PERBICARAAN ANWAR IBRAHIM - KES LIWAT 2 - 2010 - HARI 19

TRANSKRIP PERBICARAAN DATUK SRI ANWAR IBRAHIM - 16 OGOS 2010

Di Mahkamah Tinggi Jenayah 3 KL

Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Permohonan Mengenepikan Pertuduhan

Pihak-pihak:

PP: Semua hadir

PB: KS, SN, Dato’ CV Prabhakaran, Radzlan, (Marissa, Ram Singh, Datuk Param Cumaraswam tidak hadir)

WB: Andy Yong (Bar Council), Mark Trowell (QC for the Law Asia, CLA and ICJ)

AI hadir

Keputusan 44-176-2010

[9.14 a.m.]

YA: [read his decision]

DSAI, pemohon dalam notis usul memohon agar Mahkamah membatalkan pertuduhan di bawah Seksyen 377B Kanun Keseksaan yang sedang dihadapi oleh beliau. Permohonan ini disokong dengan afidavit sokongan pemohon. Pemohon mendakwa Cik Farah Azlina (FA) mempunyai privy kepada kertas siasatan, FA mempunyai hubungan sulit dgn SP1, SP1 telah diberi taklimat mengenai kandungan kertas siasatan melalui hubungannya dengan FA dan berikutan dari itu, intergriti dan kebebasan pendakwaan terhadap Pemohon telah terjejas.

Pendakwa membantah permohonan ini dan memfailkan dua afidavit balasan yang diikrarkan oleh Mohamad Hanafiah Zakaria dan Jude Blacious. Dalam afidavit, pihak Pendakwa tidak menafikan atau mengesahkan terdapat hubungan antara Cik FA dengan SP1 tetapi hanya menegaskan peranan Cik FA dalam kes ini hanya tertumpu pada mencatat keterangan yang diberi oleh saksi dalam Mahkamah. Oleh itu, SP1 juga tidak mempunyai akses kepada maklumat yang ada dalam kertas siasatan.

KS berhujah dan mendesak agar Mahkamah menerima apa yang dinyatakan oleh Pemohon dalam afidavitnya sebagai benar kerana tiada sebarang penafian dari mana-mana anggota pasukan Pendakwaan berhubung hubungan sulit antara FA dengan SP1. Dengan wujudnya hubungan antara FA dan SP1, maka terdapat salah guna proses Mahkamah.

PCN II telah berhujah bahawa Afidavit Pemohon melanggar Aturan 41 Kaedah 5 Kaedah-Kaedah Mahkamah Tinggi. Apa yang dinyatakan dalam afidavit tersebut merupakan dengar cakap dan tidak boleh diterima pakai. Berdasarkan kecacatan ini, maka tidak ada apa-apa yang perlu dijawab oleh Responden Atas alasan ini sahaja permohonan harus ditolak.

KS tidak menafikan bahawa Aturan 41 Kaedah 5 terpakai tetapi menegaskan bahawa apa yang dinyatakan oleh Pemohon dalam Afidavitnya memenuhi keperluan bawah aturan 41 Kaedah 5 Kaedah-Kaedah Mahkamah Tinggi dan bukan dengar cakap.

Saya bersetuju sekiranya permohonan pemohon dibenarkan, maka perbicaraan kes ini akan terhenti dan dengan itu akan melupuskan hak pihak-pihak yang terlibat. Oleh itu ia bukanlah sesuatu yang berbentuk interlokutari di mana sesuatu afidavit yang hendak diguna pakai boleh sekadar mengandungi kenyataan mengenai maklumat atau kepercayaan tersebut seperti diperuntukkan di bawah Kaedah 5(2) kepada Aturan 41 Kaedah-Kaedah Mahkamah Tinggi. Oleh kerana sifat permohonan ini yang bukan bersifat interlokutari, Aturan yang terpakai adalah Aturan 41 Kaedah 5(1) Kaedah-Kaedah Mahkamah Tinggi. Ini bermaknan perkara yang hendak dinyatakan dalam afidavit mestilah terhad kepada fakta yang Pemohon boleh buktikan berdasarkan pengetahuannya sendiri.

Responden dianggap mengakui bahawa fakta yang ditegaskan oleh Pemohon dalam afidavit adalah berdasarkan pengetahuan Pemohon sendiri atau dari rekod yang Pemohon mempunyai akses. Ini menepati keperluan Aturan 41 Kaedah 5(1) Kaedah-Kaedah Mahkamah Tinggi.

Setelah menimbang dakwaan dalam Afidavit pemohon yang lebih bersifat andaian dan kepercayaan Pemohon semata-mata berhubung isu ini dengan apa yang ditegaskan oleh Jude Blacious dan Mohamad Hanafiah Zakaria berhubung isu tersebut. Dari penjelasan kedua-dua mereka ini, adalah munasabah untuk memutuskan bahawa walaupun FA merupakan seorang dari kumpulan dalam pasukan pendakwaan tetapi oleh sebab pasukan pendakwa bertindak atas ‘need to know basis’ dan peranan FA yang begitu terhad maka FA tidak pada bila-bila masa mempunyai akses kepada kertas siasatan atau salinan kertas siasatan termasuk apa-apa dokumen di dalamnya. FA juga tidak terlibat dalam sebarang taklimat berhubung strategi pengendalian kes. Memandangkan FA sendiri tidak mempunyai akses kepada kertas siasatan atau dokumen berkaitan serta mempunyai pengetahuan berhubung kandungan kertas siasatan atau dokumen atau strategi pendakwa, maka tidak mungkin SP1 mempunyai akses kepada kertas siasatan atau mempunyai maklumat apa yang terkandung dalam kertas siasatan melalui FA.

[]

[]

[]

Peranan FA hanyalah setakat mengambil nota keterangan di Mahkamah. Dia bukan seorang Pendakwa Raya yang membuat keputusan untuk menuduh pemohon. Perjalanan dan arah tuju pendakwaan kes ini bukan ditentukan oleh FA. Dia bukan seorang dari yang mengendalikan pemeriksaan saksi. Dalam keadaan demikian saya berpendapat apa-apa pengaruh SP1 ada atas FA hasil dari hubungan mereka tidak mungkin dapat mempengaruhi pasukan pendakwaan sehingga mengkompromi intergriti dan kesaksamaan pasukan Pendakwa.

Saya dapati tiada apa salah guna proses mahkamah di dalam kes ini bagi membolehkan Mahkamah membatalkan pertuduhan yang dihadapi Pemohon. Oleh itu permohonan pemohon ditolak.

[9.28 a.m.] Application dismissed.

Kes No. 45-9-09

Pemeriksaan balas SP2

[9.48 a.m.]

MY: Kes untuk pemeriksaan balas SP2.

KS: Before we proceed with the trial, as lawyers we are trained to accept decision of the court but sometimes it’s quite critical that the decision should []. It is quite clear that there is inconsistency in the judgment given. We intend to go on with this matter to the Court of Appeal. We’ve filed the notice of appeal this morning. In the meanwhile, we’ve planned for a stay proceeding. In any event, we cannot make it orally. We are going to file an application and accompany by affidavit and my learned friend should reply. We need time. We will serve this. Could we adjourn to tomorrow morning for the application for stay to be heard? I cannot see how the proceeding can continue now.

