The prosecution's appeal against the acquittal of Opposition Leader Anwar Ibrahim in the Sodomy II began in the Court of Appeal in Putrajaya today, after the Permatang Pauh MP failed to remove lawyer Muhammad Shafee Abdullah from leading the prosecution.
However, before the prosecution's appeal is to be heard, the three-member appellate court panel will decide on Anwar's application to recall retired police investigating officer Supt Jude Blacious Pereira.
Anwar's lawyer Karpal Singh last weekfiled the application to put Pereira (right) back on the witness stand.
This follows Pereira's unsuccessful bid last month to be admitted as a lawyer, after the Bar Council filed a preliminary objection in the High Court in Kuala Lumpur.
The Bar Council argued that the Human Rights Commission (Suhakam) had found the former police officernot a credible witness in its hearing into the police arrest of five lawyers in 2009 at the Brickfields police station.
The finding by the three-member Suhakam panel was led by Shafee, when he was a human rights commissioner.
The prosecution's case will focus on the samples of DNA evidence which were rejected by the Kuala Lumpur High Court after it found the possibility of them having been tampered with.
It was Pereira who took the semen samples from the doctors and the court was told that he removed the packaging, and labelled the samples differently from what were originally marked by the doctor, before taking it to the chemist.
There is also the question of the samples not being properly stored. According to Hospital Kuala Lumpur directives, such samples should be kept in a refrigerator, but Pereira kept them in a metal cabinet in his air-conditioned office.
Senior lawyer Shafee (right), who has been appointed by attorney-general Abdul Gani Patail to lead the prosecution, said yesterday that he was confident about the prosecution appeal and that his team would argue there was no break in the chain of evidence.
Anwar was charged with sodomising his former aide Mohd Saiful Bukhari Azlan at the Desa Damansara condominium on June 28, 2008.
LIVE REPORTS
9.05am: The three-member Court of Appeal panel is headed by judge Aziah Ali.
The other members are justices Rohana Yusuff and Mohd Zawawi Mohd Salleh.
9.16am: Opposition Leader Anwar Ibrahim arrives with his wife, PKR president Dr Wan Azizah Wan Ismail.
There is a host of international observers in court.
9.25am: The courtroom is already packed to the brim with reporters sitting on the right side and the public occupying in middle as well as the left side.
Among the international observers is Lawasia and International Parliament Union representative Mark Trowell, who has previously attended other Sodomy II court hearings.
9.34am: Muhammad Shafee Abdullah, the senior lawyer heading the prosecution team, arrives.
The team also comprises deputy public prosecutors (DPPs) Mohd Hanafiah Zakaria and Noorin Badaruddin.
9.47am: Among the PKR leaders present include vice-president N Surendran, Johor PKR chief Chua Jui Meng and communications director Fahmi Fadzil.
9.50am: Defence lawyer Karpal Singh arrives at the courtroom on his wheelchair, accompanied by lawyer Sangeet Kaur.
10am: Court yet to be called into session. While additional seats have been provided by the court police, some are still seen standing in the public gallery as the court is fully packed, with almost 100 people.
10.32am: The court is called into session with Justice Aziah (left) presiding.
Those standing in the public gallery are asked to leave courtroom.
10.36am: Shafee introduces the parties in the proceedings. Among those mentioned as observers is Elizabeth Abbot, who is from International Council of Jurists.
Karpal asks for the list of observers to be recorded.
10.38am: Karpal begins submitting on his application to recall key prosecution witness, retired police investigating officer Supt Jude Blacious Pereira.
10:41am: Karpal says the application is important as Pereira was found to be a credible witness by trial judge Justice Zabidin Mohd Diah, resulting in Anwar's defence being called.
However, on Jan 10, 2014, the KL High Court ruled against Pereira's application to be admissed to be a admitted to the Malaysian Bar as a practising lawyer.
