From K-Y jelly to carpet stains to 'conspiracy'

 

LIVE REPORTS

[PHOTO GALLERY]

6.05pm: Anwar leaves the courtroom and spends some time greeting his supporters before departing with his wife Dr Wan Azizah Wan Ismail and daughter Nurul Izzah Anwar.

One supporter, Gan Siew Kin, takes the opportunity to give Anwar several books on the Romance of the Three Kindoms and repeatedly urges him to read it.

Speaking to Malaysiakini later, the 70-year-old woman said she had waited since 8am to talk to Anwar.

She said her hope is that Anwar would draw inspiration from the book and surround himself with people who are as righteous and wise as the book’s protagonists, especially the foresight of the noted military strategist Zhuge Liang.

“In all my years, I have never seen someone persecuted so relentlessly. It just never ends,” she said.

The Romance of the Three Kingdoms is a novel in Chinese classical literature based loosely on the events of the Three Kingdoms Period in Chinese history.

The hearing resumes tomorrow at 9.30am, but supporters are planning to gather at the nearby Masjid Tuanku Mizan Zainal Abidin for prayers first before going to wait outside the court complex.

5.30pm: Court adjourns as Justice Arifin wants Surendran to submit the authorities on the weightage considered for statement from the dock.

The hearing will resume at 9.30am tomorrow.

5.10pm: Surendran says there was misdirection by the Court of Appeal.

To a question by Justice Abdull Hamid, he says the High Court judge did not evaluate Anwar's statement from the dock.

As such, Surendran says there is serious error in Court of Appeal's decision, in describing Anwar's statement as a mere denial.

"What the High court judge did not say it was mere denial. The Appellate court was wrong to say it was mere denial. This is not a syntax error."

5pm: Looking at the Court of Appeal judgment, Surendran (left) says there were adverse comments made which led to the wrong finding.

"Anwar has explained why he was giving an unsworn statement from the dock. There is a web of lies depicted. Anwar says he could not get justice in the present case," he adds.

Justice Suriyadi asks if Anwar is stating that he has no faith in the courts.

Surendran replies that there was a series of decisions made by the judiciary which went against Anwar.

4.55pm: Surendran further says Anwar's statement from the dock only strengthen his claim of a conspiracy against him.

"The complainant was a drop-out and used (this) to achieve a devious end.

"This confirms that there was a pre-arranged plan. Statement from the dock is evidence only the weightage is less," he says.

4.40pm: Hearing resumes with defence co-counsel N Surendran saying that the evidence of a pre-arranged plan refers to a conspiracy theory.

The lawyer says this was mentioned in the High Court and Court of Appeal but it was not evaluated.

Except for one paragraph referred in the Court of Appeal judgment, there is no mention of the conspiracy theory.

Surendran says that similarly in the High court judgment, there is only one paragraph cited.

"Saiful admitted that he went to meet Najib at his residence on June 24, 2008. He first met (then deputy prime minister's advisor) Khairil Annas.

"He also met (police senior assistant commissioner) Mohd Rodwan later that day.

"The meeting happened two days before the incident. Saiful contacted then IGP Musa Hassan."

He says that Saiful also had a series of meetings before lodging his report, including with now BN senator Ezam Mohd Nor and former national athlete Mumtaz Jaafar on June 27, 2008.

Surendran says Saiful met Rodwan in a hotel room on June 24, 2008 after the policeman called and then he met Najib.

"The meeting did not take place in the lobby. Is it probable or not there is a pre-arranged plan?" the lawyer submits.

The pre-arranged plan was also brought up by Anwar in his statement from the dock, says the lawyer.

"These are not innocent meetings but a pre-arranged plan," he adds.

4.10pm: Justice Arifin calls for a short break.

4.05pm: A thunderstorm has forced pro-Anwar demonstrators to seek shelter under a large canopy erected outside the court complex.

By now, they number around 200, down from the earlier 500, while pro-Saiful supporters have left at least an hour ago.

At least half of the police guarding the area have also left.

A handful of speakers coordinated by PKR youth deputy information chief Rozan Azen kept the remaining Anwar supporters occupied with speech and slogans.

He also reminds supporters to gather at the nearby Masjid Tuanku Mizan Zainal Abidin before coming to the court tomorrow morning.

4pm: The burden, says Gopal, is on the prosecution to prove its case.

The senior lawyer says the conviction with regard to the circumstances the appeal was conducted renders it unsafe.

"It was fixed on April 12 and 13 at the Court of Appeal, where it was fixed before Justice Aziah Ali during case management.

