FAC News

Tuesday, 07-Oct-2003 9:30 PM

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

(BIDANGKUASA RAYUAN)

RAYUAN JENAYAH NO. 05-6-2003 (W)

ANTARA

DATO’ SERI ANWAR BIN IBRAHIM (PERAYU)

DAN

PENDAKWA RAYA (RESPONDEN)

(Dalam Perkara Mahkamah Rayuan Malaysia

(Bidangkuasa Rayuan)

Mahkamah Rayuan (Bidangkuasa Rayuan)

Rayuan Jenayah No. W-05-64-00

Antara

Dato’ Seri Anwar Bin Ibrahim (Perayu)

Dan

Pendakwaraya (Responden)

(Dalam Perkara Mahkmaah Tinggi Malaya di Kuala Lumpur Wilayah Persekutuan Perbicaraan Jenayah No. 45-51-98)

Antara

Pendakwaraya

Dan

Dato’ Seri Anwar Bin Ibrahim

PETITION OF APPEAL

The appellant, DATO’ SERI ANWAR BIN IBRAHIM, appeals to the Federal Court against the whole of the decision given on 18 April, 2003 by the Court of Appeal on the following grounds:-

1. The learned Judges of the Court of Appeal committed a irreversible error and misdirection in embarking upon a decision-making process which was fatally flawed when concluding,

‘It is to be noted that contrary to what the learned trial Judge had said but as contended by the learned Public Prosecutor before us, with which we agree, the First Appellant never served a notice of alibi pursuant to section 402 A of the CPC in connection with the charge preferred against him’; [coloured for emphasis]

2. The learned Judges of the Court of Appeal overlooked that a notice of alibi had been served on behalf of the appellant by his solicitors Messrs Bachan & Kartar on the Public Prosecutor and that copies thereof had been handed to the learned Judges of the Court of Appeal during the course of the hearing of the appeal with the concurrence of the Public Prosecutor who openly acknowledged copy of same had been served on him within the statutory period of 10 days before the commencement of the trial pursuant to the provisions of section 402 A of the Criminal Procedure Code;

3. The learned Judges of the Court of Appeal were under a serious misconception which has contaminated their decision on a fundamental and main pillar of the appellant’s defence guaranteed to him under section 402 A and in line with the provisions of Article 5(1) of the Federal Constitution which provides no person shall deprived of his life or liberty save in accordance with law;

4. The learned Judges of the Court of Appeal resorted to a decision-making process inimical to the procedure and constitutional guarantee ordained by Article 5(1), thereby depriving the appellant access to a fair adjudication of his appeal;

5. In depriving the appellant of the adjudication adverted to in ground 4 herein, the learned Judges of the Court of Appeal misdirected themselves seriously by way of non-direction as the evidential burden on the appellant was merely to adduce sufficient evidence to raise a reasonable doubt as to his presence at the scene of the alleged offence;

6. The learned Judges of the Court of Appeal failed to appreciate the requirement under section 402 A that an alibi defence be disclosed 10 days prior to the commencement of trial was an exception to an accused’s right to silence which right ought to be protected as a basic tenet of our criminal justice system;

7. The learned Judges of the Court of Appeal, in seriously misdirecting themselves in fact when concluding the appellant had not served the notice of alibi as required by law, paid no heed whatsoever to the premise that the disclosure of an alibi was to enable the police to meaningfully investigate by recording statements from alibi witnesses disclosed in the appellant’s notice of alibi;

8. The learned Judges of the Court of Appeal should have been on the alert when apprised of the appellant having complied with the provisions of section 402 A during the course of the submissions with the Public Prosecutor’s concurrence and consent as the alibi defence was fundamental to his case and the most contentious issue in the trial and the credibility of the appellant and his alibi witnesses and the prosecution witnesses respectively was critical to the outcome of the trial. It could not be said that the outcome of the trial would have been the same if the learned Judges of the Court of Appeal had not fallen into error in concluding the appellant had not given notice of alibi. The learned Judges of the Federal Court should give the highest premium, spirit and expression to the following comment of Brooke JA in R v Laverty (1977) 35 CCC (2 d) 151 @ 153,

‘Crown counsel has urged us if this was indeed in error, it was of no account, because the trial Judge had elected to believe the evidence of the Crown witness. We do not agree. The importance of this evidence was obvious. If the appellant’s witness’ evidence was misjudged because improper principles were applied in determining the weight to be given to it, the criteria for balancing the scales of justice may have been something other than the test of reasonable doubt. On this ground alone, the appeal must succeed’; [coloured for emphasis]

