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Sunday, 30-May-2004 11:45 AM ANWAR IBRAHIM Day Seven of the Appeal Hearing in the Federal Court 20 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 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 Christopher Fernando (CF) continuing the defence rebuttal. Azizan’s Credibility It was contrary to all untempered principles of law to uphold the [High Court] decision. There can be no dispute that the entire prosecution case hinges on the testimony of Azizan Bin Abu Bakar (AAB). I think all agree. That being the case, the issue of Azizan’s credibility is of paramount importance. Much was made by the prosecution over the fact that the judge made the right decision in ruling on Azizan’s credibility, namely that he was a truthful and reliable witness, yet no proper attention was given to analysis of his credibility. It doesn’t take much imagination to see that the learned judge was grossly in error in his assessment. A close look at some of the most pertinent questions put to Azizan and the answers elicited will reveal that the finding of the judge was patently and unmistakably wrong. His knowledge of law did not apparently assist him. He did take the trouble to state the relevant law accurately, but he failed to apply it correctly. It is one thing to state the law accurately and quite another to apply it correctly. I am putting forward examples of some of the questions put and the answers given by Azizan, to show that the judge’s finding is flawed and wholly untenable: 1. During Azizan’s testimony in the first trial, he admitted categorically, not once but three times, that he was never sodomized by Anwar. (ref: Vol. 5 pg. 2939): AAB: I agree that Dato’ Seri Anwar Ibrahim did not sodomize me and that was why I continued going to his house between 1992 and 1997. If he had, I would surely have stayed away from his house. (Unfortunately the defence counsel’s question was not recorded i.e. : “I put it to you that DSAI did not sodomize you and that is why you kept visiting him between 1992 – 1997, otherwise you would have kept far away from him”). Azizan was saying, in no uncertain terms, that he was never sodomized by the appellant, not on any date. The question was asked three times, first by me and the second time at the behest of the judge, then, to be fair to the witness I asked him the question a third time, to make sure all doubts were cleared. (It is worth noting that the question was asked three times but only recorded once). 2. During re-examination – and the record is clear – at the prompting of Gani Patail (GP), there was a change of date: the first amendment of the charge (ref: Vol. 5 pg. 2969). GP: Did the incidents of sodomy on you by the accused still occur after September 1992? Gani was putting words in his mouth. My Lords/My Lady will recognize how unfair this question was and that it should not have been allowed by the court. Was that fair by any standards, bearing in mind that the witness had already given that categorical statement [that he was never sodomized] before this? Yet the judge allowed it. Strangely enough Azizan’s response to this leading question was: “After September 1992 until now the accused did not sodomize me anymore”. And he continued, despite objections, that he was sodomized at Tivoli Villa and that it was an experience he could never forget. This is how unfair GP was. When we objected, GP pretended to address the court and tried to make Azizan change his story. He said, “What Azizan meant was that he was not sodomized at the house”. I ask Your Lordships to take particular note of that. Azizan never said he was sodomized at the house. The original questions were all general, such as: “Were you ever sodomized?” GP tried to introduce details of place and date. During the impeachment proceedings, Azizan parrotted word for word what GP said in the first trial. He said, “What I meant was, I was never sodomized at the house”. At the first trial Azizan did not take the bait – pick up the “at the house” answer. He only did so much later, during the impeachment proceedings. My Lords/My Lady, what is the conclusion to be made from these answers? Initially [in the first trial] Azizan admits he was never sodomized. Then, under re-examination, he says he was sodomized, but only until September 1992 (that is the cut-off point). Even if Azizan can be believed up to here – that is, that he was not sodomized after September 1992 – during the present trial Azizan, under oath, gives an entirely different version. So we now have three versions. This third version says that the sodomy took place “One night between January – March 1993. I can’t remember the exact date”. It does not take much ingenuity to see that the charge had to be amended because of Azizan’s mistakes. At first it was 1994, then he said “not after September 1992”, so the charge was amended from 1994 to 1992. The claim that this was a typing error is completely untenable, because the amendment was made right after Azizan’s “not after September 1992” statement. This is a major and serious contradiction that goes to the root of the matter and calls into question the credibility of this witness. My Lords/My Lady, we have gone further in this trial and shown that his evidence is unreliable, as can be seen by the following questions and his responses to them: Did you tell the police you were sodomized in 1994? No. Who fabricated the evidence? I don’t know. Did you tell the police you were sodomized in 1992? No. Who told the police the police you were sodomized in 1992? I don’t know. Who fabricated this evidence? I don’t know. The date 1992 is false? Yes. I put it to you that the charge had to be amended to 1993 because the building was not even ready for occupation? I don’t know. Were you told to change the date to 1993? Yes. Did you agree to this proposition? Yes. Who asked you to change the