Thursday, July 16, 2009

Sodomy 2: Anwar wins bid to get documents - Star

Jul 16 2009 By M. MAGESWARI

KUALA LUMPUR: PKR adviser Datuk Seri Anwar Ibrahim succeeded in his bid to get certain documents, including the witness statement of the complainant, for preparation of his sodomy trial.

High Court judge Justice Mohamad Zabidin Mohd Diah ordered the prosecution to supply to Anwar’s lawyers a copy of CCTV recordings taken from the guardhouse and lifts of Desa Damansara Condominium for three days from June 25 last year.

He ordered the prosecution to comply with his order within a week from Thursday.

If the prosecution wants to file for a stay of the court order, the judge said it would have to do so within 10 days.

Justice Mohamad Zabidin set July 24 for mention of the sodomy trial and an application by Anwar to strike out his sodomy charge.

In elaborating his stand Thursday, Justice Mohamad Zabidin said the ruling may help to prepare a proper defence.

On March 10, Anwar had pleaded not guilty to sodomising his former personal aide Mohd Saiful Bukhari Azlan, 24, at a condominium in Bukit Damansara here on June 26, last year.

“If a clear copy cannot be provided, the defence counsel can inspect the original recordings under the supervision of the investigating officer or/ and those under his order,” he said.

On the original samples taken from Saiful, the judge noted that all evidence had been sealed by the chemist and that any disturbance would affect its identity and chain of evidence over the production of exhibits in court during trial.

Therefore, Justice Mohamad Zabidin said the application to inspect those samples could not be allowed at this stage.

Justice Mohamad Zabidin ordered the prosecution to allow Anwar’s lawyers to inspect slides on the samples taken from Saiful under the supervision of the investigating officer and the chemist who analysed the items.

Among others, the judge ordered the prosecution to supply chemist notes over the analysis of certain samples and medical notes from Kuala Lumpur Hospital doctors who examined Saiful.

The judge also ordered the prosecution to provide a copy of its witnesses list and all documents which would be tendered in court as evidence in the trial.

Apart from that, the prosecution had to give a statement of facts which was favourable to Anwar if available.

The judge also ordered the prosecution to hand over copies of photographs and the medical report from Pusrawi Hospital over the examination of Saiful.

“If no report (from Pusrawi) is being provided, a confirmation by the concerned doctor that there is no such report should be given to the defence lawyer,” he said.

The judge ordered the supply of copies of six witness statements, including that from Saiful.

“There is nothing which suggests that giving a copy of these witness statements could prejudice the prosecution’s case or disturb the public interest,” he added.

Speaking to reporters later, Anwar said he was glad that his team could now get the items they required.

“However, we have to go through the due process,” he said.

Lead prosecutor Solicitor-General II Datuk Mohd Yusof Zainal Abiden said he would file for a stay of the court order, perhaps by Friday.

In an immediate reaction, Anwar’s lawyer Edmund Bon said, “It’s a very progressive decision in the spirit of the new amendment to the Criminal Procedure Code in Section 51A (to deliver certain documents to an accused before the commencement of the trial).

“I am glad that the High Court judge saw the logic of our arguments and issued the order he did. This is a landmark decision which should be welcomed by all,” added Bon.

He had earlier argued that the Parliament Hansard had elaborated that the defence could apply to the court even if certain facts were protected by public interest.

“The consequences are quite far reaching -- that the court has the power to decide when the accused files a complaint over this,” he said in reply Thursday over the application to get certain documents for Anwar’s lawyers to prepare his defence.

“Let us not get confuse the question of admissibility and substantive evidence with pre-trial discovery (with the supply of those documents),” he said.

Bon said the court has wide power over the application by issuing a “supervised order” for the inspection of certain documents.

“At this time, we are entirely handicapped as we cannot look at the scientific evidence for the sodomy trial,” he said.

He said the Public Prosecutor has a duty to act impartially and fairly as well as to see that justice is done, rather than merely focus on convicting the accused.

“This honourable court is in a position to step in and set things right,” he said.

Anwar’s lawyer Amer Hamzah Arshad said the application was to ensure a fair trial, while another, R. Sivarasa, argued that the defence was applying for those documents to prevent any suppression of evidence.

At the outset, the court granted an application by Sivarasa not to allow investigating officer DSP Jude Pereira to be inside the court on grounds that the officer was a key witness and an interested party.

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