Anwar guilty of Sodomy II, jailed five years

Hafiz Yatim

Modified 8 Mar 2014, 1:46 am


7.45pm: Bail will be posted on Monday. K arpal says he will file a notice of appeal on the same day.

"I have never seen the rush by the court in sentencing in my years of practice, as normally there is medical report made," he says.

7.33pm: Anwar emerges at the back entrance of the Palace of Justice.

The crowd, which had already anticipated his exit from there, burst out in deafening chants of reformasi.

Anwar stands on the entrance staircase for two minutes and waves to supporters but makes no speech.

As he enters his vehicle, he stands from the side of the car and waves, the crowd erupts in mad cheers as he shake their hands.

After Anwar departs, PKR vice-president Tian Chua addresses the crowd, which numbers around 60 people.

"The court has sentence Anwar to five years in jail but this is not the rakyat's decision, we can no longer rely on the legal system and Najib's crony to deliver justice.

"Today is the day the rakyat arise, we will use our power to free ourselves, this nation, our grandchildren and the legal system."

Tian Chua called on people to turn out in force at Kajang stadium tonight where Anwar already has a scheduled event.

He also declared the Pakatan Rakyat convention tomorrow at Dewan Setia Alam, Shah Alam to be opened to every man in the street.

"Who wants to defend Pakatan Rakyat, Anwar Ibrahim and the people, let us gather at Dewan Setia Alam to show support," he said.

Tian Chua also announced that Prime Minister Najib Abdul Razak's days were numbered.

"The court has sentence Anwar to five years in jail, but the rakyat will rid of Najib in five months," he said.

7.30pm : Anwar says he will continue his campaign in Kajang despite that he may no longer be the PKR candidate in the by-election. He says he will let the people show their wrath.

"But I will be there in Parliament and we will shoulder on."

He also lambasts Shafee for claiming he is a threat to "national security."

Wan Azizah says the Palace of Justice is a beautiful palace but there is no justice.

Meanwhile, Rafizi Ramli describes the verdict as a travesty of justice.

"After 16 years, we thought that we have progressed but this case shows we have not."

7pm: Anwar's children and Wan Azizah hug Anwar. The couple are seen carrying their grandson in court.

6.56pm: Shafee says he has no objection if the bail is post. Court allows Anwar to post bail the latest by 11am on Monday .

Court is adjourned. It appears that Anwar needs not spend his weekend in jail.

6.52pm: Two of Anwar's daughters arrives at the back entrance of the Palace of Justice.

They alight with Anwar's grandchildren but were briefly stopped from entering the complex.

After police sought permission from their superiors, they are allowed in.

6.52pm: Karpal responses bail was not granted in the first instance.

"Normally he (Shafee) does not object, of course he is now on the other side. That is why he is a mercenary."

Judge Balia asks the two sides to stop arguing. Justice Balia says the application of stay of execution is allowed, pending appeal with bail of RM10,000.

6.48pm: Karpal applies a stay. Shafee says he has been instructed by the attorney-general to bring the matter for a stay.

"I have been asked to put in an objection on the grounds of the case of Anwar itself. Outside this court, (you can hear) the chanting."

Shafee says the judges can also hear it (the crowd outside).

"The stay is for purposes of execution of sentence. We are objecting on grounds of public order. An appeal is not a stay."

6.46pm: Judge Balia says the court having heard what the counsel told the court and has found Anwar guilty.

"He is convicted and sentenced to five years."

6:46pm: The external compound that was earlier quiet is now rowdy with suporters gathering and shouting, "Free, free, free Anwar!", "Reformasi" and "Down with Najib!"

A supporter Amir Hamzah whips up the crowd reminding them of the events of 1998 during Sodomy I.

6.41pm: A female PKR supporter walks out of the courtroom saying she finds it hard to respect the court.

Shafee continues, saying Anwar attacked prosecutor Yusof Zainal Abiden and the PM.

"The accused that he is found guilty of this act, in a position of power now in the opposition and opens himself to blackmail and source of extortion and is a danger to national security."

"The country will open up the national security issue," he says.