date to 1993? SAC Musa bin Hassan [The Investigating Officer in this case]. All this clearly undermines Azizan’s credibility. It should not even have been necessary for the defence to apply for impeachment proceedings. From the questions and answers listed, it is clear that Azizan had not only contradicted himself, indeed he had lied under oath, and the learned judge should, in the circumstances, have found that he had been impeached by his own answers without the necessity of conducting impeachment proceedings. Nevertheless, when we applied for impeachment proceedings against Azizan, the judge said: “I find there are material contradictions in respect of the sodomy which according to the witness took place up to September 1992. Whereas according to the evidence in this court, he was sodomized between January and March 1993, which is the subject matter in the charge”. The Court of Appeal judges later referred to them as mere “inconsistencies”. When asked to explain the contradiction, Azizan repeated GP’s exact words: “What I meant was, I was not sodomized at the house”. And this was accepted. Abdul Hamid Mohamad (AHM): Even if the witness was not impeached, they should still have considered the reliability of his evidence. CF: Yes, My Lord, that is why there was a need for impeachment. AHM: They should have considered the reliability itself. CF: I’m glad the court sees this, My Lord. CF (continuing): In this regard, it is pertinent to keep in mind that he was asked by the Investigating Officer to change the date. Again, at the risk of repeating, there was no mention in the evidence of Azizan himself that he was sodomized “in the house”, even though he had the opportunity to do so. This was GP’s idea, not Azizan’s own answer. Having taken impeachment proceedings, the judge should, on the strength of the evidence, have found that Azizan was impeached. In the face of this stubborn evidence, he should have been impeached. It is the duty of this court – the apex court – to put things right. Clearly the judgment is against the law. Already the judge had misdirected himself, and it was a serious misdirection. On this issue alone both appellants were entitled as of right to an acquittal without their defence being called. Evidence of Azizan’s Bad Character It will again be noted that the judge found that it was of no consequence that Azizan was convicted for a sexual offence in the Shariah Court. AHM: He should have taken it into account in his decision. CF: Yes. The prosecution argued that it was not relevant, and then they quoted a case themselves which was not relevant, with no similarities to this case. Azizan was giving evidence to show his character (in his answer to the question as to why he had decided to tell the world about the sodomy incident). He said it was in the interest of religion and honour. It was in this trial, so cannot be ignored (Vol. 2 pg. 1008). The learned judge failed to recognize this fact as important in assessing Azizan’s credibility. In some cases evidence from another trial may not be relevant, but here Azizan was convicted of sexual misconduct. In the particular circumstances of this case, this fact should have been taken into account in his assessment of Azizan’s credibility. Instead he concurred with the prosecution. Here again, My Lords/My Lady, you can put things right. We applied to recall Azizan for further questioning on this, but it was not allowed. This was a refusal of a legitimate application. So we had to be content with calling officials from the Shariah Court. That was all we could do. The case cited by the prosecution [Gipp vs. R] does not apply to our case. Unfortunately the learned judges of the Court of Appeal upheld the High Court judge’s erroneous judgment on this point. Was this, My Lords/My Lady, not a misdirection? There can be no doubt that this was a misdirection on the issue of Azizan’s credibility. Once again, this alone is enough to acquit the accused. Could you, looking at all this, honestly say that that Azizan was a reliable and credible witness? His finding that Azizan was a “truthful, reliable and honest witness whose evidence is as strong as the Rock of Gibralta” is, to put it mildly, a gross exaggeration. It is clearly and unmistakably against the weight of the evidence. It is mind-boggling how the judge could have gone to such extremes, describing Azizan’s testimony in such superlative terms, when he deserved no credence whatsoever. How could he make such a firm finding? The Court of Appeal should have scrutinized all his findings in face of the facts. This they failed to do. The learned judges of the Court of Appeal accepted wholesale – without criticism, without analysis, without consideration – all the erroneous findings of the High Court judge. That is a great pity. My Lords/My Lady, it is submitted, with no reservations whatsoever, that no-one apprised of the facts could honestly deny that Azizan’s evidence is a catalogue of contradictions, inconsistencies and outright lies. I am confident that this court will have no difficulty in coming to the conclusion that the Court of Appeal judges failed to correct the errors of the High Court judge. One cannot run away from facts such as these. My Lords and My Lady will have noted that even on a fundamental issue such as burden of proof there was an error. In every instance the burden of proof is given not to the defence but to the prosecution. But the Notes of Evidence show that throughout [the trial], at every point, the benefit of the doubt was always given to the prosecution. This is contrary to established principles. These are failures of a fundamental nature. So, My Lords and My Lady, you will see that the judge made numerous errors, time and time again. If only one of them is present, it is already enough to vitiate the proceedings, even if the evidence is compelling. Yet here the judge made numerous errors. It