Augustine Pauls dubious conduct irrelevant to verdict: Federal Court

comments     Arfaeza A Aziz     Published     Updated

The questionable conduct of the trial judge in the contempt of court proceeding against one of Anwar Ibrahim's lawyers has no relevance to the corruption trial faced by Anwar, said Kuala Lumpur Federal Court judge Haidar Mohd Noor.

Haidar said the facts and circumstances in the contempt proceeding against lawyer Zainur Zakaria who was sentenced to three months in jail for contempt by High Court judge S Augustine Paul, cannot be equated to those in the trial itself.

"The judge might appear to lean towards the prosecution but it cannot be said that he showed the same inclination on the evidence in the trial against the appellant," said Haidar who also expressed his satisfaction that Paul had considered Anwar's case at length.

Zainur was cited for contempt after refusing to apologise for making an application on Anwar's behalf to disqualify senior prosecutor Abdul Gani Patail (now the attorney-general) and Azahar Mohamed alleging that they attempted to fabricate evidence against ex-deputy premier Anwar.

Zainur's appeal was allowed recently by the Federal Court who rapped Paul for acting like the prosecution instead of a judge in the contempt proceeding.

As to complaints that Paul had made contempt threats against Anwar's lawyers, Haidar said Paul might have uttered the harsh words in his effort to control the proceeding which had received wide publicity.

"In doing so, he may have uttered harsh words or even threatened counsel with contempt and all these must be taken in that spirit," said Haidar in his judgment supporting the court's unanimous decision to uphold Anwar's conviction and sentence given on April 14, 1999.

Paul was right

In his 60-page judgment, Haidar summarised the 33 points raised in the appeal into 10 categories including abuse of powers, amendment of charges, expunging of evidence and its evaluation, judge's findings on the offences, credibility of witnesses, burden of proof and sentence.

He said that Paul was right to confine to the relevancy and admissibility of the evidence and it was obvious that the judge had to "flex his judicial muscle" as there were occasions when the defence challenged his ruling which actually amounts to challenging the judge's authority.

He also said there was no ground for him to interfere with Paul's decision to amend the charges although it was done mid-way into the trial.

"The judge only ordered the amendment of the charges after hearing counsel for both parties and there is therefore no substantial miscarriage of justice caused to the defence," he said.

As to Paul's decision to expunge the evidence relating to the sexual allegations against Anwar (which Paul found to be irrelevant after the charges were amended), Haidar said that the trial judge had the inherent discretion to do so.

He also said Paul was right to find the evidence irrelevant as it would be prejudicial to the defence's case.

He also found no flaw in Paul's positive assessment on the credibility of witnesses mainly ex-Special Branch director Mohd Said Awang, his deputy Amir Junus, ex-driver Azizan Abu Bakar, businesswoman Ummi Hafilda Ali and investigating officer SAC I Musa Hasan.

"As an appellate court we should be slow to disturb the judge's assessment and finding of the demeanour of witnesses. He is the best person to observe the demeanour. We are handicapped as we have to go by cold print of their evidence in the notes of proceeding," he said.

No reason to interfere

On the abuse relating to Ordinance 22 (under which Anwar was charged) which was annulled by Dewan Rakyat in view of the enforcement of the Anti-Corruption Act 1997, Haidar said the law would only cease to operate when it was annulled by both Houses of Parliament. (The Dewan Negara has yet to pass the annulment).

Dzaiddin in his five-page grounds of judgment on the sentence, said he found no reason to interfere with Paul's discretion to order the sentence from the date of judgment instead of the date of arrest.

Chief Judge of Sabah and Sarawak Steve Shim was the third member of the Federal Court panel which upheld the corruption verdict on Anwar.



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