The court decision was based on a Suhakam inquiry in which Pereira was ruled as not a credible witness by none other than Shafee, the current prosecutor in the appeal against Anwar's acquittal.
"In the interest of justice, it is incumbent on this court to invoke provisions of Section 61 of the Courts of Judicature Act 1964 and grant permission to call Pereira," Karpal said.
10.50pm: Karpal argues the evidence sought to be adduced from Pereira to determine his credibility would have an influence on the result of the appeal.
He cites Shafee's finding on Pereira, where the lawyer now leading the prosecution had said he found the former cop's testimony to be totally unsatisfactory.
Yet Shafee is leading the prosecuton and this is in conflict of the Rules 3(a) and 5(a) of the Legal Profession (Practice and Etiquette) Rules 1976.
Karpal states that Shafee was also fined RM5,000 by Bar Council. Shafee objects to this argument.
10.51am: Shafee says this was a backdoor approach in raising the fine. However, Karpal denies this and insists that it was a front-door approach.
10.55am: Karpal (right) further advises that Shafee should withdraw from leading the prosecution as it would be difficult for him to support the credibility of Pereira after having condemned the former police officer when he chaired the Suhakam inquiry.
"I pray that an order be made to call Pereira," he tells the court, ending his submission.
11am: Defence lawyer Ram Karpal takes over from Karpal. He refers to the court documents on the examination-in-chief of Pereira on the 12 semen samples taken and kept in his cabinet.
"Pereira said he removed the specimen to make sure that the samples, which were properly sealed by the HKL (Hospital Kuala Lumpur) doctors, were intact.
"This happened when he was testifying during the examination-in-chief when questioned by the public prosecutor," Ram said.
In the cross-examination, Ram said, Pereira testified that the samples were kept in the cabinet in his office.
"Pereira was referred to the IGSO (Inspector-General's Standing Orders) where the investigating officer cannot keep the exhibits. Pereira admitted that he violated the IGSO order in keeping the exhibits," says the lawyer.
11.10am: Defence lawyer Ram ends by saying at that time, the Suhakam report was not out and had it been out, justice Zabidin's decision to call for Anwar's defence could have been different.
DPP Mohd Hanafiah begins his submission.
He argues that there must be exceptional circumstances or conditions to call a witness.
11.20am: DPP Hanafiah says even though justice Zaleha Yusof dismissed Pereira's admission into Bar Council, it was based on the Suhakam inquiry. (Zaleha was the judge who allowed the Bar Council's objection against Pereira being admitted as a lawyer last month.)
"The said Suhakam report was made available during Anwar's trial. The trial began on Feb 3, 2010, and defence was called on May 11, 2011."
11.31am: DPP Hanafiah says Section 61 is only to adduce additional evidence and not call additional witness.
He adds that Pereira's credibility was raised during the prosecution and defence case.
Shafee continues with the prosecution submission. He says under Section 61, it must encompass additional identification of what they (Karpal) wants.
"If you look at the notice of motion, they want leave (permission) to call Pereira, there is no identification. Do they want the grounds of judgment of justice Zaleha or order."
"It must be a focused application and last night I tried to find the reason but none. The Suhakam report was marked as IDD (identification of document) and not marked an exhibit. They did not make an application to call Suhakam or secretariat to admit the report as evidence."
Shafee submits that the finding is only based on Suhakam inquiry and not based on the trial.
11.45am: Shafee defends the Suhakam inquiry and says Pereira did admit during the trial that he lied during the inquiry.
But he argues the Suhakam inquiry report is not in question here.
11.51am: In response, Karpal says the findings by justice Zaleha was not there when justice Zabidin makes a decision to call for the defence.
11.54am: Justice Aziah says the Court of Appeal panel will deliver its decision at 2.30pm, and if they dismiss Karpal's appeal for Pereira to be called, the government's appeal will be heard.
11.55am: Court stands down for lunch break
2.27pm: Anwar arrives back at court with Wan Azizah.
