Section 377C more serious than 377B, says AG

Opposition leader Anwar Ibrahim, who was convicted and sentenced to five years’ jail for sodomising his former aide was charged under Section 377B of the Penal Code, a less serious offence than section 377C.

Attorney-general Abdul Gani Patail said the Penal Code provided two instances where a person could be charged with sodomy; Section 377B where “with or without consent” is not an ingredient, and Section 377C where the act of sodomy is committed without consent or against the will of the other person.

“The other distinguishing feature is the punishment where the law imposes a minimum sentence of five years under Section 377C,” he said in a statement in Kuala Lumpur last night.

Section 377B has no minimum term of imprisonment, he said.

He said the public prosecutor opted to charge Anwar under section 377B and that was purely based on the prosecutional discretion sanctioned by Article 145(3) of the federal constitution.

“The public prosecutor who is exercising such discretion will have regard to the facts and circumstances of each case and certainly not at his whims and fancies,” added Abdul Gani.

He said as such, it was inappropriate for Bar Council president Christopher Leong to say that the opposition leader should have more properly been charged under Section 377C.    

“In point of fact, it appears that the president of the Malaysian Bar instead, is suggesting that he (Anwar) should be charged under Section 377C which is a more serious offence and which would have exposed Anwar Ibrahim to a minimum sentence of five years and a maximum of 20,” he said.

On Tuesday, the Federal Court upheld the Court of Appeal judgment to sentence Anwar to five years’ jail for sodomising Mohd Saiful Bukhari Azlan at a condominium in Bukit Damansara in 2008.

The attorney-general in the statement also clarified that the perception of certain parties that Anwar had been charged and convicted for a ‘victimless offence’ was clearly insupportable.

“Mohd Saiful Bukhari Azlan was the person who suffered. He provided sworn testimony to a court of law of the acts he suffered which are matter of judicial record,” he said.

On why Mohd Saiful was not charged with abetment, Abdul Gani explained that the case was akin to that of corruption, where in almost all corruption cases, the receiver was charged while the giver was used as a witness against him.

He also denied that the provision 377B of the Penal Code, under which Anwar was charged, was a rarely used provision.

He said based on the Attorney-General’s chambers and police statistics, a total of 171 cases were charged under the provision from 2010 to 2014. Last year, 34 of the cases were charged.

Meanwhile, a total of 489 cases were charged under Section 337C in the past five years.

Abdul Gani said Anwar was also accorded the right to a fair trial and afforded every opportunity to exercise his constitutional rights before the court of law throughout the six-and-a-half-year-long proceedings.



Source- Bernama

Anwar convicted but judiciary still on trial, Singapore paper tells Putrajaya

KUALA LUMPUR, Feb 11 — Putrajaya sent a message hailing the independence of the judiciary just moments after Datuk Seri Anwar Ibrahim was convicted yesterday but the gesture belied Malaysians’ mistrust in the justice institution, the Singapore Business Time said today.

In an editorial piece on the Federal Court’s decision to send Anwar to jail over what the opposition leader vehemently insists was a political ploy, the BT said public confidence in the judiciary has slipped to the point that few were shocked with yesterday’s outcome.

“Mr Anwar's defence argument that the trumped-up charges were part of a political conspiracy to topple him was dismissed by the court, but the perception may still persist among pockets of Malaysians.

“It may be for that reason that the top court's decision did not surprise many the same way it did back in March 2012, when the High Court cleared Mr Anwar of the sodomy charge involving a male aide, citing lack of evidence,” the paper wrote today.

Minutes after the Chief Justice Tun Arifin Zakaria announced that Anwar’s appeal was rejected and while the court was still in session, the Prime Minister’s Office issued a statement to affirm the “independence” of the judiciary and to distance the government from the accuser, former Anwar aide Mohd Saiful Bukhari Azlan.

Sodomy II trial judge: Man of many moods

INTERVIEW Justice Mohamad Zabidin Mohd Diah was described as initially open when conducting the Anwar Ibrahim Sodomy II trial, but as soon as his ruling on ordering the prosecution to provide the witness list and other key documents was overturned by the upper courts, he appeared to have changed his stand.

