Trial within trial - the final arguments.....

Anwar Ibrahim's sodomy trial resumes today with final arguments made by both the defence and prosecution in the trial-within-a-trial. Anwar, along with lawyers Sankara Nair and Subang MP Sivarasa Rasiah, testified for the defence, while arresting officer, superintendent (then ASP) Ahmad Taufiq Abdullah, testified for the prosecution.

In this trial-within-a-trial, top defence lawyer Karpal Singh is attempting to prove that the arrest was unlawful and the three items retrieved from the cell where Anwar was detained overnight - which contain the 'Male Y' DNA - were unfairly and unlawfully obtained.

However, the police officer acknowledged that the warrant of arrest, dated July 15, 2008, was only given to Anwar at the Kuala Lumpur police headquarters where he was detained. It remains to be seen whether Kuala Lumpur High Court judge Justice Mohamad Zabidin Mohd Diah will make his decision on the admissibility of the crucial evidence today.

9.06am: The court is called into session with Justice Mohamad Zabidin Mohd Diah presiding.

9.07am: Yusof applies to recall Supt Ahmad Taufik, the arresting officer, to put in the warrant of arrest as evidence. Karpal objects. He says today is fixed for submissions as the trial-within-a-trial has closed. According to Karpal, this is a criminal trial and the application should be made during the trial-within-a-trial. Yusof explains the warrant of arrest was misplaced and that he has found the original. Last Friday, the warrant of arrest which was tendered in court was not the original.

9.12am: Justice Zabidin rejects the application by the DPP.

9.15am: Karpal begins his submission. He says the evidence of the three items ought to be excluded as:

* There was violation of the federal constitution, since the arrest is unlawful.

* These were solicited through unfair means.

Karpal says the burden of proof here is on the balance of probabilities.

9.19am: Karpal reminds the court that Anwar gave evidence under oath to testify against his 'unlawful' arrest.

9.21am: The defence lawyer argues that the accused was arrested without being told the grounds of his arrest. "They arrested him with 10 to 15 UTKs (Special Action Unit) armed with sub-machine guns and wearing balaclavas," he says. Karpal says Yusof had also cross-examined Anwar and the accused had maintained that no grounds of arrest was mentioned.

9.23am: Karpal argues that under the fundamental liberties (rights of a person), a suspect must be told the grounds of his arrest. "Any violation would be to infringe these rights. Furthermore, the warrant of arrest was not produced."

9.26am: The defence lawyer adds that a photocopy of a warrant of arrest should be regarded as 'secondary' evidence. "It does not fulfil Section 65 of the Evidence Act."

9.27am: Karpal says the copy of the warrant of arrest should be rejected and it should be marked as 'for identification' only, and not as evidence. "It is not been proved and hence it must be disregarded. All the oral testimony on the warrant of arrest must also fall."

9.30am: Karpal also points out that investigating officer DSP Jude Blacious Pereira was not called to rebut the defence contention over the grounds of arrest. "The arrest is unlawful and improper. Taufik has admitted he received instructions from Federal CID chief Bakri Zinin. However, Bakri was not called by the prosecution."

9.35am: Karpal submits the samples retrieved must be with Anwar's consent, and it would be a violation of Section 319 of the Criminal Procedure Code if these were obtained without consent.

9.37am: Karpal stresses that the items were retrieved using unfair means. "Anwar was also traumatised for being medically examined where his private parts and pubic hair were measured. He described it as degrading." Karpal reminds that court of a federal court decision that any evidence gained by trick should be disregarded and expunged.

He finishes his submission.

9.43am: Yusof begins his submission. He agrees that court has to evaluate the trial-within-a-trial based on the balance of probabilities. He urges the court to look not only at the evidence gained in this trial-within-a-trial but also throughout the whole proceeding.

9.47am: Yusof says Anwar did not categorically deny the execution of the warrant of arrest. "What he said was that he did not know the document that he signed."

9.48am: Yusof submits that Taufik had informed Anwar of the arrest was based on a seizable offence under Section 377B. "Supt Taufik also produced the warrant of arrest and the charge (sodomy) at IPK. "Anwar did not deny the existence of a warrant. Taufik made a copy of it and photocopied it - this is already good evidence. The fact remains Taufik made a copy of the warrant."

Yusof says it is the prosecution's submission that the onus is on the defence and it has not been able to support the allegation made. "Anwar signed the warrant (and this) is basis for the grounds. The arresting officer statement merely corroborated it."

9.55am: Yusof said the fact remains that the copy of the warrant of arrest is not fabricated evidence.

9.59am: Taufik is not an interested witness, says Yusof, as he is not the investigating officer. "Anwar also said the officer was polite and nice. Taufik did say that the arrest was made under a charge of (Section) 377B."

10.03am: Given that Taufik was not an interested party, there is no reason for the court not to accept his testimony. "He was merely performing his duty as asked - that was to arrest Anwar," says Yusof. Yusof cites that case of a person who was arrested and was informed on the grounds of his arrest a few hours later. "In Anwar's case, reasonable ground was said on the purpose of the arrest when the arresting officer Taufik mentioned the charge under Section 377B."

10.11am: Yusof says that, in this case, sufficient grounds were given and the police again read the charge less than an hour later. "Anwar complained of not getting (Saiful's) police report. The police report is not important. There was no delay in informing him (Anwar)."

10.17am: The prosecutor argues that there was no mala fide (bad faith) on the part of the police in making the arrest as Bakri had issued the order on July 15 (a day earlier) for fear that Anwar would not honour his pledge (to give his statement at 2pm). "There was the allegation of sodomy, a seizable offence. Taufik was under duty to make the arrest. Where is the unlawfulness of the arrest?"

