Saifool cannot compel prosecution to appeal...

Complainant Mohd Saiful Bukhari Azlan cannot compel the prosecution to appeal yesterday's acquittal of Opposition Leader Anwar Ibrahim on the sodomy charge.

This is the position taken by two criminal lawyers asked for their views on whether Saiful could file an application to compel the prosecution to appeal the High Court's acquittal and discharge verdict.

V Sithambaram (left) told Malaysiakini that this could not be done because even though Saiful claimed to be the victim, the crime was alleged to have been committed against the state.

"Although he is the complainant, Saiful cannot file any judicial review application to force the prosecution to appeal in this matter," said Sithambaram, who had represented Shah Alam City Council engineer Hanif Basree Abdul Rahman in the alleged murder of Noritta Samsudin

Another criminal lawyer, Amer Hamzah Arshad, concurred, saying that when political analyst Abdul Razak Baginda was acquitted of murdering Mongolian translator Altantuya Shaariibuu, lawyer Karpal Singh filed an application to compel the prosecution to appeal.

"However, the application was later withdrawn, for the discretion of filing an appeal or not lies with the Attorney-General.

It is entirely up to the prosecution to decide whether it will appeal the verdict or not," said Amer Hamzah, who was once part of the defence team in the Sosilawati Lawiya murder case.

Following Anwar's acquittal yesterday, Saiful expressed hope that the prosecution would appeal the judgment. Saiful said he wanted his rights to be given due process right up to the "highest judicial authority" and that he and his family hoped the prosecution would take the case to the Court of Appeal.

Prosecution has 14 days to appeal

In criminal matters, the prosecution has 14 days to file an appeal, said another criminal lawyer, Baljit Singh Sidhu.

"Hence, the last day the appeal against the Sodomy II verdict can be filed should be Jan 23, which Chinese New Year's day.

However, under the Interpretation Act 1948, if that day falls on a public holiday, then the last day for filing would the next working day.

"By my calculation, the last day for the prosecution to file a notice of appeal is Jan 25," Baljit (right) said.

Amer Hamzah agrees with Baljit's views that the prosecution has until Jan 25 to file the notice but said that in legal practice, the position normally taken is "the earlier, the better".

In a related development, the head of the Appeal and Trials Division in the Attorney-General's Chambers, Kamaluddin Md Said, told Malaysiakini, that the chambers had yet to decide whether to file an appeal. Anwar's case now comes under his purview.

Appeal only after written judgment is provided

Sithambaram said once the notice of appeal is been filed, the judge would have to provide the written grounds of the judgment.

"This has to be included in the appeal records, before the court registrar fixes a date to hear the appeal," he said.

The senior lawyer said the judge was not obliged to provide the grounds of judgment when delivering judgment, but as soon as the notice of appeal is filed, he should provide the grounds in writing.

In the past, Sithambaram said, a directive had been in force that written judgments should be provided within six months of the judgment being delivered, but he is not certain whether this is still practised.

Amer Hamzah (left) said ideally, a judge should provide his written grounds for the verdict within six weeks of its delivery.

However, he said, there were some judges and magistrates who still did not provide reasons when delivering their verdicts. Some would only say that the prosecution had proven its case "beyond reasonable doubt" and do not provide their grounds for such a decision.

"In Anwar's case, the judge only said that he does not accept the DNA evidence," Amer Hamzah said.

Former High Court judge Syed Ahmad Idid, who authored ‘Writing of Judgments: A practical Guide for Courts and Tribunals', said ideally, written judgments should be provided within a month of the verdict being delivered.

"You should not take too long in writing down the grounds, for it should be done when the mind is still fresh on the issues. Then, give yourself two weeks to write the draft.

"After that, take another two weeks to rethink what you have written, for a possible sudden change of mind. This is because you may have thought of something left out. So, ideally, you need a month to write a judgment," Syed Ahmad (right) had said.

Written judgments have been a contentious issue in the appeal of cases, with some lawyers complaining that judges took a long time, sometimes years, to write a judgment, resulting in those appealing criminal conviction, especially those facing death, becoming psychologically traumatised.

Sithambaram said in the Hanif Basree appeal, it took the Court of Appeal one-and-a-half years to hear the matter, and it took another year to reach the Federal Court.

Malaysia practises a two-tiered judicial appeal system. Cases that originate in the lower courts (magistrates and sessions) will end at the Court of Appeal, while cases originating from the High Court will go to the Court of Appeal and then Federal Court, which is the final arbiter.-Hafiz Yatim

source:malaysiakini




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