Sometimes we need reminding

Melayu mudah lupa, says Tun Dr Mahathir Mohamad. Indeed, not only Melayu but all Malaysians mudah lupa (forget easily). Remember what happened to the Prosecution’s ‘star witness’ in the Sodomy 1 trial, Azizan Abu Bakar, a man who claimed he is a good Muslim (and that was why he was testifying against Anwar Ibrahim)? Well, the Prosecution’s ‘star witness’ in the Sodomy 2 trial, Saiful Bukhari Azlan, also claims to be a good Muslim (he walks around with a Quran in his hand).

THE CORRIDORS OF POWER

Raja Petra Kamarudin

A key witness in the trial of Malaysia’s sacked finance minister, Anwar Ibrahim, said Tuesday that the former Cabinet minister wasn’t involved in the death of the witness’ wife earlier this year. Anwar’s former driver, Azizan Abu Bakar, told the capital’s High Court that his pregnant wife actually died in a car accident in January.

Defense lawyer Gurbachan Singh said that a book had insinuated Anwar was involved in the murder of Azizan’s wife and that it was part of a plot to topple the former deputy prime minister, who was ousted in September. (Chicago Tribune, 8 December 1998)

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Asked on the recent arrest of Awwar’s former family driver Azizan Abu Bakar for khalwat (close proximity), Dr Mahathir said he believed somebody was watching Azizan closely. ”I think all will be done to discredit this witness,” he said of Azizan, a prosecution witness in the corruption trial of Anwar. (Utusan Malaysia, 20 September 1999)

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The man who accuses Malaysian ex-deputy premier Anwar Ibrahim of sodomising him was Tuesday jailed by an Islamic court for trying to have sex with a woman, the state news agency Bernama reported. The Islamic court in southern Malacca state jailed Azizan Abu Bakar, 39, for three months and fined him 7,000 ringgit after he pleaded guilty to being in close proximity with Norhayati Saad.

Azizan, the key witness in Anwar’s ongoing sodomy trial, also admitted attempting to have illicit sex with Norhayati, it added. Norhayati, a 22 year-old college student whom he married a few days after they were caught, was jailed for three months and fined a total of 6,300 ringgit, the report said.

The pair were caught together in a rented house in Malacca this month during a raid by Islamic religious officials and police officers. Islam bans sexual relations outside marriage.

Azizan, a former driver for Anwar’s wife, was a key witness in Anwar’s corruption trial. The former deputy leader was jailed for six years in April. Azizan is also the key witness in Anwar’s second trial, which started in June. Anwar and his Indonesian adopted brother are jointly accused of sodomising Azizan in early 1993. (AFP, 28 September 1999)

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Malaysia’s highest court overturned the sodomy conviction of former deputy prime minister Anwar Ibrahim on Thursday and freed him from prison—exactly six years after his removal from office triggered the country’s worst political crisis. A panel of the Federal Court ruled 2-1 to reverse the conviction against Anwar. (Associated Press, 2 September 2004)

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EXTRACTS OF THE GROUNDS OF JUDGMENT

In considering whether the defence was correctly called, this court, being an appellate court, not only will consider whether all the ingredients of the offences have been proved beyond reasonable doubt, but will also consider whether there have been misdirections or non-directions amounting to misdirections that have caused a substantive miscarriage of justice.

It must be borne in mind that the duty on the part of the prosecution at the close of the case for the prosecution is to prove beyond reasonable doubt, not only that the offence was committed one night at Tivoli Villa, but also that that “one night” was in the month of January until and including the month of March 1993.

Even if it is proved that the incident did happen but if it is not proved “when”, in law, that is not sufficient. This is because the period during which the offence is alleged to have been committed is an essential part of the charge. It becomes even more important when the defence, as in this case, is that of alibi. The appellants must know when (usually it means the day or date, but in this case the period from and including the month of January until and including the month of March 1993) they are alleged to have committed the offence to enable them to put up the defence of alibi.

