Anwar Ibrahim's conviction for sodomy should have been set aside because his co-accused Sukma Darmawan Sasmitaat Madja was used against him, the Court of Appeal heard today.

Lawyer Karpal Singh ( photo ) submitted that High Court judge Arifin Jaka misdirected himself when he relied o­n Sukma's confession to find the ex-deputy premier guilty of the offence.

"A confession of a co-accused cannot be made a base of a conviction for the other accused. A confession can o­nly be taken (into consideration) to support an existing strong evidence," he said.

Karpal said the judge can o­nly consider the confession after he was convinced that the prosecution has submitted enough evidence to support its case beyond reasonable doubt.

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

Sukma - an Indonesian national who was found guilty and sentenced to six years jail and four strokes of the rotan - is also appealing against his conviction.

The hearing was before Justices Pajan Singh Gill, Hashim Mohd Yusof and Richard Malanjum.

Disregarded precedents

Karpal also said Arifin ( photo ) was wrong in accepting Sukma's confession because the judge had disregarded fundamental laws and precedents when he failed to consider the fact that the confession had been abused from day o­ne.

"After Sukma's confession was recorded by the magistrate, it should have been sealed and given to the court for the purpose of production the trial.

"But here it was given to the investigating officer (Musa Hasan). o­n that score alone it should have been made inadmissible," he said.

The lawyer also criticised the judge for accepting Azizan's testimony without corroboration when the current binding precedent clearly stated the danger of using uncorroborated evidence for a conviction.

He said Arifin should be held for "judicial indiscipline" for rejecting the binding precedents in the cases of Herchun Singh and Yap Chai Chai and instead referred to a Singapore precedent.

"It was wrong for the judge not to follow a binding precedent and instead follow a foreign o­ne that went against the former just to support the prosecution."

"In the name of god, this court must ensure justice is served. To allow all these defects would amount to a miscarriage of justice. The appeal has to be allowed. If not we would find it very difficult to accept and it would take a very long time for the rejection to evaporate from our minds," said Karpal.

The appeal continues.