"The appeal was heard on March 6 and 7 and Karpal asked time to submit but it was turned down. It was a long trial but in this circumstance, it went through, the conviction is unsafe," he says.

Gopal concludes his submission.

3.45pm: Gopal says in the reversal of an acquittal or an affirmation of acquittal, the apex court should intervene if the finding was wrong.

He says the High Court and Court of Appeal state that Saiful is a credible witness but his testimony against others, differ.

"It had not undergone the strictest scrutiny. There has been a miscarriage of justice," he adds.

3.25pm: Moving into Anwar's alibi, Gopal (right) says his client gave notice of the alibi but abandoned it at the trial, and had explained why he did so in his statement from the dock.

"When the prosecution appealed, their petition did not contain the alibi witness," he adds.

The defence lawyer says the prosecution's appeal over the acquittal was mainly on DNA.

He argues that the appellate court went beyond this notion of alibi where the DPP submitted the failure of Anwar to call an alibi witness.

"The notice of alibi was not pursued but it cannot be used against the appellant. The apex court should intervene when there is clear misdirection," he submits.

Gopal says the condominium owner, one Hasanuddin, was subjected to the police to 30 hours of interrogation.

Hasanuddin has two units adjacent to each other at the Desa Damansara condominium, and Anwar's alibi was that he was not in the other unit, where the alleged sodomy incident took place.

3.05pm: Gopal says the charge should have been framed based on what is claimed by the complainant.

The defence lawyer says the trial judge was wrong in ruling that the defence cannot have a copy of Saiful's cautioned statement.

"Saiful says that the sodomy was non-consensual. By charging under a different section, Saiful risked being impeached," he adds.

2.40pm: Gopal says the point is that the evidence presented by the prosecution constitutes corroboration in law.

On the third point, the defence lawyer scrutinises Saiful's testimony of consensual and non-consensual sodomy.

"Saiful testified that the alleged sodomy was non-consensual but the appellant was charged under Section 377b and not Section 377c (of the Penal Code)," he says.

Section 377b reads: Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

Whereas Section 377c reads: Whoever commits carnal intercourse against the order of nature on another person without consent or against the will of the other person, or by putting the other person in fear of death or hurt the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.

2.30pm: Gopal further scrutinises Saiful's testimony.

Saiful, he says, testified that the lubricant had dropped on the carpet during the alleged sodomy incident.

The defence lawyer says the carpet was seized by DSP Jude on June 30.

"He went to the scene of the crime with a forensic team along with the complainant. There they found a strand of hair and seized a carpet.

"The chemist found no semen or K-Y jelly stains on the carpet.

"Hence, we submit what amount to corroboration should be in favour of the defence as the offence never took place," he says.

(Saiful testified that Anwar was rough during the sodomy act resulting in Saiful to accidentally press the jelly tube and it stained the carpet.)

2.23pm: Court resumes.

2. 20pm: Anwar returns and jokes with the policeman in the public gallery "You tahu, I orang salah, you patut sediakan outrider lah (You know, I am an accused, you should have provided me with an outrider)."

2.15pm: Court resumes but Anwar is not present. Gopal apologises, informing the judges that his client has gone for a quick lunch.

Justice Arifin and the other judges agree to wait and retire to their chambers.

12.45pm: Gopal says there was misdirection by the Court of Appeal and hence conviction is unsafe.

He will be touching on another issue of corroboration, and asks for break. The court is currently in recess.

12.35pm: Gopal says Saiful's testimony should be treated under close scrutiny.

The defence lawyer says he has two more hours to submit as the judge asked him to stop at 1pm.

Justice Arifin asks whether he can finish tomorrow.

Shafee replied that they are prepared for the whole week so the court can hear the matter until Thursday.

12:25pm: Gopal says the Court of Appeal failed to appreciate the defence submissions.

"If it had been taken up it will show PW1 (Saiful) is an accomplice and the three HKL doctors cannot corroborate (on the incident) under the law (as they were not the first to inspect)."

The defence lawyer says in this case it was freely admitted by the defence that Saiful was at the Desa Damansara condominium but his presence in the said condominium unit is in question.

During trial, there was evidence that the owner of the condominium had two units there and one of it was used for Anwar's meetings.

"There is not a shred of evidence that Saiful PW1 was in the condominium (where the alleged sodomy incident) occurred," he says.

12.15pm: Gopal says the first complaint was made in Pusrawi, and the prosecution did not call Dr Osman.

 

The point, he says, is the complaint to the Hospital Kuala Lumpur cannot be admissible, as it does not amount to corroboration.

 

"Only first complaint can be used for corroboration and not subsequent complaint," the former Federal Court judge says.

