|
FAC News - Sunday, August 11, 2002 1:06 PM In the Federal Court of Malaysia (Appellate Jurisdiction) Criminal
Appeal No.: BETWEEN DATO’ SERI ANWAR BIN IBRAHIM APPLICANT/APPELLANT AND PUBLIC PROSECUTOR RESPONDENT/RESPONDENT (In the matter of Court of Appeal Criminal No. :W05-25-99 & W05-27-99) BETWEEN DATO’ SERI ANWAR BIN IBRAHIM APPELLANT AND PUBLIC PROSECUTOR RESPONDENT (In the matter of High Court of Malaya, Federal Territory Criminal Trial No.:45-48-98 & 45-59-98) Between Public Prosecutor And Dato’ Seri Anwar Bin Ibrahim) NOTICE OF MOTION TAKE NOTICE that on the ninth day of August 2002 at 3.00 o’clock in the afternoon or as soon thereafter as can be heard Mr. Karpal Singh and Mr. Christopher Fernando of Counsel the abovenamed Applicant/Appellant will move the Court for an order that the Honourable Court invokes its inherent powers in rule 137 of the Rules of the Federal Court, 1995 and set aside the conviction and sentence of the Applicant/Appellant that were confirmed and upheld by the Federal Court on the of 10 July, 2002 or make such further or other order/s deemed fit and proper in the interests of justice on the grounds set forth in the affidavit of Anwar bin Ibrahim accompanying the motion herein. Dated this ninth day of August, 2002 …………………………….… ……………………… Messrs S.N. Nair & Partners Deputy Registrar Federal Court
To:- Pendakwa Raya Jabatan
Ibu Pejabat Pendakwaraya Pusat Pentadbiran Kerajaan Persekutuan 62502 Putrajaya This notice
of motion is filed by Messrs S.N. Nair
& Partners, solicitors for the Applicant/Appellant whose address
for service is at In the Federal Court of Malaysia (Appellate Jurisdiction) Criminal
Appeal No.: BETWEEN DATO’ SERI ANWAR BIN IBRAHIM APPLICANT/APPELLANT AND PUBLIC PROSECUTOR RESPONDENT/RESPONDENT (In the matter of Court of Appeal Criminal No. :W05-25-99 & W05-27-99) BETWEEN DATO’ SERI ANWAR BIN IBRAHIM APPELLANT AND PUBLIC PROSECUTOR RESPONDENT (In the matter of High Court of Malaya, Federal Territory Criminal Trial No.:45-48-98 & 45-59-98) Between Public Prosecutor And Dato’ Seri Anwar Bin Ibrahim) AFFIDAVIT I, ANWAR BIN IBRAHIM (NRIC NO. 470810-07-5095) a Malaysian citizen of full age and presently residing at Penjara Sungai Buloh, Selangor Darul Ehsan, do solemnly and sincerely affirm and say as follows:- I am the abovementioned Applicant/Appellant. I am affirming this affidavit in support of the application filed herein. The facts and circumstances relating to the matter herein are true and correct and within my personal belief and knowledge unless otherwise stated. I was charged
under Section 2 of the Emergency (Essential Powers) Ordinance No.
22 of 1970, by the High Court of Malaya at Wilayah Persekutuan, I appealed
against the decision of the High Court to the Court of Appeal, which
dismissed the appeal on I respectfully state that rule 137 of the Rules of the Federal Court, 1995, confers on the Federal Court, inter alia, inherent power to hear any application or to make any order as may be necessary to prevent injustice. As such, I pray this inherent power be invoked to hear this application on the following grounds:- [1] The Federal Court was wrong in not addressing a vital consideration, after accepting the learned trial Judge had rightly expunged prejudicial evidence relating to the commission of sexual misconduct and sodomy, namely, whether he should have ordered a trial de novo before another judge in view of the effect of such prejudicial evidence, which was substantial, on his mind or in the alternative, directing himself adequately as to the danger of proceeding with the trial despite hearing a substantial body of prejudicial evidence; [2] The Federal Court seriously misdirected itself in not considering and concluding the truth or falsity of sexual misconduct was relevant as the charges against the applicant/appellant would prompt the necessity of ascertaining the truth of the allegations to trigger off alleged forced retractions of the allegations and also the element of advantage had the applicant/appellant been prosecuted which would be a fundamental ingredient required to be proved by the prosecution for corrupt practice; [3] The Federal Court’s finding that the conduct of the trial judge in Zainur Zakaria v Public Prosecutor [2001] 3 MLJ 604 was not really relevant to the four charges faced by the appellant flew in the face of the fundamental canon of law that justice must not only be done but be manifestly seen to be done and that the entire trial had, in the light of the findings by the Federal Court in Zainur Zakaria’s appeal, been irretrievably contaminated and beyond salvation in the legal perspective of the burden being on the prosecution to prove its case beyond reasonable doubt; [4] The Federal Court seriously misdirected itself in not considering in the Zainur Zakaria appeal the Federal Court, the highest court in the country, had apart from saying, ‘Apart from the fact that the application was filed on Saturday and the hearing took place on the following Monday, the notes of evidence the reproduction of which earlier in this judgment was for the sole purpose of illustrating the point, clearly showed that the trial judge, despite the intervening day being a Sunday, was quite well prepared for the event. The manner he conducted the proceedings, in particular the interrogation of the appellant and the speedy finding of guilt without even allowing the appellant to call any witness, gave the picture that he was behaving as though he was acting as counsel for the two prosecutors in the motion’, the Federal Court also adverted to the prosecution engaging in a conspiracy to fabricate evidence against the applicant/appellant; [5] The Federal Court was wrong in its approach that the