is reiterated that both appellants were entitled to an acquittal without their defence being called. Fabricated Evidence and Conspiracy Manjeet Singh Dhillon (MSD) is a respected lawyer, a former Sessions Court judge and past chairman of the Malaysian Bar Council. He had testified under oath that the two prosecutors (GP and Azahar Mohamed)… AHM: Don’t repeat. CF: I’m not repeating… In a nutshell, his evidence showed that GP and Azahar had offered to reduce the charge against Nallakaruppan in exchange for false testimony implicating the first appellant in allegations of sexual misconduct. This a very serious allegation against the two prosecutors, one of whom is now the AG. And, I might add, there is no evidence of rebuttal on this serious allegation. This crucial piece of evidence, which goes to the crux of the matter, was not given the weight it deserved. The judge scoffed at this evidence and called it trivial. He failed to recognize its significance. And my learned friend (GP) has also trivialized it. The issue here - in respect of MSD’s evidence - is the perversion of justice, and also abuse of power, abuse of trust and a total disregard for the rule of law. The behaviour of these two [prosecutors] was appalling and despicable. My Lords, My Lady, the learned trial judge and the learned judges of the Court of Appeal failed to appreciate the principle. We are not talking of ordinary witnesses, but of the two main prosecutors of the case. It is a fundamental issue: one of the prerequisites for a fair trial is a fair prosecutor. My Lords, My Lady, it is important to refer to the relevant passage in the Court of Appeal judgment, under the title “Bad Faith” (p. 201) regarding the evidence of MSD. Firstly, they misquoted the defence argument about the prerequisites for a fair trial, replacing “fair prosecution” with “fair trial”. Then they said, “We are very much in doubt that the principle is relevant”. Again, they misdirected themselves on a very serious and very fundamental issue. Then from the evidence they jumped to the statutory declaration. They found “..the evidence asked for was on the womanizing habit of the First Appellant and nothing to do with sodomy”. This was clearly a gross misdirection. What is involved here is the motives of the two prosecutors – in the strongest terms, that these two had a personal agenda against the appellant, to extract fabricated evidence against him. Doesn’t this come through loud and clear from the evidence of MSD? But this is how the learned judges explained it: “Having examined the evidence we have no hesitation in accepting the judge’s finding, and agree with the prosecution that the allegation of fabrication of evidence by GP and others was unfounded”. In this the learned judges clearly misdirected themselves. Therefore it is incumbent upon Your Lordships to put this right. Again, on this issue alone both appellants are entitled, as of right, to an acquittal. Fundamental principles, as Your Lordships well know, cannot be brushed aside. My Lords/My Lady, they failed to appreciate the importance of impartiality of the judge and the prosecutor. The duty of the prosecutor is to ensure that all relevant and credible evidence is presented in the trial. He must be absolutely fair and impartial. Here it has fallen far below the standards; our case [appeal] is strong. The two prosecutors were caught red-handed trying to fabricate evidence against the appellant. It is shocking that the judge could sink to such depths of depravity as to support them. He should instead have asked them to recuse themselves. Their acts showed beyond a shadow of doubt that they were bent on securing a conviction by any devious means. Now, in retrospect, My Lords/My Lady, what should have been done by the learned judge of the first trial was to recuse them. However, when Zainur Zakaria [defence counsel] applied for this, it was he who was pounced upon by the judge. The three judges who sat at the Federal Court Appeal for the first case excoriated the acts of these two prosecutors. It was clearly wrong for the High Court and Court of Appeal judges [in this case] to disregard that finding of the Federal Court. The prosecution’s submission, that all that GP did in meeting MSD was nothing more than plea-bargaining, is untenable. We all know what plea-bargaining is about. If it had been plea-bargaining all he needed to say was: now the charge is this, if he pleads guilty we will reduce the charge; or if there is more than one accused, he can bargain: we will give immunity to one of them if he testifies against the other(s). But this was totally different. GP seized this opportunity to extract fabricated evidence from Nalla by using the death [sentence] threat. [Nalla’s case] was nothing more than a licensing offence. When he was getting a new gun he forgot to return the bullets for the old one – that’s all. So why was the charge against him one that carried the death penalty? It was making use of the opportunity, it was extortion, plain and simple. GP abused his position. He perverted the course of justice and should have been disqualified by the judge. The Court of Appeal judges also failed to see this. It is not just a matter of isolated action, but the motive behind it. When their credibility and impartiality was impugned they had no business to continue as prosecutors. As a related point, misconduct of the prosecutors strengthens the likelihood that offers had also been made to others to give false evidence. If the two prosecutors see fit to get false evidence, what can we hope for from others? Indeed, as we have seen, the police were also involved. This is sufficient to vitiate the entire proceedings. The evidence of MSD clearly revealed that GP himself was one of the conspirators and fabricators. When GP was a target [of an effort to disqualify him], he turned around and made an effort to get the police to investigate