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Sunday, 16-May-2004 5:08 PM ANWAR IBRAHIM Day Four of the Appeal Hearing in the Federal Court 13 May 2004 Submission by Christopher Fernando (CF) for the first appellant Fabrication of Case and Evidence The enemies of Anwar Ibrahim fabricated a case and its evidence. They misled the PM of the day, Dr Mahathir, to believe that Anwar was really guilty of sexual misconduct. These were despicable things that they did. Azizan Abu Bakar was not very bright. He was malleable but made many mistakes. During the trial Azizan was asked why he waited 5 years before lodging a report about being sodomized by Anwar. He replied, under oath, “I did it in the interest of religion and of honour.” However, he soon revealed himself to be a liar, for not long afterwards he was caught, literally, with his pants down – he was arrested for being alone with a woman who was not his wife (an offence under shariah [Islamic] law). He at first claimed trial but later pleaded guilty and was jailed. During the (Anwar) trial he portrayed himself as a man of strong religious beliefs (this under oath), and yet a short while later he pleaded guilty to committing a crime which is considered heinous in Islam. Unfortunately all this was lost on the judges. I would like to invite the court to look at the relevant part of the judgment on the appeal. It commented that the issue of Azizan’s khalwat (close proximity) conviction was “brought by the defence to undermine the credibility of the witness”. It found that the conviction in the shariah court failed to show lack of credibility of the witness in this trial. The judge either failed or refused to see its direct and compelling relevance. Another witness called by the defence was the former Director of the Anti-Corruption Agency (ACA), Shafie Yahya. Karpal Singh had said that the purpose of calling him was to show the bad blood which had developed between Mahathir and Anwar. Shafie told how he had met the Prime Minister to inform him that the ACA was going to raid the office of the Director General of the Economic Planning Unit (which comes under the PM’s Department). Mahathir was furious with him, and shouted “How dare you investigate one of my officers!”, and told him to close the case. In his judgment the judge recorded a fundamentally different version of this story. According to the judge, when asked what Mahathir had said when told that the EPU Director General’s office was to be raided, Shafie testified that Mahathir simply remained silent. The judgment’s fundamentally different version is a mockery. During the trial the judge had also insulted this respectable witness by asking him whether Anwar had asked him to initiate the ACA investigation, implying that the action served a hidden purpose. I urge Your Lordships to come out quite strongly on this matter. It is the duty of the court to be fair and just, to listen to both sides. In this the judge failed. This alone is grounds enough to acquit the appellant. The law [in Malaysia] at the moment is in turmoil. Your Lordships have to put it right. This whole case has put the law in turmoil, turning everything upside down and creating confusion. Please set things right once and for all, lead the way. Show the other courts what the law is and how to apply it. The defence had also called Manjeet Singh Dhillon, a former Bar Council president, who had worked in the AG’s Chambers for 25 years. Manjeet gave evidence which shocked not only the court but the nation and even the world. Manjeet was defending S Nallakaruppan, a former tennis partner of Anwar’s who was facing an ISA charge which carried the death penalty. Manjeet testified that he was called up by Gani Patail (then working in the AG’s Chambers). Gani was trying to strike a bargain with Nalla(karuppan) through Manjeet. He wanted Nalla to give false evidence against Anwar. This conversation was recorded on tape, and I (CF) told the court that if there was any dispute we would produce the tape in court. Gani, the chief prosecutor for Anwar’s case, had sunk to such depths of depravity just to be sure of gaining a conviction. He was cruel enough to use the death penalty as a bargaining chip. He wanted Nalla to say that Anwar had asked him to procure some women. Gani kept changing the details – married or unmarried and how many of each. He eventually settled on 3 married and 2 unmarried. Gani threatened to ensure that Nalla got the death penalty if he didn’t cooperate. This entire conversation was recorded on tape. If Gani could have done this in the presence of a senior lawyer, one can only speculate as to what he might do to other witnesses with no lawyer present. Some people are ready to sell their souls just to get on in the world, get promoted. Gani’s actions tarnished the image of our