9. The learned Judges of the Court of Appeal cribbed, cabined and confined themselves to a judicial role of no consequence or import when, owing to their own inadvertence and/or lack of vigilance and care, depriving the appellant of his right to judicial adjudication on the issue of his alibi lawfully placed before the court as a prerequisite to the State incarcerating him. The learned Judges of the Court of Appeal abdicated their role in concluding the appellant had not given notice of alibi despite the factual matrix being otherwise as conceded by the Public Prosecutor during the course of submissions. In so doing, the learned Judges of the Court of failed to give life, expression and sanctity to the provisions of Article 5(1) of the Federal Constitution and the Rule of Law, thereby depriving the appellant of an independent or impartial trial. There had been mala fides on the part of the learned Judges of the Court of Appeal in that there was absence of care, caution and a proper sense of responsibility. (See – Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129 @ 141)

10. The learned Judges of the Court of Appeal perpetuated their inadvertence and/or lack of vigilance when stating as follows in their judgment,

‘Incidentally, it was also in the submission of the Public Prosecutor that although it was the stand of the defence that a notice of alibi was served by the First Appellant in respect of the May, 1992 charge, the Prosecution never received it. Notwithstanding the denial of receipt, the issue was left for the Court to decide. With respect we have already expressed our view on this point hereinabove and we need not reiterate it’;

11. The learned Judges of the Court of Appeal manifested their inadvertence and/or lack of vigilance further when stating in their judgment,

‘In view of what we have said earlier on, namely, that the First Appellant never served a notice of alibi or applied for an adjournment to serve one in connection with the amended charge, any admission of evidence pertaining to a defence of alibi would be contrary to the established legal principle. As such, there is no basis for the First Appellant to complain that he has been deprived of his constitutional right to a fair trial. He chose not to raise such defence or failed to comply with the relevant statutory provision. No blame should, therefore, be imposed upon anyone else. Accordingly, we do not think the invocation of the proviso to section 60(1) of the Courts of Judicature Act, should be ruled out’; (coloured for emphasis]

12. The learned Judges of the Court of Appeal demonstrated once again the folly of their misconception that the appellant had not given notice of alibi when stating in their judgment,

‘… If at all, it was to his advantage in that despite the absence of the required notice, the learned trial Judge proceeded to hear the alibi evidence tendered’; [coloured for emphasis]

13. As the learned Judges of the Court of Appeal seriously misdirected themselves on the issue of the appellant not having given notice of alibi, when it is undisputed by the prosecution that he had done so, and the defence of alibi forms one of the main platforms of his defence, the appellant proposes to apply to the Court of Appeal to reopen the appeal on this issue as the Court of Appeal had a residual jurisdiction to reopen an appeal which it had already determined in order to avoid real injustice in exceptional circumstances [See – Taylor & another v Lawrence and another [2002] 2 AIIER 353] and the inadvertence and/or lack of vigilance adverted to hereinbefore constitutes exceptional circumstances. The Court of Appeal has implicit powers to do that which was necessary to achieve the dual objectives of an appellate court, namely, to correct wrong decisions so as to the ensure justice between the litigants involved, and to ensure public confidence in the administration of justice;

14. The appellant will under the circumstances, apply for stay of hearing of his appeal by the Federal Court pending reopening of the appeal in the Court of Appeal so as obtain a lawful judicial pronouncement on his defence of alibi-a pronouncement, if in his favour, may well dispose of the appeal without recourse by the appellant on the other grounds set forth in this petition of appeal;

15. If the Federal Court is of the view it can itself consider the validity of the appellant’s notice of alibi [which it is contended the Federal Court cannot lawfully do, as it will be depriving the appellant an opportunity of acquittal on this issue by the Court of Appeal] the appellant relies on the following further grounds of appeal adverted to hereafter;

16. The Federal Court should rule the appellant should have been granted an adjournment adequate enough for him to have complied with the provisions of section 402A by giving a fresh notice of alibi after the amendment of the charge at the commencement of the trial for the alleged offence sometime in May, 1992 to between the months of January to March, 1993. The learned Judges of the Court of Appeal seriously misdirected themselves in endorsing the learned trial Judge’s decision on this issue;

17. The Federal Court should be guided in particular by the phrase, ‘the time of the commission of the offence with which he is charged’ in 402A (2); [coloured for emphasis]