the appellant and his lawyers instead of himself. This compounded matters. Why was no action taken against GP? If MSD’s evidence or letter or affidavit been false, they would have come down on him like a ton of bricks, charged him in court, no hesitation. Why did they not do so? It is obvious: if he had been charged all would have come out, then GP himself would have had to be charged. He even attempted to brush aside the rules of law by asking leading questions. Does this not reveal his true motive? He wanted a conviction at any cost. If he were honest, he would have distanced himself from the proceedings. Why did he refuse so stubbornly to disqualify himself? He was there from day one, and he is still here. He wants a conviction. Perhaps in this regard this honourable court can be persuaded to recommend that an independent Royal Commission be set up to investigate this matter. There is no point in asking the police because they were involved. GP said that MSD was very brave. But why did he not do anything about his evidence? MSD wrote to the AG himself, the head of prosecution, complaining about the misconduct of GP. What more could one wish from an honest lawyer? He put his head literally on the chopping block. If his allegations had not been true, he would have been charged. From his evidence there seems to have been a sad pattern. See the affidavits of Munawar [Anees] and Nalla – both prepared by MSD on the instructions of these two clients. The learned judges misdirected themselves by disregarding his evidence, which had been so carefully prepared and presented. My Lords/My Lady, we will see from the affidavits how these two [Munawar, Nalla] were tortured, humiliated, they were threatened, faced psychological pressure, they were told their families would also suffer. Is it not reasonable to see that what GP was doing was only an extension of what was done to Munawar and Nalla? You will be shocked when you read [the affidavits]. The High Court judge did not appreciate the full meaning and purport of a conspiracy. What is a conspiracy? It is the getting together of people to go about doing something illegal. There was a high-level conspiracy going about collecting and fabricating evidence to be used against [the first appellant], to destroy him not only politically but completely. It was not easy for the defence to go and find out who these conspirators were. We could only do it through examination/cross-examination of witnesses. An accusation of sodomy is easy to make, difficult to prove, and even more difficult to rebut. Azizan comes out of the blue to make the shocking allegation that 5 years ago the appellant sodomized him. My Lords/My Lady, if these two appellants can be found guilty, no-one can ever be safe after this. Anyone may come out of the blue and make an accusation that you committed sodomy 5 years ago. How will you be able to defend yourselves? The case mentioned by the prosecution involved a 9 year old child. Azizan is an adult. In that case only one date was given, ours is a three-month period. And then our dates kept changing… This strongly suggests mala fide. My Lords/My Lady, you cannot fool about with a person’s liberty, a person’s dignity. They kept changing – from 1994 to 1992, then again to 1993. When the counsel for the second appellant applied to give notice of alibi, they were told that Tivoli Villa was not ready in 1992. My Lords/My Lady, you can see the dilemma the prosecution was in, forcing them to change the date from 1992 to 1993. There was only one way to get out of the predicament – to refuse permission to file the new notice [of alibi]. They could not go backwards, that would have made it even more ridiculous; so they could only go forwards; because of Azizan’s evidence. Hence the incredibly vague charge of “one night between the months of January and March five years ago”. That is the explanation of why the dates were changed – twice. The question arises again: are these charges fair, were these charges not fabricated? Just to avoid losing face, one does not simply go around making charges against innocent people. The witnesses called by the defence were not given the same treatment [as the prosecution witnesses] insofar as assessment of Azizan’s credibility was concerned. It was a clear case of double standards. Where a prosecution witness was concerned, every effort was made to show and treat them as credible witnesses. But, as is clear from the judgment, every single defence witness, including the two appellants, was singularly branded as either liars or witnesses with agendas, with personal motives. Every single one was tarred with the same brush. Was it proper for the judge to treat witnesses like this? Is it legally permissible to treat witnesses according to two different standards? It was clear that this was a miscarriage of justice. The witnesses favourable to the appellants were brushed aside, scorned. That was wrong - a wrong approach and a wrong attitude. All witnesses, even spouses, have the right to be treated equally. This was a misdirection amounting to a non-direction, which had vitiated the proceedings. The evidence of Jamal Abder Rahman (JAR) was clearly relevant. It goes to clearly show that the fabrication of evidence was not confined to the shores of Malaysia. They went to the extent of securing evidence from as far away as the US, in exchange for money. Does this not strengthen the allegation of conspiracy to destroy the appellant? Is this not another example of the effort to obtain false evidence? When the judge ruled that the evidence of this witness was irrelevant, it meant that he was not open, whereas he was duty-bound to consider the evidence and give it due weight. This evidence, My Lords/My Lady, as I have said, should have been held, taken into consideration, and the learned judge should have found that there was clearly a concerted effort – a conscious