untuk carian lebih pantas sila taip katakunci dalam kotak dibawah dan klik butang 'search'

Thursday, November 25, 2010



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

PP: Semua hadir kecuali MY, NH dan MM
PB: KS, SN, Datuk Param Cumaraswam (Dato’ CV Prabhakaran, Ram Singh, Marissa, Radzlan tidak hadir)
AI hadir

[9.14 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.20 a.m.] Pihak-pihak keluar dari Kamar Hakim.

[9.23 a.m.]

Permohonan 44-258-2010

MHZ: Pihak-pihak yang sama kecuali Datuk Mohd Yusof.
KS: My lord, the application before your Lordship this morning has very serious implications and consequences.This is an application my Lord where your Lordship’s role as a trial judge is under scrutiny. That being the position, my Lord your Lordship would have got to go the extra mile to ensure that your Lordship objectively looks at the matter.
In an application like this, a judge takes his own cause. Ordinarily YA, a tribunal must be objective and must not be personally but there is an exception. This is an exception out of necessity. YA there had been in the past various application or when it is necessary to make application of the recusal of the judge.Some judges in the past would take it upon themselves, when the application is made they themselves voluntarily step down from further hearing the case. They do that in line with public policy.
I take your Lordship to one instance where a judge took into account public policy, very senior judge Datuk KC Vorah. I take your Lordship to the case of [] in tab 10 in our bundle of authorities. His Lordship when the application was made for his Lordship to recuse himself had this to say. [read : Public policy requires that in order that should be no doubt about the purity of the administration of the justice. Any person who has take part in it should not be in the position when he is suspected of being bias]. I take your Lordship to what the judge said in the course of his judgment. He refer to the case of Allison v General Counsel [] as regards to the proposition I refer to your Lordship. He then refers to the case of []. [read: ...in the administration of justice the judges and Magistrate should not only be fair and impartial but should also appear to reasonable persons to be fair and impartial that neither should an accused person or a litigant have any reasonable ground for supposing that the judge or a Magistrate who is trying the case in which their concern is bias in their favor or against them. The classic words of Chief Justice in R v Sussex. It is not merely of some importance but a fundamental importance that justice should not only be done but manifestly be carried out or manifestly be seen to be done. In all these circumstances at the instance of the defence’s counsel I agree that it would not be fair for me to hear the case. I disqualify myself from hearing this case].
There have been instances where judges have voluntarily recused themselves without even going into elaborate authorities for the purpose of not []. YA, a judge take an oath of office. He is required by the oath of office to administer justice without fear or favor. But that does not mean that the judge can do as he pleases. And get the a whole of reasons for not recusing himself.
The law is there, my Lord. In fact judges are now subject to certain regulations which rule their conduct. I take your Lordship to the regulations which has come into force recently, i.e. Judges Code of Ethic 2009. I take your Lordship to tab 2 of our bundle attached to it. The code of ethics came into operation on the 1st of July 2009. [read: A Judge can be subjected to disciplinary proceeding in the event he is bias or act in prejudice of an accused person]. I take your Lordship to the Code. They do comply with this code. [read: A judge shall comply with the provisions prescribed in this Code. A breach of any provisions prescribed in this Code shall render the judge liable to disciplinary proceeding in accordance with the provisions of this Code. At the bottom of the page YA, [] [read: the judicial duty of the judge shall take precedence over all other activities]. And we have YA then what is relevant and necessary for your Lordship to carefully consider. [read: a judge shall perform his duties without bias or prejudice]. That is important, YA. A judge shall perform his judicial duties without bias or prejudice.
I’m not threatening your Lordship that this matter will be taken up in the event it is found that your Lordship is bias or would be bias and will be prejudice against the accused. I give your Lordship a gentle reminder. A gentle reminder that your Lordship would carefully consider.
Whether here if your Lordship were to insist despite being bias and despite being prejudice to carry on to be prepared for the consequence. In the past YA, a judge for misconduct was tribunalised. The tribunal was set up by the King. But this year what has come into force is the Judges Ethics Bill. An Act rather, no more Bill. Judges Ethic Committee. That committee has the jurisdiction and power to try a judge for misconduct which does not end up to removal from the judicial office but less than removal from the judicial office, the Judges Ethics Committee has the jurisdiction to subject a judge for disciplinary proceeding. What is important also is the principle of judicial conduct 2002, that would be tab 2. It is a principle where rules made in respect of the judicial conduct, the principles relating thereto in respect of judges trying the proceeding.
I take your Lordship to what is the importance for the value of impartiality under the heading “impartiality” page 3. [read: A judge shall perform his or her judicial duties without fear, bias or prejudice]. There it is YA, bias or prejudice. But what is important is to note that these regulations are refer, in fact principles are agreed to by a number of jurist among them is Dato’ Param Cumaraswamy. I take your Lordship to page 9 under explanatory notes. [read: At his first meeting in Vienna in April 2000 on the invitation of United Nation Centre for International Crime Prevention and in connection with the United Nation Congress... the judicial group of integrity comprising of Chief Justices of a number of countries met and for that purpose prepare a draft code of judicial conduct] which ended up in a matter of principles 2002 and clearly in the middle of the page is the name of my learned friend Dato’ Param Cumaraswamy as a special repetoire.
I take your Lordship to paragraph 2. [Read: In preparing a draft code of judges conduct in accordance with the directions sets as above references was made to several existing codes under international instruments including in particular...code of judges from many countries with regard to judicial conduct is referred]. I need not go through. Except that the judges code of conduct in Malaysia prescribed by the YDPA on the recommendation of the Chief Justice which is also adverted to.
So what is important now YA is to apply these principles to the position before your Lordship this morning.
Now first what is important to consider what would be the test which this court ought to apply for the purpose of deciding whether there is bias or there can be or there could be part of your Lordship in deciding this matter.
I take your Lordship to tab 6, the case of Mohd Ezam v Ketua Polis Negara. [read: the test to be applied in the present case in respect of the disqualification of a judge is the real danger of bias test. And the question here is whether with regards to circumstances of the case there was real danger of bias on the part of the learned trial judge with regards to a habeas corpus application. R v Gough is referred. It is the real danger of bias test. But having regards to the first, the judge is the one who should consider whether there is a real danger of bias.
I take your Lordship to the cases of this position. An extract in the Mallal Law Digest recital 1083. I first take your Lordship to what is highlighted there. [read: the court look at impression that would be given to other people, not to the court itself.] That is the objective test. [Read: And in this case even if the Magistrate is impartial as he would be nevertheless if a right minded person were to take that in this circumstances that there would be a real danger of bias or likelihood of bias then the Magistrate should not hear the case]. Now of course it is a real danger bias case.
Now of course it involved what was said by J Eusoffe Abdoolcader at tab 11, the last page. This is the manner in which his Lordship consider. What is to be considered is in fact the impression in the mind of the disinterested man or women in the Jelutong Omnibus. These are the principles YA. These are the principles within which your Lordship will have to consider whether your Lordship should carry on hearing the case. On the factual matrix, this is what suffices.
Then it was yesterday. After YA had ruled that we are not entitled to the notes and other materials, we had made an application for your Lordship to have adverted to or rather I have brought your Lordship’s attention to the Supreme Court case, United Asian Bank Bhd. I said YA that YA has not abided by the principles of the case and we will be making application for the recusal of your Lordship on that trial.
But what transpired thereafter YA was this. I take your Lordship to para 6 of the affidavit in support of DSAI. We have taken this from the extraxct from what has been recorded on what transpired that day. [read]. YA, this is a clear case of intimidation of counsel. The threat by your Lordship to take up contempt proceeding. To threaten a counsel in execution of his duty is a very serious matter. No doubt that judges are required to administer justice without fear or favour. Counsel too has certain duties.
I take your Lordship to rule 16 of the Legal Profession Act 1978. [read : uphold the interest of their client] that is YA a very onerous task for a counsel to carry out.
I take your Lordship to what has been said by Eusoffe Abdoolcader in the case of Dato’ Mokhtar Hashim, tab 1 page 283 of the report. [read]
So here YA, we say the ground upon which this application is founded is that there was this threat to counsel of contempt and therefore what has to be considered here putting aside the disinterested person, the jelutong omnibus and also the impression created on the mind of DSAI. And that is what your Lordship has to seriously consider. Your Lordship has to put yourself into the shoes of DSAI. And that is he manner in which Your Lordship, what would be the impression of Your Lordship mind.
The fact that your Lordship back track and withdrew the threat to cite me for contempt does not mean prejudiced and bias are completely erased in Your Lordship’s mind. It is there. As a human it is the person that we trust. That element must be taken into consideration. As I said earlier, our application is founded solely on that ground. DSAI is entitled in regard to the provision of Article 5(1) of the Federal Court where all persons are entitled for a fair trial. That is effect of Article 5(1) of the Federal Constitution.
An expression has been given in respect of that article by the Federal Court itself recently in the case of DSAI. It’s adverted to in para 11 of DSAI’s afidavit in support of our application. This is what is said by the Federal Court in DSAI. [read].
So your Lordship must carefully consider now. As I said earlier the effect of the threat against counsel on the mind of DSAI. We would urged YA to carefully consider it, I must say this must be taken objectively. There is nothing personal between your Lordship and I. I have appeared before your Lordship many a times. But when it comes to a necessity YA, we say it is a necessity in this case for us to insist your Lordship under the circumstances to recuse. We say there is a real danger of bias. It is for your Lordship to apply the law to the circumstances of the case based on the factual matrix set out in DSAI’s affidavit.
Your Lordship as a judge will not be able to reply to the affidavit. I don’t know why but that is the position placed on the judges. Judges should be given opportunity to defend themselves. The law is very clear. If the context of affidavit is not challenged, then it is deemed admitted. The Federal Court has decided this in DSAI case, in another case applying the principles in the case of Ng Hee Tong. It is given the status of the proposition being backed by the Federal Court. In any event YA, let the record speaks of itself. Transcript speaks for itself.
There is one case where J Apandy was required to recuse himself. I take your Lordship to tab 5. Unfortunately YA the judge went at a great length to insist not to recuse himself and he also refers to the principle of to the reasonableness of the existence of the real danger of bias to be assessed in the light of the judges code of ethics 1994 and their oath to administer justice without fear or favor. No doubt the judge is not required on frivolous ground to discharge himself.
But the ground in which our application is based is one of substance and not of allegation plucked from the thin air butt something which is transpired in this court itself in the presence of everyone and YA recorded. I apply for your Lordship to voluntarily step down. Without the necessity of reply by my learned friend.
Your Lordship must act in line with the manner where J Vorah acted in the case I cited to your Lordship just now. He took into account the public policy. He took into account that justice must not only be done, but be seen, manifestly to be done. YA should not have in mind YA that the fact that this trial has go on for some time, 3 witnesses have given evidence, or at least 2 ½, one in the middle of the cross-examination, and it involves public expense but expediency should not be affected. Justice should not be sacrificed at the court’s expediency. YA, DSAI’s case is big, monitored worldwide. In fact our legal system itself is under trial. Even the Secretary of the United Sates, Hillary Clinton has called upon the government to ensure that DSAI gets a fair trial. And there were the same calls made by the European Union, and other organisation. This trial is being monitored by representatives of various High Commissions and Embassies. Your Lordship is under close scrutiny. Your Lordship has to be man enough to rise up to the occasion and with respect step down. It is my view, our view that your Lordship has no other alternative under the circumstances but to step down.
It is a first time where application is founded on the ground of intimidation of counsel by the judge. That there can be intimidation there can be no doubt. YA may refer to the case of Zainur Zakaria where Zainur Zakaria was charge for contempt and sentence for imprisonment for three months. The Federal Court set aside the conviction and sentence. The Federal Court even went to the extent questioning the conduct of the judge, J Augustine Paul. J Malik who wrote the judgment of that court went to the extent of saying that the learned judge there was acting more as defence counsel, sorry as prosecutor more than a judge. I’m not threatening your Lordship that the Federal Court will reverse your Lordship’s decision. But I’m gently reminding your Lordship that that can happen. Your Lordship must try as best as possible to accept that and to step down. We would respectfully pray your Lordship step down and recused further from continuing with the trial.

MHZ: Pihak pendakwaan memohon masa untuk menjawab hujah pihak pembela dan terutamanya untuk mendapatkan arahan dari Dato’ Yusof.
YA: Dia sakit?
MHZ: Ya. Dia sakit hari ini, YA.
KS: No objection.
YA: Tomorrow 9.00 a.m?
KS: Tomorrow I have a matter in Court of Appeal in the morning. So I’m not unable to be here tomorrow morning, but I’ll be back by 11.00 a.m.
WCK: Tomorrow is Friday. Can we can start early?
YA: So 8.30 tomorrow.
[10.07 a.m.] Adjourn.