2.35pm: His defence lawyer Karpal arrives.
2.47pm: Court resumes the session, with Justice Aziah presiding.
Aziah says the appellate court will only recall Pereira should there be exceptional circumstances or failure of justice.
"The matter is left entirely to the discretion of the court. The evidence must be relevant and not at the court at that time.
"In the application (to recall Pereira), we agree that it failed to meet the conditions."
He says the basis for Pereira's non-admission into the Bar was based on the Suhakam report, made available on April 23, 2010, and which the witness never denied.
"We find no necessity to call (Pereira) and dismiss the application to recall him," he said.
3pm: Karpal applies for a stay pending an appeal of the appellate’s court dismissal of the application to the Federal Court.
Shafee objects, saying a stay on the matter ought not to be granted as it is "doomed" to fail.
"This is the ruling and cannot amount to a decision, and no appeal is allowed. It is an interim ruling and no appeal should be allowed."
"There is no element of nugatory-ness, based on Section 93 of the Courts of Judicature Act. If the respondent wishes to take this point further, they can take this matter to the Federal Court later," he says.
3.05pm: Shafee urges the court to proceed with the Sodomy II appeal. However, Karpal says the matter is the final order which can be taken up to the Federal Court.
"It should be considered in the context of Pereira's failure to gain admission to the Bar."
"That evidence would effectively affect the testimony of Pereira. In not granting a stay, it is disregarding the evidence of Pereira not being admitted to the Bar," Karpal says.
The prosecution's appeal, he adds, should not be rushed and every benefit should be given to Anwar in the appeal.
He says the integrity of the samples taken by the respondents had substantial bearing to the decision made by the trial judge.
3.10pm: The judges ask for a short recess.
3.15pm: Karpal’s application for a stay is granted.
“While we are concerned over the continuous postponement (of the Sodomy II case appeal), the court has to be fair, and for this reason, the appellate court will allow a stay,” Aziah says.
Karpal responds that his team will submit a formal application and its appeal to the Federal Court tomorrow.
The appellate court fixes Feb 28 for case management.
However, before the prosecution's appeal is to be heard, the three-member appellate court panel will decide on Anwar's application to recall retired police investigating officer Supt Jude Blacious Pereira.
Anwar's lawyer Karpal Singh last weekfiled the application to put Pereira (right) back on the witness stand.This follows Pereira's unsuccessful bid last month to be admitted as a lawyer, after the Bar Council filed a preliminary objection in the High Court in Kuala Lumpur.
The Bar Council argued that the Human Rights Commission (Suhakam) had found the former police officernot a credible witness in its hearing into the police arrest of five lawyers in 2009 at the Brickfields police station.
The finding by the three-member Suhakam panel was led by Shafee, when he was a human rights commissioner.
The prosecution's case will focus on the samples of DNA evidence which were rejected by the Kuala Lumpur High Court after it found the possibility of them having been tampered with.
It was Pereira who took the semen samples from the doctors and the court was told that he removed the packaging, and labelled the samples differently from what were originally marked by the doctor, before taking it to the chemist.
There is also the question of the samples not being properly stored. According to Hospital Kuala Lumpur directives, such samples should be kept in a refrigerator, but Pereira kept them in a metal cabinet in his air-conditioned office.
Senior lawyer Shafee (right), who has been appointed by attorney-general Abdul Gani Patail to lead the prosecution, said yesterday that he was confident about the prosecution appeal and that his team would argue there was no break in the chain of evidence.Anwar was charged with sodomising his former aide Mohd Saiful Bukhari Azlan at the Desa Damansara condominium on June 28, 2008.
LIVE REPORTS
9.05am: The three-member Court of Appeal panel is headed by judge Aziah Ali.
The other members are justices Rohana Yusuff and Mohd Zawawi Mohd Salleh.
