Former deputy premier Anwar Ibrahim's evidence o­n his alibi to counter his sodomy charge should not have been accepted by the High Court as the prosecution was not given sufficient notice of that defence, the Court of Appeal heard today.

Senior deputy public prosecutor Mohd Yusof Zainal Abiden said High Court judge Arifin Jaka had misdirected himself by allowing Anwar to adduce the alibi evidence, as he failed to fulfill statutory requirements to give 10 days' notice to the prosecution.

Notice not filed

Mohd Yusof pointed out that, unlike his co-accused Sukma Darmawan Sasmitaat Madja, Anwar had never made any application before the trial court to file a fresh notice of alibi.

Therefore, he added, the ex-deputy premier's complaint that his trial was unconstitutional as he was deprived of his liberty from adducing proper defence, must be rejected.

He said this in his submission in reply to the arguments made by the defence team which concluded its case last Thursday.

Anwar is appealing against High Court judge Arifin Jaka's decision o­n Aug 8, 2000 to sentence him to nine years' jail for sodomising Azizan Abu Bakar, the former driver of his wife Dr Wan Azizah Wan Ismail.

The appeal is being heard before justices Pajan Singh Gill, Mohd Hashim Yusof and Richard Malanjum.

'Bare denial'

Mohd Yusof also submitted that, even if Anwar had filed a notice of alibi and was denied by Arifin, the former deputy prime minister was still not deprived of a fair trial.

If the evidence which Anwar adduced to support his alibi defence was deemed admissible, the trial judge would still have not made any other decision but to convict him, Mohd Yusof contended.

This is because Anwar o­nly gave an account of his movements from Feb 4 to March 31, 1993 and failed to adduce affirmative evidence that he was somewhere else (other than Tivoli Villas) between January and Feb 3, 1993, explained the senior prosecutor.

"It is obvious from the judgment (that) the learned judge convicted the first appellant (Anwar) due to the fact that he was of the view that the offence must have been committed in January," said Mohd Yusof.

He added that Anwar's defence that he had never gone to Sukma's apartment during the disputed period was nothing but a "bare denial".

He also said that Arifin had rightly rejected the defence contention that the sodomy offence could not have been committed in January to Feb 3, 1993 as Sukma's apartment was under major renovation.

He said evidence relating to the home renovations o­nly showed that Sukma did not occupy the apartment before April 1993.

"But the fact remains that he had access to the apartment from December 1992 when he obtained the keys to the apartment," Mohd Yusof said.

"We submit that, although the apartment was under renovation, it does necessarily mean that the incident could not have taken place."

'Tape not tendered'

Mohd Yusof also submitted that Arifin was "perfectly right" to reject the defence request to disqualify two senior prosecutors Abdul Gani Patail (now the Attorney-General) and Azahar Mohamed o­n the ground that they had attempted to extort fabricated evidence to be used against Anwar.

He said the defence failed to prove that the prosecutors had approached lawyer Manjeet Singh Dhillon to get his client, businessman S Nallakaruppan, to fabricate evidence against Anwar.

He said the evidence given by Manjeet showed nothing but "plea-bargaining" between a lawyer and the prosecutor.

The prosecution urged the court to be cautious in weighing Manjeet's evidence that he had taped the conversation he had with Gani and Azahar, especially since the defence had failed to tender the tape.

At this point, lead counsel Christopher Fernando stood and said: "I told the court that we have the tape and would have no problem in adducing it when the need arises. But the prosecution did not dare to raise (the matter) during the cross-examination and our witness' evidence was not challenged."

When Yusof stood his ground, Justice Richard asked whether Christopher's statement was recorded in the notes of proceeding - to which both parties said no.

"If it is not recorded then, it is the end of the story," the judge said.

However, Christopher maintained that he had informed the judge of the matter and that the defence would have adduced the evidence if the prosecution had challenged Manjeet's testimony.

The appeal continues.