Wednesday, November 24, 2010



Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP: semua hadir kecuali NH dan MM
PB: KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Ram Singh, (Marissa, Radzlan tidak hadir)
Experts for the defence: Prof. David Wells (Dr. Brian MacDonalds tidak hadir)
AI hadir

[11.48 a.m.]
YA: Berkenaan permohonan peguambela semalam, S159, I agree that S.159 talks about refreshing evidence while under examination. The question is whether the word “while under examination” includes circumstances while the court is during recess. To my mind it is. Because to conclude otherwise would cause injustice because the witness could look at whatever it is and to deny the right of the defence under S.160 of Evidence Act. Therefore, I allow the defence application for the pro forma to be produce and shown to the defence according to S.159.
As regards to the application of SP3 for contempt and direction for investigation to be conducted against SP3 for the reason of interfering with the justice, I’m of the view what was done by SP3 is neither calculated to interfere with the course of the justice nor would he be held for contempt or to be investigated under the Penal Code. So, application for contempt is dismissed.

MY: My Lord, I seek clarification. Some question were post to the witness which he could not answer. Nothing very material but with regards to i/c number of …

YA: Now what is it that you are trying to say?

MY: Do we need to make available everything?

YA: That is what he said,. He said he referred to the pro forma.

MY: He did not refer to the whole thing before he answered any. That is my problem. S.159…

YA: But as far as my ruling is concerned, he said he refer to the whole pro forma.

MY: So that’s why I’m seeking your Lordship’s clarification. S.159 talks about witness referring to a particular part or the whole part of a particular document in answering question. He has not referred to any during examination. And when he turn up, no question were being asked as regards to what he referred.

YA: Whatever it is, it is my ruling. The pro forma is to be made available to the defence.

MY: We will accept that.

KS: We want it now.

MY: He said it is in his possession, so I take it he has it. We don’t have it.

YA: Panggil saksi.

MY: YA, saksi dalam toilet.

KS: Perhaps he is refreshing his memory in the toilet.

KS: Meanwhile YA, we have this issue to disqualify your Lordship.

YA: In the meantime we can continue to examine SP3 until the application is being filed.

KS: Precisely. It would not be proper for us to proceed with the cross-examination of SP3 as there is this application to disqualify your Lordship.

YA: We still can proceed.

KS: Inconsistent. I don’t think we can do that. We should do something that []. We cannot say in one breath that your Lordship should be disqualify and continue with the trial.

MY: My stand has always been this, my Lord. Until the application is before the court, we should proceed at least with the cross examination.

KS: We can’t do that. It is not proper. It is our right to have your Lordship recused.

MY: Then there’s no point.

KS: We can’t do that.

MY: Can we stay the order?

KS: It doesn’t matter if we get it or not.

YA: So you don’t want to proceed with the cross-examination of the witness?

KS: We ought not to.

MY: As I have indicated to my learned friend just now, in case the original is shown to him he may want copies to be made. Copies are also to be made for me. Perhaps we need 3 copies for cross reference also.

YA: We stand down for a while.

[11.55 a.m.] Stand down

[12.25 p.m.] Pihak-pihak masuk ke Kamar Hakim.
[12.51 p.m.] Pihak-pihak keluar dari Kamar Hakim.

[12.59 p.m.]
MY: Kes untuk sambung pemeriksaan balas SP3

KS: In view of the development of the stay we are unable to proceed with the cross-examination of this witness. We’ve filed just now my Lord, a notice of motion supported by the affidavit of DSAI seeking the recusal of your Lordship from further hearing this trial. We’ll give the reasons in details tomorrow morning, my Lord when the matter comes for hearing tomorrow morning.
The ground is this, my Lord. Yesterday 23rd of November 2010, your Lordship has intimidated the counsel that is me and therefore DSAI has serious concern that he will get a fair trial if your Lordship continue presiding in this trial. DSAI is entitled to a fair trial and with regards to Article 151 of the Federal Consitution and that being the position it will be inconsistent for us in the face of this application asking for your Lordship recusal to proceed with the cross-examination. Inconsistent. Inconsistent. This cannot be done. And we don’t intend to do it.
I see that the date for the application is for tomorrow morning.

YA: It’s today.

KS: Oh, today. In the afternoon. We are asking for tomorrow morning. We intend to prepare this case fully and properly. As I said earlier, the ground and the law will be adverted to in detail when this matter comes up tomorrow, and not this afternoon. It ought to be tomorrow. Gives us time.
We have given your Lordship notice yesterday that we are going to file for an application to recuse your Lordship. We have to be in the Federal Court together with DSAI this morning to get the decision. In fact we stay up until 1.00 a.m. last night to prepare the notis usul and the affidavit. For that reason we need more time until tomorrow morning to do the getting up and come here well prepare to recuse your Lordship from further hearing this matter.
I have nothing further to say, my Lord. Much more will be said tomorrow morning.


MY: YA, I really do not know how to respond to this application.

KS: Very simple.

MY: No objection? No. I believe that until the application is heard and we deals with the merits of the application, all this what has been said are mere conjecture. That’s an interpretation of your Lordship. That’s all. I do not wish to say anything further but the case has been fixed for so many days and yesterday we only had less than 10 questions asked before we adjourned. And also today. My concern is only that. I can understand the predicament. It is true it is not inconsistent where on one hand they are saying that you shouldn’t be hearing this until we dispose of the application and at the same time we come here to get only 5-10 minutes of the cross-examination of the witness. But if the court is mindful to grant stay or to postpone to tomorrow, may I apply to this court to excuse SP3 from attending the court tomorrow because he needs to be in the court in Terengganu. The case has been fixed for a week and tomorrow is the last day of the hearing. And I’ve spoken to the Judge requesting for him to have this witness tomorrow or at least this afternoon so that we can finish with the witness. That’s all.

YA: So you contemplate that tomorrow the application will take the whole day?

MY: I think the hearing of the application proper should be done by noon. And your Lordship may need time to make your ruling. But in any case, I don’t think that this witness is able to fly in to Terengganu and come back at time tomorrow morning because he is to testify there. I’m sure the counsel there will have a lot of questions just like KS. So unless we can proceed with this witness this afternoon, I would request for the appearance of this witness to be dispense for today and tomorrow.

YA: We agree that we are unable to proceed with the trial.

MY: Yes, it’s inconsistent. We accept.

KS: Then my learned friend should not object to our application.

YA: He is not objecting. He is voicing out his concern. Kita sambung besok la. I’ll hear the application tomorrow.

[13.08 p.m.] Adjourn.



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

PP: Semua hadir kecuali NH, WCK dan MM
PB: KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran,(Ram Singh, Marissa, Radzlan tidak hadir)
WB: Zamri Idrus (untuk SP1), Andy Leong for Bar Council
Experts for the defence: Prof. David Wells (Dr. Brian MacDonalds tidak hadir)
AI hadir

[8.46 a.m.]
MY: Kes untuk sambung pemeriksaan balas SP3.

SP3 mengangkat sumpah di dalam Bahasa Inggeris.

Pemeriksaan balas oleh SN.

Q: Dr. Siew, you mentioned yesterday you have read sexual assault profoma.
A: Yes.

Q: Did you bring it?
A: Yes. YA, I have 2 sets of protocol in my office. This is the clinical forensic medicine examination draft and medical examination form for suspected rape victim.

Q: We want the actual copy not the draft. These are sample copies?
A: Yes. These are samples that we are using.

Q: Surely in the case of Saiful you fill it up?
A: Yes.

Q: Can you produce it?
MY: YA, I don’t think this is proper. The ruling has been made. We cannot go through that again. You haven’t even asked.

Q: I would have expect you to have asked Saiful according to this porfoma?
A: Yes. This is the guideline we followed.

Q: The one you fill up, do you have it with you? In your possession?
A: Yes.

Q: Will you be able to produce it?
A: I think I can give it orally.

KS: This mantra about giving orally, YA has listened to our submission on the issue of producing the data. We would like to submit again. YA Lordship is not functus officio. Yes, the ruling has been made, but YA’s ruling was not made based on our submission. In this respect, we have the right to, and we have to.

YA: On this issue I’ve made my ruling.

KS: But, I wish to make another submission. Because it is very important. The ruling was made absolutely with regard to S.159 and S.157 Evidence Act 1950. S.159-refreshing memory and S.157 to corroborate the witness evidence. But, what YA did not direct YA’s mind is S. 45 Evidence Act 1950, evidence of an expert. Could I once again and with respect put a stop to this mantra again and again. I’ll give it from memory. This court is entitled to the documents whether you like it or not. The law says it and I’ll be YA once again going through my submission again. It is very important. We seek YA’s indulgence.

MY: May I say something YA? The law is very clear. What is admissible as regard to the best evidence rule is the oral evidence. Just like an IO who come to court to tell what he did on a particular date and what report he received or complaint, where he went, what he collected and all that. All those will be reduced into writing in the form of an ID.But you don’t call him and each time and ask him “Can you produce your ID?”. You are not allowed to. The law prohibits that just like the law prohibits these documents. You cannot say, in this case you are talking about S.45. My Lord, this is an adversarial system where we have to prove. It’s our duty to prove our case. I do not think the court has any other role other than being a referee to ensure the prosecution prove it’s case. To compel us to produce everything that we didn’t is not legally permissible.
What is he being cross-examine on? The thing he did or the thing he recorded down? He may be an expert, he may not be an expert. But he is a witness of fact. He is testifying as regard to what he did on 28th of June 2008 between 9.00 pm to 12.00 something. That is crucial. Time, period, whom he interviewed, what he observe, what he did with the specimens and all that, it doesn’t require expertise. To talk about what I did, what I didn’t do, what I collected, what I put in the container, whether I seal it, you don’t requires special training to do all that. And the substantive part about his evidence is about all that. Except with the opinion or the conclusion with regard to the finding of semen in the anus. That’s all. So, what is this obsession to ask question “Do you have it recorded?” And “I want it”. It is trite law and it is certain that you ask him and he will answer orally. But if you keep on saying I want this and I want that, then you make S.60 redundant. That’s all.

KS: The opinion of an expert is not in relation to a fact, it is advisory. What is important YA is this, Section 45 Evidence Act 1950 and what is stated in the United Asian Bank case. I’ll go through my submission very very slowly because it is necessary. Because YA has not understood what we have submitted. As we said earlier YA is very much into S.159 and S.157 Evidence Act 1950 which do not apply. [read yesterday’s submission]. YA is bound by the decision of the Supreme Court whether YA likes it or not. [read extract of the book referred in United Asian Bank case]. Function of the expert is to give his honest opinion and place before the court all the data on which he based his opinion. And I repeat again [repeat].

YA: If he does not do that, what will happen?

KS: It is required.

YA: Maybe if he does not do that his evidence may be rejected. Maybe.

KS: I’ll come to that later.[continue reading submission]. It is also not fair to the opposite side. We are the opposite side here. No doubt this is an adversarial trial, but it does not mean the court should sit back and do nothing about it. [continue reading]. Any opinion without stating the reason is valueless. Why is YA recording something that is valueless? This is what the Supreme Court said. [continue reading]. Our Supreme Court, not the Indian Supreme Court.[continue reading]. Why must YA sit there and later be guilty of serious misdirection later on? Must YA wait for the Appeal Court or the Supreme Court to decide there is a misdirection here. Why be misdirected? Here it is more between the court and the witness.Nothing to do with the defence or the prosecution. Because evidence of an expert is not an evidence of fact. They are just to give advisory opinion. The expert is here to assist the court. To assist the court to come to a finding of the court. And to come to the finding of fact we have to rely on the data used by this witness to make his conclusion as to his findings. We seriously urged the court to consider S.45. Forget S.159. Forget S.157. They do not apply. I have address it in my submission at the early page that it does not apply and what applies is S.45. It is a wrong judgment by YA for not addressing S.45. My learned friend is wrong when he says the witness is a witness of fact. He is just giving advisory opinion. The opinion must always be factum and something substantial. In this case it’s the notes. The witness says he has the data, he has the document but he kept on saying he want to give evidence based on his memory. He is nit here to dictate to us. YA is here to ensure proper evidence is given. Evidence which is essential. If I may repeat again, YA cannot sit here and let me be misdirected and let the Court of Appeal to correct it later. That is what YA is doing.

YA: If he does not give the data and I accept the evidence it will be misdirection.

KS: Why must Ya wait for that?

YA: I’ve yet to decide whether to accept his evidence or not.

