'Facts suppressed in Anwar's sodomy charge'
S PathmawathyPublished: Aug 4, 2009 9:30 AM | Updated: Aug 5, 2009 12:15 AM
Anwar Ibrahim has filed an application to quash a certificate issued by the prosecution declaring that there are "no favourable facts" in his defence against a sodomy charge in the Kuala Lumpur High Court.
Anwar Ibrahim has filed an application to quash a certificate issued by the prosecution declaring that there are "no favourable facts" in his defence against a sodomy charge in the Kuala Lumpur High Court.
The prosecution is also accused of trying to suppress evidence, particularly medical reports from Hospital Pusrawi and Hospital Kuala Lumpur, and attempting to conduct a trial by ambush.
Anwar's lawyers R Sivarasa (left) and Edmund Bon told reporters today that they had filed the application yesterday at the Appellate and Special Power Court, seeking a declaration among other orders to state that the certificate is null and void.
The certificate is part of a stack of documents supplied to the defence under Section 51(A)(1)(c) of the Criminal Procedure Code (CPC) and signed by deputy public prosecutor Mohamad Hanafiah Zakaria.
“Prior to the amendment to the CPC, it was literally a trial by ambush... the accused person and the lawyer go into a trial blindly... as only the first information report and the statement (recorded from the accused) are given to the defence,”said Sivarasa.
He pointed out that the CPC was amended in 2007 to ensure that the prosecution informs the defence that there certain facts are favourable to the accused person before the trial begins.
According to both medical reports, there was allegedly no evidence of penetration – the most important element in a sodomy charge - on complainant Mohd Saiful Bukhari Azlan (right), then 23.
The lawyers said this is sufficient to stand as favourable evidence, but that the prosecution had ignored it in the certificate.
“We were very surprised as to why this was not stated as a favourable fact to the defence... the certificate is illegal and it does not comply with the law,” said Bon.
“The prosecution has failed in its duty to carry out the law and (guidelines of the) attorney-general’s chambers.”
Potential benchmark
In the application, the lawyers contend that the prosecution has breached the law. Hence, the High Court should review the certificate and supply the defence with the favourable facts three weeks before the trial.
The defence is also asking for:
Bon (right) claimed that cases related to Anwar are mostly “test cases”, as certain legal aspects that crop up have never been addressed before.
He added that, if the defence is able to quash the certificate, it would serve as a benchmark for future hearings.
Anwar, 62, is charged with sodomising his former aide at a condominium in Bukit Damansara on June 26 last year, but has since applied to strike out the suit.
The court has fixed Sept 2 for mention dates for the application and hearing.
The prosecution is also accused of trying to suppress evidence, particularly medical reports from Hospital Pusrawi and Hospital Kuala Lumpur, and attempting to conduct a trial by ambush.
Anwar's lawyers R Sivarasa (left) and Edmund Bon told reporters today that they had filed the application yesterday at the Appellate and Special Power Court, seeking a declaration among other orders to state that the certificate is null and void.The certificate is part of a stack of documents supplied to the defence under Section 51(A)(1)(c) of the Criminal Procedure Code (CPC) and signed by deputy public prosecutor Mohamad Hanafiah Zakaria.
“Prior to the amendment to the CPC, it was literally a trial by ambush... the accused person and the lawyer go into a trial blindly... as only the first information report and the statement (recorded from the accused) are given to the defence,”said Sivarasa.
He pointed out that the CPC was amended in 2007 to ensure that the prosecution informs the defence that there certain facts are favourable to the accused person before the trial begins.
According to both medical reports, there was allegedly no evidence of penetration – the most important element in a sodomy charge - on complainant Mohd Saiful Bukhari Azlan (right), then 23.The lawyers said this is sufficient to stand as favourable evidence, but that the prosecution had ignored it in the certificate.
“We were very surprised as to why this was not stated as a favourable fact to the defence... the certificate is illegal and it does not comply with the law,” said Bon.
“The prosecution has failed in its duty to carry out the law and (guidelines of the) attorney-general’s chambers.”
Potential benchmark
In the application, the lawyers contend that the prosecution has breached the law. Hence, the High Court should review the certificate and supply the defence with the favourable facts three weeks before the trial.
The defence is also asking for:
- a certiorari order (a judicial review) to set aside the certificate;
- a mandamus order(to compel) the prosecution to furnish the defence with favourable facts; and
- an injunction to stop the prosecution from continuing with the hearing until a new certificate is issued.
Bon (right) claimed that cases related to Anwar are mostly “test cases”, as certain legal aspects that crop up have never been addressed before.He added that, if the defence is able to quash the certificate, it would serve as a benchmark for future hearings.
Anwar, 62, is charged with sodomising his former aide at a condominium in Bukit Damansara on June 26 last year, but has since applied to strike out the suit.The court has fixed Sept 2 for mention dates for the application and hearing.
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