MY: I’m objecting for the application of stay pending appeal. We need to proceed. We’ve postponed this case for too long. Until the application filed and heard, I think we should proceed with the trial.

KS: My learned friend is being petty. He should not here to push to prosecute. As a matter of right, the accused has the right to file an appeal and as of right he has the opportunity to file an application for stay.

YA: That’s all?

KS: For the moment, yes.

YA: I agree with MY that unless there is an application made and order for stay, the trial should.

KS: Unless with application. Your Lordship has said that.

YA: As far as I’m concern, there is no application file before me yet. That’s my order. I’ve made my order. Proceed. MY, where is your witness?

KS: Your Lordship can’t make an order that is frivolous.

YA: Call the next witness

KS: This is unfair. We can’t just sit here and allow injustice done. I will not be intimidated.

YA: Be careful with your words.

KS: We would like a short break before we proceed.

MY: When in lower court, [] we should proceed

KS: We will proceed, but we need to take a break for the defence discuss with our strategy.

YA: I take your word that you need ½ hour. You can have your own strategy.

KS: Yes. Subject to that strategy. We’ve the right. You cannot deny the right. Your Lordship should not []

YA: After ½ hour break, we’ll proceed to cross-examination SP2.

KS: Depends on what we have to say. Condition should not be attached. Subject to our strategy and what we have to say.

YA: So you said you are not going to cross-examination him?

KS: Subject to strategy. I take instruction from my client. Your Lordship can’t deny that.

YA: ½ hour and then we’ll proceed with cross-examination.

[9.57 a.m.] Stand down

[10.51 a.m.]

KS: [] my learned friend has considered the order made by your Lordship.

YA: I think you silap dengar my judgment. Itu adalah bawah Aturan 41.

KS: It is for striking out the charge. It must be a final order and under such circumstances the charge should be struck out. Your Lordship said unless there is an application for stay. We did not contemplate what is your Lordship decision and therefore no application for stay is made. There is no such thing as oral application for stay of proceeding.

I refer to case of Kosma, last para [read] The application must be file by way of an affidavit and how can we file it unless we have the time. We were given time before. This is precedent set by your Lordship yourself. And MY ought not to try to persuade your Lordship not to do that. Your Lordship is bound by the decision of the Federal Court. Why unholy haste? We are not delaying the proceeding. We ask what we are entitled as of right. We don’t beg because this is our right. I believe in demanding. In fact, we are demanding what DSAI is entitled to. We need time to file the application for stay. We need until afternoon. We can even continue after five.

YA: So I take it you want to file it this afternoon?

KS: Yes. We can proceed with the trial perhaps till evening and night.

YA: KS tak puasa.

KS: This is as of right. You cannot deny the right. This is a matter of discretion and in the spirit of Ramadan; you cannot go against the application I’ve made. Your Lordship is bound by the authority. Any real prosecutor will agree with our argument.

YA: I’ve to hear MY.

KS: Yes. You can hear but should not unnecessarily influenced by him. He is the SGII. He must be fair and ensure a fair trial. More so, your Lordship. Give us what is due to us. We’ll come back in the afternoon. I will file it within an hour.

YA: Itu sahaja?

KS: Yes. Let justice prevail.

YA: MY?

MY: I don’t know what to say. Justice is said too many times. For once, I agree with my learned friend that we must do justice. To apply for a stay is not a right. It is a grey area. What your Lordship ruled [] The word decision under Section 3 Criminal Procedure Code and [] does not amount to stay. I’m objecting in principle.

my learned friend has given undertaking []

YA: 2.15 p.m.?

KS: It could be a little more than that.

YA: But please. 2.15 p.m. is 2.15p.m., not 2.30 p.m. Just now you said you need ½ hour to file the application, but you took more than that.

KS: We were outside waiting for your Lordship.

KS: You were not here. I was about to come up but you were not here. So now you want to blame the court?

MY: We’ve the authority ready for the last time.

YA: Just nice. Now is 11. So, you have more than 1 hour to file. In fact, you have 2 hours to file it. 2.15 p.m. we’ll assemble again.

[11.01 a.m.] Stand down

[3.08 p.m.]

Permohonan 44-186-2010

KS: The notice of appeal against your Lordship ruling has been and following that application, the application for stay has been filed in the Court of Appeal. The ground of appeal is founded and supported by the affidavit of DSAI which had been filed just now. At this point, your Lordship should consider whether no.1 the ruling made by your Lordship is a final order. I refer to Section 3 of Courts of Judicature Act 1964. [read Section 3 Courts of Judicature Act 1964] we say here that the ruling made are one which would finally dispose the right of the parties. If the charge is struck out, that is the end of the matter. It finally disposed the right of the parties.

The 2nd requirement is whether the position would be nugatory if your Lordship continues with the trial. I refer to the case of Kosma. [Refer Para 1 of case and read nugatory part]. We say the matter will become nugatory if your Lordship continue with the trial and the Court of Appeal decides the charge to be stuck out and that will be special circumstances – nugatoriness. Under these special circumstances, we apply for the application be allowed. As simple as that.

MY: With regard of the 1st issue, whether the ruling made by your Lordship is final order and therefor appealable, we humbly submit it is not a final order and the application for stay does not arise. It is simple, depending on who apply. Just like the case of Saad b. Abas, the final order was against the PP when at the close of the prosecution case, the judge acquits the accused, but it is not a final order for the defence. If prosecution had proved prima facie case, defence can answer and rebut. In our case, what your Lordship ruled against their application was just to maintain the status quo. It is not even coming close to prosecution case. Even if there is a case to answer, that is not enough to constitute a final order. What more to dismiss the application.

We have 2 cases. Saad b. Abas and DSAI v PP. I don’t want to read, but I’ll give it to your Lordship. Where any ruling made in the course of the trial is not a final order. For Saad bin Abas, holding no.1 and no.2 and DSAI case, 1999 case, holding no.3.

With regard to Kosma case, DSAI affidavit mentioned that the appeal will be nugatory if that stay is not granted. Without saying more, in what manner will it be nugatory? In Mohd Mustafa b. Kandasamy, tab 4 of our bundle it will only be nugatory if the parties is deprived of the fruit of the trial. If my learned friend succeeds, it will be the end of the trial. It will be a final order for us, but not theirs. They will not be deprived of the fruit of the trial. Their appeal will not be nugatory and they will enjoy the fruit of success. [Refer Kosma] Stay is granted if the appeal will be render nugatory. In Mustafa b. Kandasamy, it is nugatory if they are deprived as to the result of the appeal. In our case, they will enjoy the fruit of the trial if they succeed in their appeal.

YA: This are civil cases.

MY: In criminal case, refer tab 1. In Criminal Procedure Code, it only talks about appeal against acquittal, and stay will be granted if there is something that cannot be reversed. Example will be whipping and hanging, but not necessarily in all exceptional circumstances. In Kosma, it talks about stay at the end of the trial. If civil cases do not apply, more so in this matter, it should not. Because in criminal cases, stay only apply at the end of the case. I pray for this application to be dismissed and continue with the examination of the witnesses.

KS: Question of stay has already been decided by the Federal Court decision.

YA: Federal Court decision is to continue with the case.

KS: We are not appealing against that. We are appealing on the decision of your Lordship dismissing our application to strike out the charge.

YA: As to my order just now, how would it finally disposed the right of the parties?

