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

25 Pages·2016·0.22 MB·English

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]
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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
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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
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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
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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
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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]

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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
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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
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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
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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]
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