Court dismisses Anwar's 2nd bid to strike out charge

The Kuala Lumpur High Court has dismissed Anwar Ibrahim's application to strike out his sodomy charge, following an allegation that a member of the prosecution team had romantic relations with the complainant.

Justice Mohamad Zabidin Mohd Diah ruled that the allegation does not compromise the prosecution's integrity.

This is because DPP Farah Azlina Latif had no access to vital prosecution documents, as stated in the affidavits of investigating officer Jude Blacious Pereira (left) and DPP Mohd Hanafiah Zakaria. 

Justice Zabidin said there is no reason for the court not to accept the assertion by Jude and Hanafiah on this issue.

"From their explanation, it was reasonable to decide that although DPP Farah Azlina Latif is part of the prosecution team, her role was limited to a 'need to know' basis.

"She did not have access to the investigation papers or documents, and neither was she involved in the briefing sessions. As Farah had no access to the investigation papers or to knowledge of the contents of the case, then (the complainant) Mohd Saiful Bukhari Azlan could not have gained accesss to these through Farah."

According to Jude's affidavit, those who have access include DPP Hanafiah, solicitor-general II Mohd Yusof Zainal Abiden and DPPs Nordin Hassan and Noorin Badaruddin.

On the issue of the prosecution's integrity, Zabidin ruled that Farah was not a prosecutor responsible for charging the accused, as she was merely in court to take notes.

The judge noted that she was not responsible for examining the witnesses either.

"With that, I am of the view that Saiful (right) did not have any influence on Farah based on the alleged relationship, and that this could not have influenced the prosecution and compromise the integrity of the team.

"...The issue of prejudice to the applicant (Anwar) in this trial, hence does not arise. Based on this reason, I find there has been no abuse of the court process as alleged and hence, the application is dismissed."

Stay granted

He also ruled that the matter was interlocutory and ordered the trial to resume, despite objections from the defence.

Although the judge ruled that the matter was not subject to appeal, he later allowed a stay application pending appeal at the Court of Appeal. 

Zabidin ruled that it is necessary for the court to allow the application, because if Anwar's appeal is successful, it would render the case nugatory.

He added that he normally would not grant a stay unless there are special circumstances to do so.

"The court feels this is one of them, as, if the appeal is allowed it would invalidate the trial.

"This would be a waste of the court's and prosecution's time. Since, the application touches on the integrity of the prosecution, the stay should be allowed. This is the special circumstances," he said.

Zabidin then fixed Sept 20 for the case to be mentioned. 

Judge rules ‘not hearsay’

Zabidin in the earlier decision to dismiss the striking out application, however ruled in favour of Anwar’s affidavit alleging the affair.

He said that, based on case laws and the evaluation of Anwar's affidavit as evidence, the prosecution’s silence constitutes an admission that Anwar’s statements were made based on the latter’s knowledge or information in his possession.

"Based on this, the court has to reject the respondents’ application to dismiss Anwar's affidavit as it had complied with the High Court Rules.

 

"As there is also no denial in the affidavit in reply over the alleged private affair between Farah and Saiful, hence it is deemed the respondents have accepted the assertion of fact as truth."

Yusof during his submission had stated that Anwar's affidavit was based on hearsay as the latter could not have had knowledge.

Karpal had however maintained that Anwar had based his affidavit on fact.

                       

Warning issued

Zabidin ordered the trial to resume and to call witness Dr Mohd Razali Ibrahim ( right ) for Karpal’s cross-examination.

The lawyer then engaged in an exchange of words with Zabidin, calling for the trial to be postponed until the defence submits a stay application and a notice of appeal over today's decision.

The prosecution however pressed for the case to proceed, saying no application for a stay had been made yet and that the witness was already on the stand.

The judge concurred and ordered Karpal to proceed with his cross-examination, to which the lawyer claimed a denial of justice for his client, earning a warning from the judge over the stand-off.

Karpal requested a half-hour recess. About 10.50am, he announced that he would file a notice of appeal and a stay application within the hour.

He cited a precedent set by the court in granting earlier stay applications.

"After filing, we are prepared for the matter to be heard this afternoon even until the night. We are prepared. But you should not deny us the right of appealing as it is our right," he said.

Yusof argued that the trial should proceed regardless of Karpal’s appeal, as it does not operate as a stay.

The judge finally agreed to hear Karpal’s application at 2.15pm.

Resuming after Raya

Anwar had applied to strike out the case due to an allegation on the Malaysia Today blog that Mohd Saiful had initimate links with Farah Azlina.

Farah Azlina was then removed from the team, which was seen in many quarters as lending credence to Anwar's claims.

In his application, Anwar stated that if Saiful and Farah Azlina were indeed in a relationship, the complainant may have had access to vital prosecution documents that could compromise the trial.

In reply, the prosecution claimed that Farah Azlina was a junior member of the team and had no access to important documents in the first place.

Neither Saiful nor Farah Azlina has denied the allegation to date.

This is Anwar's second unsuccessful attempt at striking out the sodomy charge.

The first application was on the ground that the Kuala Lumpur Hospital report stated that no sign of penetration had been found on the complainant.

Following the afternoon’s decision to grant Anwar’s stay application, the trial is expected to resume after Hari Raya.