and deliberate effort – to obtain false evidence by bribing witnesses. JAR was a brave, upstanding man, who refused to sell his soul. Then, My Lords/My Lady, there is the evidence of Raja Kamaruddin (RK), another witness called by the defence. He was at the relevant time an UMNO branch leader. He gave evidence, under oath, that he was recruited as a conspirator to destroy the appellant politically. That is unchallenged evidence. He was told, “Your job is to destroy Anwar politically. Don’t worry about money, just send me the bills”. RK also named the other conspirator: he said that it was Aziz Shamsuddin who made this proposition to him. In this regard, he also mentioned that both Azizan and Umi [Hafilda] were bribed to do what they did. The defence having raised this, was it not incumbent on the prosecution to call these people (the conspirators named in the evidence) to give evidence, to be witnesses? Normally, if an accused makes a complaint – for example, that he was mistreated – it is incumbent on the prosecution to call those named to testify, to rebut. In our case the prosecution never called any of those named in the defence evidence. AHM: What is the effect of their not calling them? That is the point… CF: I am coming to it, My Lord. I must say first what was said, who was named. It is obvious. The effect is that the evidence of the [defence] witnesses remains incontroverted and unrebutted. AHM: Should remain… CF (continuing): Furthermore, had the prosecution called them as witnesses, the appellants would have had a fair chance of being acquitted. This was a miscarriage of justice. The blunder of the judge has caused untold suffering to both the appellants. They have been in prison, whereas they should never have been put there in the first place. Facts of False Witness Against Anwar Ibrahim I refer to the evidence of Azmin Ali (Vol 3 pgs.1875-1934). His evidence is again pertinent, he being the brother of Ummi Hafilda, who allegedly helped Azizan to put up a complaint against Anwar. His evidence tells that she was bribed to prevail upon Azizan to give false evidence against Anwar. She tried to extricate herself, but was told it was too late since the money had already been passed over. The judge asked, why didn’t you call Ummi Hafilda? The notes were checked and she was called, and she did admit. She made a statutory declaration: I am the purported writer of the letter [jointly with Azizan, to the PM]. This is the same as Azmin Ali’s evidence. The plot thickens. It was the person for whom she produced the affidavit who was the proper person to have been called. My learned friend’s submission was not quite accurate, when he said, “Azmin had shown his undivided loyalty to his former boss”. This is not true. Blood is thicker than water. He testified that his own sister was bribed to give false evidence. Would he have done this to his own sister if it had not been true? The judge should have given due weight to this Another witness, Zull Aznam (ZA) merits special attention. ZA was called by the defence. It is pertinent to know that he was a senior, serving police officer at the relevant time, being Anwar’s ADC. When he gave evidence he was still a senior police officer, and is now the OCPD of Selama. He is a courageous police officer. He came to give evidence at great risk to his career. His evidence should have been given the credence it deserved, the weight it deserved. He had been told that Azizan was promised money to make false evidence against the appellant. Why cannot such a witness be treated as credible? It was simply because he was for the defence; he had to be tarred. This was simple and unmistakable misdirection. The judge said that Azizan was not challenged on his evidence, but this is not so. (See Vol 2 pg.1002). Had the judge not misconstrued the evidence, would he have accepted this contention, that Azizan’s evidence was not challenged? If he had not misconstrued the evidence would he still have dismissed out of hand the evidence by ZA? The judge’s evaluation of the evidence, of the credibility of this witness, was flawed because of the error he himself made. Besides this error, the reasons he assigns for rejecting the evidence of ZA are clearly untenable. He said: why didn’t ZA make a police report? This was unreasonable; there can be many reasons - someone who stumbles on a corpse may run away… In no way did his failure to make a police report detract from the cogency of his evidence. The judge also rejected ZA’s evidence because he (ZA) said he heard it in 1997, whereas the appellant said he heard it in 1998. This is not a material inconsistency, not a good reason to reject the evidence. Was the learned judge fair? This Your Lordships have to consider. Was he fair in rejecting ZA’s evidence? Why was the evidence not used in favour of the appellant? If he had accepted the evidence, what would be the legal effect? The legal effect would have been that Azizan’s evidence, his credibility, would have been impeached as a witness known to have been bribed. If that evidence had not been accepted, would that not have changed the whole scenario? Would the judge have kept telling himself that Azizan was truthful, honest and reliable, and his evidence as strong as the Rock of Gibralta? Here was yet another instance of credible evidence elicited by the defence which points irresistibly to the conclusion that Azizan was bribed. This was lost on the judges of the High Court and the Court of Appeal. It was brushed aside as not worthy of consideration. Even if that proposition is not accepted, the evidence was sufficient to raise a reasonable doubt in any tribunal appraised of the facts. Is it any wonder, therefore, that this decision has prompted outrage throughout our country and around the world? AHM: How many people read the judgment..? CF: On the Internet it is available to the whole world. Reversal of the