9.16am: Opposition Leader Anwar Ibrahim arrives with his wife, PKR president Dr Wan Azizah Wan Ismail.
There is a host of international observers in court.
9.25am: The courtroom is already packed to the brim with reporters sitting on the right side and the public occupying in middle as well as the left side.
Among the international observers is Lawasia and International Parliament Union representative Mark Trowell, who has previously attended other Sodomy II court hearings.
9.34am: Muhammad Shafee Abdullah, the senior lawyer heading the prosecution team, arrives.
The team also comprises deputy public prosecutors (DPPs) Mohd Hanafiah Zakaria and Noorin Badaruddin.
9.47am: Among the PKR leaders present include vice-president N Surendran, Johor PKR chief Chua Jui Meng and communications director Fahmi Fadzil.
9.50am: Defence lawyer Karpal Singh arrives at the courtroom on his wheelchair, accompanied by lawyer Sangeet Kaur.
10am: Court yet to be called into session. While additional seats have been provided by the court police, some are still seen standing in the public gallery as the court is fully packed, with almost 100 people.
10.32am: The court is called into session with Justice Aziah (left) presiding.Those standing in the public gallery are asked to leave courtroom.
10.36am: Shafee introduces the parties in the proceedings. Among those mentioned as observers is Elizabeth Abbot, who is from International Council of Jurists.
Karpal asks for the list of observers to be recorded.
10.38am: Karpal begins submitting on his application to recall key prosecution witness, retired police investigating officer Supt Jude Blacious Pereira.
10:41am: Karpal says the application is important as Pereira was found to be a credible witness by trial judge Justice Zabidin Mohd Diah, resulting in Anwar's defence being called.
However, on Jan 10, 2014, the KL High Court ruled against Pereira's application to be admissed to be a admitted to the Malaysian Bar as a practising lawyer.
The court decision was based on a Suhakam inquiry in which Pereira was ruled as not a credible witness by none other than Shafee, the current prosecutor in the appeal against Anwar's acquittal.
"In the interest of justice, it is incumbent on this court to invoke provisions of Section 61 of the Courts of Judicature Act 1964 and grant permission to call Pereira," Karpal said.
10.50pm: Karpal argues the evidence sought to be adduced from Pereira to determine his credibility would have an influence on the result of the appeal.
He cites Shafee's finding on Pereira, where the lawyer now leading the prosecution had said he found the former cop's testimony to be totally unsatisfactory.
Yet Shafee is leading the prosecuton and this is in conflict of the Rules 3(a) and 5(a) of the Legal Profession (Practice and Etiquette) Rules 1976.
Karpal states that Shafee was also fined RM5,000 by Bar Council. Shafee objects to this argument.10.51am: Shafee says this was a backdoor approach in raising the fine. However, Karpal denies this and insists that it was a front-door approach.
10.55am: Karpal (right) further advises that Shafee should withdraw from leading the prosecution as it would be difficult for him to support the credibility of Pereira after having condemned the former police officer when he chaired the Suhakam inquiry.
"I pray that an order be made to call Pereira," he tells the court, ending his submission.
11am: Defence lawyer Ram Karpal takes over from Karpal. He refers to the court documents on the examination-in-chief of Pereira on the 12 semen samples taken and kept in his cabinet.
"Pereira said he removed the specimen to make sure that the samples, which were properly sealed by the HKL (Hospital Kuala Lumpur) doctors, were intact.
"This happened when he was testifying during the examination-in-chief when questioned by the public prosecutor," Ram said.
In the cross-examination, Ram said, Pereira testified that the samples were kept in the cabinet in his office.
"Pereira was referred to the IGSO (Inspector-General's Standing Orders) where the investigating officer cannot keep the exhibits. Pereira admitted that he violated the IGSO order in keeping the exhibits," says the lawyer.
11.10am: Defence lawyer Ram ends by saying at that time, the Suhakam report was not out and had it been out, justice Zabidin's decision to call for Anwar's defence could have been different.