12pm: Pointing to the Court of Appeal judgment, Gopal says there is no independent finding that Saiful could be an accomplice.

 

"He is a participant in an offence, in the surrounding circumstances he must have his evidence corroborated," he argues.
 

11.50am: Gopal says since the evidence of past incidences had been expunged, this evidence cannot be taken into consideration.

He submits that a fair inference is that Saiful was spicing it up.

He says the evidence from Saiful is inherently improbable, inherently incredible, and there is no evaluation of the learned judge on critical points that casts serious doubts on the evidence given.

"If he was non-consensual then why did Saiful bring the lubricant, where else he had met Rodwan.

"Why did he bring the lubricant and washed his underwear. A man of such grit, he preferred not to wash his anus," he adds.

These questions, Gopal says are not found in the prosecution's case.

He says the trial judge's finding of credibility cannot stand.

11.40am: Gopal says evidence of Saiful saying there was past evidence of sodomy has been expunged.

However Justice Abdull Hamid says Saiful did testify that the appellant had ejaculated in his anus like before.

Justice Md Raus says this was mentioned during cross-examination of Saiful.

11.25am: Gopal says Saiful's conduct is inconsistent with a person being sodomised 24 hours earlier.

He says Saiful met a police officer (Mohd Rodwan) before the sodomy incident, and there was no reason for Saiful to wait for two days until he lodged a police report.

11.20am: Gopal says the photograph is to show Saiful's demeanour. The witness, he adds, admitted it was him in the photograph.

The photograph was not tendered as evidence and only marked as ID (identification).

Justice Abdull Hamid asks if Gopal wants to show his (Saiful’s) demeanour.

"Yes, he has admitted he was there and did not want to reply to the question when asked by Karpal that he looked happy.

"Cameras don't tell lies. He was not glum,” he replies.

Gopal says the trial judge made an error of law in not admitting this photograph.

Justice Suriyadi says Karpal has let it be marked as ID.

However, Gopal says that was a concession made at that time and cited case law where such evidence is admitted.

"His demeanour was normal and inconsistent to the case of alleging he was violently sodomised before," he adds.

11.10am: Hearing resumes with Gopal continuing to submit for the court to accept the photograph of Saiful serving tea at Anwar's house, a day after the alleged sodomy incident.

"Saiful agreed that he went to Anwar's house at 5pm on June 27 and when shown the picture the then lawyer noted Saiful seemed quite happy in the picture," he says.

Gopal says Saiful identified himself in the photograph with members of the Anwar Ibrahim club.

"There was admission of his presence (and it should be accepted)," he adds.

10.25am: Gopal questions Saiful's conduct of not going to the toilet for two days and he was seen in Anwar's house the next day after the alleged sodomy incident.

He submitted a photograph of Saiful taken at Anwar's house.

However, Chief Justice Ariffin notes the picture was not tendered as evidence. He asks Gopal to submit on the matter whether the picture could be accepted as evidence.

The court takes a short break.

10.10am: Gopal says the KY gel appeared during examination-in-chief by the prosecution on Saiful.

The defence lawyer says if the lubricant was such an important exhibit, Jude would not have handed it to Saiful on June 28 (2008), only for Saiful to give it back to another police officer the next day.

"This was missed by the trial judge (at the High Court).”

Gopal says Saiful's evidence was that he was in pain and he had held the semen in the anus for several days.

The cross-examination on Saiful says he was asked by Anwar to place the KY Jelly on his anus, and he further submits what the witness testified in camera (closed court).

"Saiful was in pain in his anus and also stomach. The existence of the gel is cast in doubt and lacks credibility."

Arifin asks why the lack of credibility. Gopal says if the gel was used he would not have pain, accounting to the circumstances of the gel being handed over to the police.

10am: At the High Court trial, the gel was produced and marked, says Gopal.

He says Saiful had testified that they did the act (sodomy) on the carpet and he applied the gel on his private part (anus).

Gopal (left) shows a document not in the appeal records, and he says the 'keadaan barang kes' (list of items seized) does not included the KY Jelly.

This, he says, shows the inconsistency in Saiful's testimony.

"Exhibit was not in the list and it should be considered inadmissible and its weightage (in consideration) is challenged."

"Karpal had asked Saiful (whether) the KY gel was an afterthought and the witness agreed. The police report made no mention of the gel."

9.47pm: Gopal argues that Court of Appeal had erred that Saiful is a credible witness and that his evidence had been corroborated.

The third point, he says, was the right of defence to test police officer Jude Pereira's statement in the course of his investigations.

In going to the first ground of the appeal, Gopal says Saiful claimed he was afraid to lodge a police report.