KS: Never mind if the Court of Appeal dismisses our appeal. If your Lordship decides on our favour, it will be the end of the matter. This is what meant by finally disposed the right of the parties.

YA: I did not decide in your favour. How does it dispose your right?

KS: If we succeed now, the trial will be nugatory.

YA: How is it?

KS: It is nugatory. Waste of public funds. The court will decide whether your Lordship decision is []

YA: In Kosma, []

KS: That is as the civil case is concern.

YA: []

KS: Assuming it applies to criminal cases with modification.

YA: So, you are saying that the principle in Kosma applies in criminal cases with modification?

KS: Yes. Nugatory in the sense that the entire event had not been embark. The charge is something will be dismissed no authority yet on this matter.

YA: That’s all? MY, anything you would like to add?

MY: No.

YA: Give me some time.

[3.28 p.m.] Stand down

[3.59 p.m.]

YA: [read desicion] Telah menjadi undang-undang mantap bahawa fakta atau rayuan bukanlah satu sebab untuk menagguh prosiding. Mesti ada kadar istimewa untuk menanguh dan nugatory adalah satu daripada contoh kadar istimewa. Sekiranya rayuan permohon dibenarkan, tuduhan akan digugurkan. [] tetapi lebih penting isu salah guna Mahkamah yang dibangkitkan [] menjejaskan intergriti perbicaraan itu sendiri. Ini adalah satu keadaan istimewa. Oleh itu, adalah lebih perlu untuk rayuan permohonan ini didengar dan diputuskan di Mahkamah Rayuan. Permohonan untuk penangguhan prosiding sementara menunggu rayuan dibenarkan. Kes disebut semula pada 20.9.2010. Tarikh dari hari ini hingga 30.08.2010 dilapangkan.

[4.05 p.m.] Application allowed.

PERBICARAAN ANWAR IBRAHIM - KES LIWAT 2 - 2010 - HARI 18

TRANSKRIP PERBICARAAN DATUK SRI ANWAR IBRAHIM - 9 OGOS 2010

Mahkamah Tinggi Jenayah 3, Kuala Lumpur

Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Permohonan Mengenepikan Pertuduhan

Pihak-pihak:

PP: Semua hadir

PB: KS, SN, Datuk Param Cumaraswam, Marissa, Radzlan, Ram Singh

WB: Zamri Idrus (for SP1), Mr. Leong (Bar Council)

AI hadir

[9.33 a.m.] Permohonan 44-175-2010 & 44-176-2010

KS: There are two applications. First is 44-175-2010, and the other is 44-176-2010. We propose to withdraw the application of 44-175-2010 and proceed with 44-176- 2010. It was basically the same, but the first one is without intitulement.

YA: Permohonan 44-175-2010 dibatalkan. Teruskan dengan permohonan 44-176- 2010

KS: The application before your Lordship this morning is an application to strike out the baseless, frivolous charge against DSAI. It is unprecedented. Never before in this country has been such a motion filed to strike out the charge. The basis of it is an affair between a DPP that represent Public Prosecutor and AG with the star witness in this case, SP1 Mohd Saiful Bukhari bin Azlan.

What had been stated in the affidavit DSAI among others, there was in the course of this trial ‘hubungan sulit’ between DPP Farah Azlina Latif and SP1. What is ‘hubungan sulit’? It’s a term in Malay. In English translation, it is a confidential affair. It will [] an affair. What ordinary affair in [] A sexual relationship. What we have before your Lordship is an affidavit by DSAI. It is not an allegation. I can prove it. It’s not an allegation but assertion of fact.[] reply of that affidavit. An affidavit by my learned friend DPP Hanafiah and by Jude Blacious.

There is no reply from the star witness, Saiful Bukhari. The man was prepared to go on with it at the mosque and has ask for the blessing of Allah for this incident. Why is Saiful not prepared in this temple of justice? This court is a temple of justice. He does not give evidence in the form of affidavit. []

What are the consequences of this application? We say that it is necessary a pre-requisite that your Lordship []. Your Lordship can’t do that. I require your Lordship to do that. This is an adversarial system. But you cannot just mute and do nothing about it. [] role of a judge to warrants him []

It is for YA to call both DPP Farah and SP1 as witnesses of the court. Because without their evidence YA could not elicit the truth.

I refer to S. 256 of Criminal Procedure Code where the court may put question to an accused. [Read s.256(1)] That is the extent in which the judge may go, put question to accused person. This is close to the parameter of the judge which requires the presence of the witness for the court to elicit the evidence.

[Refer s.425] [read] [] cross-examine and re-examine a witness [] This is so essential to the just decision of the case. In this application that we have made, is it not necessary for your Lordship to summon, or recall SP1. Your Lordship may call any witness you want to court. Farah Azlina would come to court under that provision.

This is an application of necessity. [Refer second authority, page 731, read para G and H]. Of course in this case the prosecutor has chosen not to call SP1 or ask him to sworn an affidavit. We can’t do that.

[]

[Read] This is important. It is a function of the judge to try and find the truth. How can YA find the truth if the two witnesses are not called? Thus, we are making this application as a pre-requisite for our application.

YA: I’ll decide later. I’ll listen to this application first.

KS: Your Lordship must decide now. Your Lordship must accept it in that manner. Whether you are ready to make the application. Because if you want to look for the truth, you must call the witnesses.

YA: That’s all?

KS: Yes, for the purpose of this application.

MY: I must confess I’m taken by surprise by this application. I did not understand the purpose of the application but if I may say it is more of a fishing expedition. I thought my learned friend want the witnesses to be called in the course of the trial and not during this application. I say because it is contrary to O41 r 5 of the Rules of the High Court, allegation of affair in the sworn affidavit of DSAI is not based on something that he can prove. There is nothing for the court to consider and there is nothing for us to reply.

[Refer Perusahaan Falim’s case]. This application is not an interlocutory application. This application decides on the right of the parties. If they succeed, the trial will be quashed. Therefore this is not an interlocutory application. Farlim case: even if this is an interlocutory matter they have failed to disclose the sources of the application. Again the effect it is not admissible and therefore hearsay.

KS: We want a ruling whether the witnesses are going to be called.

YA: I’ve given you time to submit. MY, proceed with the submission.

KS: I’ve the right to point it out to you.

YA: Thank you for pointing it out to me. I’ve already decided that MY should proceed.

MY: KS started the application with Section 256. (KS started to interrupt again) I refer to tab 5 of our bundle. In the case of Pacific Inter-Link about O41.r.5 where you have to swear the affidavit based on facts which you are able to from your own knowledge to prove. (Refer page 683 of the case). So what DSAI said in his affidavit is not within his own knowledge and therefore there is nothing before the court and nothing for us to reply. There is nothing before the court at this time and suddenly he ask the to call the witnesses under s. 256

KS interrupt again.

YA: Let him reply. I’ll give you the chance to reply.

KS: He is not answering direct on point.

MY: I am replying direct on my point. I am addressing the court on the point of law. My learned friend then refers to Section 425. Section 425 may only be invoked by the court whether to examine, cross-examine the witness already examined or the one not being called as yet for a just decision. But that is as to whether or not DSAI has committed the offence.

Based on the affidavit of DSAI, the issue before the court is not whether Farah and Saiful has an affair. It is whether because the relationship, Farah and then through Farah, SP1 has access to the documents /investigation papers.

