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Wednesday, 15-Oct-2003 10:06 AM DALAM MAHKAMAH RAYUAN MALAYSIA BERSIDANG DI KUALA LUMPUR (BIDANG KUASA RAYUAN) MAHKAMAH RAYUAN (BERSIDANGKUASA JENAYAH BIL: W-05-64-2000 (WILAYAH PERSEKUTUAN PERBICARAAN JENAYAH BIL: 45-51-1998) DATO’ SERI ANWAR BIN IBRAHIM… PERAYU LAWAN PENDAKWA RAYA… RESPONDEN NOTICE OF MOTION TAKE NOTICE that on 14th day of October 2003, at 12 o’clock or soon thereafter as can be heard of counsel for the abovenamed appellant will move the Honourable Court for the followings orders: (1) This Honourable Court reopens the appeal herein which was dismissed on 18 April, 2003 on the grounds set forth in the affidavit of the appellant abovenamed accompanying the application herein; (2) This Honourable Court do correct the wrong decision given on 18 April, 2003 by allowing the appellant’s appeal and setting aside the appellant’s conviction and sentence imposed by the High Court, Kuala Lumpur on 8 August, 2000; and (3) Any further or other relief deemed fit and proper by the Honourable Court. Dated this 14th day of October 2003. ….…………………………… …………………………… Solicitors for the appellant Pendaftar abovenamed Mahkamah Rayuan, Malaysia Kuala Lumpur Kepada:- Pendakwa Raya Jabatan Peguam Negara, Malaysia Aras 3, Block C3, Pusat Pentadbiran Kerajaan Persekutuan 62502 Putrajaya This is NOTICE OF MOTION is filed by Messrs S.N. Nair & Partners, Advocates & Solicitors solicitors for the appellant abovenamed, whose address for service is at suite 5C, Level 5, Wisma Kosas, Jalan Melayu, 50100 Kuala Lumpur. DALAM MAHKAMAH RAYUAN MALAYSIA BERSIDANG DI KUALA LUMPUR (BIDANG KUASA RAYUAN) MAHKAMAH RAYUAN (BERSIDANGKUASA JENAYAH BIL: W-05-64-2000 (WILAYAH PERSEKUTUAN PERBICARAAN JENAYAH BIL: 45-51-1998) DATO’ SERI ANWAR BIN IBRAHIM…PERAYU LAWAN PENDAKWA RAYA…RESPONDEN AFFIDAVIT I, DATO’ SERI ANWAR BIN IBRAHIM (NRIC NO. 0977280), a Malaysian citizen of full age and currently detained at Sungai Buloh Prison off Jalan Hadapan, 47000 Sungai Buloh, Selangor Darul Ehsan, do solemnly and sincerely affirm and state as follows: 1. I am the appellant abovenamed. 2. On 8 August, 2000 the High Court, Kuala Lumpur convicted and sentenced me to nine (9) years imprisonment on a charge under section 377 B of the Penal Code ordering the said sentence to commence immediately upon the sentence of six years (6) imprisonment imposed on me in Kes-kes Jenayah No: 45-48-98 and 45-49-98 effective from 14 April, 1999. 3. I appealed against both the conviction and sentence aforesaid to the Mahkamah Rayuan on 11 August, 2000. 4. On 18 April, 2003 this Honourable Court dismissed my appeal against both the conviction and sentence. I appealed to the Federal Court against both the said conviction and sentence. The appeal to the Federal Court is pending. 5. I respectfully state this Honourable Court, in handing down its written grounds of judgment dated 21 August, 2003 [exhibited herewith marked, ‘DSAI 1’], completely overlooked it had been brought to the attention of this Honourable Court during submissions that notice of alibi had been served on my behalf by Messrs Bachan & Kartar on the Public Prosecutor and copies thereof had been handed to the Honourable Judges of this Court 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. 6. The learned Judges of this Honourable Court committed a irreversible error and misdirection in embarking upon a decision-making process which was fatally flawed when concluding,
7. The learned Judges of this Honourable Court were under a serious misconception which has contaminated their decision on a fundamental and main pillar of my defence guaranteed to me 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. (highlighting for emphasis) 8. The learned Judges of this Honourable Court resorted to a decision-making process inimical to the procedure and constitutional guarantee ordained by Article 5(1) thereby depriving me access to a fair adjudication of my appeal. 9. In depriving me of a fair adjudication, the learned Judges of this Honourable Court misdirected themselves seriously by way of non-direction as the evidential burden on me was merely to adduce sufficient evidence to raise a reasonable doubt as to my presence at the scene of the alleged offence at the time and place set forth in the charge upon which I was ultimately convicted. 10. The learned Judges of this Honourable Court 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. 11. The learned Judges of this Honourable Court seriously misdirected themselves in fact when concluding I had not served the notice of alibi as required by law and thereby 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 my notice of alibi. 12. The learned Judges of this Honourable Court should have been on the alert when apprised of my 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 my case and the most contentious issue in the trial and my credibility and that of my alibi witnesses and the prosecution witnesses respectively were 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 this Honourable Court had not fallen into error in concluding I had not given notice of alibi. 13. The learned Judges of this Honourable Court 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 me of my right to judicial adjudication on the issue of my alibi lawfully placed before the court as a prerequisite to the State incarcerating me. The learned Judges of this Honourable Court abdicated their role in concluding I 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 this Honourable Court 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 me of an independent or impartial trial. There had been mala fides on the part of the learned Judges of this Honourable Court in that there was absence of care, caution and a proper sense of responsibility on their part. 14. The learned Judges of this Honourable Court perpetuated their inadvertence and/or lack of vigilance when stating as follows in their judgment,
