Anwar Ibrahim Sodomy II – The Recorded Truth 06 JULAI 2011 July 13, 2011
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Mahkamah Rayuan
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
Pihak-pihak:
PP: NH, WCK, NB, NAA, MM
PB: KS, Ram Karpal
AI tidak hadir
[9.46 a.m.]
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 [2011] 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.
(2A) …
(3) …
(4) …
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 [199] 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 [1999] 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 [1970] 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 [2011] 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,
“[16] 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,
“[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,
“[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,
“[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 [2010] 9 CLJ 625 FC.”
And the conclusion at paragraph 21,
“Conclusion
[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,
“[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 [2010] 6 MLJ 585, tab 8 of our bundle in paragraph 24,
“[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,
“CONCLUSION
[26] 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 [2011] 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?
DSAI: []
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 [2011] 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 [2010] 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 [2011] 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 [1998] 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 [2011] 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 [1986] 2 All ER 334’.
In R v Shivpuri [1986] 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 [1973] 3 ALL ER 1109, [1975] 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:
[1] the Federal Court has never refused to depart form its own previous decision when it appeared right to do so;
[2] 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;
[3] if a decision were plainly wring it would cause as much injustice if the court were to leave it unreserved; and
[4] 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 [1959] 1 MLJ 193 [TAB 6]; See also Adzhaar Ahmad v Public Prosecutor [1996] 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.
[11.02 a.m.]
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.
Anwar Ibrahim Sodomy II – The Recorded Truth – 06 Jun 2011 June 9, 2011
Posted by malaysianstory in Anwar Ibrahim, Najib Tun Razak, Sodomy II, Transformation in PKR.Tags: Anwar Ibrahim, Malaysian Story, Mohd Saiful Bukhari, Sodomy II
1 comment so far
Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak:
PP: Semua hadir
PB: KS, SN, Dato’ Param Cumaraswamy
WB: Zambri Idrus (for complainant)
AI hadir
[9.16 a.m.]
Permohonan Jenayah 214-128-2011
KS: My Lord, there is an application before your Lordship. This is an application impugning the neutrality of this court in that YA has made certain conclusions at the close of the prosecution before calling upon the applicant to enter upon his defence on the ground of prejudgment amounting to bias and therefore calling upon YA from further presiding at the trial.
It is submitted at the outset that an application to disqualify a judge on the ground of bias consequent upon prejudgment does not amount to contempt of court. It has been held a judge must approach such an application without being defensive or resentful. The candour on the part of the judge in expressing his reasons for a decision is to be defended, then candour on the part of the litigant has likewise to be expected (see Tan Kim Hor v Tan Chong Motor Company Sdn Bhd & Ors [2003] 2 CLJ 434 [Tab 1]).
It is submitted that the court has misdirected itself on the standard of proof on the prosecution in relation to the application of the maximum evaluationtest to the evidence of PW1 and therefore being guilty of prejudgment and bias.
In handing down the decision at the close of the prosecution case the court has dealt with the evidence of PW1 at length after bearing in mind what was said by Lord Hailsham in PP v Killbourne [1973] 1 All ER 440 @ 425,
‘Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible a witness testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness’s testimony falls of its own inanition the question of his needing, or being capable of giving corroboration does not arise.’
After setting out the above extract from Killbourne the court went on to say,
‘Realising the fact that the charge against the accused hinged on whether the evidence of PW1 could be accepted or not, it was not a surprise the defence had, either cross-examination of PW1 or in their submission, tried to paint a picture as someone who has zero credibility and thus his evi could not be believed and must be rejected.’
Obviously the court considered PW1’s evidence as fundamental towards proof of the charge against the applicant and, it was for this reason, that the court rook pains to minutely set out his evidence in the written decision at the close of the prosecution case. It is pertinent to note the court came to the following set out at page 43-44,
‘Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses tat could suggest what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute 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 facts required to prove the charge against the accused.’
The court relied specifically on Looi Kaw Chai & Anor v PP [2003] 1 CLJ 754 [Tab 2] and adverted to it in the course of its decision at page 35-37 as follows,
‘At the close of prosecution case what was needed to be proved was a prima facie case. Under Section 180(4) of Criminal Procedure Code a prima facie case is said to be made out when the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.’
As was held in the case of Looi Kow Chai & Anor v PP [2003] 1 CLJ 754, in determining whether prosecution had successfully established prima facie case or not, the court must subject the prosecution’s evidence to the maximum evaluation. It was held in that case:
‘The correct test to be applied in determining whether a prima facie case has been made out under s.180 of the Criminal Procedure Code (and this would apply to a trial under s. 173 of the Code) is that as encapsulated in the judgment of Hashim Yeop Sani FJ (as he then was) in Dato’ Mokhtar bin Hashim & Anor v. Public Prosecutor. Therefore, a judge sitting alone under s. 180 of CPC must subject the prosecution evidence to maximum evaluation and ask himself the question, ‘If I decide to call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution 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 b called did not mean that the prosecution had to prove its case beyond reasonable doubt at this intermediate stage (see pp.80H-I, 81D-E, 85E0; Dato’ Mokhtar bin Hashim & Anor v PP [1983] 2 MLJ 232 followed.’
In Looi Kaw Chai, the Court of Appeal adopted what was said by Vincent Ng J (as he then was) in PP v Ong Cheng Heong [1998] 6 MLJ 678@691 [Tab 3] in relation to the amendment (Acts A979) to the Criminal Procedure Code as follows:
‘Thus to me, maximum evaluation simply means evaluation, on a prima facie basis, of each and every essential ingredient of the charge as tested in cross-examination. In other words, maximum evaluation connotes quantitative rather than qualitative evaluation of the evidence; with focus more on the evidential burden in terms of evidence led rather than the persuasive burden in terms of qualitative degree of proof. What then constitutes a ‘prima facie case’? ‘Prima facie’ means on the face of it or at first glance. To me, in the light of Act A979, perhaps the most appropriate definition of a prima facie case’ could be found in the Oxford Companion of Law (p 987), which has it as:
‘A case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive.’
It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered ad which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected. (Emphasis added.)’
Obviously the court did not have regard to what was said by Vincent Ng J in Ong Cheng Heong as emphasized above. It is undisputed PW1 gave evidence under oath to tell the truth, the whole truth, and nothing but the truth. By concluding PW1 was a truthful witness at the close of the prosecution case, the court obviously considered his evidence to be conclusive, namely it was the truth, the whole truth, and nothing but the truth.
Conclusive is defined as ‘decisive; convincing; authoritative. Irrebuttable (as conclusive evidence. (see p 945 P. Ramanathan Aiyar’s Advance Law Lexicon, 3rd Ed. [Tab 4].
It follows PW1’s evidence has been accepted by the court as irrebuttable evidence. If this is the position and it is then clearly the provisions of section 182A(1) of the Criminal Procedure Code which state:
‘At the conclusion of the trial, the court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.’
Would be incapable of fulfillment which in effect, would amount to prejudgment of the guilt of the applicant, which would demonstrate bias on the part of the court at the close of the prosecution case, meaning, the applicant would not be in a position to be afforded a fair trial.
It is worthy of not that Looi Kow Chai, and consequently by implication, Ong Cheng Heong, have been adopted in Balachandran v PP [2005] 2 MLJ 301 @ 316 [TAB 5] and lately in Magendran Mohan v PP [2011] 1 CLJ 805 [TAB 6].
The correct test to apply would be the real danger of bias test as enunciated by the House of Lords in R v Gough [1993] 2 ALL ER 724 [TAB 7] and followed by the Federal Court in Mohd Ezam Mohd Noor & Ord v Ketua Polis Negara [2001] 4 CLJ 701 [TAB 8].
With the court having accepted the evidence of PW1 as irrebuttable, there is a real danger of bias following the court’s prejudgment of the evidence of PW1 as being true at the close of the prosecution’s case as opposed to the mandatory provisions of Section 182A(1) of the Criminal Procedure Code, which require the court to consider all the evidence before it at the conclusion of the trial to decide whether the prosecution has proved its case beyond reasonable doubt against an accused person.
Under the circumstances, the applicant is entitled to prayers (1), (2) and (3) of the notis usul herein. In the alternative, for the submissions which follow, the applicant is entitled to an acquittal and discharge with unconditional release.
In Lee Kwan Woh v PP [2009] 5 MLJ 301 [TAB 9], the Federal Court had, in relation to what constitutes a fair trial, occasion to say as follows,
‘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. It is also clear from the authorities that it is a fundamental right guaranteed by Art 5(1) that a person’s life or personal liberty may not be deprived save in accordance with the state action that is fair both in point of procedure and substance.’
In Shamim Reza bin Abdul Samad v PP [2009] 6 CLJ 93 [TAB 10], the Federal Court @ 98 sets forth the following significant passages,
‘In Lee Kwan Who v PP [2009] 5 MLJ 301, this court held that the fundamental liberties expressed in the constitution must be read in a prismatic fashion to discover the right submerged in the wider concepts expressly guaranteed. This court also affirmed as accurate the following statement of the law by Edgar Joseph Jr. J (as he then was) in [TAB 11]: PP v Choo Chuan Wang [1992] 2 CLJ 1242
‘Article 5(1) of our Constitution does imply in favour of an accused person the right to a fair hearing within a reasonable time by an impartial court established by law. It follows that if an accused person can establish a breach of this right then, in the words of Sandhawakua CJ in Madheshwardhari Singh v The State A1R 1986 (Pat) 324, he would be entitled to an unconditional release and the charges leveled against him would fall to the ground. We therefore accept that the right to a fair trial is a constitutionally guaranteed right.’
This Federal Court has given its stamp of approval to what was said in Choo Chuan Wang in Lee Kwan Woh and Shamin Reza.
In our case, there is clear evidence of prejudgment and bias. It must follow from this, in view of what was said in Choo Chuan Wang, the applicant is in fact entitled to an unconditional release with the charges leveled against him falling to the ground.
This relief squarely comes within the omnibus prayer in the notis usul, namely, ‘Apa-apa perintah lain yang difikirkan wajar dan sesuai oleh Mahkamah Yang Mulia ini’.
The issue we raised is my Lord, something which has not been raised before. Something that your Lordship must and should take time to carefully consider and ought not to dismiss it. We pray that this application be allowed in terms in the notis usul. Much obliged.
MY: My Lord, before I answer my learned friend I want to make an observation. This is the 3rd time that my learned friend is applying to recuse your Lordship. I think by itself it should be fine for this case to be in the Malaysian Book of Record because I know not of any other case where the defence has persistently apply for the judge to be recused on whatever ground whether with merits or not [] YA, this application is filed by my learned friend to have your Lordship to be recused on the ground that you have prejudged the case on the accused and therefore you are bias against him. The applicant also apply for the case to be heard de novo and the other two prayers plus the fourth prayer for any order which this Honorable Court deems fit.
The basis of the application is found in the affidavit of Dato’ Seri Anwar Ibrahim supporting this motion. If I may refer to paragraph 5 of the affidavit and read it:
“Saya adalah dinasihatkan oleh peguamcara saya, nasihat yang saya percayai adalah tepat dan benar bahawa dalam Alasan Penghakiman oleh Y.A Dato’ Mohd Zabidin bin Mohd Diah, di antara lain, telahpun menyatakan, di muka surat 43-44 seperti berikut,
‘Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses that could suggest what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute 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 facts required to prove the charge against the accused.’”
Then after referring to Looi Kow Chai & Anor v PP and the two cases which my learned friend produced in his submission, at para 8:
“Saya adalah dinasihatkan oleh peguamcara saya, nasihhat yang saya percayai adalah tepat dan benar bahawa dengan membuat penemuan (finding) seperti berikut,
‘He had truthfully and without embellishment or exaggeration in his evidence narrated in minute 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 facts required to prove the charge against the accused.’
Y.A. Hakim Dato’ Mohd Zabidin Bin Mohd Diah telah membuat satu penemuan konklusiff dan dengan ini memutuskan pihak pendakwaan telah ‘proved their case beyond reasonable doubt as to the guilt of the accused at the close of the case for the prosecution’ yang telahpun mengakibatkan peruntukan mandatory dalam seksyen 182(A) Kanun Acara Jenayah menjadi sia-sia (nugatory).”
My Lord, this application obviously is based on one this passage, one paragraph out of 180 paragraphs contained in your ruling at the close of the prosecution case. It’s a 68 pages judgment with 180 paragraphs and my learned friend is relying on one paragraph to say that you had prejudged the case.
When those words in one passage or one paragraph is taken out of context and considered in isolation it may give the wrong impression to the public or the uninformed public or to the [] that the judge in fact had prejudged the case against the accused. When it is done this way taking out the context then it is difficult for us to believe or to accept that this application is made bona fide. It is difficult even to accept that this application is made out of genuine belief that your Lordship has been biased against the accused.
Now, the question is, is there a prejudgment? Or had your Lordship been bias? The answer can be found in your own judgment at the last page, page 68, paragraph 183,
“Based on all the above reason I find the prosecution through the evidence of PW1 which had been corroborated in material particulars had proved all the facts required to establish all the ingredients of the charge. I find a prima facie case not a beyond reasonable doubt case as suggested by Dato’ Seri Anwar Ibrahim in his affidavit as defined under S. 180 of the Criminal Procedure Code had been made out against the accused. Therefore the accused is called to enter his defence.”
May I my Lord refer to S. 180 (4) of the Criminal Procedure Code,
“(4) For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.”
So what your Lordship is saying is there is credible evidence. At this stage, at the close of the prosecution case there is credible evidence establishing all the facts required to prove all the ingredients to bring home the charge under S.377B of the Penal Code. Nothing less, nothing more. That’s all. Credible evidence.
And to see whether or not that passage refered to by Dato’ Seri Anwar Ibrahim in his affidavit amounted to a prejudgment we must look into the context it appear. It is without doubt my Lord those passage appear during discussion whether or not PW1 is a credible witness and his evidence is credible evidence.
If I may invite your Lordship to paragraph 104 of your judgment…Before that, under the subheading “At The End Of The Prosecution Case”, this is after your Lordship had set out all the evidence, relevant evidence adduced by the prosecution witnesses,
“At the close of the prosecution case what was needed to be proved was a prima facie case. Under S. 180 (4) of the CPC a prima facie case is said to be made out against the accused when the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction as held in the case of Looi Kaw Chai.”
At paragraph 105, you set the brief charge of the accused.
At paragraph 106 this what your Lordship wrote,
“The prosecution relied on PW1’s evidence to prove its case where PW1 testified he was at the place mentioned in the charge and while he was there the accused introduced his penis in PW1’s anus until the accused ejaculated.
This evidence from PW1 if accepted clearly establish 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 witness and whether his evidence as to what transpired between him and the accused in the unit 11-5-1 was true and could safely be relied on. If the court finds PW not true, not to be credible then the accused had to be acquitted without having to look for corroborated evidence to support PW1’s evidence.”
So what follows is beyond discussion in evaluating whether or not PW1 is a credible witness and whether or not his evidence could be relied in the sense that he is credible.
If I may refer to paragraph 109,
“En. Karpal submitted while PW1 insisted that the incident occurred without his consent PW1 never tried to escape although he had ample opportunity to do so. PW1 instead followed all the instruction given by the accused. PW1’s action of eating and drinking after the incident, did not try to get help from the occupier of unit 11-5-2, did not complain to the security guard, did not immediately lodge police report and attended PKR’s function the next day did not reflect the attitude of someone who had been sodomised by the accused. Therefore according to the counsel PW1 had lied when he said in his police report the incident occurred without his consent thus PW1’s entire evidence could not be believed and must be rejected. Learned counsel urged the court not only to reject PW1’s evidence but to also direct the Public Prosecutor to charge PW1 under S. 195 of the Penal Code. In other words what the defence was saying since PW1 testified that the sodomy performed on him was without his consent but the same time he failed to run away from the place of incident, failed to ask for help from the occupier of the unit 11-5-2, did not complain to the security guard, did not make police report immediately – it follows that PW1 not only had lied when insisting he did not consent to being sodomised but he also fabricated false evidence with intention of procuring the accused’s conviction for an offence of sodomy which never took place.”
From paragraph 104 until paragraph 125 is all discussion whether or not PW1 is a credible witness. 21 paragraphs in all, just the evaluation on his evidence.
At paragraph 114 after commenting the failure and all that, your Lordship wrote this,
“Based on those facts and circumstances, PW1’s failure to run away, to complain to people in unit 11-5-2, to lodge police report immediately is understandable. It could not be the basis to find PW1 to be an incredible witness.”
Then at paragraph 115,
“After finding that PW1’s evidence is not affected the next question is whether the evidence itself [] PW1 showing that the accused introduced his penis into Pw1’s anus could be accepted as credible and as such it is safe for the court to rely on it to call the accused to enter his defence.”
The crucial passage is at paragraph 121,
“In our case beside 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 state vastly and consistently describe in detail how the accused introduced his penis into PW1’s anus with the aid of lubricant. Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses tat could suggest what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute 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 facts required to prove the charge against the accused.”
This passage itself would show that it is not conclusive because your Lordship said “I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.”
Then at paragraph 125,
“It was contended by the defence that PW1 was not a truthful witness and his evidence should be rejected outright and the court need not have look further for further evidence as I had stated earlier in the judgment. 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 corroborative of his evidence.”
With all those paragraphs it will appear that this discussion about PW1 being truthful and all that, first it is in response to the submission suggesting that this witness is not truthful. When the defence said this witness has lied, has fabricated evidence and not a truthful witness and the judge hold otherwise so what is the judge supposed to say? What is the opposite of not truthful? But whatever it is still, it is an evaluation to arrive at whether or not he is credible and that evidence is also credible. And that is reflected in paragraph 125.
It will appear if ever anybody to think that the phrase “beyond reasonable doubt” is there actually eventhough it is not written, it is must be in reference to beyond reasonable doubt evidence. Because your Lordship had never said beyond reasonable doubt case but you have subjected all the evidence of the witnesses, their credibility and their version to the maximum evaluation and this is something that Looi Kaw Chai and all the cases before it had said that the judge is required to do.
May I first refer to the case of Looi Kow Chai & Anor v PP [2003] 2 MLJ 65, tab 12 of the first bundle, J Gopal Sri Ram other than referring to the case my learned friend referred to, PP v Ong Cheng Heong and PP v Saare Hama & Anor also refered to this particular that can be found in the last paragraph of page 84 case of PP v Mohan Singh,
“Lastly, in Public Prosecutor v Mohan Singh [1999] 4 CLJ 620; Pendakwa Raya v Mohan Singh a/l Lachman Singh [1999] MLJU 218, Wahab Patail J expressed his view upon the approach to be taken by a court when deciding whether the prosecution had made out a case under s 180 of the CPC. He said:
I conclude then that the prosecution must be in a position to say:
(a) at the end of the prosecution case, that on the basis of the evidence it has advanced, and tested by cross-examination, it has advanced evidence beyond reasonable doubt in respect of all the elements of the charge;” and to this Gopal Sri Ram J agreed.
And then at page 83 of the same judgment at para D, the court refered to the case of Public Prosecutor v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1,
“Augustine Paul J made the following observation which has since received approval sub silentio from the Federal Court (see [2002] 3 MLJ 193):
A prima facie case arises when the evidence in favor of a party is sufficiently strong for the opposing party to be called on to answer. The evidence adduced must be such that it can be overthrown only by rebutting evidence by the other side. Taken in its totality, the force of the evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. As this exercise cannot be postponed to the end of the trial, a maximum evaluation of the credibility of witnesses must be done at the close of the case for the prosecution before the court can rule that a prima facie case has been made out in order to call for the defence.”
and that is exactly what your Lordship had done, subjecting the evidence to maximum evaluation to determine the credibility of the witnesses. I did not see anything wrong with the use of the word “truthful”.
And my Lord, the passage that I read from the judgment of Wahab Patail J is not something new. In the Federal Court of Tan Boon Kean v PP [1995] 3 MLJ 514, Azmi J had occasion to talk about what is a prima facie case and what is prima facie evidence.
At paragraph E of page 529 this is what the judge had to say,
“As distinct from a prima facie case, Sarkar on Evidence at p 45 defines ‘prima facie evidence’ as ‘evidence which, if accepted appears to be sufficient to establish a fact, unless rebutted by acceptable evidence to the contrary. It is not conclusive’.
This is what Vincent Ng J say. It is not conclusive. Do you now why it is not conclusive? In that case it says “in the absence of any evidence to the contrary”. That means without more at this stage can you say? So the judge went on further and said,
“‘Prima facie’, means on the face of it or at first glance. So, ‘a prima facie case’ is a ‘ case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive’ (see the Oxford Companion to Law at p 987). ‘Prima facie evidence’ is evidence where ‘a party’s evidence in support of any issue is so weighty that no reasonable man could help deciding the issue in his favour in the absence of further evidence’ (see Cross on Evidence(2nd Ed) at pp 24 and 25; and also per Wee Chong Jin CJ in Gan Soo Swee & Anor v Ramoo [1969] 1 MLJ 59 at p 61). In our view, under s 180, a prima facie case is one which is established by sufficient beyond reasonable doubt evidence and can be overthrown only by rebutting evidence adduced by the other side, so as to cast a reasonable doubt on the prosecution case as to the guilt of the accused.”
Even the last sentence there it appear that at the close of the prosecution case you have beyond reasonable doubt evidence to prove the guilt which can only be rebutted by other evidence which cast doubt to that guilt. So what is wrong with that?
Saying that the facts proving all the ingredient of the charge had been proved by beyond reasonable evidence is different from saying that the case had been proved beyond reasonable doubt. And all the discussion from paragraph 104 to paragraph 125 is all to determine whether or not there is evidence that is free from doubt which if accepted will prove the facts needed to constitute all the ingredients of the charge under S.377B Penal code.
The question is if my learned friend says that “No”, it simply means the case had been proved beyond reasonable doubt. Even at this intermediate stage even if that is the case, it is my submission that it is still not wrong. I said this because the evidence that constitute a prima facie case will be the same evidence that after having heard the defence the court will rely on whether or not the court can say the case have been proved beyond reasonable doubt. It is the same evi, nothing more. The prosecution is not going to adduce anymore evidence after that. It is the same evidence.
So what the court in Looi Kaw Chai said is this, “Am I prepared to convict him if he remains silent?”. Meaning you must have beyond reasonable doubt evidence proving all the facts needed to prove all the ingredient of the charge and if he remains silent this evidence that I say amounted to a prima facie case is the same evidence that will be converted to prove beyond reasonable doubt.
The only reason the court says you have to postpone it, “Don’t say it that your case have been proved beyond reasonable doubt” is because there are 2 stages in the trial, the prosecution case and the defence case. If the defence adduce evidence then you wait until the end of the defence and then consider the prosecution case in the light of the defence evidence and see whether or not this prima facie has achieved proof beyond reasonable doubt. But in the case where the accused elected to be silent, what happen? What kind of evidence that we must have in order to convict him if he remains silent? It is that evidence, beyond reasonable doubt evidence which become proof of beyond reasonable doubt case.
If I may invite your Lordship again to Looi Kaw Chai starting from page 78 the last paragraph where Gopal Sri Ram J refers to the majority judgment in Arulpagasan , a 7-man-panel in deciding what amounts to a prima facie case. The standard of proof in a prima facie case and the minority judgment handed down by Edgar Joseph FCJ.
At page 79, paragraph C this is what the court says,
“We find that a careful reading of the majority view and the minority view respectively in Arulpagasan in reality and for all practical purposes produces the same result.”
What did the majority view says in Arulpagasan? At page 80 the judge referred to the judgment of Edgar Joseph FCJ what in Arulpagasan and referring to page 52 this is what he said,
“Furthermore, if the onus on the prosecution at the close of its case, is to establish a ‘mere prima facie case’, the test to be applied is a minimal evaluation of the prosecution’s evidence to ensure that it is not inherently incredible (see Haw Tua Tau v PP). Whereas, if the onus on the prosecution at the close of its case, is to establish a case ‘beyond all reasonable doubt’, then the test to be applied to the prosecution’s evidence is a maximum evaluation of the prosecution’s evidence, which calls for ‘a more rigorous test of credibility’ (per Lord Diplock in Haw Tua Tau at p 54G), in order to answer the question: if there is no more evidence, has the prosecution proved its case beyond all reasonable doubt? (See PP v Fong Ah Tong & Anor [1940] MLJ 240). (Emphasis added.)”
This is what Edgar Joseph FCJ said. If there is no more evidence. So at close of the prosecution case this is what your Lordship has to ask : if there is no more evidence, has the case been proved beyond reasonable doubt? Your Lordship didn’t say it but they said your Lordship says it. But if it is true you said it then what Gopal Sri Ram J said at paragraph F is this,
“It would appear that a comparison between the passage earlier quoted from the minority judgment of Mohd Azmi FCJ and that of Edgar Joseph Jr FCJ, reveals no serious difference of opinion between them as to rigour with which the prosecution’s evidence is to be examined. Hence, it is our respectful view that the difference of opinion, if any — and we hasten to add that we are unable to see any — between the majority and minority in Arulpragasan is not one of substance but of mere form.”
So he is not saying that Arulpagasan is wrong. Of course he referred to the case of Dato’ Mokhtar Hashim v PP.
With regard to the cases that my learned friend referred to i.e. PP v Ong Cheng Heong [1998] 6 MLJ 678 and PP v Saare Rama & Anor [2001] 4 MLJ 480 this is what the judge has to say at paragraph H of page 84.
“Although we might have expressed the test in different words, we agree with the formulation of the test in Ong Cheng Heong and Saare Hama. In our judgment, these two cases accurately set out the approach that is to be adopted under ss 173(f) and 180 of the CPC at the conclusion of the prosecution’s case.”
So he didn’t say it. This is how I said it but it is formulated differently in the other two cases and both are actually the same but the standard of proof at the close of the prosecution case is further explained in the case of Balachandran v PP [2005] 2 MLJ 301 which was decided 2 years after Looi Kaw Chai & Anor v PP. May I just refer to holding no. 5 at page 303 of the judgment,
“As the accused can be convicted on the prima facie evidence it must have reached a standard which is capable of supporting a conviction beyond reasonable doubt. However it must be observed that it cannot, at that stage, be properly described as a case that has been proved beyond reasonable doubt.”
See? The court is playing with the word. This is what it actually is. But you don’t describe it that way. Why? Because,
“Proof of beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt, the other refers the evidential burden on the accused to raise a reasonable doubt. Both these burdens could only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s 182A(1) of the CPC. That would normally be the position where the accused has given evidence.
However, where the accused remains silent there will be no necessity to re-evaluate the evidence in order to determine whether there is a reasonable doubt in the absence of any further evidence for such a consideration. The prima facie evidence which was capable of supporting a conviction beyond reasonable doubt will constitute proof beyond reasonable doubt (see para 23).”
So it said the standard is that high, it’s beyond reasonable doubt but you don’t describe it as such. That’s all.
In our case, we are saying that your Lordship at no time especially state that the case has been proved beyond reasonable doubt. At the most after being subjected the witnesses and the evidence to maximum evaluation the most you can say that your Lordship had hold that there is beyond reasonable doubt evidence that the facts consisting the ingredients have been proved.
Just as a matter of completeness, YA may I then refer to two other cases? The first case is PP v Saimin & Anor [1971] MLJ 16. In PP v Saimin & Anor, the court says in order to convict the version of the prosecution must be true even if he remains silent. You must say it is true even at that stage. How can the court can say that the prosecution must be true if he holds that the witness is not truthful? If I may read at tab 3, page 17, paragraph F at the left. This is what Sharma J has to say,
“A conviction cannot be sustained even if the court is satisfied that the prosecution story “may be true” unless and until it is found that the prosecution story “must be true”.”
So this finding must be made at the close because the accused may want to remain silent. And the court can only convict if he says that this, the story is true. Would that conflict with what my learned friend is saying? The answer can be found in Mah Kok Cheong v R [1953] 19 MLJ 46, tab no.2.
What is the burden on the defence? The burden is to raise reasonable doubt as to the truth of the prosecution story. If I may read what Spenser Wilkinson J has to say at page 47,
“There are really three classes of criminal cases to be considered:—
(a) The ordinary case where direct or circumstantial evidence is given to prove that the accused committed the offence charged. In such cases if the defence raises a reasonable doubt as to the truth of the prosecution case or as to the accused’s guilt there will be an acquittal, and if no such doubt is raised, a conviction.”
So that is what they have to do: to raise a reasonable doubt as to the truth or the accused’s guilt, meaning at the conclusion of the prosecution case the court must be able to say in the absence of any of the contrary he is guilty. The story must be true. Then it’s their duty to raise doubt as to the truth of that version of the prosecution or to the guilt of the accused.
At page 47 on the right hand column, the second last paragraph,
“I thought the decision in Mohamed Yatim’s case had made the position clear, but from various cases recently before me it does not appear to have done so. I must, therefore now repeat that in ordinary criminal cases such as perjury, forgery, cheating and so on where no question of unlawful possession of property arises all discussion as to what might reasonably be true or what is consistent with innocence are both irrelevant and misleading. Almost every defence put forward by an accused is consistent with innocence or it would not be put forward; nor would it be a very good defence if it could not reasonably be true.
But whatever may be the defence to a criminal charge the sole question which a Subordinate Court has to ask itself at the conclusion of the trial is — Does the defence raise a reasonable doubt as to the truth of the prosecution case or as to the accused’s guilt? I say “the sole question” advisedly because in this country the accused will not have been called on for a defence at all unless the prosecution has first proved a case. In this respect our criminal procedure differs from that in England and this difference makes it necessary to apply with caution the English decisions which almost all deal with trials by jury.”
Again I would like to say this, it is our submission that at no time anybody who read your judgment or your ruling, the whole of it in particular where you deal with the evidence of PW1 and his credibility from paragraph 104 to 125 that your Lordship says that this must be true and therefore that’s the end of it. And then at paragraph 183 all your Lordship says is that : based on all this a prima facie case as defined under S.180(4) of CPC has been proved. That’s all.
Now, I’m coming to the 2nd part of my submission, “Bias”. The second volume. My learned friend is saying that your Lordship is bias therefore he couldn’t have a fair trial because they are prejudged. And we are saying that you have not prejudged. Whatever your ruling is your ruling, a ruling made at the close of the prosecution case. And you know there could be evidence on behalf of the defence to raise doubt as to the truth of the prosecution case or as to the accused’s guilt.
There could be evidence adduced on behalf of the defence to raise doubt as to the truth of the prosecution’s case. In the case of Che Minah binti Ramli, the last case in our second bundle, if I may refer to page 207 first, holding number 3:
“It was an acceptable proposition to say that a judge’s impartiality is presumed and any party seeking disqualification must establish the circumstances and situations to justify the disqualification of the judge. There is a strong presumption of judicial impartiality. The standard of reasonable apprehension of bias must necessarily refer to an apprehension based on serious grounds. Each case must therefore be examined contextually and the inquiry would be based entirely on the facts. The appeal related to the question of leave and the issue on the fatwa (edict) and its ramifications had no role to play at all (para 27(a) & (b).”
Then, at page 219 of the report, para 31, the Court of Appeal’s judge referred to the case of Liteky v US [1994] 114 S Ct 114 which at p1155, Scalia J, defined the words ‘bias’ or ‘prejudice’ in this way:
“The words (bias or prejudice) connote a favourable or unfavourable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant’s prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant’s prior criminal activities that he will vote guilty regardless of the facts).”
