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Sunday, 16-May-2004 5:07 PM ANWAR IBRAHIM Day Three of the Appeal Hearing in the Federal Court 12 May 2004 The sitting commenced at 9.33 am. Justice Abd Hamid announced that, after discussion with his fellow judges, it had been decided that there would be no sitting on 18, 24 and 25 May. Failure of Judge to Recuse Himself/ the Mahathir Connection Karpal Singh said that the trial judge had failed to recuse himself despite the fact that he owned shares in Dataprep, a company in which Prime Minister Mahathir’s son also had an interest. This posed a real danger of bias. The judge further failed to disclose this fact, as is required of a judge. Indeed, the judge subsequently set aside the subpoena to call Mahathir as a witness. This represented preferential treatment and was not proper. Karpal quoted Lord Denning’s opinion, that it is essential for a judge to be impartial. If any circumstance makes it possible that the judge might favour one party over another he should disqualify himself from hearing the case. In this respect it is important to consider all the facts, not just a few hypothetical instances. If, at any stage in the trial a judge becomes aware of any matter or circumstance which may throw doubt on his ability to be unbiased, he must disclose it. It had been argued that Mahathir had no direct involvement in this case, but the defence submitted that there was a high-level conspiracy, in which Mahathir played a role. Both Mahathir and Aziz Shamsuddin were subpoenaed as witnesses but both engaged lawyers to set aside the subpoena. In agreeing to set aside the subpoena the judge said, “If he [Mahathir] comes to court he will not be able to give any material evidence”, to which Karpal had responded, “Since when could you put yourself in the PM’s shoes to know this?” [Note: Before the commencement of the trial Mahathir had several times publicly stated that he had irrefutable evidence that Anwar was guilty] It is also worth noting that the promotion of judges is in the hands of the PM. This could have led to bias when the PM preferred not to come to court. Azizan’s Testimony The judge came to the conclusion that Azizan’s testimony was “as solid as the Rock of Gibralta”. He accepted his testimony despite its many flaws. The Court of Appeal judges also failed to see that much of the evidence in fact failed to fulfil the requirements of the Evidence Act. The Court of Appeal judgment cited the proviso in Section 60, although the “exceptional case” criterion was not met. This therefore represented a misdirection. After a brief recess Christopher Fernando made a third attempt to have the presence of foreign observers recorded by the court but this was shot down angrily by the judge. The Charge and the Burden of Proof Christopher Fernando reminded the court of the principle that guilt must be proved beyond reasonable doubt. The duty of the court is not to wrestle with the idea of whether the accused is guilty or not guilty, but to examine whether there is sufficient evidence to convict. Suspicion, however strong, can never take the place of evidence. It may be the first time in history where the chief prosecution witness, in the middle of the trial, gave testimony in contradiction to the charge. Azizan testified three times, under oath, that Anwar did not sodomize him. Incredibly the judge found Anwar guilty, despite this clear, cogent and convincing evidence in his favour. The charge was amended twice – this is significant. The original charge stated “one night in May 1994”; then, after the first trial [corruption] ended it was amended to “one night in May 1992”. Just before the second trial commenced it was amended yet again to “one night between January and March 1993”. The significance of these amendments was lost on the trial judge and later also on the Court of Appeal judges. CF: Look at the charge itself. By any stretch of the imagination it was an absolutely unfair trial. The appellant was asked to defend himself by showing that he did not commit the offence on any night within that 90-day period, and, to boot, it was 6 years ago. The charge itself was literally a death trap. The prosecution are asking the appellant to do the impossible. How can one remember what one did on a night within a 3-month period 6 years ago? Can anyone in this court remember what he or she had for lunch last Thursday? The charge was shockingly vague, imprecise and unfair. My Lords/Lady, it has been the defence case throughout that the charge against Anwar Ibrahim was false and fabricated. There was a high-level conspiracy in place to procure and use fabricated evidence against the appellant, and I have to mention, with due respect, that one of those involved was the present Attorney General, Gani Patail - Sit down! (to Gani Patail, who had risen to object) Gani voiced his objection. AHM: (in exasperated tone) Why can’t you stick to the evidence? CF: It is in the evidence. At this point Gani excused himself from the sitting since he was now an interested party. AHM: Please confine your submission to the facts of the case. CF: the conspiracy was headed by the two main prosecutors in the case, including the head of the present team (Gani). Let’s examine the evidence of Azizan (main prosecution witness). The entire case rests on his evidence. The question of credibility therefore assumes the utmost importance. There was no corroboration of his evidence, yet the learned judge found corroboration where