18. The learned Judges of the Court of Appeal seriously misdirected themselves when not considering the object of the notice in section 402A was to enable the prosecution to check upon the veracity of an alibi in relation to the time of the commission of the offence with which an accused is charged, which must mean in the appellant’s case, the date and time in the charge as amended from May, 1992 to between January and March, 1993;

19. It was preposterous to conclude [which the Court of Appeal did in relation to the Second Appellant] that there would be no prejudice since there was already the first notice of alibi which related to the alleged offence in May, 1992. It is ridiculous for any court to suggest, let alone rule judiciously, that a notice of alibi for commission of an alleged offence in May, 1992 could stand for an alleged offence between January and March, 1993; It would be mind-boggling;

20. The Court of Appeal’s reliance on Hussin bin Silit v Public Prosecutor [1988] 2 MLJ 232 is misconceived as in that case, the Supreme Court held the alteration by bringing forward in the charge the time by half an hour [from about 8.30 pm to about 8 pm in the interest of the accused] could not possibly, on the facts of the case, alter the legal position as to the requirement of alibi notice. This is a far cry from the amendment of the charge from May, 1992 to between January and March, 1993; [coloured for emphasis]

21. The inability of the appellant to give notice of alibi upon substantial amendment of the charge at the commencement of the trial from May, 1992 to between January and March, 1993 owing to judicial misconception of the law has caused a manifest miscarriage of justice;

22. Without fresh notice of alibi in relation to the charge amended to between January and March, 1993 the appellant would be deprived of the opportunity to give notice of alibi in writing to the Public Prosecutor 10 clear days before the commencement of the trial through no fault of his, then any trial which ended in evidence in support of the defence of alibi being statutorily barred from being given, would clearly be unfair and unjust in that is would deprive the appellant of an important substantive right the denial of which impinges directly on the appellant’s constitutional right to a fair trial;

23. The denial of opportunity to give fresh notice of alibi after the substantial amendment of the charge from May, 1992 to between January and March, 1993 completely bars the defence of alibi and the court has no discretion, but to exclude such evidence if given bereft of the notice of alibi in writing required to given pursuant to section 402A. Such notice cannot be waived; it is mandatory and the court have no discretion in the matter;

24. The Court of Appeal was bound by the decision of the Supreme Court in Ku Lip See v Public Prosecutor [1982] 1 MLJ 194 which, clearly, bears out these principles of law. It was an affront to the Supreme Court, the highest court in the land then, when the trial Judge and the learned Judges of the Court of Appeal refused to be bound by this authority. The learned Judges of the Court of Appeal should have religiously adopted Ku Lip See which was cited to them and likewise to the learned trial Judge;

25. The learned Judges of the Court of Appeal, clearly, themselves when concluding,

‘As regards the cases cited to us such Wong Kim Leng v Public Prosecutor [1997] 2 MLJ 97; Public Prosecutor v Lim Chen Leh [1981] 2 MLJ 41; and Rangapula & Anor v Public Prosecutor [1982] 1 MLJ 91, we have no doubt that they accurately stated the law on the prerequisites to adducing evidence of alibi. However, on the facts of the present case, these authorities are distinguishable. In respect of the Second Appellant they are also not directly relevant in that there is no dispute that the Second Appellant served a notice of alibi for the May, 1992 charge’;

26. The learned Judges of the Court of Appeal seriously misdirected themselves, when stating,

‘Accordingly, we do not think the approach taken by the learned trial Judge on this issue of alibi and the notice thereof was entirely wrong, particularly in respect of the Second Appellant as to warrant a ruling that the whole trial was a nullity. Perhaps, we should remind ourselves of what His Lordship H.T. Ong CJ (Malaya) had to say on excessive legalism in the case of Yap Chan Chai & Anor v Public Prosecutor [1973] 1 MLJ 21a @ page 221’,

‘What is always of paramount importance in the administration of criminal justice is a fair trial-not such excessive legalism as to give the ordinary meaning of words sacrosanctity of a retrial’. Clearly, the pronouncements of H.T. Ong CJ (Malaya) aforesaid have no relevance or affinity to the law propounded in Ku Lip See by the Supreme Court which the learned trial Judge and the Judges of the Court of Appeal were bound by law to follow pursuant to the doctrine of stare decisis. Any departure from being bound by rulings of the Supreme Court in Ku Lip See would amount to judicial indiscipline and verge on contempt of the highest court in the country;

