Anwar's 3rd recusal attempt fails...

After a three week break, the Anwar Ibrahim sodomy trial resumes today with the defence making a fresh application to have Kuala Lumpur High Court judge Mohamad Zabidin Mohd Diah to be disqualified from hearing the case and for the trial to start afresh. Initially, today was fixed for the first day of Anwar's defence after Justice Zabidin decided the prosecution has a case against the Opposition leader to answer. This comes after the court found complainant Mohd Saiful Bukhari Azlan as a truthful and credible witness and that the doctors and chemist witnesses' testimonies corroborate with the findings.

The latest recusal attempt will be heard first today. This is the third attempt by Anwar to have Justice Zabidin recuse himself after earlier bids - over the judge's failure to take action against Utusan Malaysia and his threat to cite Karpal Singh for contempt - ended in failure. Karpal will submit the application first and this will follow with solicitor-general II Mohd Yusof Zainal Abiden's reply. It remains to be seen whether Justice Zabidin will decide on the application today or fix another day.

9.16am: Court begins with Justice Mohamad Zabidin Mohd Diah presiding.

9.20am: Karpal Singh submits that the maximum evaluation at the end of the prosecution is prima facie, not beyond reasonable doubt.

9.26am: Karpal says the court held PW1 (Saiful's testimony) as if it were irrebuttable and thus has pre-judged Anwar.

9.28am: Hence, Karpal submits that Anwar is not getting a fair trial. There is a real danger of bias with the court accepting Saiful's evidence as irrebuttable.

9.30am: Karpal says the burden of proof which should be adopted at the end of defence is beyond reasonable doubt. "The court must consider all evidence and it must apply the beyond reasonable doubt test at the conclusion of the trial." Anwar, Karpal adds, has the right to a fair hearing.

9.33am: Karpal says his client is being pre-judged in this case and reiterates the presence of a "real threat of bias". He ends the submission calling for prayers of judge's recusal be allowed and asks Justice Zabidin to take time to consider the argument.

9.33am: Now solicitor-general II Mohd Yusof Zainal Abiden submits, pointing out that this is the third attempt by Anwar's defence to have the judge recuse himself, and is unprecedented.

9.38am: Yusof cites the basis of the application (for recusal) is based on one paragraph out of 68 pages in the judgment. The words complained about is with regards to the word 'embellishment' as stated in Anwar's affidavit in support. Was there a bias? asks Mohd Yusof. "This can be looked at the final paragraph which notes (that) the evidence by Saiful is corroborated with other expert witness(es).

"A prima facie case (is) as defined under Section 180 of the Criminal Procedure Code, and the accused is called for defence."

9.43am: Yusof says the judgment notes the burden of proof set out in the prosecution case is a prima facie case. "PW1 evidence is accepted, that there is penile penetration to prove sexual intercourse," he says. What follows, he adds, is the defence counsel's attempt to tarnish PW 1's credibility on the argument that Saiful could have had ample opportunity to run. "There are 21 paragraphs in the judgment devoted to the defence' argument," he said.

9.50am: Yusof says despite attempts by the defence to a lengthy cross-examination, Saiful's testimony had remained consistent. "The judgment states (that) the court found Saiful's statement to remain intact." Yusof says the court had subjected Saiful's testimony to the maximum evaluation following the cross-examination.

9.56am: Yusof says a maximum evaluation test has to be done to determine the credibility of the witness. "That is what Yang Arif had done, (which was to) subject the witness to (the) maximum evaluation test to determine the witness' credibility," he says.

9.59am: Yusof says a prima facie case is where the 'beyond reasonable doubt' evidence has been adduced while the defence is given a chance to create doubts in the prosecution case. "The court will rely on the same evidence to prove the case beyond reasonable doubt. You must have 'beyond reasonable doubt' to call for a prima facie case, and that (sic) if the defence adduce their evidence, the court will then decide whether it is sufficient to affect the prosecution's case," says Yusof.