6:38pm: Wangsa Maju MP Tan Kee Kwong, Xavier Jayakumar, Batu Caves rep Amiruddin Shari are among those who fail to enter the court. They remain outside with the supporters.

6.36pm: Shafee says Anwar has conviction for abuse of power.

"I also been asked to mention this, in 2004 in the Malaysian Law Journal made the observation in the Federal Court - that the accused is involved in acts of sodomy."

Shafee says there are other court proceedings.

Those in the public gallery shout at Shafee. Judge Balia says those who make noise will be thrown out in court.

Shafee continues, saying that Anwar is the Permatang Pauh MP and Selangor government advisor as well as candidate in Kajang.

6.35pm: "The circumstances is clear from the notes. This is not the first time the accused has taken advantage of him," says Shafee.

Karpal says that statement has been expunged.

Shafee says that no condom was used and this was an irresponsible and dangerous act.

"He took advantage of the Saiful," he says.

Anwar shouts from the dock: "You have got what you wanted."

6.32pm: Judge Balia says that the court will pass sentence.

Shafee says he took instructions from the attorney-general, who is in Sabah.

"The complainant is a young man, 23 years old, and an employee under his (Anwar's) charge."

6.30pm: Karpal says the court has to consider the sentence along with the medical report.

Balia says the DPP is not challenging it. Karpal says this court is not being reasonable.

"Can I take it that a medical report is not necessary?"

Balia says they will take it for whatever it is worth.

"Under the circumstances of this case, a medical report is not necessary," says the judge.

6.25pm: Judge Balia, after consulting with the other two judges, asks whether that is all.

Karpal says he is not abandoning the right to mitigation.

Shafee says if there is certain conditions, the prosecution will not object.

"We know he has back condition and we are willing to take the statement from the bar," he says.

6.20pm: Prosecutor Shafee says the medical report can be "onward management" of the matter.

He said sentencing is on the offence.

Balia asks whether there will be other mitigation.

Karpal stresses that the defence need time to prepare the medical report.

"All this matters must be placed on record. No reason to rush this trial," he says.

Balia: "We are giving you your right."

Karpal: My lord, when you consider the sentence, the medical report will set out what the respondents and the sentence to be imposed. What is your hurry?

Balia: We are not in a hurry.

Karpal: I am unable to take instructions from my client.

Balia: You are unable to mitigate?

6.17pm: Court in session. Mitigation begins. Defence lawyer Karpal says Anwar suffers from back pain, high blood pressure and heart ailment.

"I have to submit a medical report on this and pray that we will be given time. I cannot be making statements from the bar."

6.14pm: Police asks court to get ready. It will be called into session soon for sentencing.

6.10pm: PKR's Machang Bubuk state assemblyperson Lee Khai Loon arrives at the Palace of Justice back entrance, but like other elected representatives, he was denied entry.

The crowd outside grows to about 50, almost half of whom are journalists.

Lee told Malaysiakini that unlike the verdict at the High Court in 2012, the opposition coalition did not mobilise anyone today as the decision today was a surprise.

"It is all so sudden, we didn't ask people to come because normally decisions would take some time," he said.

However, the cops are not taking any chances and have tripled their numbers at the back entrance.

Some 20 police officers form a human shield in front of the staircase into the Palace of Justice.

Some 20 more officers are also seen stationed nearby in addition to around 10 light strike force units that have just arrived.

6:05pm: Police presence at the rear entrance increases to 10 officers and several special forces officers. This appears to be in response to the crowd that is growing impatient.

6.01pm: All senior PKR leaders are in court including deputy president Azmin Ali, Kuantan MP Fauziah Salleh, Batu MP Tian Chua, Padang Serai N Surendran.

DAP leader Lim Kit Siang is seen talking to Azmin and Pandan MP Rafizi.

According to the Penal Code 377b, Anwar could be facing a maximum of 20 years in jail and shall also be liable to whipping.

5.39pm: Court is expected to resume at 6.10pm to announce sentencing for Anwar.

5:35pm: The rear entrance of the courthouse is tightly controlled and only certain people such as elected reps are allowed through, and have to show their ICs to the police.

Tensions rise when 10 supporters gather outside the door, prompting the police to shut it. This annoys Bukit Katil MP Syamsul Iskandar Mohd Akim and two of Anwar's lawyers who are shut out.

