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Anwar Ibrahim Sodomy II – The Recorded Truth – 15 Mac 2011 March 18, 2011

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II.
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Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Pihak-pihak:
PP:     Semua hadir
PB:    SN, Datuk Param Cumaraswamy (KS, Ram Karpal, Dato’ CV Prabhakaran, Marissa, Radzlan tidak hadir)
WB:    Zambri Idrus (for complainant)
AI hadir

[9.04 a.m.]

MY:    YA, hari ini telah ditetapkan untuk hujahan balas oleh pihak pembelaan.

SN:    My Lord, I’ve been informed by Mr. Karpal Singh at about 11 p.m. yesterday, that his youngest brother who was in Penang High Court passed away, and he went there yesterday itself. I was also informed by Mr. Karpal that there is ceremony in the community. And being the eldest brother, he has to conduct personally and he won’t be able to make it to court at least on Monday.

YA:    Why can’t be tomorrow?

SN:    There will be a lot of certain things that he must conduct as the eldest brother, and it is very religious and customary. It is his responsibility

YA. So as a result of which, I wish that this matter will be postpone to at least Monday.

YA:    Datuk Yusof?

MY:    YA, it is very difficult for me to object, and that considering that Encik Karpal is not that mobile, I believe that I have no objection to this application because considering the religious and ritual that they have to go through.

SN:    There will be put the ashes in the sea and I believe, there are full of ceremony event take place in this 4, 5 days, YA, because of the ritual. As a result of this, I think it is unfortunate that the timing is caught with the court case and all. We hope Your Lordship will consider Mr. Karpal’s situation.

YA:    So then we continue on Monday lah, at 9 a.m.

[9.06 a.m.]

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Anwar Ibrahim Sodomy II – The Recorded Truth – 23 November 2010 November 24, 2010

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II.
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Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Pihak-pihak:
PP:    Semua hadir kecuali NH, WCK dan MM
PB:     KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran,(Ram Singh, Marissa, Radzlan tidak hadir)
WB:    Zamri Idrus (untuk SP1), Andy Leong for Bar Council
Experts for the defence: Prof. David Wells (Dr. Brian MacDonalds tidak hadir)
AI hadir

[8.46 a.m.]
MY: Kes untuk sambung pemeriksaan balas SP3.

SP3 mengangkat sumpah di dalam Bahasa Inggeris.

Pemeriksaan balas oleh SN.

Q: Dr. Siew, you mentioned yesterday you have read sexual assault profoma.
A: Yes.

Q: Did you bring it?
A: Yes. YA, I have 2 sets of protocol in my office. This is the clinical forensic medicine examination draft and medical examination form for suspected rape victim.

Q: We want the actual copy not the draft. These are sample copies?
A: Yes. These are samples that we are using.

Q: Surely in the case of Saiful you fill it up?
A: Yes.

Q: Can you produce it?
MY: YA, I don’t think this is proper. The ruling has been made. We cannot go through that again. You haven’t even asked.

Q: I would have expect you to have asked Saiful according to this porfoma?
A: Yes. This is the guideline we followed.

Q: The one you fill up, do you have it with you? In your possession?
A: Yes.

Q: Will you be able to produce it?
A: I think I can give it orally.

KS: This mantra about giving orally, YA has listened to our submission on the issue of producing the data. We would like to submit again. YA Lordship is not functus officio. Yes, the ruling has been made, but YA’s ruling was not made based on our submission. In this respect, we have the right to, and we have to.

YA: On this issue I’ve made my ruling.

KS: But, I wish to make another submission. Because it is very important. The ruling was made absolutely with regard to S.159 and S.157 Evidence Act 1950. S.159-refreshing memory and S.157 to corroborate the witness evidence. But, what YA did not direct YA’s mind is S. 45 Evidence Act 1950, evidence of an expert. Could I once again and with respect put a stop to this mantra again and again. I’ll give it from memory. This court is entitled to the documents whether you like it or not. The law says it and I’ll be YA once again going through my submission again. It is very important. We seek YA’s indulgence.

MY: May I say something YA? The law is very clear. What is admissible as regard to the best evidence rule is the oral evidence. Just like an IO who come to court to tell what he did on a particular date and what report he received or complaint, where he went, what he collected and all that. All those will be reduced into writing in the form of an ID.But you don’t call him and each time and ask him “Can you produce your ID?”. You are not allowed to. The law prohibits that just like the law prohibits these documents. You cannot say, in this case you are talking about S.45.  My Lord, this is an adversarial system where we have to prove. It’s our duty to prove our case. I do not think the court has any other role other than being a referee to ensure the prosecution prove it’s case. To compel us to produce everything that we didn’t is not legally permissible.
What is he being cross-examine on? The thing he did or the thing he recorded down? He may be an expert, he may not be an expert. But he is a witness of fact. He is testifying as regard to what he did on 28th of June 2008 between 9.00 pm to 12.00 something. That is crucial. Time, period, whom he interviewed, what he observe, what he did with the specimens and all that, it doesn’t require expertise. To talk about what I did, what I didn’t do, what I collected, what I put in the container, whether I seal it, you don’t requires special training to do all that. And the substantive part about his evidence is about all that. Except with the opinion or the conclusion with regard to the finding of semen in the anus. That’s all. So, what is this obsession to ask question “Do you have it recorded?” And “I want it”. It is trite law and it is certain that you ask him and he will answer orally. But if you keep on saying I want this and I want that, then you make S.60 redundant. That’s all.

KS: The opinion of an expert is not in relation to a fact, it is advisory. What is important YA is this, Section 45 Evidence Act 1950 and what is stated in the United Asian Bank case. I’ll go through my submission very very slowly because it is necessary. Because YA has not understood what we have submitted. As we said earlier YA is very much into S.159 and S.157 Evidence Act 1950 which do not apply. [read yesterday’s submission]. YA is bound by the decision of the Supreme Court whether YA likes it or not. [read extract of the book referred in United Asian Bank case]. Function of the expert is to give his honest opinion and place before the court all the data on which he based his opinion. And I repeat again [repeat].

YA: If he does not do that, what will happen?

KS: It is required.

YA: Maybe if he does not do that his evidence may be rejected. Maybe.

KS: I’ll come to that later.[continue reading submission]. It is also not fair to the opposite side. We are the opposite side here. No doubt this is an adversarial trial, but it does not mean the court should sit back and do nothing about it. [continue reading]. Any opinion without stating the reason is valueless. Why is YA recording something that is valueless? This is what the Supreme Court said. [continue reading]. Our Supreme Court, not the Indian Supreme Court.[continue reading]. Why must YA sit there and later be guilty of serious misdirection later on? Must YA wait for the Appeal Court or the Supreme Court to decide there is a misdirection here. Why be misdirected? Here it is more between the court and the witness.Nothing to do with the defence or the prosecution. Because evidence of an expert is not an evidence of fact. They are just to give advisory opinion. The expert is here to assist the court. To assist the court to come to a finding of the court. And to come to the finding of fact we have to rely on the data used by this witness to make his conclusion as to his findings. We seriously urged the court to consider S.45. Forget S.159. Forget S.157. They do not apply. I have address it in my submission at the early page that it does not apply and what applies is S.45. It is a wrong judgment by YA for not addressing S.45. My learned friend is wrong when he says the witness is a witness of fact. He is just giving advisory opinion. The opinion must always be factum and something substantial. In this case it’s the notes. The witness says he has the data, he has the document but he kept on saying he want to give evidence based on his memory. He is nit here to dictate to us. YA is here to ensure proper evidence is given. Evidence which is essential. If I may repeat again, YA cannot sit here and let me be misdirected and let the Court of Appeal to correct it later. That is what YA is doing.

YA: If he does not give the data and I accept the evidence it will be misdirection.

KS: Why must Ya wait for that?

YA: I’ve yet to decide whether to accept his evidence or not.

KS: No. YA cannot accept his evidence. Because the court has made it clear, I repeat for this particular witness to place before the court all data.
YA: It’s up to them whether to provide for the data or not.

KS: Without the data it’s not worth for any paper to be written [read the Supreme Court case] YA must direct him, he must place before the court all the data. The court must direct the data to be placed before the court. No doubt this is an adversarial system, but the court has its function to ensure all the data and material are being placed before the court. We urged the court to consider the Supreme Court case and S.45 again. The witness is being programmed. He says he has the document, but he didn’t want to see them and he just want to give evidence based on his memory. I do not have to repeat this submission again because the third witness will come out and I’ll repeat the same thing again. The Supreme Court has said this way back as far as 1993.

MY: May I reply?

YA: KS belum habis lagi.

MY: He has been repeating himself.

KS: I’m not repeating. I’m emphasizing so that YA would understand what we are going to say. It is so clear but I can’t understand why YA cannot see what we are trying to put across. I’m making attempt for YA to understand it. I’m as much as an officer of the court as much as YA. There is no difference between us. I’m here to convince and persuade YA in the name of justice.

YA: That’s all?

KS: That’s all.

MY:     My Lord, I accept that statement of law made in that case. That is a general principle. Now, we talk about data. He is not a chemist to analyse the specimen, to see whether there is semen or whose DNA is it. But as far as the chemist is concerned we have given all the documents and data of the chemist to the defence. But here what data is he relying on giving evidence? All this team of the doctors did was to examine physically, to observe whether or not there is injury. They can testify to that. They don’t need the data to come to that. And then they collected the specimens. And they did not even analyze the specimen. As far as the chemist is concerned like I said just now all the data used by the chemist to analyzed had been supplied. So he is to give his reasons. Now as far as the doctors are concerned when they gave their opinion with regard whether there was penetration, he was not even relying on their examination. Because as far as the  conclusion is concerned, the conclusion is neutral. There is nothing clinically conclusive suggestive of penetration. That’s all. So whose report and data that they are relying upon? It is the chemist report. And the chemist report was produced in court and incorporated into P22. So what data is my friend asking for now? They don’t have the data. Like I said, he may be a specialist. But in the context of this case, what he did is nothing more than just collecting specimens. What should be the concern is whether they have adopted a proper procedure or not in terms of specimens collection, whether they are train or not. That’s all.I’m aware with all those cases. Even R v Turner said when a psychiatric or a doctor gave evidence as to the mental state of mind, he must state the facts proved by admissible evidence not based on interview alone. He must make his opinion based on his own observation and not of anybody else. We know that and that is trite law. We have no quarrel with

KS. But this is not the situation in this particular case. So when they kept on talking about data, this is not about handwriting where you have to analyse the handwriting, the loop, the angle, whether or not pressure was applied during writing, what kind of ink and all that. I mean it is so different. The statement of the general principle we accept. But we have to look into the context of this case. He may be an expert in so many things. But what did he do? What evidence did he gave? Was it based on his specialise training? Or what any medical doctor would do. In his situation where he was ask to examine and collect specimens. And that don’t require data. We don’t need reason and there’s no reason here. He is only testifying on what he did and what he did not do. And also what he observed.
So now if the only conclusion that he made which incriminate the accused was based on that report and that report was made available. In fact the report was of no assistant to him because the location was not known. So my learned friend cannot complaint now “You must bring the report based upon which you give your conclusion. The report was incorporated in P22 and also produced in court in the form of ID25 for KS and SN to see and to analyse. So what is it that we are withholding? We don’t.
But as I said just now my Lord and I said this previously, S.45 talks about expert evidence. It talks about circumstances where the court can comfortably accept and attach the weight to it. And it lays down the principle. Principles based on the factual fact of the case. S.45 does not say if the prosecution or anybody who rely on the expert witness failed to do certain thing then it’s for the court to compel to do it.
This is an adversarial system. Your Lordship role as a role of a referee. It is not your Lordship’s function like in a football game for us to bring the ball to the goal mouth and for you to shoot it. It’s our duty. And if we failed to do it, that’s the risk we are to take. And KS cannot genuinely be concern of justice in that sense. He should be happy. If I failed to do all this thing, he could just comment. He can come out with cases to say that it is unfair and that I cannot cross because you did not come out with the data. So in short, just like KS, that your Lordship is not persuaded and that we did not understood him, we understood him very clearly. It’s just that the law does not support what he propose the court to accept that this particular S.45 gives the latitude to the court or defence to have access to the documents which  the prosecution or the witness do not refer or tender. That’s all.Thank you My Lord.

KS: Just 2 points. Whether it is a chemist or handwriting expert or medical doctor, the principles are the same. There’s no difference between these principles. What these witness is doing is coming to the court and says “These are my findings”. He is not prepared to go further than that. What is important here YA is that the witness yesterday says  that there were photographs taken but the prosecution in fact would object to the production of the photograph. Why is the photographs not admissible? Is it not necessary for us to look at the photographs?I refer to an Indian case of Madan Gopal. Expert is expected to put up all materials. This is what the Supreme Court says. [read].

YA: We accept that. But the question is can we compel them to do that?

KS: As I said earlier this is not an evidence of fact. It is opinion

YA: If they failed to prove, then they take the risk.

KS:    Why wait for the misdirection when it can be avoided.

KS: I will carry on as I have not finished. I start again (read submission). The court although not an expert may form it’s on judgment on those materials. Once the opinion of the expert is accepted it is not the opinion of the expert but that of the court. That is what YA it is. We urge YA to reconsider the ruling made yesterday.  Concentrate and focus on section 45. The court has a duty to ensure justice is done. Adversarial no doubt but YA must demand for the data to be produced so that YA would be in the position to make findings. YA should not be concerned with the defence or prosecution but YA oneself. Because later YA has to make a findings of facts base on advisory opinion and the opinion can’t be done unless YA has all the data.

YA: If there is no data and the court cannot make a finding and you will be at the advantage.
KS: It is not about advantage. It is about justice. Here there’s no justice. To do justice  YA must be fair to both side. Why is my learned friend so intent in disallowing something which is allowed in every countries? Once again reconsider the ruling made yesterday in the light of the Supreme Court decision. It is our Supreme Court decision. Section 45 alone. Forget 159 and 157. They do not apply at all.

YA: So now you are asking under S.45 Evidence Act 1950?

KS: Yes. 45 alone and nothing else in the light of our Supreme Court case and the Indian Supreme Court case.

YA: That’s all? Give me some time.
[9.18 a.m.] Stand down.

[9.57 a.m.]
YA: This is my ruling. [Judge read his ruling] The application of the defence is hereby dismissed.

KS: We get instruction to appeal against your Lordship ruling.

YA: This is an interlocutory ruling.

KS: It depends on how we go about it. Because we do not want this to be repeated because there are 4 witnesses pertaining to this issue

YA: It’s up to you. I’m not going to accede to any postponement. But in the mean time we can proceed.

KS: It’s not a postponement. It’s an adjournment for us to get the application filed. In fact your Lordship has to hear the application.

YA: As of now there is no application before me.

KS: Application cannot be oral. It must be in writing We requires some time to get the application done. It is a precedent that your Lordship said application must be made in writing.

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

KS: Perhaps that’s what I mean.

YA: So I take it you don’t have any cross-examination.

KS: Your Lordship cannot take it to that extent, I’m making my application and I’m giving my reasons for it.

YA: So you are making an application for stand down, is it?

KS: We have to file the application because if our application succeed there is no reason to go on with this particular witness. If your Lordship agrees with the stay. Your Lordship does not understand. If your Lordship agrees for a stay, then it will be pointless to go with the evidence of this witness.

YA: I don’t want to argue with you.

KS: But your Lordship has passed precedent like this earlier. So we need time. Or is there a departure as to this precedent, my Lord?

MY: My Lord, I’m sure KS or SN can cross examine the witness on other aspect other that does not require the so call data that they ask for. Because  until today we do not know what data they are talking about. because there is P22 which is the notes based on the examination. I’m objecting for the stay.

YA: You can file for your application for stay. But for the time being proceed with the cross-examination of the witness. Teruskan.

Cross-examination of SP3 by KS.

Q: You have given us this pro forma. Which you have fill it up?
A: Yes.

Q: By whom?
A: By my medical officer who was under me.

Q: Who is the medical officer?
A: Dr. Raswin

Q: It’s quite a pro forma isn’t it?  With many questions to be filled up.
A: Yes.

Q: It’s detailed?
A: Yes.

Q: Is it exactly like this that you have filled up?
A: YA, it’s just a guide.

Q: I’m talking about the pro forma. What was it that you fill up?
A: This is just a guideline…

Q: Is this the pro forma?
A: Yes.

Q: The white one or the yellow one?
A: The white one.

Q: So you fill up every detail as in this pro forma?
A: Yes.

Q: You filled up every question and gives the answer?
A: Yes.

Q: Preliminary?
A: Yes.

Q: First, the general information. Patients name. What was it?
A: Mohd Saiful bin Bukhari.

Q: What is his i/c number? You said you got good memory.
A: YA, can I have a copy of my clinical report.

KS: Dr. Siew,…

YA: He wants to refer, now you don’t give.

KS: Precisely. That’s what I’m coming up with.

Q: Do you want to refer to this now?
A: No. I don’t want to refer to this.  May I have a copy of my clinical report?

KS: No. Dr. Siew, you are not answering the question. You said you can give through memory.  Name again the patient. Spell it.

M Y: My Lord, may I interject.

KS: We do not want interference. The DPP should not interfere unless he wants to be cross-examine.

MY: I want to raise a point.

KS:: What is your point?

MY: Let me address the court. I just want to clarify with the court and the defence counsel. Are we asking this person with regard to what he did or to the record of  what he did?

YA: I understood what he did.

KS: What he did here. Give us the latitude. Whatever he has fill in, now we want him to remember.

SP3:  YA, of course I can’t remember details such as i/c number.

Q: So i/c number you can’t remember? Name?
A: Mohd Saiful bin Bukhari. Of course I can’t remember certain thing.

Q: Mohd Saiful bin Bukhari?
A: Mohd Saiful Bukhari bin Azlan.

Q: I/c number you can’t remember?
A:

Q: We go one by one if that’s what you want. Three. Address. Can you remember?
A: Address I did not fill in. Because I have a copy of the i/c.

Q: So address is not important?
A: It’s in the i/c of the patient.

Q: Isn’t it a requirement to fill in the form?
A: I’ve a copy of the patient’s i/c.

Q: Isn’t it a requirement to fill in the form?
A: That pro forma serves as a guide for us.

Q: Age?
A: 23 years old.

Q: Date of birth?
A: It’s as per the i/c. I cannot remember.

Q: Occupation?
A: A private assistant.

Q: Private assistant to what?
A: I didn’t ask.

Q: Married/single/divorced?
A: Single.

Q: Out patient card number?
A: There is no such thing. No information.

Q: Hospital admission number?
A: I put it as K08/08 as my case number.

Q: But admission number is there.
A: YA, that is just the pro forma.

KS: Dr. Siew! Forget what it is. We know what it is.

Q: Date of arrival?
A: 28th June 2008.

Q: Time of examination?
A: We put 9.12 p.m.

Q: Place of examination?
A: We put it as One Stop Crisis Centre (OSCC)

Q: Police report number?
A: Travers report.

Q: Number. Not the Travers report.
A: I can’t remember. Can I have a copy of my clinical report again?

Q: Do you want to refresh your memory?
A: I would like to recall my memory from my clinical report.

Q: Do you want to refresh your memory?
A: I want my clinical report.

KS: YA, gives us the latitude.
MY: He wants to refer to his report.

Q: Do you remember?
A: Yes. I wish to refresh my memory by referring to my clinical report.

Q: We are referring to this. This document. And nothing else.
A: YA, I want to refresh my memory by referring to my clinical report.

Q: No. I want you to refer to this. This is the document.
A: I want to refresh my memory by referring to my report.

KS: No.

MY: This is what the refreshing memory is all about. Let the witness refresh his memory if he want.

KS: No. We are basing it based on the pro forma which he has filed.

YA: Okay. He does not want to.

KS: He does not want to.

Q: You don’t want to?
A: I want to. I want my clinical report.

Q: You don’t want to refresh your memory from this pro forma?
A: No, YA.

Q: Then say no. Next, name of the police officer?
A: His name id DSP Jude Blacious.

Q: His i/c no?
A: I cannot remember.

Q: Do you wish to refresh your memory?
A: Yes. From my clinical report.

Q: Dr. Siew! Do you understand? This document. You don’t wish to refresh your memory from this document?
A: No.

YA: KS, if he wants to refer to the clinical finding, let him.

KS: YA, we want this document. Why must go to the other document?

Q: Allright Dr. Siew. I/c no. of this police officer?
A: I don’t remember.

Q: Do you wish to refresh your memory?
A: Yes. From my clinical report.

Q: Do you understand English?
A: Yes.

Q: Do you want to refer your memory based on this document?
A: I don’t wish to.

Q: Why?
A: I don’t wish to use this document. I’ve my complete report.

Q: Why not from here? Forget the complete report.
A: I’ve answered already.

KS: Come on Dr. Siew, you can’t come here and expect us to accept your lie.

MY: That’s a strong word.

KS: Stronger words are coming out.

MY: What is your basis in saying that?

KS: Because he is obviously lying to his teeth.

MY: This is my problem. I thought witnesses are called to testify with regards to what they do.

KS: That’s what he did. This pro forma.

MY: This is the record of what they did.

SN: Why are you scared? Why are you scared? Why is he scared in referring to his notes?

MY: I think the court must make a ruling. Are we going on what he did or on what he recorded he did?

KS: We will go on. But one by one. Later on.

MY: I thought that is what he did.

SN: That’s your style. Our style is different.

MY: It’s not about style…

KS: I do not wish to be interrupted. This is the document which he prepared. And he does not want to refresh his memory because he has been programmed.

Q: We proceed. Name of the police officer you know, but i/c of the police officer you don’t know.
A: Yes.