When witness’s evidences are corroborated in every step of the way, in material particular: the witness said I was working with Anwar, then Ibrahim Yaakob said yes. He said he was asked to go to the unit of the condo on the said date and he was asked to send documents – Ibrahim Yaakob confirmed that. He said he was there in fact, in the vicinity – the CCTV confirmed that. Then he was said he was sodomised – the medical and the chemist report confirmed that.
So what is so wrong with your finding that you have been alleged to act biased and prejudge? That is the only logical conclusion. You are justified to say that this witness is truthful, because he is corroborated by independent witnesses, and one of whom is DSAI’s chief of staff.
Then, back to the report at page 224, para 47:
“There is no need to reaffirm the well-settled principle of the impartiality of the courts of justice. This principle has been a matter of common knowledge across the common law world over the past decade or so. The fundamental belief that those who adjudicate must always do so without bias or prejudice has withstood the test of time. Cory J, in R v S (RD) [1997] 3 SCR 484, at para 106 quoted R v Bertram [1989] OJ No 2123 (QL) (HC) when defining bias or prejudice: that definition reads as follows (and I quote): a leaning, inclination, bent or predisposition towards one side or another or a particular result”.
That means (in defining the word bias), in advance, from the very beginning, your Lordship is influenced to decide in favour of a certain party, irrespective of the evidence or the law. And that is not the case; you decided against us or for us. So my learned friend must show in this instance, especially in this particular application before your Lordship.
If I may, refer to the case of Hock Hua Bank. In that case, the judge had already said this, during the proceeding that, the defence is incredible at one point of time , and they apply to have him recused, and yes, he recused himself, not because he deemed himself to be bias, but because he wanted to avoid allegation against himself. And when appeal, both Gopal Sri Ram and Ian Chin J said it is wrong, there he actually said that, for deciding a mareva injunction which Gopal Sri Ram said it is okay for him to look at the merit of the case. Federal Court said that it is not bias, because something will happen in the course of the trial after hearing the actual defence, he may change his mind. And that happens all the time.
And then we have the case of Alur Janggus, there are two cases of Alur Janggus. [read facts]. At both courts, both quorums said that there was no bias.
May I just refer to Hock Hua Bank YA, page 225 of the judgment, in which they were quoting this from another case: R v Liverpool City Justice, ex p Topping [1983] a ALL ER 490:
“We conclude that the test to be applied can conveniently be expressed by slightly adapting the words of Lord Widgery CJ in a test which he laid down in R v Uxbridge Justices, ex p Burbridge ( The Times, 20 June 1972) and referred to by him in R v McLean, ex p Aikens (1974) 139 JP 261 at p 266: would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible?”
This is not the person who sitting outside the court, and who was informed, or just read the newspaper or just being confronted with just that passage. This is a reasonable person sitting in court and knowing all the relevant facts: and all the relevant facts were those paragraphs that I referred to before, not reading one paragraph in isolation.
And in this case also, they referred to few English cases, at page 227 para C onwards:
“To use the words of Darling J in R v Sharman (1930) 9 Cr App Rep 130; ‘if the appellants’ and I may add, or parties, ‘are to be allowed to select the judges who shall hear their appeals,’ and I may also add, or cases, ‘the business of the court could not be carried out’.
In R v Lovegrove [1951] 1 All ER 804, Lord Goddard CJ, giving the judgment of the court (Lord Goddard CJ, Cassels and Lynskey JJ) said, at pp 804 and 805 (since it is a short judgment I have reproduced it in full):
The applicant was convicted before Lynskey J, at Bedford Assizes, and his application for leave to appeal, which has been refused by the single judge, now comes before this court of which Lynskey J is a member. It has undoubtedly been the practice recently, if the trial judge happens to be sitting in the Court of Criminal Appeal, to adjourn the case, but the question is whether that practice need be followed in all cases in future.
This matter was considered many years ago, and it was pointed out that in civil cases before the Supreme Court of Judicature Act 1873, when there was no Court of Appeal and appeals were heard by judges of the three common law courts in banc, it was quite a common practice for the judge before whom the trial had taken place, and whose ruling, indeed, might be impugned, to sit as a member of the court, even, in some cases, where he had sealed the bill of exceptions. This matter was considered in R v Sharman (alias Sutherland) (1913) 9 Cr App R 130, where an application for an adjournment was made on behalf of the appellant on the ground that Ridley J, who tried the case, was presiding in the Court of Criminal Appeal. Darling J, giving the judgment of the court, said (9 Cr App R 130):
‘I think this application ought not to be granted. After the assizes, appeals come from all parts of the country; and if appellants are to be allowed to select the judges who shall hear their appeals, the business of the court could not be carried on. Before the days of the Judicature Act, when the Courts of Queen’s Bench, Commons Pleas and Exchequer sat in court to hear appeals (of course, not criminal appeals), it was the usual practice for the judge who tried the case to be present.’
YA: Takpelah, you already cited the principle kan, you don’t need to go to the facts. That’s the position in England lah.
MY: Yes, but when we are talking about bias, we are talking about []. Whether England, US, Malaysia or India. And even in that situation, the court did not say that it is bias, and need a fair hearing.
So all in all My Lord, if I may say is this, I have observed, that this application is without merit. This application’s bona fide is questionable. And I want to say this: that this application is made to delay and derail the trial. DSAI is called to enter the defence. He must seize this opportunity to give his version of the story, which he happily gives to member of the public around the country. Now, this is his chance to give your defence under oath. So that he will be subject to cross examination just like the prosecution’s witnesses. After all, cross examination is the test of truthfulness. It is our humble submission my Lord, that this application was without merit and should be dismissed. There is no prejudgment and there is no bias on the part of your Lordship, thank you.
YA: Yes, Mr. Karpal?
KS: The allegations by my learned friend that we are delaying the trial without any substance, is a serious matter. In fact, it is amount to contempt of court. Who is delaying the trial? Is it the defence or the prosecution? That is what your Lordship ought to ask. 25 witnesses were offered to us. The witnesses offered must be in court. You can’t offer witnesses who are not in court. We have been given an opportunity to interview these witnesses in court.
What had happened in the last few weeks? Prosecution should produce those witnesses to us for interview. DSAI cannot be compelled to give evidence, his evidence is alibi, unless and until he is given the opportunity to interview the witnesses offered to us. It is not this application which delaying the trial. On the other hand, it is the prosecution which unable to produce witnesses to be interviewed, except for 5 witnesses, who are not material. What about the Prime Minister? What about his wife? Is there any arrangement up to now My Lord for these two personalities to be present here in court to be interviewed for the purpose of getting the defence ready and DSAI to give his evidence?
Let it not be forgotten My Lord that DSAI is not afraid to be in the box, in fact in this trial, he had gone into the box. There is no question that he’s being afraid. What he wants is only a fair trial. Is there any fair trial? That is the question that your Lordship needs to consider. My learned friend made complaints about this being the third application to recuse your Lordship. It doesn’t matter if hundred applications. The point is whether the application has merit.
My learned friend had given a lecture; I think he ought to go to university for that purpose, not here. He talked about beyond reasonable doubt and prima facie case. I don’t wish to lecture your Lordship. What is important is for you to look at the point in hand. My learned friend refers to paragraph 183 of your judgment. What is forgotten are pages 43-44. Your Lordship had found that PW1 is a truthful witness. We’ve given at length in the proposition which your Lordship did not consider. Let’s look at it again, Looi Kow Chai is in tab 2 of our bundle,. What my learned friend had obviously forgotten, at page 85 itself:
“If this passage is meant to suggest that the evidence led by the prosecution must receive maximum evaluation, then we would agree with it. But if what is meant is that a court ought to go further and determine whether the prosecution at the end of its case has proved the case against the accused beyond a reasonable doubt, then we find ourselves in disagreement with the learned judge in that case. In our view, subjecting the evidence of the prosecution to maximum evaluation to determine if the defence is to be called does not mean that the prosecution has to prove its case beyond a reasonable doubt at this intermediate stage.”
My learned friend was then referred to what was in PP v DSAI, can I read the last part of it. [read] – ‘at the close of the whole case’.
I come back to the main [] of the application. Your Lordship in fact did not apply your Lordship mind to it. This is in fact was in the case of Looi Kow Chai
page 84. I read this:
‘In Public Prosecutor v Ong Cheng Heong [1998] 6 MLJ 678 at p 691, Vincent Ng J expressed his view on the amendment to section:
Thus, to me, maximum evaluation simply means evaluation, on a prima facie basis, of each and every essential ingredient of the charge as tested in cross-examination’.
My Lord, if prima facie basis, your Lordship cannot tell the truthful of a witness. In fact, what has your Lordship done is invalid.
‘Thus, to me, maximum evaluation simply means evaluation, on a prima facie basis, of each and every essential ingredient of the charge as tested in cross-examination. In other words, maximum evaluation connotes quantitative rather than qualitative evaluation of the evidence; with focus more on the evidential burden in terms of evidence led rather than the persuasive burden in terms of qualitative degree of proof.
What then constitutes a ‘prima facie case’? ‘Prima facie’ means on the face of it or at first glance. ‘
So your Lordship has acted beyond this expression.
“To me, in the light of Act A979, perhaps the most appropriate definition of a ‘prima facie case’ could be found in the Oxford Companion of Law (p 987),
which has it as:
‘A case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive.’
It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered and which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected.”
By saying that PW1 is a truthful witness, your Lordship in fact had accepted his evidence, which your Lordship ought not to do at this intermediate stage because that evidence is not conclusive. By saying that the witness is truthful, the evidence is true, completely shut up the defence. It is completely nullifies the amendment to the Criminal Procedure Code; Section 182A (1).
I will continue reading what Vincent Ng J said in Ong Cheng Heong.
YA: I think you had quoted that before in your submission right?
KS: (he continues reading)
“Although we might have expressed the test in different words, we agree with the formulation of the test in Ong Cheng Heong and Saare Hama”.
I did not wish to repeat it again. So it is in our submission that your Lordship had completely shut up the defence by deciding that PW1 is the witness of truth. And that is the position My Lord, the bias is obvious. We say My Lord that your Lordship had gone beyond by what had given by the law.
Para 183 does not, and cannot completely erase what is in page 43-44. Your Lordship had clearly gone to the conclusion that PW1 is the witness of truth. I did not wish to go to cases in which my learned friend had referred in question of bias. Of course, impartiality of a judge is presumed, but this is one case where that presumption can be rebutted. In fact, destruction is placed by your Lordship yourself in coming to the conclusion that PW1 is the witness of truth. And that destruct the entire case by the prosecution. We say under these circumstances, our application ought to be accepted. Much obliged.
YA: Kita stand down for a while.
[10.34] Stand down.
[11.36] Kes dipanggil semula.
MY: Kes untuk keputusan, YA.
YA: Saya mendapati permohonan ini tidak mempunyai sebarang merit. Oleh itu, permohonan ini ditolak.
KS: My Lord we wish to appeal to this decision. We are asking for stay pending appeal to the Court of Appeal. We want to give the authority of the case of Rowstead Systems Sdn Bhd. In fact, we’ve made similar application before your Lordship, and your Lordship had relied on this case.
YA: So DPP?
MY: YA, I’m objecting to this application, because your decision is not appealable. Rowstead is no longer [] now, and the fact can be distinguish. In the case of PP v DSAI, this is the decision of the Court of Appeal. This is the appeal to recuse your Lordship from this trial.
YA: The second recusal?
MY: Yes, the second recusal. There are two judgments, one by Low Hop Bing J, and the other one is by Malik J. May I just invite your Lordship to the last page of the judgment of Malik J [read]. Then to Low Hop Bing J at page 8 para 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 the rights of the accused and is therefore not a decision within the ambit of Sec. 3 read with Sec 50(1)(a). It is only the outcome of the trial that would have the effect of finally disposing of his rights.”
And the conclusion of the decision:
“On the foregoing grounds, we unanimously sustained the preliminary objection and dismissed this appeal in limine.”
So, what we are saying is this. Your Lordship can only grant stay, if there will be appeal appropriate pending by the court. Once the Court of Appeal said that this kind of decision is not appealable, there won’t be appeal pending properly before the court, because the court has no jurisdiction to hear.
As far as Rowstead concerns, if I may just remind this Honorable Court, of the decision of Bhalip Bagwant Singh I think in 1999, when he talked about what happen when there is a conflict of decision of concurrent courts. It was held there, the latest decision overruled the earlier decision. So Rowstead in decided in 2005, and this one is decided in 2011. So I pray for the stay not to be granted and we proceed with the defence stage.
KS: My Lord, the case referred by my learned friend did not refer at all to Rowstead. This is application pertinent of the trial. I read what happen in Rowstead:
“The defendant was owned by the PAS-led Government of the state of Kelantan. The defendant had applied for the learned Judicial Commissioner at High Court (‘the JC’) to recuse himself from hearing the case involving the defendant. It was alleged that due to the JC’s previous dealings with the United Malay National Organisation (UMNO), there would be a possibility of bias if the learned JC were to hear the case. The learned JC ruled that there were no merits in the application and therefore decided not to recuse himself from hearing the case as he completely believed he could conduct the case free of any bias whatsoever. Against that decision, the defendant had lodged an appeal to the Court of Appeal. The defendant applied for a stay of the proceedings of the matter pending the decision of the appeal. The stay was not applied at the High Court but instead the application was made only at the Court of Appeal. The issue was whether the original application could be entertained by the Court of Appeal. Counsel for the applicant submitted that this court had the jurisdiction to hear the application by virtue of s 44 of the Courts of Judicature Act 1964. The second issue was whether the stay should be allowed.”
May I continue reading holding 3 under held:
“This case came under the category of non-automatic disqualification. Hence there was a need to prove whether the element of bias exists. It has to be objectively decided, based on all the facts and circumstances of the case. The more important question to be asked was whether it was proper for such decision to be made by the presiding judge against whom bias has been alleged. When a party alleges that a presiding judge is biased, and if the presiding judge himself decides he is not, such decision would infringe the rule of natural justice in that ‘one should not be a judge in one’s own cause’. This situation would come within the meaning of special circumstances (see para 13). Also in the event that a stay a proceedings was not granted and the learned JC be allowed to proceed with the hearing of this case, it would result in a waste of time and effort by all persons involved since if the Court of Appeal allows the appeal, the whole proceedings conducted by the learned JC would have to be completely expunged. In the circumstances it would be more expedient to allow a stay of the proceedings until the hearing of the appeal has been completed (see para 14).
So under this circumstance, we pray that your Lordship be bound by Rowstead. It is a Court of Appeal decision. Your Lordship had once before using this authority.
YA: But before the case of DSAI’s decision came out. Their objection is now on different issue. They said that there are no appeal lies, that’s all.
KS: That case is totally different YA. Now the issue is on bias.
YA: That case also on bias right?
KS: But that is not on stay. We are now considering stay.
YA: That case, DSAI, you alleged I was bias. So I dismissed your application. Then it went to appeal to the Court of Appeal, so they said no, you cannot appeal. Is that true? You were there I think, at the court. I was not there.
KS: My Lord, this case wasn’t referred at all in that case. Unless, the Rowstead’s decision is overruled by Federal Court, your Lordship is bound by it.
YA: And I was also bound by the case of DSAI referred by Prosecution which said that you cannot appeal.
KS: But it is not apply to the situation like this. We say that your Lordship is bound by Rowstead. We hope that your Lordship will grant what we are praying for.
YA: By the way, there is no appeal as yet. Can you give the undertaking that you will file it by this afternoon?
KS: Yes, we will file it within an hour.
MY: YA, I think I must say something right now. In Rowstead, Section 3 was not [].
KS: YA, your Lordship is in the stage of giving a decision.
YA: Never mind, I give both parties same opportunity.
MY: The recent case, my learned friend was there, and he did not even mention about Rowstead. I think the issue is simple, whether you can appeal. But the Court of Appeal said you cannot appeal. So what stay are we talking about? I did not see whether or not my learned friend will make undertaking to file appeal today, tomorrow or later, the fact still remain. The Court of Appeal had decided that they did not have jurisdiction. Section 3 has not been fulfilled. Question of stay only arises if there is an appeal, or an appeal can be properly filed pending before the court.
KS: A repetition is said by my learned friend just now. We will file appeal by this afternoon.
YA: Permohonan untuk tangguh perbicaraan dibenarkan dan kes akan disebut semula pada 13 Julai 2011. Jaminan dilanjutkan.
[11.50] Mahkamah ditangguhkan.
Anwar Ibrahim Sodomy II – The Recorded Truth – 14 Januari 2011 January 14, 2011
Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II, Transformation in PKR.Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
4 comments
Mahkamah Rayuan Malaysia
Di hadapan YA Datuk Wira Low Hop Bing, HMR
YA Dato’ Haji Abdul Malik bin Haji Ishak, HMR
YA Dato’ Ahmad bin Haji Maarop, HMR
Pihak-pihak:
PP: Semua hadir kecuali MY
PB: KS, SN, Datuk Param Cumaraswamy, Ram Karpal
[9.44 a.m.]
Rayuan Mengecualikan Hakim W09-245-2010
KS: Dengan izin YA-YA, saya ingin berhujah di dalam Bahasa Inggeris. YA, we received a notice of preliminary objection addressed to us from En. Wong Chiang Kiat yesterday. YA might want to hear the preliminary objection first.
YA: Yes. Indeed. So who will be submitting?
MHZ: I will, YA.
YA: Have you file the submission on the preliminary objection?
MHZ: Yes. I’ll be reading the full submission. YA, may I start with the grounds?
YA: Yes.
MHZ: [read submission]
This is an appeal filed by the Appellant against the decision of Justice Dato’ Mohamad Zabidin bin Mohd Diah, given on 6.12.2010, whereby, the learned trial Judge had dismissed the Appellant’s Notice of Motion dated 24.11.2010, to recuse himself (the learned trial Judge) from continuing to handle the criminal proceedings against the Appellant in Criminal Trial No. MTJ3-45-9-2009.
It must be pointed out that this is the second application filed by the Appellant to recuse the learned trial Judge in the course of this trial and we are still at the stage of cross-examination of the prosecution’s 3rd witness.
There was an earlier application filed by the Appellant on 8.2.2010, also to recuse the learned trial Judge. The said application was filed as a result of the rulings of the learned trial Judge dismissing two applications filed by the Appellant to cite Utusan Malaysia for contempt and also to issue warning to Utusan Malaysia concerning reports of the trial published in the said papers on 4th and 5th of February 2010 respectively.
KS: My learned friend should not go to the merit, but should straight away go to the preliminary objection.
YA: I agree with your learned friend. The lawyer is correct. I think you must go straight to the jurisdiction issue.
KS: My learned friend must go to the preliminary objection unless he concedes it, YA.
MHZ: I’m laying down what had happened in the lower court.
YA: The matter is in the lower court and not here. So start with page 8.
MH: [read submission]
The ruling of the learned trial Judge, in refusing to acquiesce to the Appellant’s application, to recuse himself is clearly not within the purview of the definition of ‘decision’ in section 3 of the Courts of Judicature Act 1964 (CJA).
It must be noted that the said ruling was made in the course of a trial. More importantly, it has not finally disposed of the rights of the Appellant.
It is well accepted that the rights of an Appellant to appeal against the decision of the High Court are governed by section 50 of the CJA 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 Magistrate’s 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 effected the event of the appeal or revision. (Emphasis supplied)
(2A) …
(3) …
(4) …
The word ‘decision’ as appeared in section 50 of the CJA is defined in section 3 of the same Act as follows:
“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 not finally dispose of the rights of the parties. (Emphasis supplied)
In the accompanying Explanatory Notes when the word ‘decision’ in section 3 of the CJA 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 dicadangkan untuk membantu mempercepat pendengaran kes di mahkamah bicara.” (Emphasis supplied)
YA: Can we have the english version as well?
MHZ: I refer to our the bundle of authorities, tab 9, page 2.
YA: This is the original one?
MH: Yes. [continue reading submission]
In Dato’ Seri Anwar Bin Ibrahim v Public Prosecutor [1999] 1 MLJ 321, the Court of Appeal when deliberating on the ambit of the word ‘decision’ in section 3 of the CJA, opined at p 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.” (Emphasis supplied)
Similarly in Saad Bin Abas & Anor v Public Prosecutor [1999] 1 MLJ 129, the application of section 50(2) of the CJA 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.”
In Regina v Collins [1970] 1QB 710, the Court of Appeal 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.” (Emphasis supplied)
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 CJA, would clearly preclude the Appellant from pursuing with this appeal.
Therefore, the Court of Appeal is not reposed with the jurisdiction to hear this appeal.
This Honourable Court in Dato’ Seri Anwar Ibrahim v Public Prosecutor (Court of Appeal. Criminal Appeal No. W-05-178-2010 – Unreported), 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, 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.”
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 recently also dealt with the same issue in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 6 MLJ 585, where it was explained that:
“[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.
[25] Quite apart from the explanatory statement to the Bill the definition of ‘decision’ by itself, to our mind, is sufficiently clear, and it is the duty of the court to give effect to the same. Justice demands that cases should move without unnecessary interruption to their final conclusion. That is what the amendment seeks to achieve. 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 appeal, if any, to be filed after the trial process is brought to its conclusion.
CONCLUSION
[26] 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.”
Surely, the ruling of the learned trial Judge not to recuse himself could not have been a “decision” as envisaged by section 3 of the CJA. It must be remembered that the present application is a second application by the Appellant to recuse the trial Judge. There could be many more to come. To permit the Appellant to appeal for each and every such ruling would be to permit the defence to stall ‘a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial, which was clearly forbidden by the Federal Court. (Emphasis supplied)
Applying the principles as enunciated by the Federal Court in the above case, 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 Honourable Court to dismiss the Appellant’s appeal for want of jurisdiction.
YA: So that concludes your submission on the preliminary objection?
MHZ: Yes.
YA: And also I have your skeletal submission, KS.
KS: First, as to what constitutes a final order it is important to apply the principle in Section 3. What does the amendment of Section 3 says? [read Section 3 of Courts of Judicature Act 1964. []. That would be a final order with regard to the application before your Lordship this morning.
YA: []
KS: A procedural ruling which is made to dispose the rights of the parties could not be a final matter. A procedural matter. A recusal of a judge. Does it involves the decision upon it be procedural or substantive? We say it is substantive.
We say that this court, Court of Appeal comes from a lower court. It’s a form of rehearing. Your Lordship must step into the shoes of the trial judge. We say that the recusal of the learned trial judge is a final order. The reason is this, at this stage if the learned trial judge recused himself that would have been the end of the matter. Your Lordship ought to step into the shoes of the trial court. If he would to recuse himself, that would be a final order. Just because he did not recuse himself does not mean it is not a final order. Because if he recuse himself then another judge would have to take over. That is the matter would take into the proper subjective.
There is no objection on the application we made for stay pending appeal. That would be the authority in the case of Rowstead System Sdn Bhd v Bumicrystal Technology Sdn Bhd [2005] 3 MLJ 132 which is in tab 2 of our bundle. Of course my learned friend would have taken objection on that alone. In other application pending before the court of appeal and application for stay was made it has always been the stand of the prosecutor that it is not final order and therefore stay should not be granted.
We say that Saad bin Abas had been wrongly decided. Is this strong bench brave enough to be part of the decision? What does Saad bin Abas said? It depends on this court that it is not a final order. If it goes against the prosecutor and at the end of the case defence is not called and the person acquitted, then it become a final order. And the prosecutor ought to appeal because it is a final order. What if the Court of Appeal reverses the decision that defence ought to be called? That is why I say it would be in the form of re-hearing. Your Lordship must place your Lordship in the shoes of the trial judge. Otherwise your Lordship will failed your Lordship duty as judges and going against the [] form of justice.
We say clearly this ruling made by the earned trial judge is a final order. It is for you to say that the learned judge if he recuse himself is a final order. In other words, the right of the accused will be finally determined.
The principle is enunciated in the Federal Court in Dato’ Seri Anwar Ibrahim’s case. And the principle also lay out in light term in various occasion. In fact in application in the form of Dato’ Seri Anwar Ibrahim’s trial in the High Court. Compare to here YA, under the circumstances applying these principles to the fact, or to the petition or the perspective in this application we say this court has jurisdiction to hear the appeal and therefore the court should dismissed my learned friend’s preliminary objection and proceed with the merits of the application.
YA: First, can you reply to your learned friend contention in Saad bin Abas? Your learned friend says that the decision in Saad bin Abas is wrongly decided. Secondly, on the issue of no objection during the application for stay pending appeal.
MHZ: In Saad bin Abas, decision has been confirmed and affirmed by the Federal Court in Letchumanan. Second, my learned friend raised the issue when the defence is not called then there’s a right to appeal.
YA: Wait. You said that Saad bin Abas has been affirmed in Letchumanan in Federal Court?
MHZ: Yes.
YA: What’s the citation?
MHZ: We don’t have it right now but I undertake to supply it to you later, YA. On the issue of calling of defence, of course those instances are within the ambit of the definition of the word “decision” where it is a final order and thus is a decision within the definition of Section 3 because it is a final order because the case has been finally disposed and the thus the rights of the parties has been disposed. That is the reply for Saad bin Abas.
Next, when my learned friend says that we did not object for the application of stay, there are 2 reasons, i.e. jurisdiction of this court to hear the appeal and the application of stay and that is two different issue and should be deal separately. That is my reply.
YA: Yes, KS?
KS: Art.8(1) of the Federal Constitutions provides for equality before the law and everyone is entitled to protection before the law. In other word it depends on this court to decide whether it is appealable or not. If defence is not called, and the person is acquitted, then the Public Prosecutor has the right to appeal. [] equality. Your Lordship should consider this application within the context of Art 8(1) of the Federal Constitution. There should not be discrimination between an accused person and the prosecutor.
That would be all Thank you, my Lords.
YA: We will give our major consideration on this submission and will continue at 11.00 a.m. Mahkmamah ditangguhkan kepada pukul 11 pagi.
[10.15 a.m.]
[11.02 a.m.]
YA: Kami mengucapkan terima kasih kepada TPR-TPR yang bijaksana dan peguam-peguam yang bijaksana yang telah mengemukakan hujah-hujah secara berkemahiran. Dan setelah mempertimbangkan hujah2 tersebut, ini adalah keputusan kami sebulat suara.
Secara ringkas, keputusan kami adalah berikut:
The question raised for our determination revolves around the jurisdiction to hear this appeal and the accused right to appeal on the basis of Section 50 (1)(a) and Section 3 of the Courts of Judicature Act 1964 upon the true construction of the word “decision” in Section 50(1)(a) read with section 3 of the Courts of Judicature Act 1964, we are of the view that the ruling of the learned High Court judge was made in the course of the trial and therefore outside the ambit of Section 50(1)(a) and section 3 of the Courts of Judicature Act 1964. We therefore hold that this court has no jurisdiction to hear this appeal and similarly the accused has no right to appeal at the interlocutory stage before the High Court . In those circumstances we unanimously sustain the prosecution preliminary objection and dismis the appeal by the accused.
MH: Terima kasih, YA.
YA: Mahkamah ditangguhkan.
[11.06 a.m.]
Anwar Ibrahim Sodomy II – The Recorded Truth – 25 November 2010 November 25, 2010
Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Transformation in PKR.Tags: Anwar Ibrahim, Dato’ Mohamad Zabidin Mohd Diah, Malaysian Story, Sodomy II
2 comments
******* The Full English Version (In Blue) After “+++++++++++”
Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak:
PP: Semua hadir kecuali MY, NH dan MM
PB: KS, SN, Datuk Param Cumaraswam (Dato’ CV Prabhakaran, Ram Singh, Marissa, Radzlan tidak hadir)
AI hadir
[9.14 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.20 a.m.] Pihak-pihak keluar dari Kamar Hakim.
[9.23 a.m.]
Permohonan 44-258-2010
MHZ: Pihak-pihak yang sama kecuali Datuk Mohd Yusof.
KS: My lord, the application before your Lordship this morning has very serious implications and consequences.This is an application my Lord where your Lordship’s role as a trial judge is under scrutiny. That being the position, my Lord your Lordship would have got to go the extra mile to ensure that your Lordship objectively looks at the matter.
In an application like this, a judge takes his own cause. Ordinarily YA, a tribunal must be objective and must not be personally but there is an exception. This is an exception out of necessity. YA there had been in the past various application or when it is necessary to make application of the recusal of the judge.Some judges in the past would take it upon themselves, when the application is made they themselves voluntarily step down from further hearing the case. They do that in line with public policy.
I take your Lordship to one instance where a judge took into account public policy, very senior judge Datuk KC Vorah. I take your Lordship to the case of [] in tab 10 in our bundle of authorities. His Lordship when the application was made for his Lordship to recuse himself had this to say. [read : Public policy requires that in order that should be no doubt about the purity of the administration of the justice. Any person who has take part in it should not be in the position when he is suspected of being bias]. I take your Lordship to what the judge said in the course of his judgment. He refer to the case of Allison v General Counsel [] as regards to the proposition I refer to your Lordship. He then refers to the case of []. [read: …in the administration of justice the judges and Magistrate should not only be fair and impartial but should also appear to reasonable persons to be fair and impartial that neither should an accused person or a litigant have any reasonable ground for supposing that the judge or a Magistrate who is trying the case in which their concern is bias in their favor or against them. The classic words of Chief Justice in R v Sussex. It is not merely of some importance but a fundamental importance that justice should not only be done but manifestly be carried out or manifestly be seen to be done. In all these circumstances at the instance of the defence’s counsel I agree that it would not be fair for me to hear the case. I disqualify myself from hearing this case].
There have been instances where judges have voluntarily recused themselves without even going into elaborate authorities for the purpose of not []. YA, a judge take an oath of office. He is required by the oath of office to administer justice without fear or favor. But that does not mean that the judge can do as he pleases. And get the a whole of reasons for not recusing himself.
The law is there, my Lord. In fact judges are now subject to certain regulations which rule their conduct. I take your Lordship to the regulations which has come into force recently, i.e. Judges Code of Ethic 2009. I take your Lordship to tab 2 of our bundle attached to it. The code of ethics came into operation on the 1st of July 2009. [read: A Judge can be subjected to disciplinary proceeding in the event he is bias or act in prejudice of an accused person]. I take your Lordship to the Code. They do comply with this code. [read: A judge shall comply with the provisions prescribed in this Code. A breach of any provisions prescribed in this Code shall render the judge liable to disciplinary proceeding in accordance with the provisions of this Code. At the bottom of the page YA, [] [read: the judicial duty of the judge shall take precedence over all other activities]. And we have YA then what is relevant and necessary for your Lordship to carefully consider. [read: a judge shall perform his duties without bias or prejudice]. That is important, YA. A judge shall perform his judicial duties without bias or prejudice.
I’m not threatening your Lordship that this matter will be taken up in the event it is found that your Lordship is bias or would be bias and will be prejudice against the accused. I give your Lordship a gentle reminder. A gentle reminder that your Lordship would carefully consider.
Whether here if your Lordship were to insist despite being bias and despite being prejudice to carry on to be prepared for the consequence. In the past YA, a judge for misconduct was tribunalised. The tribunal was set up by the King. But this year what has come into force is the Judges Ethics Bill. An Act rather, no more Bill. Judges Ethic Committee. That committee has the jurisdiction and power to try a judge for misconduct which does not end up to removal from the judicial office but less than removal from the judicial office, the Judges Ethics Committee has the jurisdiction to subject a judge for disciplinary proceeding. What is important also is the principle of judicial conduct 2002, that would be tab 2. It is a principle where rules made in respect of the judicial conduct, the principles relating thereto in respect of judges trying the proceeding.
