UPDATED KUALA LUMPUR: The High Court here today denied Anwar Ibrahim access to medical notes of three Hospital Kuala Lumpur (HKL) doctors, over-ruling arguments from the opposition leader's lawyers that the prosecution must produce the notes in his sodomy trial.
In making the decision Justice Mohd Zabidin Mohd Diah said that the defence lawyers had failed to give reasons as to why the court should allow Anwar access to the medical notes.
He said the right for an accused to be supplied with the necessary documents depended on the existing criminal procedure code (CPC), as well as the prosecution team.
“SP2 (Dr Razali Ibrahim) was called by the prosecution, what is important for the court is his oral testimony. Notes are only to be used to refresh SP2’s memory... it is not legally admissible, and SP2 has said he does need to refer to the notes to refresh his memory," the judge ruled.
Mohd Zabidin said the prosecution had the "sole prerogative" to allow Anwar access to the medical notes.
“The notes are only admissible, if the prosecution decides so. If prosecution does not decide, then the defence cannot demand for the notes,” said Mohd Zabidin.
In response, Anwar's lead counsel Karpal Singh argued that while the defence disagreed with the learned judge, the decision would be accepted for now.
The three HKL doctors’ handwritten medical examination notes were recorded during a three-hour examination of Anwar’s accuser Mohd Saiful Bukhary Azlan on June 28, 2008.
Karpal had earlier argued that it would be a serious misdirection of the High Court if in any criminal case evidence of an expert was unsupported by data.
“Evidence by expert would bear little weight if not supported by evidence. It is not a question of admissibility alone,” said Karpal.
The veteran lawyer said that the judge needed to base his decision on the provisions of Section 45 of the Evidence Act.
“The function of the expert is to give his honest opinion and place before the court all the data on which he bases his opinions, because it is the court which has to decide the case and accept of reject his opinions.
“In the absence of a clear and precise statement of his reasons, it is difficult for the court to appreciate the opinion of the expert. It is also not fair to the opposite side who is to cross-examine the expert on the correctness of his opinion.
“Any opinion given without stating the reasons is valueless and is of no use as evidence,” said Karpal.
Justice Mohd Zabidin had also ruled that the toxicology reports done on accuser Mohd Saiful would not be expunged and would be used for the purpose of the on-going trial.
Appeal under consideration
Meanwhile another lawyer appearing for Anwar, Sankara Nair told reporters outside court that the defence “was considering” on filing an appeal against Mohd Zabidin’s decision today, but would only confirm it later.
The trial has been postponed to 12.30pm today.
Karpal who is also a lawmaker had sought a postponement of the proceedings, saying that he had raised an important motion in Parliament and he needed to be present when Parliament debated the motion.
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.
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