Q: But you don’t wish to refresh your memory based on this document?
A: No.

Q: Why?
A: I don’t wish to.

Q: Name of the doctors who examine the case?
A: Dr. Khairul Nizam b. Hassan, Dr. Razali b. Ibrahim, Dr. Siew Shueu Fend and Dr. Ridzwin.

Q: Designation of the first doctor?
A: We did not fill in that section.

Q: Name of nurses assisted?
A: There’s no nurse assissting. There was no nurse around.

Q: Name of counsellor?
A: There was no counsellor.

Q: Now this is important. The history. The following should be. Page 5. Do you know of page 5.
A: Can I have a copy? (Witness is handed over the pro forma)

KS: No no no no. Not this one. The one that he has fill in.

MY: You have not even ask the question. You ask first. You ask what is it for page 5.

KS: You don’t teach me how to ask. I don’t have a copy.

Q: History. The following should be noted as alleged rape.
A: There is no rape here.

Q: But the following should be. It’s mandatory, isn’t it?
A: Not mandatory. It’s a guide.

Q: The word is should.
A: The word should is a guide.

KS: Where did you learn your English?

MY: It doesn’t matter. The whole page is a guide.

KS: Forget about the guide.

MY: How could you forget about the guide?

Q: Allright, 1.1. is there 1.1 from your memory?

MY: What is this?

KS: This is not a laughing matter.

YA: Be precise with your question. Ask him what has he recorded in 1.1.

Q: There is a five isn’t it? One, there is history. You remember that isn’t it?

MY: That is not 1.1.

KS: My Lord, my learned friend should keep quiet.

MY: You didn’t even ask what you write in 1.1.

KS: Because that’s what he says.

MY: Because earlier on you ask name. Why not you ask what’s on page 3? We have got to be fair to the witness.

SN: We have been fair to him.

KS: He has been unfair to himself.  These people are all programmed. They are robots.

YA: I think we take a break.
[10.17 a.m.] Stand down.

[11.29 a.m.]
KS: We’ve got an instruction form my client for your Lordship disqualification to continue hearing with this matter. We are putting up a written application. But basically the grounds of our application is this, that your Lordship has failed to abide by the guidelines or for that matter specifically the case of the Supreme Court in United Asia Bank Bhd. We’ll put up a written application by tomorrow morning. We ask for this trial to be adjourned until the hearing of our application.

YA: You will file it by tomorrow morning?

KS: Yes.

YA: But in the meantime we can proceed with the trial now.

KS: No.

YA: Because in the meantime I will have to consider contempt proceeding as well for making an application to recuse a judge.

KS: We will give more details in our application. DSAI is afraid that he is not being given a fair trial. It is our client’s instruction that we are bound to take. Your Lordship may refuse it. It’s within your Lordship domain. But we have got to take instruction. The question of contempt does not arise. This is matter where your Lordship has to view objectively.  We have the role to play as defence counsel. If instructions are given, we must abide by the instruction.

YA: But you are responsible for whatever instruction that you are taking. Like in the case of Zainur Zakaria where it says you are responsible with whatever instructions your client gave. Zainur zakaria case is clear on that.

KS: That’s a separate matter.

YA:    MY?

MY: YA, this is the first time I’m hearing an application grounded or that the judge should be recused on the ground that involves a matter of interpretation or judgment. It does not involves the conduct of the judge, but it’s a matter of the judge interpreting the authority and say that this authority does not support your proposition I have never heard of something like this. I do not think there is even a ground because if you are not happy, you appeal. If it can be appeal. If not you have to wait until the end of the trial. But it cannot be a ground when the judge interpret differently.

YA: That one tomorrow baru decide.

MY: YA cannot decide tomorrow because how are you going to say that “I interpret it wrongly”. You won’t be able to say that because you have heard the submission and make a finding that the authority does not support the proposition. Tomorrow, when somebody comes in and says that you do not follow because it involves your own interpretation of that authority.  Whether or not it support the proposition. No.2 I agree with your Lordship. Client will ask for anything, but counsel must be able to advise and only do things which is permissible under the law. Not because “Oh, my client ask this”, irrespective of whether or not the law allows it. Because it’s my duty to pursue my client’s case without fear or favor. Because everything is subject to procedures and the law. I’m objecting to the application of stay.

KS: The question of contempt is totally unwarranted. Your Lordship should view it objectively. When a written application is made…

YA: When the application is made of course I can hear it.

KS: But to threaten us with contempt…

YA: For the time being, we can proceed.

KS: But to say contempt at this stage is serious.

YA: I’m not saying it is contempt.

KS: Your Lordship said it just now. Which is not proper. We have a duty to perform.

YA: Okay, that one will be filed tomorrow la. But in the mean time…

KS: But the statement of contempt is entirely unwarranted. To intimidate a counsel is a serious matter.

YA: Never mind. Tomorrow’s application should be heard tomorrow.

KS: YA should draw the threat of contempt.

YA: I withdraw that.

KS: Yes. It’s not proper. We’ll take responsibility if responsibility has to be taken. Counsel must be prepared for that and we are prepared for that. YA should not threaten us even before we embark on the application.

YA: So, what about today’s proceeding?

KS: It’s as simple as that YA. I’m saying that until such time your Lordship hears the application and be serge upon it. Your Lordship can’t go on with the matter. It would be superfluous be ultimately overtaken by your Lordship’s ruling tomorrow. If your Lordship is to decide tomorrow your Lordship to disqualify yourself. We cannot take it that your Lordship is saying that we carry on despite whatever your Lordship’s decision tomorrow. Your Lordship should take it objectively. I was taken aback by the threat just now. I’ve been practising for the past 41 years, my Lord.

YA: It’s not a threat.

KS: But your Lordship refers to Zainur Zakaria and more or less giving us an indication not to file the application. Which I any event will be file irrespective of the intimidation. We will file it. Your Lordship can decide against us. That’s another matter.

YA: In the mean time, can we carry on?

KS: I don’t mind. In any event I’m prepared subject to application tomorrow. We are prepared. Lets get on with the witness.

YA: Proceed with the trial now. Tomorrow we see how.

Cross-examinantion by KS.

Q: Do you remember the oath you took?
A: Yes.

Q: Repeat that oath. Don’t look at anything. There’s a card there.  Push it aside.
YA: Why? He took the oath. He read from there.

KS: I’m asking whether he remembers what you read.

Q: Dr. Siew, did you remember what you read? As an oath?
A: Yes

Q: Can you repeat it? Or do you want to refresh your memory from the card in front of you? What’s your option, Dr. Siew? You want to read from your memory or from the card in front of you? Dr. Siew, you must answer. Don’t look around.
A: [recite]

KS: Nothing else but the truth.

Q: During the break, did you go through the pro forma? Outside there, in the witness room?
A: Yes.

Q: You have it with you?
A: Yes.

Q: Did you have a look at it at all?
A: Yes. I did have a look at it.

Q: Why?
A: To refresh my memory.

Q: You did it to refresh your memory?
A: Yes.

Q: What part did you referred to just now? To refresh your memory. My Lord, we want that part.
A: The pro forma.

Q: What did you look at outside there to refresh your memory.
A: The pro forma.

Q: All of it?
A: Not all. Some of it.

Q: Which part? Do you wish to refresh your memory based on the pro forma just like you did outside during the break?
A: No. I remember now. I’m refreshed now.

Q: No no. you refreshed your memory outside. Which are the part from which you refresh your memory?
A: Name, Mohd Saiful…

Q: You went through the whole pro forma? Tell us the truth.
A: Yes.

Q: Because you have to give evidence later on, isn’t it?
A: Yes.

KS: Can we have the pro forma, my Lord? Because he has refresh his memory based on the pro forma pursuant to S.159 of the Evidence Act 1950.

MY: My Lord…

KS: Mr. DPP, don’t panic.

MY: My Lord, the law is very clear.

KS: My Lord, I’m not finish.

MY: All right.

KS: My Lord, we are asking for the whole of the pro forma to be produce. Because he refresh his memory. He said it under oath.

YA: But he refresh his memory outside the court. He did not do so while giving evidence in court.

MY: That’s exactly what I want to say. S.159 talks about refreshing memory while under examination. The law based on the literatures and the authorities, there is no stopping the witnesses from refreshing their memory outside the court, before the trial. The law is very clear.

KS: But is not in between giving evidence. Before trial yes. But not in between.

MY: But the law doesn’t says that, my Lord. We have the authorities.

KS: Shall we hear submission on this my Lord? If my learned friend wants to hear the submission.

YA: Okay, I’ll hear the submission.

KS: Gives us about have ½ hour to prepare our submission. Witnesses cannot go out and refresh his memory during break.

YA: When he wants to refer to the notes while giving evidence you disallow it.

KS: I didn’t disallow him. He didn’t want to. We will submit on this.

YA: ½ hour.
[11.42 a.m.] Stand down.

[12.20 p.m.]
YA: So we go the issue first. What do you want today?

KS: First, we pray for this witness to be cited for contempt of court. And also your Lordship to direct the prosecution of this witness under Penal Code.

YA: Peguam?

KS: First, that this witness, SP3 who has committed an offence in the Penal Code for interfering with the administration of justice. An offence punishable by the Penal Code.

YA: Which provision?

KS: I’m not sure of the provision. The authority I refer doesn’t refer to any of the Section in the Penal Code.

KS: The first thing is that whether during break this witness if he refreshes his memory that he is in contempt. For all purposes whatever he referred to refresh his memory be supplied to us.

YA: So you want the pro forma to be supplied to you?

KS: Yes. Next, whether the witness remain to be under examination eve during the break. We say he remain under cross-examination during the break because he was still under oath during the break. The rest would then follow. We refer the case Moomin bin Saman 1993 3 MLJ 282, subject of course this authority being overruled which I’m not aware of. A decision by Richard Talala…
YA: Has it been overruled?

KS: No. As far as I’m concern, no. I read the head notes. [read head notes and holding].

YA: You think I’ve the authority to direct him to be prosecuted? I thought that is the  power of the AG.

KS: To direct for him to be investigated is better. For the offence under the Penal Code. But first the contempt, where your Lordship has the power and the judges had done in the course of the trial and the Lordship has instructed investigation. This is a clear case where it is warranted. That would be our submission. One which is of important at least for the purpose of the trial that we be supplied with whatever material used by the witness to refresh his memory during the break. That’s the main thing at the moment.

MY: My Lord, I’,m not sure whether the court is in the position to direct investigation against the witness just based on the authority of Richard Talala decision which was not followed by any other courts in Malaysia. This is the only High Court in Malaysia which bars witnesses from looking at statements before or during the break. Because all other High Court have not followed. In fact what J Talala did was to decline to follow the Court of Appeal in Singapore and the English Court of Appeal. He has his own idea of S.159 and  S.160 and S.161. His decision was that he is bound by the statutory provisions of S.159, S.160 and S.161. So what does S.159 says? One, it says witness can refresh his memory while under the examination. The word is “may refresh his memory”. Nowhere in S.159, the law says that this is the only time you can refresh your memory. If you are not under examination before the trial judge, you cannot refresh your memory not before, not during the break. Even that statement that during the break that he is still under examination is a bare statement. What weight is to be attached to a bare statement? During a break, when you get back home, tomorrow you are still under examination.

YA: This is what he said, isn’t it?

MY: This is what he said. But what is the reason for doing so? Because we may adjourn at 4.15 p.m. today and the witness go back, he is supposed to be told you are still under examination.

YA: Any other case yang kata ini tak betul?

MY: I do not know any. All I have is that Lim Fong Yap. But first let me refer your Lordship to the literature which we have given you earlier. This is a literature by Paul.

KS: Perhaps my learned friend should gives us the authority that this case is overruled.

MY: Let me finish first. If I may my Lord refer to that literature. Page 1048, the last paragraph under the subheading “whether a witness is allowed to read his statement before the trial”. [read] So what Justice Paul is saying is this, S.159 does not says anything. It merely says you may refresh while under examination. But then you have to satisfy certain conditions as the literature suggest you must demonstrate there is a need for it before you refer to it. [continue reading] I must bring back  your Lordship to the start of the paragraph. It said Talala said you cannot refer to it  before or when the case stand adjourned. With this, Paul we part company. We disagree with you. So J Talala talks about even during the break you are still under examination. But that’s what he said. There is no other authority to say that even during break you are still under examination.

But one thing I can see what Paul said there is always a safeguard. You look at the statement and I decide what weight to be attached depending on the particular facts of the case. That’s what he says. It cannot be contemptuous. Witnesses have been known to be present in court while other witnesses are giving evidence. And still the court in this country and in any other country say there is no bar for him to come and give evidence. Except that the court has to decide what weight to be attached. Here we are not talking about statement recorded under S.112. Here we are talking about his own notes. The form that he fills. It’s not something that the prosecution gives him to read. It’s all the time in his possession.

The reason why we need to allow has been discussed in the case of Regina v Richardson which was quoted or referred to by te Court of Appeal of Singapore in the case of Lim Fong Yap. I have a copy of Regina v Richardson. I’ll make a copy for your Lordship in due course. But let me read the passages that the judge in Singapore referred to. At page 7, [read page 7]. If I may go down a little bit somewhere in the middle starting from “[curiously enough]”. [continue reading].

So what they are saying is that let him have access. We don’t want to turn the trial into a test of memory rather than the test of truth. But once you enter the witness box then you have to follow S. 159. If I may refer to Moomin case. I have the Lexis copy…

YA: Even if we were to allow him to refresh outside without the permission of the counsel or the prosecution, will that be still under S.159?

MY: What S.159 says is that during the examination before the trial judge.

YA: []

MY: Because S.159 only says when the witness is in the witness box. Or else the law will say even if you were given the thing one hour before that you still have to show. But the law doesn’t says that. What the law says is that if you come to court and enter into the witness box, then there are rules to follow. First, you cannot refer to the document as a matter of right. Because the law says you must testify with the aid of your memory. The literature in Paul and Sarkar say this, you can apply but the court must satisfy that it is so necessary before leave is granted. But outside that it is a matter of his right to look at it. He didn’t even have to ask from us because it’s in his possession.

Only yesterday I was reading this article by J Shankar, the former Court of Appeal Judge quoting J Wan Yahya. And in fact that passage was found in your judgment with regards to S.51 application. What the law does not prohibits it permits. So S.159 does not talk about during the break. It talks only about while under examination. And what is under examination, it is there in the witness box, not outside the witness box.

And this is what Paul said : before or during break, but the safeguards is the court has to decide what weight to be attached. That is the court’s discretion. But as what Regina v Richardson says : you have to give access. Because it says you want to do justice, not to test his memory. You are more interested in justice. You would be failing in your duty if you disallow. And S.161 merely says this: if he refers while under examination, that means while being questioned then you have the right. With regard to India, this is the Indian position. Page 2295 of the literature from Sarkar, under the heading “while under examination”. [read]. Examination in court, so outside the court is not examination. [read] While I’m submitting I can hear KS is saying “That is before the trial. Before the trial”. It’s true. Because the law is envisaging the situation before the witness gives evidence. But as Paul has said as for now we don’t agree with Moomin. I refer to Moomin case, the copy which I have downloaded from Lexis Nexis. I refer to page 9 of the report, the last paragraph. This is the judgment of J Talala. [read]. Richard Talala has his own idea. But like I said, what does S.159 said? Witness may refresh memory while under examination before the trial judge. Because what Hogan seems to suggest is that you can refer to it at anytime so long it is not while under examination before the trial judge. And in the literature by Paul, the condition precedent, i.e the condition before you are allowed to refresh your memory is what he quoted from Talala’s judgment. It is not as a matter of right. Eventhough S.159 you may refresh memory, S.159 does not impose any condition but J Talala lays down the condition. First, you ask him orally about the fact. Only when he can’t then he may apply. And only when the judge think that it is so necessary, to me meaning whether or not the particular of fact is so relevant and crucial to the issue for adjudication. For example, the i/c of Judy Blacious  could not be that crucial. Because the so called Judy has been identified by this particular witness to be the officer who came to attend and who briefed them the history of SP1.

So my Lord, the law as far as J Paul is concern in his literature and all other authorities seems to suggest that there is no bar for a witness to refer to his statement. But that is not the issue before this court. The issue before  this court is whether my learned friend is entitled to that document if he refreshes his memory outside the court. So the literature seems to say that S.159, i.e Sarkar – while under examination in court. If I may just again read Sarkar [read]. So.161 says whatever referred to under S.159,then it is imperative for the witness to show that portion he refers to the defence to use it to cross and to contradict.

So my Lord to sum up, may I just say that the law as J Talala said that is bound by S.159 does not prohibits refreshing of memory outside the court. Only he talks about the context before or after. He says cannot. before or after, you can’t do it. Before or during which J Paul disagree which all the Judges if I’m not mistaken in the whole of Malaya doesn’t agree. I do not of any other cases before this is the only case which decides this way. No.2…

YA: []

MY: In fact J Paul in his literature was referring to the case of DSAI and this case has gone up to the Federal Court and I don’t know of any adverse comment made by the Federal Court with regards to his approach to S.159 and S.161 in DSAI’s case. I do not know and I’m not aware. Meaning that it is tacitly approved by the higher court.

No.3, supposing it is wrong, supposing the court is in agreement with Talala, does that give him the right to look at the document. So the answer is negative, Because the law only talks about refreshing memory while under examination in court. Only those documents he referred in court while under examination that he is entitled to ask and which the witness is under obligation to supply. That is not the case before your Lordship now. No matter how you look at it, still the defence is not entitled. And whether or not it is contemptuous, I doubt it is contemptuous. Because contemptuous is when there is a blatant disregard to any order or rule by this court. He has not. The court has not says you don’t do this. Nothing. That would be all, thank you.

KS: A short reply. My learned friend should learn how to catch the bull by the horn. The question is whether a witness when the case is stood down, he refers to it, he is guilty of contempt. J Richard Talala has gone at length YA into that question and had formulated the rule as to refreshing memory. My learned friend refer to Sarkar. Lets see what sarkar says under the heading “While under examination”. [read]. We have no problem of that. It has been already been done. But the next sentence. But the word does not seems to debar for witnesses to refer to any writings before the examination. So the word here is before. This is not before. This is in between. It is in between. And all the cases my friend had cited in fact was saying before the examination.

I refer to what Augustine Paul J say [read]. We have to look at what J Augustine had to say. Disagreeing with this two. Lets look at what it says. [read] This is with regard to before. [read] Nothing says here with regards to when the court adjourned. It is before, not when court stood down. J Paul did not says as to this In fact what J Paul said does not at all negate what was held by J Richard Talala. Even during interval or for that matter when the witnesses says “I want to go to the toilet” and he refreshes his memory there and he is found to do that, does that mean he is not under oath?

YA: So that means you have the right to inspect?

KS: Yes.

YA: What about the contempt?

KS: He is still under oath.

YA: But there is no court order to say “No. You cannot do anything”.

KS: We don’t need court order. Because he is not entitled to do it. Before the break he can, but during the break he can’t. And that is what the conclusion of J Talala and if it does it amount to contempt. In fact if the witness said he wants to go to the toilet and he comes back, he is not ask to take the oath again. We carry on from where he left off. We say that your Lordship should follow what J Talala says in great lenght. Even his reason and authorities before coming to a conclusion. We say what was set out in Moomin aptly and squarely applies in court today. Of course first thing first. We are entitled to look at the pro forma. The rest falls into place. He has committed contempt, i.e an offence under the Penal Code that is interfering with the administration of justice. your Lordship ought to follow the reasoning in Moomin. There is no authorithy which has overrule Moomin.

YA: What about the case of DSAI?

KS: Even in that case it says before. There are 2 parts essential in our submission just now. In Moomin, the witness is not allow to see his statement made to the police before the trial. It does not advert to when the case stands adjourn. Like J Augustine Paul. It does not. We only agrees as to that part, before. Go to the next page [read]. Must be before all the time. As Sarkar on Evidence says [read]. If the witness is allowed during short adjournment to refresh, if that is the law, it would be aptly difficult to apply S.159 and S.161.

We pray for your Lordship to order – one, we being supplied with the pro forma, two, that this witness be held in contempt, three, that your Lordship direct an investigation against this witness for the offence of interfering with the course of justice under the Penal Code. Message has to be send out that anyone who comes to court as witnesses cannot fool around. This witness is just doing that. Whole morning he says he doesn’t want to refer to the document. In the witness box he kept saying that. I think you should take time to consider the matter.

YA: Itu saja?

KS: Yes.

YA: Court postpone to 11.30 a.m tomorrow due to DSAI and his counsel have to be in Federal Court tomorrow morning.

[13.17 p.m.] Adjourn.

Anwar Ibrahim Sodomy II – The Recorded Truth – 26 Oktober 2010 October 27, 2010

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II.
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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 kecuali NH
PB: SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Ram Singh,Prof. David Wells, Dr. Brian MacDonalds (KS, Marissa, Radzlan tidak hadir)
WB: Zamri Idrus (untuk SP1)
AI hadir

[9.03 a.m.] Kedua-dua pihak masuk ke Kamar Hakim.
[9.18 a.m.] Kedua-dua pihak keluar ke Kamar Hakim.