Onus of Proof Again, the judge fell into gross error in shifting the burden of proof onto the defence, thus controverting established principles. It is the onus of the prosecution to prove the guilt of the accused. There is no onus on the defence. But in this case the judge has shifted the onus [onto the defence]. He said, “It is the duty of the defence to show..” This is a fundamental issue, and represents a miscarriage of justice. Even worse, when dealing with the issue of Azizan’s credibility, he said, “The defence have not proved conclusively…” (This phrase appears twice in his judgment). Even the prosecution did not have to prove conclusively, only beyond reasonable doubt. Conclusively means beyond a shadow of doubt. The judge had thus imposed [on the defence] a burden even higher than that imposed on the prosecution. My Lords/My Lady, does this grave error he fell into not entitle the two appellants to be acquitted? What is the burden on the defence? The only burden, if it can be called a burden, is to raise a reasonable doubt. That is the standard. It [shifting of onus] is illegal, contrary to fundamental principles of law. In this situation the defence has discharged its burden, it has succeeded in throwing reasonable doubt on Azizan’s evidence, and on his credibility. Both the High Court and the Court of Appeal judges spoke on the issue of conspiracy and fabrication of evidence, saying that it was a serious issue demanding conclusive proof by the defence. We submit that there was no obligation on the defence to prove any of these things, let alone conclusively – that is, “reaching certainty”. There is no such burden. It is incumbent on the prosecution to rebut, but they did not, and therefore [our defence] was beyond reasonable doubt. Both the trial and Court of Appeal judges erred in reversing the burden of proof onto us. A miscarriage of justice has been occasioned and therefore the appellants are entitled to an acquittal as of right. Evidence of Alibi In this regard, all the defence had to do was to adduce some evidence to show that the appellants were not there at the pertinent time. When raised, it becomes incumbent on the prosecution to rebut. AHM: I have to interrupt, to ask what your stand is. I remember Karpal Singh asked for [the evidence of alibi] to be expunged, yet you are arguing on the merits of the alibi evidence. It seems that there are two counsels with different stands. CF: It is not at odds, My Lord. I am submitting on the alternative. AHM: (i) It is inadmissible, but (ii) if it is [ruled] admissible, this is our argument? CF: Yes. AHM: OK. I take it that this is your submission on the alternative. Also, please do not let it happen that there are 2 or 3 counsels presenting the same submissions, that is, repeating [the same thing]. CF: As I stated earlier, I am submitting on the alternative, and Karpal Singh will cover 402A. My Lords/My Lady, it has to be borne in mind that the appellants were put in a most difficult position – this must never be lost sight of. They had, in the alibi, to cover their movements during the period when the offence allegedly took place. It was most unfair to have to find proof for such a long period. Any fair tribunal would have given some concession, some latitude to the accused. Here it was the opposite. The judge imposed an unusually high burden on the defence to prove the alibi. Far from being fair, he literally went overboard, imposing such harsh conditions. What was required, at the highest, was for the defence to raise reasonable doubt, that is all. In this regard, the statement of the former AG [Mohtar Abdullah] assumes great significance. In open court, when there was an argument about the records and I asked for [Anwar’s official] diaries back, he said, “We have the records of all the movements of Anwar between 1992 – 1997”. This is significant and very telling. What does it mean? What connotation, reasonable connotation, is there in such a strong statement? Here was the AG telling the court he has the records, everywhere that Anwar went [Both the PM and theDPM are followed by police 24 hours a day, for their own security]. The point is: you have the police records. GP said yesterday, “We were fair, we gave them all the documents”. But what they gave us were Anwar’s diaries [seized by the police from his office], not the police records. What we are saying is that those records kept by the police ought to have been tendered. If they had been given we would have been able to demolish the case hands down. If they had the records, why did they have to formulate the charge with such vague terms – “one night between January and March 1993”? The issue here is that the learned judge should have invoked the provision in 114G of the Evidence Act against the prosecutor. AHM: At what stage? CF: When we challenged them. AHM: I think it should be during the defence. CF: Agreed. AHM: Why did they not do that? CF: By that failure to do so, he had in the circumstances occasioned a miscarriage of justice. He should have demanded that the prosecution produce the records. We could have established the alibi to the hilt. Again, the appellants would have been entitled to an acquittal, because once the alibi was proved, that would have been the end of the matter. Why are the diaries so important? Very significantly the diary for 1993 went missing. AHM: Was it taken [from the appellant’s office], then went missing? CF: It was shown to the court. It went missing after the second amendment to the charge was made [change of date to 1993]. The police raided Anwar’s office on 2 September 1998, well before the charges were made. When the charge was made, the defence asked for the diaries back. We were given all except the one for 1993. AHM: Was it in the search list? CF: No search list was ever tendered. AHM: No search list. Then it is easier… CF: Then if Mohtar Abdullah really had possession