Confusion reigned in the Court of Appeal today as to whether or not the judges had received copies of jailed ex-deputy prime minister Anwar Ibrahim's notice of alibi linked to his sodomy case.

While Anwar's counsel Karpal Singh insisted that he had tendered the copies through the court officer during the main appeal in April, deputy registrar Hasnah Hashim said the records showed no trace of the document.

Over the resulting bedlam, Anwar made himself heard: "My God! What is this? I myself saw my lawyers handing them (the copies) in court! More than 30 witnesses (in the public gallery) saw the whole thing. How can the court deny it?"

Karpal and five co-counsel protested in unison, insisting that the copies had been handed over, as shouting began in the public hearing. The judges immediately stood down the proceedings for 30 minutes.

Anwar and his adopted brother Sukma Darmawan Sasmitaat Madja have applied for the Court of Appeal to review its own decision dismissing his appeal against their sodomy convictions.

The duo were jailed nine and six years respectively for sodomising Azizan Abu Bakar, the driver of Anwar's wife Dr Wan Azizah Wan Ismail. Sukma was also ordered to be whipped four times.

They claimed that, despite having made a decision and a written judgment, the court has inherent jurisdiction to correct any manifest error that has prejudiced them.

They added that the judgment was flawed because the judges concluded that Anwar had not given an alibi notice, when the prosecutor had conceded that this had been done.

Convoluted argument

At the onset of the hearing before Justices Pajan Singh Gill, Raichard Malanjum and HashimYusof, Karpal (left) urged the court to correct its mistake by reviewing its judgment on the appeal.

"The fact is that the first appellant had filed the alibi notice and we even gave a copy to Your Lordships," he said.

He said this had been corroborated by the prosecution, saying the proof was in an affidavit-in-reply filed by DPP Tun Abdul Majid Tun Hamzah, who acknowledged service of the notice.

Justice Richard then pointed out that the court had made its judgment in reference to the prosecution's written submission stating that Anwar did not file the notice.

Richard (waving the relevant documents): Are you telling us that we have been misled by the prosecution's submission?

Karpal: In the name of God, I had even submitted copies to Your Lordships!

At this point, senior prosecutor DPP Mohd Yusof Zainal Abiden interjected to clarify the situation.

"During the appeal stage, we started with the contention that there is no notice of alibi. But the defence insisted otherwise," he said.

"We decided to stand down for both sides to refer to the (High Court) notes of evidence. We found out that the document had been filed and served to us. We then retracted the argument and went on other issues."

Karpal told the court that the matter cannot now be disregarded and that it must make a clear stand on the issue.

"This is a very serious matter. I had the impression that Your Lordships were denying receiving copies of the notice (even though) I did submit them. Can you confirm now that I did give them to the court? If what I am saying is wrong, then I risk being struck off the Bar rolls," he said.

To this Pajan replied: "We are not here to answer your questions."

Yusof then said he could only confirm that the alibi notice had been filed and served, but not whether Karpal had handed copies to the court.

When the court was told that the documents were not in the records of appeal, the ruckus broke out.

New affidavits

Upon resumption of the hearing, Pajan told the counsel that the court would go on the assumption that Karpal had tendered copies of the document.

However, Karpal shot back: "We cannot go on assumptions. If there is an error of fact, the court cannot say that this is based on an assumed fact. The law says that the error of fact must be proven. What we seek to do is to adjourn, so that I can file an affidavit to make the matter clear."

Attorney-General Abdul Gani Patail objected to any adjournment. While saying that he did not doubt Karpal's words, he added that he could not remember the document being submitted.

"I cannot tell a lie...I was upset (at the time of retraction) that we had made a mistake. I do not doubt (Karpal's) words, but don't have proof," he said.

Karpal reiterated the importance of filing the affidavit.

"I will go on record (as having submitted the copies) at the risk of being charged with perjury. I'll take the risk because I'm telling the truth," he said.

He later told reporters that Anwar's eight lawyers all remember the incident, and will each file an affidavit supporting his stand.

The court adjourned the matter to Jan 19.