Sodomy trial faces further delay

Court hearing for Anwar Ibrahim's sodomy trial has been put off after the prosecution applied for a stay of proceeding pending an appeal for the case to be transferred to High Court.

The Sessions Court this morning was to have fixed a date for the trial to be heard before Sessions judge SM Komathy Suppiah.

Last Friday, Komathy had dismissed an application by the prosecution to have the case transferred to the High Court.

Her ruling was based on her finding that the transfer order signed by Attorney-General Abdul Gani Patail was invalid.

"This case raises a unique situation where it is evident that any involvement by the AG in this case would seriously undermine public confidence in the administration of criminal justice," she had said.

However, the prosecution had filed an appeal against the decision on Nov 11. The appeal will be heard at the High Court on Nov 20 and 21.

Anwar was charged three months ago with sodomising his former aide, Mohd Saiful Bukhari Azlan, 23.

If convicted, he could face up to 20 years in jail. He is currently out on a RM20,000 personal bond.

Anwar objects stay application

This morning the prosecution applied to Komathy not to fix a date pending their appeal against her decision.

"Under Section 35 (2) of the Courts of Judicature Act, allows for a stay of proceedings at the lower court if a revision is filed in the upper courts. The stay would allow for the notes of proceedings to be handed to the upper courts.

"Hence, it would not be proper to set a hearing date at this juncture as the matter would be heard at the High Court for revision on Nov 20," lead prosecutor Mohd Yusof Zainal Abiden said.

Anwar's lawyers have objected the stay application.

The prosecution’s letter for their application today was only sent to both the Sessions Court and the defence - stating they have already filed for the lower court’s decision to be overturned.

It stated too that documents will be handed only when the trial start date has been decided - and not today.

This resulted in an one-hour long heated debate today between lead defence counsel R Sivarasa and Mohd Yusof - since defence claims prosecution promised the documents last week.

Sivarasa in objecting said the defence only received the letter - faxed to counsel Sankara Nair’s office - at about 4.40pm yesterday.

"Last week, the prosecution gave an undertaking they would hand over all documents relating to the case this week.

"However, now they seemed not to follow what they promised and they do not want to produce the documents.

"We are worried that this delay would result in documents to be tempered or manipulated against this extraordinary allegation," he said.

Charged in August

Sivarasa pointed out that procedures tend to be altered when it’s a case against Anwar, just as they were in 1998 (when Anwar as arrested).

"I do not want the episode 10 years ago to repeat itself.

"We did not push to make an application through court as we trusted with the undertaking to give the documents to us as we respect Mohd Yusof.

"With this letter, questions are being raised. My client was charged on Aug 7 this year and now it is Nov 14, and yet we have yet to get the documents.

"When will we get the documents after the revision decision and this opens opportunity for the prosecution to hold them further.

"It seems the prosecution is using the revision as a reason not to give the documents to us," Sivarasa said.

The veteran lawyer said there was no connection between applying for a stay of proceedings and not handing trial documents over.

"There is no legal basis to also say that I am applying for a stay and hence, I am not handing over the documents," he said.

"The prosecution maybe using the preliminary revision procedure and is misconceiving the court in not complying to their earlier undertaking to handover the documents," the lawyer said.

Sivarasa said the application for a stay which they are making today seems to be `mala fide’ (bad faith) as it gives an impression the prosecution was hanging on to the documents with the possibility to taint it.

Assisting Sivarasa are Sankara Nair, Edmund Bon and Amer Hamzah Arshad. For the prosecution, Mohd Hanafiah Zakaria and Shamsul Sulaiman are assisting Mohd Yusof.

'Don't call me unfair'

Mohd Yusof in reply said the prosecution’s application for a stay today was mainly to assist the court to transfer the notes of proceedings to the High Court.

"It is illogical for the court here to begin the trial while the high court is hearing the revision," he said.

"If the prosecution feels there is an irregularity and grievance it could file the notice for a revision."

He also said the counsel need not go into allegations that the prosecution was trying to withhold documents to the case.

"I heard you saying you did not make an application because you find me fair. Don’t tell now that Yusof is not fair.

"I have all the documents now including pictures and would not hesitate in giving this (while lifting a whole stack of papers) to you. Whatever you say I will give you the documents today.

Mohd Yusof said defence counsel should not create aspersions that the prosecution was treating Anwar’s case differently.

He reminded all that under Section 399 of the Criminal Procedure Code, the prosecution is only obligated to present documents 10 days prior to a set trial date.

"There is nothing illegal in what we are doing.

"However, I have always instructed my officers to be lenient and provide to counsel the necessary documents in advance even before the start of trial.

"Now because of Anwar ‘we are giving the special treatment’ by providing this documents to him now even though trial dates have yet to be set," he said.

Sivarasa replied that if the prosecution relented to passing documents today, then the matter is resolved.

"We are bringing this issue to light following the contents of the letter which we received yesterday of then not following their earlier undertaking.

"Our main concern was obtaining the documents," he said.

Anwar to prosecution: keep your word

Sivarasa when met said that the defence only has the police report of the alleged incidents.

"I do not know what the other documents are," he stressed.

The expected documents are the medical/chemist report and alleged incident’s scene pictures.

Following the conclusion of the hearing, Mohd Yusof handed a list of the documents that would be given to the defence and he instructed investigating officer DSP Jude Pereira to give all the documents by today to Sankara Nair.

Outside the court, Anwar commented that his defence team’s concerns have basis.

"The actors are still the same albeit they are older however, they are still out to get me," he said.

Anwar maintains that the charge was to discredit him as opposition leader and he was glad that the prosecution will give the required documents.

"Let’s hope the prosecution keeps its word as I do not want to see a repeat of the 1998 incident where I was beaten and left half dead without any apology from the Government," he said.

"I am not seeking compensation like the judges but only justice to be served."