Ex-deputy premier Anwar Ibrahim and his co-accused Sukma Darmawan should not have had to enter the defence on charges of sodomy because no prima facie case had been established, the Federal Court ruled today.

Justice Abdul Hamid Mohamed, who headed the three-member appellate bench, said the Kuala Lumpur High Court had misdirected itself in holding that Anwar and Sukma had a case to answer.

"They (Anwar and Sukma) should have been acquitted at the end of the prosecution case. We therefore allow the appeals of both appellants and set aside the sentences," said Abdul Hamid.

In 2000, Anwar was sentenced to nine years in jail, while Sukma's sentence was six years and four strokes of the rotan (cane).

The judge noted that "there was evidence to confirm that the appellants were involved in homosexual activities and we are more inclined to believe that the alleged incident at Tivoli Villa did happen, sometime".

However, "the court may only convict the appellants if the prosecution has successfully proved the alleged offences as stated in the charges, beyond reasonable doubt, on admissible evidence and in accordance with established principles of law".

Before reading out the 89-page judgment, Abdul Hamid explained why the matter had been postponed at the first time on July 22 this year.

"Two days before the scheduled date, our sister Justice Rahmah (Hussain) told me that she could not agree with the draft judgment and requested for time to write her own," he said.

Rahmah - who held the only dissenting judgment today - and Court of Appeal judge Tengku Baharuddin Shah were the other members of the panel that heard the appeal.

Abdul Hamid also took the unusual step of reminding all parties to read the judgment in full before commenting on the decision, saying that the judges were aware that many would be discussing it.

Claims 'puzzling'

In his judgment, Abdul Hamid said that it was unsafe to uphold Anwar's conviction for sodomy based on the uncorroborated evidence of the complainant and prosecution star witness Azizan Abu Bakar.

The court found that Azizan was an accomplice to the charges as there was no evidence of protest, and as an accomplice his testimony must be corroborated before being accepted.

"He said that he submitted under fear and was scared of both the appellants, A person may allow himself to be sodomised under fear once or twice but certainly not 10 to 15 times over a number of years," said the judge.

Abdul Hamid said it was puzzling that, despite being fearful, Azizan had still accepted the invitation to visit Sukma's apartment at Tivoli Villa where he did nothing to resist the alleged crime from being committed.

"He did nothing. And after the first appellant had allegedly finished and went to the bathroom, he remained in that menonggeng (bent over) position. What was he waiting for in that position?" said the judge much to the amusement of those in the public gallery.

The judge said Azizan's weak recall of the date of the offence had not made the prosecution's task any easier.

"In this case, Azizan's evidence on the date of the incident is doubtful as he had given three different dates in three different years, the first two covering a period of one month and the last covering a period of three months," said the judge.

"We are not saying that he is an outright liar but he is certainly not the kind of witness described by the lower courts to be wholly reliable and truthful witness."

Being the complainant of the case, the prosecution had only Azizan to rely on as the source of the dates of the alleged offence.

"(His) inconsistency, contradiction and demeanour on this issue does not make him a reliable source, as such an essential part of the offence has not been proved by the prosecution," he said.

Unusual circumstances

He also said Sukma's confession could not be used to corroborate Azizan's evidence, as contended by the prosecution.

The court noted that "unusual things" had happened with regard to Sukma's arrest which led to the confession being recorded by a magistrate.

He said police interrogation of Sukma was questionable when he was only initially arrested for his witness' statement to be recorded following a report lodged by Anwar's former private secretary Azmin Ali about the book '50 reasons why Anwar cannot be prime minister'.

Since Sukma was only needed to give a witness's statement, it was unusual for the police to obtain a 14-day remand order from a particular officer at the High Court.

He also said that the appointment of lawyer Mohd Nor Don to represent Sukma was also strange.

While repeatedly disallowing the lawyer appointed by Sukma's family from contacting him, the police had at the same time allowed Mohd Nor to use the office of investigating officer SAC I Musa Hasan to meet the Indonesian-born businessman.

It was also odd for Mohd Nor to tender Sukma's confession as mitigation when asking for reduction of sentence in the latter's other sodomy case, according to the judgment.

"Even unrepresented accused do not do such a thing, what more an advocate and solicitor. Tendering a confession stating that the accused had committed other offences in mitigation of sentence is a contradiction in terms to say the least," Abdul Hamid said.

Although the police had denied subjecting Sukma to brutal interrogation, he said it was not too much to expect that such treatment had been meted out (in the past). Anwar had been assaulted by the Inspector-General of Police Abdul Rahim Mohd Noor while in custody.

Abdul Hamid added that the lower courts were wrong not to have considered all these unusual circumstances before rendering the confession as admissible.

The long-running courtroom drama involving Anwar began with charges of corrupt practice and sodomy in October 1998.

He was convicted and sent to jail for six years from April 14, 2000 for the corruption-related charges and has since served the sentence with one-third remission for good conduct. The court later ordered the sentence for sodomy to be served consecutively.