27. The learned Judges of the Court of Appeal seriously misdirected themselves when adopting the view expressed by the majority in the Supreme Court of Canada in the case of Regina v P (M.B.) 89 C.C.C. (3d) 289; (1994) C.C.C. LEXIS 2454; 113 D.L.R. (4th) 461, where Lamer C.J. opined at page 297,

“The fact that an accused may have an alibi for the period (or part of the period) described in the indictment does not automatically “freeze” the dates specified in the indictment. That is to say, there is no vested right to a given alibi. Alibi evidence must respond to the case as presented by the Crown and not the other way around;’ (Emphasis added)

when in Canada there is no legal necessity of giving notice of alibi in writing as ordained by section 402A of the Criminal Penal Code; the Court of Appeal was wrong in resorting to common law which flies in the face of section 402A;

28. The learned Judges of the Court of Appeal seriously misdirected themselves in law in adopting the view expressed by the majority in Regina v P (M.B.) when concluding,

‘Accordingly, we hold that the mere giving of the notice of alibi by the Second Appellant should not be construed as having the effect of limiting or ‘freezing’ the date of time specified in the charges preferred against them. As such in our view the hype on the three times changes to the dates in the charges was a result of a misapprehension of the true position of the law in respect of time factor when a charge is preferred against a person. Thus, in the instant case, we find no compelling ground to accept the contention of learned counsel for the First Appellant on the forgoing issue’;

29. The learned Judges of the Court of Appeal seriously misdirected themselves in not holding even if the appellant had not served notice of alibi pursuant to 402 A [which is denied] in relation to the May 1992 charge, the Second Appellant had done so, and even if no request had been made for adjournment on his behalf to serve a fresh notice of alibi after the charge was amended to between January and March, 1993, the position would not have been different as the trial was a joint one and any defect in the procedure in denying an adjournment would have affected the trial resulting in the charge not being borne out against both the appellants as a joint trial was akin to inseparable twins;

30. The learned Judges of the Court of Appeal were wrong in not upholding the submission on behalf of the appellant that the learned trial Judge ought to have disqualified himself from hearing the case in view of his undisputed ownership of shares in Dataprep in which one of the sons of the Prime Minister, Datuk Seri Dr Mahathir Mohamad, was a shareholder, particularly having regard to public knowledge of the role played by the Prime Minister in the removal of the appellant as Deputy Prime Minister and Minister of Finance and further the non-disclosure of such interest voluntarily by the learned trial Judge at the commencement of the trial or thereafter until raised by the defence. In all likelihood, the learned trial Judge did not disclose such interest to the Chief Judge (Malaya) who acted under section 20 at the Courts of Judicature Act to designate Ariffin Jaka J as trial Judge;

31. The learned Judges of the Court of the Appeal were wrong, having regard to the facts and circumstances, to have concluded the mere fact that at one time the learned trial Judge had shares in the company in which the son of the Prime Minister was also a shareholder could not be held to be a sufficient ground or circumstance to meet the test, namely, whether there was a real danger of bias on the part of the learned trial Judge;

32. The learned Judges of the Court of Appeal seriously misdirected themselves when holding,

‘We would go further and say that the allegation and the factual circumstance simply could not have caused a fair-minded and informed bystander to entertain a fear of a real danger of bias’.

in the light of the learned trial Judge going out of his way to set aside the subpoena issued by the defence against the Prime Minister, Datuk Seri Dr Mahathir Mohamad, to testify as a defence witness when no application had been made by the Prime Minister to set aside the subpoena issued against him as was done by Tun Daim Zainuddin and Datuk Aziz Samsuddin. The learned trial Judge’s preferential treatment accorded to the Prime Minister was a circumstance which could not rule out a real danger of bias on the part of the learned trial Judge;

33. The learned Judges of the Court of Appeal ought not to have accepted the learned trial Judge’s reasons for not disqualifying himself on face value but discerned the actual position by going beyond the surface to ascertain the learned trial Judges actual motives in keeping up his sleeve his interest in Dataprep until the defence application to disqualify him;

34. The learned Judges of the Court of Appeal should have held business interest in Dataprep, with the Prime Minister’s son in tow, was compelling enough for a fair minded and informed bystander to entertain a fear of a real danger of bias having regard to common knowledge that Judges are appointed by the King on the recommendation of the Prime Minister;

35. The learned Judges of the Court of Appeal should not have been intimidated by the following dicta of Gopal Sri Ram JCA in Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors [1995] 2 MLJ 213,