After the supporters back off the trio are finally allowed in.

5.23pm: Wan Azizah and her children are seen crying.

Anwar says the 1998 incident is repeating itself, referring to his previous conviction.

"It's all over again, they want to put me in the lock-up, that is why they want to continue with the mitigation," he says.

5.15pm: The number of Anwar supporters at the courthouse's back door continue to swell.

The situation becomes increasingly tense as they begin to chant "reformation" and "free Anwar" as Batu MP Tian Chua and PKR deputy president Azmin Ali arrives.

5.11pm: Justice Balia says, "We will allow time and come back in one hour."

Anwar stands up and says, "We do it (mitigation) now.”

Wife Wan Azizah rushed from her seat to calm the opposition leader down.

Meanwhile, daughter Nurul Izzah sarcastically shouted from the public gallery, "What's the rush?"

Public gallery erupts with Anwar supporters shouting at the judges.

5.08pm: Karpal blasts back, saying if Shafee is on this side, "He would say that mitigation would be done on another day."

"He is speaking with a forked tongue and this is why a mercenary DPP should not be appointed."

5.06pm: Shafee objects saying appeal has been delayed.

"If mitigation ought to be required it should be done today. We should hold the mitigation today I am also unprepared but am prepared to hold it today."

5:03pm : Karpal applies for mitigation to be done next week.

4.57pm: Justice Balia noted that the prosecution argued that the trial judge has erred in its decision.

"The learned judge had misconstrued on the integrity of the samples. He ruled there was tampering of the HKL plastic bag.

"We have scrutinise evidence of the IO Jude Blacious what he did was cut the bottom of the plastic and put the recepticle, in each envelope."

"The tampering is on the plastic bag and not the evidence. The seals of the samples are intact and did not compromise the samples."

He said if the learned judge conclude the tampering is on the plastic bag only, and having examined the grounds in the judgment.

"We find the judge has no reason to depart from his earlier finding (in calling the defence)."

"The learned judge has failed and appreciate in coming to the conclusion. The judge has erred in listening to the foreign experts.

"We find the judge had misdirected himself on the issue of the integrity of the sample.

"We allow the appeal and found guilty of the charge."

4.55pm: Justice Balia Yusof says this is a unanimous decision.

4.52pm: Court resumes.

Anwar’s daughter and Lembah Pantai MP Nurul Izzah Anwar is seated with her three sisters near their mother and PKR president Dr Wan Azizah Wan Ismail.

4pm: The atmosphere in the courtroom is quite tense as it remains uncertain when the panel will decide on the case.

People go in and out of the courtroom, but those already seated are not leaving their seats in anticipation.

Outside Anwar's supporters increase to roughly 30. They are awaiting a judgement that they believe will be issued today.

3.36pm: Justice Balia says they will deliberate and return later.  This indicates a possible decision will be made.

3:31pm: PKR director of strategy Rafizi Ramli arrives with supporters. Minutes later Anwar's eldest daughter Nurul Izzah Anwar arrives.

3.30pm: The government-appointed lawyer says the doctor confessed that there were two lawyers asking him to do a statutory declaration over the meeting.

Shafee says whether there is a conspiracy of three doctors, or the chemist, and the IO to amount to all of it.

He ends his submission.

3.25pm: Shafee wants the court to scrutinise Pusrawi's doctor's testimony carefully due to the limited space in the report.

"The patient says he was assaulted with the introduction of a plastic (object) introduced into his (Saiful's) anus."

"If you turn over the next page, the doctor wrote 'advice sodomised. Advise to go the HKL'," he said.

3.22pm: Shafee replies that he does not have any absence of memory when DP Vijendran was asked to testify from the dock.

"Vijendran is a much better criminal lawyer than me, and he was advised by then late Christopher Fernando (Aris Rizal) to make his testimony from the dock."

3.20pm: Shafee agrees with Karpal that in criminal proceedings the burden of proof has to be beyond reasonable doubt.

"However, not all items are required to prove beyond reasonable doubt, but in some ingredients it would be on balance of probabilities."