there was none. Azizan’s credibilty was suspect. Here was a witness who gave three different versions of the alleged offence during the course of the trial. His testimony was a catalogue of contradictions and outright lies. For example, here are some of his answers from my cross-examination of him during the trial: CF: Did you tell the police you were sodomized by Anwar? Az: No. CF: Did you tell the police you were sodomized by Anwar in May 1992? Az: No. CF: Who told the police that it happened in May 1992? Az: I don’t know. CF: Did you know the original charge was for May 1994? Az: Yes. CF: Did you tell the police that you were sodomized in May 1994? Az: I can’t remember. CF: Did you know that the charge was amended? Az: Yes. CF: How did you know? Az: I read it in the press. The question here is: if Azizan did not tell the police he was sodomized in 1994, who did? Surely only two people knew of the alleged offence, were present when it happened. So how did the police come up with the charge? This should have alerted the judge to see that it was a fabricated charge. In another part of the cross-examination Azizan testified as follows: CF: Did you tell the police you were sodomized between January and March 1993? Az: Yes. CF: When did you inform the police? Az: On 1 June 1999. Once again the significance of this testimony was lost on both the trial judge and the Court of Appeal judges – Azizan had apparently only informed the police of the date just before the trial started. The circumstances surrounding the date on which he informed the police is also important. Under cross-examination Azizan said that the police had asked him to think very carefully about the date just before the trial began. The present AG tried very hard to block his answer from being recorded, because the prosecution knew that it would expose the conspiracy. The AG made a lot of trouble and in the end the judge agreed to adjourn the hearing because of the prosecution’s objection. Further testimony by Azizan: CF: Did the police tell you the date was wrong, ask you to shift it? Az: No. CF: Did the police tell you that the two appellants sodomized you in 1992? Az: I can’t remember. This means that one can’t rule out that the police told him to say it. Once again, the judge failed to pick it up. CF: Do you agree that the date 1992 is false? Az: (refused to answer) The judge here made a comment (recorded) “This witness is very evasive and appears to me not to answer simple questions put to him.” The question here was: why is the witness so evasive when pushed into a corner? Yet in his judgment the learned judge found Azizan’s testimony to be “as solid as the Rock of Gibraltar”. Later in the proceedings Azizan agreed that the 1992 date was false. CF: Do you agree that in 1992 Tivoli Villa [where the alleged offence was said to have been committed] had not yet been completed? Az: Yes. So how does one commit sodomy in a building which is not yet ready for habitation..? CF: Were you asked by the police to change the date to between January and March 1993? Az: Yes. As we go along we can see the conspiracy thickens. CF: Who asked you to change the date? Az: (evasive) A police officer who took my statement. CF: Did you agree to the proposition? Az: Yes. CF: Who is the police officer? Az: SAC Musa Hassan [The chief Investigating Officer in this case] The same question was asked again in a slightly different format, so that there would be no doubt; the response was the same. CF: Did you tell the police that Anwar sodomized you in May 1994? Az: No. [Earlier he “couldn’t remember”] The sum of Azizan’s testimony is that he did not tell the police that he was sodomized in either May 1992 or in May 1994. He was asked to give the (new) date of between January and March 1993. Azizan made a statutory declaration that he was sodomized several times in 1992. CF: If this was true, why did you go back and work for Anwar’s wife? Az: My thoughts were confused. A ridiculous, nonsensical answer. CF: If you thought you would be sodomized again, why did you go back? Az: I respected his wife, Datin Sri Wan Azizah. Again, quite ridiculous. CF: Did you know that the Tivoli Villa building was not ready in 1992? Az: No. CF: Did anyone tell you? Az: No. Your Lordships should have no difficulty in seeing that Azizan is an unreliable witness. In fact he is not only unreliable, he is a liar and should have been charged for perjury. But instead the learned trial judge finds that his testimony is “as strong as the Rock of Gibraltar”. On re-examination Azizan shifted his position again. We (the defence) informed the judge that we wanted to take impeachment proceedings against this witness. And we, with the permission of the court, produced a transcript (obtained through the court registrar) of evidence given by Azizan during an earlier part of the trial. Later Azizan testified: “I agree that Anwar did not sodomize me at all between 1992 and 1997. If he had done so, I would not have gone anywhere near his house.” Because this evidence was so stunning, I (CF) asked again, not once but twice more: “I put it to you that you were not sodomized by Anwar between 1992 and 1997 and that is why you continued going to his house.” He gave the same response. [Unfortunately the court record is not accurate here, because it only records my asking this question once] This witness, under oath, categorically and completely exonerated the accused. Yet the whole world was utterly shocked when Anwar and Sukma were