This morning, Kuala Lumpur High Court judge Mohd Zabidin Mohd Diah ruled that only a full trial could determine if there was actual penetration as charged by the prosecution.Anwar's defence team had argued that the sodomy charge could not stand as medical reports showed no penetration on the victim.
"While the medical reports may 'state no conclusive clinical findings to suggest penetration of the anus/rectum', this court however cannot cancel the charge," said Mohd Zabidin, before a packed court room, which included former MCA vice-president Chua Jui Meng, who recently joined PKR and PKR president Dr Wan Azizah Wan Ismail.
"Witnesses have to be called in to testify to attest to the matter. The matter has to go through full trial to also consider the forensic evidence to determine the case," he added.
Zabidin said this evidence and report would be useful to the defence team in creating doubts over the testimony of the witnesess on the incidence of penetration.
But the judge's earlier decision for the evidence to be handed over to Anwar had been overturned by the appellate court and the opposition leader has since made his final appeal to the Federal Court.
Anwar had also previously failed in his attempt to remove the prosecution team from the case.
Allegations against the AG
Anwar, 62, was charged with allegedly sodomising former aide Mohd Saiful Bukhari Azlan, 24, at a condominium in Bukit Damansara on June 26, last year.
He had claimed trial on March 10, at the Kuala Lumpur High Court against this charge. He was initially charged with the offence at the Sessions Court, before the case was transferred to the High Court.
Justice Zabidin, in his 14-page judgment also touched on Anwar's defence team's submission that the prosecution had acted 'mala fide' in preferring the charge. He said the allegation is mainly against attorney-general Abdul Gani Patail.
"They argued that the prosecutors in this present case had realised the role the AG had played then in 1998. They listed the role played by Abdul Gani in twisting and fabricating evidence against Anwar in 1998.
"Despite this, there is no evidence to suggest that the same scenario is happening in this present case. Just showing Abdul Gani's (left) role in 1998 is insufficient. That the present batch of prosecutors may have knowledge of this does not mean they (prosecutors) would be biased.
"It is also insufficient for the court on the balance of probabilities at this level, to decide that the charge faced by the accused is a result of mala fide," he said.
Thus, Zabidin said Anwar's application to set aside or quash the charge under Section 377B of the Penal Code is dismissed.
Anwar's lead counsel Karpal Singh indicated to Zabidin that they will appeal today's decision. Lawyer Sankara Nair told reporters later he would file the notice of appeal tomorrow.
Anwar unhappy with trial dates
Meanwhile, Anwar said he was disappointmented with the manner the High Court judge fixed the trial dates without considering the fact that an appeal is pending at the Federal Court on a related matter.
Anwar said that he was waiting for the Federal Court to hear his appeal to obtain further documents and evidence from the prosecution.
"The judge has decided to fix hearing dates in total disregard to our appeal on the matter. This is a first - there is 'no need to wait for the Federal Court, let us proceed with the hearing'.
"Previously he had decided for us in gaining evidence from the prosecution and now he has decided against us by fixing the trial date.
"The very least is for him to respect his own previous decision that allowed us access to the documents and give time for the Federal Court to hear and decide on the matter," he said.
Anwar also said while the court had verifed the medical reports from four specialists who said there was no penetration, this is the first case in the world where prosecution has been allowed to go on despite the reports stating there was no penetration.
He said today's decision was also perplexing in that while the judge seems to have agreed on the role played by Abdul Gani in fabricating evidence, he decided that the present batch of prosecutors would not be influenced by bias.
"However, we have evidence that solicitor-general 2 Mohd Yusof Zainal Abiden was involved in the Sukma Darmawan (right) case, where evidence was also fabricated and in the end Sukma was cleared.
"I'm worried that this prosecution, led by Umno, is withholding vital evidence directed to hurt
Describing today's judgment as disturbing, Anwar said the medical evidence was conclusive and the judge seemed to have acknowledged that but he had hinted there maybe some other evidence to be adduced.
"This is the first case in the history of modern times that you prefer a charge of sexual abuse ignoring medical evidence that conclusively states there was no tear or penetration.
"I think we are in for a tough battle. We will fight them because we have compelling evidence and facts to support us. But the manner the prosecutors and court want to proceed with the case seems a bit worrying to me and my team of lawyers," he said.
The defence earnestly asked justice Zabidin to set mention dates instead of trial dates during proceedings, because of pending cases at the Federal Court. However the judge refused and fixed the hearing next month.
Sankara said his team would be studying on whether to apply for a stay of the hearing pending the appeal of related cases.
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