Queen's Counsel Mark Trowell, the author of ‘The Trial of Anwar Ibrahim Sodomy II', said he found Zabidin to be fair after giving the ruling in favour of the defence, unlike (former Federal Court judge) Augustine Paul, who presided on Anwar's abuse of power trial.

Trowell, who observed both trials on behalf of the Inter-Parliamentary Union (IPU) and LawAsia, has worked extensively both as defence counsel and prosecutor in Australia.

Zabidin made the ruling in favour of Opposition Leader Anwar at the pre-trial stage, resulting in the prosecution appealing the decision. The Court of Appeal subsequently overturned the decision and this was upheld by the Federal Court.

Following Zabidin's ruling, Anwar's lawyers were allowed to inspect the CCTV recordings made at the Desa Damansara condominium, the witness statements of complainant Mohd Saiful Bukhari Azlan, Hospital Pusrawi's Dr Osman Abdul Hamid and other witnesses, along with the witness list and medical reports.

'Saiful not like a normal sexual abuse victim'

For Mark Trowell, an experienced Australian criminal lawyer, alleged sodomy victim Mohd Saiful Bukhari Azlan does not strike him as a "normal" sexual assault victim.

The author of ‘The trial of Anwar Ibrahim, Sodomy II', which has been on the bookshelves since last week, said it appeared Saiful loved to hog the media limelight and he did not mind it - not at all like any other sexual assault victim.

Trowell, who is also an observer for the Inter-Parliamentary Union (IPU) and LawAsia in courts around the world, said it was also not normal for a sexual assault victim not to have a bath for two days.

"I am made to understand that a Muslim, after sexual intercourse, is required to have the ritual bath before he or she can perform prayers. So, the question remains as to how Saiful did his prayers.

"In my 25 years of experience in criminal law, I have never seen someone not bathing for two days to preserve forensic evidence.

"On the contrary, I feel the victim would want to quickly have a shower to remove the perpetrator's body smell.

Sodomy II written judgment: Unsafe to convict based solely on Saiful’s testimony

KUALA LUMPUR, July 3 — Mohd Saiful Bukhari Azlan’s allegation that he was sodomised by Datuk Seri Anwar Ibrahim was uncorroborated and a conviction based solely on the accuser’s testimony would have been unsafe, the Kuala Lumpur High Court concluded in its written judgment of the opposition leader’s Sodomy II trial that was released today.

High Court judge Mohamad Zabidin Mohd Diah said in his 80-page written judgment that it could not be 100 per cent certain about the integrity of DNA samples examined by government chemist Dr Seah Lay Hong. He ruled that it is not safe to rely on the results of Dr Seah’s examination of the DNA evidence.
“There was no evidence to corroborate the evidence of Saiful on factum of penetration,” he said.
“The court is always reluctant to convict an accused person based solely on the uncorroborated evidence of the complainant. Therefore the accused is acquitted and discharged of the charge,” he ruled.
On January 9, the High Court acquitted Anwar of a charge of sodomising his former male aide Mohd Saiful .

Speaking in court then, the judge had ruled that the prosecution had not done enough to prove Anwar had committed sodomy against Saiful. Anwar, 64, had been similarly indicted of sodomy over a decade ago and was found guilty. He spent six years in jail before being exonerated.The High Court’s decision this time had given a boost to Anwar’s Pakatan Rakyat (PR) pact’s plans to take over Putrajaya.


The prosecution says it plans to appeal the decision and has 10 days from today to do so.
In the written judgment released today, the judge addressed the question of the integrity of the DNA samples. The judge pointed out that the DNA samples collected had been placed in individual plastic receptacles, labelled and sealed at Kuala Lumpur Hospital, but were subsequently open by the police investigating officer DSP Jude Pereira.


“According to him (Pereira), it was done for the purpose of individually re-labelling the receptacles. In my view, this was not necessary since the receptacles were already packed and labelled by the experts who collected them,” he said.


