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Sunday, 16-May-2004 5:07 PM ANWAR IBRAHIM Day Five of the Appeal Hearing in the Federal Court 14 May 2004 Gobind Singh Deo (GSD) submitting for the second appellant. Confession of Second Appellant A trial-within-a-trial was held to rule whether (2cnd appellant) Sukma’s confession was voluntary and therefore admissible. In his decision the judge found no reason to exercise his discretion to exclude the confession, since it had been made, beyond a doubt, voluntarily. The Court of Appeal judges concurred. My Lords/My Lady, it is my submission that the learned trial judge misdirected himself by failing to consider the circumstances surrounding the second appellant at the time when he was asked to make the confession. At the trial the appellant made a number of complaints about the circumstances. The judge dissected these complaints into three different sections, and judged them one by one. He failed to analyse the circumstances as a whole, their cumulative effect on the mind of the accused. Indeed, the judge looked more at the behaviour of the police who took the confession than on the state of mind of the accused. Let us recall some of these circumstances. Firstly, the arrest. Without any prior warning, the accused was suddenly arrested one morning at a café, in full view of members of the public, and handcuffed. His sister, who was with him at the time, later testified that Sukma looked scared and had requested a lawyer. Why was there a need to do it in this way? It would seem to be a scare tactic, a deliberate attempt to instil fear in the accused. He was also subjected to a search, which did not turn up anything, but again served to put fear in the accused. Sukma was taken to his apartment. The door to his room was locked, but although the police were informed by his sister that the key was available, they broke down the door. Try to imagine the state of mind of the accused: he is in handcuffs in his own apartment and the police broke down his room door. This unnecessary action by the police was, again, meant to instil fear. The accused was now taken to the police headquarters, Bukit Aman, where he was placed in solitary confinement in a cell measuring 6x10x10. Sukma later testified that the cell was dark (windowless), dirty, damp and smelly. Why was all this necessary – the locality, the circumstances? During the trial-within-a-trial the judge visited the cell at Bukit Aman, but it had by then been cleaned up. (GSD had seen the cells there earlier and could confirm the accuracy of Sukma’s description). In his judgment the trial judge said: “I found it to be light, clean and not smelly. One cannot expect it to be like a 5-star hotel.” Sukma suffers from asthma and needs medication on a regular basis, yet when he requested medication while in custody it was initially refused. What possible reason could there be for this? The lights were kept on all night. Why was this necessary? Sukma testified that he was subjected to intense (the word he used was “intensive”) interrogation on a daily basis by an interrogation team. While in custody he was also obliged to undergo a very humiliating physical examination by a medical officer, during which detailed pictures were taken of his anus and private parts. These pictures were subsequently marked as exhibits for the trial. AHM: Did all this take place before his confession was made? GSD: Yes, during the interrogation period. The Appeal proceedings records state that the intense interrogation lasted from 8 – 15 September, in two sessions every day: 9.00 am – 12.30 pm and 2.00 pm – 4.45 pm. He was questioned continuously by a team of 4 police officers, with constant changes from one to another. He was treated like a common criminal, and he was not even charged yet. During the trial, one of the interrogation officers was asked at what point they were satisfied with Sukma’s confession, to which he responded, “We were only satisfied with Sukma’s answers on the final day.” Asked again whether they had been satisfied with his answers on the 1st, 2cnd or 5th days, the officer replied, “No, only on the last day.” This shows that there was an expected answer, an expected content to his confession. The confession was thus not only probably involuntary, it goes beyond that: it was not even his. It was recorded in the evidence that at one point the accused did not confess. Why, then, after 15 days did he confess? All this was not taken into consideration by the judge.
In another case involving a confession, the judge said that a court must evaluate the evidence and also the surrounding circumstances (as a whole) in order to discover whether an accused has been in any way pressured or coerced. In the case before us now, the appellant did say the things in the confession, but after being subjected to what circumstances? We cannot separate these two things when making our decision. Why did the police refuse Sukma’s request for a lawyer to be present? Was it because they knew that what they were doing was wrong in law and against procedures? My Lords/My Lady, all the defence had to do was to raise a reasonable doubt, not prove conclusively. Surely there is enough evidence there to achieve that. I am not sure whether the learned trial judge actually ruled that the confession was true, since it was not stated clearly in the judgment. The judgment in fact seemed to focus only on finding that the first and second appellants did sodomize Azizan, that is, were guilty as charged. The cautioned statement by Azizan contains a record of the entire sequence of events. There are conflicts in fact between Azizan’s cautioned statement and Sukma’s confession. The confession says that Sukma committed sodomy with Azizan with Azizan’s consent, but Azizan, in his cautioned statement said it was without his consent. Which of these is true (if any)? There is also a conflict in dates. Referring to the alleged act of sodomy, Sukma’s confession states it was “2 or 3 years ago” – which could not be earlier than 1995. Yet Azizan’s cautioned statement specifies 1993. I don’t believe Sukma was ever questioned on this contradiction during the trial; there is no record of it. Does this mean that the judge simply ignored it? In fact it was explained away by saying that Sukma couldn’t remember clearly. This was a clear misdirection. The judge failed to look at supporting evidence.
Medical Examination of Sukma The report on the physical examination conducted by Dr Zahari on Sukma was referred to during the trial. In it Dr Zahari had stated, “I find as fact that there are no signs of penetration of a blunt object having occurred on Sukma’s anus.” In his judgment the learned trial judge said, “I attach no weight to the doctor’s evidence – it is inconclusive.” Dr Zahari was called again as a witness in the trial-within-a-trial. He testified that there was no medical evidence that Sukma was ever sodomized. The court, however, ruled that this testimony was not relevant. During re-examination of Dr Zahari by defence counsel Gobind Singh Deo, Dr Zahari was asked, “What were your findings? Had Sukma’s anus been penetrated by a blunt object?” Dr Zahari replied, “I found no evidence that a blunt object had ever penetrated his anus.” Gani Patail later argued that Dr Zahari’s evidence did not prove that Sukma was not sodomized, since Dr Zahari was not an expert. Dr Zahari agreed that he could only say, generally, that Sukma’s anus had not been penetrated by “a blunt object”. In his confession, Sukma had said that he had had homosexual relations with Anwar “for years”. This part of the confession must be false, since evidence of it would surely have shown up during the medical examination. The judge swept aside all this. He just accepted Sukma’s statement in the confession that he and Anwar had sodomized Azizan. In effect he therefore rejected the other 99% of the confession. My Lords/My Lady, we can only conclude that Sukma (and Anwar) never sodomized Azizan. We are of the view that the charges were trumped up, the evidence fabricated. I am much obliged. The court adjourned at 10.10 am. Hearing would resume on 19 May at 9.00 am, for submissions by Gani Patail for the prosecution.
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