Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak:
PP: Semua hadir
PB: KS, SN, Datuk Param Cumaraswamy, Marissa
WB: Zambri Idrus (for complainant)
AI hadir.
[9.11 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.28 a.m.] Pihak-pihak keluar dari Kamar Hakim.
[9.47 a.m.]
MY: Kes untuk pendakwaan memanggil semula SP15, bekas Supt. Amidon dan SP6, Puan Aidora untuk tujuan mengemukakan eksibit-eksibit secara rasmi, YA.
YA: Ya, teruskan.
KS: Before my learned friend proceed with the witnesses, we have in fact filed a Notis Usul this morning asking for your Lordship to review the ruling that was made yesterday.
YA: Yesterday’s ruling?
KS: Yes. The grounds are set out in the affidavit and in fact I’m told that the file is in your Lordship’s room, probably by now. It is only filed today, but not already there.
YA: Never mind, since you have filed it. But we can proceed with this one. Later on we can deal with whatever application you make.
KS: Our application is very fundamental that these items ought not to go in. If these witnesses are called, the items go in and marked as exhibit.
YA: Okay, marked as exhibit….
KS: You can’t do that unless…
YA: But then later on if I hear you and if I decide in your favour it will be expunged also.
KS: That is not the point. The moment it is marked as exhibit it become public document.
YA: It can be expunged.
KS: That can even be published in the press. You should avoid that.
YA: That is nothing to do with…Sorry, Mr. Karpal. We have to proceed with this. We will deal with your application later.
KS: Sorry is not the right word to use. I think it goes beyond sorry. It’s very important that this application be heard first. Prerequisite, my Lord. Your Lordship should not do something which is inconsistent with your reason. Because if this document go in as exhibit as I kept saying just now, it become public document.
YA: So what?
KS: The prejudice will be there is confusion. Surely your Lordship can see that. Male Y. Tomorrow the papers will say male Y is the accused. Can we allow that? And later your Lordship decides otherwise and said this documents are inadmissible. Harm done. Could we see your Lordship in chambers? I will explain to your Lordship . Let’s not be hasty, my Lord. Hasty judge can be a dangerous judge. Can we see your Lordship in chambers now? It’s very pertinent. Important. Must be done, ought to be done, should be done. Can we see your Lordship in chambers for a while? Just for 5 minutes.
YA: I can’t see you alone.
KS: Of course, with my learned friend.
MY: YA, I’m puzzled. Because with regard to the document become public, evidence has been adduced to that effect and reported in papers. What is not before the court is only the marking “P”. That’s all. With regard to the evidence, they are already in public domain.
KS: No. [].
MY: Public domain, yes. Aidora has given evidence that she compared the…I mean, it was already there. Otherwise…
KS: Could we see your Lordship in chambers? I think it requires more []. My learned friend should be fair.
MY: I have been very fair.
KS: Can we see your Lordship in chambers, my Lord? Just for a while. It is very important. Must be done.
YA: May I see both parties in chambers now?
[9.51 a.m.] Stand down.
[9.52 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[10.03 a.m.] Pihak-pihak keluar dari Kamar Hakim.
[10.08 a.m.]
Permohonan 44-65-2011: Application to review the ruling made on 23rd March 2011.
KS: This is an application for your Lordship to review the ruling made yesterday with regard to the review made on the ruling on 8th March 2011.
I come first to the ruling made on 8th March 2011. I appreciate what the ruling was where the evidence relating to the toothbrush, “Good Morning” towel and the mineral bottle and all the evidence relating to it to be excluded from the trial on the ground that the evidence were obtained by unfair methods and unfair means.
YA has reviewed the ruling yesterday in the light of the evidence given by Supt. Jude which is in the general trial where Lordship is of the view that the ruling made on 8th March 2011 has to be reviewed and that this evidence can be admitted as evidence. I don’t know whether your Lordship did not appreciate the two areas in our submission that we have made. All you Lordship say was the arrest which your Lordship found unlawful to be lawful in the light of the evidence by Supt. Jude that there was a valid warrant of arrest.
We submitted on the lock up rules. Was the lock-up rules, specifically on rule 20, complied with? What does rule 20 says? It states this – Masa rehat. A suspect must be kept in the lockup from 6.00 p.m to 6.00 a.m. the next morning and cannot be taken out and so forth. No interrogation can be made. We have the authority to this effect which renders the detention unlawful and horrendous. We cited the case of Dato’ Mokhtar Hashim and Lee Chee Meng.
