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Sunday, 30-May-2004 11:45 AM ANWAR IBRAHIM Day Six of the Appeal Hearing in the Federal Court 19 May 2004 The Bench: Abdul Hamid Mohamad Rahmah Hussain Tengku Baharudin Shah Tengku Mahmud Counsel for the Appellants: Christopher Fernando Karpal Singh Sankara N Nair Pawancheek Marican Zulkifli Noordin Saiful Idzham Ramli Marisa Regina Kamar Ainiah Kamaruzaman Jagdeep Singh Deo Gobind Singh Deo Ram Karpal Singh Shamsul Iskandar Mohd Akin Prosecution: Abdul Gani Patail Yusof Zainal Abiden Tun Majid Tun Hamzah Mohd Hanifah Zakaria Shamsul Sulaiman Ishak Mohd Yusof Mohd Azar Watching brief for Malaysian Bar Council: Malik Imtiaz Sarwar Ang Han Leng Foreign Observers: Marzuki Darusman (former AG of Indonesia) representing the Inter-Parlimentary Union Desmond Fernando (Chairman, Sri Lanka National Commission of Jurists/ former President of International Bar Association) representing The International Bar Association (IBA) Mark Trowell QC representing the Australian Bar Association/ Western Australian Bar Association and the International Commission of Jurists Upali A Gooneratne (Chairman Legal Aid Commission) representing LAWASIA Rosario T Setias-Reyes (Governor for Greater Manila & Chairperson, Commission on Bar Discipline) representing the Integrated Bar of the Philippines. Gani Patail (GP) submitting for the prosecution. Alibi The primary purpose of 402A is to alert the prosecution that alibi may be needed to prove the innocence of the accused. It is to give the prosecution time to check the veracity of the alibi, in case the accused attempts to fabricate such evidence. It is to guard against the defence springing surprises. Ultimately it is to uphold justice, by proving the veracity (or otherwise) of the alibi. It will prevent wasting judicial time, as well as avoiding the accused having to go through a lengthy process. As to the defence’s contention that the prosecution deliberately kept back information concerning the movements of the first appellant during the alibi period, the late AG did say that they [AG’s Chambers] have all the relevant documents, including, later on, the diaries given by the police which cover all the details. The prosecution did also supply the diaries to the defence. Only a certain period was not covered, and this was explained in the court and accepted. My Lords/My Lady, the 10-day period specified in 402A for filing a notice of alibi gives adequate time to check the evidence, even though the incident may have happened a long time ago, so the long lapse of time should not be a reason for contention. Furthermore, since the defence of alibi is a significant and substantial right, it would not be fair to the accused to deny him that right. 402A is not meant to deny him that right, that substance for his defence. If we were to accept Mr Karpal’s argument that all the alibi evidence should be expunged from the trial records, this would deny the accused that right. Concerning the right to file a new notice of alibi to comply with 402A, it should not be a problem if permission was not given. There can be other reasons – such as ignorance of an accused as to the requirement to file a notice – and ways can be found to put it right. Therefore withholding permission to file the new notice of alibi did not amount to denial of the accused’s right, which can be given in other ways, can be got around. It is just a general rule. If you know [of the requirement] and still fail to do it, then it is wrong, a failure. But here the prosecution objected, saying the filing of a new notice was unnecessary, therefore the accused did not do wrong. Therefore the High Court judge was right to admit evidence related to the alibi. Since the defence produced that evidence during the trial, they cannot now come and ask for it to be expunged. Although 402A is not mandatory, 399 of the CPC definitely is. The defence should have called the maker of the report as their witness, who could then have been cross-examined. It does not effectively cause denial of defence material, but merely causes inconvenience to the prosecution. Abd Hamid Mohamad (AHM): Can we just say, Section 11 states that alibi defence is admissible, that compliance with 402A is not essential? You won’t go so far as to say that 402A is irrelevant..? GP: No, no, not at all My Lord. [But] the important thing here is: one cannot deny the accused a substantial part of his defence unless he wilfully and knowingly refuses to comply with 402A. The prosecution is of the view that the court was right to invoke the proviso in Section 60. One must be satisfied that there is no substantial miscarriage of justice, then it is correct to invoke it. If it is not allowed, then there will be a miscarriage of justice. One has got to be specific, one cannot just be general. Judge Should Have Recused Himself The first appellant did not succeed in