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Wednesday, 12-May-2004 6:23 PM ANWAR IBRAHIM Day Two of the Appeal Hearing in the Federal Court 11 May 2004 The hearing started at 9.40am with Gani Patail reporting that he had found the relevant part of the Notes of Proceedings, and confirmed it indicates that the notices of alibi were duly served not only on the original trial but also on the Court of Appeal. The issue so hotly argued the day before was thus settled and Karpal Singh was directed by the judge to proceed with his appeal submission. Recording Presence of Foreign Observers Christopher Fernando intervened to raise another contentious issue from the previous day: a request to record the presence in the court of foreign observers. AHM: I don’t want to spend much time on this. After the hearing yesterday I checked the records of Anwar’s hearings and found that none of them mentioned the presence of anyone other than counsel, not even those holding a watching brief for the Bar Council (at which Fernando expressed surprise). We judges have discussed the matter and decided that only the names of counsel will be recorded. Otherwise everyone present will be wanting their names to be recorded. We are aware of the presence of foreign observers, but we feel it is better that we don’t know who they are. We know we are being observed by the general public and judged by them. We also know that there is another Observer: God Almighty. CF: There was a case when Justice Gopal Sri Ram was sitting and there was a visiting eminent foreign judge present in the court. Justice Sri Ram invited him to sit together on the bench. AHM: It is a normal thing. All are welcome and we make no distinction. CF: Very well My Lord. I only brought it up again this morning because you advised me to do so. Anwar Deprived of Fair Trial Karpal Singh reminded the court that an accused person is entitled under the Federal Constitution, to a fair hearing and trial. The accused must have the comfort of knowing he is getting a fair trial. KS: It is common knowledge that Anwar did not have the benefit of a fair trial. When Anwar became the victim of a vicious assault giving him a black eye, this also gave a black eye to the whole country. This is why there are foreign observers here today. Why have they not attended other trials? In fact there is international concern over the manner in which the trials were conducted. As far as this appeal is concerned it is sufficient that there have been fatal omissions. The harassment faced by the appellant should be placed on record. The pain suffered by the appellant is not a façade. His wearing neck and body braces is not just for show. An orthopaedic surgeon has now recommended that he be given steroid injections in the next few days, to relieve his increasing pain. Alibi KS: An alibi is a fundamental part of a defence. The Federal Court is the highest in the land. Just because the High Court and Court of Appeal made similar findings on this issue, it does not mean that this court cannot find differently. A lot was said about the alibi during the appeal hearing. The fact is that the judges failed to appreciate the significance of the alibi, resulting in misdirection. There is also clearly a conflict in what was said by the judges (in their judgment) and what has now today been confirmed by my learned friend in the prosecution. Reading from the judgment, Karpal showed that there were four separate mentions of the claim that the notice of alibi had never served in compliance with Section 402A. “Yet here today the prosecution has acknowledged the opposite – is there not an element of mala fide here?” The appeal judgment had also invoked a proviso (Section 60) that disallowed the appellant from complaining that he had been denied the right to file the notice. “One cannot simply quote a proviso without backing it by a rationale.” Even after reading and re-reading the court records the judges still held that there had been no misdirection. KS: Why did the judges not concede in the court that they had received the notice of alibi? Here the prosecution failed to fulfil its moral obligation to lay it before the court if a mistake was made. The prosecution may prosecute but it should not persecute. Can this court in all conscience ignore this major flaw or misdirection? Let this court, the highest in the land, dispense justice in accordance with the law. Amendment of Charge Karpal reminded the court that the charge was amended twice during the course of the trial hearing with regard to the date of the alleged offence. The date was originally May 1992, then was amended to May 1994, and finally amended yet again to “between January and March 1993”. When the defence applied to file a fresh notice of alibi for the new date, the AG for the prosecution objected on the grounds that the alibi defence is a sham defence – he had already made up his mind before considering the facts or evidence. He therefore objected to the court allowing time to file the new notice. The application was dismissed on the grounds that the original notice “remained effective”. KS: How could this be? There was a tremendous difference in the two dates. How could the original notice of alibi still stand? The original notice was valid for 1992 only. And why did the PP not there and then point out to the bench that the notice of alibi had been given? Karpal also criticized the case referred to in order to justify the decision not to allow a new notice to be filed despite the change in the charge. The case in question involved a change of a mere half an hour (8.00pm instead of 8.30pm, same date), compared to two years in Anwar’s case. There was serious misdirection, including in the way the judges came to the decision, simply latching onto the above example and saying that the very significant time difference was a non-issue. They subsequently rejected the appeal on the grounds that “the element of omission or misdirection was not present”. KS: Every judgment must be made in the light of the facts of that particular case and its surrounding circumstances. Many other cases can be cited to show that every time it was decided