‘I notice an unhealthy trend of late to allege bias too readily against a judicial arbiter on insufficient material. Nothing is capable of eroding public confidence in the judicial arm of the State than unwarranted and unfounded allegations of bias. It is, therefore, to be avoided at all costs, if necessary, by having resort to the power to punish for contempt’;

36. The learned Judges of the Court of Appeal should have been guided by what was said by Zainun Ali J in Tan Kim Hor v Tan Chong & Motor Company Sdn Bhd & Ors [2003] 2 CLJ @ 443, 444 in the following enlightening terms,

The next question is whether, in making this application, the plaintiff had transgressed the bounds of propriety and had, therefore, committed contempt.

I take this ‘transgression’ as simply an incident of judicial office, of which no busy Judge can escape.

I suppose different Judges respond differently to allegations of judicial bias. There are, of course, various restraints which tend to discourage the making of the accusation of bias, unless it is deemed serious and relevant.

In any case, if candour on the part of the Judge in expressing his reasons is to be defended, so candour on the part of the litigants may be expected.

But when it is made, it is essential that the Judge should approach it without being defensive or resentful.

Thus, I would take the approach as that taken by the Court in Baintan v Rajski [1992] 27 NSWLR 539 that an application that a Judge disqualify himself is not contempt’;

37. The learned Judges of the Court of Appeal were wrong in not holding there had been contravention of the provisions of section 418A of the Criminal Procedure Code;

38. The learned Judges of the Court of Appeal misdirected themselves seriously when concluding,

‘From our reading of the section [418A], it is patently clear that it is the proceeding that is being transmitted when a certificate is issued, and not the charge’.

when proceedings cannot be devoid of a charge which is the gravamen of the proceeding sought to be transferred to the High Court;

39. The learned Judges of the Court of Appeal misdirected themselves seriously when not directing themselves in relation to the following proviso to section 418B to which 418A was subject -

‘… provided that the accused person has not pleaded guilty and no evidence in respect of the case against him has begun to be adduced’

which clearly indicates a charge in a proceeding transferred under section 418A could not be amended at the commencement of the trial in the High Court; [underlining for emphasis]

40. The learned Judges of the Court of Appeal misdirected themselves seriously in holding,

‘In any event, the amendments were only related to the time and period of the commission of the alleged offences by the respective appellants’

and proceeding to rely on Hussin bin Silit v Public Prosecutor [1988] 2 MLJ 232 which related only to the facts in that case when the time was amended in the charge by bringing same forward only by half an hour unlike the case of the appellant which entailed amendment from May, 1992 to between January and March, 1993;

41. The learned Judges of the Court of Appeal likewise seriously misdirected themselves when applying the principle in Law Kiat Lang v Public Prosecutor [1968] 1 MLJ 215 which adverted to R v Severo Dossi (1918), 13 Cr App R 158, 159 which held,

‘From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence’; [coloured for emphasis]

42. The learned Judges of the Court of Appeal could not, in all sincerity and good conscience in keeping with their oath of the office, say that the substantial amendment from May, 1992 to between January to March, 1993 was not an essential and fundamental part of the alleged offence with the compelling requirement in section 402 A (2) that the notice of alibi in writing required particulars of the place where the appellant claimed to have been at the time of the commission of the offence with which he is charged; [coloured for emphasis]

43. The conclusion of the learned Judges of the Court of Appeal that there was no merit in the defence submission adverted to in paragraphs 40, 41 and 42 flies in the face of common sense, logic and the law. On this ground alone, the learned Judges of the Court of Appeal ought to have subscribed to the adage, ‘Let the High Heavens fall, but let justice be done’ and allowed the appellant’s appeal;

44. The learned Judges of the Court of Appeal seriously misdirected themselves when concluding,

‘Now, on this issue of the charge being vague, we are not convinced that there is any merit in it’;

45. The learned Judges of the Court of Appeal were clearly wrong in adopting the following serious misdirections of the of the trial Judge,

‘In this instant case it is clear that in the charges it is specified the offences were alleged to have been committed on night at about 7.45 pm between the months of January and March 1993 at Tivoli Villa, in the Federal Territory of Kuala Lumpur, I am of the view that these are particulars sufficient to clothe the charges with clarity and certainty. The charges as amended are clear and unambiguous and as such both the accused have not in any way been misled by the charges as framed. Both the accused know what the charges are against them. They are not in any way prejudiced by the failure of the prosecution to state exact date and this omission has not occasioned a miscarriage of justice. In any event a date in the charge has never been material. In R v Severo Dossi (1980) 13 Cr App R 158 (quoted in Lae Kiat Lang v PP [1966] 1 MLJ 215 and Ho Ming Siang v PP [1966] 1 MLJ Lord Atkin J obserbed:

“From time in memorial a date specified in an indictment has never been a material matter unless it is actually essential part of the alleged offence”;

46. The Federal Court should interfere with the abovementioned compounded misdirections by the trial court and the intermediate appellate court;

47. The learned Judges of the Court of Appeal were wrong in not upholding the defence submission that the delay in the prosecution of the appellant for an alleged offence between January and March, 1993 only in 1999 rendered the charge stale and, therefore, significantly contributing to the appellant not getting a fair trial;

48. The learned Judges of the Court of Appeal were wrong concluding,

‘To begin, we would think that there should be no question of delay going by that the learned Public Prosecutor had submitted. The investigation began in 1998 and the prosecution was initiated in 1999. Further, we are inclined to agree that on such allegation it would be for the Appellants to show prejudicial effect or effects. Indeed it has been said that delay in the prosecution of a person for an offence such as sexual offence should not necessarily be deemed to be prejudicial to an accused, ‘It is a matter for the trial judge having heard the evidence to determine whether the memory of the complainants or of the respondent has dimmed with the passage of time and that the respondent is thereby deprived of a fair trial.’ – per Goodrige C.J.N. in the case of Regina v. W.G.G. 58 C.C.C. (3d) 263: 1990 C.C.C. LEXIS 3316 (Newfoundland Court of Appeal). In any event for the First Appellant there should have been hardly any difficult in accounting for his movements since it was not in dispute that being a member of the Cabinet and the Deputy Prime Minister at the material time his where-abouts at any time were recorded. And as for the Second Appellant we would agree that the success or failure of his defence of alibi should hinge on the alibi of the First Appellant.; [colouredfor emphasis]

49. The learned Judges of the Court of were wrong in not holding a specific warning of the danger of convicting on the evidence of PW 6 the complainant, Azizan Abu Bakar, in view of the alleged offence and the complaint was necessary in law and ought to have been adequately reflected in the grounds of judgment of the Court of Appeal;

50. The learned Judges of the Court of Appeal ought also to have had in mind that, notwithstanding the corroborative evidence [which was in any event lacking], a specific warning of the danger of convicting on the evidence of Azizan Abdul Bakar was in law a prerequisite;

51. The learned Judges of the Court of Appeal were wrong in not concluding there was evidence of fabrication and extortion of evidence against the appellant, thereby vitiating the trial;

52. The learned Judges of the Court of Appeal were wrong in not holding the evidence of PW 6 Azizan Abu Bakar was not credible or reliable and his character far from blameless. On this ground alone, the appellant’s defence ought not to have been called and the question of corroboration of his evidence did not arise for adjudication;

53. The Federal Court ought to interfere with the concurrent findings of fact by the learned trail Judge and the learned Judges of the Court of Appeal in relation to the evidence of PW 6 in particular and other prosecution witnesses;

54. The learned Judges of the Court of Appeal seriously misdirected themselves when concluding ,

‘Thus, as we agree with the learned trial Judge that in view of his finding of Azizan being a truthful and reliable witness, the legal principle as restated in TN Nathan v Public Prosecutor (supra) has no application’;

55. The learned Judges of the Court of Appeal were wrong in holding there was corroboration of Azizan’s evidence;

56. The learned Judges of the Court of Appeal were wrong in admitting P4 the second appellant’s confession as evidence;

57. The learned Judges of the Court of Appeal seriously misdirected themselves when holding,

‘In summary, though we agree with the submission of learned counsel for the appellants on the application of section 30 of the Evidence Act, 1950 we do not think such misdirection by the learned trial Judge should nullify the whole of the convictions of the appellants. And as we have done, we find P4 does lend assurance to the other evidence on the guilt of the First Appellant in that ‘cogent evidence’ existed against him ‘quite apart from the statement’ of the Second Appellant’;

58. The learned Judges of the Court of Appeal were wrong in applying the proviso to section 60(1) of the Court of Judicature Act in relation to reliance of P4 as against the appellant and section 402 A of the CPC non-compliance whereof being mandatory was incapable of being cured by invoking the proviso to section 60(1) which could, in law, be invoked only in exceptional cases;