KS: No. YA cannot accept his evidence. Because the court has made it clear, I repeat for this particular witness to place before the court all data.
YA: It’s up to them whether to provide for the data or not.

KS: Without the data it’s not worth for any paper to be written [read the Supreme Court case] YA must direct him, he must place before the court all the data. The court must direct the data to be placed before the court. No doubt this is an adversarial system, but the court has its function to ensure all the data and material are being placed before the court. We urged the court to consider the Supreme Court case and S.45 again. The witness is being programmed. He says he has the document, but he didn’t want to see them and he just want to give evidence based on his memory. I do not have to repeat this submission again because the third witness will come out and I’ll repeat the same thing again. The Supreme Court has said this way back as far as 1993.

MY: May I reply?

YA: KS belum habis lagi.

MY: He has been repeating himself.

KS: I’m not repeating. I’m emphasizing so that YA would understand what we are going to say. It is so clear but I can’t understand why YA cannot see what we are trying to put across. I’m making attempt for YA to understand it. I’m as much as an officer of the court as much as YA. There is no difference between us. I’m here to convince and persuade YA in the name of justice.

YA: That’s all?

KS: That’s all.

MY: My Lord, I accept that statement of law made in that case. That is a general principle. Now, we talk about data. He is not a chemist to analyse the specimen, to see whether there is semen or whose DNA is it. But as far as the chemist is concerned we have given all the documents and data of the chemist to the defence. But here what data is he relying on giving evidence? All this team of the doctors did was to examine physically, to observe whether or not there is injury. They can testify to that. They don’t need the data to come to that. And then they collected the specimens. And they did not even analyze the specimen. As far as the chemist is concerned like I said just now all the data used by the chemist to analyzed had been supplied. So he is to give his reasons. Now as far as the doctors are concerned when they gave their opinion with regard whether there was penetration, he was not even relying on their examination. Because as far as the conclusion is concerned, the conclusion is neutral. There is nothing clinically conclusive suggestive of penetration. That’s all. So whose report and data that they are relying upon? It is the chemist report. And the chemist report was produced in court and incorporated into P22. So what data is my friend asking for now? They don’t have the data. Like I said, he may be a specialist. But in the context of this case, what he did is nothing more than just collecting specimens. What should be the concern is whether they have adopted a proper procedure or not in terms of specimens collection, whether they are train or not. That’s all.I’m aware with all those cases. Even R v Turner said when a psychiatric or a doctor gave evidence as to the mental state of mind, he must state the facts proved by admissible evidence not based on interview alone. He must make his opinion based on his own observation and not of anybody else. We know that and that is trite law. We have no quarrel with

KS. But this is not the situation in this particular case. So when they kept on talking about data, this is not about handwriting where you have to analyse the handwriting, the loop, the angle, whether or not pressure was applied during writing, what kind of ink and all that. I mean it is so different. The statement of the general principle we accept. But we have to look into the context of this case. He may be an expert in so many things. But what did he do? What evidence did he gave? Was it based on his specialise training? Or what any medical doctor would do. In his situation where he was ask to examine and collect specimens. And that don’t require data. We don’t need reason and there’s no reason here. He is only testifying on what he did and what he did not do. And also what he observed.
So now if the only conclusion that he made which incriminate the accused was based on that report and that report was made available. In fact the report was of no assistant to him because the location was not known. So my learned friend cannot complaint now “You must bring the report based upon which you give your conclusion. The report was incorporated in P22 and also produced in court in the form of ID25 for KS and SN to see and to analyse. So what is it that we are withholding? We don’t.
But as I said just now my Lord and I said this previously, S.45 talks about expert evidence. It talks about circumstances where the court can comfortably accept and attach the weight to it. And it lays down the principle. Principles based on the factual fact of the case. S.45 does not say if the prosecution or anybody who rely on the expert witness failed to do certain thing then it’s for the court to compel to do it.
This is an adversarial system. Your Lordship role as a role of a referee. It is not your Lordship’s function like in a football game for us to bring the ball to the goal mouth and for you to shoot it. It’s our duty. And if we failed to do it, that’s the risk we are to take. And KS cannot genuinely be concern of justice in that sense. He should be happy. If I failed to do all this thing, he could just comment. He can come out with cases to say that it is unfair and that I cannot cross because you did not come out with the data. So in short, just like KS, that your Lordship is not persuaded and that we did not understood him, we understood him very clearly. It’s just that the law does not support what he propose the court to accept that this particular S.45 gives the latitude to the court or defence to have access to the documents which the prosecution or the witness do not refer or tender. That’s all.Thank you My Lord.

KS: Just 2 points. Whether it is a chemist or handwriting expert or medical doctor, the principles are the same. There’s no difference between these principles. What these witness is doing is coming to the court and says “These are my findings”. He is not prepared to go further than that. What is important here YA is that the witness yesterday says that there were photographs taken but the prosecution in fact would object to the production of the photograph. Why is the photographs not admissible? Is it not necessary for us to look at the photographs?I refer to an Indian case of Madan Gopal. Expert is expected to put up all materials. This is what the Supreme Court says. [read].

YA: We accept that. But the question is can we compel them to do that?

KS: As I said earlier this is not an evidence of fact. It is opinion

YA: If they failed to prove, then they take the risk.

KS: Why wait for the misdirection when it can be avoided.

KS: I will carry on as I have not finished. I start again (read submission). The court although not an expert may form it’s on judgment on those materials. Once the opinion of the expert is accepted it is not the opinion of the expert but that of the court. That is what YA it is. We urge YA to reconsider the ruling made yesterday. Concentrate and focus on section 45. The court has a duty to ensure justice is done. Adversarial no doubt but YA must demand for the data to be produced so that YA would be in the position to make findings. YA should not be concerned with the defence or prosecution but YA oneself. Because later YA has to make a findings of facts base on advisory opinion and the opinion can’t be done unless YA has all the data.

YA: If there is no data and the court cannot make a finding and you will be at the advantage.
KS: It is not about advantage. It is about justice. Here there’s no justice. To do justice YA must be fair to both side. Why is my learned friend so intent in disallowing something which is allowed in every countries? Once again reconsider the ruling made yesterday in the light of the Supreme Court decision. It is our Supreme Court decision. Section 45 alone. Forget 159 and 157. They do not apply at all.

YA: So now you are asking under S.45 Evidence Act 1950?

KS: Yes. 45 alone and nothing else in the light of our Supreme Court case and the Indian Supreme Court case.

YA: That’s all? Give me some time.
[9.18 a.m.] Stand down.

[9.57 a.m.]
YA: This is my ruling. [Judge read his ruling] The application of the defence is hereby dismissed.

KS: We get instruction to appeal against your Lordship ruling.

YA: This is an interlocutory ruling.

KS: It depends on how we go about it. Because we do not want this to be repeated because there are 4 witnesses pertaining to this issue

YA: It’s up to you. I’m not going to accede to any postponement. But in the mean time we can proceed.

KS: It’s not a postponement. It’s an adjournment for us to get the application filed. In fact your Lordship has to hear the application.

YA: As of now there is no application before me.

KS: Application cannot be oral. It must be in writing We requires some time to get the application done. It is a precedent that your Lordship said application must be made in writing.

YA: So you don’t want to proceed with the cross-examination now?

KS: Perhaps that’s what I mean.

YA: So I take it you don’t have any cross-examination.

KS: Your Lordship cannot take it to that extent, I’m making my application and I’m giving my reasons for it.

YA: So you are making an application for stand down, is it?

KS: We have to file the application because if our application succeed there is no reason to go on with this particular witness. If your Lordship agrees with the stay. Your Lordship does not understand. If your Lordship agrees for a stay, then it will be pointless to go with the evidence of this witness.

YA: I don’t want to argue with you.

KS: But your Lordship has passed precedent like this earlier. So we need time. Or is there a departure as to this precedent, my Lord?

MY: My Lord, I’m sure KS or SN can cross examine the witness on other aspect other that does not require the so call data that they ask for. Because until today we do not know what data they are talking about. because there is P22 which is the notes based on the examination. I’m objecting for the stay.

YA: You can file for your application for stay. But for the time being proceed with the cross-examination of the witness. Teruskan.

Cross-examination of SP3 by KS.

Q: You have given us this pro forma. Which you have fill it up?
A: Yes.

Q: By whom?
A: By my medical officer who was under me.

Q: Who is the medical officer?
A: Dr. Raswin

Q: It’s quite a pro forma isn’t it? With many questions to be filled up.
A: Yes.

Q: It’s detailed?
A: Yes.

Q: Is it exactly like this that you have filled up?
A: YA, it’s just a guide.

Q: I’m talking about the pro forma. What was it that you fill up?
A: This is just a guideline…

Q: Is this the pro forma?
A: Yes.

Q: The white one or the yellow one?
A: The white one.

Q: So you fill up every detail as in this pro forma?
A: Yes.

Q: You filled up every question and gives the answer?
A: Yes.

Q: Preliminary?
A: Yes.

Q: First, the general information. Patients name. What was it?
A: Mohd Saiful bin Bukhari.

Q: What is his i/c number? You said you got good memory.
A: YA, can I have a copy of my clinical report.

KS: Dr. Siew,…

YA: He wants to refer, now you don’t give.

KS: Precisely. That’s what I’m coming up with.

Q: Do you want to refer to this now?
A: No. I don’t want to refer to this. May I have a copy of my clinical report?

KS: No. Dr. Siew, you are not answering the question. You said you can give through memory. Name again the patient. Spell it.

M Y: My Lord, may I interject.

KS: We do not want interference. The DPP should not interfere unless he wants to be cross-examine.

MY: I want to raise a point.

KS:: What is your point?

MY: Let me address the court. I just want to clarify with the court and the defence counsel. Are we asking this person with regard to what he did or to the record of what he did?

YA: I understood what he did.

KS: What he did here. Give us the latitude. Whatever he has fill in, now we want him to remember.

SP3: YA, of course I can’t remember details such as i/c number.

Q: So i/c number you can’t remember? Name?
A: Mohd Saiful bin Bukhari. Of course I can’t remember certain thing.

Q: Mohd Saiful bin Bukhari?
A: Mohd Saiful Bukhari bin Azlan.

Q: I/c number you can’t remember?
A: …

Q: We go one by one if that’s what you want. Three. Address. Can you remember?
A: Address I did not fill in. Because I have a copy of the i/c.

Q: So address is not important?
A: It’s in the i/c of the patient.

Q: Isn’t it a requirement to fill in the form?
A: I’ve a copy of the patient’s i/c.

Q: Isn’t it a requirement to fill in the form?
A: That pro forma serves as a guide for us.

Q: Age?
A: 23 years old.

Q: Date of birth?
A: It’s as per the i/c. I cannot remember.

Q: Occupation?
A: A private assistant.

Q: Private assistant to what?
A: I didn’t ask.

Q: Married/single/divorced?
A: Single.

Q: Out patient card number?
A: There is no such thing. No information.

Q: Hospital admission number?
A: I put it as K08/08 as my case number.

Q: But admission number is there.
A: YA, that is just the pro forma.

KS: Dr. Siew! Forget what it is. We know what it is.

Q: Date of arrival?
A: 28th June 2008.

Q: Time of examination?
A: We put 9.12 p.m.

Q: Place of examination?
A: We put it as One Stop Crisis Centre (OSCC)

Q: Police report number?
A: Travers report.

Q: Number. Not the Travers report.
A: I can’t remember. Can I have a copy of my clinical report again?

Q: Do you want to refresh your memory?
A: I would like to recall my memory from my clinical report.

Q: Do you want to refresh your memory?
A: I want my clinical report.

KS: YA, gives us the latitude.
MY: He wants to refer to his report.

Q: Do you remember?
A: Yes. I wish to refresh my memory by referring to my clinical report.

Q: We are referring to this. This document. And nothing else.
A: YA, I want to refresh my memory by referring to my clinical report.

Q: No. I want you to refer to this. This is the document.
A: I want to refresh my memory by referring to my report.

KS: No.

MY: This is what the refreshing memory is all about. Let the witness refresh his memory if he want.

KS: No. We are basing it based on the pro forma which he has filed.

YA: Okay. He does not want to.

KS: He does not want to.

Q: You don’t want to?
A: I want to. I want my clinical report.

Q: You don’t want to refresh your memory from this pro forma?
A: No, YA.

Q: Then say no. Next, name of the police officer?
A: His name id DSP Jude Blacious.

Q: His i/c no?
A: I cannot remember.

Q: Do you wish to refresh your memory?
A: Yes. From my clinical report.

Q: Dr. Siew! Do you understand? This document. You don’t wish to refresh your memory from this document?
A: No.

YA: KS, if he wants to refer to the clinical finding, let him.