country, brought shame and disgrace on our system of justice. It is unthinkable for anyone to do such a thing. Manjeet was shocked. He is strongly altruistic and he wrote a letter to the AG, detailing what had happened between him and Gani. Part of the letter read, “I do not know how far the corruption has set into the AG’s Chambers. I was there for 25 years”. The AG did nothing. PM Not Called as Witness The judge faulted the defence for not calling specific witnesses, yet, when we wanted to call a witness who could have helped to throw further light on the case - namely the Prime Minister - he refused to allow it. And it was, furthermore, a vehement denial, despite us submitting at length on the need to call him. The PM had met Azizan, and maybe could have cleared up the matter of the charge against Anwar. Mahathir had even made a statement in public saying “I was waiting to be called as a witness, I was disappointed not to be called”. So we responded and called him, but the prosecution put up a most strenuous objection against it. The judge also joined in, saying “You can’t call him, he can’t help”. We wanted to prove nothing more than the work of the conspirators trying to make a rift between Anwar and Mahathir. The court’s refusal to allow us to call Mahathir therefore deprived not only the appellant of the chance to prove his innocence, but also posterity of knowing the real truth. Mahathir, too, will never know how many people, and who, were going around trying to curry favour, and to get rid of Anwar who was seen as a danger to them. They succeeded in convincing Mahathir that Anwar would stand against him [for the post of President of UMNO and as PM]. They convinced Mahathir that Anwar was a wicked person and promised that they could produce evidence to prove it. So, My Lords/My Lady, was the learned judge fair? Was the judiciary fair? Was it following the tenets of the law? Did the judge dispense justice, or did he dispense with justice? I submit that it was contrary to justice, contrary to his oath of office. Further Submission on Gani, Manjeet and Nalla After Manjeet’s fateful meeting with Gani, he (Manjeet) wrote a second letter to the AG dated 1 October. It was a touching, thought-provoking letter, expressing his disillusionment. He took great care to ensure it remained personal and confidential, hand-delivering himself, so that it would not become public knowledge yet. On 2 October Manjeet got a call from Gani, asking him to come and see him. Manjeet went, thinking that they would discuss the issues in his letter to the AG. Instead, to his shock and horror, Gani waved the letter in the air saying, “I am not impressed!” Gani then proceeded to pursue his demand for Nalla to make a deal. Gani’s three main points were: 1. Nalla was now facing the death penalty. 2. If they hanged him once under the present charge there would be no need to hang him again. 3. In exchange for dropping the present charges against Nalla, he wanted Nalla to give false evidence against Anwar, that Anwar had asked him to get bring him some women. Gani kept changing the number. Manjeet then wrote a third letter to the AG, telling him about the meeting on 2 October. Again he expressed his deep disappointment and disillusionment with the present state of the AG’s Chambers. My Lords/ My Lady, we may ask: was Manjeet telling the truth? I put it to you that he was, because he put his head on the block. He appeared as a witness in the trial, to give the same evidence under oath. According to Manjeet’s evidence, he met the AG, and during their meeting the AG never raised or disputed Manjeet’s complaint on Gani. Instead the conversation covered what the AG was doing to improve the AG’s Chambers. Only at the end did the AG ask about Nalla’s case. Manjeet told him that his client would plead guilty, and the AG told him that either he himself or Azahar (Mohamed) would be handling the case. Subsequently Azahar also contacted Manjeet; apparently he was suggesting or demanding the same thing as Gani. My Lords/My Lady, Manjeet steadfastly refused to agree to have the charge against Nalla amended as part of a bargain. Here is a lawyer who is altruistic, totally upright. A prerequisite for a fair trial is a fair judge. And equally important is a fair prosecutor. This is a very serious charge against Gani Patail, one given as sworn evidence in court. Gani himself has not come out in the open. What is the effect? If you do not rebut, you are in danger of accepting. I ask Your Lordships, was his act in accordance with principles of law, of natural justice? I submit that the prosecutors were tainted. They had a personal agenda. They were going all out to secure a conviction by devious means. This is the conclusion the judge should have made based on the evidence. The judge should have told them to recuse