Sodomy II Begins: Listen Up World, Malaysia’s Rule of Law on trial
The Malaysian Insider
UPDATE 1 (July 16, 2009)
The Comical Trial of 2009
It was the first lively exchange between the defence and prosecution in the lead-up to Datuk Seri Anwar Ibrahim’s Sodomy II trial.
While wrapping up the defence team’s bid to get more proof from the prosecution, Anwar’s lawyer Sivarasa Rasiah accused the prosecution of actively trying to bury important records that could prove the opposition leader’s innocence, just as it did in the first sodomy trial 10 years ago.
“The danger of suppression of evidence happened in Sukma’s case and is happening in this case,” Sivarasa charged today, referring to medical reports on Anwar’s Indonesian adopted brother Sukma Darmawan Sasmitaat Madja, which came to light years later and helped clear his name of the crime.
“This application is to prevent that from happening. We can see the resistance,” the Subang MP added, provoking an outcry from the head of prosecution Datuk Yusof Zainal Abiden.
The Solicitor-General II denied Sivarasa’s claim and insisted that if the view were true, the defense would not have received anything from the prosecution.“In this case, we have supplied documents so suppression of evidence does not exist,” he said huffily, prompting Sivarasa to stand up quickly to raise a point.
But the High Court judge must have caught a certain look on Sivarasa’s face, because he immediately stepped in and cut off both parties.
“Point taken. You’re just saying there should be no suppression of evidence, OK?” said Justice Datuk Mohamad Zabidin Mohd Diah.
The federal lawmaker, however, was dissatisfied with the judge’s action and later told reporters that the exchange between him and Yusof “affirms our contention that there is an active political conspiracy” targeted at the PKR leader.
Zabidin will give his decision at 2.30pm today whether Anwar can obtain extra evidence from the prosecutors in his Sodomy II trial.
The judge adjourned hearing at 10am.
Anwar’s other lawyers Edmund Bon and Amer Hamzah Arshad had kicked off today’s hearing with their rebuttal against Yusof’s reading of the law yesterday July 15), claiming the court has no power to force it to give extra proof.
Taking it in turns, the tag team duo rejected Yusof’s view. Bon insisted the court has a role to play in making sure the accused person’s right to defend himself fully is protected, especially when the accused is challenging the prosecution in court for withholding relevant nformation.
He said the court must not be confused on the type of evidence that can be admitted in the trial, stressing that at the pre-trial stage, the accused has rights to all material that may help his case, even if the prosecution decides not to use it later on.
“We’re not saying these documents should be given more weight now,” Amer added in his turn in arguing to be given the case notes from the doctors and the chemist outlining the way they arrived at their conclusion in the scientific reports.
“A person charged with a criminal offence should be given a fair trial. If he can’t be tried fairly, then he should not be tried at all,” he said forcefully.
The hearing resumed this morning without Anwar, who arrived five minutes late with his wife Datuk Seri Wan Azizah Ismail and family and supporters.
There were few supporters outside the courtroom, leaving the police to relax its tight security cordon at the court complex in Jalan Duta.
At the outset of the trial this morning, Sivarasa asked the judge to order investigating officer Jude Pereira out of the courtroom as he is a key prosecution witness. The judge agreed and ordered Pereira out of the room.
Anwar, 61, who stands accused of sodomising a former male aide, Mohd Saiful Bukhari Azlan, in June 2008, has repeatedly claimed he is being denied a fair trial.
The former deputy prime minister, who made his political comeback last year, has also applied to strike out the sodomy charges against him. He is also trying to disqualify the present seven-member prosecution team headed by Yusof . He claims they are a part of a “malicious” prosecution handpicked by Attorney-General Tan Sri Abdul Gani Patail, whom he accuses of trying to put an end to his political career.
If convicted, Anwar faces up to 20 years in prison, effectively snuffing his dreams of taking over the federal government.
No case! Just like 1998. Hard to believe, somebody twisted enough to use an archaic “unnatural sex” law against his political rival is still walking around a free man bearing the honorific “Tun.” It’s clear to everybody with even half a brain cell working that Najib is using the same dirty trick aganst Anwar… and yet there are so-called humans who continue shaking this creep’s hand and scurrying about doing his ignoble bidding… and then they go off on an umrah to Mecca and return wearing a white skull cap… and tell themselves they’re good Muslims
Antares - July 16, 2009 at 5:03 pm
This discussion on the issue of a possible suppression of evidence by the prosecution should now move beyond merely asking prosecution to disclose the evidence it has and is not disclosing.
Court rule provides that failure to disclose evidence will lead to sanctions by the court. What are those sanctions? Depending on the different jurisdictions, basically it comes down to these:
1. Court may order the party to permit discovery or inspection as specified by the court;
2. Grant a continuance
3. Prohibit that party from introducing the undisclosed evidence; or
4. Enter any other order that is just under the circumstances.
Note that the court has inherent authority to order discovery.
The three most commonly imposed remedies are ordering immediate disclosure, granting a continuance, and excluding evidence.
To answer the question which would be the appropriate remedy, let’s take a step back and ask, “What is the function of discovery?” The function of discovery is to permit the defense to marshal its evidence so as to challenge the possible falsity of the prosecution’s evidence.
What then is the trial judge to do upon reasonable suspicion that the prosecution is holding back exculpatory evidence from the defense – or upon proof that the prosecution has held back exculpatory evidence?
Would it be necessary for the defense to prove prejudice to the defense case? If so what level of prejudice?
The likely prejudice that ordinarily flows is from the defense lacking sufficient time to digest and prepare either to meet or to use the previously undisclosed evidence. Continuance would allow time to assess the prejudice caused.
Generally, the remedy preferred is to order immediate compliance and offer the defense a continuance. There are occasions when that would not be sufficient enough to eliminate potential prejudice. A continuance may be a less than complete remedy. A mistrial may have to be declared or the use of the ‘new’ evidence precluded.
In some jurisdictions it is ground for appellate reversal of the trial judge’s decision. This is to deter violations of court rules as regards discovery.
What will this judge do??
Mr Bean - July 16, 2009 at 8:04 pm
So there you go!
This Judge ordered discovery and granted a continuance. These are remedies to be expected from the trial judge.
Mr Bean - July 17, 2009 at 7:10 am
But why is Anwar giving a press conference and issuing statements instead of his lawyer. His lawyer should have advised him against making public statements. His statements could later be used against him. His statements may be self serving but he may make a mistake like bad choice of words etc. or may make inconsistent statements.
He should leave it to his lawyer or lawyers to make their statements.
Mr Bean - July 17, 2009 at 7:17 am
The present court case is just a showtime. Judgement is already written. Verdict – GUILTY and will be jailed appropriately. This is the most disgusting trial that is conducted. It looks loke murder is an accepted norm in Malaysian. Malaysia boleh. Cheers.
k c low - July 17, 2009 at 8:48 pm
The present court case is just a showtime. Judgement is already written. Verdict – GUILTY and will be jailed appropriately. This is the most disgusting trial that is conducted. It looks like murder is an accepted norm in Malaysia. Malaysia boleh. Cheers.
k c low - July 17, 2009 at 8:50 pm