Criticism of the charge and judgment, not the judges in Sodomy II – The Phantom Busybody

Throughout this commentary, wherever words are highlighted in bold or underscored, it is the added emphasis of the writer, unless otherwise stated. “Judgment” within this commentary refers to the judgment of the Federal Court in the case of Criminal Appeal Number: 05-47-03/2014(W) between Datuk Seri Anwar Ibrahim and Pendakwa Raya, unless otherwise indicated. This commentary is intended as criticism against the said charge and the more significant parts of the judgment, not the judges who presided over the appeal.

Consent, bribery analogy and granting Saiful immunity from prosecution

Saiful in his police report alleged that he did not consent to the act of sodomy. The absence of consent would generally bring the case within the definition of Section 377C, i.e. committing carnal intercourse against the order of nature without consent. However, the prosecution must have gone through the evidence available and felt that it was not convincing enough to withstand a charge under s377C and hence opted for a charge under s377A where the issue of consent was immaterial.

Given the above, it is posited that even the prosecution felt that the alleged acts between Saiful and DSAI were consensual. In my humble view, the prosecution doubted the credibility of their own witness, i.e. that he did not consent to sodomy, at least for the purposes of proffering a charge under s377C. The Attorney-General Tan Sri Abdul Gani Patail’s explanation post-judgment by the Federal Court that Saiful was not charged because he had turned “witness” (akin to a bribe-giver in corruption cases) against Anwar, only confirms the consensual nature of the alleged acts.

At this stage, it may be well to delve briefly into the law of corruption or bribery. In most countries where bribery is outlawed, policy reasons are given for doing so.

For instance, in the UK, the following policy reasons were given for introducing a statute against bribery.

“Bribery and corruption are found in all countries. They hurt the poor disproportionately, diverting resources intended for development and humanitarian assistance and increasing the costs of basic public services. They undermine economic growth and are a barrier to poverty alleviation and good governance. Often, bribery and corruption can aggravate conflict and insecurity.”

More specifically on dealing with parties to an act of bribery, let us consider the “Investigation and Prosecution of Corruption Offences” paper prepared by Soh Kee Hean , Director, Corrupt Practices Investigation Bureau (CPIB) Singapore. He explains in the said paper the approach of the CPIB and goes on to state that “…We are prepared to deal with both givers and receivers of bribes. Under our law, they are equally culpable . Of course, sometimes we may not charge the giver if he was under duress when he gave the bribe or there were some other reasons which led to the offence.”

Contrast the statement above with that of our Attorney-General when he said that "… in almost all corruption cases , the receiver is charged while the giver is used as a witness against him . ” The immediate reaction from reading this statement is that bribe givers have it easier in Malaysia.

However, it is also very important that we consider the nature of corruption and bribery. By nature, both are acts that are done in clandestine fashion and not in the open to see. Often, sophisticated approaches are taken to conceal the crimes and may well involve parties across borders etc.   To uncover such crimes, investigators typically painstakingly follow the trails of the criminals and it may take them months and years to finally arrive at some useful evidence.

However, unless such evidence is corroborated by the bribe-giver, the prosecution’s case against the bribe recipient will be akin to a calf that dies in the cow’s belly. Assuming that the investigators have some credible evidence that may be used against a bribe-giver, they may attempt to negotiate with the bribe-giver, offering him either a lesser charge or even immunity, if he was willing to adduce evidence against the bribe recipient.

Usually, strong policy reasons inform such a decision. For example, a corrupt local council officer may have been in the habit of receiving bribes from local store operators in return for turning a blind eye to some of their misdeeds. Perhaps a hundred store operators paid this officer RM100 every month. Each store operator would have paid him RM1,200 a year, a relatively small sum looked upon in isolation. However, the officer would have received a total of RM120,000 from all the store operators in a year. As a matter of principle, the investigators/prosecution will quite naturally agree to grant immunity to one of the store operators if he would testify against this corrupt officer. Nailing this corrupt officer would do society a lot more good than jailing the bribe-giver.