10.21am: Yusof says Hospital Kuala Lumpur (HKL) is impartial, and that the examination should not be deemed as degrading, since certain things are done this way. "It is not as if the police recovered the items as a result of a degrading examination," he said.

10.23am: According to Yusof, the balance of probabilities shows the applicant had failed to prove anything about the unlawful arrest.

10.25am: Yusof says the test of admissability of evidence of the three items is relevancy. He cites a Jamaica case to show this. The prosecutor, who has spoken for about 45 minutes, requests a short break.

10.50am: The hearing resumes.

10.53am: Yusof continues with his argument on relevancy.

11.07am: He cites British case laws. "The court has a discretion to exclude evidence obtained illegally. However, the court has no discretion to refuse evidence even if it gained unlawfully, if it is relevant." Citing a case where a blood sample test was taken involuntarily to perform a DNA test, he says "it is allowed to be admitted if it is relevant".

11.25am: Yusof says the prosecution needs to show evidence and DNA from the mineral water bottle corresponds to the sperm retrieved from Saiful. He said this is to corroborate as to what is said by the witness (saiful). "It does not amount to a confession (by the accused) but it shows relevancy."

11.32am: Yusof says no tricks were employed in this case. "Anwar was not tricked into using the toothbrush, towel or bottle. He was not induced or threaten to do it. There was no oppression. Even if it is illegal, it is admissable."

11.37am: Yusof says a trial can be considered to be a fair one, even if evidence may have been unfairly obtained.

11.43am: He cites a British case involving unlawful arrest and unlawfully obtained evidence. The court accepted the evidence adduced to show guilt. Yusof says a sample of body fluid was taken without consent in a rape case but was admitted.

11.45am: PKR vice-president and Batu MP Tian Chua enters the courtroom in full parliamentary regalia (following the opening of the new Dewan Rakyat session this morning). He is followed by Selayang MP William Leong.

11.52am: Yusof mainains there was no illegality or impropriety in this case. "It is not a physical confession. No tricks."

11.53am: Yusof cites another British rape case where the hair and semen sample were taken unfairly for DNA tests from the accused - much like this case - and the court had ruled this admissable.

11.58am: Yusof says the evidence obtained supports the charge, and reiterates that there was nothing improper or illegal about this.

12.06pm: Yusof cites another American murder and rape case in which the accused caught five years later had refused to give a blood sample. "However, the police wanted to have his DNA and they used his unwanted cigarette buts to retrieve his saliva. Similarly in this case, the evidence was obtained from a mineral water bottle which was discarded."

12.11pm: Citing a case in Iowa in the US, he says the accused was feted with cake and given a mineral water bottle. "It was taken and replaced with another water bottle, and was used as evidence." Yusof says the respective courts in all these cases had admitted the evidence although it was obtained illegally.

12.16pm: He says the question of "prejudicial effect" does not arise as it only confirms guilt. Balik Pulau MP Yusmadi Yusoff and Machang MP Saifuddin Nasution come in with two others.

12.19pm: Lembah Pantai MP Nurul Izzah walks in. The public gallery is now packed. Yusof says that Saiful's evidence merely corroborated what was said, while the chemist's testimony affirmed the evidence which confirms the guilt of the accused.

12.22pm: He concludes by saying that the defence has failed to prove that it was improper to obtain the items obtained from the cell on balance of probability. "The items were taken without tricks being employed, there was no inducement, no threats, no promises...It would not be unfair for the court to admit the items as evidence (as it has) general discretion to admit evidence." He asked for the defence application to be dismissed and to allow the prosecution to call Supt Amidon and chemist Nor Aidora Saedon to admit the items as evidence.

12.25pm: The judge initially calls a recess up to 2.30pm, but then agrees to to hear Karpal's reply at 10am tomorrow.

source:malaysiakini

'Hujah akhir bicara dalam perbicaraan'

'Penahanan tak sah, ‘bukti pendakwa raya’ perlu ditolak'

"Anwar was not tricked into using the toothbrush, towel or bottle. He was not induced or threaten to do it. There was no oppression. Even if it is illegal, it is admissable." demikian hujjah Peguamcara Yusof.

Jika tindakan itu dibuat secara haram macam mana pula bahan2 bukti itu boleh 'admissable'. Yusof berhujjah panjang lebar bagi mengesahkan kewajaran pihak polis berbuat demikian. Mengambil bahan bukti daripada penjara secara haram adalah tak beretika!!

Perkara utama yang perlu di tanya apakah MOTIF polis berbuat demikian? Undang2 DNA dilulus oleh Parlimen selepas bahan2 bukti ini diambil. Jadi adakah bahan2 bukti ini sah dari segi undang2?

Botol air mineral,tuala dan berus gigi sengaja diletakkan dengan tujuan Anwar menggunakannya agar DNAnya diperolehi cara haram. Kalau Anwar TIDAK menggunakan barang2 tersebut, mungkin Anwar akan ditahan lebih lama dalam lokap.

Yang pelik kenapa pihak pendakwa tak memanggil Jude Preira untuk bagi keterangan untuk menjelaskan kenapa Anwar harus ditahan semalaman,walhal 'statement' Anwar siap diambil pada awal hari tersebut?

Yusof berhujjah dengan memberi contoh kes2 dari Britain,Amerika,Jamaica dan Afrika. Namun, apa yang berbeza ialah di Britain,Amerika,Jamaica dan Afrika pihak polis TIDAK menghantar 10-15 'commandos' bertopeng hitam dengan membawa sub-machine gun untuk menahan seorang Ketua Pembangkang ditengah hari suntuk,walaupun Ketua Pembangkang itu telah memberi jaminan akan hadiri di balai polis dengan rela.....

cheers.