KUALA LUMPUR, Nov 22 — Datuk Seri Anwar Ibrahim was denied access today to the medical notes of three Hospital Kuala Lumpur (HKL) doctors, which his lawyers argue the prosecution must produce along with all evidence in his sodomy trial.
In today’s decision, High Court judge Datuk Mohd Zabidin Mohd Diah ruled that the defence had failed to give reasons as to why the court should allow Anwar access to the medical notes.
Mohd Zabidin said that in Malaysia, 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.
Mohd Zabidin said it was the prosecution’s sole prerogative whether to provide Anwar’s team with 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, Karpal said that he disagreed with the decision, but would accept it for now.
“We have to reluctantly accept your Lordship’s decision, but we find it a perverse decision,” said Anwar’s lead counsel.
The three HKL doctor’s handwritten medical examination notes were recorded during a three-hour examination of Anwar’s accuser Mohd Saiful Bukhari Azlan on June 28, 2008.
Karpal had earlier on argued that in any criminal case, evidence of an expert unsupported by data would be a serious misdirection by the High Court.
“Evidence by expert would bear little weight if not supported by evidence. It is not a question of admissibility alone,” said Karpal.
The white-haired 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 who 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.
In his judgment, Mohd Zabidin had also ruled that the toxicology reports done on Sodomy II accuser Mohd Saiful Bukhari Azlan would not be expunged and would be used for the purpose of the on-going trial.
“They (prosecution) had admitted it was an oversight. If it was not attached at the beginning of the trial it should have been expunged,” said another one of Anwar’s lawyers, Sankara Nair.
Sankara 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 on today.
“If it’s necessary, then we will file (an appeal),” said Sankara.
The trial has been postponed to 12.30pm today.
Karpal who is also a lawmaker had sought a postponement of trial 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.
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. - Malaysian Insider
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