Fair enough if you found that the arrest was lawful. But the detention which is more important, not the arrest. The detention of Dato’ Seri Anwar Ibrahim remains unlawful the moment he is not put in the lockup after 6.00 p.m. []. Not put in the lock up at all at 6 o’clock. The requirement is after 6.00 p.m. to be in the lock up.
What happened then? He was brought to HKL at 8.30 p.m. but this was between 6.00 p.m and 6.00 a.m. the next morning. And therefore this is a clear case of contravention of rule 20.. [] subject to rule 20 and [] unfair methods and unfair means. Therefore your Lordship with respect disregarded. The ruling by your Lordship is completely does not touch at all upon the lock up rules, rule 20, the detention on 17.07.2008.
We have the authority. The Federal Court decision, Dato’ Mokhtar Hashim. Your Lordship may not be bound by J James Foong in Lee Chee Meng. If you contravene rule 20, it will make the caution statement recorded at that time inadmissible. In fact on that ground alone your Lordship has to be [] but your Lordship did not do so. []
The 2nd area which is as important as the one which we have submitted before. The police personnel in charge of the lock up after DSP Yahya has supplied the toothbrush, the “Good Morning” towel and mineral bottle, [] but they were directed specifically not to touch the item. Why are they directed not to touch the item? It is obvious that the detention of Dato’ Seri Anwar Ibrahim was for query samples for DNA profiling on the toothbrush, “Good Morning” towel and mineral bottle.
We say your Lordship has completely disregarded what is in Goi Ching Ang. What did the highest court in land says? []
“Evidence obtained in an oppressive manner by force or against the wishes of an accused person or by trick or by conduct of which the policy ought to take advantage, would operate unfairly against the accused and should in the discretion of the court be rejected for admission.’
And from the two areas I have submitted earlier, it falls in the [] trick. That is what Federal Court says. Trick or by conduct of which the policy ought to take advantage. We have no benefit from hearing []. Your Lordship should review the ruling that your Lordship has made in the light of the ruling your Lordship have made on 8th March 2011.
It does not matter what’s going on by now. A judge []. your Lordship ought to completely disregarded. [] the oath your Lordship took when appointed as a judge. I urge your Lordship to take time to resign, not to retire from office, but for a while.[].
Under those circumstances, we would submit that your Lordship should once again be cautious in mind that you should review what your Lordship has done yesterday. Your Lordship is not functius officio. []
MY: I agree that until judgment is given your Lordship is not functious officio. But the question is is there any basis of having the benefit now to review the basis claimed by the defence that you have not considered?
Rule 20 is something that all defence counsel will refer to as far as admissibility of caution statement is involved. In Dato’ Mokhtar Hashim, yes. The caution statement is [] because the issue is not whether you have breach the rule or not.. [] and applying this law, rule 20 in our case, it says you must be detained. Just because the law says you must be detained, does not mean you must be put in the lock up.
Yes, they went to the hospital at 8.30 p.m. but nothing was taken from Dato’ Seri Anwar Ibrahim and the lock up between 6.00 p.m. to 6.00 a.m. DSP Jude was in fact cross-examined by En. Karpal whether he knows what happened between that time and he answered Dato’ Seri Anwar Ibrahim was his family member and his counsel after he came back from the hospital. None of the counsel suggested that they have breached the rule at that time because when it is convenient to them it is okay. But now, when it is not okay, they contended that the police breached rule 20. So rule 20 has no obligation.
If YA remember, these items were collected at 11.00 something in the morning on the next day. The instruction not to touch the items was not given before that, but after Dato’ Seri Anwar Ibrahim was released. The instruction was made by DSP Yahya.
In the Notis Usul and the affidavit, it was stated that DSP Jude instructed the police not to touch anything. But actually it was DSP Yahya and I have pointed it out to my learned friend. And the person who instructed Amidon to collect the items from the lock up was Dato’ Koh Chin Wah, OCCI of KL. The instruction came from higher rank. That’s why DSP Jude himself did not give instruction. Dato’ Seri Anwar Ibrahim was placed in the lock up later than 6.00 p.m. Just because he is placed in the lock up after 6.00 p.m. does not make it unlawful. [].