But let us contrast the facts above with the case of DSAI. Here the government was swift to announce that the sodomy case was a private matter between Saiful and DSAI. There was no political conspiracy, it was just another case.

Unlike a typical covert corruption case, Saiful willingly came forward, declaring to several doctors and then lodging a police report against DSAI, that the latter had sodomised him without consent . The prosecution or investigators were saved the trouble of having to conduct any prior intensive investigations based on the suspicion that Saiful and DSAI were involved in carnal intercourse against the order of nature. They simply had to examine the evidence adduced to make out a case. If they felt the evidence supported Saiful’s claim that he was sodomised without consent, then DSAI should have been charged under s377C. But if they felt otherwise, i.e. that Saiful and DSAI had indulged in carnal intercourse against the order of nature with mutual consent then both Saiful and DSAI ought to have been jointly charged. There was no reason to give Saiful immunity as he had already admitted to the world at large his involvement in the act of sodomy, his claim that it was without consent rubbished by the prosecution’s choice of not charging DSAI under s377C.

Saiful’s credibility and corroboration of his claims

The nine judges that presided over the trials from the High Court right up to the Federal Court found Saiful to be a credible witness. In summary, the judges felt that it took Saiful , as a young man, a lot of courage to lodge a police report against DSAI, a well-known politician. Their lordships credited Saiful’s ability to provide minute details of the alleged acts of sodomy, thus giving a ring of truth to his testimony. Specifically on this finding, I wonder if their lordships have access to the Internet, where there is a dearth of articles and videos on homosexuality and sodomy, including real stories of sexual crime victims providing minute details of their personal encounters. These may have been a rich source of information for any false complainant, from which to draw to concoct a wholly believable though completely untrue story of his own.

Their lordships then addressed the defence’s argument that Saiful had not reacted in the manner of a typical victim of a sexual crime. He did not flee, did not complain to the owner of the apartment where the alleged act had occurred and he did not complain to the security guards.

In defence of Saiful , their lordships concluded that his behaviour was understandable given that he was DSAI’s personal assistant, that he had idolised the latter, liked working with him and found him charismatic. Saiful had also benefitted from gifts and a room in the office, a benefit that some seniors did not get.

The doctors who had examined him felt that his behavior was normal given that it (sodomy) had happened before. At paragraph 113, their lordships endorsed an unusual statement made by the judge of the High Court which I reproduce here:

“In fact the people like Ezam , Mumtaz and PW1’s uncle even discouraged PW1 from lodging police report because they were concerned of PW1’s future.” I say unusual because as far as I am aware, Ezam , Mumtaz and Saiful’s uncle never testified in court, yet their lordships were prepared to accept as truth or present as fact such a claim.

Their lordships then referred to the Indian authority of the State of Punjab v Gurmit Singh & Ors [1996] 2 SCC 384 , a decision by the Supreme Court of India, which held that “…a delay in lodging a FIR (a police report) by a victim in sexual offences may be understandable because the prosecutrix or her family members may be reluctant to go to the police because it may affect her reputation or the honour of her family. It is only after giving it cool thought that a complaint may be made”. This case was used to justify Saiful’s delay in lodging a complaint against DSAI.

Frankly, I am not convinced that Gurmit Singh was the best of cases for their lordships to draw inspiration from. For the uninitiated, in criminal law, because the facts of each case can differ substantially from the other, higher courts are reluctant to formulate any general guideline or precedent that will bind lower courts.

Lower courts are only bound by decisions of a higher court where as Professor Peter Robertson states in his book “A Guide to Criminal Law” – “…where the facts of the second case are sufficiently similar to the original case.”