I take your Lordship to what is the importance for the value of impartiality under the heading “impartiality” page 3. [read: A judge shall perform his or her judicial duties without fear, bias or prejudice]. There it is YA, bias or prejudice. But what is important is to note that these regulations are refer, in fact principles are agreed to by a number of jurist among them is Dato’ Param Cumaraswamy. I take your Lordship to page 9 under explanatory notes. [read: At his first meeting in Vienna in April 2000 on the invitation of United Nation Centre for International Crime Prevention and in connection with the United Nation Congress… the judicial group of integrity comprising of Chief Justices of a number of countries met and for that purpose prepare a draft code of judicial conduct] which ended up in a matter of principles 2002 and clearly in the middle of the page is the name of my learned friend Dato’ Param Cumaraswamy as a special repetoire.
I take your Lordship to paragraph 2. [Read: In preparing a draft code of judges conduct in accordance with the directions sets as above references was made to several existing codes under international instruments including in particular…code of judges from many countries with regard to judicial conduct is referred]. I need not go through. Except that the judges code of conduct in Malaysia prescribed by the YDPA on the recommendation of the Chief Justice which is also adverted to.
So what is important now YA is to apply these principles to the position before your Lordship this morning.
Now first what is important to consider what would be the test which this court ought to apply for the purpose of deciding whether there is bias or there can be or there could be part of your Lordship in deciding this matter.
I take your Lordship to tab 6, the case of Mohd Ezam v Ketua Polis Negara. [read: the test to be applied in the present case in respect of the disqualification of a judge is the real danger of bias test. And the question here is whether with regards to circumstances of the case there was real danger of bias on the part of the learned trial judge with regards to a habeas corpus application. R v Gough is referred. It is the real danger of bias test. But having regards to the first, the judge is the one who should consider whether there is a real danger of bias.
I take your Lordship to the cases of this position. An extract in the Mallal Law Digest recital 1083. I first take your Lordship to what is highlighted there. [read: the court look at impression that would be given to other people, not to the court itself.] That is the objective test. [Read: And in this case even if the Magistrate is impartial as he would be nevertheless if a right minded person were to take that in this circumstances that there would be a real danger of bias or likelihood of bias then the Magistrate should not hear the case]. Now of course it is a real danger bias case.
Now of course it involved what was said by J Eusoffe Abdoolcader at tab 11, the last page. This is the manner in which his Lordship consider. What is to be considered is in fact the impression in the mind of the disinterested man or women in the Jelutong Omnibus. These are the principles YA. These are the principles within which your Lordship will have to consider whether your Lordship should carry on hearing the case. On the factual matrix, this is what suffices.
Then it was yesterday. After YA had ruled that we are not entitled to the notes and other materials, we had made an application for your Lordship to have adverted to or rather I have brought your Lordship’s attention to the Supreme Court case, United Asian Bank Bhd. I said YA that YA has not abided by the principles of the case and we will be making application for the recusal of your Lordship on that trial.
But what transpired thereafter YA was this. I take your Lordship to para 6 of the affidavit in support of DSAI. We have taken this from the extraxct from what has been recorded on what transpired that day. [read]. YA, this is a clear case of intimidation of counsel. The threat by your Lordship to take up contempt proceeding. To threaten a counsel in execution of his duty is a very serious matter. No doubt that judges are required to administer justice without fear or favour. Counsel too has certain duties.
I take your Lordship to rule 16 of the Legal Profession Act 1978. [read : uphold the interest of their client] that is YA a very onerous task for a counsel to carry out.
I take your Lordship to what has been said by Eusoffe Abdoolcader in the case of Dato’ Mokhtar Hashim, tab 1 page 283 of the report. [read]
So here YA, we say the ground upon which this application is founded is that there was this threat to counsel of contempt and therefore what has to be considered here putting aside the disinterested person, the jelutong omnibus and also the impression created on the mind of DSAI. And that is what your Lordship has to seriously consider. Your Lordship has to put yourself into the shoes of DSAI. And that is he manner in which Your Lordship, what would be the impression of Your Lordship mind.
The fact that your Lordship back track and withdrew the threat to cite me for contempt does not mean prejudiced and bias are completely erased in Your Lordship’s mind. It is there. As a human it is the person that we trust. That element must be taken into consideration. As I said earlier, our application is founded solely on that ground. DSAI is entitled in regard to the provision of Article 5(1) of the Federal Court where all persons are entitled for a fair trial. That is effect of Article 5(1) of the Federal Constitution.
An expression has been given in respect of that article by the Federal Court itself recently in the case of DSAI. It’s adverted to in para 11 of DSAI’s afidavit in support of our application. This is what is said by the Federal Court in DSAI. [read].
So your Lordship must carefully consider now. As I said earlier the effect of the threat against counsel on the mind of DSAI. We would urged YA to carefully consider it, I must say this must be taken objectively. There is nothing personal between your Lordship and I. I have appeared before your Lordship many a times. But when it comes to a necessity YA, we say it is a necessity in this case for us to insist your Lordship under the circumstances to recuse. We say there is a real danger of bias. It is for your Lordship to apply the law to the circumstances of the case based on the factual matrix set out in DSAI’s affidavit.
Your Lordship as a judge will not be able to reply to the affidavit. I don’t know why but that is the position placed on the judges. Judges should be given opportunity to defend themselves. The law is very clear. If the context of affidavit is not challenged, then it is deemed admitted. The Federal Court has decided this in DSAI case, in another case applying the principles in the case of Ng Hee Tong. It is given the status of the proposition being backed by the Federal Court. In any event YA, let the record speaks of itself. Transcript speaks for itself.
There is one case where J Apandy was required to recuse himself. I take your Lordship to tab 5. Unfortunately YA the judge went at a great length to insist not to recuse himself and he also refers to the principle of to the reasonableness of the existence of the real danger of bias to be assessed in the light of the judges code of ethics 1994 and their oath to administer justice without fear or favor. No doubt the judge is not required on frivolous ground to discharge himself.
But the ground in which our application is based is one of substance and not of allegation plucked from the thin air butt something which is transpired in this court itself in the presence of everyone and YA recorded. I apply for your Lordship to voluntarily step down. Without the necessity of reply by my learned friend.
Your Lordship must act in line with the manner where J Vorah acted in the case I cited to your Lordship just now. He took into account the public policy. He took into account that justice must not only be done, but be seen, manifestly to be done. YA should not have in mind YA that the fact that this trial has go on for some time, 3 witnesses have given evidence, or at least 2 ½, one in the middle of the cross-examination, and it involves public expense but expediency should not be affected. Justice should not be sacrificed at the court’s expediency. YA, DSAI’s case is big, monitored worldwide. In fact our legal system itself is under trial. Even the Secretary of the United Sates, Hillary Clinton has called upon the government to ensure that DSAI gets a fair trial. And there were the same calls made by the European Union, and other organisation. This trial is being monitored by representatives of various High Commissions and Embassies. Your Lordship is under close scrutiny. Your Lordship has to be man enough to rise up to the occasion and with respect step down. It is my view, our view that your Lordship has no other alternative under the circumstances but to step down.
It is a first time where application is founded on the ground of intimidation of counsel by the judge. That there can be intimidation there can be no doubt. YA may refer to the case of Zainur Zakaria where Zainur Zakaria was charge for contempt and sentence for imprisonment for three months. The Federal Court set aside the conviction and sentence. The Federal Court even went to the extent questioning the conduct of the judge, J Augustine Paul. J Malik who wrote the judgment of that court went to the extent of saying that the learned judge there was acting more as defence counsel, sorry as prosecutor more than a judge. I’m not threatening your Lordship that the Federal Court will reverse your Lordship’s decision. But I’m gently reminding your Lordship that that can happen. Your Lordship must try as best as possible to accept that and to step down. We would respectfully pray your Lordship step down and recused further from continuing with the trial.
YA: So MHZ?
MHZ: Pihak pendakwaan memohon masa untuk menjawab hujah pihak pembela dan terutamanya untuk mendapatkan arahan dari Dato’ Yusof.
YA: Dia sakit?
MHZ: Ya. Dia sakit hari ini, YA.
YA: KS?
KS: No objection.
YA: Tomorrow 9.00 a.m?
KS: Tomorrow I have a matter in Court of Appeal in the morning. So I’m not unable to be here tomorrow morning, but I’ll be back by 11.00 a.m.
WCK: Tomorrow is Friday. Can we can start early?
YA: So 8.30 tomorrow.
[10.07 a.m.] Adjourn.
“+++++++++” The Full English Version “+++++++++++”
Criminal High Court 3 KL
Before Yang Arif Dato’ Mohamad Zabidin Mohd Diah
25 November 2010
Parties :
PP: All present except MY, NH and MM
Defence : KS, SN, Datuk Param Cumaraswam (Dato’ CV Prabhakaran, Ram Singh, Marissa, Radzlan absent)
AI present
[9.14 a.m.] Parties enter Judges’ Chambers.
[9.20 a.m.] Parties exit Judges’ Chambers.
[9.23 a.m.]
Application 44-258-2010
MHZ: Same parties except Datuk Mohd Yusof.
KS: My lord, the application before your Lordship this morning has very serious implications and consequences. This is an application my Lord where your Lordship’s role as a trial judge is under scrutiny. That being the position, my Lord your Lordship would have got to go the extra mile to ensure that your Lordship objectively looks at the matter.
In an application like this, a judge takes his own cause. Ordinarily YA, a tribunal must be objective and must not be personally but there is a n exception. This is an exception out of necessity. YA there had been in the past various application or when it is necessary to make application of the recusal of the judge. Some judges in the past would take it upon themselves, when the application is made they themselves voluntarily step down from further hearing the case. They do that in line with public policy.
I take your Lordship to one instance where a judge took into account public policy, very senior judge Datuk KC Vorah. I take your Lordship to the case of [] in tab 10 in our bundle of authorities. His Lordship when the application was made for his Lordship to recuse himself had this to say. [read : Public policy requires that in order that should be no doubt about the purity of the administration of the justice. Any person who has take part in it should not be in the position when he is suspected of being bias]. I take your Lordship to what the judge said in the course of his judgment. He refer to the case of Allison v General Counsel [] as regards to the proposition I refer to your Lordship. He then refers to the case of []. [read: …in the administration of justice the judges and Magistrate should not only be fair and impartial but should also appear to reasonable persons to be fair and impartial that neither should an accused person or a litigant have any reasonable ground for supposing that the judge or a Magistrate who is trying the case in which their concern is bias in their favor or against them. The classic words of Chief Justice in R v Sussex. It is not merely of some importance but a fundamental importance that justice should not only be done but manifestly be carried out or manifestly be seen to be done. In all these circumstances at the instance of the defence’s counsel I agree that it would not be fair for me to hear the case. I disqualify myself from hearing this case].
There have been instances where judges have voluntarily recused themselves without even going into elaborate authorities for the purpose of not []. YA, a judge take an oath of office. He is required by the oath of office to administer justice without fear or favor. But that does not mean that the judge can do as he pleases. And get the a whole of reasons for not recusing himself.
The law is there, my Lord. In fact judges are now subject to certain regulations which rule their conduct. I take your Lordship to the regulations which has come into force recently, i.e. Judges Code of Ethic 2009. I take your Lordship to tab 2 of our bundle attached to it. The code of ethics came into operation on the 1st of July 2009. [read: A Judge can be subjected to disciplinary proceeding in the event he is bias or act in prejudice of an accused person] . I take your Lordship to the Code. They do comply with this code. [read: A judge shall comply with the provisions prescribed in this Code. A breach of any provisions prescribed in this Code shall render the judge liable to disciplinary proceeding in accordance with the provisions of this Code. At the bottom of the page YA, [] [read: the judicial duty of the judge shall take precedence over all other activities]. And we have YA then what is relevant and necessary for your Lordship to carefully consider. [read: a judge shall perform his duties without bias or prejudice]. That is important, YA. A judge shall perform his judicial duties without bias or prejudice.
I’m not threatening your Lordship that this matter will be taken up in the event it is found that your Lordship is bias or would be bias and will be prejudice against the accused. I give your Lordship a gentle reminder. A gentle reminder that your Lordship would carefully consider.
Whether here if your Lordship were to insist despite being bias and despite being prejudice to carry on to be prepared for the consequence. In the past YA, a judge for misconduct was tribunalised. The tribunal was set up by the King. But this year what has come into force is the Judges Ethics Bill. An Act rather, no more Bill. Judges Ethic Committee. That committee has the jurisdiction and power to try a judge for misconduct which does not end up to removal from the judicial office but less than removal from the judicial office, the Judges Ethics Committee has the jurisdiction to subject a judge for disciplinary proceeding. What is important also is the principle of judicial conduct 2002, that would be tab 2. It is a principle where rules made in respect of the judicial conduct, the principles relating thereto in respect of judges trying the proceeding.
I take your Lordship to what is the importance for the value of impartiality under the heading “impartiality” page 3. [read: A judge shall perform his or her judicial duties without fear, bias or prejudice]. There it is YA, bias or prejudice. But what is important is to note that these regulations are refer, in fact principles are agreed to by a number of jurist among them is Dato’ Param Cumaraswamy. I take your Lordship to page 9 under explanatory notes. [read: At his first meeting in Vienna in April 2000 on the invitation of United Nation Centre for International Crime Prevention and in connection with the United Nation Congress… the judicial group of integrity comprising of Chief Justices of a number of countries met and for that purpose prepare a draft code of judicial conduct] which ended up in a matter of principles 2002 and clearly in the middle of the page is the name of my learned friend Dato’ Param Cumaraswamy as a special repetoire.
I take your Lordship to paragraph 2. [Read: In preparing a draft code of judges conduct in accordance with the directions sets as above references was made to several existing codes under international instruments including in particular…code of judges from many countries with regard to judicial conduct is referred]. I need not go through. Except that the judges code of conduct in Malaysia prescribed by the YDPA on the recommendation of the Chief Justice which is also adverted to.
So what is important now YA is to apply these principles to the position before your Lordship this morning.
Now first what is important to consider what would be the test which this court ought to apply for the purpose of deciding whether there is bias or there can be or there could be part of your Lordship in deciding this matter.
I take your Lordship to tab 6, the case of Mohd Ezam v Ketua Polis Negara. [read: the test to be applied in the present case in respect of the disqualification of a judge is the real danger of bias test. And the question here is whether with regards to circumstances of the case there was real danger of bias on the part of the learned trial judge with regards to a habeas corpus application. R v Gough is referred. It is the real danger of bias test. But having regards to the first, the judge is the one who should consider whether there is a real danger of bias.
I take your Lordship to the cases of this position. An extract in the Mallal Law Digest recital 1083. I first take your Lordship to what is highlighted there. [read: the court look at impression that would be given to other people, not to the court itself.] That is the objective test. [Read: And in this case even if the Magistrate is impartial as he would be nevertheless if a right minded person were to take that in this circumstances that there would be a real danger of bias or likelihood of bias then the Magistrate should not hear the case]. Now of course it is a real danger bias case.
Now of course it involved what was said by J Eusoffe Abdoolcader at tab 11, the last page. This is the manner in which his Lordship consider. What is to be considered is in fact the impression in the mind of the disinterested man or women in the Jelutong Omnibus. These are the principles YA. These are the principles within which your Lordship will have to consider whether your Lordship should carry on hearing the case. On the factual matrix, this is what suffices.
Then it was yesterday. After YA had ruled that we are not entitled to the notes and other materials, we had made an application for your Lordship to have adverted to or rather I have brought your Lordship’s attention to the Supreme Court case, United Asian Bank Bhd. I said YA that YA has not abided by the principles of the case and we will be making application for the recusal of your Lordship on that trial.
But what transpired thereafter YA was this. I take your Lordship to para 6 of the affidavit in support of DSAI. We have taken this from the extraxct from what has been recorded on what transpired that day. [read]. YA, this is a clear case of intimidation of counsel. The threat by your Lordship to take up contempt proceeding. To threaten a counsel in execution of his duty is a very serious matter. No doubt that judges are required to administer justice without fear or favour. Counsel too has certain duties.
I take your Lordship to rule 16 of the Legal Profession Act 1978. [read : uphold the interest of their client] that is YA a very onerous task for a counsel to carry out.
I take your Lordship to what has been said by Eusoffe Abdoolcader in the case of Dato’ Mokhtar Hashim, tab 1 page 283 of the report. [read]
So here YA, we say the ground upon which this application is founded is that there was this threat to counsel of contempt and therefore what has to be considered here putting aside the disinterested person , the jelutong omnibus and also the impression created on the mind of DSAI. And that is what your Lordship has to seriously consider. Your Lordship has to put yourself into the shoes of DSAI. And that is he manner in which Your Lordship , what would be the impression of Your Lordship mind.
The fact that your Lordship back track and withdrew the threat to cite me for contempt does not mean prejudiced and bias are completely erased in Your Lordship’s mind. It is there. As a human it is the person that we trust. That element must be taken into consideration. As I said earlier, our application is founded solely on that ground. DSAI is entitled in regard to the provision of Art 5(1) of the FC where all persons are entitled for a fair trial. That is effect of Art 5(1) of the Federal Constitution.
An expression has been given in respect of that article by the Federal Court itself recently in the case of DSAI. It’s adverted to in para 11 of DSAI’s afidavit in support of our application. This is what is said by the Federal Court in DSAI. [read].
So your Lordship must carefully consider now. As I said earlier the effect of the threat against counsel on the mind of DSAI. We would urged YA to carefully consider it, I must say this must be taken objectively. There is nothing personal between your Lordship and I. I have appeared before your Lordship many a times. But when it comes to a necessity YA, we say it is a necessity in this case for us to insist your Lordship under the circumstances to recuse. We say there is a real danger of bias. It is for your Lordship to apply the law to the circumstances of the case based on the factual matrix set out in DSAI’s affidavit.
Your Lordship as a judge will not be able to reply to the affidavit. I don’t know why but that is the position placed on the judges. Judges should be given opportunity to defend themselves. The law is very clear. If the context of affidavit is not challenged, then it is deemed admitted. The Federal Court has decided this in DSAI case, in another case applying the principles in the case of Ng Hee Tong. It is given the status of the proposition being backed by the Federal Court. In any event YA, let the record speaks of itself. Transcript speaks for itself.
There is one case where J Apandy was required to recuse himself. I take your Lordship to tab 5. Unfortunately YA the judge went at a great length to insist not to recuse himself and he also refers to the principle of to the reasonableness of the existence of the real danger of bias to be assessed in the light of the judges code of ethics 1994 and their oath to administer justice without fear or favor. No doubt the judge is not required on frivolous ground to discharge himself.
But the ground in which our application is based is one of substance and not of allegation plucked from the thin air butt something which is transpired in this court itself in the presence of everyone and YA recorded. I apply for your Lordship to voluntarily step down. Without the necessity of reply by my learned friend.
Your Lordship must act in line with the manner where J Vorah acted in the case I cited to your Lordship just now. He took into account the public policy. He took into account that justice must not only be done, but be seen, manifestly to be done. YA should not have in mind YA that the fact that this trial has go on for some time, 3 witnesses have given evidence, or at least 2 ½, one in the middle of the cross-examination, and it involves public expense but expediency should not be affected. Justice should not be sacrificed at the court’s expediency. YA, DSAI’s case is big, monitored worldwide. In fact our legal system itself is under trial. Even the Secretary of the United Sates, Hillary Clinton has called upon the government to ensure that DSAI gets a fair trial. And there were the same calls made by the European Union, and other organisation. This trial is being monitored by representatives of various High Commissions and Embassies. Your Lordship is under close scrutiny. Your Lordship has to be man enough to rise up to the occasion and with respect step down. It is my view, our view that your Lordship has no other alternative under the circumstances but to step down.
It is a first time where application is founded on the ground of intimidation of counsel by the judge. That there can be intimidation there can be no doubt. YA may refer to the case of Zainur Zakaria where Zainur Zakaria was charge for contempt and sentence for imprisonment for three months. The Federal Court set aside the conviction and sentence. The Federal Court even went to the extent questioning the conduct of the judge, J Augustine Paul. J Malik who wrote the judgment of that court went to the extent of saying that the learned judge there was acting more as defence counsel, sorry as prosecutor more than a judge. I’m not threatening your Lordship that the Federal Court will reverse your Lordship’s decision. But I’m gently reminding your Lordship that that can happen. Your Lordship must try as best as possible to accept that and to step down. We would respectfully pray your Lordship step down and recused further from continuing with the trial.
YA: So MHZ?
MHZ: Prosecution requests time to respond to Counsel’s statements, and more so to receive instructions from Dato Yusof.
YA: He is unwell?
MHZ: Yes, he is unwell today, YA.
YA: KS?
KS: No objection.
YA: Tomorrow 9.00 a.m?
KS: Tomorrow I have a matter in Court of Appeal in the morning. So I’m not unable to be here tomorrow morning, but I’ll be back by 11.00 a.m.
WCK: Tomorrow is Friday. Can we can start early?
YA: So 8.30 tomorrow.
[10.07 a.m.] Adjourn.
Anwar Ibrahim Sodomy II – The Recorded Truth – 28 October 2010 October 28, 2010
Posted by malaysianstory in Anwar Ibrahim, Malaysian Story, Sodomy II, Transformation in PKR.Tags: Anwar Ibrahim, Sodomy II, SP2
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******* The Full English Version (In Blue) After “+++++++++++”
Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP: Semua hadir
PB: KS, SN, Datuk Param Cumaraswam, (Dato’ CV Prabhakaran, Ram Singh, Marissa, Radzlan tidak hadir)
WB: Zamri Idrus (untuk SP1)
Experts for the defence: Prof. David Wells (Dr. Brian MacDonalds tidak hadir)
AI hadir
[8.58 a.m.]
MY: Kes untuk sambung pemeriksaan balas SP2. Pihak-pihak masih sama.
KS: We have my Lord, with respect we have reservation (as to the ruling yesterday) as to whether your Lordship have really thought what he had in our submission yesterday.
Your Lordship in fact did not understand what we submitted.
YA: I’ve made myself clear yesterday you are entitled to the report on 10th July, but not the notes.
KS: That is already clear. That decision was made by your Lordship previously. In fact, your Lordship has directed for that report to be produce. That is not right at all with respect to the notes.
YA: Can I see both of you in chambers, please.
KS: Yes I think you should.
[9.00 a.m.] Stand down.
[9.02 a.m.] Kedua-dua pihak masuk ke Kamar Hakim.
[9.23 a.m.] Kedua-dua pihak keluar dari Kamar Hakim.
[9.25 a.m.]
SP2 mengangkat sumpah di dlm Bahasa Inggeris.
Q: This is your first case in court, isn’t it?
A: Yes
Q: You are unsure of the evidence and all. You cannot remember, make mistakes etc.
A: It happened two years ago.
Q: The best way is to refer to the notes to refresh your memory. Because you can’t remember a lot of things.
A: I only remember the work I did. Things I did not do, I cannot remember it.
Q: Your mistake goes beyond not remembering.
A: I tend to forget. I am human being.
Q: Yes. Human beings tend to forget and normal human being would want to refer to the notes. Would you not want to refer?
A: I’ve corrected myself that it is a mistake.
Q: That is in point of a mistake. I’m talking in point of you can’t remember. Why are you so reluctant to refer to the notes?
MY: What is your question? Are we having a conversation or what?
KS: I don’t know what he said. Forget about the DPP.
YA: Apa soalan, KS?
Q: Why is you reluctant to refer to your notes?
A: Not reluctant. I think it is not necessary because I still can recall whatever things I did.
Q: Can you recall everything?
A: [witness had no chance to answer]
Q: Can you recall the history you recorded from SP1?
A: Yes.
Q: In P22, the history is in 2 liner, isn’t it?
A: Yes
Q: Can the 2 liner constitute details? Can it be accepted as details? In your view?
A: Yes.
Q: Those are the details in the notes, nothing more. Let me remind you, you are under oath. A lot of things you said which amount to perjury.
MY: It’s not for you to say that.
SN: Prosecution always interfere. Why are you interfering? You are always interfering. []
Q: You are under oath.
A: Yes.
Q: Do you bear the consequences of taking oath?
A: I’ve explained before. 7 years imprisonment.
Q: 7 years. Long time. Let’s get the truth out of you.
KS: YA, we are of the reason to believe this witness is not telling the truth. And we are making this application that we have a hunch that this witness, with regard to the
nature of the evidence given that this witness what he said in court is different from what is stated in the notes. Notes constitutes a formal statement. A formal statement can
be in writing. In this case there are notes.
YA: Enough for now. Stand down for a while.
[9.31 a.m.] Stand down.
[9.35 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.54 a.m.] Pihak-pihak keluar dari Kamar Hakim.
[10.02 a.m.]
YA: Panggil saksi. Diingatkan masih bawah sumpah.
Q: You talked about a report yesterday, dated 10th July.
A: Yes.
Q: You said it was dated.
A: As I said it was on the second page.
Q: Are you sure the date is on the second page?
A: The last part [read page 2 of the 10th July report].
Q: What was you waited for?
A: We are waiting for the full laboratory report.
Q: That was obtained? When was it obtained?
A: 11th of July
Q: The three of you make a report dated 13th July, was the laboratory result available at that time?
A: Yes.
Q: You received it on the 11th?
A: Yes.
Q: From whom did you get it.
A: It’s not me who get it directly. It’s received by the Forensic Department and I was called to see it.
Q: You have the benefit of three chemist report?
A: One report from the chemist.
Q: Who is this chemist?
A: Dr. Seah
Q: The one you received on 11th July?
A: Yes.
Q: Only one report?
A: Yes.
Q: No other report was referred? One is enough?
A: The report we received on DNA is …
Q: There’s only one chemist report adverted to in P22? No other chemist report was referred to?
A: No.
Q: You are under oath. No other chemist report was referred to?
A: No.
Q: The third time, no chemist report was referred to?
A: No.
Q: P22, page 3. There are two chemist report there isn’t it?
A: There are 2 components, but only one report. It comes together.
Q: [refer and read chemist report number]. Is that one report?
MY: He had answered it. First he said there is one reports but two components.
KS: …
Q: What are written there are 2 reports.
A: 2 components but one report.
Q: So one report, but two components. So only Dr. Seah’s report.
A: …
Q: Dr. Seah report is what number?
A: The report number one.
Q: Dr. Seah’s report, have you had a copy of that? Look at the top of the page, page 1. Please read it.
A: [read the number of the chemist report]
Q: So there are two reports?
A: I said it is two components.
Q: Look at P22. At the bottom of the page 3. Are both the same?
A: Yes.
Q: Both the same?
A: [read chemist report number]
Q: Are they the same as adverted to Dr. Seah’s report?
A: Yes.
Q: The same reports are referred to?
A: Yes.
Q: Exactly the same?
A: Yes.
Q: Read the report number in Dr. Seah’s report. Is it there in P22?
A: Yes.
Q: Looking at page 3 of P22. [read chemist report number]. They are not the same, isn’t it?
A: Which one is not the same? The number is 08-1 and 08-2.
Q: So one and two is the same? No difference between one and two?
A: Two is not included in the other one.
Q: So there is a difference.
A: Typing error.
Q: Mistake? You said it’s a typing error in P22?
A: We didn’t put the number 1 and 2.
Q: In which report there’s a typing error?
A: No.2 is missing in P22.
Q: It’s a typing error?
A: No. It’s a missing of number 2.
Q: So, there’s a third report?
A: Not a third report. Just a missing number 2.
Q: So, 1 and 2 is not together?
A: It’s missing.
Q: You said just now it’s a typing error.
A: Slip of tongue. No. 2 is missing from P22.
Q: Therefore it’s a difference report at page 3. Is one and two the same?
A: It’s different.
Q: There’s a different report at page 3. Has a different report been referred to in P22 page 3?
A: Which one?
Q: The second one?
A: …
Q: 08-1. More specific. The other one is 08-2. Would it be right? 08-2 is not in P22.
A: The report is the same.
Q: 08-1 and 08-2 is the same?
A: It’s different. The reference number is not stated in P22. But it is a full report.
Q: 08-1 is … should be 08-2.
A: 08-1 is also a report
Q: 08-1 is wrong, isn’t it?
A: It is not wrong, but it is stated at the back of the chemist report.
Q: Chemist report is 08-2, isn’t it? And in Dr. Seah report, [read report number at page 1]. 08-1 is not there?
A: 08-1 is on the last page.
Q: I’m talking about what is at page 3 of P22. There’s actually 3 reports. Wouldn’t it be right? 08-0, 08-1, and 08-2 at ID25 should also be in P22. So, there’s 3 reports
in P22.
A: They are not 3 reports.
Q: There are 3 reports?
A: There are no 3 reports.
Q: Look at the top. 08-0. Is 08-1 anywhere there?
A: Not on the first page.
Q: So what happened to 08-1?
A: It’s on the last page of Dr. Seah’s report.
Q: Where is it?
A: There. Toxicology analysis report. [read]
YA: Let me look at ID25 include.
KS: We are not supplied with that
MY: We’ve photostated 3 set for all parties. We are not making use of it.
KS: How come it’s there? We are not served with it.
MY: We talking about the specimens.
KS: We are not talking about the specimens but what was not supplied to us under S.51A Criminal Procedure Code.
MY: We are not relying on it. At no time the witness is relying on it.
KS: No question of reliance.
YA: The issue is since it is not supplied under s.51A of Criminal Procedure Code, whether it can be now made available. Now it is ID..
KS: Can they check first.
YA: Let’s proceed with other question. Or you want to stand down?
KS: Yes.
YA: Check whether it was served or not. If not served, then the question is whether it is admissible.
[10.26 a.m.] Stand down
[11.07 a.m.] Kedua-dua pihak masuk ke Kamar Hakim.
[11.17 a.m.] Kedua-dua pihak keluar dari Kamar Hakim.
[11.21 a.m.]
KS: Before we adjourn, we were at the documents your Lordship referred to which is technically not admissible because we were not served.
MY: It was not served,
YA: I’ll hear the full submission tomorrow.
KS: No doubt. And we will take submission on both issues together, i.e. the ruling yesterday as to the notes and the admissibility of the toxicology report.
YA: We can proceed with some other aspect with the witness.
Q: P22. As far as P22 is concern, it’s in reference only to 3 chemist report or rather 2?
A: Only one report, but 2 components.
Q: And with regard to Dr. Seah’s report, ID 25, it’s a very crucial report. Do you agree?
A: Yes.
Q: ID25 and P22, there a complete omission of 08-1.
A: 08-1 is there. The one that is not there is 08-2.
Q: I said what is in ID25. You have 08-0. In P22, there is 08-0. In ID25, there is 08-2 but that is missing in P22.
A: Yes.
Q: Likewise 08-1 is missing in ID25.
A: No. 08-1 is there. It is available
KS: We are going back to same thing My Lords. It was not served on us.
Q: Refer to ID25
A: it was one component consisting of 2 reports.
KS: The report with 08-1 is not served. Technically it is not admissible.
KS: …
MY: Chemist report is ID25, but yang belakang itu bukan ID25.
YA: Tomorrow I’ll make my decision. [] Jangan rujuk yang belakang. Kita tak tau sama ada itu admissible atau tidak.
