The first day of Datuk Seri Anwar Ibrahim's sodomy appeal today saw the defence punching holes in the credibility of the complainant, Mohd Saiful Azlan Bukhari, to make the case that the opposition leader should have been acquitted without his defence being called.Anwar's lead counsel Datuk Seri Gopal Sri Ram tried to persuade the Federal Court today of weaknesses and inconsistencies in Saiful's testimony, saying that the prosecution's entire case would collapse if the court agreed that he was a discredited witness.
Any other evidence, including medical findings, would then be rendered useless.
The High Court had accepted Saiful's evidence, and judge Datuk Mohamad Zabidin Mohd Diah had only acquitted Anwar at the close of the defence case on grounds that the court could not be "100% certain" on the integrity of samples taken from Saiful for DNA testing.
The lower court found that the exhibits could have been compromised before they were handed over to a chemist.
A three-man bench in the Court of Appeal led by Datuk Balia Yusof Wahi convicted Anwar on March 7 this year, setting aside the acquittal by the High Court in early 2012.
Today, Sri Ram, a retired Federal Court judge, said both the High Court and the Court of Appeal were wrong in accepting Saiful's evidence.
"The Court of Appeal did not reevaluate the evidence of Saiful. In any event, his evidence was not corroborated," Sri Ram told the five-man Federal Court bench led by Chief Justice Tun Arifin Zakaria.
Sri Ram, who was roped in at the eleventh hour to replace lawyer Datuk Sulaiman Abdullah, said the trial judge had erred in accepting Saiful's explanation on why it took him two days to make a police report after the alleged sodomy.
Saiful had said that he was afraid for his safety.
Instead, Sri Ram submitted today, Saiful had met Anwar the day after the alleged crime for a discussion and a tea session.
"Seen in a photograph, Saiful's demeanour hardly looks like a person who is under threat or someone forcefully sodomised 24 hours before," Sri Ram told the court.
He also questioned why Saiful did not complain as soon as possible after the incident, or why he did not seek help if indeed he was sexually assaulted.
Sri Ram said Saiful should have been treated as an accomplice as he was an active participant if such an alleged incident did take place, but the lower court did not make such findings.
"As an accomplice, Saiful cannot corroborate himself. The trial judge failed to ask the right questions and instead wrongly treated his evidence as corroboration," he added.
He said it was Saiful who had introduced a bottle of lubricant when giving testimony during the trial, but the sex aid had never been on the prosecution's initial list of exhibits.
"The absence of the lubricant from the list casts serious doubt on the credibility of Saiful and the entire investigation," he said.
Sri Ram said Saiful told the trial court that the sexual act "was vigorous and fast" and that he suffered pain.
"If that is the case, a lubricant could not have been used because the very object of it is to facilitate penetration without pain," he said.
He said medical evidence confirmed that there was no trauma or injury found on Saiful's anus.
Anwar is accused of committing the offence at a unit of the Desa Damansara condominium in Bukit Damansara, between 3.10pm and 4.30pm, on June 26, 2008.
Anwar, 67, who was sentenced to five years' jail by the Court of Appeal, is now on RM10,000 bail in one surety.
The prosecution has also filed a cross-appeal for a higher jail sentence against Anwar which is up to 20 years.
Anwar's political career as an elected representative will be over as he will be disqualified from office, should his conviction be sustained and he is fined more than RM2,000 or jailed more than a year, and he does not receive a free pardon.
The defence team ended their submissions today with lawyer N. Surendran telling the court of evidence that emerged during the trial which showed that the sodomy charge against Anwar was a political conspiracy.
The claim of conspiracy was made by Anwar in statements from the dock, which Surendran said the High Court and Court of Appeal did not give adequate weightage to.
The defence will resume tomorrow with their submission on the relevance and weight of an accused's statement from the dock. – October 28, 2014.
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