of the complete records, it would have saved the defence a great deal of trouble. Corroboration of Azizan’s Evidence It is submitted that there was no corroboration of Azizan’s evidence in the legal sense. The corroboration which the learned judge purportedly found did not amount to corroboration. He picked as corroboration for Azizan’s evidence the confession of Sukma. Was it legally permissible in the circumstances to do what he did? Even as regards the evidence in the confession the learned judge failed to appreciate the evidence of Dr Zahari (Dr Z), who was initially a prosecution witness, then was called by the defence. The totality of his evidence is to the effect that Sukma had not been sodomized, contrary to the contents of the confession. It is significant: he was a prosecution witness, and he stated that there was no evidence of penetration. AHM: Dr Z’s evidence contradicts the confession. Therefore the confession should not be used as corroboration. CF: I will go further: Dr Z’s evidence renders Sukma’s confession evidence false. Azizan testified that he had regular homosexual relations [with Sukma]. If this had been so, Dr Z should have had no difficulty finding evidence of it when he examined Sukma. With regard to the fabrication of evidence, we asked Dr Z who examined Sukma. He replied that it was he himself. He found no evidence of penetration. Does this not go some distance to show that the evidence was fabricated? It demolishes Sukma’s confession. Cumulative Effect of Judicial Errors Both the High Court and Court of Appeal judges erred in misdirecting themselves. We have pointed out several instances to Your Lordships. Any one of these incidents entitles the appellants to an acquittal. Individually, taken in isolation, each one is sufficient to acquit the appellants. In aggregate they constitute a gross miscarriage of justice. It is submitted, My Lords/My Lady, that the court need only be satisfied that miscarriage of justice has occurred in any one of them, to overturn the judgment. If Your Lordships accept any of the most fundamental ones, you may need to examine some of the more complex ones. It is indeed a travesty of justice to find both appellants guilty on this type and quality of evidence. May I remind the court of the maxim: Justice must not only be done, but must also be seen to be done. It is submitted that Your Lordships will have no difficulty in allowing this appeal, because of so many examples of glaring errors and misdirections. It is the paramount duty of this court to put things right. It is your bounden duty to put things right, to ensure that this time around there is justice. I am much obliged, My Lords/My Lady. After the midday recess, Karpal Singh (KS) submitted. KS: We recognize that this is an appeal hearing, and therefore not to do with findings on fact. The court cannot under any circumstances make findings on fact, so it will not need too much time. I will submit on points of law. Opportunity for Defence to Rebut My Lords/My Lady, an accusation of this nature is very easy to make, and very difficult to rebut. This is recognized by the court. Did the court give the defence a proper opportunity to do this? The application to file a new notice of alibi was refused, whereas alibi is the only evidence for defence against this sort of charge, being a defence which is foolproof. In this case both appellants were deprived of this opportunity and right. The alibi for the period 4 February – 31 March [‘93] is covered. For the earlier period [1 January - 3 February] if the opportunity to prove the alibi had been given, the issue of fabrication, etc., would not have been so significant. As it was, the defence was incomplete, bereft of evidence of alibi. This was a concern which was not there at the beginning of the trial. Then there is the question as to whether, this being a joint trial, the denial for the second appellant to file a [new] notice [of alibi] had deprived him of the opportunity to break the whole case? Would it have enabled him to break the whole case? For the first appellant it was not so difficult to find evidence of his movements. Since the appellants were charged jointly, the evidence for the first appellant counts also for the second appellant, and vice versa. An adjournment was applied for. If granted, witnesses related to the alibi could have been called. Was the second appellant given [due] opportunity? The Impact of 402A What was the impact of 402A? Before 1976 it was not there. The highest court in the land should recognize that 402A is mandatory. The phrase “shall be” indicates that it is mandatory and not directory. The reasoning of the prosecution on this matter was not correct. Although the Federal Court and Court of Appeal are not specifically mentioned, it is implied [that they are included]. It is mandatory [to file a notice] 10 days before the hearing starts. The 3 positions [cases quoted] we had did not disagree. The point is this, My Lords/My Lady – in this case the earlier suppositions were wrong. They may have been experienced judges, but this does not mean that this court is restricted from departing from their decision. 