There is no substantial miscarriage of justice in the sodomy trial of ex-deputy premier Anwar Ibrahim, the Court of Appeal said in the grounds of judgement released to the media today.

The court found the same for Anwar's adopted brother, Sukma Darmawan Sasmitaat Madja, according to a Bernama report. Both were convicted and jailed for the offence.

The grounds of judgement is contained in a 206-page document.

According to the report, Justices Pajan Singh Gill, Richard Malanjum and Hashim Yusoff said the case was exceptional and fit and proper to apply the proviso of Section 60 (1) of the Courts of Judicature Act.

The section states that "provided that the Court of Appeal may, notwithstanding that it is of the opinion that the points raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred".

Azizan duly scrutinised

In the appeal, Anwar's counsel submitted that the proviso should only be applied in exceptional cases and would cause substantial miscarriage of justice if applied in the sodomy case in view of the evidence of Anwar's former driver, Azizan Abu Bakar.

On April 18, the panel upheld Anwar and Sukma's conviction and jail sentence of nine and six years, and four strokes of the rotan respectively, imposed by the High Court for sodomising Azizan at Sukma's apartment in Tivoli Villa, Bangsar, in 1993.

On the trial judge's assessment of Azizan's credibility, Pajan said the former went quite far to ensure that Azizan was duly scrutinised as a witness.

"He allowed an impeachment proceeding to be conducted so that all parties could be heard on the apparent discrepancies in the statements and testimonies of Azizan.

"If indeed he was inclined from the start to favour Azizan as a witness, then it would have been convenient for him just to rule that the discrepancies, as found, were minor and required no further proceeding," said Pajan.

He said the trial judge had not done so, and had instead gone into detailed examination of the evidence given by Azizan in order to arrive at a proper conclusion.

"Plainly therefore, being an appellate court, we should be slow in substituting our own assessment of Azizan as a witness," said Pajan.

Demeanour being observed

The judge also said that if Azizan had rehearsed the detailed account of the incident from a movie he had seen, then surely he could not have withstood the cross-examination from the defence team that had spanned seven days.

"It would not have been easy for anyone, let alone a mere driver, to maintain consistency in his answers of the incident if indeed the details were 'acted' from a movie.

"Moreover, the learned trial judge was there to watch his demeanour and other indicators while in the witness box," he added.

According to the report, Pajan said the trial judge was well aware that for an offence as in this case, it would be easy to allege but difficult to rebut and that he (trial judge) took all the precautions to ensure that all legal requirements in determining Azizan's truthfulness were met.

"We say that it should be appreciated that the commission of an offence which is sexual in nature involves a minimum of two persons.

"And generally during commission, there is no independent witness present 'like a fly on the wall observing the incriminating episode described by a victim or complainant'.

"Invariably, therefore, the truth or falsity of such charge will depend on which version is to be accepted by the court. Credibility of the victim or complainant as a witness is therefore of paramount importance," he added.

Pajan said it was the court's view that the hype on the three changes to the dates in the charges was a result of a misapprehension of the true position of the law in respect of time factor when a charge is preferred against a person.

He also said that the trial judge had considered several matters before imposing the sentences on Anwar and Sukma and the Court of Appeal found no reason to interfere with the sentence.