showing evidence of probability of bias because of a link between the judge and PM Mahathir. The only link shown was that the judge used to be a director in a company of which Mahathir’s son was also a director. This was only up until 1990, too long ago to have any effect, the alleged danger of bias too remote. In any case, what has it to do with the case, since neither Mahathir nor his son were called as witnesses in this case? The [trial] judge was criticized for his refusal to call the PM as a witness, whereas it was actually the prosecution which took the initiative in this, on the grounds of relevancy of evidence. One cannot just call anyone, it must be relevant evidence. Judge’s Failure to Look at Circumstances Surrounding Confession Mr Gobind raised the matter of the judge failing to look at the circumstances surrounding [Sukma’s] confession. It is our contention that in this matter (i) the judge referred directly to the law, and (ii) there was no misdirection because he did not go against any law. The prosecution only needed to prove beyond a reasonable doubt. In the judgment in Sukma’s case, the judge said: “The prosecution proved beyond a reasonable doubt that the confession was voluntary.” The prosecution fulfilled the requirement, therefore there was no misdirection. Concerning the allegedly smelly, dark, damp and dirty cell in Bukit Aman, we would like to emphasize that this was not a cell at just any police station, it was at the police headquarters. We went. The finding of the judge was based on his own examination of the cell. It was clean; there was a toilet and a shower. If one were to bathe, the floor would not get wet. So there is no basis [for Sukma’s allegation]. When he was taken for interrogation, all the procedures were followed correctly - his hand-cuffs removed once he was in the interrogation room, etc. The judge even examined Sukma for injuries. He wanted Sukma to remove his clothing so he could check his entire body, but Sukma himself said there was need because there were no injuries. Therefore there is no reason to think that it was not voluntary. The judge even asked whether Sukma had anything else to say. If his confession had not been voluntary, he could have said something else at this stage. AHM: Sorry, can I take you back a bit - I need clarification. Was it the same confession? GP: Yes. The second appellant tendered the confession himself at the trial. AHM: Later? By the prosecution, for mitigation purposes? GP: Yes. He tendered a whole file which included the confession as one of its parts. If his confession had not been voluntary, he would not have tendered it. Mr Gobind claimed that the judge focussed only on the part [of the confession] on sodomy and ignored the rest. But the judge said in his judgment that: “There is also evidence that Sukma brought Anwar to the flat for the purpose of sodomy - so that contention is not true. If you tender the confession, you are saying it is the truth; you cannot now say it is not voluntary. That is not honest, not true and not right. It only shows that it was voluntary. AHM: OK. Continue where you left off. (GP continues) Regarding the confession that Anwar had sodomy with him “2 or 3 years ago”, Sukma did mention that he could hardly remember, therefore one should not hang too much on the date. If it took place in 1990, Sukma would have been under age. Then, in law, one can reject parts of the evidence. Concerning the findings of Dr Zahari, they were at best inconclusive. He said that there were no injuries to suggest penetration of a blunt object, but that he could not discount the possibility that he had been sodomized. AHM: But this was not the point anyway. GP: Agreed, but Karpal Singh brought it up. The judge had said that the confession seems to be spontaneous and detailed, giving the impression of being genuine. AHM: I’ve been thinking – at what stage should the judge look at the contents? Should he look at the voluntariness first, before looking at the contents? If he decides first it would be better. Otherwise, if it is only after reading the content, he might be prejudiced. GP: He must look at the contents together - as a whole – otherwise it is unfair to the accused. AHM: It may be true, but not voluntary… What if, after looking at the contents, then he found it was not voluntary? Wouldn’t this prejudice the judge, the court? GP: It is not proper to say that a judge would be influenced. Would a judge be influenced by, for example, newspaper reports? Surely the judge is able to be professional. The defence claimed that Sukma was told by Inspector Rodwan what to say [in the confession]. But it is told in such a way that only a person who was there would have been able to tell – the details of the narration are too intricate. This is the way to see. AHM: Yes, it may be true, but that does not prove that it’s voluntariness. [GP] I refer Your Lordships