In this respect we propose to take the bull by the horns. We shall consider, first, whether the prosecution had proved beyond reasonable doubt not only that the offence was committed, but whether it was committed one night during the three months’ period. That would call for the evaluation of Azizan’s evidence, and determining whether the second appellant’s confession is admissible.

There will be sub-issues that will have to be determined e.g. the impeachment proceeding against Azizan, whether Azizan is an accomplice and the issue of voluntariness of the second appellant’s confession.

After deciding on those issues, we shall consider whether, in view of our findings on them, the decision of the learned trial judge to call for defence can stand. If it cannot stand, the matter ends there. If it can still stand, then only we shall consider the other issues raised at the close of the case for the prosecution. Only if after considering all the issues raised in respect of the case for the prosecution we are satisfied that the learned trial judge had correctly called for the defence that we shall consider the defence. Otherwise we do not have to, as the appellants would also be entitled to an acquittal at the close of the case for the prosecution.

The only person who was present during the alleged incident, other than the appellants, was Azizan. The person who was alleged to have been sodomised was Azizan. So, he should be the only person, other than the appellants, who should know when he was sodomised.

In the circumstances, even though, for the reasons that we have given, we do not interfere with the finding of the trial judge in the impeachment proceeding, when we consider Azizan’s evidence as a whole, we are unable to agree with the “firm finding” of the learned trial judge and the Court of Appeal that Azizan “is a wholly reliable, credible and truthful witness”. Evidence does not support such a finding. He was most uncertain, in particular about the “date” of the offence, not just the day or the week or even the months but the year. We do not say he is an “outright liar” as Mr. Christopher Fernando was trying to convince us. But, considering the whole of his evidence, he is certainly not the kind of witness described by the learned trial judge.

Having made our findings on Azizan’s evidence, in particular regarding the “date” of the offence and on the issue whether he is an accomplice and the second appellant’s confession, we think we are now in a position to consider the prosecution’s case, whether, in view of the said findings, the prosecution had proved the case beyond reasonable doubt that justifies the calling for the defence and a conviction, if he chooses to remain silent. The burden of proof is the same as at the end of the case for the defence. If at the end of the case for the prosecution, the court has a reasonable doubt that any of the ingredients of the charge had been proved, the accused is entitled to an acquittal without his defence being called. This is again trite law.

So, we have to rely on Azizan’s evidence alone to prove the “date” of the offence.

The learned trial judge found Azizan a truthful, credible and reliable witness. He was even prepared to convict the appellants on Azizan’s evidence alone.

But, we find that Azizan’s evidence, especially on the “date” of the commission of the offence doubtful. He had given three different periods, the first two covering one month each and the last covering three months, in three different years (1992, 1993 and 1994), including one (“May 1992”) when the construction of Tivoli Villa was not even ready. Besides, he also contradicted himself on the issue whether he informed the police that he was sodomised in 1994. His demeanor even prompted the learned trial judge to record that he was “very evasive and appears to me not to answer simple question put to him” when he was cross-examined as to the manner the police finally obtained from him the “date” specified in the charges.

On such evidence, can the court accept that the “date” of the offence has been proved beyond reasonable doubt? In considering his evidence whether it proves the offence or not, any benefit of the doubt should be given to the appellants who are the accused.

In the circumstances, is it safe to convict the appellant on Azizan’s evidence alone? No doubt Azizan has been consistent in admitting the incident at Tivoli Villa despite the shame that would have been caused to him by such admission though made years later, but we are doubtful as to when it happened and his purported role as the innocent victim therein. As such we are really in no position to say that his story is unusually convincing nor can we find any reason to give it special weight that warrants a conviction to be recorded on his evidence alone. We do not think it is safe to convict on his evidence alone.

For all the above reasons, we are not prepared to uphold the conviction. Since the applicable law in this case requires that the prosecution must prove its case beyond reasonable doubt before the defence may be called, the burden being the same as is required to convict the appellants at the end of the case for the defence, we are of the view that the High Court has misdirected itself in calling for the appellants to enter their defence. They should have been acquitted at the end of the case for the prosecution.

We therefore allow the appeals of both appellants and set aside the convictions and sentences. (2 September 2004)