[9.24 a.m]
MY: Hari ini ditetapkan untuk sambung pemeriksaan balas SP2.
RK: Kami terpaksa memohon satu penangguhan, just for today sebab Mr.KS the lead counsel is not well, and in the midst of obtaining the result of the blood test he took last week. We hope to get the result by tomorrow. Kami memohon agar kes ditangguhkan kepada pagi esok.
YA: Hari ni dia memang tak sihat la?
RK: Ya. Saya baru jumpa dia pagi tadi.
MY: Kami memang tahu KS tak sihat dari semalam lagi. Saya tiada bantahan terhadap permohonan. Cuma saya memohon supaya pihak pasukan peguambela untuk mengaturkan seseorang untuk mengambil alih jika KS masih tidak sihat esok. Saya memberikan masa yang mencukupi untuk apa-apa arahan dari pakar mahupun KS sendiri.
RK: Kami akan mengaturkan perkara tersebut.

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

Criminal High Court 3 KL

Before Arif Dato’ Mohamad Zabidin Mohd Diah

PP: All present except NH

Defence: SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Ram Singh,Prof. David

Wells, Dr. Brian MacDonalds (KS, Marissa, Radzlan absent)

WB: Zamri Idrus (for SP1)

AI present

[9.03 a.m.] All parties enter Judge’s chambers.

[9.18 a.m.] All parties leave Judge’s chambers.

[9.24 a.m]

MY: Today is set aside for continuance of cross examination of SP2

RK: We need to ask for an adjournment, just for today because Mr.KS the lead counsel is not well, and in the midst of obtaining the result of the blood test he took last week. We hope to get the result by tomorrow. We request that the case can be adjourned until tomorrow morning.

YA: He is really unwell today?

RK: Yes. I just met him this morning.

MY: We knew that KS was unwell since yesterday. I have no objection to request. I only ask that the Defence makes necessary arrangements for another counsel to take over in the event that KS is still unwell tomorrow. I am giving enough notice for whatever instructions to be given by Defence’s experts or even KS himself.

RK: We will do the necessary.

 

YA: As such, we adjourn the case until tomorrow. In the event that KS is unable to attend proceedings tomorrow, others from the Defence team will takeover the cross-examination accordingly.

 

[9.27 a.m.] Adjourned.

Anwar Ibrahim Sodomy II – The Recorded Truth – 25 October 2010 October 25, 2010

Posted by malaysianstory in Karpal Singh, Malaysian Story, Sodomy II.
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Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

PP:    Semua hadir kecuali NH
PB:     KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Ram Singh, Marissa, Prof. David Wells, Dr. Brian MacDonalds
WB:    Zamri Idrus (untuk SP1)
AI hadir

[9.28 a.m.] Kedua-dua pihak memasuki kamar Hakim.
[9.47 a.m.] Kedua-dua pihak keluar dari kamar Hakim.

[9.49 a.m.]
MY: Hari ini ditetapkan untuk soal balas SP2, SP3 dan SP4. Sebelum KS mulakan soal balas, saya memohon mahkamah ini untuk memanggil Dr. Siew, SP3 untuk bertanya soalan untuk satu isu.
YA: KS, ada bantahan?
KS: Tiada bantahan.

EIC of Dr. Siew (SP3) by MY

SP3 mengangkat sumpah di dalam Bahasa Inggeris.

Q: Dr. Siew, you informed the court on 14 October 2010 that all the specimens taken by Dr Khairul and Dr Razali are handed to you and put in the container.
A: Yes. On 28th June, I put it in the container all the specimens.

Q: You said you hand over the container to ASP Jude.
A: Yes.

Q: How did you hand it?
A: I placed all the sealed containers in a plastic bag and handed them to ASP Jude.

Q: Can you describe this bag?
A: It’s a plastic bag labelled with Forensic Department.

Q: Did you write anything on the specimens?
A: Yes. The type of specimens and my signature.

Q: May I show the witness the plastic bag? Can you tell the court and describe what this is?
A: This is the secure plastic bag which carries the label of “Forensic Department Hospital Kuala Lumpur” with the name Mohd Saiful Bukhari bin Azlan, case number, i/c number, the nature of the specimens which I seal and put in container and put in the plastic bag [read list of specimen written on the plastic bag]. I didn’t sign the bag. Just now I made mistake.

Q: Is this the plastic bag you put the container?
A: Yes.

Q: Is this the same plastic bag you use?
A: Yes.

Q: Who’s handwriting?
A: My handwriting.

Plastic bag from Forensic Department HKL dikemukakan dan ditandakan sebagai P27.

Q: Was it sealed when you hand it over?
A: I just seal like this [show to the court how he sealed it]

MY: YA, I have no question.
KS: We reserve cross for SP3.
YA: So you wants to cross SP2 first? We have SP2, SP3 and SP4.
KS: Yes.

Cross-examination of SP2, Dr. Razali b. Ibrahim.

SP2 mengangkat sumpah di dalam Bahasa Inggeris.

Q: Bercakap dalam BM atau BI?
A: English
YA: If angkat sumpah dalam BI kena jawab dalam BI.

Q: You took an oath just now.
A: Yes.

Q: What was it?
A: A declaration to tell the truth to the court.

Q: Not exactly isn’t it? You are here not to tell truth but the whole truth. [] more than the truth. The consequences can be really fatal if you don’t tell the truth.
A: The court will decide it.

Q: Are you aware of the consequences?
A: Accused for not telling the truth.

Q: Not accused of, but charge for not telling the truth.
A: Understood.

Q: When did you qualify?
A: I qualified as a medical doctor in 1998 from USM.

Q: You are a general surgeon?
A: Yes.

Q: No particular specialization?
A: Not yet.

Q: At this point in time just a general surgeon?
A: Yes.

Q: You qualified in 1998?
A: Yes. As a medical doctor.

Q: Did you take any oath as a medical doctor?
A: It’s the oath we took the moment when we enter medical school. Hypocrite Oath.

Q: Not hypocrite oath, but Hippocratic Oath.
A: Yes.

Q: You are here as an important witness. Are you a doctor or surgeon?
A: Yes. You can call both.

Q: Have you had experience in attending sodomy cases?
A: I have two cases before this, examination, but this is the first time I’m called into the court to testify.

Q: Two is not so many.
A: Yes.

Q: Exactly two?
A: The one I remember is two before this case.

Q: What about the rest?
A: The one I can remember is two.

Q: These two what were they?
A: Cases where the patient alleged to be sodomized.

Q: When did you go to court for these two sodomy cases?
A: I’ve never been called to court for this cases. This is my first time.

Q: What are the normal procedure when someone come and alleged  to be sodomized?
A: If any of this case, first it is being attended by medical officer from Emergency Department. They attend the case, and if subsequently they need further check-    up, it’s either us or other department, Forensic Department to further assess this case.

Q: Normally it is only one doctor who attended the case?
A: It’s always 3 doctors in HKL.

Q: The first thing to be done is to advert to the medical history of the patient?
A: Yes. So that it can be assessed by the Emergency Department.

Q: In this case, who did it?
A: Dr. Khairul.

Q: What’s your role?
A: I was called to do examination of the bottom part of anus/rectum to see evidence which support the allegation.

Q: What was the medical history supplied to all of you? The one of the Emergency Department referred to all of you?
A: it was summarised by a police officer the moment I arrived at the room.

Q: What do you mean?
A: The story as to what happened to the victim before he was produced to us.

Q: Done by Dr. Khairul?
A: Yes. It was done by Emergency doctor and Forensic Doctor.

Q: Both Dr. Khairul and Dr. Siew?
A: Yes.

Q: So you are not involved?
A: No. Not me.

Q: In what form?
A: Recorded in emergency notes.

Q: It must be in notes and details isn’t it?
A: Yes.

Q: So, they were notes pertaining to that?
A: Yes.

Q: Are they available?
A: Yes.

Q: You talk about police officer just now. How did he get into the picture?
A: The case is considered as medico-legal. Usually in this case, we have a report done, or someone to contact the police officer in the case.

Q: In this case it is DSP Jude?
A: Yes.

Q: Who called him?
A: I don’t know. When I was there he was already there.

Q: At 8.30 p.m.?
A: I was there at 9.00 p.m.

Q: Are you present throughout the examination?
A: Yes.

Q: You did the examination of SP1, Saiful?
A: Yes.

Q: What is the purpose of the police officer to be present at the examination?

MY: The witness has explained. This is a medico-legal case.
KS: []
YA: He has explained. We assume the role of the police officer is pertaining with medico-legal case.

Q: What is his role then? Within the parameters the Lordship has explained just now.
A: To make sure that the chain of event of the examination and specimen been taken and send to respective place properly and it was to observe the protocol being done.

Q: What’s the protocol in this case?
A: It’s whatever specimens taken was properly done and send to the proper place.

Q: You did a joint report by you and the other two doctors?
A: Yes.

Q: I refer to the report, P22. When was this prepared?
A: Examination on 28th June 2008.

Q: Examination on 28 June 2008, 9.00 pm?
A: Yes.

Q: Extended the work period for few hours?
A: We finished the exam on 12.00 a.m.

Q: 3 hours?
A: Yes.

Q: Was ASP Jude present at the whole time?
A: Yes. As far as I remember.

Q: P22, look at the wording “Medical History”. Just two (2) lines isn’t it?
A: Yes.

Q: That’s not normal is it? A history must go beyond two lines?
A: Not necessarily. Depends on the important things that you want to highlight.

Q: History can be more than one line?
A: Yes.

Q: In this report, the history is in two lines. Was there any mention by SP1 who sodomized him? Under the history?
A: No. Just mention ‘public figure’.

Q: Just ‘public figure’ and nothing beyond that?
A: Yes.

Q: The examination was conducted on 28th June 2008. When was this report (P22) prepared?
A: On 13th July 2008.

Q: Was this report requested by anyone? By any authority?
A: I’m not informed. By a higher authority.

Q: You assume it?
A: I was not directly involved.

Q: You assume it was requested by a higher authority?
A: Yes.

Q: Why is that?
A: Because usually the higher authority needs the report.

Q: What was the reason behind it?

MY: Don’t go on assumption.
KS: []
MY: S.60 of EA is very clear. He was talking on what he knows, not what he don’t know.
KS: Yes. Assumption.

Q: What is your assumption?
A: I was invited, was called to be present.

Q: What’s assumption?
A: This is a medico-legal case. So must by higher authority.

Q: Higher authority means the police?
A: I don’t know. Maybe.

Q: Normally in this case, by police?
A: Yes. Should be the police.

Q: On the 13th July 2008?
A: By the police.

Q: Was any report prepared on 28th June 2008?
A: Initial report.

Q: By the three (3) of you on 28th June?
A: Yes. Only on history and examination.

Q: It is a separate report from this one?
A: Yes.

Q: The initial report, would it be available?
A: Yes.

Q: Those notes are available? The one you prepare on 28th June 2008?
A: Yes.

Q: Typed written?
A: Yes.

Q: Just like this one, P22?
A: Yes.

Q: So the initial report is typed written and prepared by the three of you and available?
A: Yes.

Q: Can it be produce in the court ?
A: Depends on the court. It’s not my authority to say so.

Q: This is a public document, so it must be made available.
A: Depends on the court.

Q: Is it available?
A: Yes.

Q: Who signed it?
A: I can’t remember.

Q: Is it signed on 28th June 2008?
A: The date I can’t remember.

Q: When was the examination conducted?
A: The examination was done on 28th June.

Q: The report was done on 28th June 2008?
A: I can’t remember,

Q: The report was done subsequent to the examination?
A: Yes.

Q: Did you sign it?
A: Yes.

Q: Was the report requested by higher authority?
A: Yes. Could be or could not be. But I don’t know who.

Q: Assuming the Higher authority means the police?
A: I don’t know. Could be.

Q: On 28th June 2008, what was the material before the three of you? What did you have? You have a police report, don’t you?
A: I was not aware of the police report. I was called for examination, so I not aware of any report.

Q: Was that police report made available?
A: I’m not sure. But it’s there.

Q: Subsequently, there was a police report?
A: Yes. The report of Travers Report 4350/08.

Q: Who signed P22?
A: The three of us.

Q: You are one of the signatories?
A:    Yes.

Q: [refer P22.] Is there any police report mentioned there?
A: Travers report 4350/08.

Q: So there’s a report? You have the sight of the report?
A: During the event of 28th June 2008, I didn’t see it.

Q: Was there a report made available to you? Unless it is not included in your report.
A: I don’t see the police report.

MY: Don’t quarell la.
YA: Yang belakang jangan bising sangat. I don’t’ want to hear you guys, I just want to hear the parties. If not, you have to go out.
MY: [] at the time of exam what did u have. []
YA: []
KS: This is cross-examination. so I can ask anything and []
YA: You have to give time. Otherwise he can’t answer.
KS: Witness must co-operate.
SP2: I’ll give my co-operation.

YA: Your question, on 28thJune was the police report available to you?
SP2: There’s a police report, but I don’t know what’s the content of it.

Q: What do you mean?
A: There’s a report but what was written in it is not available to me.

Q: Did you read the report before you sign it?
A: Yes.

Q: Isn’t it clearly stated Police Report 4350/08. So it must’ve been available to the 3 of you.
A: It was in the file, but not with me.

Q: It is stated that there’s a police report, but was it available to you?
A: No.

Q: Was it there in front of the 3 of you?
A: I can’t remember, it’s in the file.

YA: Police report ada dalam fail, did you see the report?
A: I don’t really see and remember which is which.

Q: Did you read Page third line?
A: Yes.

Q: So the report was there. Mentioned there?
A: Yes.

Q: What was the report mentioned about?
A: The report was there. But I don’t go into the detail.

Q: The report was there?
A: Yes.

Q: You saw it?
A: Yes, but don’t go into the details.

Q: Did the 3 of you discuss about the police report?
A: It wasn’t discussed. We discuss merely on the examination.

Q: On 28th June 2008 examination was conducted. Between 28th June 2008 and 13th July, there’s another report during that time?
A: The history and examination of the patient.

Q: So the history is more detailed than in this report?
A: I can’t remember.

Q: []
A: []

KS: The initial report is very important. Contemporaneous. That’s why we need all the reports.

Q: The report, is it possible to be made available afterwards?
A: It is not within my territory to say that.

KS: Does the report exist?
YA: Which report? Your last question, are you talking about the history?
KS: I’m asking for the report.

Q: Whether the report is available now?
A: I don’t know because I don’t know where is it now.

KS: []
MY: [] available.
KS: Of course it’s available, as my learned friend says.
MY: YA, what my learned friend concerns is history.
KS: Not history. But the report. I’m not interested on the history but on the report. Is it available?
YA: You’ve to ask him whether it is available now.
KS: The witness says so. And also the DPP.

Q: Is the initial report available at the hospital?
A: Should be.

YA: Boleh di kemukakan?
A: Has to ask the hospital. It is not with me now.

MY: I have to find out first because this is the only one we have.
KS: We wish to get the report, YA. It’s very important [].
YA: Kalau dibenar balik ke hospital, boleh bawak if available?
KS: The consequence is broken. P22 is important but another report prepared between 28th June 2008 and 13th July 2008 is more important.
YA: You cannot force him now.
KS: I did not force him.
YA: Kita suruh dia check balik. Kalau ada, he will produce it. I think we reserve itu dulu and sambung dengan yang lain. P22 is available now, it’s with you. Tapi the initial report dia tak ada now.
KS: P22 is the most important apart from the other one. It was connected to the other one.
YA: So what you wants to do now?
KS: []
MY: If I may suggest we proceed with cross-exam. And also under Section 157, oral evidence is important, but not the report. The person who examined should proceed to be question on his oral testimony.
KS: The entire case depends on the P22 and the initial report. Now we know the existence of the initial report and therefore we need both the reports.
YA: But it depends whether it is admissible or not. Kalau tak, no point. I’m going to adjourn for a while and resume when all parties are ready.

[10.41 a.m.] Stand down.

[12.17 p.m.] Kedua-dua pihak memasuki kamar Hakim.
[12.25 p.m.] Kedua-dua pihak keluar dari kamar Hakim.

[12.27 p.m.]
MY : Saya ingin memaklumkan kepada mahkamah semasa mahkamah ditangguhkan saya telah berjumpa dengan ketiga-tiga doktor mengenai laporan perubatan. []. Saya difahamkan kemungkinan report itu tiada sekarang. Tetapi Dr. Siew     mempunyai unsign copy of the report. Saya memohon satu tarikh untuk permohononan secara rasmi dibuat kepada HKL untuk SP2 []  but at the moment we have the unsigned copy. For this point of time, I’ve only the unsigned copy but this one we can make it available to KS untuk melihatnya. Saya mohon jika diizinkan masa diberikan kepada doktor dan IO untuk mendapatkan laporan itu daripada HKL sekiranya ada. Minta perbicaraan ditangguhkan kepada esok. Saya percaya rakan saya tiada bantahan.
KS: No, except this. The unsigned copy has no consequences. The copy signed by the three doctors is what we want.
YA: If ada, we should give them time.
KS: It is available because the witness says there’s a signed copy..
YA: So you want to locate for the signed copy?
KS: Yes.
YA: Sambung besok pada 9.00 a.m. sharp. Saksi datang balik esok.
[12.31 p.m.] Adjourned.

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

Criminal High Court 3 KL

Before Arif Dato’ Mohamad Zabidin Mohd Diah

PP : All present except NH

Defence : KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Ram Singh, Marissa, Prof. David Wells, Dr. Brian MacDonalds

WB : Zamri Idrus (for SP1)

AI present

[9.28 a.m.] Both parties enter Judge’s chambers.

[9.47 a.m.] Both parties leave Judge’s chambers.

[9.49 a.m.]

MY: Today is set for the cross-examination opf SP2, SP3 and SP4. Before KS commences cross-examination, I request the court’s permission to call Dr Siew SP3 to answer questions related to an issue..

YA: KS, any objection?

KS: No objection.

EIC of Dr. Siew (SP3) by MY

SP3 takes oath in English.

Q: Dr. Siew, you informed the court on 14 oct 2010 that all the specimens taken by Dr Khairul and Dr Razali are handed to you and put in the container.

A: Yes. On 28th June, I put it in the container all the specimens.

Q: You said you hand over the container to ASP Jude.

A: Yes.

Q: How did you hand it?

A: I placed all the sealed containers in a plastic bag and handed them to ASP Jude.

Q: Can you describe this bag?

A: It’s a plastic bag labelled with Forensic Department.

Q: Did you write anything on the specimens?

A: Yes. They type of specimens and my signature.

Q: May i show the witness the plastic bag? Can you tell the court and describe what is this?

A: This is the secure plastic bag which carries the label of “Forensic Department Hospital Kuala Lumpur” with the name Mohd Saiful Bukhari bin Azlan, case number, i/c number, the nature of the specimens which I seal and put in container and put in the plastic bag [read list of specimen written on the plastic bag]. I didn’t sign the bag. Just now I made mistake.

Q: Is this the plastic bag you put the container?

A: Yes.

Q: Is this the same plastic bag you use?

A: Yes.

Q: Who’s handwriting?

A: My handwriting.

Plastic bag from Forensic Department KL Hospital HKL submitted and marked as P27.

Q: Was it sealed when you hand it over?

A: I just seal like this [show to the court how he sealed it]

MY: YA, I have no question.

KS: We reserve cross for SP3.

YA: So you want to cross SP2 first? We have SP2, SP3 and SP4.

KS: Yes.

Cross-examination of SP2, Dr. Razali b. Ibrahim.

SP2 takes oath in English.

Q: Would you prefer English of Bahasa Malaysia?

A: English

YA: If oath is taken in English, answers should be in English.

Q: You took an oath just now.

A: Yes.

Q: What was it?

A: A declaration to tell the truth to the court.

Q: Not exactly isn’t it? You are here not to tell truth but the whole truth. [] more than     the truth. The consequences can be really fatal if you don’t tell the truth.

A: The court will decide it.

Q: Are you aware of the consequences?

A: Accused for not telling the truth.

Q: Not accused of, but charge for not telling the truth.

A: Understood.

Q: When did you qualify?

A: I qualified as a medical doctor in 1998 from USM.

Q: You are a general surgeon?

A: Yes.

Q: No particular specialization?

A: Not yet.

Q: At this point in time just a general surgeon?

A: Yes.

Q: You qualified in 1998?

A: Yes. As a medical doctor.

Q: Did you take any oath as a medical doctor?

A: It’s the oath we took the moment when we enter medical school. Hypocrite Oath.

Q: Not hypocrite oath, but Hippocratic Oath.

A: Yes.

Q: You are here as an important witness. Are you a doctor or surgeon?

A: Yes. You can call both.

Q: Have you had experience in attending sodomy cases?

A: I have two cases before this, examination, but this is the first time I’m called into the court to testify.

Q: Two is not so many.

A: Yes.

Q: Exactly two?

A: The one I remember is two before this case.

Q: What about the rest?

A: The one I can remember is two.

Q: These two what were they?

A: Cases where the patient alleged to be sodomized.

Q: When did you go to ct for these two sodomy cases?

A: I’ve never been called to court for this cases. This is my first time.

Q: What are the normal procedure when someone come and alleged  to be sodomized?

A: If any of this case, first it is being attended by medical officer from Emergency Department. They attend the case, and if subsequently they need further check- up, it’s either us or other department, Forensic Department to further assess this case.

Q: Normally it is only one doctor who attended the case?

A: It’s always 3 doctors in HKL.

Q: The first thing to be done is to advert to the medical history of the patient?

A: Yes. So that it can be assessed by the Emergency Department.

Q: In this case, who did it?

A: Dr. Khairul.

Q: What’s your role?

A: I was called to do examination of the bottom part of anus/rectum to see evidence which support the allegation.

Q: What was the medical history supplied to all of you? The one of the Emergency Department referred to all of you?

A: it was summarised by a police officer the moment I arrived at the room.

Q: What do you mean?

A: The story as to what happened to the victim before he was produced to us.

Q: Done by Dr. Khairul?