trial judge’s ‘flexing every inch of his judicial muscle’ or uttering harsh words against the defence lawyers or threatening them with contempt must be contrasted against the colourful backdrop of the trial and taken in that spirit and that the overall conduct of the trial judge, did not occasion a miscarriage of justice warranting appellate interference; [6] The Federal Court had failed to appreciate that the expunging of evidence was favourable to the prosecution but severely prejudiced the defence with the reasons given for the expunging of evidence not being tenable in law or in fact resulted in the appellant being precluded from raising the best defence available to him thereby compromising the applicant/appellant’s fundamental right; [7] The Federal Court seriously misdirected itself in holding the amendment of the charges against the applicant/appellant had not led to substantial miscarriage of justice while conceding the initial framing of the charges by the prosecution was tenuous; [8] The Federal Court seriously erred in failing to appreciate the substance of the submissions advanced on behalf of the defence at various instances. That the Federal Court misunderstood the submissions is evident in the misapplication of the authorities cited as well as misinterpretation of the defence submissions apart from factually incorrect statements in the judgment; [9] The Federal Court also seriously erred in its application of the various authorities in its judgment inclusive of Barry Victor Randall v The Queen (Privy Council Appeal No. 22 of 2001); Grace Shipping Inc & Anor v CF Sharp & Co (Malaya) Pte Ltd (1987) 1 MLJ 257; and Bhandulananda Jayatilake v Public Prosecutor (1982) 1 MLJ 83; [10] The judgment of the Federal Court is fundamentally flawed as it fails to consider the various questions posed by the learned Judges during submissions by counsel and appears to be inconsistent with questions posed to Counsel on various instances during the hearing of the appeal, an example being the issue of political conspiracy as questioned by Tan Sri Steve Shim CJ (SABAH & SARAWAK) whereas no mention or reasoning or application of such issues appear in the judgment. These inconsistencies between the actual hearing of the appeal and the delivery of judgment raises questions of contradictory conduct; [11] The Federal Court seriously misdirected itself by way of non-direction in its failure to adequately show it considered the grounds of appeal in the petition of appeal save for mere reiteration of aspects of the High Court and the Court of Appeal judgments without application of any reasoning for same; and [12] The judgment of the Federal Court is also flawed as it does not expressly reflect the concurrence of all the learned Judges with regard to the two judgments delivered as is the conventional practice when written judgments are handed down. This normal convention of concurrence of all judges is not expressly stated anywhere in the two judgments. Further, no findings of Tan Sri Steve Shim CJ (SABAH & SARAWAK) are expressly adverted to in the said judgments. The format of the said judgments does not explicitly advert to concurrence between the judges who presided over the appeal; During the submissions of Senior Deputy Public Prosecutor, Mohd Yusof, in the Federal Court, YAA Tun Mohamed Dzaiddin Hj Abdullah had occasion to say as follows:- “My question is on their defence being stopped/barred” (this was asked pursuant to the issue of the defence being prevented from calling evidence at the trial in the High Court). “He is entitled to go on that defence” “But that is their defence. Question is, is it proper of the judge to stop their defence”. “To bring him down/topple him was achieved long before the charge”. 7. During the submissions of Deputy Public Prosecutor, Dato’ Azahar bin Mohamad, in reference to the covering letter referred to, which was not raised, YA Dato’ Haidar bin Mohd Noor had stated the following:- “The covering letter referred to, was it raised in X-E?” (to which the Public Prosecutor replied, “No”). “You cannot assume. If it was a covering letter, you must produce. Question is which is which?” “Was the X-E on these documents?” I respectfully
state after delivery of judgment by the Federal Court, various independent
watch-group bodies have manifested their strong dissatisfaction
and disappointment with the said judgment. Among these groups that
have very publicly voiced their concern over the decision are the
European Union, the United
Nations, the Wherefore, I respectfully state under the circumstances, the decision of the Federal Court cannot bear close scrutiny and the Honourable Court should invoke the provisions of rule 137 and set aside any conviction and sentence or make such further or other order deemed fit and proper as there has been infringement of the provisions of Article 5(1) of the Federal Constitution which states, ‘No person shall be deprived of his life or liberty save in accordance with law’. JURAT In the Federal Court of Malaysia (Appellate Jurisdiction) Criminal
Appeal No.: BETWEEN DATO’ SERI ANWAR BIN IBRAHIM APPLICANT/APPELLANT AND PUBLIC PROSECUTOR RESPONDENT/RESPONDENT (In the matter of Court of Appeal Criminal No. :W05-25-99 & W05-27-99) BETWEEN DATO’ SERI ANWAR BIN IBRAHIM APPELLANT AND PUBLIC PROSECUTOR RESPONDENT (In the matter of High Court of Malaya, Federal Territory Criminal Trial No.:45-48-98 & 45-59-98) Between Public Prosecutor And Dato’ Seri Anwar Bin Ibrahim) Affirmed by ANWAR BIN IBRAHIM ] On the ninth day of August 2002 ] Before me, ……………………….. Commissioner of Oaths This affidavit
is filed by Messrs S.N. Nair & Partners,
solicitors for the Applicant/Appellant whose address for service
is at
|
|
Back |