Q: You said DSP Jude was present throughout 3 hours.
A: Yes.
Q: Who does the specimen taking at that time?
A: Specimens collected by us is the specimens is the swabs taken from the body and the anal area, also the blood for toxicology.
Q: How many items was handed to him?
A: 12.
Q: How many items were returned after the analysis?
A: We did not receive any return or any specimen.
Q: What about the results?
A: The result was not given to us until the 11th July.
Q: How many specimens were return? You send 12 specimens for analyisis. Surely you were waiting for the analysis of the 12th specimens. were all returned?
A: I don’t have any specimens returned, only the report was given on the 11th July.
Q: You have the laboratory report which is the result of the specimens which has been tested. And that result was in relation to how many specimens?
A: All specimens that was passed to DSP Jude.
Q: Is it reflected in P22? All 12?
A: in P22, when we put the summary…
Q: On page 3, how many specimens were there?
A: All the specimens.
Q: Where is it reflected in P22?
A: No.3 where we started with the “laboratory analysis as the following”
Q: Page 3, how many specimens are referred to there?
A: All the specimens. That’s why we put the last one to “refer to chemist report”. It’s all there.
Q: Page 3, are all there? The result of the 12 taken specimens sent to the laboratory for analysis.
A: Yes.
Q: That result is in relation to how many specimens referred to In there?
A: It’s not written but we have the report.
Q: Would it be correct you have it so you can make a conclusive report?
A: Yes.
Q: So you have all the material on 13th for you to come to the conclusion on page 4?
A: Yes
Q: So the report of P22 is conclusive, from whatever you requires and have at that time?
A: All the result is conclusive.
Q: You told the court yesterday that SP1 had been examined by another doctor at Pusrawi?
A: Yes.
Q: Are you aware when SP1 was examined by Dr. Osman at Pusrawi it is stated that the patient alleged that his anus is inserted with a plastic?
A: No. I’m not aware of it.
Q: Was SP1 questioned by anyone of you?
A: Yes.
Q: But this was never reveal to you ?
A: No, it was not.
KS: That will be all for now.
MY: What do I do now, YA? Do I re-examine now?
KS: SN Nair will continue.
SN: Can I ask for a stand down for 15 minutes?
YA: I’m sure you know what to cross. Of course I’ll give you 15 minutes, but please do not repeat the cross. You have to be on different aspect. You check what KS has asked first. We cannot have different counsel asking the same question to the same witness. Whatever KS has ask, you don’t touch on it.
[11.38 a.m.] Stand down.
[11.56 a.m.]
Q: You mentioned that you have interview Saiful.
A: I was not the one interviewing. I was there when the other 2 doctors interviewed him.
Q: But you read the note
A: Yes.
Q: Evidence in chief, you mentioned about lubricant
A: Yes. And also during the interview by the 2 doctors.
Q: You heard the interview?
A: Yes. And also from the history mentioned by the 2 doctors. When there is clarification of the history by the 2 doctors, I was there in the room.
Q: P22, and ID 25. Are you familiar with the documents?
A: Yes
Q: Is lubricant a vital piece of information?
A: Yes
Q: Why is it important?
A: It plays important role eg. In case of sodomy you use lubricant it definitely will help the process of sodomy without causing injury.
Q: ID25 and P22. You just said it is very important. Can u show me where in this report that you have ask specifically for a test for lubricant?
A: It is not necessary to make a test for lubricant.
Q: How can it be?
A: Lubricant may be use to make the process easier.
Q: You just mentioned that it was so important. Therefore it is important for you to look for.
A: It is not necessary.
Q: Now you said it is not necessary.
A: It’s necessary to know whether lubrication is use or not. But it is not necessary to test the presence of lubricant.
Q: How would you know if there was or there was not?
A: My job is to check for the presence of any semen or fluid.
Q: I just ask how would you know. My question is very specific.
A: I was made aware and it was rectified by the other 2 doctors.
Q: You are not answering my question. If you have interpreted certain results, you did not or a party to the analysis. Is that correct. you didn’t analyse the sample, did you?
A: I didn’t analyse it.
Q: So, how would you know? That it was there or not? Would you know or not the lubricant was used? You have to do a test. But the test was not done by you, but the chemist. That’s why I need to ask. Did you ask for the test of lubricant? Did you take a swab?
A: We didn’t ask for the test of the lubricant.
Q: You did not? That’s all I want to ask.
A: No.
Q: Lets go into the swab. But I’m sorry My Lord, I‘ve to ask for this question first. I want to ask about the habit of his bowel behaviour.
A: The only question about his bowel was whether he passed motion. That was what was inquire by the two doctors.
Q: But how about many hours before?
A: He mentioned he did not passed motion for 2 days before he came to us.
Q: Did you ask his natural, regular bowel habits?
A: I don’t really ask on that because to me the relevance of it is not important at that time.
Q: Not important at that time? Isn’t that important to ask a man of his natural bowel behaviour?
A: If you think something related to his bowel habits, …
Q: But that is important isn’t it? And normally asked by doctors.
A: The history is not something that you have to ask at the beginning and stop. If the examination is peculiar and related bowel movements, then we ask.
Q: It’s a very common medical practice to get full medical history. Can we agree on that?
A: Yes.
Q: Can we agree on that that the full medical history is incumbent?
A: Depends on what are the complaints.
Q: You said it is a sodomy case.
A: But the important at that time is to rectify if there is a process of sodomy or not. And if there is any finding that is relevant for .e.g. there is any injury, we need to rectify whether there are other things that may cause injury.
Q: Isn’t it not good practice and isn’t it incumbent in medical case that you get the full medical history?
A: Not necessary at the beginning. The history can come at any time during the process.
Q: You said you don’t have to ask?
A: The history continues. If we need we can clarify at any time.
Q: If a patient goes to the toilet 3 days at a time, or 3 times a day, is it not relevant in a sodomy case?
A: It depends on the case.
Q: I put it to you it is relevant. If someone goes to the toilet 3 times a day, there will be nothing.
A: Depends on the examination.
YA: He disagrees. You put it masa submission whether betul or tak betul.
SN: The witness is not answering my question. It is a simple question of medical examination.
YA: Dia tidak setuju.
SN: He said something else.
MY: He said depends on the situation. You are making a general statement.
Q: “Rectal flora”. Can you explain what it is? How many types and the quantity.
YA: In this particular case or generally?
SN: Generally
A: Organism available in normal person where it considers where organ, the house that they live ….
Q: I’m asking what types and what numbers do you find of a rectal flora in human bodies. Not the function of it.
A: There are various types. The one I can remember is echolie, repsolie, enrobics, protious and many more which I can’t remember all. The quantity can be millions, cannot be easily quantified.
Q: And any material that gets in can be taken out immediately, e.g. bacteria.
A: It may works immediately, but I’m not sure. It may take effect immediately what goes in, but how fast it can be acted upon I’m not sure.
Q: What you heard about what he told Dr. Osman he discuss about pain. Did he ever discuss about pain in the anus?
A: It’s a further clarification that was asked to the victim. The reason why he went to Pusrawi, he complaints was pain in the anus.
Q: That was mentioned to you by SP1?
A: When I went through the notes, that’s what I get.
Q: And you never ask him. Of course, you examined him. Did you ask him as well?
A: No. I did not go further on his history.
Q: Did he say the pain was still there?
A: I didn’t ask.
Q: But he never told? He never told you. Did he told anyone of you that he is still in pain?
A: I cannot remember.
Q: IDD16-Pusrawi Report shown. Refer to the first page. Can you read it.
A: [read medical history]
Q: You mentioned that he went to Pusrawi…
A: It’s stated pain initially but cancelled of.
Q: I don’t think it was cancelled of.
A: Oh, the third line.
Q: Let me read it to you….”Pain when passing motion”
A: [doctor reiterated]
Q: You mentioned earlier that he went to Pusrawi and did an examination there.
A: Yes.
Q: If you are aware that there was pain, would you or would you not ask him again before you proceed?
A: Before I start, I will definitely ask the patient whether I can proceed or not.
Q: If the patient complaints about the pain, would you ask him. If there is pain, would you then proceed?
A: If before I start my examination, I’ll explain to the patient I’ll insert something into the bottom part, and if there’s pain I will definitely not proceed.
Q: Are you suggesting that he was not in pain?
A: Yes. I ask whether I can proceed.
Q: Is it not a good practice to ask the question in the first place?
A: Definitely we have to ask.
Q: Did you ask him?
A: Not directly whether he has pain or not. It is the way I explained to him the procedure about discomfort and pain and the patient said it’s okay.
Q: Did you ask him directly?
A: Because during the process or before the procedure we need to ask.
Q: Before you did the procedure, you need to ask, don’t you?
A: I can’t remember. Whether or not I ask him directly I can’t remember. But I did explain. I can’t remember specifically whether I ask or not.
Q: Do you agree it is a proper practice to ask?
A: Yes.
Q: And you explained to him?
A: Yes.
Q: What did you do next? Step by step.
A: I explained the procedure that I want to do, I started of with the ….
Q: I want more specific. His position.
A: I position him in the left lateral on the examination bed and ask… the patient has to face against me, facing the wall so that I would be on the back. The right side of the hand and the body will be on the upper part.
Q: [witnessed referred to an article with a diagram] would it be in that position? Is that a lateral position?
A: Yes. This is a lateral position. The knee needs to go further on the chest. That’s the position I can do the examination easily. It gives good exposure and that is the position the patient will be comfortable during the procedure.
Q: Is there any guidelines you have as a medical officer as to the positioning?
A: There is no guidelines as to the position during the proctoscopy examination. The standard practice usually people will put in a lateral position.
Q: And where did you get this standard practice from?
A: In the process of studying from student to medical doctor. It’s a common practice in hospitals.
Q: Is there any international guidelines?
A: I’m not really aware of it.
Q: Agree that if you do according to your own standard there is a high risk of contamination?
A: I disagree.
Q: This is according to your style and not on the international guidelines.
A: It is something that we practice so many many years.
Q: And there is no guidelines at all?
A: I’m not aware of it. There is no specific positioning when you do proctoscopy examination.
Q: You did this on daily basis, don’t you? And you can’t refer to me any guidelines?
MY: What are you asking?
YA: He already answered that he is not aware.
MY: He already answered.
SN: There must be a guideline somewhere. But he doesn’t know.
MY: There could be.
YA: Kalau you kata ada guideline, then you tunjuk.
Q: Now swabs. How do you go about taking the swabs?
A: As I explained just now, after putting him in the position of left lateral position, and the knee upper to the chest to give us good exposure to do the work. Subsequently, I use the equipment called proctoscope. In this case, plastic proctoscope. Before I put the proctoscope in, I use saline. To my experience if I put the proctoscope without saline or any lubrication it can cause discomfort or any other injury at the anal. And I can’t push it in of the splinter. I’m worried I’m the one who would cause the injury. So I decided to use a Lignocaine gel as a lubricant for my insertion of the proctoscope to the victim. I successfully put the proctoscope in him and I visualize the rectum and with me also there was a sterile swab. It was passed to me and I use that swab to take the sample to the highest place which it can reach in the rectum as the first specimen. And then I swab in circular the highest part and take out the swab and put in the container which is already made available by Dr. Siew. I take 2 samples from the upper part that the most reachable part of the rectum and passed it back to Dr. Siew and he labelled it. And the same goes to the third specimen when I bring the proctoscope out from the patient’s rectum.
Q: How about peri anal swab?
A: Peri anal swab was taken before I proceed with the proctoscopy examination.
Q: Refer P22, page 3, item 1-12. Is this swabs taken in this sequence?
A: Yes.
Q: Who did the swabbing first?
A: Dr. Khairul.
Q: And you when? Second?
A: Yes.
Q: This is exactly the sequence?
A: Yes.
Q: Did you then photographed the swabs?
A: I can’t remember. Photographs were taken but the swabs I can’t remember.
Q: What do you mean?
A: Photographs were taken when I did the examination. The swabs I was not aware. As far as I remember, I passed the swabs to Dr. Siew immediately.
Q: What was the states of the swabs? Were they clean swabs?
A: Definitely. I follow the sterility method that’s supposed to be followed. And it is supposed to be a clean process of taking the swabs.
Q: What was the condition of the swabs after taking?
A: I saw some staining on the swabs in the process of taking out the swabs. I can visualized it.
Q: Are you referring to mucosa?
A: It should not be. Mucosa is the wall of the rectum. We swab material on the mucosa.
Q: You’ve got to swab the wall.
A: Mucosa is the wall. We swab the wall. But what comes out is not mucosa, but the material on the mucosa.
Q: Is photographing swabs a standard procedure? Is it a good thing to do?
A: The swabs are taken for analysis, it is meant for analysis and it will be sent to the laboratory and ought to be ratify.
Q: Are you trained forensic?
A: No.
Q: You said that photographs were taken. What photographs were taken?
A: It is for the findings during examination. Findings on body like scars. The one I remember was at the body. When you have a positive finding, you photographs it.
Q: Positive findings only? Or generally you’ll take the photographs? Other you did not? There would be other scars, e.g. appendicitis.
A: If there is positive findings.
Q: Did you take any photographs?
A: I did not.
Q: Did you know any photographs were taken?
A: Yes.
Q: Were you aware there were earlier proctoscopic examination before you proceed?
A: Yes. On the further clarification on the Pusrawi story. According to the victim, he said he was examined, but whether using proctoscope or not, he did not know.
Q: You did not ask him?
A: I did not ask him directly, but he said some instrument were used.
Q: So, there was some instrument used. Was it instument used to enter his anus?
A: We do not know the details.
Q: What else if not proctoscope?
A: I’m not aware of that.
MY: He doesn’t know that this thing is called proctoscope. If he said it is instrument, it is instrument.
YA: Ask him whether the instrument is proctoscope.
Q: Did he say anything was inserted?
A: He did not say inserted but used.
Q: Did you ask him?
A: I did not ask further.
Q: Is it not logical to ask? If there is something used, surely there should be lubricant introduced inside?
A: Yes.
Q: When you use the proctoscope, that would be a second one, is it? There will be contamination.
A: Without using the proctoscope there will be no way I will know there is penetration towards the anus.
Q: You could’ve asked this question.
A: I did not ask on that part. I was not involved in the history taking.
Q: But he was there.
A: I was made aware something was done to him but to what extent I did not ask.
Q: Why did you not ask?
A: Because at that time I just want to do the examination on the patient. I don’t clarify further. I know in my mind something might have been done onto the patient.
Q: Surely here if something was done, were you aware when you swab there would be contamination or cross-contamination?
A: Yes.
Q: Surely here if something was done, don’t you think it is a good practice to ask first to prevent contamination or cross-contamination?
A: It’s a good practice to ask.
Q: You said pictures were taken. Where in P22 stated that pictures were taken?
A: Of course it was already written on the report so it was not necessary.
Q: Can you produce the photographs?
A: It’s not with me. It’s with the Forensic Department.
Q: Is it available?
A: I need to check it first.
Q: Can it be made available?
A: Yes.
SN: I would like to look at the photograph.
YA: Are you entitled to it? I made a ruling which went up to the Federal Court.
SN: This is in the course of proceeding. What was in the Federal Court is the pre-trial stage. So it may not apply.
MY: As of now, what has been establish is the photographs of the scars. If you want other photographs, what is the relevancy?
SN: Relevant for my expert.
MY: You’ve not establish which part.
Q: Which photographs of the part taken?
A: Example, pigmentation of the scars.
Q: Were there photographs as to the genital area and the anus?
A: No. Just for the scars.
Q: About the high rectal swabs. How high were the swabs taken?
A: The equipment, i.e. the proctoscope’s length is about 6.5 cm. If you can enter completely it in, you can reach the rectal part. Specimens can be taken, after you take out the introducer, you can go as high as 2.5 cm.
Q: How long is a male adult rectum?
A: The rectum is about 12-15 cm.
Q: And the anal canal?
A: 3-4 cm.
Q: In this particular case?
A: If I put the proctoscope of 6.5 cm, I already reached the lower part of the rectum. And I have the swab with a length of 15 cm, and if I take a length of a 15cm swab, I can go 2.5 cm further.
Q: [witness is shown with a proctoscope from the defence] Are they of a standard size?
A: We have the smallest one for kids.
Q: This one, is it the same size you use?
A: Mine was 6.5 cm.
YA: Anybody has a ruler?
[witness is given a ruler and measured.]
A: Yours is longer.
YA: Berapa panjang?
A: This one is about 8 cm. I used 6.5 cm.
Q: You said you went 2.5 cm further up.
A: Yes. From the end of the proctoscope.
Q: What was the condition of the anal? The rectum?
A: The rectum was empty.
Q: Did you record that down?
A: I did not.
Q: Would it not be important to record it down?
A: Not for this case.
Q: Why?
A: Because if it is full, it will be significant because faeces will come down. But no faeces came down from the rectum. So I have opportunity to take without the disturbance of the faeces.
Q: So you got a swab from an empty rectum?
A: Yes.
Q: We go back on the pain. If someone complaints of severe pain and come to you for examination, would you be able to touch him at the anus?
A: I will need to elicit where the pain is and I need to localize the pain.
Q: They can’t even sit down, is it correct? How are you going to examined him?
A: External examination only. We will find the pain and gives us the idea of …
Q: What about the peri anal region? Something you cannot see?
A: Normally we will not put the proctoscope in without a proper anaesthesia.
Q: So, if you have anal pain, you can still do anal examination after giving anaesthesia?
A: Yes.
Q: In this case, there is an element of pain. Yet you put the proctoscope in easily.
A: Like I explained just now, I ask the patient and explained the procedure. I explained to him that he might experience discomfort and pain. But he said okay. And I continue with the examination.
Q: Did you use saline?
A: I use saline to lubricate the proctoscope before I insert it during my first attempt.
Q: If you use saline, will there be any effect of anymic?
A: The amount is small.
Q: You think small amount will not case anymic?
A: Yes.
Q: Are you sure?
A: It is a normal mechanism to prevent us from causing injury. If there is resistance, I will not put it in because I might cause injury.
Q: How many attempt?
A: Only once.
Q: SP1 mentioned of a non-consensual act. Did he mentioned it to you?
A: Yes.
Q: If that is so, usually the anal area will be constricted and therefore it will be difficult to enter?
A: Yes, difficult normally.
Q: Even if you were to do it using gel, it will still be very difficult to do it.
A: Initially we have problems to enter, but in human being there is a physiology process called physiological reflects at the anal canal where the constricting anal will relax.
Q: But that’s a very long process. We are talking about an instance, a very instance constrict reaction. It will not only cause some level of trauma, but also tear and seizure.
A: It may.
Q: Normally if person have pain in the anus, what will be the cause?
A: Can be caused by Lots of factors. One, must consider whether he has infection. That’s a common thing. There can be infection at the peri anal and also the inside. The second one is where you have like disease at the anal rectum where you can have active faeces which can cause a lot of pain. third one is if you have any injury inside, problem with your motion, you have like a fissure that can cause pain also.
Q: Tenesmus?
A: Yes.
Q: What is a tenesmus?
A: It is a feeling or the sensation that you have when you want to defecate. The feeling that you cannot completely defecate.
Q: How long would this pain subside?
A: Depends on the disease.
Q: What about tenesmus? How long will it take?
A: It is very individual. I can’t really say.
Q: 3 days?
A: For example if the injury is very small, it is faster. Less than 24 hours.
Q: Is the rectum sensitive to pain? Generally.
A: No.
Q: Which part of the anal rectum region can cause pain?
A: [recording not clear]
Q: Do you agree that the rectum is where a lot of absorption takes place?
A: It’s not only rectum but it is the entire large area of the colon.
Q: Large bowel?
A: Yes. Not so much of the anal area but the upper rectum.
Q: Because of the absorption of the water, it can cause constipation. It may become dry?
A: The absorption can depend on the body. If you need to conserve fluid your body can retain water. So if your body doesn’t really need much of absorption, it will not absorb so much.
Q: What about constant absorption in terms of organic fluid at the anal?
A: If anything physiology is coming up downwards it absorb. But if it is coming down upwards I’m not sure. It is a process that is already happened in the intestine that has already started before it enters the rectum.
Q: Are you suggesting that the rectum is discriminating here?
A: No. It is a continuous process. It is fully there and the absorption can happen there only.
Q: In some patient, you have to administer certain medication to the rectal area. What are the general pain relief?
A: Paracetamol, voltaren.
Q: What about voltaren? That is one of it? What is the purpose of using that analgesic?
A: It gives you a faster action.
Q: What happened in there is absorption, isn’t it?
A: Yes.
Q: It doesn’t matter isn’t it? As long as it is organic, it will absorb?
A: Like I said, I can’t commit that everything can be absorb.
Q: But, it is organic fluid, not medication. It’s not oil. So can be absorb?
A: It can be absorbed.
Q: Did you do that examination on SP1. Is it not a good practice to do?
A: No.
Q: Why not?
A: Putting my finger in the anus may cause contamination. And second is injury.
Q: Are you using a sterile glove? And you need to know the anus laxity.
A: I can assess the laxity of the anus by putting the proctoscope. We will know whether it is a good tone of the anus laxity.
Q: Is it the best method? It is what I’ve been told.
A: One of the way, but not the best. If you want to assess, the best is using … manufacture That is the best instrument.
Q: This is not the best.
A: Yes.
Q: Assuming that SP1 was in a lot of pain would you be able to examine him with proctoscope?
A: I don’t think I can assess if he was in a lot of pain. The pasm and the splinter may prevent it from entering.
Q: So sensitive that you can’t even touch it?
A: The patient won’t allow you to []
SN: That’s all my question for today. Subject to recall.
YA: You have finish?
SN: Subject to the notes.
YA: Can we start with the re-examination this afternoon?
SN: YB Karpal and accused has some matter in the Parliament. No. YB Karpal has some other matters.
YA: If you want to stop early, we can stop now until 2.00 p.m. Stand down.
[1.20 p.m.] Stand down.
Kedua-dua pihak masuk ke Kamar Hakim dan prosiding ditangguhkan ke hari esok.
“+++++++++” The Full English Version “+++++++++++”
Criminal High Court 3 KL
Before Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP: All present
Defence : KS, SN, Datuk Param Cumaraswam, (Dato’ CV Prabhakaran, Ram Singh, Marissa, Radzlan absent)
WB: Zamri Idrus (for SP1)
Experts for the defence: Prof. David Wells (Dr. Brian MacDonalds absent)
AI present
[8.58 a.m.]
MY: Continuance for cross-examination of SP2. Parties as before.
KS: We have my Lord, with respect we have reservation (as to the ruling yesterday) as to whether your Lordship have really thought what he had in our submission yesterday. Your Lordship in fact did not understand what we submitted.
YA: I’ve made myself clear yesterday you are entitled to the report on 10th July, but not the notes.
KS: That is already clear. That decision was made by your Lordship previously. In fact, your Lordship has directed for that report to be produce. That is not right at all with respect to the notes.
YA: Can I see both of you in chambers, please.
KS: Yes I think you should.
[9.00 a.m.] Stand down.
[9.02 a.m.] Both parties enter Judge’s chambers
[9.23 a.m.] Both parties leave Judge’s chambers.
[9.25 a.m.]
SP2 takes oath in English.
Q: This is your first case in court, isn’t it?
A: Yes
Q: You are unsure of the evidence and all. You cannot remember, make mistakes etc.
A: It happened two years ago.
Q: The best way is to refer to the notes to refresh your memory. Because you can’t remember a lot of things.
A: I only remember the work I did. Things I did not do, I cannot remember it.
Q: Your mistake goes beyond not remembering
A: I tend to forget. I am human being.
Q: Yes. Human beings tend to forget and normal human being would want to refer to the notes. Would you not want to refer?
A: I’ve corrected myself that it is a mistake.
Q: That is in point of a mistake. I’m talking in point of you can’t remember. Why are you so reluctant to refer to the notes?
MY: What is your question? Are we having a conversation or what?
KS: I don’t know what he said. Forget about the DPP.
YA: Your question, KS?
Q: Why is you reluctant to refer to your notes?
A: Not reluctant. I think it is not necessary because I still can recall whatever things I did.
Q: Can you recall everything?
A: [witness had no chance to answer]
Q: Can you recall the history you recorded from SP1?
A: Yes.
Q: In P22, the history is in 2 liner, isn’t it?
A: Yes
Q: Can the 2 liner constitute details? Can it be accepted as details? In your view?
A: Yes.
Q: Those are the details in the notes, nothing more. Let me remind you, you are under oath. A lot of things you said which amount to perjury.
MY: It’s not for you to say that.
SN: Prosecution always interfere. Why are you interfering? You are always interfering. …
Q: You are under oath.
A: Yes.
Q: Do you bear the consequences of taking oath?
A: I’ve explained before. 7 years imprisonment.
Q: 7 years. Long time. Let’s get the truth out of you.
KS: YA, we are of the reason to believe this witness is not telling the truth. And we are making this application that we have a hunch that this witness, with regard to the nature of the evidence given that this witness what he said in court is different from what is stated in the notes. Notes constitutes a formal statement. A formal statement can be in writing. In this case there are notes.
YA: Enough for now. Stand down for a while.
[9.31 a.m.] Stand down.
[9.35 a.m.] Both parties enter Judge’s chambers
[9.54 a.m.] Both parties leave Judge’s chambers.
[10.02 a.m.]
YA: Calls the witness. Reminds that he is still under oath.
Q: You talked about a report yesterday, dated 10th July.
A: Yes.
Q: You said it was dated.
A: As I said it was on the second page.
Q: Are you sure the date is on the second page?
A: The last part [read page 2 of the 10th July report].
Q: What was you waited for?
A: We are waiting for the full laboratory report.
Q: That was obtained? When was it obtained?
A: 11th of July
Q: The three of you make a report dated 13th July, was the laboratory result available at that time?
A: Yes.
Q: You received it on the 11th?
A: Yes.
Q: From whom did you get it.
A: It’s not me who get it directly. It’s received by the Forensic Department and I was called to see it.
Q: …
A: …
Q: You have the benefit of three chemist report?
A: One report from the chemist.
Q: Who is this chemist?
A: Dr. Seah
Q: The one you received on 11th July?
A: Yes.
Q: Only one report?
A: Yes.
Q: No other report was referred? One is enough?
A: The report we received on DNA is []
Q: There’s only one chemist report adverted to in P22? No other chemist report was referred to?
A: No.
Q: You are under oath. No other chemist report was referred to?
A: No.
Q: The third time, no chemist report was referred to?
A: No.
Q: P22, page 3. There are two chemist report there isn’t it?
A: There are 2 components, but only one report. It comes together.
Q: [refer and read chemist rpt number]. Is that one report?
MY: He had answered it. First he said there is one reports but two components.
KS: …
Q: What are written there are 2 reports.
A: 2 components but one report.
Q: So one report, but two components. So only Dr. Seah’s report.
A: …
Q: Dr. Seah report is what number?
A: The report number one.
Q: Dr. Seah’s report, have you had a copy of that? Look at the top of the page, page 1. Please read it.
A: [read the number of the chemist report]
Q: So there are two reports?
A: I said it is two components.
Q: Look at P22. At the bottom of the page 3. Are both the same?
A: Yes.
Q: Both the same?
A: [read chemist rpt number]
Q: Are they the same as adverted to Dr. Seah’s report?
A: Yes.
Q: The same reports are referred to?
A: Yes.
Q: Exactly the same?
A: Yes.
Q: Read the report number in Dr. Seah’s report. Is it there in P22?
A: Yes.
Q: Looking at page 3 of P22. [read chemist report number]. They are not the same, isn’t it?
A: Which one is not the same? The number is 08-1 and 08-2.
Q: So one and two is the same? No difference between one and two?
A: Two is not included in the other one.
Q: So there is a difference.
A: Typing error.
Q: Mistake? You said it’s a typing error in P22?
A: We didn’t put the number 1 and 2.
Q: In which report there’s a typing error?
A: No.2 is missing in P22.
Q: It’s a typing error?
A: No. It’s a missing of number 2.
Q: So, there’s a third report?
A: Not a third report. Just a missing number 2.
Q: So, 1 and 2 is not together?
A: It’s missing.
Q: You said just now it’s a typing error.
A: Slip of tongue. No. 2 is missing from P22.
Q: Therefore it’s a difference report at page 3. Is one and two the same?
A: It’s different.
Q: There’s a different report at page 3. Has a different report been referred to in P22 page 3?
A: Which one?
Q: The second one?
A: …
Q: 08-1. More specific. The other one is 08-2. Would it be right? 08-2 is not in P22.
A: The report is the same.
Q: 08-1 and 08-2 is the same?
A: It’s different. The reference number is not stated in P22. But it is a full report.
Q: 08-1 is [] should be 08-2.
A: 08-1 is also a report
Q: 08-1 is wrong, isn’t it?
A: It is not wrong, but it is stated at the back of the chemist report.
Q: Chemist report is 08-2, isn’t it? And in Dr. Seah report, [read report number at page 1]. 08-1 is not there?
A: 08-1 is on the last page.
Q: I’m talking about what is at page 3 of P22. There’s actually 3 reports. Wouldn’t it be right? 08-0, 08-1, and 08-2 at ID25 should also be in P22. So, there’s 3 reports in P22.
A: They are not 3 reports.
Q: There are 3 reports?
A: There are no 3 reports.
Q: Look at the top. 08-0. Is 08-1 anywhere there?
A: Not on the first page.
Q: So what happened to 08-1?
A: It’s on the last page of Dr. Seah’s report.
Q: Where is it?
A: There. Toxicology analysis report. [read]
YA: Let me look at ID25 include.
KS: We are not supplied with that
MY: We’ve photostated 3 set for all parties. We are not making use of it.
KS: How come it’s there? We are not served with it.
MY: We talking about the specimens.
KS: We are not talking about the specimens but what was not supplied to us under S.51A Criminal Procedure Code.
MY: We are not relying on it. At no time the witness is relying on it.
KS: No question of reliance.
YA: The issue is since it is not supplied under s.51A of Criminal Procedure Code, whether it can be now made available. Now it is ID..
KS: Can they check first.
YA: Let’s proceed with other question. Or you want to stand down?
KS: Yes.
YA: Check whether it was served or not. If not served, then the question is whether it is admissible.
[10.26 a.m.] Stand down
[11.07 a.m.] Both parties enter Judge’s chambers.
[11.17 a.m.] Both parties leave Judge’s chambers.
[11.21 a.m.]
KS: Before we adjourn, we were at the documents your Lordship referred to which is technically not admissible because we were not served.
MY: It was not served,
YA: I’ll hear the full submission tomorrow.
KS: No doubt. And we will take submission on both issues together, i.e. the ruling yesterday as to the notes and the admissibility of the toxicology report.
YA: We can proceed with some other aspect with the witness.
Q: P22. As far as P22 is concern, it’s in reference only to 3 chemist report or rather 2?
A: Only one report, but 2 components.
Q: And with regard to Dr. Seah’s report, ID 25, it’s a very crucial report. Do you agree?
A: Yes.
Q: ID25 and P22, there a complete omission of 08-1.
A: 08-1 is there. The one that is not there is 08-2.
Q: I said what is in ID25. You have 08-0. In P22, there is 08-0. In ID25, there is 08-2 but that is missing in P22.
A: Yes.
Q: Likewise 08-1 is missing in ID25.
A: No. 08-1 is there. It is available
KS: We are going back to same thing My Lords. It was not served on us.