A: Yes. It was done by Emergency doctor and Forensic Doctor.

Q: Both Dr. Khairul and Dr. Siew?

A: Yes.

Q: So you are not involved?

A: No. Not me.

Q: In what form?

A: Recorded in emergency notes.

Q: It must be in notes and details isn’t it?

A: Yes.

Q: So, they were notes pertaining to that?

A: Yes.

Q: Are they available?

A: Yes.

Q: You talk about police officer just now. How did he get into the picture?

A: The case is considered as medico-legal. Usually in this case, we have a report done, or someone to contact the police officer in the case.

Q: In this case it is DSP Jude?

A: Yes.

Q: Who called him?

A: I don’t know. When I was there he was already there.

Q: At 8.30 p.m.?

A: I was there at 9.00 p.m.

Q: Are you present throughout the examination?

A: Yes.

Q: You did the examination of SP1, Saiful?

A: Yes.

Q: What is the purpose of the police officer to be present at the examination?

MY: The witness has explained. This is a medico-legal case.

KS: []

YA: He has explained. We assume the role of the police officer is pertaining with medico-legal case.

Q: What is his role then? Within the parameters the Lordship has explained just now.

A: To make sure that the chain of event of the examination and specimen been taken and send to respective place properly and it was to observe the protocol being done.

Q: What’s the protocol in this case?

A: It’s whatever specimens taken was properly done and send to the proper place.

Q: You did a joint report by you and the other two docs?

A: Yes.

Q: I refer to the report, P22. When was this prepared?

A: Examination on 28th June 2008.

Q: Examination on 28 June 2008, 9.00 pm?

A: Yes.

Q: Extended the work period for few hours?

A: We finished the exam on 12.00 a.m.

Q: 3 hours?

A: Yes.

Q: Was DSP Jude present at the whole time?

A: Yes. As far as I remember.

Q: P22, look at the wording “Medical History”. Just two (2) lines isn’t it?

A: Yes.

Q: That’s not normal is it? A history must go beyond two lines?

A: Not necessarily. Depends on the important things that you want to highlight.

Q: History can be more than one line?

A: Yes.

Q: In this report, the history is in two lines. Was there any mention by SP1 who sodomized him? Under the history?

A: No. Just mention ‘public figure’.

Q: Just ‘public figure’ and nothing beyond that?

A: Yes.

Q: The examination was conducted on 28th June 2008. When was this report (P22) prepared?

A: On 13th July 2008.

Q: Was this report requested by anyone? By any authority?

A: I’m not informed. By a higher authority.

Q: You assume it?

A: I was not directly involved.

Q: You assume it was requested by a higher authority?

A: Yes.

Q: Why is that?

A: Because usually the higher authority needs the report.

Q: What was the reason behind it?

MY: Don’t go on assumption.

KS: []

MY: S.60 of EA is very clear. He was talking on what he knows, not what he don’t know.

KS: Yes. Assumption.

Q: What is your assumption?

A: I was invited, was called to be present.

Q: What’s assumption?

A: This is a medico-legal case. So must by higher authority.

Q: Higher authority means the police?

A: I don’t know. Maybe.

Q: Normally in this case, by police?

A: Yes. Should be the police.

Q: On the 13th July 2008?

A: By the police.

Q: Was any report prepared on 28th June 2008?

A: Initial report.

Q: By the three (3) of you on 28th June?

A: Yes. Only on history and examination.

Q: It is a separate report from this one?

A: Yes.

Q: The initial report, would it be available?

A: Yes.

Q: Those notes are available? The one you prepare on 28th June 2008?

A: Yes.

Q: Typed written?

A: Yes.

Q: Just like this one, P22?

A: Yes.

Q: So the initial report is typed written and prepared by the three of you and available?

A: Yes.

Q: Can it be produce in the court ?

A: Depends on the court. It’s not my authority to say so.

Q: This is a public document, so it must be made available.

A: Depends on the court.

Q: Is it available?

A: Yes.

Q: Who signed it?

A: I can’t remember.

Q: Is it signed on 28th June 2008?

A: The date I can’t remember.

Q: When was the examination conducted?

A: The examination was done on 28th June.

Q: The report was done on 28th June 2008?

A: I can’t remember,

Q: The report was done subsequent to the examination?

A: Yes.

Q: Did you sign it?

A: Yes.

Q: Was the report requested by higher authority?

A: Yes. Could be or could not be. But I don’t know who.

Q: Assuming the Higher authority means the police?

A: I don’t know. Could be.

Q: On 28th June 2008, what was the material before the three of you? What did you have? You have a police report, don’t you?

A: I was not aware of the police report. I was called for examination, so I not aware of any report.

Q: Was that police report made available?

A: I’m not sure. But it’s there.

Q: Subsequently, there was a police report?

A: Yes. The report of Travers Report 4350/08.

Q: Who signed P22?

A: The three of us.

Q: You are one of the signatories?

A: Yes.

Q: [refer P22.] Is there any police report mentioned there?

A: Travers report 4350/08.

Q: So there’s a report? You have the sight of the report?

A: During the event of 28th June 2008, I didn’t see it.

Q: Was there a report made available to you? Unless it is not included in your report.

A: I don’t see the police report.

MY: Don’t quarell la.

YA: Yang belakang jangan bising sangat. I don’t’ want to hear you guys, I just want to hear the parties. If not, you have to go out.

MY: [] at the time of exam what did u have. []

YA: []

KS: This is cross-examination. so I can ask anything and []

YA: You have to give time. Otherwise he can’t answer.

KS: Witness must co-operate.

SP2: I’ll give my co-operation.

YA: Your question, on 28thJune was the police report available to you?

SP2: There’s a police report, but I don’t know what’s the content of it.

Q: What do you mean?

A: There’s a report but what was written in it is not available to me.

Q: Did you read the report before you sign it?

A: Yes.

Q: Isn’t it clearly stated Police Report 4350/08. So it must’ve been available to the 3 of you.

A: It was in the file, but not with me.

Q: It is stated that there’s a police rpt, but was it available to you?

A: No.

Q: Was it there in front of the 3 of you?

A: I can’t remember, it’s in the file.

YA: Police report ada dalam fail, did you see the report?

A: I don’t really see and remember which is which.

Q: Did you read Page third line?

A: Yes.

Q: So the report was there. Mentioned there?

A: Yes.

Q: What was the report mentioned about?

A: The report was there. But I don’t go into the detail.

Q: The report was there?

A: Yes.

Q: You saw it?

A: Yes, but don’t go into the details.

Q: Did the 3 of you discuss about the police report?

A: It wasn’t discussed. We discuss merely on the examination.

Q: On 28th June 2008 examination was conducted. Between 28th June 2008 and 13th July, there’s another report during that time?

A: The history and examination of the patient.

Q: So the history is more detailed than in this report?

A: I can’t remember.

Q: []

A: []

KS: The initial report is very important. Contemporaneous. That’s why we need all the reports.

Q: The report, is it possible to be made available afterwards?

A: It is not within my territory to say that.

KS: Does the report exist?

YA: Which report? Your last question, are you talking about the history?

KS: I’m asking for the report.

Q: Whether the report is available now?

A: I don’t know because I don’t know where is it now.

KS: []

MY: [] available.

KS: Of course it’s available, as my learned friend says.

MY: YA, what my learned friend concerns is history.

KS: Not history. But the report. I’m not interested on the history but on the report. Is it available?

YA: You’ve to ask him whether it is available now.

KS: The witness says so. And also the DPP.

Q: Is the initial report available at the hospital?

A: Should be.

YA: Can it be produced?

A: Has to ask the hospital. It is not with me now.

MY: I have to find out first because this is the only one we have.

KS: We wish to get the report, YA. It’s very important [].

YA: If you are allowed to return to the hospital, can you retrieve it if available?

KS: The consequence is broken. P22 is important but another report prepared between 28th June 2008 and 13th July 2008 is more important.

YA: You cannot force him now.

KS: I did not force him.

YA: We asked him to check. If it is there, he will produce it. I think we reserve first and continue with something else. P22 is available now, it’s with you. But the initial, report he does not have now.

KS: P22 is the most important apart from the other one. It was connected to the other one.

YA: So what you wants to do now?

KS: []

MY: If I may suggest we proceed with cross-exam. And also under Section 157, oral evidence is important, but not the report. The person who examined should proceed to be question on his oral testimony.

KS: The entire case depends on the P22 and the initial report. Now we know the existence of the initial report and therefore we need both the reports.

YA: But it depends whether it is admissible or not. If it isn’t, there’s no point. I’m going to adjourn for a while and resume when all parties are ready.

[10.41 a.m.] Stand down.

[12.17 p.m.] Both parties enter Judge’s chambers.

[12.25 p.m.] Both parties leave Judge’s chambers.

[12.27 p.m.]

MY : I wish to inform the court that during the adjournment, I met with all 3 doctors about the said report. I am made to understand that there is the possibility that the report is no longer available. However, Dr Siew has an unsigned copy of the report. I request for a date for an official request to be made to HKL for SP2 but at the moment we have the unsigned copy. For this point of time, I’ve only the unsigned copy but this one we can make it available to KS to view. I request that time be given to the doctor and IO to obtain the report from HKL if it is avaialble. Request hearing be adjourned to tomorrow. I believe my learned friend has no objection.

KS: No, except this. The unsigned copy has no consequences. The copy signed by the three doctors is what we want.

YA: If it is available, we should give them time.

KS: It is available because the witness says there’s a signed copy..

YA: So you want to locate for the signed copy?

KS: Yes.

YA: Continue tomorrow at 9.00 a.m. sharp. Witness to come back tomorrow.

[12.31 p.m.] Adjourned.

Anwar Ibrahim Sodomy II – The Recorded Truth –14 Oktober 2010 October 14, 2010

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II.
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Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak:
PP:    Semua hadir
PB:     KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Radzlan, Marissa
AI hadir

[9.16 a.m.] Kedua-dua pihak masuk ke Kamar Hakim.
[9.38 a.m.] Kedua-dua pihak keluar dari Kamar Hakim.

[9.41 a.m.]
MY:     Hari ini ditetapkan untuk pemeriksaan utama saksi pendakwaan ketiga, Dr. Siew.
KS:     We have this matter where a report made by one person who could be a witness. In fact, we were made to understand that 112 statements were taken from him, but it is not the end of the matter. There is another one recently who made another report. We would want to make a necessary application to hold them for contempt.
YA:    MY ada apa nak cakap?
MY:     I’m concern about the report. We do not know until it has been published. []
YA:     As stated by KS, he intends to file a proper application. I think the law is clear on this that they need to do that so that all facts could be properly laid down before the court At this stage the court cannot do anything. Any formal application, KS?
KS:     Yes. We will file it.
YA:     So, proceed with SP3.
MY:     Pemeriksaan akan dijalankan oleh Dato’ Nordin Hassan.

NH:     YA, mohon dipanggil saksi ketiga, Dr Siew Shue Feng.

SP3 mengangkat sumpah di dalam Bahasa Inggeris.

YA:     I think we should record why we reserve cross for SP2. Can we record why we jump later.
KS:     Because we want to reserve cross-examination until all the three doctors testified.
YA:     Otherwise the report will show why we proceed to SP3 without cross-examine SP2.
Q:     You are now attached to the Forensic Department of HKL, is that right?
A:     Yes.

Q:     Since 2004?
A:     Yes.

Q:     Your position is as Forensic Medical Pathologist, is it true?
A:     Yes.

Q:     What are your qualifications to be Forensic Medical Pathologist?
A:     A bachelor degree in medicine and surgery from Madipa Academy of Higher     Education, India, since 1997. I’m holding a Master Degree in Medical Pathology specialise in Forensic Medical Department from 2004 from UKM.

Q:     Can you tell the court the work scope as Forensic Medical Pathology.
A:     My work involves medico-legal autopsies requested by police officer; also examine living person involving medico-legal case.

Q:     Do you also conduct forensic examination?
A:     Yes.

Q:     Please tell the court your working experience?
A:     House officer experience in HKL 1998, subsequently as a medical officer in Hospital Sibu 1998-2000, 2000-2004 I’m working under the pathology unit as a medical officer while pursuing my master. Since 2004 , I work as a specialist at HKL until today.

Q:     Since 1997 to 2004, you have conducted many cases involving forensic examination?
A:     Yes.

Q:     Can you tell the court how many forensic examination have you conducted so far?
A:     200-300 cases approximately.

Q:     Since 1998 how many sodomy cases have you conducted?
A :    Grossly about 20.

Q:     In general, what are the general procedures in taking specimens?
A:     First, wear surgical glove, use sterile swab stick to take the specimen, after that put the specimen in the already labelled bottle and seal the bottle.

Q:     Are this procedure recognised by the international standard?
A:     Yes.

Q:     Specifically what are the equipments used in sodomy cases?
A:     Sterile swab, sterile swab stick and sterile proctoscope and also lubricant.

Q:     I show P19 and P20, swab stick and sterile proctoscope. Are these the equipment used in extracting specimen in sodomy cases?
A:     Yes. Sterile swab stick and sterile proctoscope.

Q:     Have you ever undergone any training and courses?
A:     In 2007, I underwent short courses on Forensic Anatomy and Human Identification at the Anthropological Centre, University of Tennessee in US. From 2009 until January 2010, I undergone my special training of [] at the University Herakal General Hospital, Greece.

Q:     Are you a member of Malaysia Medical Council?
A:     Yes. Ordinary member.

Q:     Member of medico-legal society?
A:     Ordinary member.

Q:     Have you ever testify in court?
A:     Yes. Approximately 100 cases.

Q:     To the best of your knowledge, has your testimony been accepted in court?
A:    Yes.

Q:     On 28th June 2008, were you on-call?
A:     Yes, I was on-call.

Q:     On that date, did you meet a patient by the name Mohd Saiful Bukhari bin Azlan?
A:     Yes.

Q:     Can you identify him?
A:     Yes. This is Mohd Saiful Bukhari bin Azlan.

SP1 dicamkan oleh SP3.

Q:     On 28th June 2008, where did you meet him?
A:     At the One Stop Crisis Centre (OSCC) at the Emergency Department HKL.

Q:    How did you meet him?
A:     I was called by one Dr.[],  After I discuss  with her, I decided to attend this case at 9.00 p.m. at the OSCC at the Emergency Department together with a specialist medical officer from the Surgical and Emergency Department.

Q:     Who are these specialists?
A:     Dr. Khairul from the Emergency Department, and Dr. Razali from the Surgical Department.

SP3 identify Dr. Khairul Nizam bin Hassan, and Dr. Mohd Razali bin Ibrahim.

Q:     Upon meeting them, did the three of you discuss on the sodomy case?
A:     Yes, at the beginning we met the police, we received briefing from the police officer in charge of this case. Subsequently we discuss among ourselves our role in this     case.

Q:     What was the result of the discussion?
A:    The 3 of us will attend the case together. Dr. Khairul Nizam is conduct examination on the bodily injury, Dr. Razali on the anal examination and my major role is conducting forensic specimen.

Q:     Approximately at what time in the OSCC room to meet SP1?
A:     We met SP1 approximately at 9.30 p.m. on 28th June 2008.

Q:     Just for clarification, is this OSCC room also Bilik Mawar?
A:     Yes.

Q:     Did you meet an officer by the name Judy Blacious?
A:     Yes. Inside and outside the room.

SP3 identify ASP Jude Blacious.

Q:     Upon entering the OSCC room, what did you do with SP1?
A:     Upon meeting SP1, I recorded the history and get his consent before we proceed with the examination.

Q:     Why did you need to get consent from him?
A:     The consent involve examination of bodily part and the private part, consent for taking photograph of the body and private part and also to take specimen from the body and private part.

Q:     You said you get the history, can you tell the court what did Saiful told you?
A:     He informs what happened to him that he is being sodomized by a high profile public figure for 8 times for at least the last 2 months and the last incident was on 26th June 2008]. I asked whether any condom was used and he said no, but lubricant was used. I asked whether there is any penetration and he said yes. I asked whether ejaculation occurred and he said yes. I asked whether there is any force used and he said no. SP1 also inform he has undergone an examination at a private hospital, i.e Hospital Pusrawi on 28th June 2008 before attended by us.

KS:     I would like to ask for the word “8 times” to be expunged.
NH:     We are not trying to add evidence through this witness. We just wanted to say what this witness is inform, nit the truth about it. We cannot stop this witness from     telling what was informed to him. The fact remain we are not going to prove the     truth made but a statement was made.
KS:     The purpose was the truth. In any event, that part was removed from the police report.
YA :    It is not part of the charge, not part of the incident in the charge. The word “8     times” is expunged.

Q:     In the same interview with Saiful, did Saiful mentioned about plastic inserted into him?
A:     No. Not the word plastic.

Q:     After the said interview, what happen next?
A:     After the interview, we conducted the whole examination at around 9.45 p.m. on 28th June 2008.

Q:     With regard to it, did you fill a form of “Borang Permohonan bagi Pemeriksaan Forensik/Toksikologi”
A:     Yes. It was filled at the end of the examinantion.

Q:     Mohon rujuk Borang Permohonan bagi Pemeriksaan Forensik/Toksikologi kepada saksi. Is this the form?
A:     Yes. This is a copy of the form filled by me. It is my handwriting and there is my signature and sealed with HKL seal before I send it to the police officer to be sent to the Chemist Department.

Q:     Do you recognised your signature?
A:     Yes. At page 4.

Borang Permohonan bagi Pemeriksaan Forensik/Toksikologi dicamkan dan dikemukakan sebagai P26.

Q:     At page 1, Para B, what was written there in your handwriting?
A:     Alleged sodomy.

Q:     At the same page, para B, you mentioned that the alleged sodomy the last episode on 26th June 2008. From where did you get the info?
A:     From the patient, SP1.

Q:     Whose handwriting is it?
A:     My handwriting.

Q:     What does the handwriting refer to?
A:     The specimen I collected and sent to the Chemistry Department for analysis.

Q:     The examination by Dr. Khairul and Dr. Razali, was it done simultaneously or one after another?
A:     One after another, but for certain part it was conducted simultaneously.

Q:     Were you there during the examination conducted by Dr. Khairul and Dr. Razali?
A:     Yes.

Q:     Did you see the samples specimen taken by Dr. Khairul and Dr. Razali?
A:    Yes.

Q:     Please explain what was your role in sample collection?
A:     I collect the specimen from Dr. Khairul and Dr. Razali, label and seal it, fill the form and hand it over to the police.

Q:     What were the samples extracted by Dr. Khairul?
A:     Dr. Khairul collected swab from the left peritonsilar recess for seminal analysis, below the tongue for seminal analysis, left nipple and areola for saliva analysis, right nipple and areola for saliva analysis, body swab for saliva analysis.

Q:     Did the samples collected by Dr. Khairul was handed over to you?
A:     Yes.

Q:     Where did you place the samples handed by Dr. Khairul?
A:    I put it in sterile containers and label it.

Q:     Where did you get the containers?
A:     I brought it together from my department, Forensic Medicine Department.

Q:     Were the containers sterile?
A:    Yes.

Q:     Were the labelling done before you?
A:     I labelled the container myself.

Q:    Did you write anything on the label?
A:    Yes. Briefly including the clinical examination number, the name of the patient, the nature of the specimen, the police report, the name of the doctor.

Q:    What were samples taken by Dr. Razali?
A:     Samples from peri anal region, low rectal swab, and high rectal swab.

Q:     High rectal swab, one or two times taken?
A:    Two times.

Q:     Was it handed over to you?
A:     Yes.

Q:    Where did you place them?
A:     In containers, sterile bottles, same with what I did with samples from Dr. Khairul.

Q:     What did you do with the containers?
A:     I label it and sealed the bottle, and asked SP1 to sign the bottle and completed the request form and subsequently handed over to the police officer, Jude Blacious.

Q:     Where did you label and seal the container?
A:     At the OSCC, in the same room.

Q:     How did you label the bottle?
A:    I use sticker.

Q:     Can you be more specific and describe about the sticker?
A:     Sticker bears the logo of Government of Malaysia with the tag Kementerian Kesihatan Malaysia, Jabatan Forensik HKL.

Q:     Did you sign the sticker?
A:     Yes, I did.

Q:     Who else were present in the room when you label it?
A:     Dr. Khairul, Dr. Razali, SP1 and Jude Blacious.

Q:     What did you do after that?
A:     I fill in the form, put the bottle in the plastic bag and handed it over to ASP Jude Blacious on the next day, 29th June 2008 at 12.25 a.m.

Q:     Where did you passed it to Jude?
A:     In the same room.

Q:    Did you sign any form when you hand over the bottle to Jude Blacious?
A:     Yes.

Q:     Mohon rujuk ID 23,
A:     This is the copy of the form handling the specimen to the police officer. The form includes the list of the specimen, and my signature and acknowledgment from the police officer.

Q:     Your signature?
A:     Right lower half of the document and the police officer on the left lower half of the document.
ID23 dicamkan dan dikemukakan sebagai P23.

Q:     Refer para B, no.2 – “Specimen taken from Dr. Khairul and Dr. razali”.
A:     Yes.

Q:     From whom the specimens were taken?
A:     From Mohd Saiful Bukhari, SP1.

Q:     You hand over the specimen to Jude Blacious at 12.25 a.m.?
A:     Yes.

Q:     Did ou make the marking B-B10 on the envelope consisting the specimen?
A:     No.

Q:     Mohon merujuk saksi dengan ID6(A)-ID6(L). Check one by one, are there your signature and label done by you on the containers?
A:     Yes. There are the swab specimens with my handwriting, labelled by me, my signature on the top of the specimen, and SP1’s signature on the side of the    specimens.