DPP Mohd Hanafiah begins his submission.
He argues that there must be exceptional circumstances or conditions to call a witness.
11.20am: DPP Hanafiah says even though justice Zaleha Yusof dismissed Pereira's admission into Bar Council, it was based on the Suhakam inquiry. (Zaleha was the judge who allowed the Bar Council's objection against Pereira being admitted as a lawyer last month.)
"The said Suhakam report was made available during Anwar's trial. The trial began on Feb 3, 2010, and defence was called on May 11, 2011."
11.31am: DPP Hanafiah says Section 61 is only to adduce additional evidence and not call additional witness.
He adds that Pereira's credibility was raised during the prosecution and defence case.
Shafee continues with the prosecution submission. He says under Section 61, it must encompass additional identification of what they (Karpal) wants.
"If you look at the notice of motion, they want leave (permission) to call Pereira, there is no identification. Do they want the grounds of judgment of justice Zaleha or order."
"It must be a focused application and last night I tried to find the reason but none. The Suhakam report was marked as IDD (identification of document) and not marked an exhibit. They did not make an application to call Suhakam or secretariat to admit the report as evidence."
Shafee submits that the finding is only based on Suhakam inquiry and not based on the trial.
11.45am: Shafee defends the Suhakam inquiry and says Pereira did admit during the trial that he lied during the inquiry.
But he argues the Suhakam inquiry report is not in question here.
11.51am: In response, Karpal says the findings by justice Zaleha was not there when justice Zabidin makes a decision to call for the defence.
11.54am: Justice Aziah says the Court of Appeal panel will deliver its decision at 2.30pm, and if they dismiss Karpal's appeal for Pereira to be called, the government's appeal will be heard.
11.55am: Court stands down for lunch break
2.27pm: Anwar arrives back at court with Wan Azizah.
2.35pm: His defence lawyer Karpal arrives.
2.47pm: Court resumes the session, with Justice Aziah presiding.
Aziah says the appellate court will only recall Pereira should there be exceptional circumstances or failure of justice.
"The matter is left entirely to the discretion of the court. The evidence must be relevant and not at the court at that time.
"In the application (to recall Pereira), we agree that it failed to meet the conditions."
He says the basis for Pereira's non-admission into the Bar was based on the Suhakam report, made available on April 23, 2010, and which the witness never denied.
"We find no necessity to call (Pereira) and dismiss the application to recall him," he said.
3pm: Karpal applies for a stay pending an appeal of the appellate’s court dismissal of the application to the Federal Court.
Shafee objects, saying a stay on the matter ought not to be granted as it is "doomed" to fail.
"This is the ruling and cannot amount to a decision, and no appeal is allowed. It is an interim ruling and no appeal should be allowed."
"There is no element of nugatory-ness, based on Section 93 of the Courts of Judicature Act. If the respondent wishes to take this point further, they can take this matter to the Federal Court later," he says.
3.05pm: Shafee urges the court to proceed with the Sodomy II appeal. However, Karpal says the matter is the final order which can be taken up to the Federal Court.
"It should be considered in the context of Pereira's failure to gain admission to the Bar."
"That evidence would effectively affect the testimony of Pereira. In not granting a stay, it is disregarding the evidence of Pereira not being admitted to the Bar," Karpal says.
The prosecution's appeal, he adds, should not be rushed and every benefit should be given to Anwar in the appeal.
He says the integrity of the samples taken by the respondents had substantial bearing to the decision made by the trial judge.
3.10pm: The judges ask for a short recess.
3.15pm: Karpal’s application for a stay is granted.
“While we are concerned over the continuous postponement (of the Sodomy II case appeal), the court has to be fair, and for this reason, the appellate court will allow a stay,” Aziah says.
Karpal responds that his team will submit a formal application and its appeal to the Federal Court tomorrow.
The appellate court fixes Feb 28 for case management.
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