Anwar cites 35 grounds for setting aside sodomy II conviction
Tarani Palani, Fz.com
The Court of Appeal, in finding Datuk Seri Anwar Ibrahim guilty of sodomy, had erred in its judgement, was bias and did not allow a fair trial for the PKR de-facto leader, according to the petition of appeal filed by his lawyer today.
The 35-point petition zeroed in on many other factors including the credibility of investigating officer (IO) Jude Pereira and that of Mohd Saiful Bukhari Azlan as a witness.
It also touched on the rejection of the testimonies of expert witnesses Dr David Lawrence Wells and Dr Brian McDonald and the credibility of the samples and the subsequent break in chain of evidence.
The petition was filed by counsel Zaleha Al-Hayat, an assistant of the late Karpal Singh at 2pm, an hour before the deadline for appeal ended.
In their written judgement, the three-person bench led by Justice Datuk Balia Yusof Wahi ruled that the appeal was not conducted in a hurry as the case itself has had several delays.
The bench noted that “delay is known defence” and taking a stab at Karpal, Anwar’s lead counsel, they ruled that a “counsel should not intentionally use procedural devices to delay proceedings without any legal basis.”
Anwar’s counsel today submitted in the petition that they have never tried to delay the government’s appeal process but were merely carrying out the legal rights that Anwar was entitled to.
They added that in making such statements in the written judgement, the judges were already “biased and prejudice,” subsequently denying Anwar a fair trial and should have recused themselves from the appeal hearing.
Below are some of the arguments made in the appeal:
– The Appeal Court failed to appreciate Pusrawi’s Dr Osman Abdul Hamid who was first to examine Saiful and concluded that Saiful suffered assault as a result of plastic was inserted into his anus. This, claimed Anwar’s counsel casts doubts on the credibility of Saiful’s testimony.
– The Appeal Court had misdirected themselves in not deciding that Saiful’s testimony was a fabrication especially in light of the fact that he had delayed in lodging a police report over the alleged assault.
– The Appeal Court did not rule that the trial judge, High Court judge Datuk Mohd Zabidin Mohd Diah, should have used “adverse inference” against the prosecution over their failure to call Osman to testify as he was a key witness to them.
– The bench had also misdirected themselves in rejecting the testimonies of “qualified and competent” Wells and McDonald, who were expert witnesses for the defence from Australia. In the written judgement, the bench brushed aside both these witnesses as “armchair experts”.
– The judges had seriously misdirected themselves in not deciding on the matter whether Wells and McDonald had cast reasonable doubt to the prosecution’s case particular to the integrity of some samples where there has been a “break in the chain of evidence”.
– The judges had misdirected themselves in accepting the testimonies of doctors who had examined Saiful and initially found “no conclusive evidence of penetration”. When they later said that there was “penetration” it was more of an “afterthought”.
– The judges had misdirected themselves in accepting local Chemists Dr Seah Lay Hong and Nor Aidora Saedon as they did not report the “alleles” in the samples which casts doubts on Saiful’s testimony. The judges should have decided that the history of the samples collected from Saiful and the samples examines did not match.
– The judges had misdirected themselves when they ruled that ‘Male Y’ DNA belonged to Anwar when they was doubts based on the testimonies of the local chemists.
– The judges had misdirected themselves in ruling that there was no degradation to the samples which would exists in the samples analysed by the chemists if it were indeed the samples collected as evidence from Saiful.