3.17pm: Shafee says is the defence is only asking if the DNA had been planted in Saiful's rectum, or planted while in possession with the police officer.

"The defence never addressed the issue how Male Y's semen ended up in Saiful's rectum," he said.

3.00pm : Shafee cites a murder case in Queensland, Australia, where the murder took place in 1984 and the body was covered with a red towel and buried in a shallow grave.

He says the grave was uncovered and tests conducted on the towel showed there was semen and using DNA tests, the assailant was found.

"A 13-year period, still the DNA sample can be found. The assailant was later convicted in 2001."

2.50pm: Shafee says the prosecution has answered clearly about the degradation and contamination issue.

He cites a case, saying, "We are talking about degrees of degradation. You need a minuscule amount. Seah (chemist) says degradation begins once the fluid leaves the body."

2.47pm: Court in session.

2.40pm: Anwar arrives at court and jokes with reporters that he had his Friday prayers in Kajang and sat near Home Minister Ahmad Zahid Hamidi.

He adds that the khutbah (sermon) was about the banning of the Ultraman book.

Anwar asks in his heart when the Home Ministry will take action on the anti-hadith group. Although he mentioned no names, he is likely referring to Kassim Ahmad and his nemesis former PM Dr Mahathir Mohamad.

12.30pm: As soon as Anwar exits the court he is greeted with supporters packed outside.

About 20 supporters encircle him shouting "Reformasi" loudly four times, while security in the area is tight. The hearing continues after Friday prayers.

12.22pm: Court breaks for Friday prayers and will resume at 2.45pm, with Shafee slated to submit. Shafee promises his submission will take half an hour.

12.12pm: Noorin says that degradation had been taken into account in the analysis.

She says the differential fraction examination process to separate the sperm and non-sperm cells were performed.

"The sperm fraction tests were done and the chemist said there was sperm already there."

She says that had Seah admitted there was contamination in the peri-anal region and the unknown contributor is the non-sperm.

The learned judge had actually dealt with the scientific evidence at the end of prosecution's case and Noorin claims that Justice Zabidin did not go through that evidence in defence.

12:05pm: Noorin says the word "pristine" came from McDonald as there is almost a high reading on the sample.

She defended that Seah had not said there was no degradation.

"Any scientist has yet to come up with a test on degradation as it will always be there, and it is a matter of interpretation."

"McDonald's last test was done in 2004, and since then, he only interprets the results," she says, pointing to McDonald's field work.

11.50am: Now DPP Noorin Badaruddin is submitting on the matter of the 18 allele.

"DNA profiling is based on the 16th DNA loci. The 18 allele is found on one or two locus to two different chemist.

"That is why Nor Aidora (the chemist) did not report the 18 allele. The allele is only found on one loci and it was not necessary to report it."

11.47am: Karpal replies to Shafee on the question of the alibi of the witness.

"By right, the statement made from the dock is evidence and it must be considered.

"This is also misdirection of the judge which requires attention (by this court)."

Karpal ends his submission.

11.42am: Anwar’s counsel Karpal Singh says Shafee suffers from “bouts of amnesia” as the Umno lawyer said that a person who testifies from the dock is of low-mental capacity.

"However, Shafee had represented DP Vijendran and he testified from the dock."

Justice Zawawi asked if this was in reference to the the former deputy speaker, to which Karpal replied yes, to laughter in the court.

He adds that statement from the dock is evidence.

11.40am: Ram says investigating officer Supt Jude Blacious Pereira had been found "a liar" in the past and the finding was made by Shafee.

"We find the evidence of Jude as totally unsatisfactory as he is constantly not telling the truth or suffer from absence of memory and that is what was written by Shafee," he said.

Jude, Ram said, is central to the exhibits.

"He had the sample and intimate samples. There are third-party allele in there.

"This is what we call tampering. We have to support the finding of the High Court judge as what if the swab used were tampered with."

Ram concludes his submission.

11.35am: Ram says the manual on this states that the separation of the cells must be made to remove non-sperm cells.

"The fact remains that in the sperm fraction analysed, there is non-sperm cells in them.

"It can be modified and even if the prosecution's version (is correct), it would be impossible to say that the sperm cells comes from male Y," he said.

