FAC News - Wednesday, April 2, 2003 11:33 AM

Day five of the Anwar Ibrahim appeal hearing

Anwar’s alibi is as strong as the Rock of Gibraltar

The Kuala Lumpur Appeal Court was told that under Section 402A of the Criminal Procedure Code, the alibi of the accused as to where he was at the time of the alleged crime needs to be investigated by the police and established.

Anwar Ibrahim and his Indonesian-born adopted brother, Sukma Darmawan Sasmitaat Madja, were originally charged with sodomising Azizan Abu Bakar sometime in the month of May 1992 in the Tivoli Villa.

Anwar then successfully proved his alibi. And his alibi was that the Tivoli Villa was still under construction and was not completed yet in May 1992. Therefore it could not have happened.

When the defence filed its Notice of Alibi and the prosecution discovered its mistake, it quickly amended the date on the charge to read one day in ‘May 1994’.

The defence protested this most unorthodox move and the trial judge had the gall to say that the defence should have kept quiet. The defence should have allowed the case to go on and let the prosecution complete its case, then, at the end of the trial, the defence should have sprung a surprise on the prosecution and demolish its case.

The defence, in all sincerity, had pointed out this major flaw in the charge, but the judge, instead of throwing out the case, allowed this eleventh hour amendment to be made and laughed at the defence for not being devious enough.

Only a man with a devious mind who suggest such a devious strategy - and it has now been proven that that ‘devious’ is too mild a word to use on this judge.

Then they discovered another ‘small’ problem. Azizan had stated that he was never sodomised after 1992 and that it all happened – if indeed it had happened at all – before May 1992 (later he changed his story to ‘September 1992’).

So ‘May 1994’ was also now out and they had to amend the date on the charge yet again. But they could not move it back to 1992. So they chose ‘one day at 7.45pm from 1 January 1993 to 31 March 1993’ as the new date of the charge. And Azizan would now need to change his testimony and contradict his earlier statement to make this new date possible.

‘Never sodomised after September 1992’ was no longer a statement that would be possible. ‘If I was asked specifically, then I would have said it still happened from 1 January 1993 to 31 March 1993’ was the new statement he would have to make though this contradicted everything he had said earlier.

And the trial judge allowed it to ensure the prosecution’s case would not be demolished and he refused to impeach Azizan and cite him for perjury, saying that, “Azizan’s testimony is as strong as the Rock of Gibraltar and that Azizan has satisfactorily explained the contradictions.

But the original alibi that the defence raised was only in respect of the ‘May 1992’ charge. This alibi would no longer be applicable to the new date on the charge, ‘one day at 7.45pm from 1 January 1993 to 31 March 1993’.

So the defence asked for a postponement to enable it to file a new Notice of Alibi as required under Section 402A of the Criminal Procedure Code.

“The judge knew what he was doing when he denied the request for a postponement to file a new Notice of Alibi under Section 402A,” said Gobind Singh Deo, Anwar’s counsel.

“Judges are bound to comply to this mandatory ruling and they have no discretion in the matter.”

“This Appeal Court is obligated to comply to this ruling and acquit both Anwar and Sukma of the conviction.”

“The Attorney-General (then), Tan Sri Mohtar (Abdullah) said the 90 days alibi the defence raised was a ‘sham defence’. He said this without a clue as to what evidence the defence had and who the witnesses were going to be.”

“The AG wanted blood. He acted Mala Fide. He did now know and did not care when he changed the date on the charge ‘from January to March 1993’.”

“The judge convicted Anwar and Sukma for an offence that happened between January and March 1993 ‘beyond reasonable doubt’ whereas the alibi proved that the entire 90 days Dato Seri Anwar was never near Tivoli Villa.”

“The AG tried to oppress Dato Seri Anwar. He knew Dato Seri Anwar and Sukma were not in Tivoli Villa, yet he purposely fixed these dates to frustrate the defence.”

“The AG’s conduct should be condemned.”

“It is shocking, shocking, shocking!”

“The AG said he had all the evidence of Dato Seri Anwar’s whereabouts both in and out of the country those entire 90 days. The AG said they had kept a diary of Dato Seri Anwar’s whereabouts.”

At this point the AG stood up to say that he did not have the diary and had never seen one.

Anwar then told the court that the diary in question was the police dairy that logged his detailed movements which the police confiscated and has since disappeared.

The court was then told, nevertheless, the defence managed to account for the entire 90 days between 1 January 1993 and 31 March 1993 and that this was never challenged or rebutted by the prosecution.

The judge, however, declared that the defence failed to provide an alibi for one of those 90 days; and that was 19 February 1993, which was Friday.

“Only the judge rejected it to secure a conviction.”

Gobind then took the court through the testimonies of the earlier trial to show that Friday, 19 February 1993, was also accounted for as Azizan has testified he had prayed his Zohor prayers at home that day so it could not have been a Friday since he would have gone to the mosque to pray.

“Even the trial judge said that Friday prayers are only preformed in the mosque and not at home.”

Friday, 19 February 1993, therefore, would have completed the alibi for the entire 90 days and Anwar and Sukma could not have sodomised Azizan between 1 January 1993 and 31 March 1993.

Anwar and Sukma, however, were convicted for a sodomy act that occurred ‘one day at 7.45pm between 1 January 1993 and 31 March 1993’ though it was proven beyond any shadow of doubt they were both nowhere near Tivoli Villa and could account for their whereabouts the entire 90 days. And the prosecution never denied or rebutted this.