that a change was materially unimportant there were strong facts to back it up. Such a big change inevitably becomes materially important. The judges in their decision took examples which were totally out of context. Changes may not be important unless prejudice can be shown. In our case more than prejudice can be shown… One has to look at the substance, not at the technicalities; at whether the accused was given a fair trial, and whether he was given a full and fair chance to defend himself. I also find myself questioning why the judges repeated so many times that they had not received the notice of alibi. In the law on concurrent findings, even if there were concurrent findings by different levels of court, it should not prejudice the Federal Court, as the highest court, to agree. In some cases the Federal Court is an accused person’s last hope. In our case there was clear misdirection. Our client was denied the right to file a fresh notice of appeal and thus deprived of his right to clear himself. It was a very bizarre sequence of events, with changes being made twice. The judges’ decision that no new notice was needed was ridiculous. As further proof that the notice of alibi had indeed been served, the Investigating Officer admitted that investigations on the alibi had been conducted, therefore the notice must have been received. This once again demonstrates that the prosecution has not been bona fide, since they allowed the judges to mention time and time again that the notice had not been served and to base their judgment on that claim. An application to further investigate the alibi was also rejected. KS: My learned friend is guilty of obstructing justice. My Lords/Lady are obliged to investigate this, and this court can be punished if it fails to do so. These are strong words, but in this case justified. In effect, the appellant was only allowed to give evidence based on the first alibi – which was nonsense after the amendment to the charge. It was no longer relevant, it was a mockery. An adjournment should have been ordered to enable the accused to file a new notice of alibi in keeping with the requirement of Section 402A. It is weird that the court directed the accused to use the 1992 alibi in rejecting his application – it was an obstruction. In fact there has been obstruction of the course of justice every step of the way, not only by the AG, but also by the bench. Until very recently the AG was still obstructing by refusing to acknowledge that the notice of alibi had been served – it is only today that he has finally admitted this. And this on a point of defence of such magnitude… After a half-hour recess, Karpal Singh continued his submission on the same point. KS: This morning my learned friend admitted that the notice was given. This was for the 1992 charge. It is my contention that the court was aware of intention to mischief. Salleh Abbas made the observation in another case that it is necessary for there to be an investigation to ascertain the veracity of an alibi in order to prevent unnecessary prosecution of an accused. In this case there was conscious and systematic obstruction leading to prevention of investigation. When the right to file a new notice of alibi was denied, investigation of the alibi was blocked, and my client was not able to use it to defend himself. Karpal explained that the purpose of Section 402A was to prevent surprise information or witnesses from being suddenly introduced in the course of the trial, catching the prosecution unprepared. Hearing in the Court of Appeal Karpal noted that there was, of course, no notice of alibi for the amended charge, since permission to file it had been denied. As a result the appellant was denied the opportunity to give requisite notice through no fault of his own. This was clearly unjust. He needed the adjournment to enable him to comply with the requirements of 402A (which requires 10 days’ notice). He was thus deprived of an important right and as such his conviction and sentence should be overturned. KS: Courts have no discretion in this matter, it is mandatory. Although the defence did submit arguments on the 1993 charge they were bereft of a 402A notice. As stated, failure to file the notice was not due to his fault, yet the judgment ruled that defence arguments based on the alibi were not admissible because he had failed to comply with 402A. AHM: You are saying that, in effect, the main part of the defence arguments are not valid because no notice of alibi was served. KS: Yes, but in fact the whole trial is nullified due to the denial of the accused’s right to file a fresh notice for the amended charge. If my learned friend is willing to concede this I need go no further. Can the court please ask him to do this? AHM: Just continue with your submission. KS: No, I insist. AHM: (inaudible) KS: It’s no use mumbling and cursing me; this is important. Since the judge declined to press the prosecution Karpal was obliged to continue. He submitted that both appellants were denied the opportunity to put up an effective defence, because no adjournment was allowed. This court should be on its guard against merely agreeing with the decisions of the High Court and Court of Appeal, in other words from making the same mistake. Vagueness of the Charges The charges were unreasonably vague in terms of dates and times. The final charge was that the offence occurred “some time about 7.45 on one night between January and April 1993”. The time lapse involved was also unreasonable – 6 years earlier. It cannot be expected that someone could remember their movements and whereabouts, nor keep any evidence of them, after such a long time-lapse. In another case, a time-lapse of only 8 months had been ruled by the judge as too long a delay to reasonably expect the accused to have a clear memory of where he was at the time in question. In the present case the judges should have allowed the objection instead of trying to justify. KS: If the offence occurred in March 1993, why was no report lodged at that time? The answer, which the court accepted, was that because Anwar was a powerful man Azizan (the alleged victim) was afraid to make