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14 DECEMBER 2016 PRESS SUMMARY FEDERAL COURT OF MALAYSIA Dato' Seri Anwar bin ... PDF

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14 DECEMBER 2016 PRESS SUMMARY FEDERAL COURT OF MALAYSIA Dato’ Seri Anwar bin Ibrahim v. Public Prosecutor [Criminal Application No: 05-47-03/2014(W)] JUSTICES: Zulkefli bin Ahmad Makinudin (CJM), Richard Malanjum (CJSS), Hasan bin Lah, Abu Samah bin Nordin, Zaharah binti Ibrahim (FFCJ) BACKGROUND TO THE APPLICATION This is a review application by the applicant, Dato’ Seri Anwar bin Ibrahim for the following orders: (i) that the order of the Federal Court dated 10.2.2015 be set aside under Rule 137 of the Rules of the Federal Court 1995 [“RFC”] and/or pursuant to the inherent jurisdiction of the court; (ii) that the orders of conviction and sentence passed by the Court of Appeal on 7.4.2014 be set aside; (iii) alternatively, that his appeal in the Federal Court be re- heard on its merits; and (iv) that such further order or direction be made or given as this Court deems fit. [1] 1 The grounds relied on by the applicant for his review application can be summarized as follows: (i) that the judgment ought to be reviewed because of the swift and premature release of the Prime Minister’s Office’s statement on the date of this Court’s judgment dated 10.2.2015. This is an act on the part of the Executive arm of the Government that had rendered the decision of the Federal Court unsafe; (ii) that the conduct of counsel leading the prosecution after the date of this Court’s judgment renders the said judgment objectively unsafe; and (iii) that the Order of the Court of Appeal dated 7.3.2014 should be set aside to prevent injustice. The applicant alleged there had been a misevaluation of evidence, improper direction, non-direction or misdirection of the evidence by the trial court and the two appellate courts which had occasioned a procedural unfairness and thus a miscarriage of justice. [2] The applicant was charged at the instance of the Public Prosecutor for committing an offence under section 377B of the Penal Code. [3] The applicant as the accused person was charged under the above section for committing carnal intercourse against the order of nature on the complainant, Mohd Saiful Bhukhari bin Azlan. The evidence adduced by the prosecution showed that PW1, the complainant was the 2 accused person’s personal assistant since March 2008. By way of evidence given in camera PW1 described in detail how on 26.6.2008 his anus was penetrated by the accused person’s penis with the aid of lubricant known as “KY Jelly”. PW1 said that ejaculation occurred in his anus. On 28.6.2008, PW1 was examined by three doctors, namely Dr. Mohd. Razali Ibrahim (PW2), Dr. Siew Sheue Feng (PW3) and Dr. Khairul Nizam bin Hassan (PW4). During such examinations, specimens were taken from PW1. PW2 testified that he was of the opinion there was penile penetration. PW3 also concluded that there was anal penetration and it was consistent with “penile penetration”. PW4 also gave the same conclusion as that of PW3. [4] At the end of the prosecution’s case, the trial Judge ruled that the prosecution has established a prima facie case and ordered the applicant to enter on his defence. [5] The applicant elected to give statement from the dock. The applicant had earlier given a notice of alibi pursuant to section 402A of the Criminal Procedure Code and listed thirteen (13) witnesses in support of his alibi. However, the defence of alibi was abandoned. When he was called to enter on his defence, the accused called six (6) witnesses. The applicant claimed in his statement that he was deprived of a fair trial. The applicant alleged that the entire process was a conspiracy by the Prime Minister to send him into political oblivion. [6] The defence expert witness DW3 commented that there were serious shortcomings in the handling of DNA sample (D28) by PW3. DW3 3 further testified that it was wrong for PW2, PW3 and PW4 to conclude that there was “anal penile penetration” based on another person’s opinion. DW3 and another defence expert witness DW4 complained that there was no photographic evidence by PW5 indicating that the sperm were actually seen in the swabs. DW3 and DW4 said that the prosecution evidence pertaining to the finding of Male Y’s semen in the complainant’s anus was doubtful because it was unlikely any semen could be retrieved beyond 36 hours after a sexual act. What more in this case the samples were not properly handled. [7] At the conclusion of the trial, the learned High Court Judge found that the prosecution had failed to prove its case beyond reasonable doubt and the applicant as the accused person had succeeded in raising a reasonable doubt on the prosecution’s case. [8] Aggrieved with the decision of the High Court, the prosecution appealed to the Court of Appeal. On appeal, the Court of Appeal considered seven (7) issues including the credibility of PW1, corroboration, integrity and chain of evidence in relation to the exhibits, degradation of