No merit, so I'll keep hearing case, rules judge

It took just 40 minutes for the Kuala Lumpur High Court judge Justice Mohamad Zabidin Mohd Diah to dismiss Anwar Ibrahim’s application for his recusal in presiding over the sodomy trial.

This came after the court had spent 90 minutes listening to submissions from senior defence lawyer Karpal Singh and Solicitor-General II Mohd Yusof Zainal Abiden.

In arriving at his decision, Justice Zabidin (left) wrote just two lines: "The application (by Anwar) has no merit and hence this application is dismissed."

After some hesitation, he allowed the defence application for a stay of hearing, pending an appeal against his ruling.

"The court fixes July 13 for the case to be mentioned," he said.

The defence gave an undertaking that it would file the notice of appeal by today.

Anwar has been ordered to enter his defence, after the judge found that the complainant, Mohd Saiful Bukhari Azlan, was a "credible and truthful witness".

Karpal, when submitting, said the court obviously considers Saiful's evidence as fundamental to proof of the charge and it was for this reason that the judge had taken pains to minutely set out his reasons in the written decision at the close of the prosecution's case.

Highlighting a portion of the judgment, Karpal read out: ‘This led to the court finding Saiful's evidence to remain intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and the place stated in the charge. I find him to be a truthful witness and his evidence reliable and if accepted would establish all the facts required to prove the charge against the accused.’

Karpal said ‘prima facie’ means ‘on the face of  it’ or ‘at first glance’, which is the level of test which should have been imposed when the prosecution closed its case.

“In other words it means a case which is sufficient to call for an answer. It would follow that there should be credible evidence on each and every essential ingredient of the offence.

“By concluding (Saiful, right in photo) was a truthful witness at the close of the prosecution's case, the court obviously considered his evidence to be conclusive, namely it was the truth, the whole truth and nothing but the truth.”

Karpal said Saiful’s evidence had clearly been accepted by the court as irrebuttable evidence.

“If this is the position, it is clearly against the provisions of Section 182A(1) of the Criminal Procedure Code where it follows (Saiful’s) evidence has been accepted as irrebuttable evidence and the prosecution had proved its case beyond reasonable doubt....

“This amounts to prejudgment of Anwar's guilt which would demonstrate bias on the part of the court at the close of the prosecution case. This would mean Anwar would not be in a position to be afforded a fair trial.”

‘Defence’s delaying tactic’

Yusof responded by saying the defence application is unprecedented and could set a record of sorts as this is the third attempt by Anwar to have the judge recuse himself.

The first application was filed because the judge had rejected action against Utusan Malaysia following an allegation of bias in his decision early last year.

The second was made after Karpal alleged that Justice Zabidin had not followed precedent set by the Supreme Court, when he would not allow an expert witness to supply documents used during the medical examination on Saiful.

Yusof said the paragraph about which the defence has complained is merely one of 180 in the written judgment which runs for 68 pages.

He asked whether the court was biased in determining that Anwar should enter his defence.

"There are 21 paragraphs in the judgment devoted to the defence argument," he said.

Despite attempts by the defence through lengthy cross-examination, Saiful's testimony had remained consistent, Yusof noted.

"This is why in the judgment, the court states (that it) finds Saiful's statement to remain intact. That is what Yang Arif has done, (to) subject the witness to (the) maximum evaluation test to determine the witness' credibility," he said.

Yusof (right) said a prima facie case is one where evidence that is 'beyond reasonable doubt' has been adduced, while the defence has had the opportunity to cast doubt on the prosecution case.

“If the defence successfully raises reasonable doubt as to the truth of the version by the prosecution, then the court should acquit the accused," he quipped.

He also submitted that there was no bias on the part of the judge in calling for Anwar's defence, as the evidence was corroborated by independent witnesses including experts (the Hospital Kuala Lumpur doctors and chemists).

“They include Anwar's chief of staff (Ibrahim Yaacob) who testified that Saiful had worked with Anwar."

He ended his submission by calling for the application to be dismissed, describing it as having been made without merit and to delay and derail the trial.

“It is hard to imagine this application is made bona fide. If Anwar is truthful he would seize the opportunity (to enter his defence) - this is your chance to tell your version to the public and give your version of the defence,” he said.

Following Yusof's assertion that this was a delaying tactic Anwar who was seated in the dock, was overheard asking: ‘When (was this a delaying tactic)?”

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