a report, and thus only made it 5 years later. One then asks: why did he choose that particular time? It is my contention that he made it at that time because of a report lodged by Azmin Ali [which might sabotage an earlier attempt to slander Anwar] The success or failure of the defence of the second appellant, based on the alibi, would hinge on that of the first appellant, since they were jointly charged. Amendments Made During Trial What is crucial to consider here is whether or not there was a fair trial. When a trial has not yet commenced it is perfectly allowable to make amendments to the charges, but it is no longer allowable once the trial has started. If amendments are still made at this stage, then an opportunity to file a fresh notice of alibi must be given (402A). The question we have to ask ourselves is: would damage have been done if permission to file the fresh notice had been granted? AHM: So why did we quarrel all day yesterday about the notice of alibi for 1992 (whether it was served or not), since now you are saying it is not material? KS: Yes, in the end that is what it comes to. But then the whole trial was itself invalid, because the court wrongfully deprived the appellants of the chance to file a new notice. This action of the court was wrong because prior filing of notice is mandatory, and the judges themselves should also have stopped the defence from submitting alibi-related arguments. It is essential that the accused feels that he is being given a fair trial. Judges are responsible for directing both the prosecution and the defence, as and when necessary, to ensure that the trial is conducted fairly. Things must be done in accordance with law, unless concessions are made. AHM: You have pointed out that the notice of alibi requirement is meant to protect the prosecution. If, then, the prosecution does not object when alibi evidence is included, does this not render the alibi evidence admissible? KS: It is not a matter of prejudice but rather of compliance with 402A, which is mandatory. Therefore non-compliance alone is sufficient to nullify it, regardless of whether or not the prosecution objects. Compliance is mandatory, the court has no discretion in the matter. The court recessed from 1.15 – 2.45, after which Karpal Singh again continued his submission. The criticism in the judgment, that the first appellant had made no attempt to associate his case with that of the second appellant, is baseless. The two cases are automatically associated since the two accused were jointly charged, and the trial was a joint trial involving the same alibi. Therefore there was no need for an application to associate. KS: I submit that all evidence related to alibi (without notice) must be expunged. If the court, by denying the appellants the right to file a new notice, deprived the defence of alibi evidence, it follows that the case then rests entirely on prosecution evidence. But this case rests solely on the defence, not the prosecution, so if you obstruct the defence you destroy the case. Conviction and sentence can only be upheld if proven, based on available evidence and on proper direction. Here we have misdirection, and the evidence from the prosecution is insufficient. AHM: As I see it, we can stop making references to cases relating to alibi – it is already clear. One can perhaps only argue on the basis of the first notice of alibi being unusable. KS: No, we cannot, it is not logical. Here logic is more important than law. Application for Bail Karpal now gave notice that he would apply for bail. He cited the principle of law that states that if, at any stage of the legal proceedings it is felt that the accused may be found not guilty, he should be freed on bail. AHM: It is proper to allow the prosecution to comment. (At this point, counsel for the second accused informed the court that he also was making an application for bail and that it had already been filed). Yusof Zainal Abiden (YZA)(for prosecution): We object. KS/AHM: To the bail, or to the motion to apply for bail? YZA: We object to the motion. It should have been made earlier. We asked the defence counsel before the hearing whether they would be applying for bail, and were told that they would do so at the end of the submissions. Gani has been preparing for that. AHM: How long will it take (to finish submissions)? It would be rather confusing at this stage because we are halfway through. KS: I can show that it can be done. AHM: But it would be better if you can wait till the end. By then we will have a clearer picture. So far we have only heard a part of your submission and nothing yet from the other side. KS: I will abide by your decision. AHM: Please record it as our ruling. Please proceed with the arguments for the appeal. Continuing his submission on the amendments, Karpal reminded the court that the first amendment – from May 1992 to May 1994 had been held to be merely a correction of a typing error. An application was then made to transfer the case from the Sessions Court to the High Court. It was only after the proceedings had begun that the second amendment was made (“between January and March 1993”). The law allows amendments before the commencement of a trial, but not during. If the prosecution wanted to make an amendment, the High Court judge should have sent the case back to the Sessions Court to get a fresh certificate bearing the amended date. Only then can the case be transferred once more to the High Court. This case fulfils the criteria, which states that a) the accused has not pleaded guilty, and b) no evidence in the case against him has yet been adduced. The accused has not been given an opportunity to plead guilty to the new charge, so the case must go back to the Sessions Court for this, and then only can it be transferred again to the High Court. It is actually the proceedings which are transferred, not the charge. However, you can’t have proceedings without a charge; the proceedings must include the charge. 418B cannot be disregarded. With this Karpal Singh’s submission was completed. The court was adjourned to 9.00am the next day.
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