402A says “when an accused seeks to put forward..” The second appellant did seek to put forward as soon as the charge was amended. The defence submits that the trial had not commenced. The proviso which exempts it from being mandatory only applies if the hearing has commenced. It was not at the commencement, but when it had not yet commenced. The charge had been read, but a trial only starts when the first witness is called. So my learned friends are not correct. The case quoted by the prosecution was not relevant. The time difference was only half an hour [on the same date], whereas in ours it was two years. This was not emphasized so much by Raja Aziz Addruce [defence counsel during the trial]; he went more on the vagueness of the charges. This is why this issue – the notice of alibi and 402A – was not gone into in great detail. It is our submission that “shall not” means that it is mandatory (there is compulsion), and not directory (judges have discretion). KS quoted several authorities to support this. [In this matter] the intent of the legislator is important. My Lords/My Lady, what was the object of the legislator? Why was it included in 1976? It was to make it easier for the prosecution, so that they would not be taken by surprise. OK, but was that the only reason? I submit that, apart from the above, the principle object was to enable the prosecution to verify the contents of a notice of alibi, to investigate. Why was a period of 10 days given? To ensure that there was enough time given to the prosecution to investigate, to verify. This meant that it was an obligation placed on the prosecution to verify the contents thereof. In our case itself, when the 1992 alibi was investigated it was discovered that the building was not ready. So why, after the amendment, was [the filing of a new notice] not allowed? In the trial, SAC Musa agreed to investigate the 1993 alibi. At first the AG also agreed. Then, after lunch they changed their minds. My Lords/My Lady, [402A] is for the protection of the accused as well as the prosecution. It gives an alternative opportunity to the prosecution to prove its case. There is no point in having a trial, wasting the time of the court and getting the accused to go through the whole trauma of the trial, and then this opportunity is blocked. In the case of Vasant[?] Singh, the object or intention of 402A is said to be to prevent the surprise introduction of evidence, and the surprise introduction of witnesses. It is so that [the prosecution] may have an opportunity before the trial to make such investigations as they see fit. Based on these investigations they may withdraw the case, or call for defence. In two other cases since 1988 the judgment had stated that [402A was] “clear and unambiguous”, and in another case that the magistrate “has no discretion”. The prosecution’s quoting of cases from England is not relevant. In another case [it was ruled that] evidence of alibi must be excluded unless a notice of alibi was given in accordance with 402A. There is no discretion, even if the defence agree. The notice of alibi comes under the Evidence Act, and not under Section 11 of the English Criminal Justice Act. It was not right to rely on procedure rules alone, as the prosecution did. With regard to relevancy, whatever is relevant is not necessarily admissible. 402A is part of an Act, it is not just a procedure. In the case of Ho Lip See, the Federal Court position was that the requirement is mandatory. In another case, the finding of the judge was that, “If the evidence was wrongly admitted [because a notice of alibi was not filed 10 days earlier], it is an illegality which cannot be cured”. That is what we have in this case. It is not just an irregularity but an illegality. In another case it was ruled that the admission of evidence which is not admissible by law, even though agreed upon by the parties concerned, is wrong. These are decisions which should not be departed from. They are the rulings of experienced judges. I don’t want to keep on at Your Lordships, but it is so significant. All [the prosecution] arguments about no prejudice, etc., should be pushed aside. The court should focus on points of law. Why do they try to cloud the issue, ignore the mandatory nature of 402A? Why did the prosecution want so much to block the alibi? – the alibi which could have enabled the appellants to give evidence and call witnesses to clear themselves. Is it because of political considerations, which made them determined to get a conviction at any price? Then they tried to avoid admitting that the [first] notice was ever served. My Lords/My Lady, I promised to go for the jugular. This is the jugular. Azizan and Ummi first came to see me in 1997 to tell about the letter [concerning Anwar, sent to the PM]. I suspected a trap [because I was at the time an opposition MP], and sent them to the PM. Why was I not called as a witness later, to verify the story? My Lords/My Lady, don’t fall for it. Don’t get distracted. There is not just one red herring, but very many of them. The case [they] quoted involved a child of 9. This is not like an adult. In another case the whole trial was aborted because the defence counsel failed to file a notice of alibi despite instructions [to do so] from his client. He was also made to pay costs, and was denied his fees. We must go by the law. The time has come for this court to show that we are able to make a judgment based on the law, and no other basis. [The situation was] made worse by [the Court of Appeal] taking 5 months to decide on the bail. The appellants were not shown proper respect. KS: We wish to apply for bail again now. Should we do this now, or can Your Lordships come to a decision on the appeal now? AHM: But we need to refer to all these volumes… KS: Just on 402A. It is very simple. AHM: Have you finished? KS: Yes. Yusof Zainal Abiden (YZA) [Prosecution]: I ask for 5 minutes [to submit]. AHM: Just tell us your references. We will refer to it ourselves. YZA: It is just a small submission, not for the record. It is a matter of interpretation. AHM: You don’t need to explain. It has already been submitted on. YZA: Of all the cases mentioned under Section 11 of the Evidence Act, none have been discussed by my learned friend. AHM: Just give the reference. We will look it up. Regarding the appeal, we are reserving our judgment. I promise we will sit down and work hard and uninterruptedly, and we will give the decision as soon as possible On the matter of the bail, when do you want to submit? Christoper Fernando: Tomorrow morning. Court adjourned.
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