15. The learned Judges of this Honourable Court manifested their inadvertence and/or lack of vigilance further when stating in their judgment,
16. The learned Judges of this Honourable Court demonstrated once again the folly of their misconception that I had not given notice of alibi when stating in their judgment,
17. I reiterate once again with all the force at my command that the learned Judges of this Honourable Court seriously misdirected themselves on the issue of my having given notice of alibi, and the defence of alibi forms one of the central platforms of my defence. 18. I respectfully apply to this Honourable Court to reopen the appeal on this issue as this Honourable Court has a residual and inherent jurisdiction to reopen an appeal which it has already determined in order to avoid real injustice in exceptional circumstances and the circumstances adverted to hereinbefore constitute exceptional circumstances. I respectfully state this Honourable Court has implicit powers to do that which is necessary to achieve the dual objectives of an appellate court, namely, to correct wrong decisions so as to ensure justice between the litigants involved, and to ensure public confidence in the administration of justice. 19. I respectfully state this Honourable Court ought to reopen the appeal and consider the issue relating to my notice of alibi as served on the Public Prosecutor copy whereof is exhibited herewith marked, ‘DSAI 2’. Proceeding upon this premise, I respectfully state I should have been granted an adjournment by the learned trial Judge, Ariffin Jaka J, adequate enough for me to have complied with the provisions of section 402 A 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. 20. This Honourable Court should be guided, in particular, by the phrase, ‘the time of the commission of the offence with which he is charged’ in section 402A (2). 21. This Honourable Court should consider the object of 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, in my case, mean the date and time in the charge as amended from May, 1992 to between January and March, 1993. 22. This Honourable Court should conclude my notice of alibi for the period May, 1992 is of no avail to the amended charge. A notice of alibi for commission of an alleged offence in May, 1992 cannot by any stretch of the imagination, logically or lawfully, stand for an alleged offence between January and March, 1993. 23. This Honourable Court should rule my inability, owing to an adjournment not being allowed by the learned trial Judge, to give notice of alibi upon a substantial amendment of the charge at the commencement of the trial from May, 1992 to between January and March, 1993 has caused a manifest miscarriage of justice. (highlighting and underlining for emphasis) 24. Without fresh notice of alibi in relation to the amended charge, I have been deprived of the opportunity to effectively put up my alibi defence. This Honourable Court should rule I have been deprived of a substantive statutory defence the denial of which impinges directly on my constitutional right to a fair trial. 25. This Honourable Court should rule 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 any defence of alibi and the court has no discretion, but to exclude such evidence if given bereft of the notice of alibi in writing to be given pursuant to section 402 A; such notice cannot be waived; it is mandatory and the court has no discretion in the matter as held by the Supreme Court in Ku Lip See v Public Prosecutor [1982] 1 MLJ 194. 26. I respectfully state as I have been deprived of the opportunity to give the requisite notice of alibi in relation to the substantially amended charge adverted to hereinbefore through no fault of mine, I have been denied an important substantial right. In the circumstances, my appeal ought to be allowed on this ground alone. (highlighting and underlining for emphasis) 27. Wherefore, I respectfully pray for an order in terms of prayers (1) and (2) in the motion herein or in terms of any other or further order deemed fit and proper by this Honourable Court. JURAT DALAM MAHKAMAH RAYUAN MALAYSIA BERSIDANG DI KUALA LUMPUR (BIDANG KUASA RAYUAN) MAHKAMAH RAYUAN (BERSIDANGKUASA JENAYAH BIL: W-05-64-2000 (WILAYAH PERSEKUTUAN PERBICARAAN JENAYAH BIL: 45-51-1998) DATO’ SERI ANWAR BIN IBRAHIM… PERAYU LAWAN PENDAKWA RAYA… RESPONDEN Before me, ____________________ (Commissioner for Oaths) This affidavit is affirmed on 14th October 2003 and filed on 14th October 2003 by Messrs S.N. Nair & Partners, Advocates & Solicitors solicitors for the appellant abovenamed, whose address for service is at suite 5C, Level 5, Wisma Kosas, Jalan Melayu, 50100 Kuala Lumpur. Check
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