Source : http://www.themalaysianinsider.com/malaysia/article/sodomy-ii-written-judgment-unsafe-to-convict-based-solely-on-saifuls-testimony/

Doc: Sodomy act 'unlikely' for Anwar in his condition

Dutch orthopaedic surgeon Dr Thomas Hoogland continued his testimony today and was cross-examined by the prosecution in the Sodomy II trial.Yesterday he told the court the extent of Opposition Leader Anwar Ibrahim's injury as a result of a police assault he suffered after being sacked as deputy prime minister in 1998.Anwar had surgery on the fourth and fifth lumbar of his lower back in 2004, which had subsequently restrict his mobility and movement.

Hoogland also testified that following inspections done last month, he believes Anwar cannot undertake   any vigorous activity.

Yesterday also saw Kuala Lumpur High Court judge Mohamad Zabidin Mohd Diah striking out the subpoenas served on Prime Minister Najib Razak and his wife, Rosmah Mansor, to testify as witnesses.Lead defence counsel Karpal Singh has indicated they will appeal yesterday's ruling, which they will file later today.

The hearing may not continue in the afternoon as Najib, who is also finance minister, will be tabling the 2012 Budget.

Dutch doc: Anwar still suffers from back pain

Prime Minister Najib Abdul Razak and Rosmah Mansor need not testify in the sodomy trial after the Kuala Lumpur High Court today allowed their applications to set aside the subpoenas issued for them to take the witness stand.

Najib and Rosmah's lawyers had claimed that they were not relevant and material witnesses for Anwar's defence.

Their applications were supported by the prosecution.

Lead defence counsel Karpal Singh, however, had argued that Najib could tell the complainant Mohd Saiful Bukhari Azlan's state of mind when they met - two days before the alleged sodomy incident at the then deputy premier's Taman Duta home in June 2008.

After justice Mohamad Zabidin Mohd Diah delivered his decision, the court proceeded with its hearing of the Anwar Ibrahim's trial.

Dutch spine specialist Dr Thomas Hoogland who had performed surgery on Anwar's back in 2004 was called to take the witness stand.

Mystery witness is Saiful's former collegemate

The sodomy II trial continues today with Chemistry Department director-general Lim Kong Boon expected to take the witness stand.Lim is likely to clarify the status of the department's forensic lab certification under ISO 17025, which is evaluated by the American Society of Crime Laboratory Directors Laboratory Accreditation Board, or ASCLD.

The status is in dispute following revelations that the forensic lab has not obtained the 17025 certification.

However, the focus today will certainly be on the identity of the mystery witness for Anwar Ibrahim's defence.The individual is not on the prosecution's list of 71 witnesses and is not an alibi witness.Lawyers for Anwar have been tightlipped over the identity of the witness for fear that undue pressure could be put on the person.

It is learnt that this was a tit-for-tat move on the part of the defence in response to the prosecution's failure to provide a list of their witnesses earlier in the trial.

However, the defence team has revealed that spine specialist Dr Thomas Hoogland, who operated on Anwar's back, will testify on Thursday.

Expert: Credibility of the DNA sample at stake

The court may decide today on when to hear the joint application by Prime Minister Najib Abdul Razak and his wife, Rosmah Mansor, to set aside the subpoenas served on them to testify at the sodomy trial.Four lawyers - former DPP Salehuddin Saidin, senior criminal lawyers Hisyam Teh Poh Teik, M Athimulan and Ghazi Ishak - filed the application yesterday.

Opposition Leader Anwar Ibrahim, who is accused of the charge, has described the latest development as “uncool”, taking a swipe at the PM's recent bid for an image makeover to endear himself with the Malaysian youths.

Anwar is also expected to file an affidavit in reply to Najib and Rosmah's application. In addition to the duo, two others - former IGP Musa Hassan and former Malacca police chief Mohd Rodwan Mohd Yusof - are also being summoned as defence witnesses.

DNA expert insists lab not ISO17025-certified

The prosecution in the Anwar Ibrahim sodomy trial will continue to cross-examine foreign DNA expert Dr Brian McDonald for the second day when hearing continues today.

