The defence in the Anwar Ibrahim sodomy trial has applied for the supply of all clinical notes, reports, materials, specimens and other notes put up by the three Hospital Kuala Lumpur doctors.It also wants the complete medical history of the alleged victim, Mohd Saiful Bukhari Azlan, compiled during his examination at the hospital.In addition, the lawyers want the prosecution to hand over the standard sexual assault equipment and kits used in the examination.
This follows the filing of the motion by the Opposition Leader this morning to obtain the documents.
The reason for the move is that Australian forensic expert Dr David Wells had complained that he would not be able to advise the defence team unless such documents were at hand.In Dr Wells's supporting affidavit on the motion, the Victoria Institute of Forensic Medicine professor said his capacity to advise the defence team had been severely compromised by the absence of the documents.
"For any meaningful advice to the applicant's solicitors, it is pertinent and essential to have sight of all documents and materials."The restrictive ruling on providing such documentary evidence was handed down by the Federal Court, when the defence, even before the trial proper commenced, applied for the prosecution to provide all the necessary documents.However, the Federal Court ruled that it was not necessary as the application could be made during the course of the trial proper.
Apex court's restrictive ruling
This restrictive ruling means that if Anwar's defence wants to apply for documents or any other evidence, it would have to submit an application, such as this notice of motion. The standard procedure in criminal cases is to provide all documentary evidence to the defence before the start of a trial.This follows provision of and amendments to Section 51 of the Criminal Procedure Code.Anwar's lawyer had on the outset applied for such documents to be handed over for a smooth running of the trial and to prevent any trial by ambush.
However, as in Anwar's case, the apex court ruling could have well set a dangerous precedent by limiting the provision of such documents and evidence before a trial.
Judge Mohd Zabidin Mohd Diah has fixed June 18 to hear submissions on the notice of motion.On July 16, last year Judge Mohd Zabidin allowed Anwar to obtain Mohd Saiful's medical report from HKL and the CCTV footage but rejected the application to obtain the original DNA specimens as they have been packeted and sealed.The Court of Appeal however overturned the decision on Nov 6, when it ruled the PKR de facto leader was not allowed to fish for information before his sodomy trial and the decision was upheld by the apex court.
Karpal: Wide implication
Anwar in his supporting affidavit to the motion stated he believed Dr Mohd Razali, the second prosecution witness, had given conflicting testimony compared to his joint clinical report which he produced with the other two doctors on July 13, 2008.He claimed that Dr Siew was privy to a report dated July 7, 2008, which was not produced in court and not given to the defence.Karpal (left), commenting on the latest postponement, said it had to be made as Dr Wells was not able to assist much with the limited documents at his disposal.“Dr Wells said this had not happened in other Commonwealth countries where materials and evidence are given before the trial commences.“That is the purpose why we had an amendment to Section 51 and Section 51A of the CPC to facilitate the smooth running of the trial.
“However, the apex court ruling in not allowing the documents had resulted in the defence being stumped in getting the documents. This only happens in high profile cases like Anwar's. It does not happen in other criminal cases where such documents are provided during pre-trial.”
Karpal also pointed out that he has tried to ask for the documents from Solicitor-General II Mohd Yusod Zainal Abiden before filing the application, but he (Yusof) would not budge.As a result, the senior lawyer and Bukit Gelugor MP said he had to file the application.Karpal said we had applied for the evidence and documentation at the outset but the apex court decision has produced severe repercussions on the limits in providing such documents.“This is not the purpose of the amendment of Section 51, which is directed towards ensuring the smooth running of the trial. The apex court ruling on Anwar provides a dangerous precedent.”
Source : http://www.malaysiakini.com/news/133600
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