The Court of Appeal today quashed a lower court's ruling ordering the prosecution in Anwar Ibrahim's sodomy case to hand over evidence which the opposition leader said is crucial for his defence.

On July 16, in a rare victory for Anwar, the High Court ordered the prosecution to hand over evidence including video footage and medical reports to the accused.

azlan The prosecution was ordered to allow Anwar's lawyers to inspect CCTV recordings of the alleged crime scene, along with witness statement of the alleged victim, Mohd Saiful Bukhari Azlan, and that of other witnesses as well as doctors’ notes.

The High Court also ordered the medical reports on Mohd Saiful from two hospitals - Hospital Kuala Lumpur and Pusrawi Hospital - and other evidence favourable to the defence to be handed over to Anwar.

However, the Court of Appeal today unanimously allowed the appeal by the prosecution team in not giving the said evidence to Anwar.

It also rejected Anwar's cross appeal to obtain DNA specimens which are held by the prosecution - evidence which the High Court in its earlier decision did not grant because the samples had been packeted and sealed.

The three-member appellate court bench was headed by justice Hasan Lah. Others are Justices Abu Samah Nordin and Sulaiman Daud.

'Defence cannot go on fishing inquiry'

Justice Hasan in his decision said although the defence team could ask for the evidence to support their case under Section 51 and Section 51A of the Criminal Procedure Code (CPC), it is not applicable in this case.

azlan "Section 51, prior to its amendments with the addition of sub-section (a), is still good law. (But) in criminal proceedings, the court cannot allow the defence to conduct a fishing inquiry," he said.

Hasan said the bench would provide written judgments on the matter later.

Leading the prosecution team was solicitor-general Yusof Zainal Abiden. His team included CK Wong, Noorin Badaruddin and Shamsul Sulaiman.

Karpal Singh led Anwar's team and he is assisted by lawyers R Sivarasa, Sankara Nair and Leela Jesunathan.

Commenting on the decision, Karpal and Sivarasa ticked off the appellate court for their interpretation on the amendment of Section 51A, which was made in March 2006.

"The amendments allow the defence a chance to view whatever documents which would be made as evidence in court. This includes evidence which is favourable to the defence," Sivarasa said.

"However, with today's decision, the judiciary is taking a step backward in not taking consideration of the amendment."

Sivarasa said since Anwar was charged last year, section 51A of the CPC should be applicable.

To prevent 'trial by ambush'

Karpal said the purpose of the amendment was to prevent a "trial by ambush" as described by Minister in the Prime Minister's Department Mohd Nazri Abdul Aziz when tabling the amendment.

It would also help hasten court hearings as the defence would have the documents and are able to consult the necessary specialists before the start of the trial.

the charge against anwar ibrahim sodomy allegation trial 070808 Sivarasa said the defence would obtain the documents later in the trial anyway. But it would be better to have them before the trial begins.

"It defeats the purpose of having Section 51A and would result in unnecessary postponement as after getting the evidence, we may have to ask for postponement to consult with our specialists," he said.

Sivarasa said countries such as Hong Kong, Australia and New Zealand, the defence team could obtain such documents before the trial.

"As it is today, the situation remains as status quo as whatever documents which we have before we make the application remains, and whatever documentation gain following the High Court application would now be not given to us," he said.

Sankara said he will file the notice of appeal to the Federal Court on Monday.