Appellate court smacks down Anwar's appeal

May 21, 1010:57am
The Court of Appeal today dismissed an application for a stay in proceedings made by Opposition Leader Anwar Ibrahim involving his on-going Sodomy II trial.Anwar had sought for the trial on May 31 to be put off, to facilitate the hearing of his appeal against the High Court ruling rejecting the defence's access to complainant Mohd Saiful Bukhari Azlan's witness statement which he gave to the police.This is due to Saiful's possible inconsistency in his police report and his testimony in court, where he claimed that the alleged sodomy was non-consensual.Anwar has been charged with consensual sexual intercourse against the order of nature.Following today's decision, the sodomy trial will resume as scheduled on May 31.Judge Sulong Matjeraie, who led a three-member panel, said the court found the ruling made by the High Court judge was valid."It does not dispose of the rights of the parties. It is not appropriate to grant a stay of proceedings pending disposal of appeal at the Court of Appeal.""If the appellant succeed in the appeal, the learned trial judge can recall the witness (Saiful) at any stage of the proceedings before judgment, and he can be further examined."

Sulong said that if necessary, the judge can institute impeachment proceeding against him.“Unfortunately, we cannot accede to the request in the motion to allow a stay and hence this application is dismissed.”
During submission, Solicitor-General II Mohd Yusof Zainal Abiden had submitted that the May 12 decision was made during the course of the trial.
Hence, the ruling was not appeleable under the Court of Judicature Act as it did not affect the rights of the parties.
Judge withdraws
Earlier, Karpal submitted that the stay should be allowed so as to facilitate the hearing of the appeal owing to the inconsistencies in Saiful's police report, testimony and the charge."Saiful has alleged in the report and his testimony that the incident was non-consensual. However, Anwar is charged with consensual. With due respects there is inconsistency to what the witness had claimed compared to the charge," he said.
The difference between consensual under Section 377b and non-consensual (Section 377C) of the Penal Code, is that under the latter, the sentence is a minimum jail term of five years.The maximum for both sections is 20 years and in addition, the offenders are liable to a whipping.
On May 12, Kuala Lumpur High Court Judge Justice Mohamad Zabidin Mohd Diah dismissed Karpal's application to get Saiful's witness statement following a contradiction with the complainant's testimony regarding the charge in which Anwar is facing.
Today's decision was unanimous - apart from Sulong, the other two judges were Ramly Ali and Zaharah Ibrahim.Justice Zaharah had replaced Justice Md Apandi Ali, who has volunteered to withdraw himself from hearing the application after Karpal complained of his past association with Umno.Md Apandi was once Kelantan Umno treasurer and former Kelantan Umno legal advisor.Karpal in reaction to the decision said he would apply for the appeal to be heard before May 31

Source from : http://www.malaysiakini.com/news/132352