10.06am: Yusof cites former Federal Court judge Gopal Sri Ram in a certain Arunpragasam case. He said the standard of proof at the end of prosecution's case is to prove beyond reasonable doubt, but this only after all the evidence is adduced. "The court in previous judgment is playing the words by describing it as "beyond reasonable doubt".

"The standard set is high at the end of the prosecution"s case... beyond reasonable doubt evidence (at the end of the prosecution's case) that the facts had been produced."

10.12am: The burden for the defence is to raise reasonable doubt against the prosecution's case to show that their client is not guilty. "If the defence raises reasonable doubt as to the truth of the version by the prosecution, then the court should acquit the accused," he adds.

10.16am: Yusof says at no time did Justice Zabidin's judgment that Saiful's evidence is the (complete) truth and that is the end of it. "What you said is, a prima facie case has been made against you (the defence), that is all," he said. Yusof is now submitting on the issue of bias.

10.19am: Yusof asks whether there is anything to show the fact that Zabidin has shown any biasness. "What is so wrong with your finding that the defence alleges (shows) there is pre-judged (on your part)?. "It is corroborated by independent witnesses, one of whom is Anwar's chief of staff (Ibrahim Yaacob) who testified."

10.30am: Yusof says the application for the judge's recusal is made without merit and is directed to delay and derail the trial. He applies for the application be dismissed.

10.31am: Karpal, in reply to the prosecution, asks: Who is delaying the trial when 25 witnesses were offered to the defence to be produced in court, but so far not many have come forward? "It is not this application which is delaying the trial. The prosecution has not produced the PM (Najib Abdul Razak) and his wife (Rosmah Mansor) to get defence ready (sic)," he said. "Only five witnesses have been interviewed and these are not material witnesses.

"Anwar is not afraid to go to the box, but what he is concerned (about) is that (whether) he is getting a fair trial," he said.

10.35am: Karpal says the judge has found PW1 (Saiful) as a truthful witness, and the defence has gone to great lengths to (assert) several propositions (which the court has ignored).

10.38am: Karpal says the beyond reasonable doubt test is to be applied at the conclusion of the case.

10.45am: He contends further that his lordship had shut out the defence' arguments by saying Saiful is a witness of truth. "This shows Yang Arif is biased, (and) inclined, and this is obvious. Your lordship acted beyond what is required by law," he said, adding that the prayers by the defence should be allowed.

10.49am: Judge asks for a short break, after which he may possibly deliver his decision.

11.35am: Court resumes.

11.36am: Justice Zabidin says he finds there is no merit for the application and it is dismissed.

Karpal applies for a stay of the trial.

11.37am: Yusof then objects the stay application on the grounds it is not appealable, as it is made during course of the trial. He cites the Court of Appeal's decision by Justice Low Hop Bing and Justice Abdul Malik Ishak in the judge's second recusal appeal, where the court rules it is an interlocutory application and has not disposed the rights of the accused.

So, Yusof says the court can grant a stay if there is an appeal pending.

11.41am: Yusof asks to proceed with the defence.

11.44am: Karpal submits that the Boustead case applies as it is a Court of Appeal decision. He says the Boustead case concerns bias allegedly similar to this case.

"Your lordship should grant what we are praying for (a stay)."

11.47am: Judge asks defence to file the appeal by this afternoon. However Yusof says the issue of appeal is waste of judicial time.

"The Court of Appeal has made a decision that it is not appealable," he said.

Justice Zabidin then declares: "Application for a stay is allowed and the court fixes July 13 for mention."

source:malaysiakini

Liwat II: Anwar gagal kali ketiga dalam cubaan lucutkan hakim.

Don't blame the judge,can he just overturn his own classic judgement?

Dari awal anda boleh teka akan keputusannya. Takkanlah si hakim ini nak 'koner baring' penghakimannya,dah tentu dia akan tolak...

cheers.