Sodomy II: Judge orders trial-within-a-trial

Fresh from campaigning in the Merlimau by-election last night, Opposition Leader Anwar Ibrahim is back in the dock for his sodomy trial which resumes this afternoon at the High Court with submission being heard on the defence application for a trial-within-a-trial.

This follows the prosecution's application to try to admit a number of items as evidence - a mineral water bottle, a toothbrush, a ‘Good morning’ towel and a strand of hair - retrieved from a cell where Anwar was detained overnight between July 16 and July 17, 2008.

Three of the items - the mineral water bottle, toothbrush and towel - were found by chemist Nor Aidora Saedon to contain the DNA of ‘Male Y’, complainant Mohd Saiful Bukhari Azlan's alleged perpetrator.

Defence lawyer Karpal Singh had requested for a trial-within-a-trial to decide on the admissibility of those items as evidence which he claimed to have been obtained unfairly and in an illegal manner.

For the prosecution, solicitor-general II Mohd Yusof Zainal Abiden argued that the defence must show the accused was either threatened, had given those items under duress or was induced to give them.

Yesterday, the prosecution produced seven police officers to explain the manner the items were retrieved from Anwar's cell, which was done without the knowledge of the accused.

This is seen as a pivotal moment in Anwar's trial as its admissibility or non-admissibility of the evidence will either make or break the prosecution case.

High Court judge Mohamad Zabidin Mohd Diah had yesterday ruled that he would hear submissions on this crucial matter this afternoon.

LIVE REPORTS

2.27pm: Anwar arrives with his wife, Dr Wan Azizah Wan Ismail, and PKR secretary-general Saifuddin Nasution.

Court is quite packed compared to yesterday with already 67 people in the public gallery.

The quota for Anwar's family passes had all be taken by 2.05pm.

2.32pm: The prosecution team led by solicitor-general II Mohd Yusof Zainal Abiden (right) is ready and awaiting for all defence lawyers to arrive.

2.34pm: Defence lawyers Sankara Nair and Param Cumaraswamy enter courtroom.

2.38pm: Yusof chats with Param and Sankara, while Anwar, who is standing near the public gallery, is talking to Saifuddin.

Police having tough time to control the rather large crowd outside.

2.45pm: Still awaiting for top defence lawyer Karpal Singh to arrive.

2.47pm: The court is packed to the brim as all seats are full.

2.54pm: Karpal arrives and takes his place among other members of the defence.

2.55pm: Court in session with justice Mohamad Zabidin Mohd Diah presiding.

Karpal (right) begins his submission saying those items should remain as ID and excluded as evidence. He says the arrest of Anwar was unlawful.

2.58pm: Karpal says the items were gained through unlawful means, or unlawful methods were employed by the police to get those items.

3.02pm: Citing a decision from the Privy Council, Karpal said judges must ensure the accused get a fair trial.

3.03pm: Karpal submits that fairness requires a fair trial and the accused must be protected from evidence gained from an oppressive manner.

3.08pm: Karpal says the court ought to reject evidence which was illegally obtained. "The judge has no option but to reject items obtained through improper or unlawful means."

3.16pm: Karpal says a trial within trial is proper as it had placed the accused at a disadvantage.

"All relevant matters are before a judge for him to make a ruling. The accused person can give evidence on a trial within a trial."

"(It is) necessary for the judge to exercise the discretion," he says.

Karpals reiterates that Anwar's arrest and detention were unlawful.

"Unlawful methods were employed, and for this we apply for a trial-within-a-trial," he says.

3.21pm: It is now Yusof's turn to submit. He says if the evidence is relevant, it should be admitted. Voluntariness or involuntariness is not the issue, the solicitor-general adds.

3.27pm: Yusof says what is being admitted is not a confession.

Subang Jaya MP R Sivarasa enters the courtroom and joins the packed crowd in the public gallery.

3.29pm: Yusof says the evidence adduced has confirmed the guilt of the accused.

"The cases cited by Karpal relate to confessions. We are not dealing with confession."

3.42pm: Yusof submits that the question of somebody's mind being influenced (to give up) such evidence does not arise.

He says that in this case, nobody is disputing where the items were collected.

3.50pm: Yusof says that what the court should do is mark the items as exhibit first and then decide on the evidence via trial-within-a-trial (voir dire) or not.

3.53pm: Yusof says if there is a question about the evidence, the trial-within-a-trial should be held at the end of the prosecution's case just before the judgment is delivered.

"This will prevent a lengthy trial-within-a-trial," he says. Yusof ends his submission.

3.56pm: Karpal, in reply, says whatever it is, there is a need for a trial within trial to decide whether to admit the items as evidence.

4.01pm: Judge Mohamad Zabidin asks for a short break, probably to make his decision.

4.16pm: After the 10-minute break, justice Zabidin says there is a dispute over how the evidence is obtained.

As such, he allows the defence application for a trial-within-a-trial.

In allowing the trial-within-a-trial, the judge say generally the court is not concerned how the evidence is obtained. However, he adds that the court has discretion to exclude relevant admissible evidence if there are allegations that improper and unfair means was used to obtain them.

The court will resume tomorrow with the trial-within-a-trial at 2.30pm.

Malaysiakini will continue its live coverage of the trial tomorrow at 2.30pm.