found guilty. Unfair Re-examination of Witness The (present) AG re-examined Azizan in a most unfair manner, completely against the rules of re-examination. YZA: Evidence to do with the impeachment application should not be considered here when your purpose is to show lack of credibility. It is not part of the evidence of the main part of the trial. AHM: He can try to show that the judge erred by refusing to impeach the witness. CF: With due respect, I appreciate your concern. I will be going on both the impeachment and the credibility, because they are inevitably intertwined. AHM: But that (impeachment) evidence was for the sole purpose of trying to impeach the witness. CF: Credibility is the bottom line in this case. CF: Gani, in his re-examination of Azizan, asked, “Did this sodomy by Anwar occur after September 1992?” This was a leading question, putting words into the mouth of the witness, to prompt him when he (the witness) got stuck. The judge ought to have disallowed it, but the objection by the defence was over-ruled. Gani also tried to turn around the denial by Azizan that he had been sodomized by Anwar. He pretended to address the court but was actually putting words into the witness’ mouth. He said that what Azizan actually meant was that he had never been sodomized by Anwar between 1992 and 1997 in the house. This move of Gani’s was clearly against the Rules of Evidence, but defence objection was again over-ruled. The Rules of Evidence must be respected. Azizan changed his testimony as a direct result of this leading question. Earlier he had said that he was not sodomized between 1992 and 1997. Now he said it was “not after September 1992”. Azizan testified that from early 1992 until September 1992 he was still the driver of Dr Wan Azizah. But, he said in answer to Gani’s question, the accused did sodomize him from early 1992 until September 1992. Azizan explained away the fact that his answers were now different from before by saying that he had misunderstood the questions, which were too general. At this stage Azizan had still not mentioned the place where the offence allegedly occurred, and Gani had to cue him through further questions to get this. This meant that fresh evidence was now being introduced, and was unfairly allowed. AHM: I think you have given enough examples, now make your point. CF: The prosecution’s key witness was unreliable, seen from the changes in his testimony or evidence. Under cross-examination he broke, was cornered. That was the moment of truth - that was when he stated that he was never sodomized at all. It was only after Gani cued him with a leading question that he changed the date to between January and September 1992, so that the cut-off point was now September 1992. And he tried to wriggle out of his confession that he was never sodomized by saying he meant only at the house. Go tell that to the Marines! Later, after the second amendment of the charge, he testified that he was sodomozed in 1993, between January and March. Even with this, impeachment was ruled not necessary. How can this be accepted? The trial judge himself found even at an early stage of the trial that there were many contradictions in Azizan’s evidence, but throughout he accepted Azizan’s explanations for these. Given the context in which the questions (by Gani) were asked, and the answers given, this evidence is not tenable. The judge should not have accepted it. He failed to analyse the two sets of statements and see the total disagreement between them. Errors by the Judge 1. In the face of such stubborn evidence of lack of credibility of the witness, one has to ask – Why? Why did the judge repeat over and over again in his judgment that Azizan was a reliable, honest and trustworthy witness? Was he perhaps trying to convince himself? 2. In his judgment, the judge picked only those questions which were favourable to the prosecution, and ignored those that were not. He also went to considerable lengths to rationalize Azizan’s statements. 3. Some parts of the judgment were even wrong in fact. For instance, the judgment stated that Azizan’s answers to my (CF) cross-examination mentioned not only the act of sodomy and the date, but also that it occurred at the house. This was not true: in those answers Azizan never mentioned the house. In another instance the judge made a major mis-statement when he said that two separate statements by Azizan on two different matters were actually merely different statements on the same matter. Some parts of the Court of Appeal judgment were also inaccurate, irrelevant. 4. During my cross-examination Azizan stated three times, under oath, that he had never been sodomized by Anwar. How could the judge fail to stop the trial there and then? How could he ignore it? And later he allowed Azizan to try and rationalize it, prompted by Gani. 5. It is illegal for a judge to uphold the credibility of a witness when it is clearly not so. He should have found that Azizan had materially contradicted himself. It was an attempt to rationalize untenable answers. The judge said: “The answer here is logical and not inherently incredible. I find that there is no contradiction at all between what he said earlier in the trial and what he said under re-examination.” This is gross exaggeration on the part of the judge. Earlier, during the trial, the judge had found that there were discrepancies in Azizan’s testimony, but in his decision on the impeachment application he said: “..even assuming that there were