The former Federal Court judge adds that Hospital Pusrawi's Dr Osman noted that Saiful was unwilling to make the report initially.

"This document (medical report) was shown to Saiful and he denied?"

Saiful he says had met a senior police officer (Mohd Rodwan) and called the IGP (police chief).

He says a person who do not want to be sodomised would not have bought a lubricant.

“The presence of the gel is a matter of doubt," he said.

9.45am: Gopal says two sets of Saiful's underwear had been tendered. He adds one of the underwear was washed and wet.

"The second underwear was not worn by Saiful on that day but it had semen stains."

"At the conclusion of police investigations, Anwar was charged. At the trial, KL High Court judge said a prima facie case had been established."

"After that, the judge says he was not satisfied with the prosecution's case against the accused (Anwar).”

Gopal relates the prosecution not satisfied with the High Court acquittal and appealed to the Court of Appeal. The Court of Appeal eventually convicted and sentenced Anwar to five years’ jail.

Having submitted the outline of the case, Gopal will now scrutinise Saiful's evidence.

9.40am: Defence lawyer Gopal says despite sending a letter of resignation, Saiful went to Anwar's house and even served drinks there.

He relates Saiful's meeting with Hospital Pusrawi doctor (Mohamed) Osman (Abdul Hamid), where a plastic object was said to have been inserted into his anus.

"However, Saiful denied making the statement. At the meeting with Dr Osman (right), he said he was sodomised and (he was) referred to Hospital Kuala Lumpur."

Three doctors, says Gopal, attended to Saiful and their initial finding was no penetration.

Saiful, Gopal says, then met DSP Jude Pereira and lodged a police report.

9.30am: Defence lawyer Gopal Sri Ram begins his submission. He says there are no witness to the alleged crime. He adds Saiful had later called then inspector-general of police (IGP).

Gopal says Saiful claimed he was forced to commit the act (sodomy) and that lubricant was used (KY Jelly).

"It is his evidence that the act was so vigorous he pressed on the tube of jelly and it (jelly) fell on the carpet.

"Saiful says he washed himself and sent an email to tender his resignation as an assistant to Anwar."

9.27am: Lead defence counsel Gopal Sri Ram wants to read the list of international observers but justice Arifin says there is no need to do so as it is already made known.

Gopal tells the court that the defence is adding one further ground of appeal.

Lead prosecutor Muhammad Shafee Abdullah has no objection to the additional ground.

9.22am: Defence lawyer Latheefa Koya tells reporters that four people will do the submissions for the defence - Gopal, Surendran, Ram Karpal and Sangeet.

Court now in session with Chief Justice Arifin Zakaria presiding.

There is a change in panel - Ahmad Maarop is not on the bench. He is replaced by Federal Court judge Ramly Ali.

Gopal introduces the parties to the five-member Federal Court panel.

9.10am: Selangor Menteri Besar and PKR deputy president Azmin Ali is also in court, along with Wangsa Maju MP Tan Kee Kwong, acting DAP chairperson and Cheras MP Tan Kok Wai, Perak chief and Beruas MP Ngeh Koo Ham and party stalwart Ronnie Liu.

The public gallery with about 70 seats is already packed. Those unable to get a seat are told to leave the courtroom.

“If there are not enough chairs, you can join me in the dock,” quips Anwar.

9.05am: Anwar Ibrahim tells reporters that Sulaiman Abdullah is unwell as he had surgery on his leg two months ago and is still in great pain.

"Sulaiman was passionate in doing this appeal but I met his wife Mehrun who advised against it. Gopal approached us last week."

Asked whether he is confident, he says: “We have a former Federal Court judge (as lead defence counsel)... I am mentally prepared, but have not much hope.”

He mentions that Hollywood actor Mel Gibson called him to ask whether the ‘Lethal Weapon’ star should issue a statement.

"I said you can, but not in support of drinking (liquor). He told me one thing I learn from you (Anwar) is not to enter politics," the opposition leader says of his brief conversation with Gibson.

Lead prosecutor Muhammad Shafee Abdullah arrives in the courtroom.

8.59am: Anwar Ibrahim arrives with wife and PKR president Dr Wan Azizah Wan Ismail.

Also as part of the legal team is Gobind Singh Deo. Anwar is seen in a discussion with lead defence counsel Gopal Sri Ram.

8.56am: There is a brief commotion outside the court as a group of reporters attempted to follow Anwar through the barricades outside the court.

About 20 media personnel slipped past the barricades and followed Anwar up to the court foyer, but many more are still outside with the crowds when police managed to close the gates.