Q: Refer to ID25
A: It was one component consisting of 2 reports.
KS: The report with 08-1 is not served. Technically it is not admissible.
KS: …
MY: Chemist report is ID25, but yg belakang tu bukan ID25.
YA: Tomorrow I’ll make my decision. [] Do not refer to the past. We do not know if that is admissible or not.
Q: You said DSP Jude was present throughout 3 hours.
A: Yes.
Q: Who does the specimen taking at that time?
A: Specimens collected by us is the specimens is the swabs taken from the body and the anal area, also the blood for toxicology.
Q: How many items was handed to him?
A: 12.
Q: How many items were returned after the analysis?
A: We did not receive any return or any specimen.
Q: What about the results?
A: The result was not given to us until the 11th July.
Q: How many specimens were return? You send 12 specimens for analyisis. Surely you were waiting for the analysis of the 12th specimens. were all returned?
A: I don’t have any specimens returned, only the report was given on the 11th July.
Q: You have the laboratory report which is the result of the specimens which has been tested. And that result was in relation to how many specimens?
A: All specimens that was passed to DSP Jude.
Q: Is it reflected in P22? All12?
A: In P22, when we put the summary…
Q: On page 3, how many specimens were there?
A: All the specimens.
Q: Where is it reflected in P22?
A: No.3 where we started with the “laboratory analysis as the following”
Q: Page 3, how many specimens are referred to there?
A: All the specimens. That’s why we put the last one to “refer to chemist report”. It’s all there.
Q: Page 3, are all there? The result of the 12 taken specimens sent to the laboratory for analysis.
A: Yes.
Q: That result is in relation to how many specimens referred to In there?
A: It’s not written but we have the report.
Q: Would it be correct you have it so you can make a conclusive report?
A: Yes.
Q: So you have all the material on 13th for you to come to the conclusion on page 4?
A: Yes
Q: So the report of P22 is conclusive, from whatever you requires and have at that time?
A: All the result is conclusive.
Q: You told the court yesterday that SP1 had been examined by another doctor at Pusrawi?
A: Yes.
Q: Are you aware when SP1 was examined by Dr. Osman at Pusrawi it is stated that the patient alleged that his anus is inserted with a plastic?
A: No. I’m not aware of it.
Q: Was SP1 questioned by anyone of you?
A: Yes.
Q: But this was never reveal to you ?
A: No, it was not.
KS: That will be all for now.
MY: What do I do now, YA? Do I re-examine now?
KS: SN Nair will continue.
SN: Can I ask for a stand down for 15 minutes?
YA: I’m sure you know what to cross. Of course I’ll give you 15 minutes, but please do not repeat the cross. You have to be on different aspect. You check what KS has asked first. We cannot have different counsel asking the same question to the same witness. Whatever KS has ask, you don’t touch on it.
[11.38 a.m.] Stand down.
[11.56 a.m.]
Q: You mentioned that you have interview Saiful.
A: I was not the one interviewing. I was there when the other 2 doctors interviewed him.
Q: But you read the note
A: Yes.
Q: Evidence in chief, you mentioned about lubricant
A: Yes. And also during the interview by the 2 doctors.
Q: You heard the interview?
A: Yes. And also from the history mentioned by the 2 doctors. When there is clarification of the history by the 2 doctors, I was there in the room.
Q: P22, and ID 25. Are you familiar with the documents?
A: Yes
Q: Is lubricant a vital piece of information?
A: Yes
Q: Why is it important?
A: It plays important role eg. In case of sodomy you use lubricant it definitely will help the process of sodomy without causing injury.
Q: ID25 and P22. You just said it is very important. Can u show me where in this report that you have ask specifically for a test for lubricant?
A: It is not necessary to make a test for lubricant.
Q: How can it be?
A: Lubricant may be use to make the process easier.
Q: You just mentioned that it was so important. Therefore it is important for you to look for.
A: It is not necessary.
Q: Now you said it is not necessary.
A: It’s necessary to know whether lubrication is use or not. But it is not necessary to test the presence of lubricant.
Q: How would you know if there was or there was not?
A: My job is to check for the presence of any semen or fluid.
Q: I just ask how would you know. My question is very specific.
A: I was made aware and it was rectified by the other 2 doctors.
Q: You are not answering my question. If you have interpreted certain results, you did not or a party to the analysis. Is that correct. you didn’t analyse the sample, did you?
A: I didn’t analyse it.
Q: So, how would you know? That it was there or not? Would you know or not the lubricant was used? You have to do a test. But the test was not done by you, but the chemist. That’s why I need to ask. Did you ask for the test of lubricant? Did you take a swab?
A: We didn’t ask for the test of the lubricant.
Q: You did not? That’s all I want to ask.
A: No.
Q: Lets go into the swab. But I’m sorry My Lord, I‘ve to ask for this question first. I want to ask about the habit of his bowel behaviour.
A: The only question about his bowel was whether he passed motion. That was what was inquire by the two doctors.
Q: But how about many hours before?
A: He mentioned he did not passed motion for 2 days before he came to us.
Q: Did you ask his natural, regular bowel habits?
A: I don’t really ask on that because to me the relevance of it is not important at that time.
Q: Not important at that time? Isn’t that important to ask a man of his natural bowel behaviour?
A: If you think something related to his bowel habits, …
Q: But that is important isn’t it? And normally asked by doctors.
A: The history is not something that you have to ask at the beginning and stop. If the examination is peculiar and related bowel movements, then we ask.
Q: It’s a very common medical practice to get full medical history. Can we agree on that?
A: Yes.
Q: Can we agree on that that the full medical history is incumbent?
A: Depends on what are the complaints.
Q: You said it is a sodomy case.
A: But the important at that time is to rectify if there is a process of sodomy or not. And if there is any finding that is relevant for .e.g. there is any injury, we need to rectify whether there are other things that may cause injury.
Q: Isn’t it not good practice and isn’t it incumbent in medical case that you get the full medical history?
A: Not necessary at the beginning. The history can come at any time during the process.
Q: You said you don’t have to ask?
A: The history continues. If we need we can clarify at any time.
Q: If a patient goes to the toilet 3 days at a time, or 3 times a day, is it not relevant in a sodomy case?
A: It depends on the case.
Q: I put it to you it is relevant. If someone goes to the toilet 3 times a day, there will be nothing.
A: Depends on the examination.
YA: He disagrees. You put it masa submission whether betul or tak betul.
SN: The witness is not answering my question. It is a simple question of medical examination.
YA: Dia tidak setuju.
SN: He said something else.
MY: He said depends on the situation. You are making a general statement.
Q: “ Rectal flora”. Can you explain what it is? How many types and the quantity.
YA: In this particular case or generally?
SN: Generally
A: Organism available in normal person where it considers where organ, the house that they live ….
Q: I’m asking what types and what numbers do you find of a rectal flora in human bodies. Not the function of it.
A: There are various types. The one I can remember is echolie, repsolie, enrobics, protious and many more which I can’t remember all. The quantity can be millions, cannot be easily quantified.
Q: And any material that gets in can be taken out immediately, e.g. bacteria.
A: It may works immediately, but I’m not sure. It may take effect immediately what goes in, but how fast it can be acted upon I’m not sure.
Q: What you heard about what he told Dr. Osman he discuss about pain. Did he ever discuss about pain in the anus?
A: It’s a further clarification that was asked to the victim. The reason why he went to Pusrawi, he complaints was pain in the anus.
Q: That was mentioned to you by SP1?
A: When I went through the notes, that’s what I get.
Q: And you never ask him. Of course, you examined him. Did you ask him as well?
A: No. I did not go further on his history.
Q: Did he say the pain was still there?
A: I didn’t ask.
Q: But he never told? He never told you. Did he told anyone of you that he is still in pain?
A: I cannot remember.
Q: IDD16-Pusrawi Report shown. Refer to the first page. Can you read it.
A: [read medical history]
Q: You mentioned that he went to Pusrawi…
A: It’s stated pain initially but cancelled of.
Q: I don’t think it was cancelled of.
A: Oh, the third line.
Q: Let me read it to you….”Pain when passing motion”
A: [doctor reiterated]
Q: You mentioned earlier that he went to Pusrawi and did an examination there.
A: Yes.
Q: If you are aware that there was pain, would you or would you not ask him again before you proceed?
A: Before I start, I will definitely ask the patient whether I can proceed or not.
Q: If the patient complaints about the pain, would you ask him. If there is pain, would you then proceed?
A: If before I start my examination, I’ll explain to the patient I’ll insert something into the bottom part, and if there’s pain I will definitely not proceed.
Q: Are you suggesting that he was not in pain?
A: Yes. I ask whether I can proceed.
Q: Is it not a good practice to ask the question in the first place?
A: Definitely we have to ask.
Q: Did you ask him?
A: Not directly whether he has pain or not. It is the way I explained to him the procedure about discomfort and pain and the patient said it’s okay.
Q: Did you ask him directly?
A: Because during the process or before the procedure we need to ask.
Q: Before you did the procedure, you need to ask, don’t you?
A: I can’t remember. Whether or not I ask him directly I can’t remember. But I did explain. I can’t remember specifically whether I ask or not.
Q: Do you agree it is a proper practice to ask?
A: Yes.
Q: And you explained to him?
A: Yes.
Q: What did you do next? Step by step.
A: I explained the procedure that I want to do, I started of with the ….
Q: I want more specific. His position.
A: I position him in the left lateral on the examination bed and ask… the patient has to face against me, facing the wall so that I would be on the back. The right side of the hand and the body will be on the upper part.
Q: [witnessed referred to an article with a diagram] would it be in that position? Is that a lateral position?
A: Yes. This is a lateral position. The knee needs to go further on the chest. That’s the position I can do the examination easily. It gives good exposure and that is the position the patient will be comfortable during the procedure.
Q: Is there any guidelines you have as a medical officer as to the positioning?
A: There is no guidelines as to the position during the proctoscopy examination. The standard practice usually people will put in a lateral position.
Q: And where did you get this standard practice from?
A: In the process of studying from student to medical doctor. It’s a common practice in hospitals.
Q: Is there any international guidelines?
A: I’m not really aware of it.
Q: Agree that if you do according to your own standard there is a high risk of contamination?
A: I disagree.
Q: This is according to you style and not on the international guidelines.
A: It is something that we practice so many many years.
Q: And there is no guidelines at all?
A: I’m not aware of it. There is no specific positioning when you do proctoscopy examination.
Q: You did this on daily basis, don’t you? And you can’t refer to me any guidelines?
MY: What are you asking?
YA: He already answered that he is not aware.
MY: He already answered.
SN: There must be a guideline somewhere. But he doesn’t know.
MY: There could be.
YA: If you have guidelines, then you show.
Q: Now swabs. How do you go about taking the swabs?
A: As I explained just now, after putting him in the position of left lateral position, and the knee upper to the chest to give us good exposure to do the work. Subsequently, I use the equipment called proctoscope. In this case, plastic proctoscope. Before I put the proctoscope in, I use saline. To my experience if I put the proctoscope without saline or any lubrication it can cause discomfort or any other injury at the anal. And I can’t push it in of the splinter. I’m worried I’m the one who would cause the injury. So I decided to use a Lignocaine gel as a lubricant for my insertion of the proctoscope to the victim. I successfully put the proctoscope in him and I visualize the rectum and with me also there was a sterile swab. It was passed to me and I use that swab to take the sample to the highest place which it can reach in the rectum as the first specimen. And then I swab in circular the highest part and take out the swab and put in the container which is already made available by Dr. Siew. I take 2 samples from the upper part that the most reachable part of the rectum and passed it back to Dr. Siew and he labelled it. And the same goes to the third specimen when I bring the proctoscope out from the patient’s rectum.
Q: How about peri anal swab?
A: Peri anal swab was taken before I proceed with the proctoscopy examination.
Q: Refer P22, page 3, item 1-12. Is this swabs taken in this sequence?
A: Yes.
Q: Who did the swabbing first?
A: Dr. Khairul.
Q: And you when? Second?
A: Yes.
Q: This is exactly the sequence?
A: Yes.
Q: Did you then photographed the swabs?
A: I can’t remember. Photographs were taken but the swabs I can’t remember.
Q: What do you mean?
A: Photographs were taken when I did the examination. The swabs I was not aware. As far as I remember, I passed the swabs to Dr. Siew immediately.
Q: What was the states of the swabs? Were they clean swabs?
A: Definitely. I follow the sterility method that’s supposed to be followed. And it is supposed to be a clean process of taking the swabs.
Q: What was the condition of the swabs after taking?
A: I saw some staining on the swabs in the process of taking out the swabs. I can visualized it.
Q: Are you referring to mucosa?
A: It should not be. Mucosa is the wall of the rectum. We swab material on the mucosa.
Q: You’ve got to swab the wall.
A: Mucosa is the wall. We swab the wall. But what comes out is not mucosa, but the material on the mucosa.
Q: Is photographing swabs a standard procedure? Is it a good thing to do?
A: The swabs are taken for analysis, it is meant for analysis and it will be sent to the laboratory and ought to be ratify.
Q: Are you trained forensic?
A: No.
Q: You said that photographs were taken. What photographs were taken?
A: It is for the findings during examination. Findings on body like scars. The one I remember was at the body. When you have a positive finding, you photographs it.
Q: Positive findings only? Or generally you’ll take the photographs? Other you did not? There would be other scars, e.g. appendicitis.
A: If there is positive findings.
Q: Did you take any photographs?
A: I did not.
Q: Did you know any photographs were taken?
A: Yes.
Q: Were you aware there were earlier proctoscopic examination before you proceed?
A: Yes. On the further clarification on the Pusrawi story. According to the victim, he said he was examined, but whether using proctoscope or not, he did not know.
Q: You did not ask him?
A: I did not ask him directly, but he said some instrument were used.
Q: So, there was some instrument used. Was it instument used to enter his anus?
A: We do not know the details.
Q: What else if not proctoscope?
A: I’m not aware of that.
MY: He doesn’t know that this thing is called proctoscope. If he said it is instrument, it is instrument.
YA: Ask him whether the instrument is proctoscope.
Q: Did he say anything was inserted?
A: He did not say inserted but used.
Q: Did you ask him?
A: I did not ask further.
Q: Is it not logical to ask? If there is something used, surely there should be lubricant introduced inside?
A: Yes.
Q: When you use the proctoscope, that would be a second one, is it? There will be contamination.
A: Without using the proctoscope there will be no way I will know there is penetration towards the anus.
Q: You could’ve asked this question.
A: I did not ask on that part. I was not involved in the history taking.
Q: But he was there.
A: I was made aware something was done to him but to what extent I did not ask.
Q: Why did you not ask?
A: Because at that time I just want to do the examination on the patient. I don’t clarify further. I know in my mind something might have been done onto the patient.
Q: Surely here if something was done, were you aware when you swab there would be contamination or cross-contamination?
A: Yes.
Q: Surely here if something was done, don’t you think it is a good practice to ask first to prevent contamination or cross-contamination?
A: It’s a good practice to ask.
Q: You said pictures were taken. Where in P22 stated that pictures were taken?
A: Of course it was already written on the report so it was not necessary.
Q: Can you produce the photographs?
A: It’s not with me. It’s with the Forensic Department.
Q: Is it available?
A: I need to check it first.
Q: Can it be made available?
A: Yes.
SN: I would like to look at the photograph.
YA: Are you entitled to it? I made a ruling which went up to the Federal Court.
SN: This is in the course of proceeding. What was in the Federal Court is the pre-trial stage. So it may not apply.
MY: As of now, what has been establish is the photographs of the scars. If you want other photographs, what is the relevancy?
SN: Relevant for my expert.
MY: You’ve not establish which part.
Q: Which photographs of the part taken?
A: Example, pigmentation of the scars.
Q: Were there photographs as to the genital area and the anus?
A: No. Just for the scars.
Q: About the high rectal swabs. How high were the swabs taken?
A: The equipment, i.e. the proctoscope’s length is about 6.5 cm. If you can enter completely it in, you can reach the rectal part. Specimens can be taken, after you take out the introducer, you can go as high as 2.5 cm.
Q: How long is a male adult rectum?
A: The rectum is about 12-15 cm.
Q: And the anal canal?
A: 3-4 cm.
Q: In this particular case?
A: If I put the proctoscope of 6.5 cm, I already reached the lower part of the rectum. And I have the swab with a length of 15 cm, and if I take a length of a 15cm swab, I can go 2.5 cm further.
Q: [witness is shown with a proctoscope from the defence] Are they of a standard size?
A: We have the smallest one for kids.
Q: This one, is it the same size you use?
A: Mine was 6.5 cm.
YA: Anybody has a ruler?
[witness is given a ruler and measured.]
A: Yours is longer.
YA: How long?
A: This one is about 8 cm. I used 6.5 cm.
Q: You said you went 2.5 cm further up.
A: Yes. From the end of the proctoscope.
Q: What was the condition of the anal? The rectum?
A: The rectum was empty.
Q: Did you record that down?
A: I did not.
Q: Would it not be important to record it down?
A: Not for this case.
Q: Why?
A: Because if it is full, it will be significant because faeces will come down. But no faeces came down from the rectum. So I have opportunity to take without the disturbance of the faeces.
Q: So you got a swab from an empty rectum?
A: Yes.
Q: We go back on the pain. If someone complaints of severe pain and come to you for examination, would you be able to touch him at the anus?
A: I will need to elicit where the pain is and I need to localize the pain.
Q: They can’t even sit down, is it correct? How are you going to examined him?
A: External examination only. We will find the pain and gives us the idea of …
Q: What about the peri anal region? Something you cannot see?
A: Normally we will not put the proctoscope in without a proper anaesthesia.
Q: So, if you have anal pain, you can still do anal examination after giving anaesthesia?
A: Yes.
Q: In this case, there is an element of pain. Yet you put the proctoscope in easily.
A: Like I explained just now, I ask the patient and explained the procedure. I explained to him that he might experience discomfort and pain. But he said okay. And I continue with the examination.
Q: Did you use saline?
A: I use saline to lubricate the proctoscope before I insert it during my first attempt.
Q: If you use saline, will there be any effect of anymic?
A: The amount is small.
Q: You think small amount will not case anymic?
A: Yes.
Q: Are you sure?
A: It is a normal mechanism to prevent us from causing injury. If there is resistance, I will not put it in because I might cause injury.
Q: How many attempt?
A: Only once.
Q: SP1 mentioned of a non-consensual act. Did he mentioned it to you?
A: Yes.
Q: If that is so, usually the anal area will be constricted and therefore it will be difficult to enter?
A: Yes, difficult normally.
Q: Even if you were to do it using gel, it will still be very difficult to do it.
A: Initially we have problems to enter, but in human being there is a physiology process called physiological reflects at the anal canal where the constricting anal will relax.
Q: But that’s a very long process. We are talking about an instance, a very instance constrict reaction. It will not only cause some level of trauma, but also tear and seizure.
A: It may.
Q: Normally if person have pain in the anus, what will be the cause?
A: Can be caused by Lots of factors. One, must consider whether he has infection. That’s a common thing. There can be infection at the peri anal and also the inside. The second one is where you have like disease at the anal rectum where you can have active faeces which can cause a lot of pain. third one is if you have any injury inside, problem with your motion, you have like a fissure that can cause pain also.
Q: Tenesmus?
A: Yes.
Q: What is a tenesmus?
A: It is a feeling or the sensation that you have when you wan to defecate. The feeling that you cannot completely defecate.
Q: How long would this pain subside?
A: Depends on the disease.
Q: What about tenesmus? How long will it take?
A: It is very individual. I can’t really say.
Q: 3 days?
A: For example if the injury is very small, it is faster. Less than 24 hours.
Q: Is the rectum sensitive to pain? Generally.
A: No.
Q: Which part of the anal rectum region can cause pain?
A: [recording not clear)
Q: Do you agree that the rectum is where a lot of absorption takes place?
A: It’s not only rectum but it is the entire large area of the colon.
Q: Large bowel?
A: Yes. Not so much of the anal area but the upper rectum.
Q: Because of the absorption of the water, it can cause constipation. It may become dry?
A: The absorption can depend on the body. If you need to conserve fluid your body can retain water. So if you body doesn’t really need much of absorption, it will not absorb so much.
Q: What about constant absorption in terms of organic fluid at the anal?
A: If anything physiology is coming up downwards it absorb. But if it is coming down upwards I’m not sure. It is a process that is already happened in the intestine that has already started before it enters the rectum.
Q: Are you suggesting that the rectum is discriminating here?
A: No. It is a continuous process. It is fully there and the absorption can happen there only.
Q: In some patient, you have to administer certain medication to the rectal area. What are the general pain relief?
A: Paracetamol, voltaren.
Q: What about voltaren? That is one of it? What is the purpose of using that analgesic?
A: It gives you a faster action.
Q: What happened in there is absorption, isn’t it?
A: Yes.
Q: It doesn’t matter isn’t it? As long as it is organic, it will absorb?
A: Like I said, I can’t commit that everything can be absorb.
Q: But, it is organic fluid, not medication. It’s not oil. So can be absorb?
A: It can be absorbed.
Q: Did you do that examination on SP1. Is it not a good practice to do?
A: No.
Q: Why not?
A: Putting my finger in the anus may cause contamination. And second is injury.
Q: Are you using a sterile glove? And you need to know the anus laxity.
A: I can assess the laxity of the anus by putting the proctoscope. We will know whether it is a good tone of the anus laxity.
Q: Is it the best method? It is what I’ve been told.
A: One of the way, but not the best. If you want to assess, the best is using [] manufacture That is the best instrument.
Q: This is not the best.
A: Yes.
Q: Assuming that SP1 was in a lot of pain would you be able to examine him with proctoscope?
A: I don’t think I can assess if he was in a lot of pain. The pasm and the splinter may prevent it from entering.
Q: So sensitive that you can’t even touch it?
A: The patient won’t allow you to []
SN: That’s all my question for today. Subject to recall.
YA: You have finish?
SN: Subject to the notes.
YA: Can we start with te re-examination this afternoon?
SN: YB Karpal and accused has some matter in the Parliament. No. YB Karpal has some other matters.
YA: If you want to stop early, we can stop now until 2.00 p.m. Stand down.
[1.20 p.m.] Stand down.
Both parties enter Judge’s chambers and proceedings are adjourned until tomorrow.
Anwar Ibrahim Sodomy II – The Recorded Truth – 18 October 2010 October 18, 2010
Posted by malaysianstory in Anwar Ibrahim, Sodomy II, Transformation in PKR.Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
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Di dalam Mahkamah Persekutuan
Di hadapan YAA Tan Sri Ariffin bin Zakaria, CJM
YA Tan Sri James Foong Cheng Yuen, HMP
YA Dato’ Seri Md. Raus bin Sharif
Pihak-pihak:
PP : MY, WCK, NAA
PB : KS, SN
[3.18 p.m.]
YAA: This case is for decision. This is the judgment of the court. I may not read all of it.
This appeal relates to the ruling made by the trial Judge in the ongoing criminal trial in the High Court at Kuala Lumpur, bearing No 45-9-2009, where the Appellant is facing a charge under section 377B of the Penal Code. The ruling arose from the application by the learned counsel for the Appellant for the statement of the Complainant (PW 1), recorded under Section 112 of the Criminal Procedure Code (112 statement), to be produced for examination by the Appellant. Learned trial judge dismissed the application and the reasons for his decision are found in his judgment dated 11th May 2010. For the reasons appearing in this judgment, we are not concerned at this stage with the issue of whether the trial judge was correct in his ruling or otherwise. The point issue in this appeal is whether the decision by the trial judge is appealable.
In the Court of Appeal, the prosecution took the stand that the ruling of the trial judge under challenge does not fall within the term “decision” as defined in section 3 of the Court of Judicature Act 1964 (CJA) and hence not appealable. The Court of Appeal agreed with the prosecution. The reasons for their decision are found in what is described as the “broad reasons” read out at the end of the hearing of the appeal.
In his submission before us, learned counsel for the Appellant firstly raised the issue of the failure of the Court of Appeal to furnish the grounds of decision until the date of this hearing even though, according to him, the notice of appeal was filed on 28th June 2010. He submitted that without the detailed grounds of judgment, which the Appellant is entitled to under Rule 91(1) of the Rules of the Federal Court 1995, the Appellant is prejudiced in putting up a proper petition of appeal. In support, he cited Ankur Nath Ganguli v. Public Prosecutor (1956) 1 LNS 9. On that premise, learned counsel urged this Court to direct the Court of Appeal to furnish their grounds of judgment and pending that, the appeal should stand adjourned.
The learned Solicitor General II in his respond submitted that the so called “broad reasons” as furnished by the Court of Appeal in this case is in fact the grounds of judgment of the Court of Appeal and the Appellant can proceed with the appeal relying on the said “broad reasons”. He submitted that we should look at the content and not the label assigned by the Court of Appeal. Further, since the Court of Appeal had furnished their grounds of judgment earlier, therefore, it is not open to the Court of Appeal at this juncture to furnish any further grounds. He cited a number of authorities in support of his contention.
Having perused the “broad reasons”, we agree with the learned Solicitor General II that the “broad reasons” as given by the Court of Appeal for all intents and purposes is their grounds of judgment in support of their decision and on that premise, it is not open to us to direct the Court of Appeal to furnish further grounds.
In this connection, we wish to state that grounds or reasons for a judgment are required so that parties, particularly the unsuccessful one, would know why the judge arrived at the decision the way he did. The reason need not be long especially when the outcome is obvious. It can be obvious when facts are not in dispute and the law is well established. In such a case, all that is needed is the conclusion and his reason in support of the same. This is not to say that in all cases judgments should be brief and concise. Where facts are disputed, the judge has to discuss and analyse them. Where the law is seriously doubtful, he should argue it out before arriving at a decision. More often than not, judgments become long because facts which are sometimes unnecessary are repeated. Laws and authorities which are well established are recited over and over in the same judgment. Statements are often repeated in different ways. Sometimes, this is intentionally done to stress a point. It only makes the grounds long and unwieldy. Having said that, this is not to discourage judges from writing comprehensive grounds, if they have the ability and time to do so.
In this appeal before us, the grounds of the court of appeal though described as “broad reasons” are to us clear and comprehensive, it contains all the ingredients of a speaking judgment. Anyone, familiar with the facts and background of this case would understand why the Court of Appeal arrived at the decision.
We agree that as a general rule, it is incumbent upon the court making a decision to provide reasons for its decision as litigants are entitled to the same. But this grounds of judgment, as we said earlier, need not be long, depending much on the subject matter in issue. In some instances, short and concise grounds of judgment will suffice.
In the instant case, the issue before the Court of Appeal was whether there is a right of appeal from the decision/ruling of the learned trial judge. The Court of Appeal gave brief but concise reasons citing a number of authorities in support of their decision. In the circumstances of this case, we think the Court of Appeal had properly discharged its duty. In fact, our learned Chief Justice has been advocating that judges should strive to write short and concise judgment where appropriate. We entirely agree with him. This is what the Court of Appeal had done in this case.
Having ruled as above, we then asked the learned counsel for the Appellant to proceed with the appeal.
In the course of the cross-examination of PW 1 at the trial of this case, the learned counsel for the Appellant applied to the Court to be furnished with all the statements made by PW 1, including his 112 statements. Based on the evidence of PW 1 in the court and the charge against the accused the learned counsel claimed that he had a hunch that PW 1’s statements to the police were inconsistent with his evidence in Court. In support , he referred the Court to the police report exhibit (P 3) lodged by PW 1 which stated that the alleged act of sodomy was committed without his consent. Similarly in his evidence in Court, he maintained the same stand.
However, the charge the accused is facing is one under section 377B of the Penal Code and not under section 377C of the Code, where the prosecution needs to prove that the alleged act was committed without the consent of the PW 1. For a charge under section 377 B of the Penal Code consent is not in issue, thus the learned counsel contended this is contrary to the evidence of PW 1 that the alleged act was committed without his consent. For this reason, he applied for the statements of PW 1 to the police, in particular the 112 statements, to be furnished to him for the purpose of cross-examination of PW 1 under section 145 of the Evidence Act 1950. Learned counsel cited Husdi v. Public Prosecutor (1980) 2 MLJ 80 and Public Prosecutor v. Dato’ Seri Anwar Ibrahim (2010) 4 CLJ 265 in support of his application.
The application was dismissed by the learned trial judge. He gave his reasons for the same in his judgment dated 11.5.2010. Against that the Appellant appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal on the sole ground that its not seized with the jurisdiction to hear and determine the appeal. It held that the ruling of the learned trial judge which is the subject of the appeal does not come within the meaning of the word “decision” as defined in section 3 of the CJA.
Learned counsel for Appellant submitted that the learned judges of the Court of Appeal were wrong in concluding that the Appellant’s appeal was “an interlocutory appeal” on the ground that, had the 112 statements been supplied to the Appellant, this would have been sufficient basis for the Appellant to apply to impeach the credibility of PW 1. Had this been allowed by the Court of Appeal he said, the rights of the parties would have been finally determined. Therefore, he contended that the order of the learned trial judge in dismissing the Appellant’s application for copies of 112 statements is an order falling within the definition of “decision” in section 3 of the CJA.
The learned Solicitor General II, in his comprehensive reply contended that it is common ground that the ruling was made by the trial judge in the course of an ongoing trial. As such, he said it is clearly not appealable as it does not come within the word “decision” in section 3 of the CJA.
It should be stated at the outset that, appeal is a creature of statute. Therefore, whether there is a right of appeal or otherwise in a given case will be governed by the relevant statute. In this present case, it will be section 50 of the CJA, [read Section 50 of CJA].The word “decision” appearing in sub-section (1) of section 50 is defined in section 3 of the CJA [read Sec.3 of CJA]This provision came for consideration by the Court of Appeal in Dato’ Seri Anwar bin Ibrahim v. Public Prosecutor (1999) 1 MLJ 321. In that case, the issue was whether the matter of bail is appealable to the Court of Appeal, taking into consideration the definition of “decision” in section 3 of the CJA subsequent to the amendment to it in 1998. In that case, it was held by the Court of Appeal that this new definition of “decision” in the amendment does not include a judgment or order which does not deal with the rights of the parties in the matters in dispute. It was further held that only the outcome of the trial that would have the effect of finally disposing of the rights of parties would come within the word “decision”. On this premise, the order of the High Court in refusing bail was held to be unappeallable to the Court of Appeal.
[]
The term “interlocutory” used therein is specifically in reference to civil matter as opposed to a criminal matter.(See para. 501 of Halsbury’s laws of England, 4th Edn. Vol. 26). It includes an order made before and after judgment in a matter before the Court. Whereas, what section 3 of the CJA seeks to exclude from the term “decision” is a ruling made in the course of a trial or hearing which does not finally dispose of the rights of the parties. In other words, the ruling must by definition be made in the course of a trial or hearing and not before or after as envisaged in the definition of “interlocutory”. In fact, in Dato’ Seri Anwar Ibrahim v. Public Prosecutor (2010) 4 CLJ 265, this Court was asked to decide whether an order made by the trial judge pursuant to section 51 and/or section 51A of the Criminal Procedure Code is appealable. In that case, this Court held that the order was a final order as it finally disposed of the rights of the parties and therefore it was appealable. Further, this Court held that the order was not made in the course of a trial. For that reason, the order made by the trial judge does not fall within word “decision” as defined section 3 of the CJA. No doubt that the application under section 51 and/or section 51A is an “interlocutory” application as defined in Halsbury. Therefore, it is highly inaccurate to say that in a criminal trial, all decisions on interlocutory applications are not appealable.