NH:     Pohon ID6(A)-ID6(L) ditanda sebai P6(A)-P6(L).

ID6(A)- ID6(L) ditanda sebagai P6(A)-P6(L).

Q:     Mohon rujuk saksi dengan P6(K)-P6(L). This is the container containing “blood from FTA card”.
A:     I put my signature on the specimen and at the side is by SP1.

Q:     Is the seal intact?
A:     No. It has been opened by the Chemist.

Q:     At the time you hand it over, is it sealed properly?
A:     Yes, the seal was still intact at the time I hand it over to Jude Blacious.

Q:     Is the seal by the Chemist intact?
A:    Yes. This is not my seal, but the others are mine.

Q:     Can you tell the court the procedure by Dr. Razali when he take the sample from SP1.
A:     He swabs the peri anal region and put in the bottle labelled by me. He use a sterile swab stick.

Q:     What about Dr. Khairul? Did he do the same thing?
A:     Yes.

Q:     With regard to the examination of SP1, were you with Dr. Razali and Dr. Khairul prepared the report?
A:     Yes.

Q:     Mohon rujuk P22. Can you tell the court the finding of your examination on SP1?
A:     No significant injury on the body and the peri anal area.

Q:     Did you put all your findings in the report?
A:     Yes.

Q:     Can you show your signature on the report?
A:    On every page.

Q:     What about the last page?
A:     Above the name of Dr. Siew Shue Feng.

Q:     Can you tell the name of the patient?
A:     Mohd Saiful Bukhari bin Azlan.

Q:     There is a history mentioned there. Can you read?
A:     23 year old Malay gentleman who alleged sodomized by a well known public figure for the past 2 months. The latest incident took place in the afternoon of 26th June 2008.

Q:     Refer page 3, tell the court what are the specimen taken at number 6, 8, 9 and 10.
A:     Item 6 – peri anal swab for seminal analysis, Item 8 – high rectal swab for seminal analysis, Item 9 – high rectal swab for seminal analysis and Item 10 – low rectal swab for seminal analysis.

Q:     What are the other specimen taken for seminal analysis as stated in no.1 and no.2?
A:     No.1 – swab from left peritonsilar recess for seminal analysis, and no.2 – swab from the below of tongue for seminal analysis.

Q:     On the same page 3, para 3, stated the report of the chemistry investigation were received by the Department of Forensic Medicine. Have you personally read the Chemist Report?
A:     Yes.

Q:     May the witness being shown ID25. Is this the Chemist Report that you mentioned just now?
A:     Yes. This is the copy of the Chemist Report I read.

Q:     Refer page 1, para 1 of ID25 and please read.
A:     [read].

Q:     Refer page 2, middle para. Start with the word “plastic”. Please read.
A:    [read]

Q:     Refer back P22, page 3. Below the word “laboratory”. Please read it.
A:    [read]

Q:     Did you made the said marking B5, B7, B8 and B9?
A:     No.

Q:     Did you take sight of where B5, B7, B8 and B9 were taken?
A:     No.

Q:     Do you know the result of the sampling of B5, B7, B8 and B9 when you made the report?
A:     No.

Q:     Refer P22, page 4, read the conclusion.
A:     [read]

Q:     Explain what you mean by the statement.
A:     We are not able to interpret without knowing the site of the samples.

Q:     May the witness being shown ID24. Having identified the sampling and the presence of semen from the high rectal swab what is your conclusion?
A:     There’s evidence of penetration, sexual penetration.

Q:     Can you conclude there was anal penetration?
A:     Yes.

Q:     Having identified the presence of semen and the history taken fromSP1, is it     consistent with penile penetration?
A:     Yes.

Q:     Refer P23, conclusion no.1, please read.
A:     [read]

Q:     Can you explain this statement?
A:     There is no conclusive clinical finding suggestive of penetration to the anus/rectum and no significant defensive wound on the body of the patient.

Q:     Does this mean there is no penetration at all?
A:     No.

Q:     Can penetration happen without any sign of injuries?
A:     Yes.

Q:     Under what circumstances can it happen?
A:     It include the delay attended by doctors, use of lubricant, when doing the act there is no undue force, no undue resistance; all this were result to no clinical finding of injury.

Q:     Do you agree your conclusion no.1 is based on clinical and physical examination only?
A:     Yes. Based on clinical and physical examination only.

Q:     On conclusion no.2, you say that you did not know the site of B5, B7, B8 and B9, correct?
A:     Yes.

Q:     To know the site of B5, B7, B8 and B9, do you agree it is important for a comprehensive complete report?
A:    Yes.

Q:     Do you agree that the report made by you is a comprehensive and complete     report?
A:     No. We still have to identify the location.

NH:     YA, itu sahaja soalan untuk saksi ini.
KS:     We reserve cross.
YA:     DPP?
MY:     No objection.
NH:     Minta tangguh 10 minit.

[10.54 a.m.] Stand down.

[11.13 a.m.] Kes dipanggil semula.

NH: Pohon panggil saksi seterusnya (SP4), Dr. Khairul.

SP4 mengangkat sumpah di dalam Bahasa Inggeris.

Q:     You are now attached at the Putrajaya Hospital?
A:     Yes.

Q:     Since July 2008?
A:     Yes.

Q:    Before that in the HKL, in Emergency and Trauma Department?
A:     Yes.

Q:     For how long?
A:     I join since 2004 until June 2008.

Q:     What was your position?
A:     I’m a Emergency Care Specialist at the Emergency and Trauma (ET) Department at the time of the incident until I’m transferred out.

Q:    So you are an Emergency and Trauma clinical specialist?
A:     Yes. At the same time also responsible for the running of OSCC Department for cases such as domestic violence.

Q:     Involve in forensic examination?
A:     Yes.

Q:     Please tell the court your academic qualification.
A:     I obtain my first degree from University of Bangalore, India. In 2006, I obtain my Masters from USM.

Q:     Please tell the court your working experience.
A:     Houseman ship at Hospital Teluk Intan, 2001 at Chemor Health Clinic in Perak, 2002 at Emergency Department, Ipoh Hospital, then transferred  to HUSM for my Master, during that process I was attached at ET Department HKL until I was qualified in 2006.

Q:     From 1998 until 2008 you have conducted forensic examination?
A:     20 cases on sodomy.

Q:     Did you undergo any training?
A:     In-house training by our society, many courses on my specialty such as trauma cases and managing OSCC.

Q:     Are you a member of Malaysian Medical Counsel?
A:    Yes.

Q:     Any member for other society?
A:     []

Q:     Have you ever testify the court?
A:     Yes.

Q:     To the best of your knowledge, did the court accept your testimony?
A:     Yes.

Q:     On 28th June 2008, were you on-call?
A:     Yes.

Q:     Did you examine Mohd Saiful, SP1?
A:     Yes.

SP4 identifed SP1.

Q:     Please tell the court how did you meet SP1.
A:     I was called upon by my junior colleague to assist him in examining SP1.

Q:     Later did you meet two more specialists in HKL?
A:    Yes. Dr. Razali Ibrahim and Dr. Siew Shue Feng..

Q:     When the three of you met, did you discuss the case?
A:     Yes. We discuss how to approach and how to proceed with the case.
Q:     What was the result of the discussion?
A:     We agreed that I’ll be the first to examine SP1, then Dr. Razali.

Q:     Who did the physical examination?
A:     I did it, Dr. Razali on the anal examination.

Q:     What was the role of Dr. Siew?
A:     Dr. Siew is responsible to handle the sample, do the sampling and give expert opinions on the finding.

Q:     After the discussion, what time did you enter the OSCC room to examine SP1?
A:     Around 9.25 p.m.

Q:     What happen in the room?
A:     I started introducing myself and the rest of the team to SP1, and making sure we understand what was the complain, and explain to him the entire process of the examination.

Q:     Did SP1 give his consent in regards for taking sample from him?
A:     Yes.

Q:     During sample taking, did SP1 said anything about plastic being inserted into his anus?
A:     No.

Q:     After obtaining the information, did you examine him?
A:     Yes.

Q:     How did you conduct the examination on SP1?
A:    I examine him from head to toe. During the process SP1 consented the  examination process and I did external examination and leaving the anal     examination to Dr. Razali and any finding would be done by the three of us.

Q:     What was the finding after examining the external part of SP1?
A:     YA, may I refer my notes. [read]

Q:     Apart from physical examination, did you take any specimen from SP1?
A:     Yes.

Q:     What are the specimens taken from SP1?
A:     [read notes] I collected samples from the left peritonsilar recess for seminal analysis, below the tongue for seminal analysis, left nipple and areolar for saliva analysis, right nipple and areolar for saliva analysis, body swab for saliva analyis.

Q:     Did you take any blood samples?
A:     Yes. Blood for FTA card, blood for HIV, HepatitisC and blood for alcohol and     toxicology.

Q:    Refer the witness with P6A,B,C,D,E,G,L,K. Are these all the samples taken from SP1?
A:     Yes.

Q:     Who seal all the containers?
A:     All specimens were labelled and sealed by Dr. Siew.

Q:     How did Dr. Siew assist in collecting the samples taken by you from SP1?
A:     During the examination, if there is any finding I will alert the other two specialists, including the measurement, and the remaining work done by Dr. Siew and all clinical procedures were followed.

Q:    Is this the container you said just now?
A:     Yes.

Q:     What are the equipments you used to take sample from SP1?
A:     A swab look like a cotton swab, sterilize and placed in plastic cover.

Q:     Refer P19, are this the swab stick?
A:     Yes.

Q:     Are the samples collected from SP1 handed to Dr. Siew?
A:     Yes.

Q:     Where did you hand it?
A:     In the examination room, in the OSCC.

Q:    Through out the taking of samples, were the two doctors in the room?
A:     Yes.

Q:     Did you see Dr. Razali examine SP1?
A:    Yes.

Q:     Did you see Dr. Razali took samples from SP1?
A:     Yes.

Q:     After the examination, did the three of you prepare a report?
A:     Yes.

Q:     Refer P22, is this the report?
A:     Yes.

Q:     Is your signature there?
A:     Yes.

Q:    Please tell the court the name of the patient as stated there.
A:     Mohd Saiful Bukhari bin Azlan.

Q:     At page 3, what are specimens collected at item 6, 8, 9, and 10.
A:     [read report] Item 6 – perinanal swab for seminal analysis, Item 8- high rectal swab for seminal analysis, Item 9 – high rectal swab rectal swab for seminal analysis and Item 10 – low rectal swab for seminal analysis.

Q:     Apart from the four specimens what are the other specimen taken for seminal analysis?
A:    [read report] swab from left peritonsilar and swab from the below tongue

Q:     Refer page 3, para 3. Have you personally read the chemist report?
A:     Yes.

Q:     Refer ID25, is this the chemist report mentioned in P22?
A:     Yes.

Q:     Refer page 2 of ID25 (chemist report), from the word “plastic []”.
A:    [read Chemist Report].

Q:     Did you make the said marking B5, B7, B8 and B9?
A:     No.

Q:     Refer to your report (P22), page 3, bullet 2. Please read.
A:     Presence of semen on swab B5, B7, B8 and B9.

Q:     Do you know the site of the samples B5, B7, B8 and B9 when you prepare the report?
A:     No.

Q:     Refer page 4 of P22, the conclusion of the report. Can you explain the statement?
A:    This is based on our clinical finding. We need to find anything to support the     allegation made by the patient. Based on the physical examination, we find no symptoms of penetration.

Q:     When you prepare this report, did you know the site of the sampling taken?
A:     No.

Q:     Refer ID24, page 2. Can you identify the siteof sampling of B5, B7, B8 and B9.
A:     [read].

Q:     Having known the site of samplings and the presence of semen, can you conclude there was anal penetration on SP1?
A:     Yes.

Q:     Having identified the semen from the high rectal swab taken from SP1 and     recording of history, can you conclude there is penile penetration?
A:     Yes.

Q:     Refer to Conclusion 1 of P22. Please explain.
A:      Based on the physical finding, we find no physical injury and we have come out with the conclusion which is based only on the physical examination.

Q:     Does this statement mean there is no penetration at all?
A:     No. That’s why we put the second statement.

Q:     Can anal penetration happened without any sign of injury?
A:     Yes. The possibilities are the duration of time taken by the victim from the incident present to the doctor, secondly from the allegation from victim there is no resistance, thirdly the use of lubricant.

Q:     You did not know the site of sampling of B5,B7, B8 and B9 when making the     report. Do you agree knowing the sight will help in making a complete and comprehensive report?
A:     Yes.

Q:     P22 that you prepared on 13th July 2008, do you agree that without knowing the site of sampling of B5, B7, B8 and B9, is it a complete and comprehensive report?
A:     No.

NH:     Itu sahaja soalan.
KS:     Reserve cross.
YA:     You want to continue with cross-examine of SP3 & SP4 or later baru cross SP2?
KS:     No. I want to reserve cross for all the three doctors.
YA:     All three has given evidence. I was under the impression to finish SP3 & SP4     examination-in-chief then only you will cross-examination them.
KS:     No. I’m not ready to cross-examine them today.
MY:    I have to agree with KS. They want to wait for the expert and what we agree is for the doctors to be finished first. They may not be able to call the expert today.
YA:     So reserve cross until 25th Oct.

[11.53 a.m.] Adjourned.

Anwar Ibrahim Sodomy II – The Recorded Truth – 19 August 2010 August 20, 2010

Posted by malaysianstory in Anwar Ibrahim, Sodomy II.
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Rayuan Jenayah : 05-73-2010 (W)
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 :    Semua hadir
PB :     KS, SN

[9.32 a.m.]
KS : This is an appeal against the decision of the Court of Appeal. The notice of appeal has been filed to the Federal Court on 28th of June 2010, against the decision of the Court of Appeal on 25th June 2010. Only broad reasons are given.
YA: This is the broad grounds is it?
KS: It is stated in our skeletal submission at page. 2.Rekod rayuan tambahan was served on 28th of June which include grounds of judgment – broad grounds are the grounds of appeal. That is my Lordship rekod rayuan tambahan. It is the broad reason.
The point is this, do or does the broad reason amount to grounds of appeal? I take your  Lordship to R. 95 (1) of the Rules of the High Court. [read Rule 95]. One of the documents required under R.91 which referred to R.95 are the grounds of judgment.
Court of Appeal is the second highest court in the land.[]
YA: Where does it stated in R.95?
KS: The learned judge decided in the Court of Appeal that there could be filing of leave to be filed in the Court of Appeal pending appeal in the Federal Court. That’s of course in civil matters. An appellant is entitled to grounds of judgment.
YA: The broad reason doesn’t say so.
KS: It is said in open court that “in the event of appeal, this is our broad reason”.
YA: But the broad reasons are the grounds of appeal.
KS: The broad reason cannot be the ground of appeal. It contemplate something that it can be extended. It is broad reason, not grounds of appeal.
CJM: But this is only the name of the reason. There are grounds, and it is comprehensive. It is a well known fact. The point of the appeal is stated in it. It is my preliminary view.
KS: Judges are expected to give grounds of judgment.
YAJ: What are you trying to derive?
KS: Broad reasons are not grounds of appeal.
YAJ: So you are asking for an adjournment?
KS: No. I’m asking as a matter of right.  Your Lordship should go back and ask the Court of Appeal to give us the grounds of judgment. It is a precedent that Court of Appeal should put proper grounds. So do judges. They cannot just give broad reason. If the appellant is entitled to the ground, then he is entitled to the ground. If judges give broad reason for judgement, then lawyers should give broad reason in the petition of appeal. Would that be proper?
CJM: Short in that sense, but it still within the context. It covers all.
KS: If your Lordship said it is sufficient I will carry on. I’ve come here to carry on with the submission. Perhaps the Court of Appeal should be directed to give us proper grounds for purpose of appeal.
CJM : The question is in your skeletal submission you stated on this point, but you also said you are prepare to go on. It seems to be contradictory.
YAJ: If you mean that the broad grounds is prejudicial to you, what are trying to get at. You should ask for an adjournment and we’ll direct the Court of Appeal to provide the grounds. []
KS: In anticipation that the court wants to continue, I’m prepared. I don’t want to be accused of asking for adjournment or postponement and that we delaying the trial.
YAJ: If you are handicapped, then you should ask for adjournment. Is the trial is going in the lower court at the moment?
KS: No. It is adjourned to 20 September. 2010.
YAMR: The issue in the High Court is the supply of the witness statement. But I thought it is about the statement of the witness. That was the issue, isn’t it?
KS: Yes. That’s the issue.
YAMR: Isn’t it very clear the question is whether it is a final order or otherwise?
KS: Then the Court of Appeal will not give decision on the second part of it. This is very simple; you cannot charge a person under Section 377B when it is consensual. It should be Section 377C.
YAMR: That’s not the issue here.
KS: First point, the Court of Appeal should say it was a final order.
YAMR: Court of Appeal said it was not a final order.
KS: We are not saying so. We are saying otherwise.
YAMR: So, can’t you argue before us now?
KS: The Court of Appeal was wrong in not listening to the merit of our case.
YAMR: Let’s trash out the first hurdle first.
KS: Even in the question of jurisdiction also they gave broad. That’s why your Lordship is assuming that the broad reason is not enough. That’s why in the future whether Court of Appeal can just give broad reason. It’ll become a precedent.
CJM: So you are asking for adjournment?
KS: Yes. We are entitled to.
CJM: MY, have you have anything to say.
MY: With due respect, I do not think this honourable court can allow an adjournment on this matter on the grounds the Court of Appeal should supply grounds of judgment. My learned friend requires the court to give detail reason. And this is what has been supply. It is just a terminology. The judgement is the decision. And the grounds of judgment is reason for the decision. Therefore the broad reasons by the Court of Appeal are reasons for the decision/judgment.
YAJ: Any authorities on this?
MY: I know a few but I don’t have it with me. [mentioned few cases]
CJM: The trouble is they put “the broad reason” here. If we were to rule that this is grounds of judgment, KS can attack saying the grounds are not proper.
MY: Yes.
YAMR: Basically you are saying we cannot send it back to the Court of Appeal for further grounds of judgement.
MY: Yes.
CJM: So, KS, you can attack on it. On the inadequacy of the grounds.
KS: [] read R.91. In any event, the broad reason does not advert to our submission onmerits. The appeal is dismissed on jurisdiction.
YAMR: So are we entitled to send back to ask them to write a proper ground. You can attack this is not a proper ground but you don’t ask this court  to send back for the grounds. So I said, if a judge write a sketchy judgment, can you ask the appellate court to ask for the grounds?
KS: This is not a ground.
CJM: We adjourn for a while.
[10.05 a.m.] Stand down