Now the facts of Gurmit Singh are as follows: The victim or complainant was a village girl who was a student in the 10th Class. In other words, she was approximately 15-16 years old. On her way back home from school, she was abducted by three men into a car. She was threatened at knife point to not raise alarm on the pain of being killed. She was taken to another village.  She was made to consume liquor against her will. There the three men took turns to rape her. When she cried of pain, she was threatened with death so she kept silent. The savage rapists raped her again at night. The next morning, they had her dropped off near the vicinity of her school.

Matriculation exams were ongoing then. The victim went to school to complete her exam. She told no one at school about her ordeal. She went home at about noon and immediately narrated to her mother her ordeal. The victim’s mother waited for her husband to return late in the evening and informed him. The victim’s father then, in traditional village practice, notified the village’s Sarpanch (the elected head) who then contacted his counterpart at the village from where the three rapists hailed.

A panchayat (a village council hearing) was held and the victim found no justice there. So her parents decided to proceed with a police report. As a village girl, she was only able to identify the colour of the car used to abduct her but got the model wrong. She correctly identified the location where she was raped. The medical tests proved that she had been raped whilst the DNA results pointed undoubtedly to the three rapists. The three accused were charged for rape and not the equivalent of our s377B.

At the trial court, defence counsel for the rapists raised arguments that the prosecutrix /victim had delayed in filing a police report, she was unable to identify the model of the car that was used to abduct her, that she did not raise alarm whilst in the car or whilst in the journey to the place where she was raped, that she told no one at school about her ordeal and went about doing her examination. One of the accused even suggested that the prosecutrix had filed the complaint because of a long family dispute between her father and the father of the accused.

Incredulously, the trial court accepted the arguments advanced and acquitted the three. On appeal, the Supreme Court made short shrift of the trial court’s findings, overturned the acquittals and held that a delay in filing of a complaint was understandable given the circumstances. The prosecutrix’s inability to correctly identify the model of the car was not to be held against her, given her background. Pray tell, where is the similarity of the facts of Gurmit Singh to that of Saiful’s case against Anwar?

On the issue of corroboration of Saiful’s claims, their Lordships referred to another decision of the Supreme Court of India, namely the State of Maharashtra v Chandraprakash Kewalchand Jain, AIR [1990] 1 SCC 550. Here, their lordships agreed with the prosecution that Saiful’s evidence, was akin to that of a female rape victim who will not ordinarily “stake her reputation by leveling a false charge concerning her chastity” (the underscored phrase was taken from Chandraprakash ).

Let us look at the facts of Chandraprakash . In this case, a police officer was charged for raping a young woman of 19 or 20. She had fallen in love with a man who was 25. Their parents objected to their union. So they left for another state in India where they registered their marriage. They returned to their original state and booked a room at a lodge.

A police team including the accused raided the lodge at 2.30am. Despite having adduced evidence of their marriage, the accused insisted that both accompany him to the police station. At the police station, the couple was separated for “interrogation”. The husband was beaten whilst the accused attempted to flirt with the young woman. She resisted his advances. The accused even asked her to state her age as 15 in a police report so that action could be taken against her husband (for sex with a minor). She refused. The accused then called in the parents of both and asked them if they were willing to take them. Both sets of parents refused.

The accused then filed a false complaint against the husband for misbehaving on a public street. He used that opportunity to hold the husband in jail whilst he made arrangements for the young woman to be returned to a hotel by his colleague. The accused then visited the young woman at the hotel and knocked on her door. Unsuspectingly, she opened the door. He went in, gagged her mouth and forcibly raped her. After satisfying his lust, he warned her that he will bury both of them alive if she told anyone.

He then told her that he would make arrangements to reunite her with her husband. However, half an hour later, the accused returned and knocked on her door again. Thinking it was her husband, she opened the door. He forced his way in and raped her yet again.

At the trial court, the accused led a defence that he was framed by the couple because they were unhappy that he had arrested the husband. He also argued amongst other things that the medical evidence did not corroborate the victim’s claim since there were no injuries consistent with forced or violent sex. The trial court found against the police officer.