In contrast, we have the Court of Appeal’s decision in Saad bin Abas & Anor v. Public Prosecutor (1999) 1 MLJ 129. In that case, the applicants were jointly tried before the Magistrate Court and at the close of prosecution’s case, they were acquitted and discharged by the Magistrate. On appeal to the High Court, the decision of the Magistrate was reversed and directed the applicants to enter upon his defence. The applicants applied for leave to appeal to the Court of Appeal under section 50(2) of the CJA against the order of the High Court. The application was dismissed by the Court of Appeal.
The learned Solicitor General II also referred us to the case of Public Prosecutor v. Hoo Chang Chwen (1962) 28 MLJ 284, which was a case decided under the Singapore Criminal Procedure Code (Cap. 132). This case concerned a ruling by the Magistrate ordering copies of statements made to the police by the complainant to be furnished to the defence. The prosecution appealed. The High Court dismissed the appeal on the ground that the ruling was made in the midst of a trial and hence it is not appealable. [read decision by Rose CJ]
The underlying reason behind the amendment to the definition of “decision” in section 3 of the CJA, introduced by Amendment Act A 1031 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 [read expanatory statement]
Quite apart from the explanatory statement to the Bill the definition of “decision” by itself, to our mind, is sufficiently clear, and it is the duty of the court to give effect to the same. Justice demands that cases should move without unnecessary interruption to their final conclusion. That is what the amendment seeks to achieve. 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 appeal, if any, to be filed after the trial process is brought to its conclusion.
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 section 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.
Accordingly, the appeal is dismissed.
[3.45 p.m] Appeal dismissed.
Anwar Ibrahim Sodomy II – The Recorded Truth – 17 September 2010 September 17, 2010
Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Pakatan Rakyat, Sodomy II, Transformation in PKR.Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
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Di Dalam Mahkamah Rayuan
Di hadapan : Y.A. Dato’ Ahmad bin Haji Maarop, HMR
Y.A. Dato’ Sulaiman bin Daud, HMR
Y.A. Dato’ Azhar bin Haji Maah, HMR
Pihak-pihak:
PP : Semua hadir
PB : Datuk Param Cumaswaram, KS, SN
Rayuan terhadap keputusan Mahkamah Tinggi di dalam permohonan mengenepikan pertuduhan
[9.45 a.m.]
YA: The appellant is here?
KS: Yes.
KS memohon untuk berhujah dalam Bahasa Inggeris
KS: This is an appeal against the decision by Yang Arif Dato’ Mohamad Zabidin Mohd Diah in the High Court on the application to strike out the charge. I take you to the translation of the appeal.
YA: Is there any preliminary issue?
MY: I thought KS will address the issue first on whether it is appealable or not.
KS: We accept it as a final order. In fact the Lordship in High Court accepts it as a final order.
MY: I believe YA in the High Court did not make any ruling on that.
YA: I raise this because in the skeletal submission of the respondent the issue was raised.
KS: We did not anticipate my learned friend to submit on this. We did not receive any notice on this.
MY: The only reason we did not give any notice is that in the lower court in fact in the High Court, on the application for stay this is the thing that the court has to consider, whether the matter is appealable or not. We have raised this point consistently in the High Court. So there is no point to give notice.
YA: So, are you ready to submit on this point?
MY: Yes.
YA: It’s only a short point, I guess.
KS: Short point, but crucial to us my Lord. It will be difficult for us because we have to argue based on merits. [] I was under the impression that the matter is considered less. It can be found in my learned friend skeletal submission in the High Court.
YA: What pages are you referring to?
KS: I refer to my learned friend skeletal submission in the High Court. Here, in the bundle.
MY: Page 33 of the appeal record. Paragraph 20.
KS: [read para 20]. It was certainly is a final order. []
YA: So you are not making any submission on the issue?
KS: I will. In fact it is in my learned friend skeletal submission. Unfortunately my learned friend did not give notice, but we don’t mind to go into the matter. Unless my learned friend wants to stick with the preliminary issue.
YA: So we can proceed on the issue?
KS: []
YA: We proceed on the preliminary issue first, and then we’ll proceed with the merit of the application.
KS: We can’t []
MY: May I refer to para 20. It only refers to the nature of the application, not the order.
YA: What you are saying is it may be interlocutory order, but not a final order?
MY: Yes. The nature of the application is only a final order. It cannot contain hearsay. It is pertinent for us to know the nature of the application and then to decide whether the application is a final order or interlocutory. If it is not interlocutory, the facts deposed by the deponent must be based on his personal knowledge. [] The order is a different thing. If the order is against us, the order is final for us, but not to them. If it not against us, it is not final for us, but to them.
YA: Before we go the merits, let’s hear the preliminary objection first. So are you taking up this point?
MY: Yes. Because it is not appealable, then the court has no jurisdiction to entertain this matter.
YA: In fact this point is a short one. KS has submit it in various cases even in the Federal Court and you have argue this point outside.
KS: Outside is the other thing. In fact, when we submit this issue on the application of 112 statement of SP1, it is different. Why if there is anything against them, they can appeal, but when it is against us we cannot appeal?
YA: []
KS: [] My learned friend should serve the notice on preliminary objection earlier. We are seeking time until Monday. We should not rush things.
YA: What if we give you time until 3.00 p.m. today.
KS: We need time to look into it. This is an important matter. The prosecution is an abuse process of the court. The case should be thrown out.
YA: MY, what’s your opinion?
MY: I agree with your Lordship for the matter to be heard in the afternoon. The case itself is [] The authorities we are using are still the same and also Section 3 of Courts of Judicature Act 1964. I don’t think it would be a problem for us to continue this afternoon. [] in fact Ks can refer to [].
KS: There is one reserved judgment by the Federal Court in the appeal on 112 statement.
YA: We’ll stand down the matter for a while.
[10.15 a.m.] Stand down
[10.28 a.m.]
YA: So, position is still the same?
MY: Yes.
YA: Monday is on the 20th September 2010. So, we’ll take it up at 9.00 a.m. because there is other cases.
[10.32 a.m.] Appeal adjourned.
Anwar Ibrahim Sodomy II – The Recorded Truth –16 August 2010 August 16, 2010
Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Sodomy II, Transformation in PKR.Tags: Farah Azlina, Jude Blacious, Karpal Singh, Malaysian Story, Mohamad Hanafiah Zakaria, Sodomy II
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******* The Full English Version (In Blue) After “+++++++++++”
Di Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Permohonan Mengenepikan Pertuduhan
Pihak-pihak:
PP: Semua hadir
PB: KS, SN, Dato’ CV Prabhakaran, Radzlan, (Marissa, Ram Singh, Datuk Param Cumaraswam tidak hadir)
WB: Andy Yong (Bar Council), Mark Trowell (QC for the Law Asia, CLA and ICJ)
AI hadir
Keputusan 44-176-2010
[9.14 a.m.]
YA: [read his decision]
DSAI, pemohon dalam notis usul memohon agar Mahkamah membatalkan pertuduhan di bawah Seksyen 377B Kanun Keseksaan yang sedang dihadapi oleh beliau. Permohonan ini disokong dengan afidavit sokongan pemohon. Pemohon mendakwa Cik Farah Azlina (FA) mempunyai privy kepada kertas siasatan, FA mempunyai hubungan sulit dgn SP1, SP1 telah diberi taklimat mengenai kandungan kertas siasatan melalui hubungannya dengan FA dan berikutan dari itu, intergriti dan kebebasan pendakwaan terhadap Pemohon telah terjejas.
Pendakwa membantah permohonan ini dan memfailkan dua afidavit balasan yang diikrarkan oleh Mohamad Hanafiah Zakaria dan Jude Blacious. Dalam afidavit, pihak Pendakwa tidak menafikan atau mengesahkan terdapat hubungan antara Cik FA dengan SP1 tetapi hanya menegaskan peranan Cik FA dalam kes ini hanya tertumpu pada mencatat keterangan yang diberi oleh saksi dalam Mahkamah. Oleh itu, SP1 juga tidak mempunyai akses kepada maklumat yang ada dalam kertas siasatan.
KS berhujah dan mendesak agar Mahkamah menerima apa yang dinyatakan oleh Pemohon dalam afidavitnya sebagai benar kerana tiada sebarang penafian dari mana-mana anggota pasukan Pendakwaan berhubung hubungan sulit antara FA dengan SP1. Dengan wujudnya hubungan antara FA dan SP1, maka terdapat salah guna proses Mahkamah.
PCN II telah berhujah bahawa Afidavit Pemohon melanggar Aturan 41 Kaedah 5 Kaedah-Kaedah Mahkamah Tinggi. Apa yang dinyatakan dalam afidavit tersebut merupakan dengar cakap dan tidak boleh diterima pakai. Berdasarkan kecacatan ini, maka tidak ada apa-apa yang perlu dijawab oleh Responden Atas alasan ini sahaja permohonan harus ditolak.
KS tidak menafikan bahawa Aturan 41 Kaedah 5 terpakai tetapi menegaskan bahawa apa yang dinyatakan oleh Pemohon dalam Afidavitnya memenuhi keperluan bawah aturan 41 Kaedah 5 Kaedah-Kaedah Mahkamah Tinggi dan bukan dengar cakap.
Saya bersetuju sekiranya permohonan pemohon dibenarkan, maka perbicaraan kes ini akan terhenti dan dengan itu akan melupuskan hak pihak-pihak yang terlibat. Oleh itu ia bukanlah sesuatu yang berbentuk interlokutari di mana sesuatu afidavit yang hendak diguna pakai boleh sekadar mengandungi kenyataan mengenai maklumat atau kepercayaan tersebut seperti diperuntukkan di bawah Kaedah 5(2) kepada Aturan 41 Kaedah-Kaedah Mahkamah Tinggi. Oleh kerana sifat permohonan ini yang bukan bersifat interlokutari, Aturan yang terpakai adalah Aturan 41 Kaedah 5(1) Kaedah-Kaedah Mahkamah Tinggi. Ini bermaknan perkara yang hendak dinyatakan dalam afidavit mestilah terhad kepada fakta yang Pemohon boleh buktikan berdasarkan pengetahuannya sendiri.
Responden dianggap mengakui bahawa fakta yang ditegaskan oleh Pemohon dalam afidavit adalah berdasarkan pengetahuan Pemohon sendiri atau dari rekod yang Pemohon mempunyai akses. Ini menepati keperluan Aturan 41 Kaedah 5(1) Kaedah-Kaedah Mahkamah Tinggi.
Setelah menimbang dakwaan dalam Afidavit pemohon yang lebih bersifat andaian dan kepercayaan Pemohon semata-mata berhubung isu ini dengan apa yang ditegaskan oleh Jude Blacious dan Mohamad Hanafiah Zakaria berhubung isu tersebut. Dari penjelasan kedua-dua mereka ini, adalah munasabah untuk memutuskan bahawa walaupun FA merupakan seorang dari kumpulan dalam pasukan pendakwaan tetapi oleh sebab pasukan pendakwa bertindak atas ‘need to know basis’ dan peranan FA yang begitu terhad maka FA tidak pada bila-bila masa mempunyai akses kepada kertas siasatan atau salinan kertas siasatan termasuk apa-apa dokumen di dalamnya. FA juga tidak terlibat dalam sebarang taklimat berhubung strategi pengendalian kes. Memandangkan FA sendiri tidak mempunyai akses kepada kertas siasatan atau dokumen berkaitan serta mempunyai pengetahuan berhubung kandungan kertas siasatan atau dokumen atau strategi pendakwa, maka tidak mungkin SP1 mempunyai akses kepada kertas siasatan atau mempunyai maklumat apa yang terkandung dalam kertas siasatan melalui FA.
[]
[]
[]
Peranan FA hanyalah setakat mengambil nota keterangan di Mahkamah. Dia bukan seorang Pendakwa Raya yang membuat keputusan untuk menuduh pemohon. Perjalanan dan arah tuju pendakwaan kes ini bukan ditentukan oleh FA. Dia bukan seorang dari yang mengendalikan pemeriksaan saksi. Dalam keadaan demikian saya berpendapat apa-apa pengaruh SP1 ada atas FA hasil dari hubungan mereka tidak mungkin dapat mempengaruhi pasukan pendakwaan sehingga mengkompromi intergriti dan kesaksamaan pasukan Pendakwa.
Saya dapati tiada apa salah guna proses mahkamah di dalam kes ini bagi membolehkan Mahkamah membatalkan pertuduhan yang dihadapi Pemohon. Oleh itu permohonan pemohon ditolak.
[9.28 a.m.] Application dismissed.
Kes No. 45-9-09
Pemeriksaan balas SP2
[9.48 a.m.]
MY: Kes untuk pemeriksaan balas SP2.
KS: Before we proceed with the trial, as lawyers we are trained to accept decision of the court but sometimes it’s quite critical that the decision should []. It is quite clear that there is inconsistency in the judgment given. We intend to go on with this matter to the Court of Appeal. We’ve filed the notice of appeal this morning. In the meanwhile, we’ve planned for a stay proceeding. In any event, we cannot make it orally. We are going to file an application and accompany by affidavit and my learned friend should reply. We need time. We will serve this. Could we adjourn to tomorrow morning for the application for stay to be heard? I cannot see how the proceeding can continue now.
MY: I’m objecting for the application of stay pending appeal. We need to proceed. We’ve postponed this case for too long. Until the application filed and heard, I think we should proceed with the trial.
KS: My learned friend is being petty. He should not here to push to prosecute. As a matter of right, the accused has the right to file an appeal and as of right he has the opportunity to file an application for stay.
YA: That’s all?
KS: For the moment, yes.
YA: I agree with MY that unless there is an application made and order for stay, the trial should.
KS: Unless with application. Your Lordship has said that.
YA: As far as I’m concern, there is no application file before me yet. That’s my order. I’ve made my order. Proceed. MY, where is your witness?
KS: Your Lordship can’t make an order that is frivolous.
YA: Call the next witness
KS: This is unfair. We can’t just sit here and allow injustice done. I will not be intimidated.
YA: Be careful with your words.
KS: We would like a short break before we proceed.
MY: When in lower court, [] we should proceed
KS: We will proceed, but we need to take a break for the defence discuss with our strategy.
YA: I take your word that you need ½ hour. You can have your own strategy.
KS: Yes. Subject to that strategy. We’ve the right. You cannot deny the right. Your Lordship should not []
YA: After ½ hour break, we’ll proceed to cross-examination SP2.
KS: Depends on what we have to say. Condition should not be attached. Subject to our strategy and what we have to say.
YA: So you said you are not going to cross-examination him?
KS: Subject to strategy. I take instruction from my client. Your Lordship can’t deny that.
YA: ½ hour and then we’ll proceed with cross-examination.
[9.57 a.m.] Stand down
[10.51 a.m.]
KS: [] my learned friend has considered the order made by your Lordship.
YA: I think you silap dengar my judgment. Itu adalah bawah Aturan 41.
KS: It is for striking out the charge. It must be a final order and under such circumstances the charge should be struck out. Your Lordship said unless there is an application for stay. We did not contemplate what is your Lordship decision and therefore no application for stay is made. There is no such thing as oral application for stay of proceeding.
I refer to case of Kosma, last para [read] The application must be file by way of an affidavit and how can we file it unless we have the time. We were given time before. This is precedent set by your Lordship yourself. And MY ought not to try to persuade your Lordship not to do that. Your Lordship is bound by the decision of the Federal Court. Why unholy haste? We are not delaying the proceeding. We ask what we are entitled as of right. We don’t beg because this is our right. I believe in demanding. In fact, we are demanding what DSAI is entitled to. We need time to file the application for stay. We need until afternoon. We can even continue after five.
YA: So I take it you want to file it this afternoon?
KS: Yes. We can proceed with the trial perhaps till evening and night.
YA: KS tak puasa.
KS: This is as of right. You cannot deny the right. This is a matter of discretion and in the spirit of Ramadan; you cannot go against the application I’ve made. Your Lordship is bound by the authority. Any real prosecutor will agree with our argument.
YA: I’ve to hear MY.
KS: Yes. You can hear but should not unnecessarily influenced by him. He is the SGII. He must be fair and ensure a fair trial. More so, your Lordship. Give us what is due to us. We’ll come back in the afternoon. I will file it within an hour.
YA: Itu sahaja?
KS: Yes. Let justice prevail.
YA: MY?
MY: I don’t know what to say. Justice is said too many times. For once, I agree with my learned friend that we must do justice. To apply for a stay is not a right. It is a grey area. What your Lordship ruled [] The word decision under Section 3 Criminal Procedure Code and [] does not amount to stay. I’m objecting in principle.
my learned friend has given undertaking []
YA: 2.15 p.m.?
KS: It could be a little more than that.
YA: But please. 2.15 p.m. is 2.15p.m., not 2.30 p.m. Just now you said you need ½ hour to file the application, but you took more than that.
KS: We were outside waiting for your Lordship.
KS: You were not here. I was about to come up but you were not here. So now you want to blame the court?
MY: We’ve the authority ready for the last time.
YA: Just nice. Now is 11. So, you have more than 1 hour to file. In fact, you have 2 hours to file it. 2.15 p.m. we’ll assemble again.
[11.01 a.m.] Stand down
[3.08 p.m.]
Permohonan 44-186-2010
KS: The notice of appeal against your Lordship ruling has been and following that application, the application for stay has been filed in the Court of Appeal. The ground of appeal is founded and supported by the affidavit of DSAI which had been filed just now. At this point, your Lordship should consider whether no.1 the ruling made by your Lordship is a final order. I refer to Section 3 of Courts of Judicature Act 1964. [read Section 3 Courts of Judicature Act 1964] we say here that the ruling made are one which would finally dispose the right of the parties. If the charge is struck out, that is the end of the matter. It finally disposed the right of the parties.
The 2nd requirement is whether the position would be nugatory if your Lordship continues with the trial. I refer to the case of Kosma. [Refer Para 1 of case and read nugatory part]. We say the matter will become nugatory if your Lordship continue with the trial and the Court of Appeal decides the charge to be stuck out and that will be special circumstances – nugatoriness. Under these special circumstances, we apply for the application be allowed. As simple as that.
MY: With regard of the 1st issue, whether the ruling made by your Lordship is final order and therefor appealable, we humbly submit it is not a final order and the application for stay does not arise. It is simple, depending on who apply. Just like the case of Saad b. Abas, the final order was against the PP when at the close of the prosecution case, the judge acquits the accused, but it is not a final order for the defence. If prosecution had proved prima facie case, defence can answer and rebut. In our case, what your Lordship ruled against their application was just to maintain the status quo. It is not even coming close to prosecution case. Even if there is a case to answer, that is not enough to constitute a final order. What more to dismiss the application.
We have 2 cases. Saad b. Abas and DSAI v PP. I don’t want to read, but I’ll give it to your Lordship. Where any ruling made in the course of the trial is not a final order. For Saad bin Abas, holding no.1 and no.2 and DSAI case, 1999 case, holding no.3.
With regard to Kosma case, DSAI affidavit mentioned that the appeal will be nugatory if that stay is not granted. Without saying more, in what manner will it be nugatory? In Mohd Mustafa b. Kandasamy, tab 4 of our bundle it will only be nugatory if the parties is deprived of the fruit of the trial. If my learned friend succeeds, it will be the end of the trial. It will be a final order for us, but not theirs. They will not be deprived of the fruit of the trial. Their appeal will not be nugatory and they will enjoy the fruit of success. [Refer Kosma] Stay is granted if the appeal will be render nugatory. In Mustafa b. Kandasamy, it is nugatory if they are deprived as to the result of the appeal. In our case, they will enjoy the fruit of the trial if they succeed in their appeal.
YA: This are civil cases.
MY: In criminal case, refer tab 1. In Criminal Procedure Code, it only talks about appeal against acquittal, and stay will be granted if there is something that cannot be reversed. Example will be whipping and hanging, but not necessarily in all exceptional circumstances. In Kosma, it talks about stay at the end of the trial. If civil cases do not apply, more so in this matter, it should not. Because in criminal cases, stay only apply at the end of the case. I pray for this application to be dismissed and continue with the examination of the witnesses.
KS: Question of stay has already been decided by the Federal Court decision.
YA: Federal Court decision is to continue with the case.
KS: We are not appealing against that. We are appealing on the decision of your Lordship dismissing our application to strike out the charge.
YA: As to my order just now, how would it finally disposed the right of the parties?
KS: Never mind if the Court of Appeal dismisses our appeal. If your Lordship decides on our favour, it will be the end of the matter. This is what meant by finally disposed the right of the parties.
YA: I did not decide in your favour. How does it dispose your right?
KS: If we succeed now, the trial will be nugatory.
YA: How is it?
KS: It is nugatory. Waste of public funds. The court will decide whether your Lordship decision is []
YA: In Kosma, []
KS: That is as the civil case is concern.
YA: []
KS: Assuming it applies to criminal cases with modification.
YA: So, you are saying that the principle in Kosma applies in criminal cases with modification?
KS: Yes. Nugatory in the sense that the entire event had not been embark. The charge is something will be dismissed no authority yet on this matter.
YA: That’s all? MY, anything you would like to add?
MY: No.
YA: Give me some time.
[3.28 p.m.] Stand down
[3.59 p.m.]
YA: [read desicion] Telah menjadi undang-undang mantap bahawa fakta atau rayuan bukanlah satu sebab untuk menagguh prosiding. Mesti ada kadar istimewa untuk menanguh dan nugatory adalah satu daripada contoh kadar istimewa. Sekiranya rayuan permohon dibenarkan, tuduhan akan digugurkan. [] tetapi lebih penting isu salah guna Mahkamah yang dibangkitkan [] menjejaskan intergriti perbicaraan itu sendiri. Ini adalah satu keadaan istimewa. Oleh itu, adalah lebih perlu untuk rayuan permohonan ini didengar dan diputuskan di Mahkamah Rayuan. Permohonan untuk penangguhan prosiding sementara menunggu rayuan dibenarkan. Kes disebut semula pada 20.9.2010. Tarikh dari hari ini hingga 30.08.2010 dilapangkan.
[4.05 p.m.] Application allowed.
++++++++++++ English Version +++++++++++++
Criminal High Court 3, Kuala Lumpur
Before Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Motion to set aside charges
Parties :
PP: All present
Defence : KS, SN, Dato’ CV Prabhakaran, Radzlan, (Marissa, Ram Singh, Datuk Param Cumaraswam absent)
WB : Andy Yong (Bar Council), Mark Trowell (QC for the Law Asia, CLA and ICJ)
AI present
Ruling 44-176-2010
[9.14 a.m.]
YA: [read his decision]
DSAI, applicant in the original motion for the court to dismiss charges under Section 377B of the law under which he is being charged. This application is supported by applicants’ affidavit. Applicant charges that Cik Farah Azlina (FA) was privy to investigation papers, FA is having an affair with SP1, SP1 has been provided with information about contents of the investigative papers because of his relationship with FA and because of that, the integrity of the prosecution’s case against the applicant is compromised.
The Prosecution is objecting to this application and has filed 2 sworn affidavits in response, by Mohamad Hanafiah Zakaria and Jude Blacious. In the affidavit, the Prosecution does not deny nor admit the affair between Cik FA and SP1 but only emphasises that Cik FA’s role in the case is mainly to record testimonies of witnesses during the trial. As such, SP1 did not have access to information contained in the investigative papers.
KS urges the court to accept that what is alleged by the applicant in his affidavit as the truth because there is no denial from any member of the Prosecution with regards to the affair between Cik FA and SP1. As there is an affair between FA and SP1, therefore there is an abuse of the court process.
PCN II has responded that the applicant’s affidavit goes against Regulation 41, Procedure 5 of High Court Procedures. What is mentioned in the affidavit is that the allegations contained in the applicant’s affidavit are based on hearsay and as such in admissible. Because of this, there is no need for the respondents to reply and as such, the application should be dismissed.
KS doesn’t deny that under Regulation 41, Procedure 5 is being used, but further claims that what is mentioned by the applicant in his affidavit fulfills requirements according to Regulation 41, Procedure 5 of High Court Procedures and is not based on hearsay.
I agree that should the motion be granted, the proceedings of the trial will be stopped and therefore remove the rights of parties concerned. As such, it is not something interlocutory, whereby an affidavit that is being used may contain statements about information or what is believed, as provided under Procedure 5(2) of Regulation 41 – Procedures of the High Court.
As this application is not interlocutory, it is subject to Regulation 41, Procedure 5(1) of the Procedures of the High Court. This means that statements filed in affidavits are limited to facts that the applicant is able to prove, based on his own knowledge.
The respondents are assumed to admit that the applicant’s claims in the affidavit are based on the applicant’s own knowledge or from records to which the applicant has access. This sets aside the requirements of Regulation 41, Procedure 5(1) of the Procedures of the High Court.
After weighing and comparing claims in the applicant’s affidavit, which are more characteristic of assumptions and what is believed by the applicant is relation to this issue, with what is precised by Jude Blacious and Mohamad Hanafiah Zakaria (and) After the clarification from both of them, it is logical to arrive at a conclusion that while FA was part of the Prosecution’s team, as the Prosecution team operates on a need to know basis and since FA’s role was highly limited, therefore FA, at no point in time, had any access to investigation papers nor copies of investigation pares including what they contained therein.
FA was also not involved in any briefing or discussion concerning the strategic handling of the case. Considering that FA herself did not have access to investigation papers or documents concerned, nor did she have any knowledge with regards to the contents of the investigation papers or documents nor the prosecution’s strategy, therefore it is not possible for SP1 to have had access to the said investigation papers or have any knowledge of their contents through FA.
FA’s role was limited to recording notes from testimonies in court. She is not a Public Prosecutor who has decided to press charges against the applicant. The running and direction of the prosecution’s case is not determined by FA. She is not one of the counsels who questions witnesses. Under these circumstances, I find that any influence whatsoever that SP1 may have over FA because of their affair, would have no influence over the Prosecution team to the point that it compromises the integrity and impartiality of the Prosecution.
I find that there is no wrongful use of the court process in this case to justify or compel the court to set aside the charges as requested by the applicant. As such, the application is denied.
[9.28 a.m.] Application dismissed.
Case No. 45-9-09
Cross-examination of SP2
[9.48 a.m.]
MY: Trial for the cross-examination of SP2.
KS: Before we proceed with the trial, as lawyers we are trained to accept decision of the court but sometimes it’s quite critical that the decision should []. It is quite clear that there is inconsistency in the judgment given. We intend to go on with this matter to the Court of Appeal. We’ve filed the notice of appeal this morning. In the meanwhile, we’ve planned for a stay proceeding. In any event, we cannot make it orally. We are going to file an application and accompany by affidavit and my learned friend should reply. We need time. We will serve this. Could we adjourn to tomorrow morning for the application for stay to be heard? I cannot see how the proceeding can continue now.
MY: I’m objecting for the application of stay pending appeal. We need to proceed. We’ve postponed this case for too long. Until the application filed and heard, I think we should proceed with the trial.
KS: My learned friend is being petty. He should not here to push to prosecute. As a matter of right, the accused has the right to file an appeal and as of right he has the opportunity to file an application for stay.
YA: That’s all?
KS: For the moment, yes.
YA: I agree with MY that unless there is an application made and order for stay, the trial should.
KS: Unless with application. Your Lordship has said that.
YA: As far as I’m concern, there is no application file before me yet. That’s my order. I’ve made my order. Proceed. MY, where is your witness?
KS: Your Lordship can’t make an order that is frivolous.
YA: Call the next witness.
KS: This is unfair. We can’t just sit here and allow injustice done. I will not be intimidated.
YA: Be careful with your words.
KS: We would like a short break before we proceed.
MY: When in lower court, [] we should proceed
KS: We will proceed, but we need to take a break for the defence discuss with our strategy.
YA: I take your word that you need ½ hour. You can have your own strategy.
KS: Yes. Subject to that strategy. We’ve the right. You cannot deny the right. Your Lordship should not []
YA: After ½ hour break, we’ll proceed to cross-examination SP2.
KS: Depends on what we have to say. Condition should not be attached. Subject to our strategy and what we have to say.
YA: So you said you are not going to cross-examination him?
KS: Subject to strategy. I take instruction from my client. Your Lordship can’t deny that.
YA: ½ hour and then we’ll proceed with cross-examination.
[9.57 a.m.] Stand down
[10.51 a.m.]
KS: [] my learned friend has considered the order made by your Lordship.
YA: I think you misheard my judgment. It is under Regulation 41.
KS: It is for striking out the charge. It must be a final order and under such circumstances the charge should be struck out. Your Lordship said unless there is an application for stay. We did not contemplate what is your Lordship decision and therefore no application for stay is made. There is no such thing as oral application for stay of proceeding.
I refer to case of Kosma, last para [read] The application must be file by way of an affidavit and how can we file it unless we have the time. We were given time before. This is precedent set by your Lordship yourself. And MY ought not to try to persuade your Lordship not to do that. Your Lordship is bound by the decision of the Federal Court. Why unholy haste? We are not delaying the proceeding. We ask what we are entitled as of right. We don’t beg because this is our right. I believe in demanding. In fact, we are demanding what DSAI is entitled to. We need time to file the application for stay. We need until afternoon. We can even continue after five.
YA: So I take it you want to file it this afternoon?
KS: Yes. We can proceed with the trial perhaps till evening and night.
YA: KS is not fasting.
KS: This is as of right. You cannot deny the right. This is a matter of discretion and in the spirit of Ramadan; you cannot go against the application I’ve made. Your Lordship is bound by the authority. Any real prosecutor will agree with our argument.
YA: I’ve to hear MY.
KS: Yes. You can hear but should not unnecessarily influenced by him. He is the SGII. He must be fair and ensure a fair trial. More so, your Lordship. Give us what is due to us. We’ll come back in the afternoon. I will file it within an hour.
YA: Is that all?
KS: Yes. Let justice prevail.
YA: MY?
MY: I don’t know what to say. Justice is said too many times. For once, I agree with my learned friend that we must do justice. To apply for a stay is not a right. It is a gray area. What your Lordship ruled [] The word decision under Section 3 Criminal Procedure Code and [] does not amount to stay. I’m objecting in principle.
my learned friend has given undertaking []
YA: 2.15 p.m.?
KS: It could be a little more than that.
YA: But please. 2.15 p.m. is 2.15p.m., not 2.30 p.m. Just now you said you need ½ hour to file the application, but you took more than that.
KS: We were outside waiting for your Lordship.
KS: You were not here. I was about to come up but you were not here. So now you want to blame the court?
MY: We’ve the authority ready for the last time.
YA: Just nice. Now is 11. So, you have more than 1 hour to file. In fact, you have 2 hours to file it. 2.15 p.m. we’ll assemble again.
[11.01 a.m.] Stand down
[3.08 p.m.]
Application 44-186-2010
KS: The notice of appeal against your Lordship ruling has been and following that application, the application for stay has been filed in the Court of Appeal. The ground of appeal is founded and supported by the affidavit of DSAI which had been filed just now. At this point, your Lordship should consider whether no.1 the ruling made by your Lordship is a final order. I refer to Section 3 of Courts of Judicature Act 1964. [read Section 3 Courts of Judicature Act 1964] we say here that the ruling made are one which would finally dispose the right of the parties. If the charge is struck out, that is the end of the matter. It finally disposed the right of the parties.