59. The learned Judges of the Court of Appeal seriously misdirected themselves when concluding,

‘… It is our considered opinion that no substantial miscarriage of the justice has occurred and based on our views given above, we consider it an exceptional case, hence it is a fit and proper case to apply the proviso to section 60(1) of the Court of Judicature Act’;

60. The learned Judges of the Court of Appeal were wrong in not holding on the evidence the prosecution had failed to prove its case beyond reasonable doubt at the close of its case at which stage the appellant ought to have been acquitted and discharged without his defence being called;

61. In the alternative, the appellant’s defence had created a reasonable doubt on the prosecution case;

62. The sentence imposed on the appellant is manifestly excessive having regard to the facts and circumstances and the plea in mitigation made known to the trial Judge at the close of the case. The sentence imposed warranted judicial interference by the Court of Appeal which misdirected itself in not doing so;

63. The learned judges of the Court of Appeal erred in law and in fact in upholding the decision of the learned High Court judge convicting the appellant which decision is against the weight of the evidence adduced and clearly offends against the elementary and fundamental principles of law and justice;

64. The learned judges of the Court of Appeal erred in law and in fact in failing to hold that your appellant ought not have been called to enter on his defence in the first place as the prosecution had unmistakably failed to prove their case beyond a reasonable doubt; regard being had to the fact that they were not even able to adduce the primary facts required to support the charge proffered against your appellant;

65. The learned judges of the Court of Appeal erred in law and in fact in failing to appreciate that the entire proceedings were vitiated in the light of Mr. Manjeet Singh Dhillon’s evidence (DW 21) revealing the fact that the two main prosecutors Tan Sri Ghani Patail and Datuk Azahar Mohammad were caught red-handed attempting to extort fabricated evidence against your appellant rendering them unfit in law to conduct the prosecution of your appellant, and bearing in mind the Federal Court’s decision in Re Zainur Zakaria wherein the conduct of Tan Sri Ghani Patail was excoriated, and brought into question;

66. The learned judges of the Court of Appeal further erred in failing to appreciate that by their conduct the two prosecutors had violated their sworn duty to uphold the rule of law and the administration of justice and that your appellant was in the circumstances deprived of his constitutional and fundamental rights to a fair trial;

67. The learned judges of the Court of Appeal erred in not appreciating that in the light of the conduct of the two prosecutors, the evidence of the other prosecution witnesses in particular Azizan Abu Bakar and SAC Musa bin Hassan, the investigating officer, had to be thoroughly scrutinized as there was every likelihood that they and others could have been similarly prevailed upon to give unfavorable and/or false evidence against your appellant.

68. The learned judges of the Court of Appeal erred in law and in fact when they held (in paragraph 68 of the judgement) that … “there was no allegation of that nature in the present case… Thus, we are very much in doubt if the principle in that case is of any relevance to the case before us…”; in that the learned judges of the Court of Appeal failed to appreciate or adequately appreciate that the acts of the aforesaid prosecutors complained of, amounted to the implementation of a concerted and well planned effort to extort non-existent evidence against your appellant.

69. In this regard, the learned judges of the Court of Appeal further erred in not appreciating or adequately appreciating that such acts of the prosecutors implied and/or indicated that they were furthering their or their principals nefarious cause and/or agenda against your appellant;

70. The learned judges of the Court of Appeal erred in law and in fact when they held (in paragraph 69 and 70 of the judgement) that “Since the evidence being fabricated or extorted concerned women it had nothing to do with the instant charges before the court”; in that they failed to appreciate what was at issue was not an isolated instance of fabrication but the overall motives of the prosecutors in furthering their cause and/or purpose against the appellant and that such tainted conduct by the prosecutors proved that very point. In this regard, their credibility and integrity is compromised;

71. The learned judges of the Court of Appeal erred in law and in fact then they held (in paragraph 70 of the judgement) that… “it was DW31’s own deduction and opinion…”; when the facts clearly indicate that DW31 already had instructions from his client that his client was in no position to give the evidence demanded by the prosecutors but short of lying;

72. The learned judges of the Court of Appeal further erred in failing to appreciate that the acts of the prosecutors in demanding non existent evidence (by using the threat of the death penalty) were unmistakably attempts to extort fabricated evidence for use against your appellant (perhaps at a different forum) and was not in the circumstances an opinion or deduction;

