The Appellant abovenamed having given notice of appeal to the Court of Appeal against the decision of the Honourable Judge Yang Arif Dato’ Haji Ariffin bin Haji Jaka given in the High Court of Malaya at Kuala Lumpur on the 8^th day of August 2000, states the following grounds for his appeal :-
 

PETITION OF APPEAL

The learned judge erred in law and in fact in calling for the defence of your appellant when the prosecution had failed even to adduce the primary evidence required to support the charge.

The learned judge erred in law and in fact when he failed to appreciate and properly analyse that aspect of Azizan’s crucial evidence when he (Azizan) categorically admitted not once but three times that he was not sodomised by your appellant, thereby depriving your appellant of his right in law to an acquittal.

The learned judge failed to appreciate and to take into consideration Azizan’s own admissions (when questioned by the prosecution themselves) "that after September 1992 until today, I have not been sodomised", which evidence, proved beyond the shadow of a reasonable doubt that the final charge levelled against your appellant that he " sodomised Azizan between January to March 1993 " is clearly and unambiguously false and baseless.

The learned judge erred in law and in fact in attempting to rationalize and to give untenable reasons for Azizan’s fatal admissions absolving Your appellant of the charge of sodomy.

It is against all fundamental and recognised principles of law and justice for the learned judge to find your appellant guilty when the alleged accuser, Azizan, had himself admitted that he was not sodomised by your appellant.

The learned judge erred in law and in fact in holding that Azizan was a credible, reliable and trustworthy witness despite the overwhelming evidence to the contrary.

The learned judge erred in law and in fact in failing to impeach Azizan when the latter was not able to explain or reconcile the glaring and obvious contradictions in his evidence despite being given the opportunity to do so.

The learned judge erred in law and in fact in completely ignoring evidence favourable to your appellant and picking on irrelevant and collateral matters as a basis for calling for your appellant’s defence.

The learned judge erred in law and in fact in giving the benefit of the doubt to the prosecution instead of the defence contrary to established mandatory principles of law.

The decision of the learned judge and his untenable rulings and findings were clearly and patently against the weight of the evidence.

The learned judge erred in law and fact in holding that your appellant had not established his alibi despite the cogent and uncontroverted evidence adduced to cover the entire relevant period.

The learned judge erred in law and in fact in holding that the alibi evidence adduced did not cover the entire period despite Azizan’s evidence that the offence was not committed during the month of Ramadhan and on various other days and refusing to discount such periods in arriving at his decision which is fatally flawed.

The learned judge failed to appreciate that the charge proffered against your appellant was false and baseless from the very fact that the charge had to be amended several times.

The learned judge erred in law and in fact in not appreciating and hereby failing to find in favour of your appellant when Azizan admitted that he did not tell the police that he was sodomised either in 1992 or in 1994 and that he was told by a police officer and agreed, to change the date of the offence to "between January to March 1993".

The learned judge erred in law and in fact in holding several times that Azizan was a truthful and reliable witness despite his own findings. "This witness says one thing today and another thing tomorrow" (sic). " This witness refuses to answer even simple questions". (finding of evasiveness on the part of Azizan) emphasis added.

The judge erred in not accurately recording the defence question which was " Did you tell the police that you were sodomised in 1994?" by instead recording it as " Did you tell the police that you were sodomised but not in 1994?, thereby prejudicing his own mind and using it against the defence in his decision.

The Learned Judge further failed to appreciate that Azizan had earlier admitted "that he did not tell the police that he was sodomised in 1994 and that he did not know who had concocted the evidence, thereby evincing a clear attempt at contradicting his (Azizan’s) evidence.

The learned judge erred in not appreciating and properly evaluating the legal implications of the learned Attorney General’s statement which was recorded by the court," that we have a record of Datuk Sri Anwar’s movements from 1992 until 1998. Had he done so he would have drawn the inescapable conclusion that your appellant’s alibi had been completely established as Otherwise evidence contained in those records would have been adduced to neutralise your appellant’s alibi :-

The learned judge erred in law in not invoking the provisions of Section 114G of the Evidence Act that if produced the records of DSAI’S movements would have been favourable to your appellant.

The learned judge erred in law and in fact in not invoking and adverse inference against the prosecution when they failed and or refused to call a number of witnesses in support of their case and such witnesses include the Prime Minister, Tun Daim Zainuddin, Tan Sri Rahim Thamby Chik, tan Sri Rahim Noor and others, thereby depriving your appellant of a full and fair opportunity of questioning and discrediting such witnesses and exonerating your appellant of the charge proffered against him which amounts to nothing more than trumped up allegations designed to remove him from the political arena.

The learned judge was in gross error both in law and in fact when he ruled that the Prime Minister was not a relevant witness; despite the latter’s direct involvement in meeting and discussing the allegations against your appellant,

in particular Azizan Abu Bakar, the prosecution’s main witness, thereby depriving your appellant of a fair and reasonable opportunity of further discrediting the evidence of the witnesses for the prosecution.

The learned judge erred in not accepting and/or properly analysing the evidence of witnesses who testified as to the attempts made to procure fabricated evidence against your appellant to his grave disadvantage and thereby occasioning a failure of justice.

The learned Judge erred when he held without justification that Azizan had everything to lose and nothing to gain by making the allegations despite Azizan’s own admission that he was appointed a director of an on going company; made a sales executive of another company with a car thrown in and during the course of the first trial he was promoted to the sales and administrative manager.

The learned judge erred in law and in fact when he failed to give any or any due weight to the evidence of your appellant and his witnesses. Further the learned judge was grossly in error when he singularly and without exception dismissed he evidence of each and every defence witness as being unreliable and or laced with ulterior motives.

The learned judge erred in law and in fact in holding that there was no evidence of any conspiracy to fabricate evidence despite the cogent and mainly uncontested evidence of Manjeet Singh Dillon, Raja Kumaruddin, Jamel Abder

Rahman, Nurazman b. Abdullah @ Baginda, Datuk Shafee bin Yahya and others and further failing and or refusing to give due weight and consideration to such glaring evidence.

The learned judge erred to the detriment of your appellant when he so lightly rejected and dismissed the evidence of a senior serving police officer DSP Zull Aznam bin Hj. Haron who testified that Azizan had in confiding in him disclosed to him that he (Azizan) had been promised money to make the false allegations against your appellant. Such evidence if properly analysed and taken into consideration would have been yet another strong factor in proving that the charge proffered against your appellant was a false and trumped up charge obtained by bribery.

The learned Judge erred in making personal unwarranted and derogatory remarks against your appellant during the course of the trial including the statement "you are a sick man". Further the learned Judge frequently and unnecessarily interrupted, shouted, threw tantrums at defence witnesses and also shouted at; interrupted and threatened counsel with contempt proceedings thereby rendering the atmosphere most incongenial and strained thereby depriving your appellant of a fair and impartial trial.
 

Sentence

The sentence meted out on your appellant is grossly excessive and unconscionable in all the circumstances.

Prayer

Your appellant abovenamed therefore prays that the conviction and sentence on him may be set aside.

Dated this day of July, 2001
 

………………………..
Solicitors for the Appellant
 

This Petition of Appeal is filed by S.N. Nair & Partners for the appellant whose address for service is at Suite B3A03, 2, Jalan 1/70C, Mont Kiara, 50480 Kuala Lumpur. Ref : SNN/DSAI 2001(1) AJ). Tel: 03-62016686 Fax: 03- 62016685