The 2nd requirement is whether the position would be nugatory if your Lordship continues with the trial. I refer to the case of Kosma. [Refer Para 1 of case and read nugatory part]. We say the matter will become nugatory if your Lordship continue with the trial and the Court of Appeal decides the charge to be stuck out and that will be special circumstances – nugatoriness. Under these special circumstances, we apply for the application be allowed. As simple as that.
MY: With regard of the 1st issue, whether the ruling made by your Lordship is final order and therefore appealable, we humbly submit it is not a final order and the application for stay does not arise. It is simple, depending on who apply. Just like the case of Saad b. Abas, the final order was against the PP when at the close of the prosecution case, the judge acquits the accused, but it is not a final order for the defence. If prosecution had proved prima facie case, defence can answer and rebut. In our case, what your Lordship ruled against their application was just to maintain the status quo. It is not even coming close to prosecution case. Even if there is a case to answer, that is not enough to constitute a final order. What more to dismiss the application.
We have 2 cases. Saad b. Abas and DSAI v PP. I don’t want to read, but I’ll give it to your Lordship. Where any ruling made in the course of the trial is not a final order. For Saad bin Abas, holding no.1 and no.2 and DSAI case, 1999 case, holding no.3.
With regard to Kosma case, DSAI affidavit mentioned that the appeal will be nugatory if that stay is not granted. Without saying more, in what manner will it be nugatory? In Mohd Mustafa b. Kandasamy, tab 4 of our bundle it will only be nugatory if the parties is deprived of the fruit of the trial. If my learned friend succeeds, it will be the end of the trial. It will be a final order for us, but not theirs. They will not be deprived of the fruit of the trial. Their appeal will not be nugatory and they will enjoy the fruit of success. [Refer Kosma] Stay is granted if the appeal will be render nugatory. In Mustafa b. Kandasamy, it is nugatory if they are deprived as to the result of the appeal. In our case, they will enjoy the fruit of the trial if they succeed in their appeal.
YA: These are civil cases.
MY: In criminal case, refer tab 1. In Criminal Procedure Code, it only talks about appeal against acquittal, and stay will be granted if there is something that cannot be reversed. Example will be whipping and hanging, but not necessarily in all exceptional circumstances. In Kosma, it talks about stay at the end of the trial. If civil cases do not apply, more so in this matter, it should not. Because in criminal cases, stay only apply at the end of the case. I pray for this application to be dismissed and continue with the examination of the witnesses.
KS: Question of stay has already been decided by the Federal Court decision.
YA: Federal Court decision is to continue with the case.
KS: We are not appealing against that. We are appealing on the decision of your Lordship dismissing our application to strike out the charge.
YA: As to my order just now, how would it finally disposed the right of the parties?
KS: Never mind if the Court of Appeal dismisses our appeal. If your Lordship decides in our favour, it will be the end of the matter. This is what meant by finally disposed the right of the parties.
YA: I did not decide in your favour. How does it dispose your right?
KS: If we succeed now, the trial will be nugatory.
YA: How is it?
KS: It is nugatory. Waste of public funds. The court will decide whether your Lordship decision is []
YA: In Kosma, []
KS: That is as the civil case is concern.
YA: []
KS: Assuming it applies to criminal cases with modification.
YA: So, you are saying that the principle in Kosma applies in criminal cases with modification?
KS: Yes. Nugatory in the sense that the entire event had not been embark. The charge is something will be dismissed no authority yet on this matter.
YA: That’s all? MY, anything you would like to add?
MY: No.
YA: Give me some time.
[3.28 p.m.] Stand down
[3.59 p.m.]
YA: [read desicion]
It is the law that facts or appeals are not reasons to stay proceedings. There must be special proportions for stay of proceedings, and nugatory is one of these special proportions. If the applicants’ appeal is upheld, charges will be dismissed. What is more important is the issue of the misuse of the court which has been brought up, which affects the integrity of the trial itself. This is a special situation. As such, it is more of a necessity for applicant’s appeal to be heard by the Court of Appeals. Application to stay proceedings while awaiting the decision of the appeal is granted. This case will resume on 20 Sept 2010. Dates from today until 30 August 2010 are freed.
[4.05 p.m.] Application allowed.
Anwar Ibrahim Sodomy II – The Recorded Truth – 3 Jun 2010 June 3, 2010
Posted by malaysianstory in Anwar Ibrahim, Malaysian Story, Sodomy II, Transformation in PKR.Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
5 comments
******* The Full English Version (In Blue) After +++++++++++
Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak: Seperti terdahulu (dengan kehadiran Mr. Leung dan En. S. Suppiah bagi pihak Majlis Peguam)
ZI peguam pemerhati SP1
[09:56 am]
MY: Memperkenalkan pihak-pihak
KS: We have gone to the site just now
YA: SP1 dipanggil semula
SP1 bersumpah semula
(dalam BM)
KS: Dalam kehidupan seharian, ada bila-bila masa bercakap yang tidak benar?
A: You mean in the past? Ya
Q: Have you ever lied in your live? Of course not under oath?
A: Ya, ada
Q: Kamu bersumpah untuk cakap yang benar bagi keadaan masa lampau?
A:
Q: Pilihanraya kecil di Permatang Pauh?
A: Ulang soalan
Q: Slowly… ada angkat sumpah dalam masjid?
A: Ya
Q: Pada 15 Ogos 2008?
A: Dalam pertengahan bulan Ogos 2008
Q: Tarikh penamaan?
A: Tidak ingat
Q: Dekat dengan tarikh penamaan calon?
A: Ya
Q: Apabila angkat sumpah dekat dengan nomination day?
A: Ya
Q: Ini adalah kebetulan?
A: Ya
Q: Oleh itu tak tahu tentang pilihanraya kecil?
A: Sebelum itu tahu
Q: Bila dapat tahu?
A: Saya tak pasti tetapi saya tahu
Q: 2 minggu sebelum hari pencalonan?
A: Saya tak pasti tetapi saya tahu
Q: Bukan kebetulan?
A: No
Q: Bukan kebetulan pilih 2 hari sebelum itu?
A: Kebetulan
Q: Sebelum itu tak tahu?
A: Saya menunggu untuk AI angkat sumpah
Q: 2 minggu sebelum itu?
A: [SP1 tak sempat menjawab]
YA: He said coincident, then you said no, sampai bila?
KS: [][]
Q: Ada blog sendiri?
A: Ya
Q: Mohd Saiful Bukhari Azlan?
A: Ya
Q: Pada 2 Ogos 2008 ada menyatakan [dengan tunjukkan saksi satu dokumen]. Baca yang di’highlight’.
A: “Pada AI selamat bertanding”. Saya mengucapkan selamat bertanding. Saya ada cakap dalam blog.
Q: Cadang apa yang jadi adalah dirancang? Mengangkat sumpah sebelum hari penamaan?
A: Tidak
YA: Move on to the next questions
KS: Dalam keterangan ada menyatakan tidak langsung mengetahui perkahwinan Saidati dan Faez?
A: Saya kata saya tak pasti mereka berkahwin atau tidak
Q: Saya kata awak tahu?
A: Saya tahu mereka lari
Q: Bukan lari berkahwin?
A: Saya tak dapat sahkan mereka berkahwin atau tidak
Q: Saya kata mereka berkahwin?
A: Saya tahu mereka lari tetapi tak tahu mereka berkahwin atau tidak
YA: Dia tanya Saidati kahwin atau tidak?
A: Saya tahu dia lari, saya tahu dia kahwin
KS: Don’t lie in court, you know?
Q: Lari dengan Faez?
A: Ya
Q: Ada jumpa lepas perkahwinan?
A: Ada
Q: Many times?
A: 1-2 kali
Q: Ada diugut?
MY: May I object, I think the court should take guideline, section 148 dan s.153.
YA: Ya, apa relevant ini?
KS: I put it to him
MY: May I refer to s. 148 and s. 153 of Evidence Act 1950
KS: It goes to the credibility
MY: No, it’s wrong
MY: S.148 [read] Evidence Act 1950. I think that 148(b)(c) applied here. S.153 Evidence Act 1950 [read]. He said know, it’s not for KS to [][], S.153 applied here to [] on the matter that he testify.
KS: We all know this. This witness is lying and it goes to the credibility.
YA: Objection by MY sustained. Proceed with other points.
KS: May I put it to you that you’re lying when you said you don’t know this person and the marriage?
A: Maksud saya, saya tak dapat sahkan
Q: Tahu orang ini, Faez?
A: Ya
Q: Laporan polis oleh Faez atas ugutan atas dia?
A: Tidak tahu
Q: Dalam keterangan masa dulu, AI ada arahkan awak untuk hantar dokumen pada dia pada 25hb?
A: Tidak
Q: Ada atau tidak, atau 26hb?
A: 25hb pun ada, dokumen pada 25hb tidak. Hanya 26hb sahaja
Q: 26hb, En Ibrahim Yaacob yang suruh hantar dokumen?
A: Setuju
Q: Apa yang dinyatakan dalam keterangan khasnya yang terjadi dalam unit 11-5-1, langsung tidak benar?
A: Tak setuju
Q: Cadang, saya katakan AI dalam unit 11-5-2? Tidak dalam unit 11-5-1, tentang apa yang terjadi unit itu tidak benar?
A: Mohon untuk tanya masa. Dia berada dalam unit 11-5-1
Q: AI berada dalam 11-5-2?
A: Tidak
KS: Whether alibi witnesses are here, we need to identify them in court, the witnesses for alibi.
YA: The purpose is to put your defence ASAP, notice must be given, your defence is alibi
KS: Notice have been given long ago. As early as 2009
MY: I confirmed
KS: Other questions related to what happen in that unit, apply for a closed proceeding. MY can re-examine first.
MY: No, let’s us finish first.
YA: You can ask him. Keterangan lepas ini adalah tertutup, orang awam diminta keluar sekejap.
[10:22 am]
Re-examination
MY: Kamu ditanyakan tentang sumpah kamu di masjid, cadangan peguam adalah ianya dirancang, kamu kata tidak benar, sila jelaskan?
Sepanjang awal Julai selepas saya buat laporan polis, beberapa ulama terkenal seperti Tok Guru Nik Aziz dan Mufti Besar Perlis, Dato’ Asri menyarankan saya dan AI bersumpah atau bermubahalah untuk menunjukkan siapa yang benar dalam kes ini. Jadi kalau tak silap, dalam pertengahan July, tak pasti dalam blog atau tidak, saya pertimbangkan saranan ulama, dan saya pelawa AI bersumpah seperti saranan. Selepas dicadangkan, saya tunggu respon AI dan selepas 2-3 minggu, mendapat respon yang negatif, pihak saya fikirkan memandangnkan AI tidak sudi, saya saja yang buat sumpah itu sendiri. Tempoh masa setelah menanti lebih dari 2-3 minggu dan kebetulan dekat dengan tarikh penamaan calon seperti cadangan peguam KS tadi.
MY: Itu saya, pohon saksi dilepaskan.
YA: Saksi dilepaskan, itu saja.
MY: Selepas ini Doktor.
YA: Stand down 5 minit.
[10:33 am]
[10:45 am]
JB: Kes dipanggil semula
MY: Pihak-pihak seperti yang sama, pohon dipanggil Dr. Mohd. Razali
KS: I’m asking permission for my expert to be here.
YA: Any problem MY?
MY: No
SP2 – Mohd Razali bin Ibrahim Angkat sumpah BM, pakar bedah am HKL, 37 tahun
Pemeriksaan Utama
MY: Doctor seorang pakar bedah am?
KS: It should be in English because he’s an expert.
YA: Up to the witness. He sworn in BM
MY: This is a trial, saksi bercakap mengikut Akta Bahasa Kebangsaan 1965 dalam BM
YA: Cakap dalam BM
SP2: Boleh
MY: Pakar bedah apa?
A: Bedah am
Q: Sebelum tanya tentang bidang tugas, apakah kelayakan Dr.?
A: Memulakan pelajaran di Kelantan, sambung pelajaran di USM, juga di Kelantan, menamatkan kursus perubatan pada 1998 dan mula menjalankan tugas pegawai perubatan siswazah di Hospital Ipoh, kemudian saya bertugas Hospital Selayang selama 3 tahun, kemudian tahun 2003, saya sambung Sarjana Pembedahan di HKL, di UKM. Kursus Master tamat pada 2007 dan bertugas sebagai pakar di HKL sehingga sekarang.
Q: Apakah bidang pengkhususan semasa di Sarjana?
A: Kita diajar untuk pembedahan mengenai masalah anggota manusia bermula dengan leher hingga ke bawah, spesifik di bahagian punggung, dubur, kalau di bahagian leher masalah seperti tirod, sinus dan [][]
Q: Bahagian dubur?
A: Akan dilakukan jika ada masalah
Q: Sehingga hari ini ada berapa banyak kes yang melibatkan pemeriksaan pesakit di bahagian dubur, dari Dr. mula bertugas hingga sekarang?
A: Ada banyak, lebih dari 100 kes
Q: Adakah melibatkan pemeriksaan luar dan dalam dubur?
A: Bergantung kepada kes yang datang, jika ada aduan tentang masalah dubur, akan lihat
Q: Bahagian dalam dubur, kes secara am?
A: Lebih kurang 100 kes tetapi saya tak ada dokumen details
Q: Apabila ambil sampel dalam dubur untuk tujuan apa?
A: Saya bahagian klinikal, biasanya jika ada jangkitan perlu ambil sampel untuk pemeriksaan makmal
Q: Pemeriksaan bagaimana?
A: Untuk pemeriksaan makmal
Q: Untuk sampel, apa peralatan digunakan, dari pakaian dsg?
A: Mesti gunakan peralatan yang steril untuk ambil sampel
Q: Bagaimana peralatan untuk ambil sampel?
A: Sampel boleh diambil dengan pelbagai cara, swab dan syringe untuk ambil sampel cecair.
KS: We are having problem in translating in BI on the spot, no point of having our expert here if he testify in BM.
YA: Stand down for a while
[10:54 am]
[11:00 am]
JB: Kes dipanggil semula
MY: Saya cuba untuk accommodate
YA: Boleh beri keteragan dalam BI? Selalu dalam BM tetapi ada expert di sini. Jadi lebih cepat kalau dalam BM
A: Boleh
SP2 – angkat sumpah semula
(dalam BI)
MY: You said that there is 3 methods to take sample?
3 methods -swab, syringe (picagari) and
Q: It must be sterile?
A: Yes
Q: What about yourself?
The person that taking the spesimen, if for micro-biology must be with good clothing []and with a mask to protect yourself.
Q: Glove?
A: Yes
Q: If for DNA?
A: I’m not an expert in DNA but in any hospital, the practise, is the same.
Q: Were you on duty on 28 June 2008?
A: I was on-call doctor
Q: As what?
A: Surgeon on call
Q: Time?
A: 24 hours, starting from 8 pm to 8 am the next morning
Q: In HKL?
A: Yes
Q: Now, at 7 pm did you received any call?
A: Yes, from my fellow officer that there was a case for me to attend. They wanted me to be there at 9 pm as other doctors involved as well
Q: What were you informed?
A: They told me there was a sodomy case; the patient was brought to a special room
Q: Where were you at that time?
A: At that time I was at home
Q: When were you expected to be?
I was expected to be at Special Unit at 9 o’clock
Q: Who were there?
A: When I arrived at the room, 2 specialists were there, Dr Khairul and Dr Siew and other person, I remember DSP Jude
MY: May I call Dr Khairul and Dr Siew for identification
SP2 identified Dr. Khairul Nizam bin Hassab and Dr. Siew Sheue Feng
YA: Nama penuh
Dr. Khairul Nizam dan Dr Siew Sheue Feng
Supt Jude
This is the police officer that was around, ASP Jude
SP2 identified Supt Jude
Q: What transpired in the room?
A: There was one police officer, who gave summary to what happen then, after discussed we decided to proceed with the examination of the person
Q: Was the person to be examined in that room?
A: Yes, in that room
Q: Can you identify?
A: Yes
Q: Did you know his name by that time?
A: Yes, Saiful
SP1 identified by SP2
Q: You, Nizam and Siew interviewed Saiful? Did any of you interview him?
A: The 2 specialists did that but I was not involved
Q: But were you there?
A: Yes, I was
Q: Was his story consistent with the Medical Officer (MO) and the briefing?
A: Yes, consistent with the MO and the briefing
Q: All 3 in the room?
A: Yes
Q: Who else?
A: Police officers, nurses and medical assistants
Q: Was the examination done the doctors, one by one?
A: Yes, it started by Khairul, me and Siew
Q: What did you examine?
A: Involve anal and rectum, after Dr Khairul, and after I get permission on the victim, I did examination by external part and followed by the internal part using proctoscope.
Q: Is this for the internal part?
[MY showing proctoscope with plastic wrapper to SP2]
A: Yes, this is the proctoscope. I’m using something similar like this. Yes, I used proctoscope for internal examination of the victim
Q: How to used?
[SP2 explained the process using proctoscope] to see the inner part of the victim
Q: Did you insert this with any assistant, that day?
A: When I checked Saiful, I tried to. I’m worried, since he claimed that he was sodomized, I tried not to put in anything, but I have problem putting proctoscope in, then I need to use lubricant.
Q: What lubricant did you used?
A: Lignociene Gel
Q: What did you find?
A: I managed to do the examination.
I checked him, and what I found externally, the anus was moist compared to any other area, but I did not found any injury, trauma on any other part. But I found a small haemorrhoid but of no significance.
Q: What happen if you did not used lubricant?
A: I might have probe putting in the proctoscope because of the nature of the body and if I were to try to push it further, it will cause injury.
Q: Would you know that Saiful have been examine before by other doctor, using a proctoscope?
A: Yes, I was informed
Q: But externally and internally, there was no injury?
A: Yes
Q: After examined, did u do anything else?
Dr. Siew was around, so we decided to take inner sample, by using the swab, I took sample from inside and outside. I take one swab from perinal, and one of swab of high rectum and while coming out slowly, one low rectum swab.
Q: When you took the sample, were you assisted?
A: Yes, by Dr. Siew
Q: After that what happen to the swab?
A: I passed it to Dr Siew for labelling of the specimen
Q: Did you know what he did?
A: I didn’t see it, I just passed it to him as I was not involved.
Q: Refer to swab stick, did you use this?
A: Yes, to take the swab
MY: Can we mark it as evidence, swab stick?
YA: Satu swab stick as P19
P19 – swab stick
P20 – proctoscope
Q: This P19, did you have to place in a container?
A: Yes
Q: Show SP2 to a container.
A: The same but colour might be difference but this is the container that we used.
MY: Mark as P21
P21 – container
Q: Did you jointly prepare a report, signed by the 3 of you?
A: Yes
Q: Show SP2 to a doctor, glance thru it and look at the last page, did you recognise that signature?
A: Yes, my signature in number 2
Q: Confirmed that this is the report based on the examination?
A: Yes
MY: Mark it as P22
P22 – Medical report HKL dated 13 July 2008
Q: In this report at page 2, on the anal and proctoscope examination, it stated here ‘no tear or contact bleeding’ and as a result of that at page. 4, the conclusion was that, no conclusive clinical finding suggestive of penetration’?
A: Yes
YA: Need the original, photostat is IDD16
MY: Original is with SP2
Q: In this report at page 2, on the anal and proctoscope examination, it stated here ‘no tear or contact bleeding’ and as a result of that at page. 4, the conclusion was that, no conclusive clinical finding suggestive of penetration’?
A: Conclusion number 1 is based on history and examination; there is nothing to say that there is penetration to the anus or rectum.
Q: In no. 2, lab, in order to conclusively say there is a penetration do you need the DNA test?
A: The reason we cannot come out with a definite conclusion was because we do not have the result from the lab and no definite location of the specimens.
Q: Can we confine to conclusion no 1, does it mean that no conclusive clinically finding suggestive of penetration, does it mean penetration at all?
A: No
Q: Look, now it is not equal, [][]?
A: If I don’t have the finding, I cannot say that because we can have a sodomy without injury
Q: The other Doctors, did they take sample also?
A: Yes
Q: All this, are they stated in the report?
A: There are 2 other sample of high rectal swabs kept in our Forensic Department in case anything happen in the lab
Q: Other than that, other than the rectal area, did the other doctors take sample from other areas?
A: Yes, in page 3
Q: If I may refer to page 3, all specimen labelled by Dr Siew and lab analysis revel the following “Presence of semen on swab label B5, B7, B8 and B9, so what did you guys are saying actually?
A: At that time when we have the report we did not know where the location of B5, B7, B8 and B9 were taken from?
Q: Item no 2, page 3?
A: “Presence of semen on swabs B5, B7, B8 and B9”
Q: You said, you did not know where the sample taken from?
A: Yes
Q: Do you know what Dr Siew do with it?
A: In general, he sealed it, packed it and then passed it to the IO
Q: Were you there?
A: I was there but I did not see it
Q: Did you see Jude leaving with the specimen?
A: No
Q: Was he there?
A: Yes, he was there
Q: If you today, in this court, know exactly the location B5, B7, B8 and B9, would you be able to conclude whether there was a penetration?
MY: I want to show a document handed to Jude, as ID to the witness
Q: Look at the document, what document is this?
A: This form of process handling the specimen and submitted to ASP.
Q: The date?
A: 29 June, early morning
Q: Document saying that specimen passed to Jude?
A: Yes
MY: Mark it as ID23
ID23 – borang pengendalian spesimen Mediko-Legal bertarikh 29 Jun 2008
Q: I will show you another document, read the 1st page?
A: Borang Polis Di Raja Malaysia, contoh-contoh dan / atau barang kes untuk pemeriksaan atau cerakinan
Q: This form sent to whom?
A: To Ketua Pengarah Jabatan Kimia / Ahli Kimia Kanan send by Jude Blacius and specimen to B to B10.
Q: Page 2 of the document, what did it say about B5, B7, B8 and B9?
B5 – Swab from perianal region diambil dari Mohd Saiful Bukhari bin Azlan.
B7- High Rectal Swab diambil dari Mohd Saiful Bukhari bin Azlan
B8 – High Rectal Swab diambil dari Mohd Saiful Bukhari bin Azlan
B9 – Low Rectal Swab diambil dari Mohd Saiful Bukhari bin Azlan
Q: All this is a sample that you took from rectal area of Saiful?
A: Yes
MY: Mark it as ID24
YA: ID24 – Borang Penyerahan Sample to Jabatan Kimia
MY: Now, I’ll straight go to the chemist report.
Q: What document is this?
A: It a report by Jabatan Kimia Malaysia
Q: You read the 1st para, can you confirmed refer to the specimen that Jude received from all of you?
A: Yes, I confirmed that all exhibit is from us to Jude
Q: Look in page 2, after the B7, B8, B9 and B10, you still did not know the location?
[read ]” no semen from other swabs”?
A: Yes
Q: Look at page 3?
Q: Put ID23, ID24 and chemist report with your medical report? Now can you tell where B5 from?
A: Yes, B5 is from perianal region, B7 is from high rectal swab, B8 is from high rectal swab and B9 is from low rectal swab.
Q: Based on the history, your examination and you know where B5, B7, B8 and B9, can you conclude that there is evidence of penetration?
A: Yes, if I know the location now, I can confirm that there was an anal penetration.
Q: Were you told by Saiful, if any aid were used?
A: Yes, a lubricant
Q: Is it consistent there is anal penetration, with a lubricant, and semen was found?
A: I gather that and I can conclude to anal penetration
Q: The report you and other 2 doctors signed, whether it was a complete report, bearing in mind of items taken and you did not know the location?
A: It is a complete report but without the knowledge of the location
Q: Now that you have known the location of B5, B7, B8 and B9, can you tell the court what is your conclusion?
A: With all the evidence now in front of me, there is an anal penetration
Q: Even without injury?
A: Yes
Q: Is it consistent with penile penetration?
A: With the DNA semen, I say there is a penile penetration
MY: May I mark chemist report?
ID25 – chemist report
KS: We reserved our cross
YA: You have your expert here
MY: I have a problem here. If they intend to reserved the cross examination yesterday, we can proceed with this witness yesterday, but we had to wait for their expert. KS want [] because their expert was not here, now their expert is here. Again we accommodate the defence, just now KS asked for SP2 to testified in BI even though he’s more comfortable in BM, [][] now what is the reason to reserved cross, I would agree if KS want to stand down for a while, I have no objection to that.
YA: Stand down for 10 minutes
[12:07 pm]
MY, NH, KS, PC, RK, CV masuk ke dalam kamar hakim
[12:28 pm]
Pihak-pihak keluar dari kamar hakim
[12:31 pm]
JB: Kes dipanggil semula
MY: Pihak seperti terdahulu. Pemeriksaan balas SP2
KS: We’re applying an adjournment until tomorrow to have a discussion with our expert we’ll proceed with the cross tomorrow morning
MY: I’m placing my objection to this, maybe we can start at 3 pm, but I’ll leave it to the court
YA: Saya benarkan tangguh hingga esok untuk peguam bincang dengan pakar mereka keterangan hari ini. Esok Jumaat sila awal sedikit
KS: Pukul 9 pagi
YA: Ya, 9 pagi. Mahkamah tangguh.
[12:34 pm]
+++++++++++ English Version +++++++++++
Before Dato’ Mohamad Zabidin Mohd Diah
Parties : As before (with the presence of Mr. Leung and En. S. Suppiah for Bar Council)
ZI observing for SP1
[09:56 am]
MY: Introduction of parties
KS: We have gone to the site just now
YA: SP1 is recalled to stand
SP1 retakes oath
(in BM)
KS: In your daily life, do you tell lies?
A: You mean in the past? Yes
Q: Have you ever lied in your live? Of course x under oath?
A: Yes, I have
Q: You swear to tell the truth under extreme circumstances?
A:
Q: The by-election in Permatang Pauh?
A: Repeat your question
Q: Slowly… did you take an oath in the mosque?
A: Yes
Q: On 15 August 2008?
A: In mid-August 2008
Q: The nomination date?
A: I do not recall
Q: Close to the nomination date of the candidate?
A: Yes
Q: You took your oath close to the date of the nomination day?
A: Yes
Q: That is the truth?
A: Yes
Q: Because you were unaware of the by-election?
A: I knew it before
Q: When did you know?
A: I do not recall exactly when
Q: 2 weeks before the nominatuion of the candidate?
A: I cannot be certain but I knew
Q: That’s not true?
A: No
Q: Isn’t it true it was 2 days before?
A: That is correct
Q: Before that you didn’t know?
A: I waited for AI to take his oath
Q: 2 weeks before that?
A: [SP1 does not have the chance to answer]
YA: He said coincident, then you said no, until when?
KS: [][]
Q: Do you have your own blog?
A: Yes
Q: Mohd Saiful Bukhari Azlan?
A: Yes
Q: On 2 Aug 2008, did you not say [shows witness a document]. Read what is highlighted
“To AI, all the best in his contest.” I wish him the best in his contest. I said it in my blog.
Q: I put it to you that what happened was planned. Taking your oath before the nomination day?
A: No
YA: Move on to the next questions
KS: In you explanation, did you not say that you were unaware about Saidati and Faez’ marriage?
A: I said I was not sure if they were married or not
Q: I sau that you knew?
A: I knew they ran off toegther
Q: Not eloped?
A: I couldn’t confirm if they were married or not
Q: I say they were married?
A: I knew they ran off together but don’t know if they were married
YA: Is Saidati married or not?
A: I know she ran off, I do not know if she is married
KS: Don’t lie in court, you know?
Q: Ran off with Faez?
A: Yes
Q: Met them after the wedding?
A: I did
Q: Many times?
A: Once or twice
Q: Did you threaten?
MY: May I object, I think the court should take guideline, section 148 dan s.153.
YA: Yes, what is the relevance?
KS: I put it to him
MY: May I refer to s. 148 and s. 153 of Evidence Act 1950
KS: It goes to the credibility
MY: No, it’s wrong
MY: S.148 [read] Evidence Act 1950. I think that 148(b)(c) applied here. S.153 Evidence Act 1950 [read]. He said know, it’s not for KS to [][], S.153 applied here to [] on the matter that he testify.
KS: We all know this. This witness is lying and it goes to the credibility.
YA: Objection by MY sustained. Proceed with other points.
KS: May I put it to you that you’re lying when you said you don’t know this person and the marriage?
A: I meant I could not confirm
Q: Do you know this person, Faez?
A: Yes
Q: Faez police report about the threat you made?
A: I do not know
Q: In your earlier testimony, AI instructed you to send documents to him on 25th?
A: No
Q: Yes or no, maybe on 26th?
A: 25th yes, docs on 25th no. Only 26th
Q: 26hb, En Ibrahim Yaacob asked you to send the doc?
A: Agreed
Q: What is mentioned in the report specifically what happened in unit 11-5-1, did not occur?
A: I do not agree
Q: I propose that AI was in unit 11-5-2? Not in unit 11-5-1, what happened in the unit is not true?
A: At what time exactly? He was in unit 11-5-1
Q: AI was in unit 11-5-2?
A: No
KS: Whether alibi witnesses are here, we need to identify them in court, the witnesses for alibi
YA: The purpose is to put your defence ASAP, notice must be given, your def is alibi
KS: Notice have been given long ago. As early as 2009
MY: I confirmed
KS: Other questions related to what happen in that unit, apply for a closed proceeding. MY can re-examine first.
MY: No, let’s us finish first.
YA: You can ask him. Testimony hereafter is restricted. Public is asked to step out for the moment.
[10:22 am]
Re-examination
MY: You were asked about your oath in the mosque, the lawyer’s suggestion is that it was planned, you said it was not true, please clarify.
From early July when I made a police report, many highly-regarded religious figures like Nik Aziz and the Grand Mufti of Perlis, Dato Asri, pushed or both myself and AI to take the oath to show who was telling the truth in this case.
If I’m not mistaken, in mid-July, I cannot recall if it was blogged or not, I considered this challenge and I invited AI to swear in the mosque as challenged. I proposed that I would wait for AI’s response, and after 2-3 weeks, having received a negative response, my party decided that since AI had declined, I should take the oath alone. The time I waited was 2-3 weeks and by coincidence, close to the nomination day for the by-election, as highlighted by the defense lawyer earlier.
MY: I request that the witness be allowed to step down.
YA: Witness is relieved, that is all.
MY: After this, the Dcktor.
YA: Stand down 5 min.
[10:33 am]
[10:45 am]
JB: Case is recalled to session.
MY: Parties as before, we call Dr. Mohd. Razali
KS: I’m asking permission for my expert to be here.
YA: Any problem MY?
MY: No
SP2 – Mohd Razali bin Ibrahim Takes oath in BM, specialist surgeon at HKL, 37 tahun
Main examination
MY: You are a general surgeon?
KS: It should be in English because he’s an expert.
YA: Up to the witness. He sworn in BM
MY: This is a trial, witness speaks according to the National Language Act 1965 in BM.
YA: Speak in BM
SP2: I can
MY: Specializing in what surgery?
A: General surgery
Q: Before I ask about your tasks, what are your qualifications Dr.?
A: I started my education in Kelantan, continued at USM, also in Kelantan, completing my medical course in 1998 and started my housemanship at Ipoh Hospital, after which I served at Selayang Hospital for 3 yaesr, then in 2003, I did my Bachelor of Surgery at HKL. My masters ended in 2007 and I was posted as a specialist at HKL until now.
Q: What was your major during your bachelor’s degree?