samples, statement from the dock, alibi and opposing expert testimonies. [9] After having heard the parties, the Court of Appeal allowed the appeal. The applicant was convicted and sentenced to five years imprisonment. [10] Aggrieved with the decision of the Court of Appeal, the applicant appealed to the Federal Court. The prosecution filed a cross-appeal on 4 inadequacy of sentence. After having heard the parties, the Federal Court dismissed both the appeal and cross-appeal. The conviction by the Court of Appeal and the sentence meted out by the Court of Appeal on the applicant was affirmed. The Federal Court in its judgment amongst other things made its findings on the main issues raised by the defence as set out below. [11] On the issue of the carpet [Exhibit P49A] the Federal Court agreed with the contention of the defence that there was no evidence led as to how P49A “moved” from apartment Unit 11-5-1 to Unit 11-5-2. P49A was sent to the chemist for analysis but no trace of KY Jelly was found on it. The Federal Court however held that there was no conclusive evidence that the KY Jelly had in fact spilled onto P49A. What PW1 said in his testimony was that the KY Jelly could have spilled on either P49A or the towel. In any event, the Federal Court took the view that P49A was not a critical piece of evidence to the prosecution’s case in light of other compelling evidence. [12] On the defence contention of the break in the chain of custody of the exhibits, the evidence shows that PW25, after receiving the sample bag (Exhibit P27), had cut it open to add his own markings to the samples inside. He was merely adhering to departmental guidelines and the Inspector-General Standing Orders [“IGSO”] which required him as an investigating officer to put proper markings and labelling to the exhibits for the purpose of identification in courts. Having seen the physical evidence, especially the bottom part of P27 that was snipped by PW25, the Federal Court observed that PW25 was extremely careful in 5 handling it. PW25 even left the snipped portion of P27 attached to it to show transparency in his action. PW25 then sent the samples to PW5 who thereafter developed the Male Y DNA profile. [13] PW5 in her testimony confirmed that she did not detect any tampering of the seals of the exhibits marked B to B10. The Federal Court therefore found that there was no break in the chain of custody of those exhibits. As such, the Federal Court agreed with the Court of Appeal that the integrity of the samples was not compromised. The Federal Court went on to state that the fanciful suggestion of the defence counsel that the DNA evidence had been planted was therefore unsustainable. [14] On the defence of political conspiracy the Federal Court noted that the complaint was that the High Court and the Court of Appeal did not consider the political conspiracy defence which if accepted or believed would entitle the accused to an acquittal. On this issue the Federal Court accepted the fact that the courts below did not explicitly consider the political conspiracy defence which was raised by the accused in his unsworn statement from the dock. In law, a trial judge will not give much weight to what an accused has said in his unsworn statement as he is not subject to cross-examination by the prosecution nor can he be questioned by the trial judge. The Federal Court held on this issue that the Court of Appeal had adopted the right principle in assessing the applicant’s statement from the dock and the defence of political conspiracy remained a mere allegation and unsubstantiated by any credible evidence. [15] 6 On the issue of DW1, who was not called as a witness by the prosecution, the Federal Court noted that DW1 was the doctor from PUSRAWI who first examined PW1. It was the defence’s contention that DW1 should have been called by the prosecution as a witness in order to unfold the narrative of its case. This is especially so when DW1 in his evidence said that PW1 had told him that he had been assaulted by the insertion of a plastic object into his anus. On this issue the Federal Court held that it is trite that the discretion to call any witness lies with the prosecution and the court will not interfere with the exercise of that discretion. The non-calling of DW1 by the prosecution did not create any gap in its case as it had been fully narrated through the evidence of PW1 and corroborated by the three doctors (PW2, PW3 and PW4) and the chemists (PW5 and PW6). As such the Federal Court held that the question of drawing an adverse inference against the prosecution under section 114(g) of the Evidence Act did not arise. [16] In support of the applicant’s application for a review of the applicant’s case learned Counsel for the applicant referred to us the provision of Order XLVII Rule 6 of the Indian Supreme Court Rules 1966 which he contended is in pari materia with our Rule 137 of the RFC. [17] It was further submitted for the applicant that this Court can exercise its inherent power in the event of there being an error brought to the notice of this