On appeal to the High Court, he succeeded. The High Court ruled that “except in the ‘rarest of the rare cases' where the testimony of the prosecutrix is found to be so trustworthy, truthful and reliable that no corroboration is necessary, the Court should ordinarily look for corroboration.” Expectedly, the Supreme Court reversed the decision of the High Court, holding “…there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration”.

Of equal importance were the policy reasons advanced by the apex court for its decision. Their lordships held –“Having regard to the increase in the number of sex-violation cases in the recent past, particularly cases of molestation and rape in custody, it is proper to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases.

Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by leveling a false charge concerning her chastity. By our criminal  laws wide powers are conferred on police officers investigating cognizable offences. The infrastructure of our criminal investigation system recognises and indeed protects the right  of a woman to decent and dignified treatment at the hands of the investigating agency. The purpose and setting, the person and his position, the misuse or abuse of office and the despair of the victim which led to her surrender are all relevant   factors   which must  be present in the mind of the Court  while evaluating the conduct-evidence of the prosecutrix . A person in authority, such as a police officer carries with him the awe of office which is bound to condition the behaviour of his victim.

The Court must not be oblivious of the emotional turmoil and the psychological injury that a prosecutrix suffers on being molested or raped. She suffers a tremendous sense of shame and the fear of being shunned by society and her near relatives including her husband. Instead of treating her with compassion and understanding as one who is an injured victim of a crime, she is, more often than not, treated as a sinner and shunned. It must, therefore be realised   that   a woman who is subjected to sex-violence would always be slow and   hesitant about disclosing her plight. The Court must, therefore, evaluate her evidence in the above background.”

In my humble view, the findings of the apex court of India above were faultless and our Federal Court would have been justified in following the said decision provided the facts of the present case were sufficiently similar. But were they? I can see very little resemblance in the facts. The court had in mind a woman who is a victim of sexual crime, not a man who engaged in consensual sex with another man.

More importantly, let us recall at this stage that the Attorney-General had effectively classified Saiful as an accomplice/participant who turned prosecution witness against DSAI (i.e. the bribe-giver analogy). A closer scrutiny of the same decision of the Supreme Court of India would reveal that whilst corroboration was not a necessity in the case of a rape or sexual crime victim, it was not necessarily the same in the case of an accomplice. This what their Lordships said in the same judgment:

“… However, illustration (b) to Section 114, which lays down a rule of practice, says that the Court 'may' presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which  lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars . This is the conjoint effect of Sections 133 and 114, illustration (b). A prosecutrix of a sex-offence cannot be put on par with an accomplice.”

In my humble view, the last sentence above contained the most damning part of our Federal Court’s judgment, because their Lordships had effectively placed an accomplice on par with that of a rape or sexual crime victim.

Equally troubling was whilst their Lordships found for the prosecution, they effectively went about it in a confusing way. Consider paragraph 86 of the judgment, where it was said- “…However, on the facts of this case, we find that PW1 is not an accomplice; we find him not a willing participant in the offence but in fact a victim. In any event, even if we were to agree with that submission of the counsel, we find there is ample corroborative evidence to support PW1’s testimony.” So the Court effectively disagreed with the Attorney-General that Saiful was an accomplice. Should this not cast doubt on the choice of the charge proffered against DSAI?

Was there penetration?

At paragraph 105 of the judgment, their lordships went on to say- “…PW5 stated that by logical deduction, if sperm was detected in PW1's rectum, then there must have been penile penetration . This piece of evidence corroborates the allegation of PW1 that he was sodomised by the appellant.”

Was the conclusion of PW5 and their lordships’ agreement with such conclusion reasonable? Is there no other way that DSAI’s alleged sperm could have entered the rectum of Saiful ? The Internet is rife with examples of rape and sexual assault cases by women and men, against men. Unconscious men, likely from sedatives or alcohol, found themselves raped by a woman, with even ejaculations achieved. There is even medical suggestion that an unconscious man could be made to sustain an erection through the use of rubber bands, after which an ejaculation may be caused.