Ram says Seah cannot say that for sure and as such, Shafee should not be saying that the sperm cells are from male Y (Anwar).

11:30am: Anwar's supporters have shifted to the back door to await the opposition leader when he is led out of court.

To while away the time, 'Uncle Sow' recited poetry to the listening group.

11.25am: Ram submits that Seah did not separate the sperm fraction and other cells.

"She says it is impossible to separate sperm and non-sperm cells. But our expert witness ( Australian DNA specialist Dr Brian McDonald ) says it is possible to separate them."

"When she says the sperm cells came from male Y (Anwar), she is merely assuming it came from sperm cells. However, the separation was not done," he said.

11.15am: Ram says the DNA tests were not properly carried out.

"It was not determined which cell source the DNA came from."

"DNA can come from skin, hair, saliva, sperm, etc. It is not in dispute that when it came to the chemist, it came in the form of mixture and there is doubt that the sperm is actually from male Y (Anwar)," he says.

11.12am: Court is in session.

11.10am: DAP parliamentary leader Lim Kit Siang enters the court. Also in court are other lawmakers, Johari Abdul, Wong Chen and Sim Tze Tzin.

10.57am: PKR director of strategy Rafizi Ramli is seen on the grounds, chatting with the gathered supporters.

Meanwhile, three police four-wheel drives is observed there, with the dogs from the K9 unit inside.

10.40am: Court recess.

Meanwhile outside, some 80 supporters of Anwar Ibrahim gather on the grounds next to the Palace of Justice.

According to one supporter who came from Penang, the group have gathered peacefully there as they were not allowed into the courthouse.

“They (the police) did not allow us entry, so we gather here. That is alright as there is shade beneath the tree. We come to support Anwar, that is all,” he says.

Meanwhile, three uniformed police personnel are seen in the area monitoring the group.

10.30am: Ram further defends the expertise of the foreign experts which Shafee had earlier questioned.

Ram says Shafee takes a simplistic view of the law in excluding all this.

He adds that the required burden of proof requires that the integrity of the samples is ensured.

"However, in this case it is not... There are many questions. If there is anomaly it should be taken in favour of the accused."

10.20am: Ram says Shafee took a simplistic view by saying Jude only cut open the HKL plastic bag but did not disturb the samples.

Despite this, he says there are the unexplained contaminations.

"There are two types of contamination, direct and indirect.

"The cases referred by Shafee shows there was nothing peculiar but in this case, even if it is said that Jude cut the plastic, there is no explanation on the degradation and contamination."

10.10am: Defence lawyer Ram argues the possibility of the 18 allele coming from investigating officer Jude Pereira could be there as he held the samples for a period of time.

"It is not for us to speculate, but for the defence to create reasonable doubt. It is incumbent on the prosecution to exclude the presence of the third party."

9.50am: Ram questions chemist Seah's testimony on the high rectal swab as at first she said it the 18 allele was important but later when asked further in her testimony, she said it was not important.

He also raises questions on another chemist Nor Aidura Saedon's testimony over her examination of the 'Good Morning' towel.

"She said the reason she did not report the 18 allele as it is below the threshold and it could be a 'starter'.

"I put it to her it was not a starter, and it did not follow her Chemistry Department guidelines and she agreed."

The point, Ram says, the 18 allele is there, but the chemist did not conduct further tests on it as it is from another male contributor.

"It shows there is contamination in the intimate sample and we do not know who the contributor is."

9.40am: Ram moves on to the issue of contamination.

He says the 'Good Morning' towel retrieved from Anwar's cell have an unidentified characteristic with the presence of an 18 allele in the DNA reading.

"The 18 allele, is also present in the high rectal swab. This means a third person's DNA has been found in the anus but high up the rectal."

There are two ways this could happen. With the sexual intercourse, the semen was ejaculated inside the anus.

"Complainant (Saiful) says he is not homosexual, so how can one explain the 18 allele in there.

"The chemist says the presence could have been as result of drop-in (contamination)."

9.30am: Ram says chemist Dr Seah Lay Hong had testified there was no evidence of degradation to the high rectal swab.

