Judgment flawed, says Anwar in applying to set aside sodomy conviction

Datuk Seri Anwar Ibrahim's lawyer N. Surendran and daughter Nurul Izzah Anwar at the Court of Appeal today, after the opposition leader applied for a review of his sodomy conviction and five-year jail sentence by the Federal Court. – The Malaysian Insider pic by Nazir Sufari, April 30, 2015.

Datuk Seri Anwar Ibrahim ‎who filed a review application today to set aside his sodomy conviction by a Federal Court bench said a  "grave injustice" was caused in sending him to jail.

A motion filed at the Federal Court registry said that a fresh bench should be constituted ‎as the February 10 ruling was flawed.

"The review was filed after dissecting the ‎judgment which found Anwar guilty of the offence," Anwar's lawyer N. Surendran told reporters.

Anwar's daughter and PKR vice-president Nurul Izzah said the application was made to exhaust all avenues available to secure his freedom.

Surendran said a sealed copy would be served on the prosecution for the application to be heard as soon as possible.

Anwar, in the motion, also said the verdict ought to be reviewed because the Prime Minister's Office immediately issued a press release on the day of the judgment and due to conduct of ad-hoc deputy public prosecutor Tan Sri Muhammad Shafee Abdullah after the ruling.

"During a roadshow, Shafee made vicious, vulgar and personal attacks on me and this was endorsed and supported by Umno," he added.

He said Shafee was biased in the conduct of the prosecution's case and did not act in the interest of justice.

Anwar  is serving a five-year jail term on a charge of sodomising his former aide Mohd Saiful Bukhari Azlan, at a condominium unit in Bukit Damansara on June 26, 2008.

A five-man Federal Court bench led by Chief Justice Tun Arifin Zakaria dismissed Anwar’s final appeal against his conviction and maintained the five-year jail term imposed by the Court of Appeal.

The appellate court on March 7 last year reversed the High Court’s finding acquitting Anwar after his defence was called.

A review application is made under Rule 137 of the Federal Court rules on grounds of unfairness, with the applicant asking for the adverse judgment to be set aside and a new bench to rehear the appeal.

Arifin, who delivered the judgment, said there was “overwhelming evidence” that Anwar sodomised Saiful.

The written grounds said that the judges were convinced there was a “ring of truth” in Saiful’s complaint and he had provided a detailed account of the incident.

Further, there was a relationship between Anwar and Saiful and the former had taken advantage of the latter’s weaker position, the judges said.

Anwar, in his supporting affidavit to his application, said the Federal Court judges erred in not re-examining the story told by Saiful against other circumstances and the probabilities of the case.

They said the evidence was not subjected to careful scrutiny as a sodomy charge was easily made but difficult to rebut which was a point that has been accepted by the courts.

In this case, only Anwar and Saiful were witnesses to the alleged crime.

Anwar said it was incumbent on the Federal Court to re-examine Saiful’s evidence, the most important of which they said was Saiful’s claim that the act of sodomy took place in Apartment 1 of the condominium building, and that it took place on a carpet in that apartment.

However, in a search by the police, a carpet was recovered from Apartment 2.

There was no evidence that the carpet was ever moved from Apartment 1 to Apartment 2, a fact acknowledged by the Federal Court in its judgment.

The defence was of the view that Saiful’s story was not probable because the carpet was never in Apartment 1 and hence the alleged act could never have taken place.

However, the Federal Court concluded that the fact relating to the carpet was immaterial.

The defence also said that the Federal Court erred by failing to consider the improbability of Saiful’s evidence regarding the investigating officer, Jude Pereiera, who only collected the lubricant jelly allegedly used to facilitate the sexual act, a day after Saiful the complainant lodged a police report on June 28.

The defence said Saiful’s story was highly improbable as no senior investigating officer would have done that, and Pereira did not confirm Saiful’s version.

It also said that DNA evidence assumes importance only if there is other evidence to show that the offence is committed, but in the present case, Saiful’s testimony was shown to be improbable as he lacked credibility. As such, the DNA evidence did not help, the defence argued.

The defence also questioned whether the samples that were handed by doctors at the Kuala Lumpur hospital to Pereira were the same ones that were received by a forensic expert in the Chemistry Department, alleging that tampering could have occurred in Pereira’s handling of the samples.

They said Pereira’s action of cutting open the bag in which the samples were secured, re-marking them, placing them in a steel cabinet and turning off the room’s air-conditioning, had compromised the samples.

It was accepted by the prosecution’s witnesses that degradation would have occurred unless the samples were preserved in a freezer.

Yet, the court was told by the government’s chemist that the samples were in “pristine” condition.

The defence said that as such, there was serious doubt as to whether the samples taken by the medical witnesses were the same ones that were received and examined by the forensic witness.

Anwar said the bench failed to consider the testimony of the first doctor Dr Mohd Osman Abdul Hamid who examined Saiful and whose testimony differed from three other (doctors) who examined the complainant later.

He said the prosecution did not provide evidence that Dr Othman had a motive to cook up the story against Saiful.

Therefore, Anwar said, Dr Othman's evidence ought to have been considered, instead of labelling him as an untruthful witness. -TMI