The Court of Appeal today quashed Indonesian-born Sukma Darmawan Sasmitaat Madja's conviction for sodomy involving his adopted brother, former deputy prime minister Anwar Ibrahim.

Justices Gopal Sri Ram, Hashim Mohd Yusof and James Foong unanimously ruled that Sukma's conviction - which was based on a guilty plea - was "manifestly unsafe" as there was a suppression of evidence on the part of the prosecution.

"After careful consideration, we unanimously feel that the appeal should be allowed. In our view, the conviction based on the plea of guilt is manifestly unsafe," said Gopal.

The court also set aside his six-month jail sentence and ordered the case to be sent back to the Kuala Lumpur Sessions Court for a retrial. The case is due for mention at 9am tomorrow.

On Sept 19, 1998, Sukma had pleaded guilty to the charge of allowing Anwar to sodomise him at the latter's official residence in Damansara in April 1998.

His lawyer, who was appointed by the police, had tendered a confession signed by Sukma in support of the plea.

However, Sukma later claimed that he had signed it under duress and that his plea of guilt was not made voluntarily. Attempts to set aside the Kuala Lumpur Sessions Court's decision failed in the High Court.

Sukma's present lawyer, Gobind Singh Deo, said that he is prepared for the trial adding that the defence intends to call former premier Dr Mahathir Mohamad to the witness box.

"This is because our contention is that the entire charge is a result of a web of conspiracy against Anwar Ibrahim," he said.

Mahathir had sacked Anwar, his then heir-apparent, in September 1998 over a series of allegations including corruption and sodomy.

Sukma, when met outside the court, said he was happy with the judgment as he has been given a "second chance" to defend himself against the charge.

"However, I don't want to celebrate too much as we have to see how the case goes tomorrow. I am still traumatised by the entire episode and hope to be strong enough to face it all over again," he told reporters.

Equally happy was Anwar who was in court to provide support.

"Finally, we will be able to show that there has been injustice from start to end. There is still a glimmer of hope for us to get justice from the judiciary which now faces controversial allegations of corruption."

'Evidence to the contrary'

Gobind (right) in his submissions said that Sukma merely wanted to set aside the conviction on the basis that there was suppression of evidence by the prosecution which had charged Sukma with sodomy when there was evidence to prove the contrary.

"There was a medical report which stated that Sukma was not sodomised and yet the prosecution dragged him to court for sodomy. This is when the report said that there was no evidence of penetration," said Gobind.

He argued that such act amounts to a "suppression of material evidence" stating that it was incumbent for the prosecution to adduce the evidence to the court when it was recording Sukma's plea of guilt.

"If the sessions court judge had seen medical report, shouldn't she have rejected the plea of guilt and say come before me for a trial?" submitted Gobind.

"The accused had also alleged that he was under severe pressure when he pleaded guilty. So we are asking for the conviction to be set aside, (but) we are not asking for an acquittal."

He urged the court to allow Sukma to have his day in court to state his case against the charge, saying "If the court then finds him guilty, then so be it".

The court was also told that Sukma's confession had been rejected by the Federal Court in its decision to allow Anwar's and Sukma's appeals to quash their conviction for sodomy.

To this Gopal said: "What weight does it carry then? This was the same confession rejected by the Federal Court [...] I thought we have to follow the precedent set by the Federal Court."

Gobind then argued that the circumstances surrounding Sukma - from his arrest to the time he pleaded guilty for the sodomy charge - were highly suspicious.

Outrage of decency

DPP Nurul Huda Noraini Mohd Nor countered that the prosecution need not prove penetration as Sukma was charged under Section 377D of the Penal Code for "outrage of decency" and the medical report was irrelevant.

Gopal then interjected stating that the charge clearly suggested that there was penetration and subsequently asked Nurul Huda to read the charge out loud.

When she finished reading, the judge added: "There you have it. Semua sudah habis! (All is lost). If penetration cannot be proven then the whole case collapse like a pile of bricks."

Nurul Huda then argued that there "could be insertion without penetration". She also claimed that such evidence could not be obtained because the medical report was made five months after the alleged incident.

Gopal (pix) then pointed out that the confession that was used to support the plea of guilt is now deemed involuntary by the Federal Court.

"We are talking about the liberty of the individual. How can we close our eyes and fold our arms and let injustice walk by? The Federal Court judgment is staring at our face and if they (the Federal Court judges) find it to be suspicious, then why not the High Court judge find it to be out of the ordinary?"

Gopal said this in reference to the Kuala Lumpur High Court's dismissal of Sukma's appeal against his six-month sodomy conviction.

He said that the High Court judge should have ordered a cross-examination of the confession, adding that a failure to do so amounts to a "serious miscarriage of justice".

As the prosecuting officer tried to argue her case, Gopal told her that it was a "bad case" for them as the matter had already been decided by the Federal Court.

"The case is based on the same facts (put before the Federal Court) There is nothing you can do. You are not the author (of the judgment) ... so that's the way the cookie crumbles."