The affidavit of Hanafiah and Jude stated that Farah have no access to the investigation papers/documents. This assertion has not been replied and therefore they must have been taken to accept those facts. None of us also had ever briefed SP1, so that is the end of the matter.

We have the case of Ng Hee Thoong.

YA: Don’t go into the merit yet.

MY: I am not but I am addressing the court on the law. When we reply by affidavit and you did not challenge it, then you accept it. Ng Hee Thoong is a guarantor where notice of demand was sent to him. In his affidavit he questioned on why the notice of demand was sent to him but not the guarantee to the address provided by him. To this averment, there was no reply and the court accepts it. Here, DSAI swore on something he doesn’t know and he heard it from someone else. This is hearsay and notwithstanding that, we replied and there’s no challenge to it and thus there is nothing for us to reply.

First, not only their affidavit is not relevant. Second, all the things we affirmed through Hanafiah and Jude has not been challenged and thus they must have taken to accept it and that’s the end of the matter today.

I cannot see how Section 425 can help the court to arrive at a decision. We will depose on this issue when we submit on the merit.

KS: We refer to DSAI affidavit. Does it contain hearsay?

Refer Para 5 [read]. He said under oath as a matter of fact and this is not a hearsay. This is a fact, evidence given in form of affidavit that is not hearsay, but assertion of fact.

Where is the hearsay? It states the fact as a truth. That is not hearsay. Likewise, it is evidence. Where did DSAI say it is based on information?

[refer Para 6, 7 and 8]. DSAI is stating the truth. Where is the hearsay? This is statement and assertion of facts.

My learned friend cannot as an officer of the court should not run away from the truth [].

[refer para 9, 10, and 11, 12] it is an assertion of fact, and statement of truth. []

The application I made for your Lordship to direct the witnesses to be called before this court under Section.425 and not Section 256.

YA: So you are asking the court under Section 425.

KS: Yes. Not Section 256. I show it as an example only as a parameter. Your Lordship must consider this issue. It is pertinent, more than important for the witnesses to be called before the court, not our witnesses, nor the prosecution. This application is beyond the affair. As to what happened is the consequences of that affair. What DSAI said is a matter of fact, a matter of proves. The impartiality and the integrity of the entire trial is at stake. There is a presumption that Farah, as part of prosecution member have access and privy to the investigation papers and documents.

My learned friend is the head of the prosecution. He himself did not filed the affidavit. He rely on Hanafiah’s affidavit [] in conformity with the reason and the truth. Much obliged.

YA: So I should decide whether S.425 ought to be considered. I’ll deliver my decision at 2.15 p.m.

[10.20 a.m.] Stand down.

[02.40 p.m]

YA: Having heard both submissions, I found that Section 425 of Criminal Procedure Code is not relevant. We practice adversarial system therefore parties must reply to any assertion. Application to called Farah and SP1 is refused. Can we proceed with the application on merit?

KS: Before I proceed with the submission on the merit, we would like to cross-exam DPP Hanafiah on his affidavit in reply to the affidavit of DSAI. The grounds on which we propose to proceed is in regards to the credibility of MHZ. The credibility is to whether his affidavit in reply and the contents thereof credible.

YA: Let us settle the procedure first. There must be notice.

KS: Of course there must be a basis to it which I propose to do. If you allow me, I’ll state the grounds now and the substance of it. This is with regard to the proceeding in Syariah Court in Kota Bahru. With regard to his second wife where my learned friend trying to get the second marriage registered

YA: Whose second marriage?

KS: Hanafiah. We rather put in the form of an affidavit. MY, if is involved with a DPP. It is contagious and airborne. The credibility of my learned friend in affirming the affidavit question. I’ve just receive the document just now.

HZ: Who’s application?

YA: I’ll let Mohd Yusof submit later.

MY: To allow cross-exam is a matter of court’s discretion. Counsel has to show just cause to do so. In this case, there is no affidavit in reply as to Hanafiah’s and Jude’s. If there is reply, there is no reason to cross. In this case there is no dispute as to content, but to his credibility. I’ve this case in my bundle. In fact I have anticipated it earlier. First case is tab 10 of my bundle – Leisure & Allied Industries [read headnotes] [refer page 2, 2nd para from bottom]

So what is the purpose? There is no affidavit in reply to dispute the affidavit in reply by Hanafiah. And now they are asking to cross-examine him on something so remote and personal. If I take it that Hanafiah has taken second wife, it does not involve dishonesty or misconduct amounting to abuse of the process to undermine the proceeding.

Refer tab 11-co-operative Central Bank Ltd – with regard to cross-exam of person affirmed the affidavit – last para of page 3. He has to challenge first. If I may again refer to Ng Hee Thong, tab 6, holding no.2 – read. I was trying to draw a distinction. DSAI affirmed an affidavit which he is not privy to but what Hanafiah stated in his affidavit is something private to him. More so they are not challenging the content. Not even something that surround the affidavit. It is so remote and that in fact is an abuse of the process of the court. We cannot afford to delay the trial. Let me say for the first time. This is an attempt to delay the trial. We cannot keep on doing this because one of the circumstance for abuse of process is delay, delay in trial within the material time. Sometime ago I refer the court in other application, I refer to the case of R v H, and R v C where the interest of the complainant, the victim and the public.

We are doing this all this while, looking into the interest of the accused. But it’s time now for the court to look seriously for the interest of the public and the victim. I pray for the application to be rejected.

KS: My learned friend should learn to catch the bull by its horn. The affidavit evidence is required. Both cases referred to by my learned friend, affidavit has been filed and deponent examined.

YA: So basically you want to cross Hanafiah to cross-examining him on taking a second wife?

KS: Yes. He is married in Thailand without consent. Credibility involved. We are not delaying the trial. It has been made by the misbehaviour of the DPP. One is having an affair with the complainant and one is having his second marriage regularise. Are we going to rely on his affidavit? What credibility this man have? He ought to be cross-examine in the box. Give us the chance to Hanafiah’s affidavit so that he can defend himself. Syariah offences is a serious offences, and more so if it is committed by a public officer. Of course Hanafiah should be given opportunity to reply the affidavit. If not, he will undefended. Misbehaviour of the DPP are delaying the trial. We are not delaying the trial.

YA: That’s all?

MY: This is the reason. The reason why I objected is that the ground are obvious. Any misconduct must have something to do with the trial. I refer to a 1962 American case. [read para 6] obviously whatever Hanafiah did in his personal life has nothing to do with the trial.

KS: There is a precedent to it. MP Bung Mokhtar- MP Kinabatangan.

YA: Give me some time to consider.

[03.03 p.m.] Stand down.

[03.12 p.m.]

YA: The basis where the counsel wants to cross-examine whether Hanafiah has taken second wife and married in Thailand etc is trite law. Cross-examination must be related to what the deponent has stated in his affidavit. It is my view whether Hanafiah has taken second wife or not or where he is married is not relevant to the proceeding. So, application to cross-examine him on him taking a second wife is refused.

KS: We want to file the affidavit.

YA: So you file whatever you want to file but we proceed with the application first.

KS: Page 2 of submission. My learned friend was proceeding on frivolous technicality and not back by authorities. No grounds are disclosed.