I really see nothing there for your Lordship to review. Rule 20 does not apply because nothing was taken from Dato’ Seri Anwar Ibrahim and the lock up between that time. With regard to collecting the exhibit in the lock up after Dato’ Seri Anwar Ibrahim was released, that is normal. But what important is what transpires in Jude’s mind.
I humbly pray for this application to be dismissed.
KS: The application we made is not with regard to []. What is important is your Lordship consider the two areas. My learned friend accept that rule 20 is mandatory. [] he said it is on the caution statement. The principle is important. That is something done against the law and your Lordship has a discretion to exclude it. It is as simple as that. My lf does not dispute that direction was given to police personnel at the lockup not to touch the items. []. These are the areas that your Lordship does not consider. I don’t think I can go any further than that. That’s all.
YA: Give me 10 minutes. Start at 10.40 a.m.
[10.31 a.m.] Stand down.
[10.40 a.m.]
YA: This is my ruling. After going through the defence’s Notis Usul and affidavit, I see no reason to review the ruling I made yesterday. Application dismissed.
MY: Much obliged. Izinkan kami memanggil saksi kami iaitu SP15, Supt Amidon.
SP15 : Bekas Supt. Amidon b. Anan.
SP15 mengangkat sumpah di dalam Bahasa Melayu.
Q: Supt. Amidon, sebelum ini kamu telah beri keterangan di mahkamah pada 17.07.2008 di lokap D9, IPK KL kamu telah mengambil 4 barang kes, iaitu satu helai bulu, satu berus gigi, satu tuala “Good Morning” dan satu botol air mineral.
A: Ya.
Q: Dan kemudian kamu telah memberi keterangan bahawa kamu telah masukkan keempat-empat barang tersebut dalam sampul surat yang berasingan dan kemudian kamu seal sampul surat tersebut dan kamu turunkan tandatangan. Benar?
A: Ya.
NH: Mohon saksi dirujuk ID57.
Q: Cuba lihat ID57. Ada atau tidak tandatangan yang kamu buat di belakang ID57 tersebut?
A: Ada.
NH: Pohon ID57 ditandakan sebagai P57.
ID57 ditandakan sebagai P57.
Q: Cuba lihat kandungan P57. Ada sampul itu ada atau tidak sehelai bulu yang dikepilkan pada sehelai kertas yang kamu tandatangan?
A: Ada.
Q: Kamu camkan?
A: Ya.
NH: Pohon ID57 ditanda P57A.
ID57A ditanda sebagai P57A.
NH: Seterusnya pohon saksi dirujuk ID58.
Q: Ada atau tidak tandatangan kamu di belakang sampul ini?
A: Ada.
Q: Kamu camkan?
A: Ya.
NH: Pohon ID58 ditanda sebagai P58.
ID58 ditanda sebagai P58.
Q: Lihat kandungan. Ada atau tidak sebatang berus gigi berwarna putih?
A: Ada
NH: Pohon ID58A ditanda sebagai P58A.
ID58A ditanda sebagai P58A.
NH: Seterusnya mohon saksi dirujuk ID59.
Q: Cuba lihat ada tandatangan kamu di belakang sampul ini?
A: Ada.
NH: Pohon ID59 ditanda sebagai P59.
ID59 ditanda sebagai P59.
Q: Lihat kandungannya. Ada atau tidak sehelai tuala “Good Morning” yang kamu tandatangan pada tuala tersebut?
A: Ada.
NH: Pohon ID59A sebagai P59A.
ID59A ditanda P59A.
NH: Mohon saksi dirujuk ID61.
Q: Ada atau tidak tandatangan kamu di situ?
A: Ada, di bahagian belakang.
Q: Kamu camkan?
A: YA.
NH: Pohon ID61 ditanda sebagai P61.
ID61 ditanda sebagai P61.
Q: Lihat kandungannya. Ada atau tidak satu botol air mineral yang ada tandatangan kamu di bontot atau di belakangnya?
A: Ada.
NH: Pohon ID61A ditanda sebagai P61A.
ID61A ditanda sebagai P61A.
NH: Itu sahaja soalan saya.
KS: We have no question, YA.