themselves, to clear themselves before acting as prosecution in a court trial. In a case in Zimbabwe (reported in the Human Rights Digest) a judge hearing the case in the Zimbabwe Supreme Court allowed the appellant’s application to have the prosecutor disqualified because he had been involved in an action against him at an earlier date. There is a vital need for detachment and impartiality in the prosecution as well as the judge. In the present case it was actually proved (through Manjeet’s evidence) that Anwar would not get a fair trial due to the actions and motives of Gani and Azahar. The defence had a statutory declaration and a tape to back this up. This surely represents much more than a mere possibility. The judge failed to protect the appellant, and instead pounced on Zainur Zakaria (defence counsel), who was immediately slapped with a contempt of court charge. My Lords/My Lady, you are duty-bound to correct injustice. Their motives were suspect – that is certain from the evidence. The entire prosecution case was contaminated, vitiated by the participation of these two prosecutors. Manjeet undermined their position as prosecutors in the case through the testimony he gave under oath. The Court of Appeal judges excoriated the conduct of Gani Patail and even of the trial judge himself. They questioned Gani’s motives and even opined that the judge had acted as if he were part of the prosecution team (in Zainur’s case). On this ground alone, once again, the Court of Appeal should have at very least declared the proceedings void and ordered a re-trial with different prosecutors, that is a team without Gani and Azahar. Although there is sufficient evidence, when taken all together, to acquit the accused, as an option, if one takes just the above, at very least a re-trial can be ordered. Judgment of the Court of Appeal Under the heading “Bad Faith” the judgment mentions the issue of fabrication and extortion of evidence against the appellant. In this respect the judgment mentioned the AG (Mohtar Abdullah), Gani Patail and Azahar. Their finding was that they had no hesitation in agreeing with the findings of the judge, and that there was no evidence to support the allegation that the prosecution was involved in devious attempts to fabricate and procure false evidence. My Lords/My Lady, this finding flies in the face of justice. Among their comments was that Nalla was asked to procure women; it had nothing to do with sodomy and was therefore irrelevant. Their finding that the assertions of the defence were baseless was shocking. How could they fail to see, after we put it right under their noses? Their findings were simplistic and untenable. It is as if there was deliberate misunderstanding of the facts and evidence. What they should have been concerned with were two issues: firstly, the unfairness of the trial; and secondly, the motives (of the prosecution). Decision of the Court Among the pertinent findings were: The original notice of alibi remained valid, despite the vast difference in the dates of the amended charge. The court found that the prosecution had proved its case against both appellants, and that the evidence of their principle witness was reliable. This was a wrong finding, since in such a case, where no-one else was present, corroboration was needed. The credibility of the witness is also crucial. We have already submitted on this earlier. Both the High Court and Court of Appeal judges erred on this. There is also the issue of the alibi itself, on which we have, again, already submitted. On the matter of fabrication and conspiracy, it has to be kept in mind that it is not on the same level as provocation, self-defence or insanity. Both the High Court and the Court of Appeal fell into error in dealing with the issue of fabrication and conspiracy. There is actually no onus on the defence in such a matter. Placing the onus on the defence is an error in law. Yet, in the judgment the defence was said to have been unable to prove fabrication and conspiracy, whereas it is not a requirement. My Lords/My Lady, we have faced so many instances of misdirection by the High Court, and unfortunately these were upheld by the Court of Appeal without proper consideration and analysis of the rulings made. Even on the single matter of Azizan’s credibility, Your Lordships should have no difficulty in finding that the High Court was wrong in its assessment of Azizan’s credibility, and the Court of Appeal was equally wrong. You can short-circuit and ignore the rest of the proceedings, because this is clear beyond a shadow of doubt. I ask Your Lordships to allow this appeal. Put an end to the misery of the two appellants and their families. I am much obliged to you. Gobind Singh Deo submitted for second appellant, Sukma Darmawan We have filed a petition of appeal. The