[10.19 a.m]
YA: This is our view. We agree with the prosecution that what is referred to the broad grounds are the grounds of judgment.
KS: The first hurdle for us is whether it is a final order. I take your Lordship to tab 3 of our bundle. Case of DSAI v PP, page 275. This is in relation to preliminary objection. It is about Section 51 of the Criminal Procedure Code, on supply of document.
What your Lordship has to look at is Section 50 and Section 3 of Courts of Judicature Act 1964. [read]. I don’t propose to go through the cases in length. I’m more concern with the word ‘decision’ which come under Section. 3 of Courts of Judicature Act 1964. For Section 50 to apply, the word “decision” has to be considered.
We say that ruling made under Section 3 in the course of the trial is appealable. In the course of the trial, if the consent to prosecute is found to be defective and if the ruling made is wrong, when the court decides otherwise, surely it could be appealable. If it decides that the order is a final order, it disposed the right of the party. [] if the consent is invalid then the trial will be a nullity.
Likewise, ruling made by the judge in relation to the supply of documents for statement recorded of SP1 under Section 112 Criminal Procedure Code ought to be made available to the defence. The charge on the accused is of Section 377B of Penal Code. This is trite, it is at tab 10. [read Section 377B and Section 377C] Under Section 377C, if it is without consent, there is a minimum imprisonment of 5 years. And under Section 377B there is none. And in this country it is an offence for carnal intercourse unlike other countries where if it is consensual, then it is not an offence. Clearly the charge is under Section 377B and the evidence lead was without consent. That would be the reason why the defence wants the documents because we believe the statement will support Section 377B.
YA: The charge is Section377 B?
KS: Yes. But evidence lead is under Section 377C. Clearly the defence has the right to ask for the document. It is something new and the decision in the case of Husdi should be modified. I refer to the last authority in our bundle, pg 81, para E on the right column. This has to be modified in the situation like this. When the evidence lead does not reveal the ingredient of the charge.
Our argument is this, we are entitled to the 112 statement. If the statements were supplied and if it is in support with the charge under Section 377B and with the evidence being lead is under Section 377C, the credit of SP1 would have be impeached. And if that is the position, and that would be the position, that would be the end of the matter and the final rights of the party will be determined. And the prosecution will obliged to withdraw the charge, once SP1’s credit is impeached, there is no need to go on with the trial.
I refer to tab 11. [read] that’s the effect of it. As far as final issue is concern, that would be it.
I take what is said in the judgment and is found in the 4th ground of appeal, i.e the ruling made by the High Court. [read] This is with due respect the High Court judge has misdirected himself. Husdi must be applied because it is peculiar in our case. Because it relates to the entire charge and entire evidence lead. The Public Prosecutor has the right to choose under which Section the accused is to be charged.
We do not dispute that the Public Prosecutor has right under Article 145 of FC that Public Prosecutor has the right to choose the charge. That is their prerogative.
Refer Teh Cheng Poh, Long bin Samat and Johnson Tan Han Seng. Discretion of Public Prosecutor is significant. The fact that the Public Prosecutor preferred a charge under Section 377B, it does not mean that we cannot go beyond that.
Refer tab 8, PP v Jorge Enrique Pollen Tollen. [read held no.1] Once the case come to the court, the power of Public Prosecutor ceased there.
Refer tab 9, Jorge Enrique Pollen Tollen, Court of Appeal decision. It was upheld by the Court of Appeal. This matter is brought to the Federal Court, but the Public Prosecutor withdraws the appeal.
What is proper is for the judge to allow our application to ask the prosecution to supply the documents under s. 112 for SP1’s statement made during the investigation.
YAMR: So, your purpose for the supply of documents is to impeach?
KS: Yes. Clearly it is not interlocutory, but a final order. Because the prosecution would fail if our application is allowed. It will be a waste of time for the prosecution to proceed. Of course my learned friend in the Court of Appeal goes round and round and confuse everyone. Charging someone for a theft of a chicken for evidence of theft of a duck.
We pray that to the court for this appeal be allowed.
MY: We have prepared the written submission, but I’ll not rely on it. The Court of Appeal has decided that it has no jurisdiction to hear the appeal, because the ruling made by the High Court is not a final order. Refer tab 1. [read Section 3 of     Courts of Judicature Act 1964]. If I may confine myself to “any ruling made in the course of a trial“. It cannot be a final order. It is at the stage where the trial is still going on. Final order is at the end of the trial. It will be my submission that the phrase “not finally disposed the right of the party”, should qualify only to hearing of any course or matter. It must be read disjunctively, with “any ruling made in the course of the trial”. Otherwise, it would be redundant.
In our case, the ruling made by the High Court for the application by the counsel for the supply of the document under Section 112 is a not a final order since it is made during the trial, while it is still ongoing. As KS considered that this application is made with view to impeach. In fact, this application is made because they wanted to commence the impeachment proceeding. The question that I would like to post to this honourable court is this, supposing the statement is given and     the court found there is material contradiction and ruling is made, whatever the ruling maybe. The step in the impeachment proceeding is not appealable. I know of no case that appeal is made at the end of the impeachment proceeding and what more the process.
YAJ: What you are saying is not immediate, but need to go through a process?
MY: Yes. Can you appeal the four steps before when even the final step is not appealable? It must start with a hunch. Hunch is described by the Federal Court in the case of Dato’ Mokhtrar Hashim at pg 276.
My learned friend said this, there was no consent, but in the charge the consent was present. That is not what impeachment is preceded upon. I refer to tab 4 of our bundle. We have Section 155(b) Evidence Act 1950 there. [read].
Contradiction between his evidence in court and the charge is not a basis for a hunch. It must be contradiction between what is said in court and outside court. You cannot tell the AG which charge to be preferred.
Under Section 377B and Section 377C, there must be penetration, consent or otherwise is not relevant. Tab 6 is refereed and read. We refer to the sections and the interpretation. Section 377B, consent is not an ingredient, meaning Section 377B is easier to prove. I do not have to worry consent or no consent, what differs is the punishment the offence is still carnal intercourse, offence that requires us to prove penetration. Section 377C enhances the punishment rather than creating a new element.
My learned friend refers to the case PP v Jorge Enrique Pollen Tollen. [Explain]
In Long b. Samat, somebody was charged with Section 304, but evidence shows Section 306 for greater offence. I refer to the head notes, para E to the right [read] and of course the court said no. it is within discretion to do that. In fact at page 158 of the judgement, beginning para A to C [read]
The discretion of AG has been refereed again in Johnson Tan Han Seng, page 71, para D to F to the right, which refer to the case Long bin Samat.[read] Refer para G and H. [read]
So, how can the court accede to the request of my learned friend for the access of the statement just because Public Prosecutor prefer a lesser charge.
My learned friend refers to Husdi with regard to the word ‘hunch’. In the case of Dato’ Mokhtar Hashim, page 276, para D on the left column [read] Question is whether or not the charge preferred is less in nature compared to the evidence lead in court, and could that secure a basis of a hunch to justify the court for the prosecution supply the document, we say no. because under s. 155C Evidence Act 1950, it must be oral evidence and oral statement. It is not what KS said that the theft of a chicken and duck, but it is the theft, not the chicken or the duck.
Coming back to the basis for refusal by Court of Appeal is because it is not a final order. The Court of Appeal refers to 4 cases, Hoo Chang Chwen, where Rose CJ     held that it is only a procedural ruling and is not appealable. In the case of Raymond Chia, it refers to the case of Hoo Chang Chwen and RK Menon, which my learned friend referred too.]
The problem with the order of the court is at the close of prosecution case, the court acquitted the accused. It is final against the prosecution but it is not final against the accused. The case of Saad b. Abas says that it is final in the prosecution case, but not final in the defence case. It is also said in the case of DSAI v PP. What is said in by NH Chan is decision may be final, but if it is still insubordinate to the main issue, therefore it is not final. Refer tab 13, page 330, para B. [read]
We refer to the case of Regina v Collins where the criminal court has no jurisdiction to hear interlocutory appeal. Also, Black’s Law Dictionary (tab 18) defines the word interlocutory appeal.
Regina says that the court has no inherent jurisdiction to hear interlocutory appeal in criminal matters.
We also have the extracts of Halsbury Law of England, which was refer by J NH Chan in DSAI v PP. Refer to tab 13, page 329, para H and I.
Refer tab 19, Halsbury Law of England. The para that J NH Chan refereed is Para 506, page 240. We have para 501-506. Para 501 says that interlocutory appeal does not apply in criminal matters. It appears that para 506 referred to by NH Chan does not apply to criminal case.
If I may sum up, I’m trying to persuade the honourable court to confine to the word ‘decision’. Nothing is final yet, it cannot be final, it is not at the end yet.
It is my humble submission and I adopt the broad reason and part of the judgment of the High Court judge as my submission. I pray the appeal to be dismissed.
KS: I refer to tab 3 of our bundle, page 275, and refer S. 50 of Courts of Judicature Act 1964. It deals with the preliminary objection to that. [read] Before the amendment     to the word “decision”, [read]. But when it is amended, it include “ruling which does not dispose the right of the party, and therefore not a final order”. []
CJM: If accused is acquitted, it will be final against the Public Prosecutor, but not you.
KS: It must be both ways.
YA: My example at the end of the prosecution case, if the defence Is not called, the Public Prosecutor can appeal, but if defence is called, you cannot appeal. It cannot go both ways.
KS: If it is, the amendment of Section 3 will be defeated. It will dispose the right of the parties there and then. It also goes to the entire trial. Even the trial after that stage will be a nullity. Must we wait to the end of the trial?
YA: But what is the reply by MY is that the supply is the first stage. Therefore it is not appealable.
KS: We said it can.
YA: If impeachment is made and the judge made a ruling, you cannot appeal it.
KS: We say yes. []
YAJ: Never mind, we will write our ground. I must attract where you say there must be circumstances where []]. As what MY says, it is not immediate. There must be a process. First there is a hunch. Second, you get the statement. Next, you compare the statement and later you impeach. I want your view on this. There are five processes that you have to go through the impeachment proceeding.
KS: You must go through the processes.
YA: The process is long, and if it is appealable?
KS: In this case, we must be supply with the 112 statement.
YA: So Section 3 does not require an immediate nature?
KS: No. It doesn’t matter what has been considered.  The ruling disposes the right of the party.
CJM: You have made your stand very clear. We’ll write our ground.
MY: I would like to take your attention to the explanatory statement in our bundle.
CJM: I’ve read it. Reserve judgment.
[11.35 a.m.] 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.
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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 – 11.5.2010 May 11, 2010

Posted by malaysianstory in Anwar Ibrahim, Sodomy II, Transformation in PKR.
Tags: , , ,
4 comments

Mahkamah Tinggi J3 KL
Dihadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak: PP :MY, HZ, NH, CK Wong, NB, FAL, MM dan NA
PB :KS, PC, SN, CV Prabakaran, RK, Marissa, Radzlan
WB :ZI (untuk SP1), P. Suppiah dan Abdul Syukor Tokacil (for Bar C) Jennifer Robinson (for IBA)

Hujahan isu s.112 CPC

[09:10 am]
MY: Pihak-pihak seperti semalam. Kes untuk sambung bicara, pemeriksaan balas SP1

SP1 – angkat sumpah semula (sambungan pemeriksaan balas)
Q: Kamu ada menyatakan ada beberapa statement telah direkodkan daripada kamu?
A: Ya

Q: Statement itu ada ditandatangani, statement dari polis?
A: Ada, beberapa statement dan ada di tandatangan

Q: Ingat pegawai yang rekod statement itu?
A: Ingat

Q: Satu atau lebih dari satu?
A: Seorang saja

Q: Siapa?
A: DSP Jude

Q: Dia saja?
A: Ya, dia saja

Q: Di mana tempat statement direkodkan?
A: Di IPD Brickfield

Q: Di tempat lain?
A: Ada

Q: Oleh pegawai yang sama?
A: Ya

Q: Tarikh direkod statement?
A: Bermula 29 Jun

Q: Selepas itu?
A: Berakhir bila tidak pasti sebab banyak

Q: Ada menyatakan ‘keadaan ini berlaku tanpa kerelaan”?
A: Ya

Q: Ada menyatakan dengan umum di luar dari mahkamah?
A: Dalam laporan saja

Q: Ada menyatakan di tempat lain?
A: Itu tak pasti

Q: Ada bersumpah bukan?
A: Ada

Q: Diluar mahkamah itu?
A: Ya

Q: Ada kata tanpa kerelaan?
A: Dalam sumpah tak ada kata

Q: Beberapa kali tanpa kerelaan?
A:

Q: Ada bersetuju?
A: Setuju

Q: Luar dari laporan?
A: Tidak pasti

Q: Tetap dengan pendirian tanpa kerelaan?
A: Pendirian tetap, sama

KS: This is for a foundation for his statement, just for a ground work. The application is for a statement that he has made to the police. This is for a purpose of laying ground for our submission to be made.

MY: Boleh minta saksi keluar?

YA: After this application[][], so Saiful boleh tunggu luar. KS what is your application?
KS: We want all his statements yang direkodkan dari saksi ini dalam penyiasatan kes ini. We want all statement which include the s.112 statements.
1st, charge is under s.377B PC. I take YA attention to the section. S.377B [read] S.377C [read – without consent]. S.377B would be consensual intercourse and s.377C is non-consensual. Read report of PW1. The incident alleged by the PW1, under s.377B would be with consent, s.377C without consent,. We have reason to believe his statement that his statement is with consent. There is contradiction between evidence in court and the charge framed. Under this circumstances it is still an offence. Consensual intercourse between male is not an offence in other countries. We have a hunch that the statement produced in court contradict with his statement. Here we have the right for inspection and proceed with the impeachment.
The law on point when there is a hunch, there is a right to inspect. This court have the right to inspect. Refer to Husdi case [Tag 1-FC] @ pg. [read]. So, what need to be establish is a hunch.
Refer to PP v DSAI [Tag 3] para 37
The position come to this, the charge advert to consensual, the evidence here by the PW1 repeated as to non-consensual. If the law is S.377B, which is advert to s.377C and the punishment is up to 20 years, which is a discretion of the court -sentence to be imposed. There is a min of 5 yrs.
Refer to DSAI v PP (FC) (Tag 4). What we have here is more than a hunch, it is more than what the law required. The statement recorded to be supply to the defence. That would be our submission.

MY: Today it is made clear that their application is premised under s.155 EA. Explain the conditions of s.155 EA. This is not between his evidence in court and his former statement. This is not the objective under s.155 EA – conditions – contradiction between evidence and the charge is not under s.155 EA. this is the 1st time I heard this.
Refer to Johnson Tan Han Seng, between fire arms and the ISA.
Example that a person could have be committed under 2 Act, discretion of the AG. PW1 said that he lodged a report, immediately after what that PW1 repeated here, it was without consent.
Why AG prefer to charge AI for a lesser charge? That is his discretion.
Refer to case Long Samad.
Talk about a hunch, but Husdi discussed about the old s.113(ii). It say that the court must look at it, if the court said it is material, only then it can be refer to the defence.
Refer to Dato’ Mokhtar Hashim [Tag 2][read p.276] para D
PW1 evidence is consistent with this statement but inconsistent with the charge, this is not a hunch by KS. If PW1 allowed to explain, if PW1 was ask, he didn’t answer coz it is beyond him.
Husdi said the court must see the statement 1st, refer to Husdi, pg 81 [read]. YA must take a look at the statement 1st, [read Husdi – after the court has seen it]
Refer to amended s.113(2)(read)
It is my humble submission, there is no hunch to justify this court to look at the statement or even to supply the statement to the defence.
KS: The general principle the PP have a discretion – fire arms act, ISA – Johnson Tan’s case. Now we have evidence from PW1 and the charge that has been framed – consensual – S377B, PW1 said about non – consensual. The basis for a hunch here, consensual intercourse – s377B, the PP charge AI for s.377B, but the evidence in court reflex s.377C – without consent. There is more than a basis which is sufficient for the court to make an order under s. 145 – the W may be cross exam with his previous statement.
S.155 EA – is the procedure, case of Muthusamy come into the picture, we must direct to the intention of the court to the statement that said it was consensual. From that aspect, what happen the attention of the court is directed to the contradiction and the court then decided whether it is material.

YA: This is the 1st time contradiction statement and charge. Far reaching consequences.
KS: This is not based on hunch, it is so clear, non – consensual – there is s. 377C [the penalty referred to]. This is the 1st time in this country.
MY: There is no difference between in s377B and 377C, anal intercourse is an offence with or without consent. It does not provides difference offence, only prescribed enhance penalty. If without consent, it attracts heavier penalty. Have to prove penetration.
YA: Yes, the element is different. The difference is more to the element of consent.
MY: Yes.
KS: The ingredients of the charge is different, the nature that they have to prove. S. 377C – is non consensual. YA ruling will in fact constitute a final order and it is appealable.

YA: Whatever order / decision I made is interlocutory, that ones you can argue later. I’ll consider it. I need time to go thru’. In the afternoon or tomorrow morning.
MY: I can’t force YA to decide, although I prefer afternoon.
YA: Tomorrow morning at9 am.
[09:50 am]
[Court adjourned]

Anwar Ibrahim Sodomy II – The Recorded Truth – 09.02.2010 February 9, 2010

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II, Transformation in PKR.
Tags: , , ,
5 comments

Dihadapan Yang Arif Mohamad Zabidin Mohd Diah [Tuesday]

**The full translated English version is after “+++++” in this post in BLUE.

** Versi Dalam Bahasa Melayu boleh di dapati selepas post Bahasa Inggeris dalam Warna HIJAU

Pihak-pihak seperti  terdahulu dengan ketidakhadiran Wong Chiang Kiat, AY, Khaizan Sharizat, Rajpal Singh dan Jennifer Robinson.

Permohonan Pemohon [AI] untuk YA menarik diri.

[10:05 am]

JB:      Bicara Permohonan Jenayah AI v PR

KS:      Parties as before.  I would like to apologize – the affidavit in reply was send to Tetuan SN at 3.30 pm. At this moment, there is certain denial by MY, especially at para 8 [MY affidavit]. We need to reply to the affidavit. The court can consider. The report have been lodged against Utusan Malaysia amounting to defamation to AI. There will be a police investigation. YA it is necessary for us to reply to the affidavit. We might need Notes of Proceeding (NOP) of the court.

YA:      NOP telah disediakan.

KS:      Application for NOP has been made.

MY:     I’m concern is regarding the content of the affidavit published in the newspaper. The part has not been read. Under the rules of etiquette a party cannot made available to the press unless the affidavit has been read in open court. There might be instances where an affidavit might contained scandalous matter which the party might ask for a strike out. The reporters need to be advice and guide them on accurate reporting.

KS:      I think that MY is not aware by a decision made by Eusoff Chin J. Where the affidavit is public document and can be publish by the press. We must have the affidavit to reply, we might be cross-exam MY.

YA:      When can you get the affidavit in reply ready?

KS:      By this afternoon, today. So we can start tomorrow with the application?

MY:     I agree.

YA:      If we can start by 9.30 tomorrow. I don’t want to seen as encroaching on the freedom of the press, I believe in the freedom of the press but the press cannot reported inaccurately and inappropriate. If the press reported inaccurately, there will be consequences and penalty imposed by the court.

KS:      This is to ensure the press reported accurately. A few Special Branch (SB) in the court and they are recording the proceeding of the court. SB should be outside the court not inside the court

MY:     This is an open court.

KS:      Some of them are at the back.

YA:      Member of public must be at the public gallery, for the press and the observer. Other than that must be behind there.

Adjourned to 9.30 am tomorrow.

[10:20 am]

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

Aforementioned parties with the absence of CK, AY, Khaizan Sharizat, Rajpal Singh and Jennifer Robinson.

Application of AI for YA to recuse himself.

[10:05 am]

JB:      Hearing for the application in the case of AI v PR

KS:      Parties as before.  I would like to apologize – the affidavit in reply was send to Tetuan SN at 3.30 pm. At this moment, there is certain denial by MY, especially at para 8 [MY affidavit]. We need to reply to the affidavit. The court can consider. The report have been lodged against Utusan Malaysia amounting to defamation to AI. There will be a police investigation. YA it is necessary for us to reply to the affidavit. We might need Notes of Proceeding (NOP) of the court.

YA:      NOP has been prepared.

KS:      Application for NOP has been made.

MY:     I’m concern is regarding the content of the affidavit published in the newspaper. The part has not been read. Under the rules of etiquette a party cannot made available to the press unless the affidavit has been read in open court. There might be instances where an affidavit might contained scandalous matter which the party might ask for a strike out. The reporters need to be advice and guide them on accurate reporting.

KS:      I think that MY is not aware by a decision made by Eusoff Chin J. Where the affidavit is public document and can be publish by the press. We must have the affidavit to reply, we might be cross-exam MY.

YA:      When can you get the affidavit in reply ready?

KS:      By this afternoon, today. So we can start tomorrow with the application?

MY:     I agree.

YA:      If we can start by 9.30 tomorrow. I don’t want to seen as encroaching on the freedom of the press, I believe in the freedom of the press but the press cannot reported inaccurately and inappropriate. If the press reported inaccurately, there will be consequences and penalty imposed by the court.

KS:      This is to ensure the press reported accurately. A few Special Branch (SB) in the court and they are recording the proceeding of the court. SB should be outside the court not inside the court

MY:     This is an open court.

KS:      Some of them are at the back.

YA:      Member of public must be at the public gallery, for the press and the observer. Other than that must be behind there.

Adjourned to 9.30 am tomorrow.

[10:20 am]

+++++++++ Versi Bahasa Melayu ++++++++++

Dihadapan YA Mohamad Zabidin Mohd Diah[Selasa]
Pihak-pihak seperti terdahulu dengan ketidakhadiran CK, AY, Khaizan Sharizat, Rajpal Singh dan Jennifer Robinson.
Permohonan Pemohon [AI] untuk YA menarik diri.
[10:05 am]
JB: Bicara Permohonan Jenayah AI v Pendakwaraya (PR)
KS: Pihak-pihak seperti terdahulu. Saya ingin memohon maaf – affidavit yang dibalas telah dihantar kepada tetuan SN pada jam 3.30pm. Pada ketika ini, ada sebahagian penafian oleh MY, terutama di para 8 (MY affidavit). Kami perlu membalas affidavit tersebut. Mahkamah boleh menimbangkannya. Laporan tersebut, telah dibuat terhadap Utusan Malaysia yang membawa kepada fitnah terhadap AI. Polis akan menyiasat. YA, adalah perlu bagi kami untuk membalas affidavit tersebut. Kami mungkin memerlukan nota-nota perbicaraan (NOP) oleh mahkamah.
YA: NOP telah disediakan.
KS: Permohonan untuk NOP telah dibuat.
MY: Saya mengambil berat mengenai kandungan affidavit yang dilaporkan di dalam akhbar tersebut. Bahagian tersebut masih belum dibaca. Di bawah peraturan etika, sesuatu pihak tidak dibenar menyerahkan kepada pihak media sehingga affidavit telah dibaca di mahkamah terbuka. Berkemungkinan sesuatu affidavit mengandungi perkara-perkara tohmahan di mana sesesuatu pihak meminta untuk digugurkan. Pihak wartawan seharusnya dinasihati dan ditunjukajar mengenai pentingnya membuat laporan yang tepat.
KS: Saya fikir MY tidak sedar mengenai keputusan oleh Eusoff Chin J. Di mana affidavit merupakan dokumen awam dan boleh disiarkan oleh media. Kami perlu menjawap affidavit, kami mungkin menyoal balas MY.
YA: Bila anda boleh menjawap affidavit tersebut?
KS: Pada tengah hari ini. Jadi, bolehkah kami memulakan permohonan esok?
MY: Saya setuju.
YA: Jika kita boleh memulakan perbicaraan pada 9.30am esok. Saya tidak mahu dilihat sebagai menghalang kebebasan akhbar. Saya percaya dengan kebebasan akhbar namun akhbar tidak boleh melaporkan secara tidak tepat atau tidak betul. Jika akhbar melaporkan secra tidak tepat, akan terdapat kesan sampingan dan hukuman oleh mahkamah.
KS: Ini untuk memastikan pihak media melapor secara tepat. Ada beberapa pegawai cawangan khas di mahkamah yang merakam perbicaraan . Mereka seharusnya berada di luar mahkamah dan bukan di dalam.
MY: Ini mahkamah terbuka.
KS: Ada di antara mereka berada di belakang sana.
YA: Orang ramai mesti berada di galeri awam, untuk pihak media dan permerhati. Yang lain harus berada di belakang sana.
Ditangguhkan sehingga jam 9.30am esok.
[10:20 am]

Anwar Ibrahim Sodomy II – The Recorded Truth 04.02.2010 February 4, 2010

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II, Transformation in PKR.
Tags: , , ,
21 comments

Di hadapan Yang Arif Mohamad Zabidin Mohd Diah [hari #3]

**The full English version is at the bottom of this post after this “+++++++” line in Blue.

**Versi  Bahasa Melayu boleh didapati selepas Versi Bahasa Inggeris “++++” dalam warna Hijau.

[02:54 pm]

Pihak-pihak seperti terdahulu [dengan kehadiran Paracumaraswamy(PC), Marissa Regina Fernando(M), Rajpal Singh]

JB:      Kes dipanggil semula.

