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Tuesday, 11-May-2004 9:09 PM Day two of the DSAI Appeal Hearing Day two of the Anwar Ibrahim Appeal Hearing kicked off with the Attorney General (AG) reading out the notes of the previous trial with regards to Anwar's alibi. The AG then confirmed that the Notice of Alibi was in fact filed and a copy served on the court within ten days by both Anwar and the second defendant, Anwar's adopted brother, Sukma Darmawan Sasmitaat Madja, as required under Section 402A of the Criminal Procedure Code. Christopher Fernando then stood up to request that the attendance of the foreign observers and representatives from the Malaysian Bar Council be noted and recorded. Justice Abdul Hamid Mohamad, however, declined the request and said that the court cannot entertain this. After all, many parties, including God, are watching Anwar's hearing so should the court then record the presence of all these observers as well? Karpal Singh continued the defense submissions by saying that a Defense of Alibi is a substantial and fundamental defense. Karpal asked the court whether it knows why Anwar's hearing is being so closely followed by so many observers. This, said Karpal, is because Anwar’s previous trials were rife with weird and bizarre events. There is in fact a high element of mala fide in the manner the prosecution was pursued and the conviction secured. Karpal read out the written judgment of the Court of Appeal where in many sections of the judgment it refers to the fact that no Notice of Alibi was filed nor did the defense request time to file one. The grounds of judgment clearly stated that no Notice of Alibi was filed. This was a serious misdirection on the part of the court. The AG was fully aware the court had erred but did not correct this by bringing the matter to the court's attention. This spells of bad intentions or mala fide on the part of the AG. The AG was not prosecuting but was persecuting Anwar, argued Karpal. Karpal read from the notes of the trial where the AG had amended the charges with regards to the dates Anwar allegedly committed the sodomy offence. The defense had asked for a postponement to file the mandatory Notice of Alibi for this amended charge. Karpal informed the court the AG, however, objected to the postponement and said that a defense of alibi is a sham defense. The court was told the earlier Notice of Alibi filed for the original charge was sufficient and no postponement was required to file a new Notice. The charges, however, had been amended and the earlier Notice of Alibi would no longer apply to these new dates on the charge. Anwar's alibi filed was in relation to the old dates and not the new dates, which means if he did not file a new Notice of Alibi he would have no defense. Nevertheless, though the AG objected to the postponement and the court denied the defense the obligatory postponement, the Notice of Alibi was filed. The trial judge, though, arrived at a verdict taking into consideration the absence of this alibi. The Court of Appeal ignored this point and the AG did not correct this misdirection though it knew the court was in error. Instead, the Court of Appeal remarked that the amendments to the charges are only related to the time of the alleged crime so a fresh alibi is not crucial, as the offence still remains the same, only the time differs. The judges of both the High Court as well as the Court of Appeal were in error as the alibi is an essential part of the defense, stressed Karpal. Karpal read out a statement by the AG who had justified his objection to a postponement to file a new Notice of Alibi by saying that, from time immemorial, time is not an essence in securing an indictment. Karpal argued that time is the whole essence. The criteria for considering whether to allow or reject an appeal, said Karpal, is whether the defendant was given a chance to get a fair trial. By violating the mandatory Section 402A of the Criminal Procedure Code, Anwar was denied his right to a fair trial and is a victim of a miscarriage of justice. Subsequently, the Court of Appeal did not rectify this error on the part of the trial judge. Karpal argued that though the prosecution admits a Notice of Alibi had been filed, this is only in relation to the original charge and does not cover the amended charge where the dates of the alleged crime have been changed and the alibi would now not cover these new dates. The notice had not been filed because the court refused to allow a postponement to file it. Yet, the court found Anwar guilty on grounds he did not file an alibi whereas it was the court that prevented it from being filed. The second point raised by Karpal is the long delay in time before the alleged victim of the sodomy act raised a complaint against Anwar. The alleged act occurred in 1992. Yet it was not until 1998 that Azizan Abu Bakar complained to the then Prime Minister, Dr Mahathir Mohamad. However, there was no valid explanation to this delay other than he was afraid. On the amendments to the charge, it was amended not before the trial but during the course of the trial. In the meantime, a Notice of Alibi had been filed in relation to the original date. But the court did not adjourn to allow a fresh alibi to be filed. Therefore, in the absence of an alibi, the trial would become defective and be rendered null. The court has absolutely no discretion in the matter. Section 402A is a mandatory requirement and must be complied with. The fundamental principle of justice is that the accused should be made to feel he has been given a fair trial, not enough that he may have actually been given a fair trial. In this case, the court’s denial of Anwar time to file his alibi, which is a mandatory provision under the law and one is bound by it, means Anwar was not allowed a fair trial. Therefore, any evidence adduced without first allowing it to be filed through a Notice of Alibi must be disregarded by the court. A lot of strange things have happened in Anwar's trials, said Karpal. One glaring example is the prosecution using an alibi for a crime alleged to have been committed in 1992 on an amendment charge that states the crime was committed in 1993. After lunch, Karpal asked the court to grant Anwar and Sukma bail. The court, however, said that this would complicate matters if the defense applies for bail halfway through the hearing and it would be better if it were done at the end of the submissions when the court has had a chance to hear the entire arguments, plus the reply by the prosecution. Karpal then continued by bringing up the matter of the charge against Anwar that was amended twice. Anwar was first charged in the Kuala Lumpur Sessions Court for sodomy. His case was then transferred from the Sessions Court to the Kuala Lumpur High Court where the charge was then amended. Karpal argued that the charge should not have been amended by the High Court but should have instead been sent back to the Sessions Court for amending. The court will reconvene tomorrow at 10.00am
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