KS: YA, we want this document. Why must go to the other document?

Q: Allright Dr. Siew. I/c no. of this police officer?
A: I don’t remember.

Q: Do you wish to refresh your memory?
A: Yes. From my clinical report.

Q: Do you understand English?
A: Yes.

Q: Do you want to refer your memory based on this document?
A: I don’t wish to.

Q: Why?
A: I don’t wish to use this document. I’ve my complete report.

Q: Why not from here? Forget the complete report.
A: I’ve answered already.

KS: Come on Dr. Siew, you can’t come here and expect us to accept your lie.

MY: That’s a strong word.

KS: Stronger words are coming out.

MY: What is your basis in saying that?

KS: Because he is obviously lying to his teeth.

MY: This is my problem. I thought witnesses are called to testify with regards to what they do.

KS: That’s what he did. This pro forma.

MY: This is the record of what they did.

SN: Why are you scared? Why are you scared? Why is he scared in referring to his notes?

MY: I think the court must make a ruling. Are we going on what he did or on what he recorded he did?

KS: We will go on. But one by one. Later on.

MY: I thought that is what he did.

SN: That’s your style. Our style is different.

MY: It’s not about style…

KS: I do not wish to be interrupted. This is the document which he prepared. And he does not want to refresh his memory because he has been programmed.

Q: We proceed. Name of the police officer you know, but i/c of the police officer you don’t know.
A: Yes.

Q: But you don’t wish to refresh your memory based on this document?
A: No.

Q: Why?
A: I don’t wish to.

Q: Name of the doctors who examine the case?
A: Dr. Khairul Nizam b. Hassan, Dr. Razali b. Ibrahim, Dr. Siew Shueu Fend and Dr. Ridzwin.

Q: Designation of the first doctor?
A: We did not fill in that section.

Q: Name of nurses assisted?
A: There’s no nurse assissting. There was no nurse around.

Q: Name of counsellor?
A: There was no counsellor.

Q: Now this is important. The history. The following should be. Page 5. Do you know of page 5.
A: Can I have a copy? (Witness is handed over the pro forma)

KS: No no no no. Not this one. The one that he has fill in.

MY: You have not even ask the question. You ask first. You ask what is it for page 5.

KS: You don’t teach me how to ask. I don’t have a copy.

Q: History. The following should be noted as alleged rape.
A: There is no rape here.

Q: But the following should be. It’s mandatory, isn’t it?
A: Not mandatory. It’s a guide.

Q: The word is should.
A: The word should is a guide.

KS: Where did you learn your English?

MY: It doesn’t matter. The whole page is a guide.

KS: Forget about the guide.

MY: How could you forget about the guide?

Q: Allright, 1.1. is there 1.1 from your memory?

MY: What is this?

KS: This is not a laughing matter.

YA: Be precise with your question. Ask him what has he recorded in 1.1.

Q: There is a five isn’t it? One, there is history. You remember that isn’t it?

MY: That is not 1.1.

KS: My Lord, my learned friend should keep quiet.

MY: You didn’t even ask what you write in 1.1.

KS: Because that’s what he says.

MY: Because earlier on you ask name. Why not you ask what’s on page 3? We have got to be fair to the witness.

SN: We have been fair to him.

KS: He has been unfair to himself. These people are all programmed. They are robots.

YA: I think we take a break.
[10.17 a.m.] Stand down.

[11.29 a.m.]
KS: We’ve got an instruction form my client for your Lordship disqualification to continue hearing with this matter. We are putting up a written application. But basically the grounds of our application is this, that your Lordship has failed to abide by the guidelines or for that matter specifically the case of the Supreme Court in United Asia Bank Bhd. We’ll put up a written application by tomorrow morning. We ask for this trial to be adjourned until the hearing of our application.

YA: You will file it by tomorrow morning?

KS: Yes.

YA: But in the meantime we can proceed with the trial now.

KS: No.

YA: Because in the meantime I will have to consider contempt proceeding as well for making an application to recuse a judge.

KS: We will give more details in our application. DSAI is afraid that he is not being given a fair trial. It is our client’s instruction that we are bound to take. Your Lordship may refuse it. It’s within your Lordship domain. But we have got to take instruction. The question of contempt does not arise. This is matter where your Lordship has to view objectively. We have the role to play as defence counsel. If instructions are given, we must abide by the instruction.

YA: But you are responsible for whatever instruction that you are taking. Like in the case of Zainur Zakaria where it says you are responsible with whatever instructions your client gave. Zainur zakaria case is clear on that.

KS: That’s a separate matter.


MY: YA, this is the first time I’m hearing an application grounded or that the judge should be recused on the ground that involves a matter of interpretation or judgment. It does not involves the conduct of the judge, but it’s a matter of the judge interpreting the authority and say that this authority does not support your proposition I have never heard of something like this. I do not think there is even a ground because if you are not happy, you appeal. If it can be appeal. If not you have to wait until the end of the trial. But it cannot be a ground when the judge interpret differently.

YA: That one tomorrow baru decide.

MY: YA cannot decide tomorrow because how are you going to say that “I interpret it wrongly”. You won’t be able to say that because you have heard the submission and make a finding that the authority does not support the proposition. Tomorrow, when somebody comes in and says that you do not follow because it involves your own interpretation of that authority. Whether or not it support the proposition. No.2 I agree with your Lordship. Client will ask for anything, but counsel must be able to advise and only do things which is permissible under the law. Not because “Oh, my client ask this”, irrespective of whether or not the law allows it. Because it’s my duty to pursue my client’s case without fear or favor. Because everything is subject to procedures and the law. I’m objecting to the application of stay.

KS: The question of contempt is totally unwarranted. Your Lordship should view it objectively. When a written application is made…

YA: When the application is made of course I can hear it.

KS: But to threaten us with contempt…

YA: For the time being, we can proceed.

KS: But to say contempt at this stage is serious.

YA: I’m not saying it is contempt.

KS: Your Lordship said it just now. Which is not proper. We have a duty to perform.

YA: Okay, that one will be filed tomorrow la. But in the mean time…

KS: But the statement of contempt is entirely unwarranted. To intimidate a counsel is a serious matter.

YA: Never mind. Tomorrow’s application should be heard tomorrow.

KS: YA should draw the threat of contempt.

YA: I withdraw that.

KS: Yes. It’s not proper. We’ll take responsibility if responsibility has to be taken. Counsel must be prepared for that and we are prepared for that. YA should not threaten us even before we embark on the application.

YA: So, what about today’s proceeding?

KS: It’s as simple as that YA. I’m saying that until such time your Lordship hears the application and be serge upon it. Your Lordship can’t go on with the matter. It would be superfluous be ultimately overtaken by your Lordship’s ruling tomorrow. If your Lordship is to decide tomorrow your Lordship to disqualify yourself. We cannot take it that your Lordship is saying that we carry on despite whatever your Lordship’s decision tomorrow. Your Lordship should take it objectively. I was taken aback by the threat just now. I’ve been practising for the past 41 years, my Lord.

YA: It’s not a threat.

KS: But your Lordship refers to Zainur Zakaria and more or less giving us an indication not to file the application. Which I any event will be file irrespective of the intimidation. We will file it. Your Lordship can decide against us. That’s another matter.

YA: In the mean time, can we carry on?

KS: I don’t mind. In any event I’m prepared subject to application tomorrow. We are prepared. Lets get on with the witness.

YA: Proceed with the trial now. Tomorrow we see how.

Cross-examinantion by KS.

Q: Do you remember the oath you took?
A: Yes.

Q: Repeat that oath. Don’t look at anything. There’s a card there. Push it aside.
YA: Why? He took the oath. He read from there.

KS: I’m asking whether he remembers what you read.

Q: Dr. Siew, did you remember what you read? As an oath?
A: Yes

Q: Can you repeat it? Or do you want to refresh your memory from the card in front of you? What’s your option, Dr. Siew? You want to read from your memory or from the card in front of you? Dr. Siew, you must answer. Don’t look around.
A: [recite]

KS: Nothing else but the truth.

Q: During the break, did you go through the pro forma? Outside there, in the witness room?
A: Yes.

Q: You have it with you?
A: Yes.

Q: Did you have a look at it at all?
A: Yes. I did have a look at it.

Q: Why?
A: To refresh my memory.

Q: You did it to refresh your memory?
A: Yes.

Q: What part did you referred to just now? To refresh your memory. My Lord, we want that part.
A: The pro forma.

Q: What did you look at outside there to refresh your memory.
A: The pro forma.

Q: All of it?
A: Not all. Some of it.

Q: Which part? Do you wish to refresh your memory based on the pro forma just like you did outside during the break?
A: No. I remember now. I’m refreshed now.

Q: No no. you refreshed your memory outside. Which are the part from which you refresh your memory?
A: Name, Mohd Saiful…

Q: You went through the whole pro forma? Tell us the truth.
A: Yes.

Q: Because you have to give evidence later on, isn’t it?
A: Yes.

KS: Can we have the pro forma, my Lord? Because he has refresh his memory based on the pro forma pursuant to S.159 of the Evidence Act 1950.

MY: My Lord…

KS: Mr. DPP, don’t panic.

MY: My Lord, the law is very clear.

KS: My Lord, I’m not finish.

MY: All right.

KS: My Lord, we are asking for the whole of the pro forma to be produce. Because he refresh his memory. He said it under oath.

YA: But he refresh his memory outside the court. He did not do so while giving evidence in court.

MY: That’s exactly what I want to say. S.159 talks about refreshing memory while under examination. The law based on the literatures and the authorities, there is no stopping the witnesses from refreshing their memory outside the court, before the trial. The law is very clear.

KS: But is not in between giving evidence. Before trial yes. But not in between.

MY: But the law doesn’t says that, my Lord. We have the authorities.

KS: Shall we hear submission on this my Lord? If my learned friend wants to hear the submission.

YA: Okay, I’ll hear the submission.

KS: Gives us about have ½ hour to prepare our submission. Witnesses cannot go out and refresh his memory during break.

YA: When he wants to refer to the notes while giving evidence you disallow it.

KS: I didn’t disallow him. He didn’t want to. We will submit on this.

YA: ½ hour.
[11.42 a.m.] Stand down.

[12.20 p.m.]
YA: So we go the issue first. What do you want today?

KS: First, we pray for this witness to be cited for contempt of court. And also your Lordship to direct the prosecution of this witness under Penal Code.

YA: Peguam?

KS: First, that this witness, SP3 who has committed an offence in the Penal Code for interfering with the administration of justice. An offence punishable by the Penal Code.

YA: Which provision?

KS: I’m not sure of the provision. The authority I refer doesn’t refer to any of the Section in the Penal Code.

KS: The first thing is that whether during break this witness if he refreshes his memory that he is in contempt. For all purposes whatever he referred to refresh his memory be supplied to us.

YA: So you want the pro forma to be supplied to you?

KS: Yes. Next, whether the witness remain to be under examination eve during the break. We say he remain under cross-examination during the break because he was still under oath during the break. The rest would then follow. We refer the case Moomin bin Saman 1993 3 MLJ 282, subject of course this authority being overruled which I’m not aware of. A decision by Richard Talala…
YA: Has it been overruled?

KS: No. As far as I’m concern, no. I read the head notes. [read head notes and holding].

YA: You think I’ve the authority to direct him to be prosecuted? I thought that is the power of the AG.

KS: To direct for him to be investigated is better. For the offence under the Penal Code. But first the contempt, where your Lordship has the power and the judges had done in the course of the trial and the Lordship has instructed investigation. This is a clear case where it is warranted. That would be our submission. One which is of important at least for the purpose of the trial that we be supplied with whatever material used by the witness to refresh his memory during the break. That’s the main thing at the moment.

MY: My Lord, I’,m not sure whether the court is in the position to direct investigation against the witness just based on the authority of Richard Talala decision which was not followed by any other courts in Malaysia. This is the only High Court in Malaysia which bars witnesses from looking at statements before or during the break. Because all other High Court have not followed. In fact what J Talala did was to decline to follow the Court of Appeal in Singapore and the English Court of Appeal. He has his own idea of S.159 and S.160 and S.161. His decision was that he is bound by the statutory provisions of S.159, S.160 and S.161. So what does S.159 says? One, it says witness can refresh his memory while under the examination. The word is “may refresh his memory”. Nowhere in S.159, the law says that this is the only time you can refresh your memory. If you are not under examination before the trial judge, you cannot refresh your memory not before, not during the break. Even that statement that during the break that he is still under examination is a bare statement. What weight is to be attached to a bare statement? During a break, when you get back home, tomorrow you are still under examination.

YA: This is what he said, isn’t it?