The Cambridge Law Journal in September 2000 for example considered a case where an attempt was made by a fiancée to extract the sperm of her comatose and brain-dead boyfriend. On that score, do remember that DSAI was once beaten to pulp by a former IGP and was then left unconscious.

I feel rather uncomfortable broaching further on this topic because of the hurt this may cause DSAI’s family, but was it possible for DSAI’s sperm to have been obtained in some covert way, e.g. from his marriage bed? What if DSAI was reckless (only for the purpose of this case) and masturbated, cleaning himself with a handkerchief or some tissue papers and then failed to dispose of the same completely, leaving a fraudster an opportunity to frame him?

The expert witnesses for DSAI did make a very pertinent observation which was included in paragraph 37 of the judgment. “… both DW2 and Dr. Brian Leslie McDonald (DW4) testified that there was no photographic evidence presented by PW5, to positively indicate that the sperms were actually seen in the swabs.” It appears to me that only PW5 i.e. Dr Seah Lay Hong had ‘seen’ the sperm cells allegedly belonging to Anwar. Even the other prosecution witnesses merely relied on her findings. In fact, that was exactly what DSAI’s expert witnesses argued as recorded at paragraph 36 of the judgment.

Interestingly, the age of the sperm collected was never determined. Well-maintained i.e. frozen or dried out sperm cells can retain enough quality by which analysis may be carried out. There is extensive research about how DNA analysis has been used to determine the age of fossils and even the long dead. So why was not the age of the sperm cells determined? If they were still fresh i.e. 3-5 days old, it would have strengthened the case against DSAI. DSAI’s expert witness was right to criticise the failure of PW5 to record all relevant historical particulars (including dates) of Saiful and submit photographic evidence.

At paragraph 106 of the judgment, their lordships stated “Whether the anus was torn or bruised is not, in our view, an issue which could refute the fact that PW1 had been sodomised . According to PW2, PW3 and PW4, the absence of such injury could have been due to the lapse of time prior to seeing the doctors, no undue force having been applied and the use of lubricant. This explanation in our view is plausible and we accept it.” How did their lordships accept that view and reconcile the same with the claim of Saiful that he went to the doctor at Pusrawi because he had stomach ache and pain in the anus following the sodomy (see paragraph 12 of the judgment)?

Armchair Experts?

The Court of Appeal described the expert witnesses of DSAI as mere armchair experts (paragraph 43) and the Federal Court endorsed this view. The reason given was that the expert witnesses had not conducted any analysis on the samples unlike the prosecution witnesses. Now this is really bewildering, coming out of seasoned judges. Typically, in the criminal legal system the world over, no expert witness of the defendant ever conducts direct analysis of the samples collected as evidence against the accused.

The reason for this is obvious - the expert witness may try to destroy evidence that does not favour his/her client, because he/she is under the “employ” of the accused. Hence, the expert witness is always relegated, not by choice, to the role of reviewing the analysis undertaken by expert witnesses of the prosecution.

On this score, I wonder whether our courts scored a first in the Commonwealth by labeling expert witnesses for the accused as “armchair experts” and worse still, for using the same as basis to reject their testimonies.

DNA of ‘another male contributor’ in rectum of Saiful

We should also recall the presence of the DNA of “another male contributor” in Saiful’s rectum (remember that Anwar was identified as “Male Y”) as mentioned at paragraph 23(a) of the Court of Appeal’s judgment, a fact that the Federal Court gave little significance to, in its judgment. Was this evidence of homosexual activities that Saiful may had indulged in, by which he was able to draw upon to provide minute details of the alleged, but possibly concocted act with DSAI? And by the way, did any of the rape victims referred to in the Indian cases above by the Federal Court turn up with the unexplained DNA of a 3rd party as in the case of Saiful ? 

DW1’s testimony – was he lying?

