Sodomy conviction decided in haste, Anwar’s defence tells apex court

Datuk Seri Anwar Ibrahim's defence team concluded their first round of submissions to the Federal Court today by telling the bench of five judges to intervene and correct the wrong findings of the courts in the earlier stages of the trial.

Anwar is appealing to the apex court to overturn the conviction that he sodomised his former aide, Mohd Saiful Bukhari Azlan.

Lead counsel Datuk Seri Gopal Sri Ram said there had been "a miscarriage of justice", as the High Court and Court of Appeal had not given the evidence tendered the "strictest scrutiny".

In building a case against Saiful's credibility, Sri Ram said his testimony was inconsistent with the evidence and the court had failed to evaluate the contradictions during trial stage.

Sri Ram also said when the Court of Appeal heard the prosecution's petition against Anwar's acquittal by the High Court, it was rushed and hastily done, so that the manner in which the conviction was decided was "unsafe".

The prosecution's appeal against the acquittal was initially scheduled for hearing in April this year, but was brought forward to March.

Sri Ram said the defence team had asked for time to make submissions to the Court of Appeal, but it was turned down.

Earlier, Sri Ram, a retired federal judge, had outlined other mistakes made in the earlier stages of the trial.

He said the charge had been wrongly framed to begin with, as the complainant Mohd Saiful Bukhari Azlan had said during trial that the sodomy was not consensual.

Sri Ram added whereas the charge against the opposition leader was under a different section of the Penal Code for consensual or voluntary sodomy. Saiful could have been impeached for this, as a charge should be framed based on what the complainant said.

Anwar also had an alibi, Sri Ram told the Federal Court, adding that the defence did not pursue it because police had intimidated the main alibi witness, who is the owner of the condominium, named only as "Hasanuddin".

However, the Court of Appeal had zoomed in on it, and had cited the lack of an alibi in its written judgement as one of the reasons it overturned the High Court's acquittal.

"(The function of the Court of Appeal) was to review findings of facts made by the trial court. (It is in) no part of appellant court's judgment to make findings of its own," Sri Ram said.

The prosecution during the appeal stage had submitted that Anwar had failed to call an alibi witness, but Sri Ram said this could not be used against his client because the prosecution's petition of appeal did not include it.

Sri Ram returned to the evidence on the lubricant allegedly used by Anwar on the complainant, which he said was mishandled by the case investigating officer and the trial judge earlier this morning.

Arguing on the point that Saiful was not a credible witness, Sri Ram said that there was no trace of jelly found on the carpet in the condominium where the alleged offence took place.

Saiful said in his trial testimony that he had spilled some K-Y Jelly on the carpet when he was sodomised.

Sri Ram, however, said that the police's investigation did not find any trace of lubricant on the carpet.

"The finding of the jelly would have been damning corroboration of the witness evidence.

"(However) no detectable stain on carpet. No traces of jelly were found."

Sri Ram then told the five-member panel: "What could have amounted to corroboration actually supports the defence's case that the offence never took place".

Sri Ram, a prominent retired federal court judge, is leading Anwar's defence team which has 13 other lawyers.

The Federal Court's five-man panel of judges is led by Chief Justice Tun Arifin Zakaria, while others on the bench are Tan Sri Raus Sharif, Tan Sri Abdul Hamid Embong, Tan Sri Suriyadi Halim Omar and Datuk Ramly Ali.

Anwar, the opposition leader, was charged with sodomy against Saiful at an apartment in Damansara on June 26, 2008. He was acquitted by the High Court in January 2012 but then found guilty by the Court of Appeal in March this year.

Anwar, 67, was sentenced to five years' jail by the appellate court but has obtained stay of execution pending the outcome of his present appeal in the Federal Court, which is expected to give him a hearing until Thursday.

Earlier today, Sri Ram said Saiful was "spicing up" his testimony during the trial when he had said that Anwar had also sodomised him on previous occasions.

Sri Ram said the evidence had been expunged and could not be taken into consideration, adding that the trial judge wrongly used expunged evidence

The defence earlier said other problems revolved around the K-Y Jelly allegedly used during penetration.

Sri Ram said the police report by Saiful did not mention the lubricant and he only mentioned it for the first time during his testimony.

Sri Ram said it was "incredible" that Saiful would have deliberately bought K-Y Jelly and then allege that he was "forcefully sodomised".

The trial judge had erred when dealing with the lubricant as evidence, Sri Ram said, and this "casts doubts" on the integrity of the evidence.

This is the second sodomy charge against Anwar. The first was in 1998, after he was sacked from government. He was then accused of sodomising his former driver and acquitted by the Federal Court in 2004.

This time, Anwar's political career could come to an end if the apex court upholds the Court of Appeal's conviction and sustains the sentence. – October 28, 2014.

* Reporting contributed by Tarani Palani, The Edge Financial Daily.