Yesterday, the prosecution questioned McDonald's credibility when it showed the court that some of his testimonies in other cases came under disrepute.

McDonald also conceded to making a mistake when he said during the examination-in-chief that it was wrong for chemist Dr Seah Lay Hong to have the acid phosphatase test on the cotton swabs retrieved from the victim.He agreed with solicitor-general II Mohd Yusof Zainal Abiden over a finding in a journal that sperm can last in the rectum for 113 hours.

However, McDonald disagreed with the prosecution when shown a Thai hospital finding that semen can last for 19 days in a female's private part.

The prosecution is expected to finish its cross-examination of McDonald today.

Prosecution: Can Saiful's rectum be the crime scene?

The Anwar Ibrahim sodomy trial will today see defence witness Dr Brian McDonald cross-examined by the prosecution, which is assisted by chemist Dr Seah Lay Hong.

Seah and another chemist, Nor Aidora Saedon, received flak following McDonald's contention yesterday that they did not fulfill or follow established standards and standards in examining DNA samples submitted to them by the police.

McDonald (right) had also questioned their methods in arriving at their conclusions, and queried their failure to include certain procedures - such as ensuring the DNA samples were clean and without contamination.

Among the unanswered questions, he noted, were the lack of evidence to indicate where the actual DNA samples came from, as well as how samples retrieved from Anwar's accuser - Mohd Saiful Bukhari Azlan - could be in “pristine condition” when they were submitted more than 100 hours after the alleged sodomy act.

Foreign DNA expert picks apart chemists' findings

Defence lawyer Ram Karpal resumed his examination-in-chief of Australian DNA specialist Dr Brian McDonald in Anwar Ibrahim's sodomy trial today.

The hearing continues today after the Hari Raya break with Anwar potentially facing another scandal when an Umno-friendly blogger threatened to release allegedly another sex video dated Jan 12 this year.

Blogger Papa Gomo has also revealed CCTV footage allegedly taken minutes before the much publicised Feb 22 sex video, where the infamous Datuk T trio were charged and fined.

Lead defence counsel Karpal Singh had in the past sought the court to take action against individuals who are seemed bent on interfering the administration of justice in this controversial trial.

Expert: Saiful's sperm in own anus cannot be ruled out

Australian DNA expert Dr Brian McDonald remained on the witness stand for the second consecutive day in the Anwar Ibrahim sodomy trial.McDonald, who is the fourth defence witness, testified yesterday that chemist Dr Seah Lay Hong's testing was not according to international standards following errors in labelling and not swiping the sample on a receptacle.

This follows the discovery that two out of 10 samples having faulty labels when it was stated on the container that they were taken on June 26, 2008. This was despite that the medical examination was done on the alleged victim, Mohd Saiful Bukhari Azlan, on June 28.

McDonald also testified such incompetence behaviour could have resulted in the chemist being “sacked” from his or her job.It was also revealed that the Chemistry Department's forensic division has yet to receive the international accreditation required when it was placed on probation in 2005. The probation had been extended twice since 2010, and it will end this October.

Foreign expert: Faulty DNA samples unacceptable

After Australian forensic pathologist Dr David Wells testified yesterday, another foreign expert, DNA specialist Dr Brian McDonald, takes the witness stand in the Sodomy II trial involving Oppostion Leader Anwar Ibrahim.McDonald, who is also from Australia, will first answer questions from defence lawyer Ram Karpal and this is likely to take most of the morning.

It will be followed with cross-examination by solicitor-general II Mohd Yusof Zainal Abiden, who is lead prosecutor.Wells was quizzed by Yusof for most parts of yesterday. In his testimony, Wells said that a 30-year-old study stating that sperm retrieved from the rectum can last up to 65 hours should be treated with caution.

Sodomy II: Original medical report nowhere to be found

Opposition Leader Anwar Ibrahim's defence enters its third day today with the prosecution cross-examining forensic pathologist Dr David Wells.The Australian expert, who is the third defence witness, has yesterday told the court that the alleged semen sample retrieved from sodomy complainant Mohd Saiful Bukhari Azlan could not have revealed the desired results.