discrepancies, I am more than satisfied that Azizan has successfully convinced me beyond a doubt. In truth, in fact and in substance, Azizan was a good witness.” Impeachment was therefore denied and Azizan’s credibility confirmed. The Court of Appeal judgment stated: “With respect, we find nothing wrong with the judge’s decision not to impeach Azizan. His seemingly contradictory statements may give an impression of inconsistency, but the High Court judge’s finding should be accepted, we have no reason to depart from it.” How can they make this decision, when the judgment was so blatantly wrong? It is the duty of the Appellant Court to put things right when pointed out to them. They should not just agree with the original judgment in the face of major errors. My Lords/Lady, if one looks purely at recorded proceedings evidence it should be glaringly evident that Azizan’s testimony was grossly contradictory. It is the duty of Your Lordships, as it was that of the Appellate Court, to put things right. I appeal to you to consequently overturn the judgment of the two courts. This is in the interests of justice, in order to correct an injustice. Based on the evidence there can be no doubt that Azizan was a most unreliable and inconsistent witness, indeed an unmitigated liar – this should have been the finding of the two courts. This is a witness whose testimony cannot be relied on to convict anyone. Evidence adduced by the prosecution must be convincing. When it is found that the witness has lied, the court has no discretion, and has no choice but to acquit the accused. Any other decision would be a perversion of justice. Recess 12.55 – 2.30 pm. CF: I would respectfully like to inform the court that Ms Hendon is this afternoon replacing Malik Imtiaz (Bar Council watching brief). Thank you. The Charge The final charge faced by both appellants was vague, inconsistent, imprecise and totally unfair. The AG had stated that he had complete records of all Anwar’s movements, inside and outside the country, for the period 1992 to September 1998, the date of his removal from office. (The police, for security reasons, follow senior government leaders wherever they go, on official or personal business, around the clock.) This reveals without a doubt that the charge is false, fabricated – where are those records now? Why were they never produced in court? Why was the charge so vague? They must have the records, and the records would show that Anwar was never at Tivoli Villa on any night during that period. Unfortunately this was missed by the learned judges of the High and Appellate Courts. They failed to properly recognize the implication of this statement by the AG. Flaws in Findings CF again mentioned the lack of credibility of Azizan, and how the judge had criticized him during the earlier part of the trial, yet vindicated him at a later stage, and in his judgment repeatedly stated that he was a “truthful, consistent and trustworthy” witness. CF: How could he say this and come to this conclusion? Secondly, can we defend such a conclusion? The learned judge misdirected himself on facts and on law, and it was clearly against the weight of evidence. There was no justification for calling for the defence. The appellant had to show the court where he was for 90 days, 6 years earlier. Despite this, it is submitted that he managed to establish his alibi for the entire period. The judge put the onus on the appellant to prove he had not been at the place of the alleged offence. The onus should rightly have been on the prosecution to prove that he had been there. Placing the onus on the appellant is alien to law. The judge then found that the appellant had not been able to prove conclusively his whereabouts, although the perceived lack of conclusiveness rested solely on immaterial points and details. This was unjust and represents another instance of misdirection on the part of the learned judge. There was also no proper analysis of the evidence by the Court of Appeal judges. They simply accepted the High Court judgment as a whole, without examining its parts. Corroboration There was absolutely no corroboration of Azizan’s testimony. In any case, the law is clear: no amount of corroboration can save the testimony of a witness who is unreliable. Azizan was not only unreliable, he was also a liar. So even if there were corroboration it could not be used since Azizan had perjured himself. In the Evidence Act, the first test of a witness is that he/she must be reliable. If he fails this test (and we submit that Azizan did), then the court does not look any further for details of corroboration. So either way Azizan’s testimony is not useable. Lord Hailsham, finding in another case, said that corroboration is only required if the witness is reliable. If he is not, then the witness’ testimony should be rejected. Corroboration should only be used if the witness is reliable, however compelling it may be. However, regrettably the judge in our case accepted the testimony of an unreliable witness. Evidence of Alibi The evidence of alibi adduced by the defence was left largely unchallenged. Questions were posed to the appellants in a very lackadaisical manner. Therefore the alibi stands. And this point alone justifies an acquittal. The entire prosecution case rests on Azizan’s evidence. They brought no other evidence. Therefore Azizan actually demolished the prosecution’s case through his inconsistencies. CF: There is no need for Your Lordships to have the trouble