MY: This is what he said. But what is the reason for doing so? Because we may adjourn at 4.15 p.m. today and the witness go back, he is supposed to be told you are still under examination.

YA: Any other case yang kata ini tak betul?

MY: I do not know any. All I have is that Lim Fong Yap. But first let me refer your Lordship to the literature which we have given you earlier. This is a literature by Paul.

KS: Perhaps my learned friend should gives us the authority that this case is overruled.

MY: Let me finish first. If I may my Lord refer to that literature. Page 1048, the last paragraph under the subheading “whether a witness is allowed to read his statement before the trial”. [read] So what Justice Paul is saying is this, S.159 does not says anything. It merely says you may refresh while under examination. But then you have to satisfy certain conditions as the literature suggest you must demonstrate there is a need for it before you refer to it. [continue reading] I must bring back your Lordship to the start of the paragraph. It said Talala said you cannot refer to it before or when the case stand adjourned. With this, Paul we part company. We disagree with you. So J Talala talks about even during the break you are still under examination. But that’s what he said. There is no other authority to say that even during break you are still under examination.

But one thing I can see what Paul said there is always a safeguard. You look at the statement and I decide what weight to be attached depending on the particular facts of the case. That’s what he says. It cannot be contemptuous. Witnesses have been known to be present in court while other witnesses are giving evidence. And still the court in this country and in any other country say there is no bar for him to come and give evidence. Except that the court has to decide what weight to be attached. Here we are not talking about statement recorded under S.112. Here we are talking about his own notes. The form that he fills. It’s not something that the prosecution gives him to read. It’s all the time in his possession.

The reason why we need to allow has been discussed in the case of Regina v Richardson which was quoted or referred to by te Court of Appeal of Singapore in the case of Lim Fong Yap. I have a copy of Regina v Richardson. I’ll make a copy for your Lordship in due course. But let me read the passages that the judge in Singapore referred to. At page 7, [read page 7]. If I may go down a little bit somewhere in the middle starting from “[curiously enough]”. [continue reading].

So what they are saying is that let him have access. We don’t want to turn the trial into a test of memory rather than the test of truth. But once you enter the witness box then you have to follow S. 159. If I may refer to Moomin case. I have the Lexis copy…

YA: Even if we were to allow him to refresh outside without the permission of the counsel or the prosecution, will that be still under S.159?

MY: What S.159 says is that during the examination before the trial judge.

YA: []

MY: Because S.159 only says when the witness is in the witness box. Or else the law will say even if you were given the thing one hour before that you still have to show. But the law doesn’t says that. What the law says is that if you come to court and enter into the witness box, then there are rules to follow. First, you cannot refer to the document as a matter of right. Because the law says you must testify with the aid of your memory. The literature in Paul and Sarkar say this, you can apply but the court must satisfy that it is so necessary before leave is granted. But outside that it is a matter of his right to look at it. He didn’t even have to ask from us because it’s in his possession.

Only yesterday I was reading this article by J Shankar, the former Court of Appeal Judge quoting J Wan Yahya. And in fact that passage was found in your judgment with regards to S.51 application. What the law does not prohibits it permits. So S.159 does not talk about during the break. It talks only about while under examination. And what is under examination, it is there in the witness box, not outside the witness box.

And this is what Paul said : before or during break, but the safeguards is the court has to decide what weight to be attached. That is the court’s discretion. But as what Regina v Richardson says : you have to give access. Because it says you want to do justice, not to test his memory. You are more interested in justice. You would be failing in your duty if you disallow. And S.161 merely says this: if he refers while under examination, that means while being questioned then you have the right. With regard to India, this is the Indian position. Page 2295 of the literature from Sarkar, under the heading “while under examination”. [read]. Examination in court, so outside the court is not examination. [read] While I’m submitting I can hear KS is saying “That is before the trial. Before the trial”. It’s true. Because the law is envisaging the situation before the witness gives evidence. But as Paul has said as for now we don’t agree with Moomin. I refer to Moomin case, the copy which I have downloaded from Lexis Nexis. I refer to page 9 of the report, the last paragraph. This is the judgment of J Talala. [read]. Richard Talala has his own idea. But like I said, what does S.159 said? Witness may refresh memory while under examination before the trial judge. Because what Hogan seems to suggest is that you can refer to it at anytime so long it is not while under examination before the trial judge. And in the literature by Paul, the condition precedent, i.e the condition before you are allowed to refresh your memory is what he quoted from Talala’s judgment. It is not as a matter of right. Eventhough S.159 you may refresh memory, S.159 does not impose any condition but J Talala lays down the condition. First, you ask him orally about the fact. Only when he can’t then he may apply. And only when the judge think that it is so necessary, to me meaning whether or not the particular of fact is so relevant and crucial to the issue for adjudication. For example, the i/c of Judy Blacious could not be that crucial. Because the so called Judy has been identified by this particular witness to be the officer who came to attend and who briefed them the history of SP1.

So my Lord, the law as far as J Paul is concern in his literature and all other authorities seems to suggest that there is no bar for a witness to refer to his statement. But that is not the issue before this court. The issue before this court is whether my learned friend is entitled to that document if he refreshes his memory outside the court. So the literature seems to say that S.159, i.e Sarkar – while under examination in court. If I may just again read Sarkar [read]. So.161 says whatever referred to under S.159,then it is imperative for the witness to show that portion he refers to the defence to use it to cross and to contradict.

So my Lord to sum up, may I just say that the law as J Talala said that is bound by S.159 does not prohibits refreshing of memory outside the court. Only he talks about the context before or after. He says cannot. before or after, you can’t do it. Before or during which J Paul disagree which all the Judges if I’m not mistaken in the whole of Malaya doesn’t agree. I do not of any other cases before this is the only case which decides this way. No.2…

YA: []

MY: In fact J Paul in his literature was referring to the case of DSAI and this case has gone up to the Federal Court and I don’t know of any adverse comment made by the Federal Court with regards to his approach to S.159 and S.161 in DSAI’s case. I do not know and I’m not aware. Meaning that it is tacitly approved by the higher court.

No.3, supposing it is wrong, supposing the court is in agreement with Talala, does that give him the right to look at the document. So the answer is negative, Because the law only talks about refreshing memory while under examination in court. Only those documents he referred in court while under examination that he is entitled to ask and which the witness is under obligation to supply. That is not the case before your Lordship now. No matter how you look at it, still the defence is not entitled. And whether or not it is contemptuous, I doubt it is contemptuous. Because contemptuous is when there is a blatant disregard to any order or rule by this court. He has not. The court has not says you don’t do this. Nothing. That would be all, thank you.

KS: A short reply. My learned friend should learn how to catch the bull by the horn. The question is whether a witness when the case is stood down, he refers to it, he is guilty of contempt. J Richard Talala has gone at length YA into that question and had formulated the rule as to refreshing memory. My learned friend refer to Sarkar. Lets see what sarkar says under the heading “While under examination”. [read]. We have no problem of that. It has been already been done. But the next sentence. But the word does not seems to debar for witnesses to refer to any writings before the examination. So the word here is before. This is not before. This is in between. It is in between. And all the cases my friend had cited in fact was saying before the examination.

I refer to what Augustine Paul J say [read]. We have to look at what J Augustine had to say. Disagreeing with this two. Lets look at what it says. [read] This is with regard to before. [read] Nothing says here with regards to when the court adjourned. It is before, not when court stood down. J Paul did not says as to this In fact what J Paul said does not at all negate what was held by J Richard Talala. Even during interval or for that matter when the witnesses says “I want to go to the toilet” and he refreshes his memory there and he is found to do that, does that mean he is not under oath?

YA: So that means you have the right to inspect?

KS: Yes.

YA: What about the contempt?

KS: He is still under oath.

YA: But there is no court order to say “No. You cannot do anything”.

KS: We don’t need court order. Because he is not entitled to do it. Before the break he can, but during the break he can’t. And that is what the conclusion of J Talala and if it does it amount to contempt. In fact if the witness said he wants to go to the toilet and he comes back, he is not ask to take the oath again. We carry on from where he left off. We say that your Lordship should follow what J Talala says in great lenght. Even his reason and authorities before coming to a conclusion. We say what was set out in Moomin aptly and squarely applies in court today. Of course first thing first. We are entitled to look at the pro forma. The rest falls into place. He has committed contempt, i.e an offence under the Penal Code that is interfering with the administration of justice. your Lordship ought to follow the reasoning in Moomin. There is no authorithy which has overrule Moomin.

YA: What about the case of DSAI?

KS: Even in that case it says before. There are 2 parts essential in our submission just now. In Moomin, the witness is not allow to see his statement made to the police before the trial. It does not advert to when the case stands adjourn. Like J Augustine Paul. It does not. We only agrees as to that part, before. Go to the next page [read]. Must be before all the time. As Sarkar on Evidence says [read]. If the witness is allowed during short adjournment to refresh, if that is the law, it would be aptly difficult to apply S.159 and S.161.

We pray for your Lordship to order – one, we being supplied with the pro forma, two, that this witness be held in contempt, three, that your Lordship direct an investigation against this witness for the offence of interfering with the course of justice under the Penal Code. Message has to be send out that anyone who comes to court as witnesses cannot fool around. This witness is just doing that. Whole morning he says he doesn’t want to refer to the document. In the witness box he kept saying that. I think you should take time to consider the matter.

YA: Itu saja?

KS: Yes.

YA: Court postpone to 11.30 a.m tomorrow due to DSAI and his counsel have to be in Federal Court tomorrow morning.

[13.17 p.m.] Adjourn.

Monday, November 22, 2010



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

PP: Semua hadir kecuali NH dan WCK
PB: KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Ram Singh, (Marissa, Radzlan tidak hadir)
WB: Zamri Idrus (untuk SP1)
Experts for the defence: Prof. David Wells (Dr. Brian MacDonalds tidak hadir)
AI tidak hadir

[9.13 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.20 a.m.] Pihak-pihak keluar dari Kamar Hakim.

[9.27 a.m.]
MY: Kes ditetapkan untuk ruling berkaitan permohonan peguambela untuk mendapatkan nota-nota pemeriksaan doktor-doktor pada 28.06.2008. untuk pihak mereka memeriksa.
KS: We wish to reply to MY’s submission. In fact there was only one page reply. It is one liner. In fact it was a question of the weight to be attached to the evidence if the notes is referred. Whereas it is in actual fact the question of admissibility, be that the notes, history of SP1 that it is not given in SP2 report. We say it is not as simple as that.
We take your Lordship to S.45 of the Evidence Act 1950. [read the whole skeletal submission]
Our authority show that they keep repeating the production of the data/ it is not a question of admissibility alone. It will be a misdirection if the doctors evidence is not supported by the data, it is a question of admissibility and not weight.
[continue reading skeletal submission]
YA: Tangguh sebentar. MY nak reply?
MY: Tidak.

[9.40 a.m.] Stand down.

[9.48 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.51 a.m.] Pihak-pihak keluar dari Kamar Hakim.

[9.56 a.m.]
YA: This is my decision. [Judge reads ruling]
KS: [] accept your Lordship ruling. your Lordship has completely disregarded the authorities we gave it is perversed. []
YA: That’s my decision. [] can we proceed now?
KS: [] Dr.Siew and Dr. Khairul. []
YA: That’s my decision.
KS: Of course we are reluctant to accept your Lordship decision. It is frivolous.
YA: Panggil saksi.
KS: We would like to have a short adjournment until []., it is important for me to be there. It involves public interest.
YA: MY? KS, motion ni sampai bila? Nak adjourn this matter sampai bila?
MY: I hope KS will make it []. If he can’t, we’ll proceed with []
KS: MY shouldn’t threat.
MY: It’s not a threat,
YA: It’s your motion, so you must be there. If you cannot be here by 12,30, somebody must take over.
KS: I’ll be back.

[10.22 a.m.] Stand down.

[12.32 p.m.]
MY: Kes untuk pemeriksaan semula.
KS: We are not finished yet with the cross-examination.
KS: I could continue until SN arrived.
YA: Since defence [].

SP2 mengangkat sumpah di dalam Bahasa Inggeris.

Q: Once again, you don’t want to refer to your notes?
A: Yes.

Q: From the notes evidence, you afraid not very clear.
A: I am clear.

Q: Is there any reason you don’t want to refer to the notes? Why do you insist on not referring to your notes? It will be in your favour. To corroborate.
A: It is not really necessary because I can give my evidence.

Q: In reference to SN cross-examination you said his bowel is empty, SP1. SP1 give evidence in court that he had not defecate for 2 days, rather to preserve the evidence. Would that be right that it is inconsistent that he did not defecate for 2 days and his bowel was empty?
A: Not necessarily. The lower part of the rectal is not a reservoir. It is at the colon. The rectal is just to facilitate the bowel out. It is not necessarily to fill up with faeces.