73. The learned judges of the Court of Appeal further erred in not appreciating that the evidence and assertions of DW31 remained unchallenged, there being no evidence to the contrary, as mere statements from the bar table cannot refute such glaring evidence, (contrary to Section 101 of the Evidence Act 1950);

74. The learned judges of the Court of Appeal erred in law and in fact in not holding that Azizan Abu Bakar was a totally unreliable witness and undeserving of any credence, bearing in mind that the latter’s evidence is plainly a catalogue of contradictions, inconsistencies and outright lies and the learned High Court judge’s earlier findings, inter alia, that “this witness says one thing today and another thing tomorrow”. (sic);

75. The learned judges of the Court of Appeal erred in law and in fact in not appreciating that the learned High Court judge was given to exaggeration, in particular when he held, “that Azizan Abu Bakar’s evidence is as strong as the rock of Gibraltar” (despite the weak and unconvincing nature of Azizan’s evidence);

76. In the light of the learned High Court judge’s propensity for exaggeration the learned judges of the Court of Appeal erred in law and in fact in uncritically accepting and giving undue weight to the former’s findings on facts and law and his assessments as regards the credibility of Azizan Abu Bakar and the other prosecution witnesses;

77. The learned judges of the Court of Appeal erred in law and in fact in failing to appreciate or adequately appreciate that there were cogent facts which call into question, the testimony of other prosecution witnesses, in particular SAC Musa bin Hassan, who helped secure the conviction of your appellant;

78. The learned judges of the Court of Appeal erred in law and in fact in reference to the case of Smith v Ushewokunza and Anor [1997] SC when they concluded… “Thus we are very much in doubt if the principle in that case is of any relevance to the case before us”; when in fact the clear principle enunciated in that case -“that a fair prosecutor is a prerequisite to a fair trial”; applies with equal force to the conduct of the prosecutors rendering the proceedings a nullity;

79. The learned judges of the Court of Appeal erred in law and in fact in not allowing the appeal of your appellant despite the categorical admission of Azizan Abu Bakar that he was never sodomized by your appellant;

80. The learned judges of the Court of Appeal erred in law and in fact in upholding the decision of the learned High Court judge who paid scant regard to the evidence of the defence witnesses including your appellant, Supt. Zul Aznam (a serving senior police officer), Raja Kamaruddin, Y.B. Azmin Ali and Jamal Abdel Rahman whose evidence, inter alia, proved conclusively that there existed a high level conspiracy, which included the main prosecutors, to prefer trumped up and false charges against your appellant and to secure a conviction by questionable and devious means;

81. The learned judges of the Court of Appeal erred in law and in fact in accepting the erroneous decision of the learned High Court judge in refusing to impeach the credit of Azizan despite the latter’s failure to explain the major contradictions in his evidence, thereby depriving your appellant of a reasonable opportunity of being acquitted;

82. The learned judges of the Court of Appeal like the learned High Court judge, erred in failing to give due weight to the crucial evidence of Supt. Zul Aznam (DW15 para 249), a serving senior police officer, who testified that Azizan Abu Bakar had admitted to him that the latter was bribed into making false allegations against your appellant, which evidence if accepted, would have afforded your appellant a fair opportunity of being exonerated of the charge proffered against him;

83. The learned judges of the Court of Appeal erred in failing to hold that the provisions of Section 114 (g) of the Evidence Act 1950 ought to have been invoked against the prosecution for their failure to call relevant witnesses to the detriment of your appellant;

84. The learned judges of the Court of appeal erred in not appreciating or adequately appreciating that the learned High Court judge’s refusal to allow crucial witnesses to be called by your appellant had prejudiced his position and stifled his defence;

85. The learned judges of the Court of Appeal erred in not appreciating that your appellant was subjected to an unfair trial by the learned High Court judge’s overall attitude and erroneous and arbitrary rulings and his unjustified threats to hold your appellant’s counsel for contempt of court;

86. The learned judges of the Court of Appeal erred in all the circumstances of the case in giving their blanket approval to all the untenable findings and ruling of the learned High Court judge; and

87. The trial process culminating in the conviction of your appellant was in all the circumstances, a travesty of justice, and matters have to be put right, otherwise justice will remain inexorably not seen to be done.

Dated the 6 day of October, 2003.

__________________

Solicitors for the appellant abovenamed

This petition of appeal is filed by Messrs S.N. Nair & Partners, Advocates & Solicitors, at suite 5C, Level 5, Wisma Kosas, Jalan Melayu, 50100 Kuala Lumpur.

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