MY:     Kes untuk sambung EIC

KS:      I have an application to make. In reference to what is contained in the Utusan Malaysia dated today. I take YA to know this newspaper is solely own by UMNO. We’re saying Prime Minister(PM) as the President of UMNO is involved. The 1st page “heading” in Yellow, black backgound “Tak rela diliwat lagi’. At page 3, “Berhenti kerana tidak mahu diliwat lagi.” This is a matter of serious concerned. Whether amounting to contempt of court.

Whether contempt is permitted outside the court is for the court to cited contempt? Tommy Thomas v , Peguam Negara, Malaysia & Anor [2001] 3 CLJ 457, majority judgment – para 2 at p.459 [read]

Refer to the same case at pg 477, “…in the case of Arthur Lee” [read]

This court has jurisdiction because of the seriousness of what had been published in Utusan Malaysia.

Refer to case MBF Capital Berhad [1999] 1 MLJ 139 p.146 [read]

Refer to The Law of Contempt at p136  [read]

What has been published is more than proper, YA must act.

Refer to the case of PP v The Straits Times Press Ltd [1949] 15 MLJ 81 [read]

‘Inaccurate and misleading fact..”

YA must act, Utusan Malaysia has become bolder, in view of the comment made in the newspaper.

MY:     It is very uncalled for to say it is a mischief of PM and UMNO. KS is making submission that there was contempt. Whether or not it was reported accurately, I not able to confirmed, but I thought that I heard the particular words uttered. Was calculated to interfere with the administration of justice and so serious that…  I did not see the difference between what was reported and what was expunge yesterday. I would say if this is a false reporting or inaccurate reporting unless done maliciously cannot amount to contempt. Not by this court, not by AG Chambers. I was made to understand there was a recording made to this proceeding..and until and unless that was verified, no conclusion should be made. The reporting is not accurate, the court must satisfied that an act of contempt has been circulated to undermines a fair trial and I would suggest KS to do whatever proceeding against the reporter and this juncture we should proceed with the trial.

KS:      In fact it was a reputation what has been expunged yesterday. It is contemptuous. If a newspaper reported what is improper, it must be punished by the court of law. The court must not tolerate with misleading and inaccurate facts. It must be in YA notes what has been said by the witness. It is a dignity and integrity of this court, which is at stake.

YA:      Give me 5 minutes, stand down for a while.

[03:33 pm]

MY:     Pihak-pihak yang sama

YA:      Permohonan contempt oleh Mr Karpal, ianya tidak dilakukan in the face of the court, sama ada ditulis untuk mengganggu perjalanan keadilan. KS boleh buat laporan polis, pada peringkat ini court tidak bercadang untuk contempt mana-mana pihak.

KS:      At least caution to the press.

YA:      May we proceed with the trial.

MY:     Di peringkat ini, Pihak Pendakwaraya (PP) ingin kemukakan rakaman CCTV untuk confirmed the presence of the complainant at the vicinity. We will be using the walking copy dan akan mengemukakan the original copy through a witness later whom will be taken by Mohd Hanafiah.

YA:      Untuk lihat dan confirm?

MY:     Ya, PP telah serah gambar tetapi untuk tujuan hari ini dalam gambar ini, bercadang untuk mainkan recording pada 26 Jun petang untuk pergi ke skrin berkaitan. Ada 2 hard disk yang terlibat.

YA:      Lihat dan camkan muka dia dan kereta?

MY:     Ya

KS:      Confirmed that we have been served under s.51A

JB:      SP1 diingatkan masih dalam sumpah

MY:     Akan minta pembantu pergi ke 2.45 petang 26 Jun. Minta SP1 pandang ke skrin.

14:46 masanya. Ini camera di entrance.

YA:      AI nampak?

AI:       Tak berapa terang

[AI duduk di bar table untuk hampir dengan skrin]

Pembantu: Masalah “hang” sebentar

MY:     Terus pergi hard disk di lif. En Hanafiah will examine the w relating to the hard disk. Pagi 14:42

MY:     Yang ada gambar, sebelum tutup lif, gambar siapa?

A:        gambar saya

MY:     Ini masa di mana?

Di P2

Q:        Teruskan?

A:        Ini adalah dari P2 ke tingkat 5. Saya keluar dan terus ke kanan.

Q:        Lihat lelaki ini? Adakah ini lelaki yang kamu selisih?

A:        Ya

Q:        Gambar keluar dari lif? Frame 16:11

A:        Saya di tingkat 5, masuk lif untuk turun ke bawah. Ini masa balik.

Q:        Itu beg hitam?

A:        Ya, beg hitam yang saya pegang

Q:        Itu kamu keluar di GF?

A:        Tersilap keluar. [frame berjalan terus] baru berada di P2

My:      Ketibaan pada 14:47. Nak tunjukkan ketibaan SP1, naik kereta apa?

A:        Saya naik Fiat merah WPK 5925

[“Hang” lagi]

MY:     Sebelum ini berfungsi dengan baik.

Pembantu: Hard disk 1 yang “hang”

MY:     Kita dah uji tayang, jika begitu saya teruskan dengan EIC saya.

YA:      14:47 belum ditunjukkan di makamah

MY:     Saya ingin tunjuk gambar-gambar, lihat gambar 1, boleh tahu siapa?

A:        Saya

Q:        Gambar 2?

A:        Ini kereta yang saya pandu, ini masa tiba

Q:        gambar 3-6, gambar kamu?

A:        Ya

Q:        Siapa itu?

A:        Saya dari P2 ke tingkat 5

Q:        Ada bawa beg hitam?

A:        Ya

Q:        Adakah ini lelaki yang kamu kata berselisih dengan kamu?

A:        Ya

MY:     Masa yang tertera, masa adalah 14:42, lelaki itu masuk berbeza adalah 9 saat

YA:      Let the people of CCTV to explain

Q:        Gambar 8-13

A:        Ya, ini gambar saya yang masih bawa beg

Q:        14-15, gambar apa?

A:        Saya naiki van meninggalkan kondo

MY:     Pada peringkat ini pohon izin tanda gambar as ID5

ID5A-O – gambar ikut m/s

YA:      Diizinkan

ID5A-O – gambar CCTV pada 26 Jun

MY:     Kamu telah tinggalkan tempat itu, pada 4.15 petang dan AI ada di dalam bilik?

A:        Ya

Q:        Lihat laporan kamu (P3 dirujuk), ada rubber stamp “Pondok Polis Hospital”, tulis P3 di sanakah?

A:        Tidak, saya tulis di One Stop Crisis Centre (OSCC), Hospital Kuala Lumpur (HKL)

Q:        Mengapa berada di hospital?

A:        Untuk menjalankan pemeriksaan

Q:        Pemeriksaan apa?

A:        Mengenai saya diliwat

Q:        Pada 28 Jun, adakah kamu terus pergi ke HKL untuk dapatkan pemeriksaan?

A:        Tidak

Q:        Sebelum ke HKL?

A:        Saya pergi ke dua hospital

Q:        Hospital 1?

A:        Hospital 1 ke Tawakal Hospital di Jalan Pahang

Q:        Adakah tujuan sama dengan HKL?

A:        Sama

Q:        Adakah kamu dapatkan pemeriksaan di sana?

A:        Tidak dapat, kerana dimaklumkan oleh Receptionist pada hari tersebut half day

Q:        Dr Tawakkal ke mana?

A:        Saya fikirkan hospital terdekat adalah PUSRAWI di Jalan Tun Razak KL

Q:        Kamu pergi Hospital pergi seorang atau ditemani?

A:        Ditemani oleh bapa saudara

Q:        Siapa nama?

A:        Tuah bin Mat Ali, adik kepada arwah ibu saya

Q:        Adakah di PUSRAWI dapat jumpa Dr?

A:        Ya, dapat

Q:        Ingat nama atau rupa Dr tersebut?

A:        Saya tak ingat nama tetapi boleh cam

[Panggil Dr Osman utk pengecaman]

Q:        Kenal dia?

A:        Ya

Q:        Siapa?

A:        Dia adalah Dr yang periksa saya di PUSRAWI

[Mohd Osman bin Abdull [dicamkan oleh SP1 sebagai Dr di PUSRAWI]

Q:        Bila jumpa Dr osman, bagitau apa pada Dr. Osman?

A:        Pada mulanya saya bagitau saya sakit perut dan sakit di bahagian dubur

Q:        Apa yang Dr buat?

A:        Beliau suruh tanggalkan seluar dan baring di atas katil dan meniarap

Q:        Sepanjang pengetahuan kamu ada Dr guna apa-apa peralatan?

A:        Ada, Dr ingin masukkan sesuatu, semasa ingin masukkan benda tersebut saya terus berterus-terang bahawa saya telah diliwat dan ingin jalani pemeriksaan

Q:        Bila bagitahu apa yang telah berlaku, apa Dr buat?

A:        Dr terus berhentikan pemeriksaan dan suruh saya pakai seluar

Q:        Ada kamu tanya kenapa Dr berhenti pemeriksaan?

A:        Ya, saya tanya, Dr nasihati saya dua perkara, pertama hospital (hosp) tiada kelengkapan untuk forensik, kedua laporan hospital swasta tidak boleh dijadikan bukti di makamah. Dr nasihatkan untuk jalani pemeriksaan di HKL.

Q:        Cadangkan, arahkan atau nasihat?

A:        Cadangkan

Q:        Adakah lihat alat itu yang digunakan?

A:        Tak pasti

Q:        Selepas itu ada pergi seperti dicadangkan?

A:        Saya ikut nasihat Dr Osman

Q:        Terus pergi HKL?

A:        Ya

Q:        Di HKL ke mana pergi dulu?

A:        Mulanya saya tak tahu nak ke mana, saya pergi ke wad pesakit luar dan mendaftarkan diri

Q:        Pukul berapa?

A:        Lebih kurang jam 3

Q:        Dapat jumpa Dr?

A:        Ya, sejurus mendaftar, terus jumpa Dr perempuan bangsa India, saya nyatakan saya segan untuk buat pemeriksaan kerana dia perempuan, lalu Dr perempuan  India mencadangkan refer ke Dr sebelah bilik, Dr lelaki berbangsa India, ingat nama iaitu Dr Daniel. Saya sudah penat, saya terus berterus-terang untuk dapatakn pemeriksaan kerana diliwat oleh AI. Dr agak terkejut, beliau ada tulis nota untuk pergi ke unit kecemasan iaitu unit OSCC.

Q:        Pukul berapa?

A:        Saya tiba ½ jam kemudian

Q:        Sampai di wad kecemasan?

A:        Wad kecemasan tetapi unit OSCC

Q:        Adakah kamu dapat jumpa Dr?

A:        Saya tunggu Dr tiba, Dr pertama tiba ½ jam kemudian, berbangsa India juga yang  datang . Dia bertanya pada saya, beliau hanya boleh buat blood pressure sahaja, kemudian dia keluar. Selepas itu ½ jam di tempat sama, sebelum itu saya nyatakan hasrat saya buat pemeriksaan kerana diliwat. Dr nasihatkan saya buat laporan polis dulu, kerana tanpa laporan polis pemeriksaan tidak dapat dibuat.

Q:        Dr nasihatkan buat laporan polis?

A:        Ya

Q:        Mana dapat borang itu (P3)?

A:        Apabila Dr kata demikian, memang berhasrat untuk buat laporan polis selepas saya buat pemeriksaan. Memandangkan boleh buat laporan polis di tempat tersebut saya buat laporan polis. Borang saya dapat daripada dua anggota polis. Seorang lelaki dan seorang perempuan.

Q:        Dua-dua datang sekali?

A:        Bukan, ada gap sedikit.

Q:        Bukan kamu panggil polis?

A:        Bukan

Q:        Ini dalam puluk berapa?

A:        Petang

Q:        Ada Dr datang periksa?

A:        Tiada

Q:        Ada buat pemeriksaan?

A:        Ada, pada waktu malam

Q:        Pukul berapa?

A:        Dalam jam 9 malam

Q:        Berapa orang Dr yang datang?

A:        Agak ramai, saya ingat ada seorang Dr Cina, dua Dr lelaki Melayu dan satu Dr perempuan Melayu yang mengandung dan jururawat.

Q:        Selain itu ada orang lain?

A:        Ada polis datang

Q:        Siapa polis itu?

A:        Masa itu saya tak kenal tetapi lepas itu saya kenal DSP Jude Pereira

Q:        Boleh cam?

A:        Ya

Q:        Adakah ini DSP Jude?

A:        Ya. Pegawai ini ada semasa itu

[Supt Judy Blasious Pereira dicamkan oleh SP1]

Q:        Bila Dr datang adakah mereka terus periksa atau tanya dulu?

A:        Ada tanya soalan

Q:        Soalan macam mana? Tentang latarbelakang kenapa datang ke sini?

A:        Ya, kerana saya diliwat, mereka tanya adakah saya dicederakan, tanda-tanda di badan untuk kecederaan.

Q:        Ada 2-3 Dr?

A:        Ya

Q:        Bahagian mana badan kamu yang diperiksa?

A:        Keseluruhan anggota dari rambut ke kaki termasuk bahagian dubur

Q:        Adalah mereka guna alat untuk periksa dubur?

A:        Ada

Q:        Adakah berkesempatan melihat alat tersebut?

A:        Tidak

Q:        Adakah Dr bahagi peranan untuk memeriksa?

A:        Saya tak pasti

Q:        Selain dari itu, ada apa-apa contoh diambil?

A:        Banyak

Q:        Bagimana diambil?

A:        Gunakan seperti cotton buds untuk pemeriksaan di bahagian badan dan dubur.

MY:     Jika ditunjukkan, adakah ini yang digunakan?

A:        Ya, saya pasti yang digunakan seperti ini

MY:     Ini baru punya belum guna lagi. Ada apa-apa yang kamu lihat?

A:        Lihat letak swab di dalam container, mereka letak sticker, letak seal dengan tutup putih, di seal itu saya tandatangan.

Q:        Kamu diminta tandatangan?

A:        Ya

Q:        Iaitu  satu botol atau banyak container?

A:        Banyak tetapi tak pasti bilangannya.

MY:     Minta SP1 camkan tandatangan di setiap container yang dia tandatangan

Pohon berhenti pada peringkat ini. Selepas ini saya ada less than 10 questions.

[KS requested to see the management office at the crime scene].

YA:      Adjourned to 9.30 tomorrow and we see how.

++++++++++++English Version+++++++++++
4 February 2010

[02:54 pm]

Parties as aforementioned [with the presence of PC, M, Rajpal Singh]

JB:       Court is in session.

MY:     Case for continuation EIC

KS:      I have an application to make. In ref to what is contained in the Utusan Malaysia dated today. I take YA to know this newspaper is solely own by UMNO. We’re saying PM as the President of UMNO is involved.  The 1st pg “heading” in Yellow, black backgound “X rela diliwat lagi’ (cannot accept to be sodomized again). At p3, “Berhenti kerana tidak mahu diliwat lagi.” (Quit because he didn’t want to be sodomized again)This is a matter of serious concerned. Whether amounting to contempt of court.

Whether contempt is permitted outside the ct is for the ct to cited contempt? Tommy Thomas v , Peguam Negara, Malaysia & Anor [2001] 3 CLJ 457, majority judgment- para 2 at p.459 [read]

Refer to the same case at pg 477, “…in the case of Arthur Lee” [read]

This ct has jurisdiction because of the seriousness of what had been published in Utusan Malaysia.

Ref case MBF Capital Berhad [1999] 1 MLJ 139 p.146 [read]

Ref to The Law of Contempt at p136  [read]

What has been published is more than proper, YA must act.

Ref to the case of PP v The Straits Times Press Ltd [1949] 15 MLJ 81 [read]

‘Inaccurate and misleading fact..”

YA must act, Utusan Malaysia has become bolder, in view of the comment made in the newspaper.

MY:     It is very uncalled for to say it is a mischief of PM and UMNO. KS is making submission that there was a contempt. Whetr or not it was reported accurately, I x able to confirmed, but I thought that I heard the particular words uttered. Was calculated to interfere with the administration of justice [] and so serious that []..  I did not see the difference between what was reported and what was expunge yesterday. I would say if this is a false reporting or inaccurate reporting unless done maliciously can not amount to contempt. Not by this court, not by AGC.

I was made to understand there was a recording made to this proceeding..and until and unless that was verified, no conclusion should be made. The reporting is not accurate, the ct must  satisfied that an act of contempt has been circulated to undermines a fair trial and []

[] I would suggest KS to do whatever proceeding against the reporter and this juncture we should proceed with the trial.

KS:      [] In fact it was a reputation what has been expunge yesterday. It is contemptuous. If a newspaper reported  what is improper, it  must be punished by the ct of law. The ct must not tolerate with misleading and inaccurate facts. It must be in YA notes what has been said by the witness. It is a dignity and integrity of this ct, which is at stake.

YA:      Give me 5 minutes, stand down for a while.

[03:33 pm]

MY:     Same parties involved.

YA:      Ref to the application made by Mr Karpal to declare contempt, I find the act was not done in the face of the court, whether or not it was written to disrupt the process of justice. KS may make a police report, but at this stage, the court does not intend to rule any party to be in contempt.

KS:      At least caution to the press.

YA:      May we proceed with the trial.

MY:     At this point, PP would like to present CCTV footage to confirm the prersence of the complainant at the vicinity. We will be using the walking copy and will present the original copy thru a witness later who will be taken by Mohd Hanafiah.

YA:      To view and confirm?

MY:     Yes, PP has submitted still shots for today’s purpose, proposing to play footage taken on the afternoon of 26 June on the screens. 2 hard disks are being used.

YA:      To view and identify his face and vehicle?

MY:     Yes

KS:      confirmed that we have been served under s.51A

JB:       SP1 be reminded that you are still under oath.

MY:     Please go to 2.45pm of 26 June. SP1, please look at the screen. The time is 2.46pm. This is from the camera at the entrance.

YA:      AI, can you see it?

AI:        It’s not very clear

[AI sits forward at the bar table to be closer to screen]

Assistant : Still “hanged”. Please wait a while.

MY:     Please go to hard disk of elevator. En hanafiah will examine the w relating to the hard disk. Pg 14:42

MY:     Who is pictured, before the elevator door closed?

A:         I am pictured

MY:     Where is this then?

A:         At P2

Q:        Carry on

A:         This is from P2 to the 5th floor. I exit and turn right.

Q:        See this person? Is this the person that you passed?

A:         Yes

Q:        Picture exiting elevator? Frame 16:11

A:         I am on the 5th floor, enter the elevator to go down. This is on my way out.

Q:        Is that a black bag?

A:         Yes, the black bag that I was carrying

Q:        Is that you coming out at GF?

A:         I made a wrong exit. [frame moves forward] now I am at P2

My:      Arrival at 14:47. To show SP1’s arrival, in which vehicle?

A:         I was in a red Fiat WPK 5925

[“Hangs” again]

MY:     Before this it was working well

Asst:    Hard disk ‘1” that hangs

MY:     We have test viewed, as such I will continue with only EIC.

YA:      14:47 has not been shown to the court

MY:     I wish to show these pictures. Look at Picture 1, do you know who that is?

A:         It is I

Q:        Picture 2?

A:         That’s the car I was driving, upon arrival

Q:        Pictures 3-6, are pictures of you?

A:         Yes

Q:        Who is that?

A:         Myself, from P2 to 5th floor

Q:        Carrying a black bag?

A:         Yes

Q:        Is this the man that you passed?

A:         Yes

MY:     Time stated is 14:42, the gentleman entered differs by 9 seconds

YA:      Let the people of CCTV to explain

Q:        Pictures 8-13

A:         Yes, these are shots of me, still carrying the bag

Q:        14-15, what pictures are these?

A:         I leave the condo in a van.

MY:     At this stage, I request to have the picture marked as ID5

ID5A-O – picture according to time

YA:      I will allow it

ID5A-O – CCTV still on 26 June

MY:     You left the place at 4.45pm and AI was still in the room?

A:         Yes

Q:        Look at the km report (P3 refers), it is rubber stamped with “Pondok Polis Hospital”, is it written P3 on it?

A:         HKL. No, I wrote at One Stop Crisis Centre (OSCC)

Q:        Why were you at the hospital?

A:         To undergo a medical examination

Q:        For what?

A:         That I was sodomized

Q:        On 28 June, did you go directly to HKL to be medically examined?

A:         No

Q:        Before going to HKL?

A:         I went to 2 hospitals

Q:        The 1st hospital?

A:         The 1st hospital was Tawakal Hosp at Jln Pahang

Q:        Was it for the same purpose as HKL?

A:         The same

Q:        Was a medical examination carried out there?

A:         No, because according to the Receptionist there, it was a half-working day.

Q:        Where to after Tawakal?

A:         I thought the closest hospital was PUSRAWI at Jln Tun Razak KL

Q:        Did you go to the hospital alone or someone accompany you?