Refer Malaysian Court Practice, page 1091],

Refer Sarawak Timber case, page 2 [read],

Refer Halsbury Law of England, vol I, [read]. What is important is that in the cases in footnote 3, one of it is answering affidavit. In this case, our affidavit is unanswered,

Rrefer Abd. Hamid b. Jaafar v Samsiah [] Sdn Bhd [read]

Refer Megat Najmudin v Bumiputera [] [read] preliminary objection is not allowed []

In criminal matters, objection on non-compliance should not be entertained. What is important is that your Lordship would peruse the application. In the Notis Usul, what is stated in page 2 was clear. [read] the grounds are in the affidavit. The technicality issue raised by my learned friend should not be taken upon consideration. My learned friend says that the averments and assertion by DSAI is not based on fact, but our assertion is fact. The integrity of the DPP is compromised. This is assertion of fact. Judge should take what is in the affidavit as the truth. The point is this, are the 2 affidavits retract the truth as to DSAI’s affidavit.

What are the affidavits? One is the affidavit of Jude. And the second one is affidavit of Mohamad Hanafiah.

YA: Who did the translation?

KS: My learned friend []. It is just a guide.

YA: I’ve to make it clear. I’ll rely on the BM version.

KS: Refer para 5 [read MHZ translated affidavit]. But this is important. A further investigation is contemplated with regard to the affair. There is a denial as to that.

YA: I don’t see any denial as to that. What they have denied that SP1 has access to the investigation paper through Farah.

KS: They are denying it. Para 9 and 10 of MHZ should be read together. The issue of the affair. Who is MHZ to reply on behalf of Cik Farah? Why is she not replying? Is she not prepared to deny the allegation made.

I refer to the authorities. Authorities 12 of our bundle. Page 2 of the report, para3 [read].

I refer to what the AG has to say at the PC. To justify the negative perception on the prosecution and transfer of Cik Farah to some other place. Why is the witness not prepared to swear the affidavit? It must be in an affidavit. Your Lordship must expect an affidavit in reply. Your Lordship cannot go assertion to go unrebutted.

Refer : Takako Sakao, tab 20, a Federal Court decision. Para 1 [read]. The affidavit by DSAI must be accepted as true in the absence. That is the impact of this decision. The judge is under the duty to accept. Your Lordship is under duty to accept what is stated in the affidavit. If not, the court must draw adverse inference.

Not only Farah, but why is SP1 not prepared to affirm the affidavit? He is more than willing to take an oath in the mosque and why is he afraid now, to rebut the allegation made against him? DSAI said this: there is this event that Farah had access to the IP, and had an affair with SP1 and as a result to that SP1 is privy to the investigation paper because Farah is also privy to the investigation paper.

Further there is an offence Sec.8 of OSA. IP is classified as confidential. And Saiful is guilty of an offence under S.8(2) OSA. She is a public servant. It is a serious offence, but we have no evidence of rebuttal.

Hanafiah’s affidavit contains numerous press-cutting. Numerous press-cutting were relied on. The point is whether newspaper reports amount to hearsay. We say it is hearsay. It is hearsay based on authorities.

Refer Karpal Singh v Sultan of Selangor, tab 9, page 65 [read].

Refer tab 11, page 253, the same passage adopted in that case. Para 22 [read].

I think it is pertinent for your Lordship to peruse the authorities. That will be our last authority and that disposes as to authority to back that newspaper cutting is hearsay. In fact, 90% of Hanafiah affidavit consists of newspaper cuttings.

Further, if affidavit is unrebutted, then the truth of the assertion must be accepted. I take your Lordship to various cases.

Refer tab 13, it’s a High Court decision [read].

Refer tab 14 – Ng Hee Thong & Anor, page 32 [read].

Refer tab 15 – Alloy automotive Sdn Bhd, 1985 Supreme Court decision, page 385, right column at the bottom of the page[read]. This is the proposition by The Supreme Court that is bound by Ng Hee Thong.

We say that there is an abuse of the process of the court. SP1 is the star witness and he will know the contents of other witnesses statement, DNA reports, etc. And the prosecution is abusing the process of the court by using the star witness to prove the charge. That is an abuse of the process. We urged your Lordship to exercise the discretion and to exercise it without fear and favour.

Refer Karpal Sing & Anor v PP, tab 4, page 545, para 4 [read].

Refer Connelly [read]

Refer tab 8 , PP v Ini Abong, page 13, Hamid Sultan adopted what is said in Connelly [read].

Refer Humprys [read].

What is an abuse process of the court? I refer to tab 17, page 151, para 9 [read]. But before that, Ng Hee Thong and other cases are upheld in the case of DSAI v PM Malaysia and Anor, page 188, para [read] we don’t agree with this, but it is the law now. [read again]. Ng Hee Thong was adopted and also Alloy.

What is an abuse process of the court? I refer to tab 17, page 151, para 9 [read]. Process of the ct must be used bona fide. A DPP having an affair with star witness who might have access to the IP is an abuse of the process. It is an improper use of the missionary. It is used for ulterior motive, [] this is not a prosecution but persecution. That is the impact of abuse of process of the court. In fact my learned friend has not the guts to say that this is an abuse of process. But we say so.

My learned friend relied on what the AG say in the PC. Where is the AG? Why is he not prepared to file the affidavit? Your Lordship should not allow this. It is scandalous, and what happened today in court is a scandal happened in broad daylight. There is a misconduct of behaviour. She is part of the team and has access to the investigation paper.

Why is my learned friend afraid to cross-examine DSAI on his affidavit? Because that is the truth. Prosecution must not be here to abuse the process of the court for ulterior motive. The entire prosecution should step down and before they do so the judge should strike out the charge.

We have the benet of Jude’s affidavit. What is the content of his affidavit? He is the Investigation Officer (IO). He has access to the investigation paper including MY, NH, MHZ and NB. The point is are the assertion made as to matter of fact as to access of the investigation paper denied by Farah. She’s around. It’s different if she’s not around. She’s in the AGC, but in different Section. Likewise, Saiful is also around. What is revealed is a clear abuse process of the court.

We with due respect, we would pray your Lordship to make an order in terms of the motion, in the interest of justice, in the interest of the public policy and not in the interest of the person who abuse the process of the court.

Let not the prosecution be allowed in this court, as they are corrupt to the core through misbehaviour of the DPPs. The entire team must be blamed. We pray for the application to be allowed.

MY: I would like to refer to this court to the authority that my learned friend refers just now. Tab 12, holding no.3 [read]. of course this is not an affidavit evidence, but if I may refer to O41 r5 in tab 2 of my bundle which requires DSAI to affirm something he knows personally just as what the law said and that he had failed.

Second case that I am keen to refer is at tab 20 of the defence’s bundle [read head note]. This is between parties conversant with facts. Not in this case because DSAI is not conversant to Farah’s matter.

Refer tab13, holding 3 of defence’s bundle [read]. Where in this case is between husband and wife, also conversant to facts.

Refer tab 15, page 385 [read]. I invite your Lordship to refer to the above para. Refer the head notes [read]. Refer to holding no.2 [read]. There was an allegation between parties conversant to the fact unlike the case of ours today.

What does the court say when you swear affidavit not in your personal knowledge.

