The Federal Court will deliver its judgment on Jan 29 relating to Anwar Ibrahim's appeal to obtain more documentation and evidence, thus delaying the opposition leader’s sodomy trial by one week to Feb 2.

The much-anticipated trial, dubbed as Sodomy II, was scheduled to kick off on Monday for one month at the Kuala Lumpur High Court.

"After considering the arguments, we cannot deliver our decision this afternoon," said Chief Judge of Malaya Arifin Zakaria, who is head of a three-member Federal Court panel, after returning from a short break. The other judges were Md Raus Sharif and Abdull Hamid Embong.

In ordering Jan 25 date to be “vacated”, Arifin said the trial can be held on Feb 2 after the apex court has delivered its decision.

NONE On Nov 6, the appellate court allowed the prosecution's appeal when it ruled the PKR de facto leader was not allowed to “fish for information before his sodomy trial”.

The close to three-hour proceeding began with Anwar's counsel Karpal Singh ( right ) complaining about the judiciary's over emphasis on the Key Performance Index, in wanting to see the case go on at the expense of justice.

"We met the Court of Appeal president on Friday, but we were  told on Monday that the Chief Justice wanted this appeal to go on. I stayed up until 3am just to prepare for this case."

"This was despite we having earlier asked for more than two weeks to prepare for the case from the last date of Jan 6.

"Furthermore, last week a High Court judge in Penang, had struck out a civil suit scheduled for hearing due to the lawyer coming 10 minutes late.

"When he came and met the judge, the judge refused to reverse the decision and asked him to submit a written application," he said.

Following this, Arifin asked for the case number and promised to look into it.

Karpal: Raised preliminary objection

The senior lawyer also raised a preliminary objection over the Court of Appeal decision as it was the High Court judge's discretion to grant the additional documentation and evidence from the prosecution.

Justice Hasan Lah, who led the Court of Appeal panel, interpreted section 51 of the Criminal Procedure Code strictly, which limits the judge's discretionary power with regard to the application for discovery of documents at the pre-trial stage.

"Except as what is provided for under Section 51 (A) of the code, the respondent is not entitled to discover or inspect evidence or material in the possession of the prosecution before the commencement of the trial," he said.

Karpal submitted that the appellate court should have allowed the trial to go on and be concluded before allowing the prosecution to appeal.

"In fact, the case should not have been brought to this apex court. A decision made by the trial judge does not include rulings made at during the course of the trial regarding the rights of the party," he said.

Following this, Karpal said Anwar's appeal should be allowed and the decision by the appellate court should be overturned, while the High Court's decision is upheld.

Karpal submitted it would prevent a trial by ambush. 

Anwar, 62, is charged with sodomising his former aide, Mohd Saiful Bukhari Azlan, at the Desa Damansara Condominium, in Jalan Setiakasih, Bukit Damansara on June 26, 2008.

Key documents sought

Among the key documents sought were the recorded witness statements of the victim, Mohd Saiful, the examination notes of Dr Osman Abdul Hamid from Pusrawi Hospital, the statements by condominium owner Hassanuddin Abdul Hamid, and those of the three doctors from Kuala Lumpur Hospital (KLH), a chemist's notes and medical reports.

the charge against anwar ibrahim sodomy allegation trial 070808 Anwar also wanted the CCTV footage of the condominium at the alleged time.

On July 16, Anwar scored a rare victory when the High Court judge Mohd Zabidin Mohd Diah allowed him to obtain Mohd Saiful's medical report from KLH and CCTV footage.

However Mohd Zabidin rejected Anwar's application to obtain the original DNA specimens as they have been packeted and sealed.

Following the decision, the prosecution filed an appeal , while Anwar filed a cross appeal. The Court of Appeal eventually decided in favour of the prosecution.

Solicitor-general II Mohd Yusof Zainal Abiden submitted before the apex court that the High Court's decision was appealeable, as it was going against the provision of Section 51A.

He said furthermore, the documents sought by Anwar, would not be tendered in court for trial and that was why the appellate court ruled the defence "was fishing for evidence".

"The appellate court found Section 51 had not changed notwithstanding the inclusion of the new Section 51(A) of the Code."

"The findings of the Court of Appeal should be upheld and the appeal and preliminary objection should be dismissed," he said.