A: We were taught about surgery for parts of the human body, starting form the neck downwards, specifically at the rear end, anus and at the neck such as throid, sinus and others.
Q: The anus?
A: Will be done in the event of any incident
Q: To date there are several cases which involve examination of the anus, Till today, there are several cases which involve examining of those living with checking
A: Many times, more than 100 cases
Q: Does that involve checking the exterior and interior or the anus?
A: Depending on the cases we get, if there is anything of this nature, we will investigate compared to this kind of matter.
Q: The inner rectum, a general examination.
A: About 100 cases but I don’t have exact figures.
Q: When you take samples from the rectum, what is the purpose?
A: I am on the clinical side, normally if there is an infection, we need samples for lab tests.
Q: What kind of examination?
A: Laboratory testings.
Q: For samples, what equipment is used, from clothing etc?
A: We must used sterilized equipment to take samples.
Q: What about the equipment to take smples?
A: Samples may be taken in many ways, swab, syringe an others to collect liquid samples.
KS: We are having problem in translating in BI on the spot, no point of having our expert here if he testify in BM.
YA: Stand down for a while
[10:54 am]
[11:00 am]
JB: Case is recalled
MY: I will try to accommodate
YA: Can you testify in English? Always in BM but there is an expert present. Faster in English.
A: I will.
SP2 – retakes oath
(in English)
MY: You said that there is 3 methods to take sample?
3 methods -swab, syringe (picagari) and
Q: It must be sterile?
A: Yes
Q: What about yourself?
The person that taking the specimen, if for micro-biology must be with good clothing []and with a mask to protect yourself.
Q: Glove?
A: Yes
Q: If for DNA?
A: I’m not an expert in DNA but in any hospital, the practise, is the same.
Q: Were you on duty on 28 June 2008?
A: I was oncall doctor
Q: As what?
A: Surgeon on call
Q: Time?
A: 24 hours, starting from 8 pm to 8 am the next morning
Q: In HKL?
A: Yes
Q: Now, at 7 pm did u received any call?
A: Yes, from my fellow officer that there was a case for me to attend. They wanted me to be there at 9 pm as other doctors involved as well
Q: What were you informed?
A: They told me there was a sodomy case, the patient was brought to a special room
Q: Where were you at that time?
A: At that time I was at home
Q: When were you expected to be?
I was expected to be at Special Unit at 9 o’clock
Q: Who were there?
A: When I arrived at the room, 2 specialists were there , Dr Khairul and Dr Siew and other person, I remember DSP Jude
MY: My I call Dr Khairul and Dr Siew for identification
SP2 identified Dr. Khairul Nizam bin Hassab and Dr. Siew Sheue Feng
YA: Nama penuh
Dr. Khairul Nizam dan Dr Siew Sheue Feng
Supt Jude
This is the police officer that was around, ASP Jude
SP2 identified Supt Jude
Q: What transpired in the room?
A: There was one police officer, who gave summary to what happen then, after discussed we decided to proceed with the examination of the person
Q: Was the person to be examine in that room?
A: Yes, in that room
Q: Can you identify?
A: Yes
Q: Did you know his name by that time?
A: Yes, Saiful
SP1 identified by SP2
Q: You, Nizam and Siew interviewed Saiful? Did any of you interviewed him?
A: The 2 specialists did that but I was not involved
Q: But were you there?
A: Yes, I was
Q: Was his story consistent with the Medical Officer (MO) and the briefing?
A: Yes, consistent with the MO and the briefing
Q: All 3 in the room?
A: Yes
Q: Who else?
A: Police officers, nurses and medical assistants
Q: Was the examination done the doctors, one by one?
A: Yes, it started by Khairul, me and Siew
Q: What did you examine?
A: Involve anal and rectum, after Dr Khairul, and after I get permission on the victim, I did examination by external part and followed by the internal part using proctoscope.
Q: Is this for the internal part?
[MY showing proctoscope with plastic wrapper to SP2]
A: Yes, this is the proctoscope. I’m using something similar like this. Yes, I used proctoscope for internal examination of the victim
Q: How to used?
[SP2 explained the process using proctoscope] to see the inner part of the victim
Q: Did you insert this with any assistant, that day?
A: When I checked Saiful, I tried to. I’m worried, since he claimed that he was sodomized, I tried not to put in anything, but I have problem putting proctoscope in, then I need to used lubricant.
Q: What lubricant did you used?
A: Lignociene Gel
Q: What did you find?
A: I managed to do the examination.
I checked him, and what I found externally, the anus was moist compared to any other area, but I did not found any injury, trauma on any other part. But I found a small haemorrhoid but of no significance.
Q: What happen if you did not used lubricant?
A: I might have prob putting in the proctoscope because of the nature of the body and if I were to try to push it further, it will cause injury.
Q: Would you know that Saiful have been examine before by other doctor, using a proctoscope?
A: Yes, I was informed
Q: But externally and internally, there was no injury?
A: Yes
Q: After examined, did u do anything else?
Dr. Siew was around, so we decided to take inner sample, by using the swab, I took sample from inside and outside.I take one swab from perinal, and one of swab of high rectum and while coming out slowly, one low rectum swab.
Q: When you took the sample, were you assisted?
A: Yes, by Dr. Siew
Q: After that what happen to the swab?
A: I passed it to Dr Siew for labelling of the specimen
Q: Did you know what he did?
A: I didn’t see it, I just passed it to him as I was not involved.
Q: Refer to swab stick, did you used this?
A: Yes, to take the swab
MY: Can we mark it as evidence, swab stick?
YA: Satu swab stick as P19
P19 – swab stick
P20 – proctoscope
Q: This P19, did you have to placed in a container?
A: Yes
Q: Show SP2 to a container.
A: The same but color might be difference but this is the container that we used.
MY: Mark as P21
P21 – container
Q: Did you jointly prepared a report, signed by the 3 of you?
A: Yes
Q: Show SP2 to a doc, glance thru it and look at the last page, did u recognise that signature?
A: Yes, my signature in num 2
Q: Confirmed that this is the report based on the examination?
A: Yes
MY: Mark it as P22
P22 – Medical report HKL dated 13 July 2008
Q: In this report at pg 2, on the anal and proctoscope examination, it stated here ‘no tear or contact bleeding’ and as a result of that at pg. 4, the conclusion was that, no conclusive clinical finding suggestive of penetration’?
A: Yes
YA: Need the original, photostat is IDD16
MY: Original is with SP2
Q: In this report at pg 2, on the anal and proctoscope examination, it stated here ‘no tear or contact bleeding’ and as a result of that at pg. 4, the conclusion was that, no conclusive clinical finding suggestive of penetration’?
A: Conclusion no1 is based on history and examination, there is nothing to say that there is penetration to the anus or rectum.
Q: In no. 2, lab, in order to conclusively say there is a penetration do you need the DNA test?
A: The reason we cannot come out with a definite conclusion was because we do not have the result from the lab and no definite location of the specimens.
Q: Can we confine to conclusion no 1, does it mean that no conclusive clinically finding suggestive of penetration, does it mean penetration at all?
A: No
Q: Look, now it is not equal, [][]?
A: If I don’t have the finding, I cannot say that because we can have a sodomy without injury
Q: The other Doctors, did they take sample also?
A: Yes
Q: All this, are they stated in the report?
A: There are 2 other sample of high rectal swabs kept in our Forensic Department in case anything happen in the lab
Q: Other than that, other than the rectal area, did the other doctors took sample from other areas?
A: Yes, in pg 3
Q: If I may refer to pg 3, all specimen labelled by Dr siew and lab analysis revel the following “Presence of semen on swab label B5, B7, B8 and B9, so what did you guys are saying actually?
A: At that time when we have the report we did not know where the location of B5, B7, B8 and B9 were taken from
Q: Item no2, page 3?
A: “Presence of semen on swabs B5, B7, B8 and B9”
Q: You said, you did not know where the sample taken from?
A: Yes
Q: Do u know what Dr Siew do with it?
A: In general, he sealed it, packed it and then passed it to the IO
Q: Were you there?
A: I was there but I did not see it
Q: Did you see Jude leaving with the specimen?
A: No
Q: Was he there?
A: Yes, he was there
Q: If you today, in this ct, know exactly the location B5, B7, B8 and B9, would you be able to conclude whether there was a penetration?
MY: I want to show a doc handed to Jude, as ID to the witness
Q: Look at the doc, what doc is this?
A: This form of process handling the specimen and submitted to ASP.
Q: The date?
A: 29 June, early morning
Q: Doc saying that specimen passed to Jude?
A: Yes
MY: Mark it as ID23
ID23 – Specimen Mediko-Legal bertarikh 29 Jun 2008
Q: I will show you another doc, read the 1st page?
A: Borang Polis Di Raja Malaysia, contoh-contoh dan / atau barang kes untuk pemeriksaan atau cerakinan (Royal Police of Malaysia, examples and / or case articles for examination)
Q: This form sent to whom?
A: To Director of Chemist Department / Senior Chemist send by Jude Blacius and specimen to B to B10.
Q: Pg 2 of the doc, what did it say about B5, B7, B8 and B9?
B5 – Swab from perianal region taken from Mohd Saiful Bukhari bin Azlan.
B7- High Rectal Swab taken from Mohd Saiful Bukhari bin Azlan
B8 – High Rectal Swab taken from Mohd Saiful Bukhari bin Azlan
B9 – Low Rectal Swab taken from Mohd Saiful Bukhari bin Azlan
Q: All this is a sample that you took from rectal area of Saiful?
A: Yes
MY: Mark it as ID24
YA: ID24 – Sample delivery note to Chemist Department
MY: Now, I’ll straight go to the chemist report.
Q: What doc is this?
A: It a report by Jabatan Kimia Malaysia (Chemist Department of Malaysia)
Q: You read the 1st para, can you confirmed refer to the specimen that Jude received from all of you?
A: Yes, I confirmed that all exhibit is from us to Jude
Q: Look in pg 2, after the B7, B8, B9 and B10, you still did not know the location?
[read ]” no semen from other swabs”?
A: Yes
Q: Look at pg3?
Q: Put ID23, ID24 and chemist report with your medical report? Now can you tell where B5 from?
A: Yes, B5 is from perianal region, B7 is from high rectal swab, B8 is from high rectal swab and B9 is from low rectal swab.
Q: Based on the history, your examination and you know where B5, B7, B8 and B9, can you conclude that there is evidence of penetration?
A: Yes, if I know the location now, I can confirmed that there was an anal penetration.
Q: Were you told by the Saiful, if any aid were used?
A: Yes, a lubricant
Q: Is it consistent there is anal penetration, with a lubricant, and semen was found?
A: I gather that and I can conclude to anal penetration
Q: The report you and other 2 doctors signed, whether it was a complete report, bearing in mind of items taken and you did not know the location?
A: It is a complete report but without the knowledge of the location
Q: Now that you have known the location of B5, B7, B8 and B9, can you tell the court what is your conclusion?
A: With all the evidence now in front of me, there is a anal penetration
Q: Even without injury?
A: Yes
Q: Is it consistent with penile penetration?
A: With the DNA semen, I say there is a penile penetration
MY: May I mark chemist report?
ID25 – chemist report
KS: We reserved our cross
YA: You have your expert here
MY: I have a problem here. If they intend to reserved the cross examination yesterday, we can proceed with this witness yesterday, but we had to wait for their expert. KS want [] because their expert was not here, now their expert is here. Again we accommodate the defence, just now KS asked for SP2 to testified in BI even tough he’s more comfortable in BM, [][] now what is the reason to reserved cross, I would agree if KS want to stand down for a while, I have no objection to that.
YA: Stand down for 10 minutes
[12:07 pm]
MY, NH, KS, PC, RK, CV enter Judges’ chambers
[12:28 pm]
Parties exit Judges’ chambers
[12:31 pm]
JB: Case is recalled to session.
MY: Paries as before. Cross examination of SP2
KS: We’re applying an adjournment until tomorrow to have a discussion with our expert we’ll proceed with the cross tomorrow morning
MY: I’m placing my objection to this, maybe we can start at 3 pm, but I’ll leave it to the court
YA: I will allow the adjourment until tomorrow for counsel to discuss with their expert about today’s testimony. Tomoorw is Friday, please be early.
KS: 9.00am
YA: Yes, 9.00am. Case adjourned.
[12:34 pm]
Anwar Ibrahim Sodomy II – The Recorded Truth – 31 Mei 2010 May 31, 2010
Posted by malaysianstory in Anwar Ibrahim, Sodomy II, Transformation in PKR.Tags: Anwar Ibrahim, Malaysian Story, Saiful Bukhari, Sodomy II
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Mahkamah Tinggi Jenayah KL (3)
***** The English Version after this ++++++++ in Blue
Dihadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak: Seperti terdahulu [Andy Leong dan S. Suppiah bagi Majlis Peguam]
ZI untuk SP1
[09:35 am]
JB: Panggil kes
MY: Kes untuk sambung balas SP1. Memperkenalkan pihak-pihak.
KS: The appeal once again for the list of witnesses. I make this appeal to MY, this is for a fair trial. I’m not asking YA to make a ruling. We have made various attempts to get the owner of the condominium. But is unable to do so. We must have access. The PP can help us, I’m asking MY to help us. We are unable to contact the owner of the condominium. It is vital for the cross. We’re not delaying, no delaying tactic. If YA is of the view it is not necessary to go the site, we have make various attempt to go to the scene. Can I get respond from MY?
YA: Are you asking this from the court?
KS: Not a ruling but a direction to the Investigation Officer. Maybe later visit to the scene.
MY: About the list of witnesses, although we have not given them the list, I’ve said verbally to KS and PC about the list of witnesses. With regard to visit to the scene, we are also having a problem to locate Hassanuddin, Hassanuddin is a close friend of AI.
AI [from the dock]: He’s scared, you know the system.
MY: It’s not we have a free access to the condominium []
KS: []
YA: We’ll make an arrangement for KS to go to the scene. About the list of witnesses, nothing can be done here.
KS: We accept that.
SP1 – bersumpah semula
KS: You’re under oath, you know the consequences?
A: Yes
Q: What is the name of your sister?
A: Saidati
Q: Azlan bapa?
A: Ya
Q: Bila Azlan bercerai dengan ibu?
A: Saya darjah 1, umur 7 tahun
Q: Selepas bercerai itu ada contact dengan kamu dan sister?
A: Ada
Q: Itu tidak benar bukan?
A: Benar
Q: Saiful dan Saidati diabaikan?
A: Tidak benar
Q: You are a good muslim?
A: I’ll try my best
Q: Ada minum arak?
A: Tidak
Q: Ada bila-bila masa melakukan zina?
A: Tidak
Q: Saidati dah berkahwin?
A: Tahun lepas dia dibawa lari ke Thailand, saya tidak tahu dia berkahwin atau tidak. Saya tidak pasti samada perkahwinan itu sah atau tidak. Saya tidak tahu dia kahwin atau tidak.
Q: Ada kenal Faiz bin Khairi?
A: Kenal, dia yang bawa lari adik saya.
Q: Ada surat akuan dari Faiz bin Khairi. Kami ada surat akuan itu.
A: Saya tidak tahu
Q: We don’t want to call your sister sebagai saksi, we want to spare her, please tell the truth.
A: Yes
Q: Or your father for that matter?
A: Yes
Q: Pada 24 Jun 2008, ada berjumpa dengan Timbalan Perdana Menteri?
A: Ada
Q: Ada buat aduan pada dia?
A: Ya
Q: A very serious complaint?
A: Ya
Q: Iaitu kamu diliwat dengan tidak kerelaan awak?
A: Ya[][]
Q: Adakah PM memberikan apa-apa nasihat?
A: Beliau agak sceptical tetapi lepas dicerita dengan detail, PM kata tidak boleh buat apa-apa sebab ini masalah peribadi dengan AI dan ianya melibatkan masa hadapan saya.
Q: Aduan yang sama dibuat kepada Radwan?
A: Ya
Q: Aduan yang sama kepada Ezam?
A: Ya
Q: Diliwat tanpa kerelaan?
A: Ya
Q: Dato’ Mumtaz?
A: Ya
Q: Ada orang lain?
A: Tuah
Q: Lain?
A: Rahimi dan seorang guru agama
Q: Siapa Ustaz ini?
A: Saya tak tahu nama dia, dia guru agama pakcik Tuah saya.
Q: Ada beri nama semasa siasatan?
A: Saya panggil Atuk
Q: Orang ini wujud?
A: Kalau tidak silap, dua tiga bulan lepas dia dah meninggal
[Galeri awam ketawa]
Q: Ada buat laporan polis mengenai aduan yang dibuat kepada Timbalan PM dan orang-orang lain tadi?
A: Ada
Q: Insiden yang diceritakan kepada Timbalan PM, Radwan, Ezam dan Mumtaz?
A: Kejadian kali terakhir buat laporan polis merangkumi semua kejadian.
Q: Did you lodged a police report?
A: Ada
Q: Bukan P3, sebelum itu?
A: Sebelum itu tiada aduan
Q: Tiada sesiapa nasihat untuk buat report?
A: Tidak
Q: Jika apa yang diceritakan tadi, iaitu membuat aduan serius, diliwat tanpa rela kepada Timbalan PM, mengikut undang-undang seksyen 13 Kanun Tatacara Jenayah, Timbalan PM diwajibkan buat laporan polis, do you know that?
A: Saya tidak tahu
Q: Jika Timbalan PM tidak buat laporan itu, dia melakukan satu kesalahan di bawah seksyen 202 Kanun Keseksaan? Timbalan PM boleh dipenjarakan?
A: Saya tidak tahu
Q: Jika tidak tahu saya beri ajaran sekarang, apa yang dinyatakan oleh kamu adalah sesuatu yang serius, Timbalan PM tidak buat laporan polis, kamu diliwat dengan tidak kerelaan
MY: Ini soalan atau kenyataan?
YA: Tanya soalan
KS: This is soalan, this is not a comment
YA: Teruskan
Q: Apa yang dinyatakan kepada Timbalan PM adalah serius, dia boleh dipenjarakan?
A: Saya tak tahu
Q: Akibat dari aduan kamu, Timbalan PM tidak lodge report, Rodzwan, Ezam, Dato Mumtaz tidak buat report, akibat apa yang kamu ceritakan?
A: Saya tidak tahu
MY: Seksyen 13 does not include s.377B.
KS: You are not aware of the amendment, how can you be [][]. MY said that is not the law. He’s a Senior DPP, he’s the next AG.
MY: I think KS is [][]
YA: Stand down
[10:01 am]
[10:05 am]
Mahkamah bersidang semula
MY: Parties as before. Saya minta maaf, I conceded there is an amendment to the provision of the law.
YA: [][]
KS: S.377C is included
MY: My only request is less statement
YA: Teruskan
Q: Kamu ada angkat sumpah di masjid?
A: Ada
Q: Bila?
A: Dalam bulan Ogos 2008
Q: Berapa hari sebelum pilihanraya kecil di Permatang Pauh?
A: Tidak ingat
Q: Very near?
A: Yes[]
Q: Sepuluh hari sebelum by-election?
A: Tidak pasti.
Q: Sehari sebelum hari penamaan calon?
A: Dah dekat dengan penamaan calon tetapi saya tak pasti berapa dekat
Q: Kenapa pilih tarikh itu?
A: Saya nak buat lebih awal, seawal Julai
Q: Kenapa tarikh itu?
A: Coincident. Saya nak angkat sumpah awal tetapi tak dapat [][]
Q: Saya katakan ianya dirancang?
A: Tidak
Q: Untuk tentukan AI kalah dalam pilihanraya itu?
A: Tidak
Q: Itu tujuan?
A: Tidak
Q: 26 Jun, apa jadi hari itu?
A: Saya telah diliwat oleh AI
Q: 27 pergi ke Ibu Pejabat PKR?
A: Pagi 27
Q: 27 petang ke kediaman AI?
A: Lepas sembayang Jumaat saya ke pejabat dan petang ke rumah AI
Q: Ada kata bahawa kamu diliwat, ada beberapa peluang melarikan diri?
A: Ya
Q: Tetapi tidak digunakan, buat laporan polis, menjerit, pergi ke Guard house, tetapi tidak buat apa-apa?
A: Ya
KS: The rest of evidence relating to the scene, we got to put our defence as early as possible
YA: [][]
Pemeriksaan Semula
MY: Rujuk IDD16 laporan PUSRAWI, muka surat kamu diperiksa oleh Dr Osman, ada Dr. Osman buat nota seingat ingatan kamu?
A: Saya tidak ingat
Q: Ada kamu beritahu semasa diperiksa?
A: Sebelum diperiksa saya kata saya sakit perut dan dubur
Q: Ketika pemeriksaan?
A: Ketika beliau sedang periksa saya kata saya diliwat dan saya nak jalankan pemeriksaan kesihatan dan beliau terus hentikan pemeriksaan
Q: Ada beritahu siapa yang liwat?
A: Tidak
Q: Ada beritahu apa-apa lagi?
A: Minta pendapat
Q: Ada beritahu dimasukkan dengan objek plastik?
A: Tidak
Q: Dr HKL, polis?
A: Tidak
Q: IDD16, ada pernah lihat?
A: Ya dalam internet
Q: Tahu apa yang ditulis?
A: Saya tak faham tulisan Dr
Q: Di mahkamah ini?
A: Masa cross ini pertama kali melihat IDD16
Q: Catitan tentang kemasukan objek plastik adakah itu benar?
A: Tidak
Q: [][][[]
A: Tulisan tidak jelas tetapi saya tidak menyatakan ada kemasukan objek plastik pada Dr.
Q: Interview dengan Malaysiakini, kamu kata kali pertama berlaku dan tidak betulkan?
A: Kejadian yang berlaku adalah pertama kali dalam hidup saya yang dilakukan oleh AI
Q: Mumtaz, Ezam tidak nasihat buat laporan polis?
A: Tidak
Q: Boleh beritahu kenapa?
A: Mereka bimbang tentang masa depan saya kerana saya masih muda
MY: Itu saja soalan saya, pohon dilepaskan subject to recall
YA: Dilepaskan subject to recall
MY: Pohon tangguh 2 minit. Saya bercadang saksi seterusnya adalah Dr.
KS: Our expert need to be here, we need time to get them down here
[Pihak-pihak berbincang]
YA: Stand down
[10:20 am]
[10:41 am]
MY, NH, KS, SN, PC, CV, Ram Karpal masuk ke kamar hakim.
[10:55 am]
Pihak-pihak keluar dari kamar hakim
Kes ditangguhkan ke jam 2.15 petang untuk pihak pembelaan sahaja ke tempat kejadian.
[02:30 pm]
MY, NH, KS, PC, SN, RK masuk ke kamar hakim
[02:40 pm]
Pihak-pihak keluar dari kamar hakim
[02:42 pm]
JB: Kes dipanggil semula
MY: pihak-pihak seperti tadi
KS: Only tomorrow we can access to the condo at 2.30 pm. Suggest that we start at 3.30 pm to complete SP1 evidence.
MY: Tiada bantahan
YA: Sambung esok 3.30 pm
+++++++ The Full English Version +++++++
High Court, Kuala Lumpur (3)
Before YA Dato’ Mohamad Zabidin Mohd Diah
Parties : As before [Andy Leong and S. Suppiah for Bar Council]
ZI for SP1
[09:35 am]
JB: Case is called
MY: Continuance of cross-examination of SP1. Introduces parties.
KS: The appeal once again for the list of witnesses. I make this appeal to MY, this is for a fair trial. I’m not asking YA to make a ruling. We have made various attempts to get the owner of the condominium. But unable to do so. We must have access. The PP can help us, I’m asking MY to help us. We unable to contact the owner of the condominium. It is vital for the cross. We’re not delaying, no delaying tactic. If YA is of the view it is not necessary to go the site, we have make various attempt to go to the scene. Can I get respond from MY?
YA: Are you asking this from the court?
KS: Not a ruling but a direction to the IO. Maybe later visit to the scene.
MY: About the list of witnesses, although we have not given them the list, I’ve said verbally to
KS and PC about the list of witnesses. With regard to visit to the scene, we are also having a problem to locate Hassanuddin, Hassanuddin is a close friend of AI
AI [from the dock]: He’s scared, you know the system.
MY: It’s not we have a free access to the condo []
KS: []
YA: We’ll make an arrangement for KS to go to the scene. About the list of witnesses, nothing can be done here.
KS: We accept that.
SP1 – retakes oath
KS: You’re under oath, you know the consequences?
A: Yes
Q: What is the name of your sister?
A: Saidati
Q: Azlan is your father?
A: Yes
Q: When did Azlan divorce your mother?
A: I was in Standard 1, 7 years old.
Q: After the divorce, was he in contact with you and your sister?
A: Yes
Q: That’s not true?
A: It’s true
Q: Saiful dan Saidati were neglected?
A: Not true
Q: You are a good muslim?
A: I’ll try my best
Q: Do you drink alcohol?
A: No
Q: Have you at anytime committed illicit sexs?
A: No
Q: Saidati is married?
A: Last year she ran off to Thailand, I don’t know if she got married or not. I do not know if any marriage there is considered legal. I don’t know if she is married or not.
Q: Do you know Faiz bin Khairi?
A: I do – he is the one whom my sister ran off with
Q: There is a confession from Faiz bin Khairi. We have that confession.
A: I do not know
Q: We don’t want to call your sister sebagai saksi, we want to spare her, please tell the truth.
A: Yes
Q: Or your father for that matter?
A: Yes
Q: On 24 June 2008, did you meet the Deputy PM?
A: I did
Q: Did you lodge any complaint with him?
A: Yes
Q: A very serious complaint?
A: Yes
Q: That you were sodomized without consent?
A: Yes
Q: Did the DPM give you any advise?
A: He was rather sceptical but after being given the details, he said there was nothing that could be done as that was a personal matter with AI and it involves my future.
Q: The same complaint was lodged with Radwan?
A: Yes
Q: The same complaint was lodged with Ezam?
A: Yes
Q: Sodomized without consent?
A: Yes
Q: Dato’ Mumtaz?
A: Yes
Q: Anyone else?
A: Tuah
Q: Others?
A: Rahimi and a religious teacher
Q: Who is this Ustaz?
A: I don’t know his name – he is Uncle Tuah’s religious teacher.
Q: Did you give a name during the report?
A: I called him Atuk
Q: This person exists?
A: If I’m not mistaken, he passed away 2 or 3 months ago.
[Laughter from the public gallery]
Q: Did you report about lodging the complaint with the DPM and the others as mentioned earlier?
A: I did
Q: The incident that was told to DPM, Radwan, Ezam and Mumtaz?
A: The last report included all the complaints lodged
Q: Did you lodged a police report?
A: I did
Q: Not P3, before that?
A: No before
Q: Nobody advised you to lodge a report?
A: No
Q: If what you have said, about lodging such a serious complaint about being sodomized without consent to the DPM, under Sec 13 of the Criminal Act, the DPM is obliged to lodge a police report, do you know that?
A: No, I do not know that
Q: If the DPM didn’t make a police report, he would be committing a crime under Sec 202. DPM could be jailed?
A: I do not know.
Q: If you don’t know, I’m telling you now. What you have said is serious. DPM didn’t make a police report, that you were sodomized without consent.
MY: Is that a question or a statement?
YA: Ask questions.
KS: This is a question, this is not a comment
YA: Carry on
Q: What was told to the DPM was serious, he could be imprisoned?
A: I do not know.
Q: Following you complaint, DPM didn’t lodge a police report. Rodzwan, Ezam, Dr. Mumtaz didn’t lodge police reports, following your complaints?
A: I do not know
MY: Section13 does not include s.377B.
KS: You are not aware of the amendment, how can you be [][]. MY said that is not the law. He’s a Senior DPP, he’s the next AG.
MY: I think KS is [][]
YA: Stand down
[10:01 am]
[10:05 am]
Court in session
MY: Parties as before. I apologize, I conceded there is an amendment to the provision of the law.
YA: [][]
KS: S.377C is included
MY: My only request is less statement
YA: Proceed
Q: You took an oath in the mosque?
A: Yes
Q: When?
A: August 2008
Q: How many days before the by-election in Permatang Pauh?
A: I cannot remember
Q: Very near?
A: Yes []
Q: 10 days before the by-election?
A: I am not certain
Q: A day before nomination day?
A: It was close to nomination day but I am not certain.
Q: Why did you choose that date?
A: I wanted to do it sooner, as early as July
Q: Why that date?
A: Coincident. I wanted to do it earlier but I wasn’t able to
Q: I put it to you that it was planned?
A: No
Q: To ensure that AI is defeated in the election?
A: No
Q: That’s the motive?
A: No
Q: 26 June, what happened on that day?
A: I was sodomized by AI
Q: 27 you went to the PKR HQ?
A: Morning of 27
Q: 27 evening to the residence of AI?
A: After Friday prayers, I went to the office and then in the evening to AI’s residence
Q: You mentioned that you were sodomized, were there opportunities for you to escape?
A: Yes
Q: But you didn’t use it, didn’t make a police report, shout, go to the Guardhouse, didn’t do anything?
A: Correct
KS: The rest of evidence relating to the scene, we got to put our defence as early as possible
YA: [][]
Re-examination of witness
MY: Refer to IDD16 PUSRAWI report, while you were being examined by Dr Osman, did he take any notes, as far as you can remember?
A: I can’t remember
Q: Did you tell him while you were being examined?
A: I told him I had a pain in my stomach and my anus before the examination.
Q: During the examination?
A: While he was examining me, I told him I was sodomized and wanted a medical examination, and then he immediately stopped the examination.
Q: Did you tell who sodomized you?
A: No
Q: Did you say anything else?
A: I asked for opinion
Q: Did you say you were penetrated with a plastic object?
A: No
Q: To the Dr at HKL, police?
A: No
Q: IDD16, have you seen it?
A: Yes, on the internet
Q: Do you know what is written?
A: I can’t read doctors’ writing.
Q: In this court?
A: During the cross-examination, it was the 1st time I saw IDD16
Q: The note about being penetrated by a plastic object, is it correct?
A: No
Q: [][][[]
A: The writing is not legible but I never said to the doctor that I was penetrated by a plastic object.
Q: The interview with Malaysiakini, you said it was the first time it happened, and that’s not correct?
A: The incident that happened was the first time in my life that was done by AI.
Q: Mumtaz, Ezam didn’t advise you to make a police report?
A: No
Q: Can you tell why?
A: They were worried for my future as I am still young
MY: I have no further questions, request witness be allowed to leave the witness stand, subject to recall
YA: You may leave the witness stand, subject to recall
MY: I would like to have a 2-min adjournment. I proposed the next witness to be called is the doctor.
KS: Our expert need to be here, we need time to get them down here
[Parties discuss]
YA: Stand down
[10:20 am]
[10:41 am]
MY, NH, KS, SN, PC, CV, Ram Karpal enter Judge’s chambers.
[10:55 am]
Parties exit from Judge’s chambers
Case adjourned to 2.15pm, for defense only to visit site.
[02:30 pm]
MY, NH, KS, PC, SN, RK enter Judge’s chambers
[02:40 pm]
Parties exit from Judge’s chambers
[02:42 pm]
JB: Case is recalled
MY: Parties as before
KS: Only tomorrow we can access to the condo at 2.30 pm. Suggest that we start at 3.30 pm to complete SP1 evidence.
MY: No objections
YA: Continuance tomorrow at 3.30 pm
Malaysian Story 