I refer to the case of Datuk Bandar Kuala Lumpur v. Zain Azahari Zainal Abidin. The issue is abuse of process as legality where the Datuk Bandar took consideration on something not relevant. Refer page 250, holding no.3 and 3A[read]. Whatever DSAI said and affirm is worthless.

So tomorrow, somebody might say that Mr. Karpal had done something and then Mr. Karpal has to answer it today?

What is the real issue before this court? It is not on the issue of Farah Azlina and Saiful are having an affair. I say first, that the whole thing in the affidavit is not admissible because they are bare allegations without basis except para 1-4. The rest are baseless, hearsay, conjecture, etc.

Refer Para 5 of DSAI’s affidavit. Refer Para 8 of the affidavit. [read] Refer Para 10, 11.

Firstly, the affidavit of Hanafiah clearly said that Farah Azlina was merely a typist and who assisted in general duties. Para 6 of Hanafiah’s affidavit, Para 11 [read]. Because Hanafiah is in charge of the investigation paper at one time. [Read para 4]

Refer Para 12 [read]. He said he is in charge and Farah has no access and it was given to four of us only. So, do we need to call Farah to confirm it?

Whatever Saiful testified in court is based on his experience. What we are saying is this. You said the prosecutor is compromised because Farah has access to the investigation paper. We are saying she never had access. The matter stop there. And what Hanafiah has said is not challenged. The same with Jude. He was only instructed to give copies of the investigation paper to the 4 other.

We are not taking the news report as the truth but to show it was reported widely. This allegation which forms the charge against DSAI was out there in media as early as 28th June 2008, one hour after the report was lodged. Even in Malaysiakini which Karpal used to confront SP1 in the trial, the report was made soon after. On 30th June, again it was published about Saiful meeting with PM etc. also it is reported. So everything about the allegations of Saiful was in public domain as far back as 28th June 2008. Whatever SP1 testified in ct is something everybody know. Everybody does not know how the offence is being committed.

With regards to documents and reports, it was supplied to the defence way back in 2008 and 2009, long before Farah came on board. Some of the reports came in the internet. Two millions copies of the HKL report is printed to show there is no penetration. Even if SP1 has access to that, what changes could he make? Not that he can alter the reports. Nobody suggested that SP1 has taken advantage as to the report. What SP1 did is what he is expected to do under Section 165 Evidence Act 1950. No mention of the medical or DNA report.

Defence must show as what the court said in Ian Anthony Beckfords, tab 12, page that he had been deprived of a fair trial or it is not fair to try him. What has the defence show that the court process has been abused to accord protection for the accused? What can they show that DSAI has been prejudiced? We have a number of cases to show how the misconduct of DPP affects the integrity of the prosecution.

Refer tab 13, R v Leominister, page 5, 3rd para [read and explain the case].

How would Cik Farah relationship with SP1 affect the integrity of the team and prosecution? Cik Farah was then only doing the typing, she has no control over the direction of the prosecution, she will not examine any witnesses, she is not performing a prosecutorial duties. How is it her relationship affect our independence in determining our strategy? She did not decide and determine anything.

Refer R v Milton Keynes, tab 14 [read] .

Refer Chan Wai-Keung v Regina, tab 16 [read and explain]. Here in this case, the court was confronted with statement made earlier and what he has said in court Compare to our case today, what Saiful has said was the same with what he has said 2 years ago. What prejudice can this cause DSAI?

Refer R v. MacDonald, Atherley and Bristol, tab 17, [read held], page 809 [read commentary]. We are saying the relationship which does not provide access to the investigation paper and even if there is access, it does affect the process of the case.

Refer also R v Early and R v Grant.

Lastly what kind of conduct which undermines the conduct of the prosecution. The same as the one in the authority we gave earlier.

Lastly, may I refer to our submission Para 43, 44, 45, 46, 47, 48 and 49 of prosecution submission [read]. I rest my submission and I thank you my Lord and pray for the application to be dismissed.

KS: My reply might be take one hour.

YA: Tomorrow then. It’s already 5.00. Start at 9.00 sharp. Court start at 8.30, but I’ll give you leeways.

[4.57 p.m.] Adjourned

PERBICARAAN ANWAR IBRAHIM - KES LIWAT 2 - 2010 - HARI 17

TRANSKRIP PERBICARAAN DATUK SRI ANWAR IBRAHIM 6 August 2010

Mahkamah Rayuan
Di hadapan i. Y.A. Datin Paduka Zaleha Binti Zahari, HMR
ii. Y.A. Dato’ Haji Abdul Malik Bin Haji Ishak, HMR
iii. Y.A. Datuk Clement Allan Skinner, HMR

Pihak-pihak:
PP: Semua hadir
PB: KS, SN

[9.42 a.m.]
KS memperkenalkan parti.

KS: This is an appeal against the decision of Yang Arif Dato’ Mohamad Zabidin Mohd Diah on 18 of June 2010 which relates to the documents in relation to examination and results of SP1. The documents are documents of the doctors of Hospital Kuala Lumpur.
YA: Do you refer to any submission or bundle of authorities?
KS: No. Because it’s a straight forward issue.
YA: Question of jurisdiction?
KS: In the case of DSAI v PP the Federal Court has in fact decided what is a final order. In the case of DSAI v PP, no.2 in our bundle, at page 319, this is under the heading of preliminary objection. As to the matter this morning, whether it comes under S. 3 of Courts of Judicature Act 1964 . [read]
At page 26 of the appeal record. [read para 2] . Para 2 is what we have applied for. This order made by the trial judge is a final order and one which disposed the rights of the parties. [] was to the effect that there is no conclusive evidence of penetration and penetration is a fundamental element to the charge.
The point is was the defence is entitled to the documents before we embark on the cross-examination. In the affidavit, Dr. Wells stated that the documents are necessary for him to advice the defence to help us in cross-examination SP2. [] to elicit through if the documents exist. []

[]. The court stated in the case of DSAI v PP, pg 327, tab 2 of bundle. [read-whatever docs made..]. What the Federal Court has to say is that we made an application in the course of the trial. The question is whether the document is relevant or not to the issue. The documents would be relevant for the purpose of our expert advising us in cross-examining the doctors.
The evidence of SP2 in relation to what the doctor said that there is no conclusive evidence of penetration and thus it will dispose the right of the parties as per the word decision in S.3 of Courts of Judicature Act 1964. That is the position of this appeal. Your Lordship has to decide whether this is a final order or not. I cannot go further than that. I’m not going to the authorities. It will be a waste of the judicial time. That will be our submission.

