Karpal: Any document used by the prosecution must be served to the defence...if it’s mandatory to be supplied before trial, it automatically must follow it can’t be produced during the course of the trial.
KUALA LUMPUR, Oct 29 — Datuk Seri Anwar Ibrahim will know on November 22 if he gets to see medical notes which his lawyers argue the prosecution needs to produce along with all evidence, even if it is detrimental to their case.
The High Court fixed that date to deliver the decision if the handwritten notes of three Hospital Kuala Lumpur (HKL) doctors will be made available to the defence team for the Opposition Leader in his sodomy trial.
Judge Datuk Mohd Zabidin Mohd Diah said so after an hour-long submission by lead defence lawyer Karpal Singh, who said that Mohd Zabidin should “take his time” to form a proper judgment with detailed explanation. The three HKL doctor’s handwritten medical examination notes were recorded during a three-hour examination of Saiful on June 28, 2008.
Earlier on during the trial, Karpal told the court that it needed to review an earlier decision made which disallowed Anwar’s team access to the medical notes.
The white-haired lawyer-cum-politician explained that the credibility of SP2-Dr Razali Ibrahim (one of the three doctors) hinged on the data and materials in the medical notes, and that the defence would be able to scrutinise his judgment on the examination of Sodomy II accuser Mohd Saiful Bukhari Azlan should they be furnished with the said notes.
“Even if the defence is not entitled to material, your lordship should demand it..your lordship would be abdicating your duty if your lordship does nothing about it,” said Karpal.
The veteran lawyer said that the defence team was acting on a “hunch” that they would be able to prove that the testimony of Dr Razali as well as the other doctors would be “contradicted” by their own handwritten medical notes.
“Even a kindergarten kid can tell a two-liner is not a detailed report. Hence, the court should provide us with the clinical notes for us to prove and possibly challenge the witness testimony,” claimed Karpal.
He then took a shot at Dr Razali, saying that he was “evasive” during the defence’s cross-examination and did not make any “sense” whatsoever.
“He refused to refer to notes to refresh his memory,” said Karpal, alleging that the witness did it to deny the defence a chance to look at the notes.
Besides that, Karpal also demanded that Saiful’s toxicology reports be rendered “inadmissible” because the prosecution did not supply it to the defence prior to or even during the trial.
“We say that the document cannot be used for any purpose whatsoever. It is inadmissible because it was not supplied to us prior or during the commencement of the trial.
“Any document used by the prosecution must be served to the defence...if it’s mandatory to be supplied before trial, it automatically must follow it can’t be produced during the course of the trial,” added Karpal.
In response, Solicitor-General II Datuk Mohd Yusof Zainal Abiden said that the defence could not demand for the medical notes based on a “hunch”alone, and must show material contradiction and evidence of discrepancy to justify their application.
“So far the defence has not shown any material contradiction or unexplained circumstances (to ask for the medical report) and (yet)challenged the witness’ testimony,” said Yusof.
Yusof also added that the chemist who prepared the toxicology report has yet to be called to testify, and the report has not been marked as an exhibit.
He maintained that the medical notes can only be given to the defence team should the prosecution’s witness decided to refer to it.
“It is wrong that the defence should be given all the latitude as this is the prosecution’s case. The witness (Dr Razali) did not apply to look at the notes,” said the lead prosecutor.
Anwar, the 62-year-old PKR de facto leader, is currently facing sodomy charges for the second time in his life.
The former deputy prime minister is charged with sodomising Saiful at Unit 11-5-1 of the Desa Damansara Condominium in Jalan Setiakasih, Bukit Damansara here between 3.01pm and 4.30pm on June 26, 2008.
Anwar has denied the charge, describing it as “evil, frivolous lies by those in power” when the charge was read out to him. He is charged under section 377B of the Penal Code and can be sentenced to a maximum of 20 years’ jail and whipping upon conviction. The trial is taking place 18 months after Anwar was charged in court in August 2008.
He was charged with sodomy and corruption in 1998 after he was sacked from the Cabinet and was later convicted and jailed for both offences. He was freed in September 2004 and later resurrected his political career by winning back his Permatang Pauh parliamentary seat in a by-election in 2008, which had been held in the interim by his wife.
He had two years ago led the opposition coalition, Pakatan Rakyat, to a historic sweep of five states and 82 parliamentary seats in Election 2008.
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