This was because the sample was taken more than two days after the alleged incident. The alleged sodomy incident happened in the afternoon of June 26, 2008, and the sample was retrieved from Saiful between 9pm and midnight on June 28, 2008.

In addition, he said that the sample was not properly stored in the police station and it was given to chemist for testing two days later.Dr Wells , who is an expert in the field of sexual assault cases, also testified yesterday that when retrieving samples from alleged victims, he would be working alone and only assisted by nurses. This, he said, was to prevent contamination.

Expert: 43 hour old DNA sample 'won't be pretty'

Anwar Ibrahim's defence goes into the second day today with the expected testimony from Pusrawi hospital doctor Dr Mohamed Osman Abdul Hamid and two foreign experts.Mohamed Osman was the first doctor to examine Anwar's accuser, former aide Mohd Saiful Bukhari Azlan.

The two Australian experts - forensic pathologist Dr David Wells and DNA specialist Dr Brian McDonald - have been with Anwar's defence team since they heard testimony from the police, Hospital Kuala Lumpur doctors and chemists.

It would be interesting to see whether the prosecution will apply to cross-examine Anwar, who had yesterday given an unsworn statement from the dock to the surprise of many.

Solicitor-general II Mohd Yusof Zainal Abiden had told the court that he “would love to cross-examine Anwar”. This was despite that testimony or statement from the dock by an accused in principle cannot be cross-examined.

'I never had any sexual relations with Saiful'

Opposition Leader Anwar Ibrahim is to give his statement from the dock on the first day of his defence in the Sodomy II trial, which means that he will not be cross-examined by the prosecution.Entering its third year of hearing, Anwar's defence comes during the final stretch of the holy month of Ramadan and a week before Hari Raya Aidilfitri.

Aside from Anwar, his defence team is expected to call seven other witnesses from the 24 already interviewed. Only former maid Fitria Dipan, who worked for Desa Damansara condominium owner Hasanuddin Abd Hamid, is left to be interviewed.It remains to be seen whether the seven include Prime Minister Najib Abdul Razak, his wife Rosmah Mansor and former police chief Musa Hassan.

There is still an issue of sodomy complainant Mohd Saiful Bukhari Azlan appearing on TV3 twice last week which the defence finds objectionable.There is also the matter of subpoenaing the seven witness, which may have to be dealt today.About 30 people have been queuing outside the courtroom on the fifth floor of the High Court at the Jalan Duta Court Complex as early as 6am to get into the public gallery.

The hearing is expected to begin at 9am.

Ex-cop tells all: DNA evidence in Anwar’s 1998 case was faked

A former investigating officer in the 1998 “black-eye incident” today claimed he has information on the fabrication of DNA evidence against Datuk Seri Anwar Ibrahim in the latter's first sodomy trial. Former Kuala Lumpur CID chief Datuk Mat Zain Ibrahim also appealed to the Solicitor-General Datuk Idrus Harun to end the alleged cover-up of the case, which took place after the sacking of Anwar as deputy prime minister more than 12 years ago.

Semen find a Bollywood drama, says Anwar

Opposition leader Anwar Ibrahim, facing his second sodomy trial in 12 years, pointed out that today's testimony by a Hospital Kuala Lumpur (HKL) doctor that a semen sample was found in his accuser's anus could be challenged.He also painted a picture that the DNA specimen recovered or whatever semen sample found could have been planted.Anwar revealed that Australian forensic specialist Dr David Wells had described the procedures employed by HKL to be irregular."The doctor did say on assumption of the discovery of semen [...] all this is based on assumption on this and that. He only said 'this is our conclusive finding' but on the assumption of the presence of the semen sample," said Anwar (right).

Sodomy II: HKL doc testifies, semen found on swabs

Anwar claims he was meeting with people in the unit next to the one where Saiful had testified that the opposition leader propositioned him for sex after he delivered a document.