MY: My lady and my Lord, we agree with my learned friend, whether this court has jurisdiction to decide whether the decision by the learned High Court judge is a final order. We have filed our written submission, from page 6-15. The ruling by the judge is ruling made in the course of the trial. Amendment of Section 3 Courts of Judicature Act 1964 excludes a ruling made in the course of the trial. The reason is stated in the case of DSAI v PP, 2010 decision where my learned friend applied for the 112 statement of SP1 and reference is made in other cases, Regina v Collin, Saad bin Abas and DSAI 1991 decision.
In the case of DSAI v PP [tab 21], the court relied on the explanatory statement of the amendment which is at tab 31 of our bundle [read pg.2, tab 21]. Of course my learned friend referred to the decision in the case of DSAI 2010 decision. The decision was in fact, to begin with, the applicant has the right pursuant to. S. 51 of Criminal Procedure Code.
Refer to tab 14, page 278, para 24 [read]. We talk about right. This right exist in Section 3 of Courts of Judicature Act 1964. Para 25 [read]. Alternatively, this case brings out of that phrase which did not finally disposed the right of the parties. In 1994, when J Hashim Yeop Sani decided in Maleb bin Su, he referred to the case of Raymond Chia. In the case of DSAI v PP 1991 decision, I refer tab 18, page 329, para F. And J NH Chan referred to Halsbury at para H. I now refer to Halsbury Law of England at tab 34, page 240, para 506 is the passage that J NH. Chan use in citing his decision. This applies only in civil decision. I refer to page 237 the same tab, para 501. I say it earlier in the case of Maleb bin Su, the case of Raymond Chia, the judge then made a reference to a civil case. And again in the case of DSAI 1991 decision, the judge made reference to this passage.
Page 10-11, para 20, 21& 22 of PP submission [read]. In a criminal case, no right is given, it is either guilty or innocent. In civil cases it does not apply. But it does apply in a criminal court. Refer tab 34, page 240, para 506 – they all refer to civil cases.
In a criminal trial, other than the order of stay, order of bail, there is no right of appeal in the provisions of the Courts of Judicature Act 1964, criminal procedure code against any ruling made in the course of the trial. In the case of PP v Ho Chang Chwen, the def applied for the statement of the witnesses and the prosecutor objected. And the court order that the statement being supplied to the defence and the PP appeal. Rose C.J, in Ho Chang Chwen, page 12-13, tab 25 of our submission [read].
In fact, the amendment of S.3 of Courts of Judicature Act 1964 is in line with the [] just like when the court refuse to supply the 112 statement just based on hunch and []. My learned friend has not stated any specific law in the intitulement of which they are referring for the supply of the document. If you want to challenge the expert, you must challenge his credibility. [] that is what DSAI 2010 says you should challenge.

Page 27 of appeal record, para [] [read]

To conclude, Section 3 of Courts of Judicature Act 1964 does not allow any ruling made in the course of the trial to be appealable. No. 2, the ruling of the court is consistent to what Rose C.J decided. No.3 there is no right to begin with – [] and the court may want to look at the [] that is not a matter of right []. In fact, the basis of the motion is seeking for all the documents, as in no.1 the affidavit of DSAI and no.2 the affidavit of the expert. Affidavit of DSAI said that there is contradiction and thus the documents are needed. However, the matter is being abandoned by my learned friend, KS.

In reference to the case of DSAI 1991 decision, Saad bin Abas, Maleb bin Su, Raymond Chia and Ho Chang Chwen it is our humble submission that the ruling made by the court is not a final ruling and does not disposed the rights of the parties.

I apply for this court if agreeable with me to dismiss the appeal.

KS: I refer to the case of DSAI, tab 2 of our bundle, page 321 where it discuss S.50 [read]. We said that this is a ruling made in the course of the trial which finally disposed the right of the parties.
YA : We’ll adjourned a short while for discussion and we’ll be back in ½ hour.

[10.35 a.m.] Stand down

[11.20 a.m.]
YA: After careful consideration of the submission that has been prepared before us, []
The issue is whether the ruling by the High Court and the order of discovery of the documents is a final order. Our answer to the issue is negative. We are of the view that the ruling of the High Court judge is not a final order and does not dispose the rights of the parties. We agree that the order is made in the course of the trial.
On Section 50 and the definition of the word decision in Section 3 of Courts of Judicature Act 1964, which was raised by the counsel, we agree with the submission of SG II. Our findings is that the decision of the High Court judge does not finally disposed the right of the trial in which the appeal is dismissed.
[11.25 a.m.] Stand down

PERBICARAAN ANWAR IBRAHIM - KES LIWAT 2 - 2010 - HARI 16

02 August, 2010 TRANSKRIP PERBICARAAN DATUK SERI ANWAR IBRAHIM KES LIWAT 11

Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak:
PP: Semua hadir
PB: KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Marissa, Ram Singh
WB: Zamri Idrus (for SP1), Andy Yong (Bar Council)
AI hadir

[9.13 a.m.]
MY: Kes ditetapkan untuk sambung bicara. Untuk pemeriksaan balas SP2.
YA: Kita ada application baru. We should hear that first. KS you are the one who made the application, so you must start it.
KS: In our application, stay of proceeding does not arise. Cross-examination of the last witness does not arise. Both do not arise in the application this morning. It has been overtaken by events. The event is that we have file an application for the charge against DSAI being strike out which is under inherent power of court. The reasons are stated in the affidavit. In short, there is an assertion that there is an affair between DPP Farah Azlina Latif and SP1, Mohd Saiful Bukhari, the complainant of the case. As a result, that charge should be strike out because the DPP is part of the prosecution team. She would have access to the investigation paper, etc. [] that the sp1 [] aware of []
YA: I think you are going to the merit, KS.
KS: I’m not. There is an affair between DPP Farah Azlina Latif and SP1. This affect the entire trial my Lord. There is an offence under the OSA by SP1 and FA. The integrity of the DPP has been compromised. In fact, the entire pro team is being [] impartiality, [] when we submit on this application [] There’s an affair between the DPP and the complainant, the star witness of this case. The entire prosecution team should step down. My learned friend MY should take the blame. [] the application of stay is taking by events [].
YA: So you said you want me to hear the application first?
KS: Yes. This is not only for SP2, but also any other witness. This is a very serious matter, my Lord. My learned friend may need time to reply to the affidavit. [] affidavit of DSAI filed together with the motion this morning, in support of the application.
MY: YA, the application to dismiss the case is not in this court. We must proceed with the cross-examination or with the application of stay. Just because somebody assert something does not mean [] bare allegation [] instruct the defence to proceed with application of stay of proceeding or continue with the cross-examination.
KS: We only get the reply on Friday. For this reason, it is only filed this morning, it will be sent to your Lordship afterwards. This is for your Lordship to go through the application and the substance of it. [] it’s a sworn affidavit. My learned friend has no other option to reply to the affidavit, also the DPP and SP1. This might ensure the truth prevails. [] So that from there we should proceed.
YA: Is that all?
[9.21 a.m.] Stand down.

[9.47 a.m.]
MY: Pihak2 masih seperti dulu.
YA: Memang tidak dapat dinafikan terdapat permohonan untuk mengenepikan pertuduhan dan oleh itu sekiranya pemeriksaan balas SP2 diteruskan, ianya akan menjadi satu tindakan yang sia2. Oleh itu adalah lebih baik sekiranya permohonan membatalkan pertuduhan didengar terlebih dahulu sebelum permohonan pergantungan prosiding dan keterangan SP2 diteruskan. So, are the parties ready for the application? Stand down for a while.
[9.48 a.m.] Stand down

Pihak-pihak berjumpa dengan Hakim dalam Kamar pada jam 9.50 pagi. Pihak-pihak keluar dari Kamar Hakim jam 10.03 pagi.