to the case of Juraimi (which I feel is more relevant than the Mokhtar Hashim case). In this case Justice Gopal Sri Ram found that the confession was too detailed to be the work of someone else. As to whether Azizan was a credible witness, let us first focus on the meaning of “credible”. It means, “capable of belief”. Azizan’s evidence is believable. Every witness has a right to be believed unless his evidence is incredible, inconsistent, and therefore doubtful. What happens when there are inconsistencies? Do we have to reject the whole evidence? It is bound to happen even with an honest witness. It is only human to make mistakes. When trying to remember something long ago, there are bound to be some small mistakes, inconsistencies. If there are no discrepancies it actually shows that it is not safe, not reliable – inhuman. When discrepancies concern immaterial details they should be disregarded anyway. Character of Azizan His khalwat (close proximity) case was not relevant. It was also wrong to use evidence he gave in the first case to show his incredibility in the second case. Evidence from a different case cannot be used as evidence to impeach in the current case. Regarding the accusation that Azizan was given remuneration [for giving false evidence], no questions were asked about remuneration [during the trial]. There is no proof that conspirators were behind the case. For example, the alleged involvement of Rahim Thamby Chik - no documents were produced. Even for those for which documents produced (a statutory declaration by Megat Junid, a letter by Ummi Hafilda, and others), these were not linked to the individuals and therefore fail to show conspiracy. AHM: Were they produced as documents? GP: They were put in but no witnesses were called. AHM: Are you saying, they were not properly linked, therefore not admissible? GP: Yes. No witnesses were called to corroborate. It should therefore not be regarded as evidence. I am only mentioning this because the defence keeps harping on it. The documents do not fulfil the requirements of the Evidence Act. AHM: What is your stand on the admissibility of documents stamped by a Commissioner of Oaths? GP: I… AHM: It is only what that person says… GP: It cannot stand by itself, the maker must be called. Gani then quoted a case in England involving a child. In this case the dates were vague and the place not mentioned, but it was allowed. The judgment recognized that it is not necessarily important to specify precisely time and place. In the Ho Lip Sing case, quite a long stretch of time was also involved – a two-month period, at “about 7 pm”. AHM: What did the judge say? Valid? GP: The appeal was allowed; there was no specific comment by the judge but he made the observation that it is not uncommon. AHM: But the appeal was allowed… GP: Yes, but the judge said it was not uncommon. The judge’s decision to allow the appeal was not on that ground. Gani cited another case. AHM: Dates? GP: Between June 1995 and September 1995. AHM: Place mentioned? GP: Sometime in the afternoon. And the place was mentioned In our law there is no statutory limit to initiate proceedings, as long as it is done in accordance with the law. It must be brought to court as soon as possible after investigations have been completed. In the present case this was done. Regarding the defence allegation of prejudice, there must be some form of evidence, it cannot just be in general. It is not right to say that, because Azizan did not make a police report immediately he should not be allowed to make it so much later. Credibility of Azizan Regarding the allegation that the dates were given to Azizan by the police – “one night 6 years ago” as my learned friends keep emphasizing – this cannot have been fabricated. SAC Musa and others all gave evidence, it is quite clear. One should not go on and on unless one has proof, there must be some evidence. Why Did Azizan Go Back to Work for Datin Seri Wan Azizah? Azizan went back to work there because he was asked to by Datin Seri Wan Azizah and because he was fond of the children. However, he was scared of Dato’ Seri Anwar. This is a satisfactory explanation. Concerning the allegation that the judge erred by deciding on the impeachment before the prosecution had made its submissions, the trial judge allowed impeachment proceedings to be taken […not audible]. One cannot interfere in the finding of facts unless there is a very, very clear departure from the norm. In the case of Mokhtar Hashim, the defence asked the judge several times to review the decision on the impeachment of the witness, even though the prosecution had submitted. Prosecution’s Refusal to Produce Evidence The prosecution did supply the diaries. Only the 1993 diary could not be produced, “because it was not in police possession”. When they went to the office.. AHM: Which office? That of the first appellant? GP: Yes. AHM: How