A:         My uncle accompanied me.

Q:        What’s his name?

A:         Tuah bin Mat Ali, the younger brother of my late mother

Q:        Were you able to see a doctor at PUSRAWI?

A:         Yes, I was.

Q:        Do you remember the doctor’s name or how he/she looked like?

A:         I cannot remember the name but I can recognize the person.

[Calls Dr Osman to be identified]

Q:        Recognize him?

A:         Yes

Q:        Who is he?

A:         He is the doctor who examined me at PUSRAWI

[Mohd Osman bin Abdul is identified by SP1 at the doctor at PUSRAWI]

Q:        When you saw Dr Osman, what did you tell him?

A:         At first I said I had a pain in my stomach and a pain in my anus

Q:        What did the doctor do?

A:         He asked me to remove my trousers and lie on my back on the examination bed.

Q:        As far as you know, did the doctor use any equipment?

A:         Yes, the doctor wanted to insert something. When he was about to do so, I told him that I was sodomized and required a medical examination.

Q:        When told about what had taken place, what did the doctor do?

A:         He immediately stopped the examination and asked me to get dressed.

Q:        Did you ask the doctor why he had stopped the examination?

A:         Yes, I did ask. The doctor advised me 2 things : (1) the hospital did not have the facilities for forensic examination (2) a medical report from a private hospital is not admissible as evidence in court. He suggested that I go to HKL for the medical examination.

Q:        Suggested, instructed or advised?

A:         Suggested

Q:        Did you see the equipment that was used?

A:         I’m not sure

Q:        After that, did you do as what was suggested?

A:         I followed the advice of Dr Osman

Q:        Directly to HKL?

A:         Yes

Q:        Where in HKL did you go to?

A:         At first I was unsure where to go to, so I went to the outpatient ward and registered for registration.

Q:        What time was it?

A:         About 3pm

Q:        Were you able to see a doctor

A:         Yes, immediately after registering, I met a female Indian doctor. I said I was uncomfortable to be examined by a female doctor, so she proposed referring me to the doctor next door. The doctor was also an Indian, I remember his name is Dr Daniel. I was tired, I was straightforward and told him that I wanted to be medically examined because I was sodomized by AI. The doctor was taken aback and wrote a note for me to go to the Emergency unit, that is OSCC.

Q:        What time was it?

A:         I reached there half an hour later

Q:        Arrived at the Emergency ward?

A:         Emergency Ward, but OSCC unit.

Q:        Were you able to see a doctor?

A:         I waited for the doctor. The 1st doctor, also an Indian, arrived half-hour later. He informed me he could only check my blood pressure then he left. I waited half hour at the same place before I highlighted that I wished to be medically examined because I was sodomized. The doctor advised me to lodge a police report, because that, a medical examination could not be carried out.

Q:        The doctor advised you to lodge a report?

A:         Yes

Q:        Where did you get the form (P3)?

A:         Hearing what the doctor had to say, I intended to lodge the report after being examined. However, as I could lodge the police report at the same place, I did so. I got the forms from 2 police officers – one male and one female.

Q:        Both came at the same time?

A:         No, there was a gap of time in between

Q:        It was not you who called the police?

A:         No

Q:        What time was this?

A:         Evening

Q:        Did a doctor come to examine?

A:         None

Q:        Was any examination done?

A:         Yes, at night

Q:        What time?

A:         9pm

Q:        How many doctors came?

A:         Quite a number, I remember there was a Chinese doctor, 2 male Malays doctors and 1 female Malay doctor who was expecting and a nurse.

Q:        Were there any other people?

A:         A police officer came

Q:        Who was the police officer?

A:         I didn’t know him then but after that I knew him to be DSP Jude Pereira

Q:        Can you identify him?

A:         Yes

Q:        Is this DSP Jude?

A:         Yes, this officer was there then.

[Supt Judy Blasious Pereira is identified by SP1]

Q:        When the doctors came, did they immediately carry out the medical examination or did they ask questions first?

A:         They asked questions

Q:        What kind of questions? About matters leading up to the reason you were there?

A:         Yes, because I was sodomized, they asked if I was injured, any signs of injury on my body.

Q:        There were 2-3 doctors?

A:         Yes

Q:        Which parts of your body were examined?

A:         Everything, from hair to foot, including my anus.

Q:        Did they use any equipment to examined your anus?

A:         They did.

Q:        Were you able to see the equipment?

A:         No

Q:        Did they have separate roles for the medical examination?

A:         I’m not certain

Q:        Besides that, were any sample taken?

A:         Many

Q:        How were these taken?

A:         Using the likes of cotton buds for examination of the body and anus.

MY:     If I show you this, was this used?

A:         Yes, I am certain that what was used was like this.

MY:     This is new – it hasn’t been used yet. Was there anything that you saw?

A:         I saw swabs being put into containers. They labelled with stickers, sealed with white covers, I signed on the seal.

Q:        You were asked to sign

A:         Yes

Q:        Was it 1 bottle or many containers?

A:         There were many but I don’t know how many.

MY:     Please identify the signature on each container on which he signed.

I move to stop at this stage. After this, I have less than 10 questions.

[KS requested to see the management office at the crime scene].

YA:      Adjourned to 9.30 tomorrow and we see how.

+++++++++++ Versi Bahasa Melayu +++++++++++++++++

4 Februari 2010

Di hadapan Yang Arif Mohamad Zabidin Mohd Diah [hari #3]

[02:54 pm]

Pihak-pihak seperti terdahulu [dengan kehadiran Paracumaraswamy(PC), Marissa Regina Fernando(M), Rajpal Singh]

JB:       Kes dipanggil semula.

MY:      Kes untuk sambung EIC

KS:       Saya ada perrmohonan untuk dibuat. Ia berkaitan dengan laporan di dalam akhbar Utusan Malaysia hari ini. Saya membuat kesimpulan yang Ariff sedar bahawa akhbar ini dimiliki oleh Umno. Dan umumnya kita mengetahui bahawa PM yang juga presiden Umno terlibat. Laporan muka surat depan dengan tajuk berwarna kuning dan berlatar belakangkan warna hitam “X tidak rela diliwat lagi”. Dan di muka surat 3 “Berhenti kerana tidak mahu diliwt lagi.” Hal ini merupakan perkara serius. Samada ia menhina mahkamah.

Samada menghina mahkamah dibernarkan di luar mahkamah adalah merupakan hak mahkamah untuk mensabitkan kesalahan tersebut? Tommy Thomas v , Peguam Negara, Malaysia & Anor [2001] 3 CLJ 457, majority judgment – para 2 at p.459 [dibaca]

Refer to the same case at pg 477, “…in the case of Arthur Lee” [dibaca]

Mahkamah ini mempunyai bidang kuasa memandangkan kebimbingan di atas apa yang telah dipaporkan oleh Utusan Malaysia.

Rujuk kes MBF Capital Berhad [1999] 1 MLJ 139 p.146 [dibaca]

Rujuk The Law of Contempt at p136  [dibaca]

Apa yang dillaporkan adalah lebih dari yang sepatutnya. YA mesti bertindak.

Rujuk kes PP v The Straits Times Press Ltd [1949] 15 MLJ 81 [dibaca]

‘Fakta yang mengelirukan dan tidak tepat.’

YA mesti bertindak. Utusan Malaysia semakin berani, belandaskan komen yang dibuat di dalam akhbar tersebut.

MY:      Adalah tidak tidak patut untuk mengatakan PM dan Umno berniat jahat. KS membuat andaian bahawa terdapat unsur menghina mahkamah. Samada apa yang dilaporkan adalah tepat, saya tidak dapat mengesahkannya tetapi pada pendapat saya saya mendengar perkataan itu diucapkan. Dikatakan campurtangan urusan perundangan dan merupakan sesuatu yang serius.. saya tidak nampak perbezaan antara apa yang dilaporkan dengan apa yang di ‘expunge’ semalam, saya boleh katakana samada ia laporan yang salah or tidak tepat melainkan ia berniat jahat tidak boleh membawa kepada menghina mahmakah. Bukan oleh mahkamah ini atau Pejabat peguan negara.

Saya difahamkan terdapat rakaman perbicaraan dan sehingga ia disahkan, kesimpulan tidak harus dibuat. Sama ada laporan itu tidak benar ataupun tidak tepat, mahkamah mesti berpuashati bahawa perbuatan penghinaan mahkamah  telah diambilkira bahawa ia mempertikaikan perbicaraan yang adil dan saya mencadangkan KS membuat apa sahaja prosiding terhadap wartawa dan pada ketika ini kita patut meneruskan perbicaraan ini.

KS:       Hakikatnya, ia adalah reputasi ke atas apa yang telah di ‘expunge’ semalam. Ia adalah suatu pegnhinaan, Jika akhbar melaporkan apa yang tidak betul, ia mesti dihukum oleh mahkamah berdasarkan undang-undang.  Mahkamah seharusnya tidak bertolak ansur dalam hal ini dengan lapaoran yang tidak tepat dan mengelirukan. Apa yang dikatakan oleh saksi seharusnya ada dalam nota YA.  Maruah dan integriti mahkamah ini menjadi pertaruhan.

YA:       Beri saya 5 minit. Mahmakah berehat sebentar.

[03:33 pm]

MY:      Pihak-pihak yang sama

YA:       Permohonan peghinaan oleh Mr Karpal, ianya tidak dilakukan terhadap mahkamah, sama ada ditulis untuk mengganggu perjalanan keadilan. KS boleh buat laporan polis, pada peringkat ini mahkamah tidak  bercadang untuk mensabitkan penghinaan mana-mana pihak.

KS:       Sekurang-kurangnya tegur pihak akhabr.

YA:       Kita teruskan perbicaraan.

MY:      Di peringkat ini, Pihak Pendakwaraya PP ingin kemukakan rakaman CCTV untuk mengesahkan kehadiran pihak pengadu di tempat kejadian. Kita akan menggunakan salinan ‘working copy’ dan akan mengemukakan salinan asal melalui saksi kemudian yang akan diambil oleh Mohd Hanafiah.

YA:       Untuk lihat dan sahkan?

MY:      Ya, PP telah  serah gmbar tetapi untuk tujuan hari ini dalam gambar ini, bercadang untuk mainkan rakaman pada 26 Jun petang untuk pergi ke skrin berkaitan. Ada 2 hard disk yang terlibat.

YA:       Lihat dan camkan muka dia dan kereta?

MY:      Ya

KS:       Disahkan kami telah di ‘serve’ dibawah Seksyen 51A

JB:       SP1 diingatkan masih dalam sumpah

MY:      Akan minta pembantu pergi ke 2.45 petang 26 Jun. Minta SP1 pandang ke skrin.

14:46 masanya. Ini kamera di pintu masuk.

YA:       AI nampak?

AI:        Tak berapa terang

[AI duduk di bar table untuk hampir dengan skrin]

Pembantu: Masalah “hang” sebentar

MY:      Terus pergi hard disk di lif. En Hanafiah akan periksa masalah berkaitan dengan cakera liut (hard disk). Pergi 14:42

MY:      Yang ada gambar, sebelum tutup lif, gambar siapa?

A:         Gambar saya

MY:      Ini masa di mana?

A:         Di P2

Q:         Teruskan?

A:         Ini adalah dari P2 ke tingkat 5. Saya keluar dan terus ke kanan.

Q:         Lihat lelaki ini? Adakah ini lelaki yang kamu selisih?

A:         Ya

Q:         Gambar keluar dari lif? Frame 16:11

A:         Saya di tingkat 5, masuk lif untuk turun ke bawah. Ini masa balik.

Q:         Itu beg hitam?

A:         Ya, beg hitam yang saya pegang

Q:         Itu kamu keluar di GF?

A:         Tersilap keluar. [frame berjalan terus] baru berada di P2

My:       Ketibaan pada 14:47. Nak tunjukkan ketibaan SP1, naik kereta apa?

A:         Saya naik Fiat merah WPK 5925

[“Hang” lagi]

MY:      Sebelum ini berfungsi dengan baik.

Pembantu: Hard disk 1 yang “hang”

MY:      Kita dah uji tayang, jika begitu saya teruskan dengan EIC saya.

YA:       14:47 belum ditunjukkan di makamah

MY:      Saya ingin tunjuk gambar-gambar, lihat gambar 1, boleh tahu siapa?

A:         Saya

Q:         Gambar 2?

A:         Ini kereta yang saya pandu, ini masa tiba

Q:         Gambar 3-6, gambar kamu?

A:         Ya

Q:         Siapa itu?

A:         Saya dari P2 ke tingkat 5

Q:         Ada bawa beg hitam?

A:         Ya

Q:         Adakah ini lelaki yang kamu kata berselisih dengan kamu?

A:         Ya

MY:      Masa yang tertera, masa adalah 14:42, lelaki itu masuk berbeza adalah 9 saat

YA:       Izinkan mereka yang mengendalikan CCTV untuk menerangkan.

Q:         Gambar 8-13

A:         Ya, ini gambar saya yang masih bawa beg

Q:         14-15, gambar apa?

A:         Saya naiki van meninggalkan kondo

MY:      Pada peringkat ini pohon izin tanda gambar as ID5

ID5A-O – gambar ikut m/s

YA:       Diizinkan

ID5A-O – gambar CCTV pada 26 Jun

MY:      Kamu telah tinggalkan tempat itu, pada 4.15 petang dan AI ada di dalam bilik?

A:         Ya

Q:         Lihat laporan kamu (P3 dirujuk), ada rubber stamp “Pondok Polis Hospital”, tulis P3 di sanakah?

A:         Tidak, saya tulis di One Stop Crisis Centre (OSCC), Hospital Kuala Lumpur (HKL)

Q:         Mengapa berada di hospital?

A:         Untuk menjalankan pemeriksaan

Q:         Pemeriksaan apa?

A:         Mengenai saya diliwat

Q:         Pada 28 Jun, adakah kamu terus pergi ke HKL untuk dapatkan pemeriksaan?

A:         Tidak

Q:         Sebelum ke HKL?

A:         Saya pergi ke dua hospital

Q:         Hospital 1?

A:         Hospital 1 ke Tawakal Hospital di Jalan Pahang

Q:         Adakah tujuan sama dengan HKL?

A:         Sama

Q:         Adakah kamu dapatkan pemeriksaan di sana?

A:         Tidak dapat, kerana dimaklumkan oleh penyambut tetamu pada hari tersebut separuh hari

Q:         Dr Tawakkal ke mana?

A:         Saya fikirkan hospital terdekat adalah PUSRAWI di Jalan Tun Razak KL

Q:         Kamu pergi Hospital pergi seorang atau ditemani?

A:         Ditemani oleh bapa saudara

Q:         Siapa nama?

A:         Tuah bin Mat Ali, adik kepada arwah ibu saya

Q:         Adakah di PUSRAWI dapat jumpa Dr?

A:         Ya, dapat

Q:         Ingat nama atau rupa Dr tersebut?

A:         Saya tak ingat nama tetapi boleh cam

[Panggil Dr Osman untuk pengecaman]

Q:         Kenal dia?

A:         Ya

Q:         Siapa?

A:         Dia adalah Dr yang periksa saya di PUSRAWI

[Mohd Osman bin Abdull [dicamkan oleh SP1 sebagai Dr di PUSRAWI]

Q:         Bila jumpa Dr osman, bagitau apa pada Dr. Osman?

A:         Pada mulanya saya bagitau saya sakit perut dan sakit di bahagian dubur

Q:         Apa yang Dr buat?

A:         Beliau suruh tanggalkan seluar dan baring di atas katil dan meniarap

Q:         Sepanjang pengetahuan kamu ada Dr guna apa-apa peralatan?

A:         Ada, Dr ingin masukkan sesuatu, semasa ingin masukkan benda tersebut saya terus berterus-terang bahawa saya telah diliwat dan ingin jalani pemeriksaan

Q:         Bila bagitahu apa yang telah berlaku, apa Dr buat?

A:         Dr terus berhentikan pemeriksaan dan suruh saya pakai seluar

Q:         Ada kamu tanya kenapa Dr berhenti pemeriksaan?

A:         Ya, saya tanya, Dr nasihati saya dua perkara, pertama hospital (hosp) tiada kelengkapan untuk forensik, kedua laporan hospital swasta tidak boleh dijadikan bukti di makamah. Dr nasihatkan untuk jalani pemeriksaan di HKL.

Q:         Cadangkan, arahkan atau nasihat?

A:         Cadangkan

Q:         Adakah lihat alat itu yang digunakan?

A:         Tak pasti

Q:         Selepas itu ada pergi seperti dicadangkan?

A:         Saya ikut nasihat Dr Osman

Q:         Terus pergi HKL?

A:         Ya

Q:         Di HKL ke mana pergi dulu?

A:         Mulanya saya tak tahu nak ke mana, saya pergi ke wad pesakit luar dan mendaftarkan diri

Q:         Pukul berapa?

A:         Lebih kurang jam 3

Q:         Dapat jumpa Dr?

A:         Ya, sejurus mendaftar, terus jumpa Dr perempuan bangsa India, saya nyatakan saya segan untuk buat pemeriksaan kerana dia perempuan, lalu Dr perempuan  India mencadangkan refer ke Dr sebelah bilik, Dr lelaki berbangsa India, ingat nama iaitu Dr Daniel. Saya sudah penat, saya terus berterus-terang untuk dapatakn pemeriksaan kerana diliwat oleh AI. Dr agak terkejut, beliau ada tulis nota untuk pergi ke unit kecemasan iaitu unit OSCC.

Q:         Pukul berapa?

A:         Saya tiba ½ jam kemudian

Q:         Sampai di wad kecemasan?

A:         Wad kecemasan tetapi unit OSCC

Q:         Adakah kamu dapat jumpa Dr?

A:         Saya tunggu Dr tiba, Dr pertama tiba ½ jam kemudian, berbangsa India juga yang datang. Dia bertanya pada saya, beliau hanya boleh buat tekanan darah (blood pressure) sahaja, kemudian dia keluar. Selepas itu ½ jam di tempat sama, sebelum itu saya nyatakan hasrat saya buat pemeriksaan kerana diliwat. Dr nasihatkan saya buat laporan polis dulu, kerana tanpa laporan polis pemeriksaan tidak dapat dibuat.

Q:         Dr nasihatkan buat laporan polis?

A:         Ya

Q:         Mana dapat borang itu (P3)?

A:         Apabila Dr kata demikian, memang berhasrat untuk buat laporan polis selepas saya buat pemeriksaan. Memandangkan boleh buat laporan polis di tempat tersebut saya buat laporan polis. Borang saya dapat daripada dua anggota polis. Seorang lelaki dan seorang perempuan.

Q:         Dua-dua datang sekali?

A:         Bukan, ada gap sedikit.

Q:         Bukan kamu panggil polis?

A:         Bukan

Q:         Ini dalam puluk berapa?

A:         Petang

Q:         Ada Dr datang periksa?

A:         Tiada

Q:         Ada buat pemeriksaan?

A:         Ada, pada waktu malam

Q:         Pukul berapa?

A:         Dalam jam 9 malam

Q:         Berapa orang Dr yang datang?

A:         Agak ramai, saya ingat ada seorang Dr Cina, dua Dr lelaki Melayu dan satu Dr perempuan Melayu yang mengandung dan jururawat.

Q:         Selain itu ada orang lain?

A:         Ada polis datang

Q:         Siapa polis itu?

A:         Masa itu saya tak kenal tetapi lepas itu saya kenal DSP Jude Pereira

Q:         Boleh cam?

A:         Ya

Q:         Adakah ini DSP Jude?

A:         Ya. Pegawai ini ada semasa itu

[Supt Judy Blasious Pereira dicamkan oleh SP1]

Q:         Bila Dr datang adakah mereka terus periksa atau tanya dulu?

A:         Ada tanya soalan

Q:         Soalan macam mana? Tentang latarbelakang kenapa datang ke sini?

A:         Ya, kerana saya diliwat, mereka tanya adakah saya dicederakan, tanda-tanda di badan untuk kecederaan.

Q:         Ada 2-3 Dr?

A:         Ya

Q:         Bahagian mana badan kamu yang diperiksa?

A:         Keseluruhan anggota dari rambut ke kaki termasuk bahagian dubur

Q:         Adalah mereka guna alat untuk periksa dubur?

A:         Ada

Q:         Adakah berkesempatan melihat alat tersebut?

A:         Tidak

Q:         Adakah Dr bahagi peranan untuk memeriksa?

A:         Saya tak pasti

Q:         Selain dari itu, ada apa-apa contoh diambil?

A:         Banyak

Q:         Bagimana diambil?

A:         Gunakan seperti cotton buds untuk pemeriksaan di bahagian badan dan dubur.

MY:      Jika ditunjukkan, adakah ini yang digunakan?

A:         Ya, saya pasti yang digunakan seperti ini

MY:      Ini baru punya belum guna lagi. Ada apa-apa yang kamu lihat?

A:         Lihat letak swab di dalam bekas (container), mereka letak sticker, letak seal dengan tutup putih, di seal itu saya tandatangan.

Q:         Kamu diminta tandatangan?

A:         Ya

Q:         Iaitu  satu botol atau banyak bekas (container)?

A:         Banyak tetapi tak pasti bilangannya.

MY:      Minta SP1 camkan tanda tangan di setiap bekas (container) yang dia tanda tangan. Pohon berhenti pada peringkat ini. Selepas ini saya ada kurang dari 10 soalan.

[KS memohon untuk berjumpa dengan pihak pengurusan pejabat di tempat dikejadian].

YA:       Perbicaraan ditangguhkan ssehingga 9.30 esok dan kita lihat bagaimana.