS: It does not matter, my Lord.
YA: So you concede it can be marked?
KS: Yes, it can be marked. And we’ll go on with a trial within a trial. . We must lay the basis, YA. We must do that in a trial within a trial. It is in no other way comes in the general trial. I take your Lordship ro page 412 of PP v Mohd Farid b. Mohd Sukis. [read para G, page 412]. That is what it is saying here, that it is the more appropriate matter. In R v Sang, the complaint was this, an agent provocateur and that evidence came in the general trial. .
YA: If I understand them correctly, if we want to have a trial within a trial why not wait until evidence on arrest and if it is not enough, then we have a voir dire. That is what they are saying.
MY: If the basis is not found in the evidence being adduced, then have a voir dire.
YA: You have two chances. One chance is through the evidence. From there kalau dah ada basis untuk tunjuk arrest tak betul, satu chance. Kalau tak ada, hold a trial within a trial. So, second chance for you. That’s what they are proposing.
MY: That’s what the law says.
KS: I think this is the position that it should be held now before the evidence goes in. And even if it is P , it ought to be expunged. It comes back to square one.
MY: We admit first…PP v Mohd Farid b. Mohd Sukis says that you must admit first, then hold a trial within a trial.
KS: No. It says a trial within a trial first, then general trial. I take your Lordship to page 413 of Farid. [read]. It has to be done this way. No other way.  We pray that a trial within a trial be directed at this stage.
YA: That’s all? Tangguh sekejap.
YA: This is the ruling of the court. Generally the court is not concerned with how an admissible evidence is obtained. But in cases where the evidence intended to be tendered involved admission, confession or generally with regards to evidence obtained from the accused after the commission of an offence, the court has discretion to exclude relevant admissible evidence if the evidence was obtained by improper or unfair means.
And it is my humble view that the proper way to determine whether there was unfair mean in obtaining such evidence that warrant exercising those discretion is by way a trial within a trial. Therefore, I allow the defence application to commence a trial within a trial.