"The point here is the prosecution is in agreement of the defence that the sample was 'pristine'."

9.24am: Continuing from yesterday, Ram Karpal submits that the peri-anal sample shows sign of degradation but the high rectal swabs shows no sign of degradation.

"All these samples are taken at about the same time and all should show signs of degradation. However, the high rectal swab did not.

"This raises the question on the possibility of tampering."

9.14am: Court now in session with justices Balia Yusof Wahi, Aziah Ali and Mohd Zawawi Mohd Salleh on the Court of Appeal bench.

Balia complains that the proceeding is late by 15 minutes.

"When we say 9am , it is at 9am ."

Defence lawyer Ram Karpal says they were on time and it was possibly because the court thought lead defence lawyer Karpal Singh will come.

"Karpal will come in later," he says.

Justice Balia wants the counsel to conduct the proceedings professionally.

Balia reminds them not to read from their submission as judges have already read them.

9.10am: The situation outside the court house is quiet and calm. There are about a dozen police officers milling around the area. There are no protesters today.

Meanwhile, there are about eight police officers standing guard at the back of the court complex. The police also brought in two dogs from their K9 unit.

8.56am: Opposition Leader Anwar Ibrahim and his wife, PKR president Dr Wan Azizah Wan Ismail, arrive at the Palace of Justice along with three of their children.

They go to the second floor where the Court of Appeal is located.

8.55am: Muhammad Shafee Abdullah, the private lawyer appointed by the government to lead the prosecution team in this appeal, enters the courtroom.

Also in court are a number of international observers as well as PKR supporters. The public gallery is filling up fast.

8.50am: Some embassies send two representatives, say court staff. Today there are more people asking for passes and some journalists may be - like yesterday - unable to go into the courtroom.

8.28am: Security at all entrances at the Palace of Justice in Putrajaya is tight, with uniformed police helping the court's auxiliary police.

8.20am: The prosecution's appeal against Anwar Ibrahim's acquittal in Sodomy II continues today with defence lawyer Ram Karpal resuming his submissions on the semen samples taken from complainant Mohd Saiful Bukhari Azlan.

Ram indicated to court yesterday that he would need another two hours to wrap up his submission. He is expected to provide further arguments on the issue of the integrity of the semen samples and the possibility of the samples being tampered with.

Much focus on the prosecution and defence rests on the integrity of the samples as Kuala Lumpur High Court judge Mohd Zabidin Mohd Diah in acquitting Anwar, found it was not safe to call for conviction based on the possibility that the samples could have been tampered with.                    

It was revealed in court that investigating officer Supt Jude Blacious Pereira had opened the sealed plastic bag from Hospital Kuala Lumpur (HKL) and placed the 12 samples in separate envelopes before handing them over to the chemist for analysis.

While government appointed lawyer Muhammad Shafee Abdullah maintained the chain of evidence was not broken despite the plastic bag from HKL being opened, Ram suggested otherwise due to the “pristine” nature of the semen samples despite being examined four days after the alleged incident.

After the alleged sodomy incident on June 26, 2008 at the Desa Damansara condominium, Saiful testified that he did not bathe and wash in order "to keep the evidence". He lodged a police report two days later and the samples were retrieved on the night of June 28 and early morning 29.

The samples were then kept by Pereira, not in a freezer as instructed by HKL doctors, but in a metal cabinet in his office and later handed to the chemist on the evening of June 30.

Shafee ( right ) had also made a technical argument in that the court's test should be on the balance of probabilities, while senior counsel Karpal Singh said this was wrong as the court must adopt the ‘beyond reasonable doubt’ approach.

In criminal proceedings, the prosecution is often required to prove its case beyond resonable doubt while normally the balance of probabilities is adopted in civil cases.

After the defence submission this morning, Shafee will proceed with his reply. He took two and a half hours in arguing the prosecution's case yesterday.

It would be interesting to see whether the three-member bench led by justice Balia Yusof Wahi will deliver its decision today or instead announced it at another date.

For Anwar, the decision may affect his bid to contest in the Kajang by-election where nominations have been fixed on next Tuesday.

Malaysiakini is covering the second day of the Sodomy II appeal hearing LIVE.