At paragraph 12 of the Federal Court’s judgment, reference was made to the medical examination of Saiful by Dr Than Aung (referred to as DW1 in the judgment). “… while DW1 was inserting something into PW1's anus, PW1 told him that he had been sodomised and needed an examination. Upon hearing this, DW1 immediately stopped the examination and told PW1 that Pusrawi did not have the facility for forensic examination.”

Let’s contrast the above paragraph with that of paragraphs 37 and 38 of the Court of Appeal’s judgment. Referring to the same witness, the following was recorded. “…DW1 examined PW1 using a protoscope for suspected piles but found no injury. As PW1 was putting on his trousers and DW1 was washing his hands , PW1 told DW1 that he was sodomised by a VIP and was scared to go to the police. According to DW1, had he been informed earlier, he would not have carried out the examination of PW1 . DW1 alleged that PW1 told him that he had been assaulted by insertion of plastic into his anus.”

I am not sure if you spotted the same thing as I did reading the judgment of both courts. The Court of Appeal appears to indicate that DW1 had completed his examination of Saiful . Why else would Saiful put on his trousers and DW1 state that he would not have carried out the examination if he had been told that Saiful had been sodomised by a VIP? The Federal Court in turn appears to indicate that DW1 stopped his examination midway when Saiful told him that he had been sodomised.

So how did their lordships arrive at this different conclusion from the Court of Appeal? Both appellate courts appear to have dismissed the entirety of DW1’s testimony simply on the basis that he had agreed that the notation in his medical report regarding assault by introducing plastic into the anus was added later. The medical report did not mention assault with a plastic. However, it has to be borne in mind that the testimony of DW1 was never challenged by the prosecution.

DW1 further testified that Saiful had turned up at Hospital Pusrawi for treatment complaining of pain in the anus when passing motion.  DW1’s testimony went unchallenged by the prosecution and DW1’s testimony introduces doubt into Saiful’s claim that he had not passed motion for 3 days. How did he experience pain when passing motion if he did not pass motion?

At paragraph 218, their lordships said that “PW1 in his evidence denied ever telling DW1 that he had been assaulted with the insertion of a plastic object into his anus. The doctors at Hospital Kuala Lumpur who on the same day examined PW1 never said that PW1 told any of them that he had been assaulted by the insertion of a plastic object. Neither was this stated in PW1’s police report. Based on that we hold that DW1 is not telling the truth. Further had that allegation been true, DW1 would not have advised PW1 to go for forensic examination at a government hospital.”

In summary, their lordships accepted Saiful’s denial coupled by the fact that he had not told the doctors at Hospital Kuala Lumpur nor the police about the insertion of a plastic object as irrefutable proof that DW1 lied.

But consider this possible scenario. Let’s say that Saiful appeared at DW1’s clinic complaining of stomach ache and pain in the anus. At this point, Saiful had yet to inform DW1 about the alleged sodomy. As most medical doctors would likely deduce, Saiful may have suffered from food poisoning which cause the stomach ache and perhaps the pain in the anus may have been caused by piles.

So DW1 did what most doctors would have done, i.e. examine his anus with the help of a proctoscope . DW1 found no sign of piles or injury to explain the pain claimed by Saiful . He was likely to have told Saiful so. He may have asked Saiful if he had experimented with inserting objects into his anus, to which Saiful may have told him about the plastic object. DWI would have told him to just get some rest.

Disappointed with the doctor’s conclusion and only at this stage, did Saiful tell DW1 that he was sodomised by a VIP. This would have caused DW1 to be genuinely concerned and to retort that he would have never carried out the examination if he had been informed earlier. Sodomy is a crime and just about every private practitioner would tell a complainant to go to a government hospital for a forensic examination. DW1 may not have realised that this matter was going to end up in court and, hence, did not think it necessary to make any notations in his report about the plastic object insertion. Only upon being notified that he was going to be called as a witness, did he realise the significance that his medical report would hold. So he decided to make an additional notation on his report with no ill intent. If this had been the scenario, it does not seem fair to me for the court to conclude that DW1 was not telling the truth, particularly since he was not cross-examined by the prosecution.  

