In the wake of the first phase of Mohd Saiful Bukhari Azlan’s cross-examination earlier this week, some lawyers are arguing whether defence lawyer Karpal Singh has made the right move in raising the issue of consensual versus non-consensual carnal intercourse so early in the trial.

Some have argued that it would be more strategic to leave the revelation towards the end of the prosecution’s case.

Karpal had highlighted the discrepancy in Saiful's testimony on Tuesday in regards to Anwar's charge.

police report mohd saiful bukhari azlan The complainant had maintained the whole affair as stated in his police report was non-consensual. However, Anwar is currently being charged with ‘consensual intercourse against the order of nature’.

A charge of ‘consensual intercourse’ under Penal Code section 377b warrants a maximum punishment of 20 years jail and a fine. A ‘non-consensual’ charge under section 377c would result in a minimum jail term of five years and up to 20 years’ jail and a fine.

Saiful's media statement made two years ago, sworn over the Quran, also stated the incident was non-consensual.

The senior defence lawyer highlighted the discrepancy in order to get hold of Saiful's statements to the investigating officer DSP Jude Aloysius Pereira, so that he could look at the discrepancies.

However, Karpal's application to secure the documents was turned down the next day.

Bad call

This recalls a similar strategy in Anwar Ibrahim’s first sodomy trial, where early on in the trial the defence had brought to the court’s attention that the alleged place of incident, Tivoli Villa, had not even been built.

The move failed to work, and only resulted in the prosecution amending the charge. Anwar was as a result still convicted by the High Court, before the apex court overturned the decision in 2004.

revathi masoosai habeas corpus case 060707 haniff khatri Lawyer Mohd Hanif Khatri Abdullah ( left ), who handled the Cannie Ong murder case in 2004, commented that he would have preferred to bring up the issue later in the trial.

“I would allow the prosecution to lay their cards first, to get to know their strategy in handling the case.

“Maybe the details should be left to the last minute to object to the framing of the charge just before the prosecution would close its case.

"It is better to gather all the discrepancies and highlight all of them towards the end. This would bring greater impact,” he said.

He argued that raising the matter early on gives away the defence strategy, allowing the prosecution to react more quickly, adding that conflicts between what the star witness claims and the actual charge happens often in many criminal cases.

“However, we must remember the prosecution has the discretion to frame the charge,” he said, adding that Karpal’s application to get Saiful's police statements were also not in order.

Trust Karpal

Another lawyer and lecturer Baljit Singh Sidhu differed, saying Karpal has the prerogative to make his call, as he is leading the defence team.

NONE “I think Karpal ( right ) has consulted Anwar in this. Both parties have agreed to this strategy. As lead counsel, Karpal has the prerogative.

“Karpal know the case better, and if he thinks it is better for him to challenge the witness credibility now, rather than at the end, it is his decision. Each lawyer has his own strategy,” he said.

Besides Karpal, the defence counsel in Anwar's team comprises Param Cumaraswamy, CV Prabhakaran, Sankara Nair and Melissa Regina Christopher Fernando.

Karpal took lead of the defence team after another senior lawyer Sulaiman Abdullah stepped down due to health reasons.

The team’s strategy has been to show that the case was motivated by political conspiracy and Anwar has said Saiful's testimony has proven this.