of reading all 5 volumes. Just read Azizan’s testimony - it is enough. AHM: Then you will say, at a later hearing, that our judgment was not valid because we did not read all 5 volumes..! CF: The judge did not give proper weight to testimony by defence witnesses. The witnesses were treated almost with scorn and derision, being branded, one by one, as untruthful, unreliable and not deserving of credence. This is not the correct approach for a judge to take. The law is clear: every witness, including an interested one – a spouse, colleague, etc. – is to be considered credible until and unless proven unreliable. Despite the fact that the charge was false and fabricated, despite all the difficulties and despite the determined efforts made by the prosecution to gather fabricated evidence, the prosecution failed. There were two witnesses who were men of honour, who refused to sell themselves. They had been approached to give false evidence but refused. How many more were approached and agreed? My Lords/Lady, we are dealing with justice, fairness. Even if one single witness gives false testimony it is enough to vitiate the entire case. One prerequisite for a fair trial is a fair prosecutor. Here we have a tainted prosecution, producing trumped-up charges in order to destroy one of Malaysia’s most illustrious sons. They went to enormous lengths to do that – even extending to the US, attempting to bring a witness from there. In the end it was we who brought that witness all the way from the US. He was Jamal Abdul Rahman, who owns a limousine company in Washington which had a contract with the Malaysian Embassy there. His job was to chauffeur visiting Malaysian VIP’s, amongst them Anwar Ibrahim when he was deputy prime minister. Some time in 1998 Jamal met a Malaysian, one Mustaffa Ong, who extended an “business offer” to him. He would be offered as much as USD200,000 to make a false statement that Anwar had asked him to bring him some girls while in Washington. Jamal’s conscience did not allow him to accept the offer and he even paid his own passage to come and tell this story as a witness for Anwar’s defence. AHM: How does what Mustaffa Ong did relate to the case? CF: I’m coming to that. But first I want to mention the evidence of Raja Kamaruddin Raja Abdul Wahid (RK). He was approached by someone from UMNO who took him to see Aziz Shamsuddin. The latter told him of the plot to topple Anwar, and asked RK to see to his political demise. He was told that money was no problem and that he could send all bills to Aziz Shamsudin’s office. RK also refused to accept this assignment and instead became a defence witness, revealing the conspiracy to topple Anwar. Aware that the conspirators might try to harm him, RK even took the trouble to record a report of his conversation with Aziz Shamsuddin – in the case that something happened to him, the record was saved for posterity. The judge agreed that if it could be proved that there was a conspiracy, Anwar would be freed. I submit that we did prove high level conspiracy, yet the judge refused to acknowledge it. Anwar himself gave lengthy and detailed testimony on this subject, naming the people involved: Dr Mahathir, Daim Zainuddin, Rafidah Aziz, Megat Junid, Aziz Shamsuddin, Rahim Tamby Chik, Tajuddin Ramli, Wan Azmi and Halim Saad. Anwar said that they were unhappy with his efforts to stem corruption and abuse of power, and with his informing Mahathir of their activities in this respect. The judge commented that political rivalry and attempts to unseat one another was normal. Yes, but surely not to that extent. The judge then rejected the evidence. AHM: Did he give a reason? CF: The judge tried to discredit the defence witnesses, including the former director of the Anti-Corruption Agency (Dato’ Shafie) and an eminent lawyer (Manjeet Singh Dillon). As an example, the judge cited “the fertile imagination of Raja Kamaruddin in a futile attempt to prove conspiracy”. A judge should scrutinize all evidence carefully and fairly and not just dismiss it out of hand. This judge failed to do this, picking out certain parts of the evidence and rejecting others. Sometimes he failed to make proper conclusions on the evidence that he did consider. His mind was corrupted and he was unable to grasp the significance or importance of the facts. He thoroughly confused himself. On several points in his judgment the learned judge erred because he made unfounded conclusions, speculations. The judge also made unfair findings not based on the facts. For instance he found that Raja Kamaruddin’s testimony, that there was a conspiracy, was unproven since he had not shown how it would be done – whereas RK had told how he had been given a specific assignment and gave details of the financial arrangements. The judge described RK’s evidence as hearsay (and therefore not admissible), but Aziz Shamsuddin was not called by the court to disprove it. This constitutes a very serious mistake – one cannot buttress or add on to the evidence. One has to take the evidence as it is. A finding must be based on evidence before the court, not evidence plucked from the air. CF: Can such untenable findings be upheld? This is what My Lords/Lady have to address. And the other question to be addressed is, how could the Court of Appeal judges accept the High Court judgment without going through it in detail? The court was adjourned at 4.10pm. It would reconvene at 10.00am on the following day.
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