petition has 13 grounds. In addition we make reference to 3 bundles of authorities, duly submitted. Alibi I do not wish to repeat what Karpal Singh has already submitted on the notice of alibi, the requirements of 402A, etc. I adopt a similar stand to Karpal on this matter, namely, that it is mandatory. It is the right of the accused to put up a complete defence. Therefore it is also his right to have the hearing adjourned to allow filing of a new notice of alibi. An application was made, but it was denied. He was thus denied the right to adduce evidence by means of alibi. Nowhere in the records of proceedings did the second appellant adduce evidence by means of alibi. All adduced evidence was by the prosecution alone. That was our stand in the Court of Appeal, and it is the one we now take here. In the case of the second appellant no reason was given to deny this adjournment AHM: Everyone forgot… GSD: Yes, many people forget about the second appellant. Many even forget that he is sitting in the court. There was a huge difference in dates between the original and amended charge. It is not comparable with the other cases cited to justify ordering him to use the same notice of alibi.
To be asked to produce evidence of alibi for one day is reasonable. To produce it for 90 days – three months – is an enormous task The court’s attention was mainly focussed on evidence relevant to Anwar (first accused). Most of it was not relevant to the second accused, but since they were charged jointly, it can be used to clear the second appellant, too. By the same principle, evidence of alibi relevant to the second appellant alone can be used to clear the first appellant. The period of the alibi can be divided into two blocks (i) 1 January – 3 February 1993 (ii) 4 February – 31 March 1993 It was later decided that the second block was not to be disputed, because evidence of alibi had been proved and was therefore of no significance. So this now left only the first block, 1 January – 3 February 1993. Regarding the second accused for these dates, doubt can be cast on Azizan’s evidence, since the apartment was not ready before 3 February. Receipts for mattresses and a divan do not bear enough details for them to be linked to the accused. However, the judge put the onus of proof on the defence instead of the prosecution. The Court of Appeal, although noting that the Tivoli Villa apartment was not habitable, being under major renovation at the time in question, still found that, “..we have no reason to doubt or overturn the judgment of the High Court judge”. Let us consider the facts. Azizan had said that the act of sodomy took place on a bed with a queen-size mattress. The defence showed that there were no beds in the apartment until 11 February, yet the judgment stated that the defence had failed to prove it. Evidence given by Rahim Azlan, who oversaw the renovation of apartment, told the court that the renovation involved tearing down walls and retiling bathrooms, and that there was no-one living there during this time. “Were there mattresses or a divan in the apartment at the time?” “None.” Evidence was also given by Tan Seng Khoon, technical supervisor for Bandaraya Development Sdn Bhd (which managed Tivoli Villa), who was in charge of inspecting the apartments. Did you inspect Sukma’s apartment? Yes. I noticed that there were ongoing major renovations to the bathrooms and master bedroom. Did you see any carpets or beds in the apartment? None. Was anyone living there? No. Do you know the person in charge of the renovation? Yes, it was Rahim Azlan. The evidence of Rahim Azlan showed that there were no mattresses or divan in the apartment before 11 February 1993. Azizan had testified that at the time the sodomy took place there was a bed and a queen-size mattress (but not a divan) in the apartment. The findings of the trial judge and Court of Appeal judges is perverse, it flies in the face of evidence given during the trial. At first I (GSD) thought that the judge was referring only to the master bedroom, not the whole apartment. He had said “I preferred the evidence of Azizan, who said there was a bed and mattress…” Tan Seng Khoon’s job was to inspect the whole apartment and he had testified that there were no beds or mattresses in the entire apartment. How could this evidence be rejected by the judge? The judge further found that the evidence of Rahim Azlan was suspect simply because he was a friend of Sukma. A witness must be treated as a credible witness unless he is proven to be otherwise. There were no cogent reasons – in fact none at all – given for rejecting Rahim Azlan’s evidence. It was wrong in law and taints the judgments of both the High Court and Court of Appeal. In fact the evidence given by Rahim Azlan, Tan Seng Khoon and the lady who sold the beds (to be mentioned