Q: Despite that, the bowel will still be empty?
A: Yes. because the lower rectal part is empty. Because that is the area mainly to facilitate mainly for the faeces to pass motion. When you have the urgency to pass motion, you are in a situation to control it until at a stage where you cannot hold it, the faeces will start coming out.

SN: My apologies, YA.
YA: It’s okay.

KS: SN will continue.
YA: Didn’t you tell the court the last time that you’ve finished your cross-examinantion?
SN: This arises from my learned friend’s question.

Q: You mentioned to KS that SP1’s bowel is empty []
A: During the examination, I did not see any faeces at the lower part of the rectum .
Q: Now we go back to the colon area. Ascending traverse, descending and sigmoid. Is that what it is? Is it correct?
A: Yes.

Q: Sigmoid connects to the rectum. Is it not correct?
A: Yes.

Q: How often does faeces [] what will remain in the sigmoid. Is it food, is it raw or is it faeces?
A: Faeces.

Q: How often does the sigmoid open up and it goes to the rectum? In a day. If you have faeces in the sigmoid?
A: …

Q: How large is the sigmoid?
A: Sigmoid is about 15 cm.

Q: The size of the rectum?
A: Yes.

Q: And it will contain faeces, right?
A: Yes.

Q: Is there a term of mass movement? Are aware of mass movement?
A: Yes.

Q: What is a mass movement?
A: It is physiological process that happen when the faeces comes down and at one point it goes to the sigmoid and will give the sensation of defecating and dissension.

Q: I think you are not accurate. Mass movement is where the sigmoid is full and when there is this mass movement the faeces will be pushed to the rectum.
A: It does not necessarily moves straight away. It depends on the dissension of the sigmoid and depends on the collection of the faeces.

Q: Precisely that is what mass movement is all about. When it is full, naturally there will be mass movement. It has to be isn’t? Otherwise it will not move.
A: Like I said just now, if socially you have an inconvenient place, you have physiology indefecant. Basically you can prevent it from moving further.

Q: From the sigmoid or from the rectum? Is it a movement from the rectum?
A: It is mainly the movement from the sigmoid to the rectum.

Q: So the rectum will be fill up?
A: Basically the upper part of the rectum and the lower rectum will be empty. The sigmoid may push it to the upper part of the rectum. It will not go to the lower part of the rectum.

Q: In other words you say it can be controlled. So it is rectal laxity, rectal sigmoid expansion.
A: Yes.

Q: In a day, in normal person where there is no complication, how many times does the faeces get discharge from the sigmoid by way of mass movement to the rectum, in 24 hours?
A: The mass movement does not only happen in the sigmoid, but in the entire colon.

Q: Whether it is in the entire colon or the sigmoid, how often a day?
A: Because it is so physiological. You cannot really say how many times it can happen in a day.

SN: I refer you to an article, Journal of Forensic and Legal Medicine, second last page, middle para, mark in green.

Q: [read text] Do you agree that it will happen like this a few times daily?
A: Yes. It happen. Physiologically I agree.

Q: So you agree daily there is a movement into the rectum?
A: No. You have to finish the final sentence of the paragraph (Finally, retrograde movements may occur, particularly in the transverse-ascending segment and are thought to retard distal progression of the fecal bolus.)

Q: I’m not interested in the retrograde movements. Because you did not take the history of the man. Are you aware that the victim, SP1 complain that the incident happened on 26.08.2008. About what time, can you remember?
A: It happened around 3.15 pm.

Q: When did you examined him?
A: We started around 9.00 p.m. on the 28th June 2008.

Q: You started the second segment, isn’t it? Dr. Khairul started the first segment, correct?
A: Yes.

Q: You enter into the anal region at about what time? Around 10 o’clock maybe?
A: Around 10.30 p.m.

Q: Can you tell the lapsed of time between the so called incident and the time when you examined him?
A: Yes. About 2 days.

Q: About 54 hours according to my calculation. So what do you think?
A: Yes.

Q: You are saying that in 54 hours, the sigmoid colon, transverse, descending did not happened? Which has filled up the rectum.
A: I disagree.

SN: Come on, doctor. That’s not the answer.
MY: He has answered the question. He did not agree.

A: I agree if there is a mass movement, it will happen. But if there is inhibition, it will not.

SN: This is the problem. You did not take the history of his bowel movement. So how can you make a second statement of that. Yes or no? There will be mass movement many a times, so you agree?
A: Mass movement will happen on normal person on daily basis.

Q: On daily basis and you find empty rectum even you examine him 54 hours later? SP1?
A: Yes. That’s what I found.

SN: That’s amazing.

Q: Is there such thing as peristaltic movement?
A: Yes.

Q: Where does this peristaltic movement stops?
A: Mostly at the sigmoid.

Q: There is always pressure down there, right?
A: Right.

Q: Do you agree that gas can also be formed in the stomach and in the intestine. And it also push downwards, correct?
A: Yes.

Q: Does gravity plays any part in anything that is coming down?
A: Agree.

Q: I want to suggest to you about the high rectal swab. After 54 hours, you either will not get anything from there or very little quantity?
A: High rectal means which one?

Q: B7,8 and 9 are high rectal swab.
A: It is based on the proctoscope, not based on the highest part of the rectum. The area was the low rectal part but the highest part from the proctoscope. It is not the highest part of the rectum.

Q: So it is the low rectum, but the highest the proctoscope you can go.
A: Yes.

Q: It’s 8 cm, is that what you said?
A: It’s 8cm from the anal opening.

Q: Now you are saying the highest part is from the proctoscope.
A: Yes.

Q: That is what you call high rectal.
A: I must make it clear. The rectum is about 15cm. The area that I manage to enter is only the low rectal, 5cm. Because the anal canal is about 4-5 cm from the anal opening. That is called the anal canal. It is not rectum. So another 3 cm is mainly at the area of the low rectal.

Q: So it is about 3 cm, right?
A: 3-5 cm.

SN: Unless the victim’s exceptionally long.
A: It varies individually, but mainly it is 3-4 cm.

Q: If peristalsis, gas and gravity, combination of this 3 acting all the same time, simultaneously together with the mass movement, naturally you can expect to find more or something at the lower rectum and not the higher rectum.
A: The happening at the low rectal will only happen when you really wanted to defecate. The faeces will form at the sigmoid and upper rectum but if you still can inhibits, it will not go down.

Q: I’m talking about the level of the samples you have taken, i.e the one you take at high rectum based on the proctoscope you used. So another 2 cm you said.So therefore you couldn’t get anything there because of the three action happening there,
A: It is not 8-9 cm. I think you get it wrong.

Q: But you enter that deep.
A: It is only to the 5cm of the rectum plus 3-5 cm. And the entrance is only at the lower and mid rectum.

Q: Now you are saying something else. Are you now saying that after 54 hours you found samples 8-9 cm of the rectum? In your evidence you said you insert the proctoscope which is 6.5 cm. And you said you went another 2- 2.5 cm. So you got 9 cm there, right? You are quite more than half into the rectum already. So, I’m saying that you cannot get anything because of all this action because whatever it is would have come down at the lower rectum region. Do you agree or not?
A: I can’t agree with you because your measurement is not right there.

Q: You said something. That’s in your evidence here.
A: It is not.

Q: You are changing your mind. You are changing your story.
A: I didn’t change. Your measurement is wrong. I said my proctoscopy is about 6.5 cm. And I go about 2 cm. If you measure from the anal opening until about 9 cm …

Q: 8 cm is for sure and you consider it the high rectal swab. So 8 cm is more than half of the rectal here.
A: It won’t go half of the rectum. After going 4 cm further I was only at the low rectal area.

Q: When you push through at the canal area, you can go further in. There is no problem there. I’ve spoken to medical expert too. Now why are you getting worried of 8 or 9 cm there?
A: I’m not worried. I explained that I took the swab from the low rectum. I did not go there.

Q: You’ve got low rectal, high rectal and now mid rectal, isn’t it?
A: Anatomically, there are 3 parts of the rectum, low, middle and high rectum. I took the sample from the lower rectum.

Q: I’m talking about your swabs. I did not ask about the specific position of the rectum.
A: Whatever I took is mainly at the lower rexctum.

Q: Now you are saying at the lower rectum.
A: If you take 6.5cm, the proctoscope, you minus 3-4cm, it is still at the low rectum.

Q: So are suggesting that you found specimens at 7 cm?
A: I said I took the swab. 7cm of what?

Q: 7cm of the rectum?
A: No. Not 7cm, but 5cm because normally the low rectum is about 5cm. Around that area.

Q: So your high rectal swab is how many cm now?
A: 6+3, about 9 cm from anal opening.

Q: I put it to you that even 6 is high and there won’t be any specimens that you can find there?
A: Not necessary.

Q: So are you suggesting that after so called sodomy[] they remain there?
A: No. Our bowel is not a straight line, but it is folded area. It is a folded mucosa. Not necessarily all will come out immediately.[].

Q: But this is after 54 hours. There is pressure, gravity and peristaltic action. You can only find it at the low rectal area, isn’t it?
A: I disagree.

Q: The other day you said about rectal flora and e coli. Is there any thing called bacteroides fragilis found at the anus?
A: Bacteroilis will definitely be there. But you mentioned fragilis. Because there are so many subroot.

Q: What about e coli? You would agree that there will be bacterial action that can cause degradation on seminal stain by this bacteria?
A: Yes.

Q: Do you agree that so long there is warmth, there is bacteria, when there is moistness, there can be a lot of bacterial activity acting on the organic area of the rectum?
A: Yes.

Q: When the swabs were taken out and given to Dr. Siew, were all these taken and put on the table or taken for refrigeration immediately?
A: I took the swab and put into the container given by Dr. Siew and hand it over to him.

Q: How long does it take from taking the swab until it is completed?
A: For each swab it is about 3-4mins.

Q: There are 13 specimens taken. Were all the swabs put in air tight containers?
A: I don’t remember because it was handled by Dr. Siew.

SN: That’s all for my cross-examination.

Re-examination by MY.

Q: Do you agree with what all the literature said?
A: Yes.

Q: As far as you are concerned, when you did the examination on the rectum, the lower part of the rectum, on 28th June 2008, between 9.00 p.m.- 12.00 a.m., how did you find the rectum.
A: I’m sure it was empty.

Q: You were told about mass movement that happened daily. Have you come across patients who did not pass motion for few days? The patient comes to see you and informed they did not pass motion for few days, have you come across with that?
A: Yes.

Q: How was the rectum?
A: Usually I asked whether they want to defecate or not. If they say no, usually I find it empty.

Q: Is it unusual to find the rectum empty?
A: It is not unusual.

Q: From the opening of the anal to the part you conducted the swab, high rectal you said, how many cm?
A: The proctoscope is about 6.5 cm, I took 2.5 cm. After minus the anal opening 3- 5cm, so it is about 4 cm.

Q: 4cm into the rectum. And the rectum is how long?
A: Average is 12 to 15 cm.

Q: So you went only into 4 cm?
A: Yes.

Q: P22 talks about two swabs of the high rectal. The answer to SN is also 2 high rectal swab and that was also in the order stated in P22. And as you came out you took low rectal and peri anal region. But my notes shows that you said during examination-in-chief there is one high rectal, and one low rectal.. Can you clarify how many for high rectal swab?
A: I took 2 high rectal swab.

Q: KS ask you how many sodomy cases referred to you and you said about 2-3 cases. In all this 3 cases does it involves the examination of the rectum?
A: Yes.

Q: As far as the anus examination which you said you have conducted, in those cases, does it involves the examination of the []
A: Yes.

Q: Do you take specimens from the rectum?
A: Depends on the case.

Q: In all cases of sodomy where it involves examination of the anal and samples collection, is there any difference in the procedures of the sample taking?
A: No.

Q: Coming to the history. I refer to P22. Is it complete?
A: Yes.

Q: As far as the complainant in this case who has given the history to Dr. Khairul and Dr. Siew, is this all you think sufficient to be highlighted?
A: Yes.

Q: That a Malay gentleman alleged sodomized by a well known public figure.
A: That’s the most relevant things to be highlighted.

Q: Were you informed of the name of the prepatrator?
A: I was informed it was a prominent public figure.

Q: Were the name mentioned?
A: Not to me, but not sure to the other 2 doctors.

Q: Are you sure?
A: Yes.

Q: But as far as the three of you are concerned this would sufficient to constitute the history?
A: Yes.

Q: Was it your concern for the act of the actor to be known for your purpose?
A: Not important.

