Sodomy Fitnah 2 trial faces ‘historic’ contradiction
Hafiz Yatim, May 11, 10
For the first time, a Malaysian court is faced with a contradiction between the charge against an accused and the main witness’s testimony.
This has occured in the sodomy trial of Opposition Leader Anwar Ibrahim, who has been charged under Section 377b of the Penal Code with having consensual carnal intercourse with former aide Mohd Saiful Bukhari Azlan.
According to Saiful’s police report against Anwar, which the former made at the Kuala Lumpur Hospital on June 28, 2008, the alleged sodomy incident of June 26 was non-consensual and, hence, should have been under section 377c of the same code.
This discrepancy between the charge faced by Anwar and what Saiful had stated in his testimony was brought to the fore today by defence lawyer Karpal Singh.
Karpal, in applying for access to Saiful’s statements to the police as recorded by investigating officer DSP Jude Aloysius Pereira, has also moved to impeach the star witness and alleged victim.
The defence has yet to receive Saiful’s cautioned statement, a complaint which it has repeatedly raised previously.
“Clearly there is a serious discrepancy with the charge with what the witness had maintained in his police report,” Karpal said.
“Certainly, there is something wrong with the prosecution in the framing of the charge,” he added.
Karpal: How many statements did you make to Jude?
Saiful: Many, I cannot remember.
Karpal: When was the first time Jude took down your statement?
Saiful: It was on June 29, 2008. However, I do not know how many times he took my statements.
Karpal: In your police report and testimony, you maintained the alleged incident was non-consensual?
Saiful: I maintain it was non-consensual. (Karpal asked this three times).
Defence wants Saiful’s statement
Karpal said the defence is applying for a copy of Saiful’s statement made under Section 112 of the Criminal Procedure Code to see whether there is such a discrepancy.
A person found guilty under Section 377b (consensual sodomy) stands to face a maximum jail sentence of 20 years jail and is liable to whipping.
Under section 377c for non-consensual sodomy, a person stands to face a minimum of five years to a maximum of 20 years jail and is liable to whipping.
Karpal said is move to impeach the complainant is based on a “hunch” that the former aide had lied.
Saiful is looking at up to seven years’ jail under Section 195 of the Penal Code if found guilty of perjury.
Kuala Lumpur High Court justice Mohd Zabidin Mohd Diah said he would make his decision known tomorrow as to whether to allow the defence to scrutinise Saiful’s statement to the police.
“I realise the discrepancy between the charge and what the witness had said,” said Mohd Zabidin.
“This is probably the first time in legal history in Malaysia that this has happened. I have to consider properly,” he said, adding he needed time to make a ruling on this and reserved his decision to tomorrow.
Solicitor-general II Mohamed Yusof Zainal Abidin, who led the
prosecution team, argued that it was the discretion of the attorney-general to charge any person under any section.
“It is the prosecution’s prerogative to charge Anwar under consensual sodomy, which is a lesser offence and entails lesser punishment, rather than non-consensual sodomy which is a much more serious charge with a minimum jail sentence,” he said.
Mohd Yusof stressed that Anwar was charged with a lesser charge and punishment.
Karpal: ‘Case will collapse’
Outside court, Karpal later told reporters that the significance of the court’s decision tomorrow lies in that if the defence proves the contradiction between the charge against Anwar and the witness’s testimony, the prosecution’s case would collapse.
“They (prosecution) are framing the charge which is not supported by their own evidence.
“Of course, that would be the end of it. It should be the end of the case where the prosecution would certainly have to drop the charge,” he told reporters.
Karpal added that the prosecution could not amend the charge at this stage now, as it would look bad on the prosecution and also the complainant.
Meanwhile, Anwar attacked the credibility of the prosecution.
“It’s the first time in a criminal case in this country that you have a statement to the police saying that the act was not consensual and yet the charge is consensual,” Anwar told reporters.
“It is questioning the credibility of the prosecution. They looked at the evidence, they can’t prove it, so they changed (the charge),” he said.
The defence needs Saiful’s full statement as the witness has been inconsistent and was not telling the truth, he added.
In 1998, Anwar faced similar charges of consensual sodomy against his adopted brother Sukma Darmawan Sasmitaat Madja and his former speech writer Dr Munawar Anees.
Unlike Saiful (left) who has not been charged in this case, Sukma and Munawar were charged in 1998 and were sent to prison.
However, in 2006, Sukma was freed of the consensual sodomy charge after spending six months in prison.
Munawar’s attempts to clear his name was rejected by the Federal Court when it unanimously dismissed his application.