Court. [19] On the first ground of complaint, based on the press statement of the Prime Minister’s Office, it was argued for the applicant that on 7 10.2.2015, learned Chief Justice of the Federal Court, the presiding Judge of the five member panel of the Federal Court, read out the Judgment of the Court which ended in the pronouncement of the conviction of the applicant at about 12.30 p.m. The Court adjourned for an hour in order to hear arguments on sentence. About fifteen minutes after the Court adjourned and before the arguments on sentence were heard, the Prime Minister’s Office issued a statement commenting on the applicant’s conviction and urging all persons to accept the decision. [21] The applicant took the view that the extraordinary swiftness and timing of the statement and its contents thus gave the impression to the public that the Prime Minister’s Office knew beforehand the result of the applicant’s case and that the Prime Minister’s Office statement further showed that the applicant did not receive a fair and independent hearing. [22] On the second ground of complaint, based on the conduct of counsel leading the prosecution, it was contended for the applicant that subsequent to the applicant’s conviction, Tan Sri Muhammad Shafee Abdullah, the said leading counsel, embarked upon a speaking roadshow to explain the “Sodomy II Case”, by which term this case was referred to by learned Counsel. The applicant alleged that during the roadshow, Tan Sri Muhammad Shafee Abdullah gave vent to vicious, vulgar and personal attacks upon the applicant as the accused person in the case. It was further alleged that the roadshow was organized and facilitated, supported and endorsed by the political party UMNO. It has 8 been the applicant’s case throughout that this political conspiracy involved none other than the Prime Minister who had met with the complainant (PW1) two days before the alleged incident. To the applicant this conduct of the prosecutor had tainted the fairness of the applicant’s trial. It further showed that the prosecutor was biased and conducted the prosecution not in the interest of justice. [23] On the third ground relied on by the applicant it was submitted that there had been a breach of the rules of natural justice in the conduct of the trial against him. The learned trial Judge in this case had ruled as inadmissible evidence alluding to alleged previous occasions on which acts of sodomy had been committed. The applicant was therefore entitled as a matter of natural justice not to have such evidence used against him. But when he came to write his judgment, the learned trial Judge acted on this very evidence. This is a serious violation of the rules of natural justice which has occasioned a miscarriage of justice. Learned counsel for the applicant submitted on this point that the Court of Appeal and the Federal Court should have acted to correct this serious injustice but they did not do so. The respondent has therefore benefited from this departure of such an important rule which constituted an abuse of process. [24] Still on the issue of injustice effected on the applicant it was submitted that the integrity of the scene of the alleged crime is of primary importance and this was compromised by the prosecution. According to the complainant PW1 the alleged act of sodomy was committed on a carpet in unit apartment 11-5-1. There was no evidence led as to how 9 the carpet (P49A) moved from unit apartment 11-5-1 to unit 11-5-2. This staggering failure by the prosecution was dismissed in the judgment of the Federal Court as being not a critical piece of evidence to the prosecution’s case. The Federal Court thus failed to deal with this crucial issue and to make obvious inferences from it. [25] It is the applicant’s contention that the Federal Court was wrong in finding that it is alright for the prosecution not to call a witness DW1, the doctor from PUSRAWI who examined PW1 and who clearly was in a position to give evidence favourable to the applicant as the accused person. [26] It was also submitted for the applicant that the evidence of DW6, who testified that PW1 hated the accused person, was not even considered by the Federal Court. [27] On Exhibit P15 which was the underwear worn by PW1 on the day he was allegedly sodomised, the applicant contended that it had been washed by the mother of PW1’s fiancée. This was not addressed and completely overlooked by the Federal Court. [28] Exhibit P14 it was the underwear worn by PW1 on the day he lodged the police report. However, the defence contended that P14 was not the underwear worn by PW1 during the alleged incident. However, the chemist (PW5) found semen stains on P14 rendering PW1’s evidence totally unreliable. This was completely overlooked by the Federal Court, Court of Appeal and High Court. [29] 10

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(CJSS), Hasan bin Lah, Abu Samah bin Nordin, Zaharah binti Ibrahim. (FFCJ) This is a review application by the applicant, Dato' Seri Anwar bin.
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