NH: Mohon saksi dilepaskan. Saksi seterusnya, SP6 ialah Aidora. Pn. Noorin akan ambil alih.
SP6 : Pn. Nor Aidora Binti Saedon
SP6 mengangkat sumpah di dalam Bahasa Inggeris.
Q: On 23rd February 2011, you have testified in court that on 17.07.2008 you received a request from DSP Jude as well as some items in 4 envelopes to be examined and analysed by you.
NB: YA, izinkan saya merujuk saksi pertamanya kepada sampul surat marked as P57.
YA: Dulu tak identify lagi ke?
NB: Dah. Saja nak minta dia confirmkan kerana semasa dahulu ia ditanya melalui saksi ini, YA.
YA: Ye la, ID. Sekarang P. Benda tu kan sama.
NB: Yes, I just want her to identify again.
Q: So, Puan Aidora, can you just confirm whether this is the enveloped that you received on 17.07.2008 from DSP jude as well as the content in it which has now marked as P57A.
A: Yes, I identify it.
NB: P57 and P57A identified, YA.
P57 and P57A identified.
Q: Seterusnya Aidora, you also received enveloped marked “D1” now marked as P58. Can you please confirm that this envelope as well as the content of it that you also received on 17.07.2008 from DSP Jude to be examined and analysed?
A: Yes, I confirm.
P58 and P58A identified.
Q: Seterusnya, refer to P59 and P59A. Can you please confirm that this envelope as well as the content of it that you also received on 17.07.2008 from DSP Jude to be examined and analysed?
A: YA, I confirm.
NB: P59 and P59A identified, YA.
P59 and P59A identified.
Q: You did something on this towel, I believe. You found a strand of hair and you have isolate that all and put in an envelope ID60 and the content ID60A. Can you confirm this is the exhibit, Pn. Aidora?
A: YA, I confirm.
NB: May this ID60 and ID60A marked as P60 and P60A?
ID60 marked as P60.
ID60A marked as P60A.
Q: Seterusnya Pn. Aidora, you also received another envelope marked as “D3” now marked as P61 and the content as P61A. Can you confirm this is the exhibit?
A: YA, I confirm.
NB: P61 and P61A identified, YA.
P61 and P61A identified.
Q: You also prepared a chemist report dated 22.07.2008. Can we have ID61 to be shown to the witness? Can you please confirm that this is the report that you have prepared with regard to the examination and analysis that you have conducted on these items?
A: YA, this is the report prepared by me.
NB: YA, can we have this ID62 be marked as P62?
ID62 marked as P62.
Q: And you have also printed out the EPG, electro-pherogram of your analysis which was marked before as ID 63. Is this the EPG of your analysis, Pn. Aidora?
A: YA, I confirm this is the EPG printed pertaining to this case.
NB: May we have ID63 be marked as P63, YA?
ID63 marked as P63.
NB: That would be all, YA.
KS: We have no question.
NB: May we have this witness to be released, YA?
MY: YA, pendakwaan menutup kes kami dan kami menawarkan 73 witnesses to the defence. Untuk kemudahan, telah dinyatakan di sebelah nama mereka siapa mereka itu.
YA: (to defence) I’m sure this is not fair to ask you to decide now who you want to call in the event the defence is called. Can we leave it as it is or you want to decide now who you want to call?
KS: We need a short break, YA so that we can decide it straight away.
YA: I will give you some time before I can hear the submission. In the mean time you can go through so masa submission you can let me know siapa nak panggil.
KS: Very well.
YA: So when can I hear the submission?
MY: Saya mencadangkan 2 minggu diberikan kepaada kedua-dua pihak untuk menyediakan hujahan. Jika di akhir 2 minggu itu pihak-pihak ada bundle or written submission to exchange and to be filed in court, then whatever reply to that written submission can be taken during the submission proper on the third week.
YA: (to defence) Is it okay?
KS: I hope we are given 3 weeks instead of 2 weeks, YA. I think we may take some time.
MY: Sama juga, YA. Saya pun minta macam tu tadi.
YA: But I hope the parties can exchange within 2 weeks. How about 18.04.2011? It will be on Monday. But how long would it take to hear the submission?
Satu hari boleh siap ke? Ataupun two days? Kalau tak siap one day we’ll just continue. So that would be 18.04.2011.
[10.55 a.m.] Adjourned.
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