come [the diaries were] in police possession? GP: The police took possession. After they started the investigation they went to take [the diaries]. AHM: Whose diaries? GP: The first appellant’s official diaries. AHM: Oh, not the diaries kept by the police of his movements? GP: No. These diaries were prosecution exhibits. In his testimony SAC Musa Hassan mentioned the diaries for 1994-1998, excluding that for 1993 which was not in the possession of the police. Therefore, the prosecution did not deliberately withhold the diary because it did not have it. The cross-examination on Azizan was very severe. We all – the prosecution and the judge – knew about his apparent confession that he was not sodomized. The Court of Appeal judges were right to accept the High Court judge’s finding, because he was at an advantage, could observe fully and at first hand. They deliberately did not interfere with the given evidence. It was not a failure, but a matter of trusting a “superior” judgment. Azizan went to see Karpal Singh in August 1997, about the Anwar matter. The question of his credibility is best left alone. AHM: Wait, what was the chronology, when did Azizan go to see Karpal Singh? GP: It was before the investigation. He went to see Karpal Singh to raise this matter. AHM: Is it in the evidence? GP: Yes. It was not challenged. He went to see Karpal Singh because he is a prominent lawyer. KS: I advised him to see the Prime Minister. As an opposition politician I saw a trap, so I asked him to go and see the PM. Gani continued: Christopher Fernando (CF) said that Azizan should not be believed because he had said he decided to report the incident of sodomy “for the sake of honour and religion”, and then he committed khalwat, and therefore he is not of good character. He then quoted a case in which the judge said that a person who has been convicted cannot be believed. However, it is our opinion that one cannot reject his evidence on that ground alone. The defence did not manage to link Azizan’s appointment to the conspirators. […. not audible] Azizan’s evidence was corroborated – by the police. GP: Azizan was never challenged. AHM: On these points… GP: On this issue. CF: (interrupting) It is Musa Hassan who should be challenged in this matter, not Azizan. AHM: (to GP) So, Azizan was never challenged. (to CF) If Musa Hassan was challenged, please draw my attention to it later. CF: Yes, My Lord. I will. (GP continuing) The Court of Appeal did look at corroboration evidence, because they realized it was necessary, especially at that level. They found that it had been corroborated. And another point: on some points the Court of Appeal did not ignore or fail to see. They just found that they did not need comment. I would like to bring the attention of Your Lordships to the submission of Gobind Singh Deo (GSD), that at the High Court the defence succeeded in showing more than reasonable doubt. At the High Court, the second appellant relied on evidence of alibi of the first appellant. AHM: You mean that the second appellant did not produce his own alibi? GP: Yes. So he cannot be said to have shown reasonable doubt through his alibi evidence. Whereas Tan Seng Khoon only testified as to the master bedroom/bathroom, the judges considered the whole apartment, which TSK had not seen or noticed. So, again, there was no reasonable doubt. Whether Azizan Was Sodomized or Not CF had said that when Dr Zahari examined Sukma there was no sign of penetration. But when cross-examined by Azahar, Dr Zahari admitted that he could not say definitely that Sukma had never been sodomized. Thank you, My Lords and Lady. Submission by Yusof Zainal Abiden (YZA) for prosecution. Fabrication of Evidence Such is the evidence brought by the first appellant that it is only collateral fact, and not directly related to the charge. AHM: Which evidence are you talking about? YZA: That there was a conspiracy. In order for evidence to be accepted, to be credible, one must be able to show a high degree of probability. This would be achieved in a case where several accused give the same evidence, or the same evidence is produced in two cases. But here, there are no compelling factors to persuade us to accept it. Regarding the testimony of Manjeet Singh Dhillon (MSD), it is the same principle. There was no supporting evidence from other sources. It is our submission that it is baseless. It does not pertain directly to the case. The matter of using the death [penalty] threat does not arise, because at that point the charge was already preferred against Nalla(karuppan). In addition, the case of Nalla is not similar to Anwar Ibrahim’s case – it was not a case of “moral corruption”. Gani Patail did not even know about Nalla’s case. Manjeet was described as being so principled. Yet, when his client was offered a deal he replied, “OK, if that is that is your request I will convey it to my client”. How