Q: You were told lubricant was used in the act. And you were told Saiful was examined by a private doctor. And in the examination involving the anus, lubricant will be used?
A: Yes.

Q: And you use it?
A: Yes.

Q: You were asked by the defence woudn’t it be important to send the lubricant for test and you said it was not important. Why?
A: Because if he said he use lubricant I don’t see the benefit of checking the lubricant.

Q: Was this the reason you said it was not important?
A: Yes.

Q: About the position. You said it is lateral position. Why lateral position?
A: Because it is a practice , it is a standard used as that position would give that area a good exposure for us to examine the area and it is also a comfortable position to the patient.

Q: Would you know other position other than lateral position for the examination?
A: There is a position where you can examine the patient where the patient will be on his knee and his hands on the ground, but it is not comfortable and convenient to the patient. You can do the examination quite easily but not comfortable for the patient.

Q: Whether between lateral position and the other one you mentioned just now, what is the main objective?
A: To have a good exposure for the examination and to not to make the patient uncormfortable.

Q: Are you aware of any international guidelines that say lateral position is not suitable or an ideal position?
A: No. I’m not aware of any guidelines. So far nobody has mentioned about any guideline.

Q: You disagree with my learned friend suggestion that the lateral position would contract contamination. What is the procedure to reduce contamination?
A: As long as you mention the sterility, that all equipment are all sterilise, you would be able to reduce contamination.

Q: When you said in the history the word alleged history, what does the doctor actually meant?
A: An act where the anus is inserted into the anal.

Q: If plastic is inserted into the anus, could it be sodomy?
A: No.

Q: If plastic were to be inserted instead penil penetration, would it be a sodomy case?
A: No.

Q: I refer to IDD16. Can you see the diagnosis of the doctor there?
A: Alleged being sodomized.

Q: As far as you are concerned does that involves a case of anal penetration?
A: Yes.

Q: Look at it again. What is stated there?
A: Assault sodomy.

Q: Can you explained to the court what does it mean?
A: Assault means you are being attacked by a person. In bracket sodomized.

MY: There is one question that we forgot to ask during the chief. May we be allowed to ask this question subject to cross?
YA: KS do you have anything to say?
MY: [read S.138 of Evidence Act 1950].
YA: What is your question?
MY: When one person ejaculated in the anus, how long will the fluid remain there?
YA: I will allow the question subject to cross.

Q: When one penetrated into the anus, how long will the seminal fluid remain in the anus? Or the rectal area generally.
A: The duration depends on the anal rectal function, i.e the process of not wanting it to come out. At one point there will be an intermission where at one point of time you cannot control it anymore and fluid will start to come out. But how fast and how early there is no specific duration. But in most literature, you take sample in sodomy case, you can afford to get it within 72 hours. Because the mucosa in our anal canal and rectum is not a straight one where the material would stay there. And that can come out immediately.

Q: When you put the swab sticks to get specimens, is it your concern that you must find nothing there?
A: The process where you take swabs, you cannot see anything. You still have to swab and send it to lab to clarify it .

Q: Was it your concerned that you must find semen there?
A: No.

MY: That’s all.

Cross-exam by SN

Q: You mentioned the fluid will still be there after 72 hours.
A: Yes.

Q: Are you a forensically trained man?
A: I said it is from my reading.

Q: What is your authority?
A: I don’t have any.

Q: So it’s based on your view?
A: Based on my reading.

MY: I apply to the court for the witness to be released.
KS: Subject to recall.
YA: Short break until 2.30 p.m.
[1.25 p.m] Stand down

[2.34 p.m.]
MY: Kes untuk pemeriksaan balas SP3.

SP3 mengangkat sumpah di dalam Bahasa Inggeris.

Q: Dr. Siew, you said you have experience in dealing with cases like this.
A: Yes.

Q: Do you consider you are an expert?
A: It’s for the court to consider. I’m a witness.

Q: So you come here as an expert to give evidence in court.
A: It’s up to the court.
Q: We go back to 28th of June. There was a report subsequently.
A: Yes.

Q: And that report reflected that there was conclusion that there was no conclusive proof of penetration?
A: Yes.

Q: Together with the other 2 doctor?
A: Yes.

Q: Subsequently you said there was evidence of penetration.
A: Yes.

Q: In the light of what?
A: In the light of the chemist report.

Q: When did you get the chemist report?
A: I get from the police officer on 11th July.

Q: As a result of that was there any report put up?
A: The chemist report was together with the DNA and toxicology report.

Q: So it was 11th of July it was read?
A: Received on the 11th July, but I read on 12th July.

Q: So on 13th July you have that report?
A: Yes.

Q: Based on the report you made the findings in P22?
A: The first conclusion was made based on the clinical findings and second was based on the chemistry findings.

Q: You have the report on the 13th?
A: Yes.

Q: So there’s everything on 13th for the report to be conclusive.
A: The report has some problem where we don’t know where we swab the specimens.

Q: On the 13th, you had the report with you and you put up this report?
A: Yes.

Q: No conclusive clinical findings of penetration.
A: On the 29th June we made the report but we couldn’t finalise it because of the chemist report.

Q: Is it not strange you had everything with you on 13th and that was your findings?
A: Clinically yes.

Q: But you had the chemist report with you.
A: But I do not know the location. There is no location in the chemist report.

Q: But you cannot be positive despite the chemist report? You read it.
A: Yes I read it on the 12th.

Q: But based on that you still cannot make a positive conclusion?
A: This report was prepared earlier on 29th June, but we finalised it when we received the chemist report on 13th july.

Q: So, P22 is the report based on the chemist report?
A: Yes.

Q: So the chemist report is the basis of P22?
A: It was one of the basis.

Q: That is very significant, isn’t it?
A: It is quite significant.

Q: We come back on the 26th June. What happened?
A: Nothing happened to me.

Q: Nothing happened to you. On the 28th?
A: Yes.

Q: On 28th June, were you the leader of the team?
A: I’m just one of the doctors.

Q: Who was the leader?
A: Three of us together as a team.

Q: On 28th June were there any other person other than three of you present?
A: DSP Jude.

Q: Why was his presence required?
A: He was the one who ask us to conduct the examination.

Q: He asked you to conduct the examination?
A: Yes.

Q: And throughout the examination he was present?
A: Yes.

Q: Is it normal for police officer to be present?
A: They have to be there.

Q: Police officer are always present during examination?
A: Yes.

Q: Do you take the history of the patient?
A: Yes.

Q: Detailed history?
A: Yes.

Q: Do you have with you?
A: I can produce it through my humble memory.

Q: You take detailed notes?
A: I don’t know what is meant by detailed, but I consider it detailed.

Q: Are you prepare to produce it?
YA: Under what provision are you asking it to be produce?
MY: KS should not be repeating the same thing.
KS: But if he agrees to produce. []
YA: I’ve already made my ruling so it is settled.
KS: The law is very clear. [] The court must direct the witness to produce it.

Q: You are willing to produce it?
A: If I’m directed.

Q: What was the history?
A: A patient alleged he was sodomized by a high profile public figure for the past few months. The patient was working as a private assistant to the high profile public figure. According to him it started at early Mac 2008 at S.16 PJ.
Q: I’m asking for the medical history.
A: This is part of the history. He is being sodomised.

YA: What do you actually want?

Q: I’m asking the medical history. Not the complaint made to you.
A: I don’t know what is the medical history [] I’m a doctor.

Q: Did you ask him his medical history?
A: The patient said that he is being sodomized …

MY: My Lord, we have seen a lot of medical report and when it comes to history it involves the complaint of the patient. So if KS is asking for medical history, perhaps he can be more specific.
YA: Yes. Usually medical report the history involves the complaints of the patient.
KS: What about his illness from the past?.
YA: Ask specifically.

Q: Did you ask the patient?
A: I was telling you just now what I ask.

KS: The problem with you is that you have been programmed to come here, that’s why you []
MY: That is not a fair comment.

Q: I refer to what was recorded by the doctor. ID16 – Pusrawi report. Report by Dr. Osman. Page 1. Pain. That is also part of medical history, is it not?
A: Yes.

Q: “Insertion of plastic”. That would be the medical history, isn’t it?
A: Yes. But the patient complained of being sodomized.

Q: Did you not ask him what he told the doctor earlier?
A: We take what he was asked by us.

Q: You did not ask in line with what the doctor did earlier.
A: We ask along the line of he being sodomised.

Q: Don’t you think it is necessary of fit to ask along the line what the earlier doctor did?
A: We do ask after we checked the complainant.

Q: What was it did you ask along the line which the earlier doctor did?
A: I don’t understand.

Q: You said you ask.
A: To me I ask about the sodomy episode.

Q: So you did not ask in line with the doctor.
A: I did not ask in line with it.
Q: Would you not when in a case like this ask whether the patient has pain in anus, and passing stool?
A: We did.

Q: Did you asked whether he went to a doctor previously?
A: Yes.

Q: Did you ask who is the doctor?
A: The patient only say being examined in a private hospital, but he did not named the doctor.

Q: Refer IDD 16, Do you agree whether what the doctor here did would be what a doctor should ask a patient alleging sodomized?
A: This is not a report, the doctor’s handwriting.

Q: But something is usually done.
A: Yes.

Q: Would it be right what he told you would be what he told the doctor? You knew that he went to other doctor earlier and it would be normal to ask him.. []
A: Yes. We ask what happened.

Q: Did you ask what happened initially?
A: The patient told us he went to a private hospital for examination, complaint of pain in anus. The doctor then realised the patient is being sodomised, and refer to us for examination.
Q: Rrefer to ID16. Where he “alleged introduction of plastic into the anus”.
A: We were told some instrument were inserted but not plastic.

Q: This report is very clear. “Patient assaulted by insertion of plastic into the anus”. If it stated otherwise, it would be inconsistent. Would you agree?
A: I do not have the report until now.
YA: He is not the one who made the report.

Q: If the same patient says something different from here, then there is a different?
A: Yes. Now I know that since I only get the report now.

Q: The report was done by 3 of you based on the notes and data collected by the 3 of you?
A: It is based on history, clinical finding and chemist report.

Q: You said just now notes were taken.
A: Yes.

Q: What purpose would that be for?
A: It is for the documentation of the location and specimens and the findings.

Q: Is there any reason why you don’t want to produce all these?
A: I’ve testifiied orally.

Q: You can remember everything?
A: Hopefully.

Q: Is it not important to produce it in court?
A: I prefer to give oral evidence, oral statement.

Q: You said hopefully.
A: Hopefully I can give oral statement.

Q: What you have recorded, can it be produce in court?
A: I can rely on what was stated on the report.

Q: In P22?
A: Yes. And the chemist report.

Q: And so P22 is conclusive?
A: No. We do not know the location of the swab taken when we made the report.

Q: But you knew the location then.
A: But there was no location in the chemist report.

Q: So you did not based your findings based on the chemist report?
A: We were not able to identify where the swabs were taken.

YA: Look at the chemist report. Give the chemist report to the witness, I did not want you to mislead the witness. Perhaps we can stand down for awhile.
KS: Why did your Lordship said I was misleading the witness [altercations] don’t need to adjourn.

Q: Look at ID25, [read]. Dr. Seah is a very expereince chemist?
A: I just know she is a chemist of the Chemistry Department.

Q: You said this is not details enough?
A: I just said there was no location of the swabs taken in the chemist report.

Q: So this report is not sufficient for you to put up your report?
A: During that time I did not know the location.

Q: When did you know the location?
A: I know the location when I testified in the court.

Q: Are you not responsible of the samples taken?
A: The samples was taken by Dr. Razali and Dr. Khairul.

Q: Are you not responsible for it?
A: I was.

Q: And then the samples are given to the police officer?
A: Yes.

Q: What was the marking done by you?
A: I named the location and the samples.

Q: Samples taken, did you mark them?
A: Yes.

Q: So the marking in the chemist report is your marking?
A: No. I mark the location but not B1-B10. This are not my marking.

Q: Were your marking tallies with your report?
A: Later on during examination-in-chief, yes.

KS: My learned friend will continue.

SN continue with the cross-examination.

Q: You are under oath?
A: Yes.

Q: Talking about the marking, you didn’t know the location of the samples.
A: Yes.

Q: You testify the DSP was presence during the examination and he had access of it.
A: Yes.

Q: I take it you have access all the time.
A: Yes.

Q: When you received ID25 on the 12th, there is a misjoint.
A: Yes.

Q: Would it not be easy for you to ask DSP Jude for the chemist report and the location and you can finalised your report?
A: Yes.

Q: I take it you did not do it?
A: Yes.