In fact, DW1’s testimony is believable if you observe the testimony of the prosecution’s witness PW2, Dr Mohd Razali Ibrahim. PW2 had told the court that he carried out a proctoscopy on Saiful’s anus and that it was difficult to conduct the same even with the aid of lubricant. It took him two attempts. Amazingly, according to PW2, Saiful did not complain of any pain in the anus during the examination! Yet only 4-5 hours earlier, he had been at DW1’s clinic, complaining of pain in the anus! Please read a related article on this matter.

DSAI’s coitus with his wife

DSAI’s expert witness, Dr Thomas Hoogland (DW7) testified that DSAI could not possibly perform the act as described by Saiful as he was labouring under intense back pain resulting from degeneration in the facet joint. The Federal Court described this defence as an afterthought at paragraph 221. Their lordships opined that DSAI never put to PW1 that he could not have possibly performed the act because of his back pain. I am not even sure why their lordships felt that DSAI was under a legal burden to put the same to PW1.

Their lordships went on to say – “Further, it is in evidence that DW7 did not examine the appellant in 2008. He only examined the appellant on 8.9.2011, a month before he testified at the trial.” From this statement, it is almost as if their lordships deduced that DSAI’s back problem was one akin to a yoyo, bad in 2004, good in 2008 and then bad again in 2011. This is because when DW7 was cross-examined, he was not impeached. Rather, their lordships chose to accept the testimony of a rebuttal witness.

At paragraph 222, their lordships indicated their rationale. “As opposed to this, Dr Jeyaindran a/l C. Sinnadurai (PRW4) a rebuttal witness, called by the prosecution examined the appellant just three weeks after the incident. According to PRW4, the appellant informed him that he (the appellant) had coitus with his wife one week after the incident. PRW4 also said that the appellant did not complain that he (the appellant) was having back pain and from his observation during that medical examination. The appellant’s movement was not restricted by any back pain whatsoever.”

I am not sure if PRW4 is the same person who is currently the deputy director-general of Health (Medical) at the Ministry of Health. It is not clear from the judgment the purpose of the medical examination by PRW4. If DSAI was down with a fever, I doubt that he would have declared the back pain he experienced. It is not clear whether PRW4 told the court DSAI was capable of sodomy simply because he had coitus with his wife and was able to bend to pick up things or whether this was a deduction of their lordships. If it was a deduction of their lordships, it would be very strange syllogism at play - Anwar had coitus with his wife, therefore he was capable of sodomising Saiful ! Coitus with his wife was quite possible with DSAI playing a minimal or passive role.

My apologies to Datuk Seri Wan Azizah Wan Ismail but I am only writing this because their lordships appear to have a very restrictive view of the word “coitus”, which assumes that the husband must have been very active in the act and will not be able to do so unless he has a healthy back. I also have very serious doubts that DSAI would have described to PRW4 in great detail the extent of his coitus activity with his wife, to enable PRW4 to form an informed opinion of DSAI’s ability to perform sodomy (particularly one that caused pain to Saiful that lasted three to four days).

The commentary above is in respect of troubling areas of their lordships’ judgment.

In conclusion, I regret that the Federal Court did not cease the opportunity to deliver a judgment befitting its status as the apex court of the nation. Whilst there is absolutely no wrong in delivering a unanimous judgment, individual judgments by each of their lordships would have been preferred, given the publicity that this case had received here and around the world. Patrick Hastings once wrote -“There is one essential feature in every trial that is only too frequently forgotten. In the interest of the community the one matter of importance is that all parties should be satisfied that they have had a fair and impartial trial.” I would hasten to add to the words of Hastings that one of the ways this is achieved is through a good and convincing judgment.

- TMI