principled was that? Until today no tape has been produced. There was none then, and until now there is still none. What inference can one make? - it was mentioned but not produced. CF: Objection. A statement from the Bar is not relevant. It is not adverted to in the trial. AHM: (to YZA) Do you want to refer to the affidavits by Gani Patail and Azahar, filed before the High Court judge, to strike off the motion? (to CF) What is your objection? CF: It was never adverted to in the trial. AHM: But was it filed in the court? YZA: There was no statement by Nalla, or through MSD, that what Nalla said about Anwar in his affidavit was untrue. AHM: The affidavit you want to refer to, was it part of the Court of Appeal hearing? YZA: Yes. AHM: Why strike off the charge when the Court of Appeal is already hearing? It is like cutting off branches when the tree is about to be cut down. CF: I think this is a case of not being able to see the wood for the trees. We are talking about MSD’s evidence. There were no affidavits in response to this. They are objecting to Nalla’s statement being included, so why is there a different principle for the affidavits they want included? They should not be allowed to blow hot and cold like this. It was filed, but not adverted to. AHM: They were filed. Worthy or not is another matter… CF: It was not part of the record, because it was not adverted to. AHM: If it was filed, it is part of the records. [Recess 1.00 – 2.30 pm] AHM asked for clarification on the respective stand of the prosecution and defence. CF: The evidence of MSD was never referred to in the affidavits, therefore it was not challenged. Furthermore, there was no application by the prosecution to have those affidavits brought before the court. YZA: [… not audible] MSD was cross-examined, he had a chance to give his version of the story. But it was only his own opinion. AHM: If he had referred to them, he could have given an opinion. Now we don’t know what he would have said. (to YZA) Do you agree, the affidavits did not refer to MSD? YZA: Yes, I agree. YZA continued: There is nothing to link the evidence of MSD to the present trial. It was irrelevant. There is no evidence to suggest GP or Azahar tried to influence MSD’s client. Conspiracy Theory It had been the conclusion of MSD that evidence against the first appellant had been fabricated, but this was not proved. There was also an attempt to link Aziz Shamsuddin to the alleged conspiracy. His statement that Anwar was not fit for high office because he was immoral and a CIA agent, was not relevant because it was not linked. Regarding Jamal Abder Rahman’s evidence, the offer of USD200,000 through Mustapha Ong was conveniently omitted. There is also no evidence to show that the PM played any role in the alleged conspiracy. Similarly, concerning the testimony of Azmin Ali, one cannot hold to it unless one calls witness in support. Zull Aznam, a police officer with 20 years experience, alleged that on 28 July (1998) Azizan had told him that he (Azizan) had been bribed to give (false) evidence against the first appellant – “Talkin Untuk Anwar”. But nowhere in his report was this story (of Azizan’s being bribed) mentioned. Zull Aznam was at the time Anwar’s ADC. He did nothing about it. Why? Because he himself doubted it. Being a policeman he could have reported it to his superiors. It is our submission that the evidence of all the people called to show a conspiracy and fabrication of evidence could not be accepted as useable, because it was either hazy, mere opinion or not credible. I am much obliged, Your Lorships. Rebuttal by Defence Rebuttal was begun by Gobind Singh Deo (GSD) for the second appellant. My Lords/My Lady, I do not want to repeat, but just to raise a few points. 402A It is our submission that the terms of 402A are clear: “No evidence shall be admitted unless a notice of alibi is served.” 402A defers on Section 11. If one looks in detail at Section 11, it gives discretion to the judge under certain circumstances. However, these provisions do not exist in 402A. We cannot equate ourselves to England. The prosecution said that the AG has waived the provision. It is our contention that he does not have the right to do that, to waive a provision specified in a law. AHM: Do you now want to absolutely disregard all evidence (for the reason stated), or do you want the court to reconsider the evidence in case the court rejects your argument about the notice of alibi not being allowed? GSD: The defence can use evidence connected to the alibi although it is not permissible as evidence of alibi per se. Some of the evidence for Anwar can also be used by Sukma, but not all. No evidence of alibi was adduced by the second appellant. In fact he was never given a chance. If the court asks: What is the joint defence? - our answer is that it is one of alibi. The judges of the High Court and Court of Appeal could