The crowd chanted "Reformasi" on Anwar's arrival, until he disappeared into the Palace of Justice shortly after.

8.55am: In a new development, former Federal Court judge Gopal Sri Ram is appearing for Anwar replacing Sulaiman Abdullah.

It is learnt that Gopal is appointed as lead defence counsel at the very last minute. According to defence lawyer Latheefa, Sulaiman is not well and he had to pull out.

8.40am: Also for the defence team besides Latheefa and Surendran, are lawyers R Sivarasa, Sangeet Kaur, J Leela, Ram Karpal and Eric Paulsen.

For the prosecution, Muhammad Shafee Abdullah is being help by his legal team from his private firm, along with deputy head of the Attorney-General Chamber’s prosecution division Mohd Hanafiah Zakaria.

Both Shafee and senior lawyer Sulaiman Abdullah, who will lead the defence team, have yet to arrive.

Also seen in the public gallery are former PKR secretary-general Saifuddin Nasution Ismail and Lumut MP Admiral (rtd) Mohamad Imran Abdul Hamid.

8.28am: The five-member Federal Court bench is headed by Chief Justice Arifin Zakaria.

The others are Court of Appeal president Md Raus Sharif, Federal Court judges Abdull Hamid Embong, Suriyadi Halim Omar and Ahmad Maarop.

Among those seen in the courtroom is PKR vice-president and Lembah Pantai MP Nurul Izzah Anwar.

8.10am: Saiful Bukhari's lawyer Zamri Idrus enters the courtroom. Some of the foreign observers are already in the public gallery.

Anwar's defence team Latheefa Koya and N Surendran are also in court.

Journalists have to undergo three security screenings - first at the barricades, then at the main entrance of the Palace of Justice and finally they have to register themselves with the security personnel stationed outside the courtroom where the Sodomy II appeal will be heard.

8am: Journalists who are covering the hearing go through security screening by the police before being allowed into the court complex.

7:40am: A group of PKR Youth supporters arrives and gather near the police tent in the middle of the main road leading to the Palace of Justice.

No one is allowed into the massive court complex yet. Court workers however enter the complex through the back of the building after security screening by the police.

A representative of the court says the barricades will be opened at 8.15am.

6.50am: Police have barricaded the roads surrounding the massive court complex at the Palace of Justice in Putrajaya where Anwar's Sodomy II appeal is to be heard.

 

More than 50 police officers are guarding the key roads leading to the court building.

Those who want to attend the court hearing will have to take a long trek. Tents erected by the police are placed midway on the main road.

6.30am: Four years after the Sodomy II trial began, 67-year-old Anwar Ibrahim will know either today or tomorrow whether the Federal Court will convict him and consign him to jail.

Over the next two days, a five-member panel at the country's highest court will decide on the opposition leader's appeal as well as the prosecution's cross-appeal to impose a higher jail term of five years.

Anwar's defence team has submitted 35 grounds in appealing the Court of Appeal decision on March 7 that found the Permatang Pauh MP guilty of sodomy - the second such conviction in 10 years.

The prosecution in turn has made four points to seek a longer jail term, where it felt the five years imposed on the PKR de facto leader as manifestly inadequate compared to the maximum 20 years' jail term and whipping allotted under the Penal Code.

Should Anwar be convicted, he will automatically lose his Permatang Pauh parliament seat and a by-election is expected to be called.

Former Bar Council chairperson and senior lawyer Sulaiman Abdullah will once again helm Anwar's defence team.

Sulaiman had initially represented Anwar at the early stages of the case when he was first charged at the Kuala Lumpur Sessions Court in August 2008.

However, Karpal Singh took over the defence when trial started in the High Court in Kuala Lumpur two years later. Karpal died in a road accident in April this year, resulting in Sulaiman being reinstated as the lead counsel.       

Lead prosecutor Muhammad Shafee Abdullah was at the Taman Duta home of then deputy prime minister Najib Abdul Razak when the person Anwar was accused of sodomising, his former aide Mohd Saiful Bukhari Azlan, arrived there on June 24, 2008.

However, Shafee was said not to be with Najib when Saiful related his predicament.

Anwar had applied three times to remove Shafee from leading the prosecution but to no avail.

Saiful (right) also made an impassioned plea yesterday, ahead of today's appeal, for the “truth of the incident to come to light”, for this is important for him and his family as it concerned his honour and future.

The trial will also be closely watched by international observers that includes the Inter-Parliamentary Union, Union for Civil Liberty, LawAsia as well as the Malaysian Bar. The case is also expected to attract foreign embassy officials, who will be in at the hearing as observers.

Malaysiakini is covering the hearing live.