later) was all unchallenged, and therefore stands. If we can prove that there were no beds or even mattresses in the apartment until 11 February, then surely this merits an acquittal for the second appellant. The second appellant has succeeded in raising a reasonable doubt. There was misdirection in terms of procedures adopted. At the commencement of the afternoon session, the court was informed that Mr Vernon Ong was present on behalf of the Bar Council Gobind Singh Deo continued his submission for the second appellant. Tan Seng Khoon had testified that, “There were no beds in the apartment”. Ms. Leong Lee Yan, witness on behalf of the furniture shop which supplied the beds, confirmed this by means of proof of purchase. This evidence concerning the date of purchase was never challenged. It is in the court records, including during cross-examination by Gani Patail, that the beds were supplied one week after 4 February. In fact it was Gani’s own contention: “I put it to you [Leong Lee Yan] that the beds were only supplied after 4 February”. Rahim Azlan’s evidence that there were no beds in the apartment before 11 February was also never challenged. Instances of Prosecution Misconduct in the Trial Gani Patail objected to the application for adjournment of the court to file a new notice of alibi without good reason. The public prosecutor, not yet knowing the whereabouts of Sukma during the time in question, labelled his defence of alibi a sham. This was wrong, unlawful. The prosecution hid evidence in their possession [which they acknowledged they had obtained from the police], knowing fully well that they were valid instances of Anwar Ibrahim’s whereabouts . They put the defence through a lot of trouble searching for information which they already had. In Sukma’s case they did not know, but it was wrong to put the defence to so much trouble because the onus should not have been put on the defence at all. Irregularities in the Manner in which Impeachment Proceedings Conducted The judge only gave his finding at the close of the trial proceedings, instead of earlier (when it was applied for). I refer Your Lordships to another case, in which the judge stated that if the credibility of a witness was found lacking, his entire evidence must be rejected (not just the incredible parts). Further cross-examination was allowed after the impeachment hearing closed. This was wrong. On 6 September both the prosecution and the defence agreed to submit on the application to impeach Azizan. Yet on 7 September the judge already made a ruling that Azizan’s testimony was reliable. No reasons were given. Christopher Fernando (counsel for first accused) asked the judge to reconsider, but the judge said, “No, I have made it and will not reconsider. I will give the full reasons when I make my written judgment”. The Judge said “It is the finding of this court that Azizan’s evidence is reliable and that the submissions during the impeachment proceedings were not convincing”. In coming to this decision he did not consider adduced evidence from the trial itself, but instead limited his consideration to arguments during the impeachment hearing. This was wrong. The prosecution submissions had not even commenced yet when the judge gave his decision on impeachment. Therefore the decision failed to consider all the evidence, because it excluded that of the prosecution. Evidence must include submissions by the prosecution. It was a miscarriage of justice because it was a violation of principles of law. It was the appellant’s right to have all submissions heard before a finding was made by the judge on the impeachment. My Lords/My Lady, miscarriage of justice is synonymous with injustice. Justice means not only a just decision but also a fair trial. Denial of a fair trial is unjust. A fair trial would have required the judge to listen to all submissions related to Azizan’s credibility before making a finding. Therefore, injustice has occurred. If a witness is impeached, there is no weight to any of that witness’ evidence. Therefore this constitutes a very substantial right. In this case, the whole case would have collapsed and the appellants been freed. This misdirection is fatal. The High Court judge had especial responsibility to make a careful examination of Azizan’s credibility, because, unlike the Court of Appeal judges, he had an opportunity to observe Azizan himself. He had personal, first-hand experience, and could therefore be expected to make a more rigorous assessment. The present judges should now look at the aspect of miscarriage of justice due to misdirection, and failure to follow law and procedures. Whether the facts were correctly or incorrectly analysed is secondary. Your Lordships are respectfully advised to follow the case of Mokhtar Hashim in this matter, rather than other