Q: Dr. Siew, what specific training do you have in sexual assault cases?
A: I’m trained as ordinary doctor holding the basic degrees. I’m also trained as a forensic phatalogist.

Q: What about specific training in sexual assault cases?
A: Not during the examination, but after that in 2009 until early this year I attended a training in Greece. But it is not a training in sexual assault cases. Part of it.

Q: Very generally in that sense?
A: Yes.

Q: How long is your training?
A: The whole 2009. And early this year.

Q: So you are a trained forensic pathologist?
A: Yes.

Q: What are the exams did you take?
A: []

Q: What text did you use?
A: Basically on the forensic pathology, some of the British textbook.

Q: Is it an internationally qualification? Forensic Phatology?
A: Locally, yes.

Q: Is it recognised internationally apart from Malaysia?
A: I’m not aware.

Q: What sort of journal did you refer to?
A: A lot.

Q: You said you read a paper on sexual assault cases. What was the last paper you read?
A: I can’t remember at the moment.

Q: What text did you used?
A: I can’t remember.

Q: What conferences you have attended the last 3 years.
A: International Academy…in Lisbon, in Greece…

Q: What are the papers you read on sexual assault?
A: A lot and one of it is from Australia, by Prof. David Wells.

Q: Is he in court?
A: Yes.

Q: What paper has you published in sexual assault area?
A: So far I’ve not publish any paper.

Q: How many cases of sexual assault have you done in the last 13 years?
A: About 50.

Q: In a year?
A: Depends.

Q: Would you accept that the cases are comparatively low compared to the international standard?
A: I was a Forensic Phatologist at that time so my main concern is in that area alone.

Q: So you are not much of an expert when you did the report, P22.
A: It’s up to the court to decide.

Q: In examination-in-chief you said you are a member of MMC. What would be the qualifications to be a member of MMC?
A: We just need to have a basic doctor degree.

Q: It is not a very prestigious organisation, isn’t it?
A: I cannot comment. I’m an ordinary member.

Q: You request for the photography of SP1. Why?
A: For documentation to show injury or no injury.

Q: What are the photographs taken?
A: Body and anal examination.

Q: Is private part photos taken?
A: The anus and some part of the rectum.

Q: Clear picture?
A: I can’t remember.

Q: You can’t remember some?
A: I can remember most.

Q: Are the photographs part of the medical report?
A: Part of the documentation.

Q: Is it part of the report?
A: I don’t agree.

Q: What is the purpose of the photography then?
A: Evidence in court.

Q: Would you able to produce it?
A: I don’t have the photographs. It’s with the police officer.

Q: For what it is with them?
A: For documentation.

Q: But you instructed them to take the photos.
A: They have the camera.

Q: Is it should be part of corroboration for the report?
A: Yes.

Q: So, it is not with you?
A: Is it not with me.

Q: Then with whom?
A: DSP Jude brought a photographer with him.

Q: Would you be able to produce it if asked?
A: It’s with the police officer. The photographer is brought by DSP Jude.

Q: Would not the photos be the basis of your report?
A: I do not have the photos.

Q: I refer P22. Can you show where in the report you made reference of the photographs?
A: Nothing in the report.

Q: Were it in your notes? Any notation in your notes?
A: No.

Q: But you did made notes?
A: Yes.

Q: Colletion of samples. What training do you have in collection of samples?
A: I have a Bachelor in Medicine and Master Degree.

Q: So by those qualification you are trained and can handle sample collection? So you said any doctor with just an MBBS would be able to handle specimens collection.
A: Yes. I’ve a Master Degree and specialise in Forensic.

Q: Can you more specifically tell the court on how you label the specimens?
A: I labelled the stickers.

Q: You pre-labelled the stickers? How did you do that since you did not know the location of the specimens taken.
A: I label the particular and I said “now we are collecting the low rectal swab” and they will swab and passed it to me.

Q: Were the equipment sterile?
A: Yes. The bottle came sterelize.

Q: They came in a seal?
A: Yes.

Q: Were you able to show how it is sterile?
A: Yes. But not now.

Q: When you sealed them what sort of seal did you use?
A: A specialised plastic tape.

Q: The plastic is also sterilise?
A: Not very.

Q: You have a bottle about 2 inch height. Then how did you get a 5 cm swab into the bottle?
A: We break it without touching the stick.

Q: How did you break it without touching the stick?
A: [witness demonstrated]

Q: Was it air tight?
A: When I sealed it it is air tight. I sealed it with a special plastic tape around the cover. So basically it is untouched.

Q: So it is untouched and air tight?
A: Untouched. But not sure how air tight.

Q: How many samples did you take?
A: 10 samples and 1 FTA card for DNA profiling. So there are actually 12 samples.

Q: How many times have you done the sampling taking and collection of samples?
A: About 200 times.

Q: Did in all the 200 times you sign the bottle?
A: Not all the time.

Q: Why not?
A: Most of the patient are dead person.

Q: You are more on pathology, isn’t it? You deal with dead person more than alive person. How many dead and how many alive?
A: Approximately 1000 dead and 200-300 alive.

Q: Why do you discriminate? There should be a protocol isn’t it? Why did you discriminate here?
A: Only some of the living I signed not all.

Q: I put it to you that there is only one case you signed which is DSAI’s case. why?
A: Disagree. Only in exceptional cases.

Q: What is the basis of the exceptional?
A: I have the stickers in my department and it can be used by others. When I signed, only have stickers with my signature and also Mr. Saiful so that nobody can open it.

Q: Why in this case?
A: So that nobody can temper it.

Q: Would it be correct that according to international standard all samples must be signed? But why you, in your case discriminate?
A: I want to make sure the samples are intact and nobody can temper with it.

SN: Can we start at 8.30 a.m. tomorrow?
YA: It’s not even 4 yet. You have the questions now?
SN: I need to discuss with the expert.
MY: I believe SN should proceed with those he prepared until 4. Because I’m told Dr. Siew is needed in Terengganu High Court on Thursday.

Q: You have been handling samples, in pathology and in sexual assault cases. Every time there is a sexual complaint, there would be 3 doctors at the OSCC?
A: It is a hospital protocol in sodomy cases, a surgeon, a forensic and ….

Q: Can you produce the protocol? The written protocol.
A: I don’t have it, but I know we have it. There is a protocol.

Q: Is there a written protocol?
A: No. We have a consensus understanding in sodomy cases there must be 3 doctors. Except in rape cases because the gynae must be present.

Q: Would you be able to verify that HKL meets the international standard?
A: Yes.

Q: Surely there is a protocol.
A: We have a meeting on this matter.

Q: Do you or don’t you have one?
A: we have a standard operating procedure. But I can’t produce it because it is not my authority.

Q: But you ask for it.
YA: Show him whatever you have, the examples.
SN: [shows].

Q: Have you seen a protocol like this?
A: This are forms.

Q: Protocol, form, whatever. Do you have that?
A: We have this.

Q: Have you seen this?
A: Yes.

Q: Will you able to produce it tomorrow?
A: Yes.

SN: Could we stop to tomorrow morning? I need to consult my expert.
YA: Start early. KS? So datang esok 8.30 a.m.

[15.55 p.m.] Adjourned.


Air mani boleh kekal 72 jam di rektum, kata pakar bedah
Oleh Shazwan Mustafa Kamal
November 22, 2010

KUALA LUMPUR, 22 Nov – Pakar bedah Hospital Kuala Lumpur (HKL) yang melakukan pemeriksaan ke atas saksi utama dan pengadu Mohd Saiful Bukhari, hari ini memberitahu makamah, air mani boleh kekal dalam rektum sehingga 72 jam selepas diliwat.

“Bila seseorang memanctukan air mani ke dalam dubur, berapa lama air mani itu akan kekal dalam dubur sebelum ia menitis keluar?” soal Peguam Cara Kanan II Datuk Mohd Yusof Zainal Abiden pada perbicaraan kes liwat Datuk Seri Anwar Ibrahim hari ini.

“Kira-kira 72 jam,” jawab pakar bedah am HKL Dr Mohd Razali Ibrahim.

Saiful mendakwa telah diliwat Anwar pada 26 Jun 2008. dan telah ke HKL pada 28 Jun kurang daripada 72 jam selepas mendakwa dia diliwat.

Dr Razali memberitahu mahkamah dia memeriksa dubur Saiful 54 jam selepas perbuatan itu didakwa terjadi.

Bagaimanapun doktor itu berkata, hasil pemeriksaan mendapati dubur Saiful kosong walaupun pengadu itu sebelum ini mengadu tidak membuang air besar sejak diliwat.

Dr Razali berkata kemungkinan air mani akan kekal berada dalam dubur bergantung kepada fungsi dubur seseorang atau apabila satu “pergerakan semasa” berlaku.

“Dalam sesetengah kes, anda masih boleh mendapat contoh dalam 72 jam sebagai saluran dubur tidak lurus,” kata doktor itu.

Pakar bedah itu juga berkata, ada kemungkinan seseorang masih boleh mendapatkan semula contoh air mani dalam dubur seperti beberapa sampel boleh kekal “tersangkut” di sana.

Ia bagaimanapun dinafikan pasukan pembela Anwar ketika Sankari Nair menyoal Dr Razali sama ada dia mempunyai kuasa untuk membuat kenyataan sebegitu.

Doktor itu kemudian bersetuju dengan Sankara dengan mengatakan ia berdasarkan daripada hasil “bacaan” tetapi dia tidak dapat mengingati dokumen mana yang membolehkannya membuat kesimpulan.

“Apabila saya melakukan pemeriksaan, saya tidak tahu apa yang hendak dijangkakan atau sama ada saya akan dapat mencari contoh,” kata Dr Razali.

Beliau juga kekal dengan kenyataan bahawa dubur Saiful tidak mempunyai najis, dengan menafikan dakwaan pembelaan bahawa rongga dubur Saiful tidak mungkin boleh kosong walaupun tidak membuang air besar selama dua hari.

“Ia tidak perlu ada najis dalam kawasan rongga dubur... saya bersetuju, pada masa itu ketika saya menjalankan pemeriksaan ke atas Saiful, tidak ada najis,” katanya.

Perbicaraan kemudian diteruskan dengan soal balas ke atas pakar forensik HKL Dr Siew Sheue Feng.

Dr Siew memberitahu mahkamah bahawa tidak ada tanda-tanda kecederaan di kawasan dubur Saiful semasa menjalankan pemeriksaan.

Kekeliruan berlaku apabila Dr Siew diminta untuk menerangkan sejarah perubatan Saiful, di mana Dr Siew tetap mengulangi fakta satu pemeriksaan perubatan telah dibuat terhadap Saiful selepas dia “mengadu” diliwat oleh seorang tokoh yang berprofil tinggi.

Sankara dan Karpal Singh bertukar tugas menyoal Dr Siew yang tidak mampu memberikan jawapan yang jelas.

Kegagalan Dr Siew menjawab soalan yang diutarakan kepadanya menyebabkan Karpal menuduh doktor itu telah “diprogramkan” menjawab soalan-soalan dengan jawapan yang sudah ada.

Perbicaraan akan bersambung esok pagi di mana soal jawab terhadap Dr Siew akan diteruskan.

Anwar, 62, merupakan Ketua Umum PKR, berhadapan dengan kes liwat kali kedua.

Bekas timbalan perdana menteri itu dituduh meliwat Saiful di Unit 11-5-1, Kondominium Desa Damansara, No. 99 Jalan Setiakasih, Bukit Damansara di sini, antara pukul 3.01 petang dan 4.30 petang, 26 Jun 2008.

Anwar bagaimanapun menafikan tuduhan tersebut dengan menyifatkan ia sebagai “jahat, penipuan-penipuan remeh oleh mereka yang berkuasa” apabila tuduhan membacakan kepadanya.

Pagi tadi, mahkamah menafikan Anwar untuk akses pada nota klinikal yang diambil oleh tiga pakar HKL ketika membuat pemeriksaan terhadap pengadu Saiful.

Hakim Datuk Mohamad Zabidin Mohd Diah menolak permohonan Anwar untuk satu perintah bagi memaksa pihak pendakwaan membekalkan nota klinikal yang diambil oleh tiga pakar HKL itu semasa memeriksa Saiful selama tiga jam di hospital tersebut pada malam 28 Jun 2008.

Pihak pembelaan memohon untuk nota itu selepas pakar bedah am Dr Razali merujuk kepada mereka semasa testimoni beliau, di mana pihak pembelaan memikirkan bahawa nota itu jika dikeluarkan berkemungkinan bercanggah dengan keterangan lisan Dr Razali.

Dr Razali adalah saksi pendakwaan kedua pada perbicaraan Anwar.