not understand this distinction [between the two appellants]. For the period 4 February – 31 March [1993] the second appellant succeeded in raising reasonable doubt, because Anwar was not able to have been present. Since it is a joint charge it covered for both. Therefore, if we can just raise doubt for the period 1 January – 3 February then the case must fall. And we have done that. Azizan said that he was sodomized on a bed, so our argument has focussed on the bed. GP claimed that Tan Seng Khoon’s evidence was not reliable because he did not see the whole apartment. With respect, GP misses the point: there were no beds at all in the whole apartment. Sukma said so, Rahim Azlan said so, Tan Seng Khoon said so, and the lady who supplied the beds [Leong Lee Yan] said so. What else could we have been expected to do? How else could we have proved it? We looked at every file, invoice, etc. to find and to show proof. All we needed to do was to raise a reasonable doubt. AHM: I am thinking about “doubt”. Assuming you do not succeed in proving the whole charge to be not true, but you can prove that it was not done at that time and at that place, the case still cannot stand? GSD: Yes, exactly. This is evidence of eyes – three pairs; plus the evidence of documents from the shop. Credibility of the Confession GP said that the trial judge did consider facts and circumstances. Certainly he said he did, but if we examine the whole trial and his judgment we see that this is not so. One has to apply the double test: (i) whether or not he said it (ii) whether or not it was true and trustworthy If there is any sign of inducement, threat or promise, it must be rejected. The first test must be satisfied first, only then can one proceed to the second. To test the second test, one must be in a position to compare it to other evidence and surrounding circumstances. The evidence in question must fit in with that other evidence. One part of the evidence in this case – when Azizan said that he was not sodomized – clearly does not fit in with the rest. And it is the same with the evidence concerning the dates. In these the judge failed to apply this rule. Why did Sukma suddenly make a confession after 12 days [of interrogation]? He told the court that it was because he had kept the secret too long and wanted to get it off his chest. This does not make any sense; the judge should have picked it up. It is not disputed that Sukma’s confession was used in the earlier trial, but it was done without his knowledge, as a grounds for mitigation. It was done by the lawyer appointed for Sukma by SAC Musa Hassan. What GP fails to mention is that Sukma did explain in his evidence, that he did not know his confession was to be used in court as part of mitigation. He only learned of it from GSD a few days later. Why does GP make so much of his confession being used in the earlier trial? In any case, why would it be used by any lawyer? – there was nothing in it to cite as grounds for mitigation. When asked in court why, Sukma said: At the urging of Tuan [SAC] Musa. What do you mean? I mean Tuan Musa forced me to do it. Musa recruited Mohd Don to act as his lawyer. Mr Ganesan had been appointed by the family and had applied by letter to see Sukma, but this was never allowed. Why? Does this not raise even a little suspicion in our minds? GP says that there was no misdirection due to not looking at the evidence and circumstances in totality. But the Notes of Proceedings show that the judge made his decision on impeachment before hearing submissions from the prosecution. It is not just a matter of looking at the evidence, but also of asking for explanations from both sides, then basing his decision on his assessment of these two. If he had not even heard the prosecution side, how could he compare explanations? The explanations, too, must fit in with the rest of the evidence and circumstances. GP got the wrong end of the stick regarding my points. He was out of point. The prosecution says that the trial judge properly directed himself concerning whether or not there was enough evidence to convict. But the judge should have seen that Azizan was making two separate and different observations. Azizan’s first statement did not say that Sukma took an active part in the sodomy. The only evidence of that comes from the confession. The judge, in his judgment, said he just took the confession. Nowhere does he say that he took notice of any other statement, that is, checking it against other evidence to verify. Without even looking at what Azizan said, etc., have we not already raised a reasonable doubt concerning the confession – which is the basis of the whole case? My Lords/My Lady, we cannot send Sukma to jail for 6 years based on this kind of evidence. I urge Your Lordships to set both appellants free. The court was adjourned at 3.40 pm.
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