[10.06 a.m.]
Permohonan 44-125-2010 : Permohonan mengenepikan pertuduhan.
MY: Notis usul baru diserahkan kepada saya pagi ini. Permohonan untuk [] afidavit DSAI. Saya memohon masa untuk mengkaji dan memfailkan affidavit jawapan dan jika perlu, membuat research untuk digunapakai dalam menentang permohonan ini. KS juga perlu masa untuk membuat apa-apa afidavit balasan jika ada terhadap afidavit kami. Saya memohon satu tempoh yang cukup untuk kedua-dua pihak bersedia.
KS: Kami mencadangkan 9 hb Ogos ini untuk tujuan pendengaran permohonan kini.
MY: Saya tiada bantahan kerana hari Jumaat ini ada pendengaran rayuan di Mahkamah Rayuan.
YA: 9 hb Ogos 2010, Monday. Kes bicara proper ditetapkan untuk sebutan pada tarikh tersebut. Begitu juga permohonan penangguhan prosiding.
[10.09 a.m.] Stand down.

------------------------------------------------------------------

Kes ditangguh, Anwar mohon batal pertuduhan

Perbicaraan kes liwat II membabitkan Datuk Seri Anwar Ibrahim ditangguhkan berikutan permohonan ketua pembangkang itu untuk menggugurkan pertuduhan terhadapnya dengan alasan seorang timbalan pendakwa raya dalam pasukan pendakwaan dikatakan mempunyai hubungan dengan saksi utama kes, Mohd Saiful Bukhari Azlan.

Sehubungan itu, Mahkamah Tinggi Kuala Lumpur menetapkan 9 Ogos depan untuk mendengar permohonan itu.

Peguam utama Anwar -- Karpal Singh -- yang sebelum ini cuti sakit selama 15 hari sehingga menyebabkan perbicaraan terpaksa ditangguhkan sementara, hadir hari ini.

Katanya, timbalan pendakwa raya itu, Farah Azlina Latif dan pengadu kes liwat II, Mohd Saiful Bukhari Azlan "seharusnya mengemukakan afidavit berasingan" bagi menjawab dakwaan penulis blog Malaysia Today, Raja Petra Kamaruddin. yang mereka mempunyai 'hubungan romantis”.

"Pihak pendakwaan tidak mengesahkan hubungan itu mahupun menafikannya. Berdasarkan ini, kami yakin wujudnya hubungan dan terpulang kepada mereka untuk menafikan dakwaan itu,” katanya di luar mahkamah.

Menurut Karpal, seluruh imej pasukan pendakwaan yang diketuai oleh Peguam Cara II Negara, Datuk Mohd Yusof Zainal Abiden, kini tercemar kerana dakwaan itu.

Karpal berkata Farah Azlina telah melanggar Seksyen 8(1) Akta Rahsia Rasmi manakala Mohd Saiful pula telah melanggar Seksyen 8(2) akta yang sama.

Walaupun mengikut jadual, Dr Mohd Razali Ibrahim dari Hospital Kuala Lumpur sepatutnya memberi keterangan dan disoal balas, namun 'hubungan romantis' berkenaan mencuri tumpuan.

Peguam Anwar mendesak hakim supaya membuang kes ini berdasarkan dakwaan hubungan berkenaan.

P

eguam Negara, Tan Sri Abdul Gani Patail Isnin lalu memutuskan Farah Azlina digugurkan dari pasukan pendakwaan agar 'hubungan romantisnya' tidak akan menjejaskan kes itu.

Faraf Azlina juga telah dipindahkan dari bahagian pendakwaan, pejabat peguam negara.

Perbicaraan hari ini dimulakan dengan Karpal memfail permohonan supaya pendakwaan terhadap ketua pembangkang itu digugurkan.

Bagaimanapun, ketua pendakwa raya membantah permohonan berkenaan tetapi bersetuju supaya kes itu ditangguh seketika.

Hakim Datuk Mohamad Zabidin Mohd Diah bersetuju untuk mendengar permohonan Karpal tetapi disebabkan peguam belum bersedia, perbicaraan ditangguh seketika.

Selepas perbicaraan ditangguhkan, Anwar membuat laporan polis terhadap Farah Azlina dan Mohd Saiful di bit polis, Kompleks Mahkamah Jalan Duta, Kuala Lumpur ini.

Kedua-dua mereka didakwa melanggar Akta Rahsia Rasmi 1972.

Kehadiran Anwar di mahkamah pada jam 9 pagi ini diiringi oleh isterinya, Datin Seri Dr Wan Azizah Wan Ismail dan beberapa pemimpin PKR termasuk, Saifuddin Nasution dan Dr Xavier Jeyakumar.

Anwar didakwa meliwat bekas pembantunya itu di Unit 11-5-1, Kondominium Desa Damansara, Jalan Setiakasih, Bukit Damansara, Kuala Lumpur, antara 3.01 petang dan 4.30 petang, 26 Jun 2008.

Jika sabit kesalahan, Anwar boleh dikenakan hukuman penjara sehingga 20 tahun dan disebat.

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Anwar buat aduan polis terhadap Saiful, Farah langgar OSA

August 02, 2010

KUALA LUMPUR, 2 Ogos — Datuk Seri Anwar Ibrahim yang kini berhadapan dengan tuduhan liwat, pagi ini membuat laporan polis terhadap saksi utama Mohd Saiful Bukhari Azlan dan juga Timbalan Pendakwa Raya Farah Azlina Latif, yang didakwa menjalani hubungan romantis, di bawah Akta Rahsia Rasmi (OSA) 1972.

Dalam laporan yang dibuat di balai polis Mahkamah Tinggi Jalan Duta di sini pukul 11 pagi tadi, Anwar mendakwa Saiful dan Farah Azlina telah melanggari Seksyen 8(1) dan Seksyen 8(2) akta itu.

PERBICARAAN ANWAR IBRAHIM - KES LIWAT 2 - 2010 - HARI 15

19Julai, 2010

TRANSKRIP PERBICARAAN DATUK SERI ANWAR IBRAHIM KES LIWAT 11

Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Pihak-pihak:
PP: Semua hadir
PB: SN, Datuk Param Cumaraswam, Ram Singh
WB: Zamri Idrus (for SP1), Leong (Bar Council)
AI hadir

Pihak-pihak berjumpa dengan Hakim dalam Kamar pada jam 8.58 pagi. Pihak-pihak keluar dari Kamar Hakim jam 9.24 pagi.

[9.26 a.m.]
MY: Kes untuk sambung bicara. Pemeriksaan balas SP2.

PC: We would like to seek for an adjournment since KS is warded. We had in fact serve the letter to your L on Friday afternoon. This case was fixed for continued hearing from today to 23rd July, and for the whole month of August. We apply for this week to be vacated. We should be able to go on with the trial on 2nd August onwards and complete the trial in August if everything goes well. We believe that there is no objection from PP. We also give some assurance that in the event KS is not able to be in court in August, we will continue the trial and hopefully we could complete the trial in August.

MY: Under normal circumstances we would like to go on with the trial. But due to the leading counsel being sick, we will not object for certain issue. First, the assurance to continue the trial in August. 2nd the assurance that there will be no postponement in August.

YA: Oleh kerana KS sedang sakit sekarang, mahkamah tiada pilihan melainkan menagguhkan perbicaraan hingga 2 Ogos. Dengan assurance dari PB, sekiranya KS masih tidak sihat, mereka akan meneruskan kes ini pada bulan Ogos dan berharap kes ini dapat diselesaikan dalam bulan Ogos. Mahkamah setuju untuk membenarkan penangguhan ini ke 2 Ogos.

[9.31 a.m.] Court adjourned