cases. Evidence Not Considered Properly I would now like to submit concerning some instances of evidence which should have had a bearing on the judge’s findings. I ask Your Lordships to make a fresh assessment and analysis. Azizan said that he was sodomized by the appellants between January and March 1993. When Azizan was asked how he felt when, on entering the apartment, he found Anwar there, he replied, “shocked”. (Why? Because he knew him). This was obviously an attempt to show that Azizan was afraid at the sight of Anwar. Yet, if this was so, why did Azizan continue going to Anwar’s house between 1992 and 1997, as testified by Azizan? Later, under re-examination Azizan testified that he was not sodomized and that was why he continued going to the house, and remained as Dr Wan Azizah’s driver. Even later in the trial he changed his story again, saying he only meant he was not sodomized at the house. Is this statement believable? Azizan explained away his continuing to go to the house by saying that at the house he felt safe because the family was around. Azizan was asked how many times Anwar sodomized him before 1993. He replied, about 15 times, and that it had taken place in various locations such as the Petaling Jaya Hilton and the Subang Holiday Villa, and also in the reception room at Anwar’s house. Azizan said that the episodes of sodomy had caused him severe pain. If that were so, why would he continue going to the house? Yet another part of his evidence stated that between 1992 and 1997 he had no problem with Anwar, and that was why he continued going to the house. This is in stark contrast to the severe pain… When, during re-examination, he was asked to explain the contradiction he could not do so. It is clear that there is at least reasonable doubt as regards his explanation. What is required from the present judges is a maximum and more critical evaluation of evidence adduced by the prosecution. The very simple reason for it (the contradiction) is, in fact, that Azizan was never sodomized. Why was a medical examination performed on Sukma but not on Azizan? In Azizan’s case the excuse given was that it had happened too long ago. With the charge being made after such a long delay, the appellant was thus deprived of a chance to clear himself through medical evidence. In 1998 Azizan made a cautioned statement in which he claimed that Anwar had sodomized him at Tivoli Villa in May 1992. The statement was recorded by Inspector Rodwan, and the charge based on it was prepared by SAC Musa Hassan. How could Azizan then claim in his testimony during the trial that he was never asked about the date and therefore did not state it? He also testified that he had “no problem with Anwar from 1992 to 1997”. It was serious failure on the part of the judge not to have considered all this. Charge of Abetment According to the evidence given by Azizan, on the afternoon in question he went to Anwar’s house where he met Sukma, who invited him (Azizan) to go to his apartment. Azizan went there and, finding the door open, went in and saw Anwar inside, at which he was shocked. The sodomy then took place. At no time was it mentioned that Sukma abetted. Azizan’s evidence said only that Sukma invited him to come to the apartment, and then watched while the sodomy took place. This should not be considered abetment. When Sukma invited Azizan to the apartment he did not state the purpose of the visit, and therefore the element of abetment is absent.
The judgment, however, stated that Sukma invited Azizan to the apartment at a time when Anwar was also there. That is, he set it up. This was ruled to be abetment, because it showed that Sukma participated in steps of a criminal act. I submit, Your Lordships, that it is absolutely necessary to connect the accused, without doubt, to the steps which are themselves criminal. Two entirely separate and distinct questions have to be considered concerning the contents of a confession: (i) whether they were said (ii) whether they were proved A confession must be voluntary and truthful. The learned judge only considered the “voluntary” aspect, but failed to look at the “truthful” part. This was a failure on his part. This is especially vital when the person confessing is the one who stands to be convicted. The court must examine the truthfulness despite the confession. There needs to be corroborative evidence. Not only must there be corroborative evidence, but the court must also be satisfied that the confession is true. I submit that there was no basis to support the charge of abetment, due to the judge’s failure to record a specific finding on participation in criminal steps. The court adjourned at 4.20 pm. To reconvene the following day at 9.00 am, Gobind Singh Deo to continue submission.
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