Transkrip Penuh Perbicaraan Kes Liwat Hari Kedua - 11 Mei 2010

Yang Arif Hakim Mohamad Zabidin Mohd Diah Pihak-pihak: Pasukan Pendakwaraya (PP): kecuali Hanafiah Zakaria. Peguam Bela (PB): Karpal Singh (KS), Sankara Nair (SN), CV Prabakaran (CV), Ram Karpal (RK), Marissa, Radzlan, Watching Brief: Zamri Idrus (for SP1), Rajpal Singh, P. Suppiah, Abdul Syukor Tokacil (for Bar C) Jennifer Robinson (for IBA) Anwar Ibrahim hadir, dan Hujahan isu s.112 CPC

[Mahkamah mula bersidang tepat jam 09:10 am]
MY: Pihak-pihak seperti semalam. Kes untuk sambung bicara, pemeriksaan balas SP1 (Saksi pertama iaitu Saiful Bukhari Azlan - A)
SP1 – Angkat sumpah semula (sambungan pemeriksaan balas)
Q: Kamu ada menyatakan ada beberapa statement telah direkodkan daripada kamu?
A: Ya
Q: Statement itu ada ditandatangani, statement dari polis?
A: Ada, beberapa statement dan ada di tandatangan
Q: Ingat pegawai yang rekod statement itu?
A: Ingat
Q: Satu atau lebih dari satu?
A: Seorang saja
Q: Siapa?
A: DSP Jude
Q: Dia saja?
A: Ya, dia saja
Q: Di mana tempat statement direkodkan?
A: Di IPD Brickfield
Q: Di tempat lain?
A: Ada
Q: Oleh pegawai yang sama?
A: Ya
Q: Tarikh direkod statement?
A: Bermula 29 Jun
Q: Selepas itu?
A: Berakhir bila tidak pasti sebab banyak
Q: Ada menyatakan ‘keadaan ini berlaku tanpa kerelaan”?
A: Ya
Q: Ada menyatakan dengan umum di luar dari mahkamah?
A: Dalam laporan saja
Q: Ada menyatakan di tempat lain?
A: Itu tak pasti
Q: Ada bersumpah bukan?
A: Ada
Q: Diluar mahkamah itu?
A: Ya
Q: Ada kata tanpa kerelaan?
A: Dalam sumpah tak ada kata
Q: Beberapa kali tanpa kerelaan?
A:
Q: Ada bersetuju?
A: Setuju
Q: Luar dari laporan?
A: Tidak pasti
Q: Tetap dengan pendirian tanpa kerelaan?
A: Pendirian tetap, sama
KS: This is for a foundation for his statement, just for a ground work. The application is for a statement that he has made to the police. This is for a purpose of laying ground for our submission to be made.
MY: Boleh minta saksi keluar?
YA: After this application, so Saiful boleh tunggu luar. KS what is your application?

KS: We want all his statements yang direkodkan dari saksi ini dalam penyiasatan kes ini. We want all statement which include the s.112 statements. 1st, charge is under s.377B PC. I take YA attention to the section. S.377B [read] S.377C [read - without consent]. S.377B would be consensual intercourse and s.377C is non-consensual. Read report of PW1. The incident alleged by the PW1, under s.377B would be with consent, s.377C without consent,. We have reason to believe his statement that his statement is with consent. There is contradiction between evidence in court and the charge framed. Under this circumstances it is still an offence. Consensual intercourse between male is not an offence in other countries.

We have a hunch that the statement produced in court contradict with his statement. Here we have the right for inspection and proceed with the impeachment. The law on point when there is a hunch, there is a right to inspect. This court have the right to inspect. Refer to Husdi case [Tag 1-FC] @ pg. [read]. So, what need to be establish is a hunch. Refer to PP v DSAI [Tag 3] para 37 The position come to this, the charge advert to consensual, the evidence here by the PW1 repeated as to non-consensual. If the law is S.377B, which is advert to s.377C and the punishment is up to 20 years, which is a discretion of the court -sentence to be imposed. There is a min of 5 yrs. Refer to DSAI v PP (FC) (Tag 4). What we have here is more than a hunch, it is more than what the law required. The statement recorded to be supply to the defence. That would be our submission.

MY: Today it is made clear that their application is premised under s.155 EA. Explain the conditions of s.155 EA. This is not between his evidence in court and his former statement. This is not the objective under s.155 EA – conditions – contradiction between evidence and the charge is not under s.155 EA. this is the 1st time I heard this. Refer to Johnson Tan Han Seng, between fire arms and the ISA. Example that a person could have be committed under 2 Act, discretion of the AG. PW1 said that he lodged a report, immediately after what that PW1 repeated here, it was without consent. Why AG prefer to charge AI for a lesser charge? That is his discretion. Refer to case Long Samad. Talk about a hunch, but Husdi discussed about the old s.113(ii). It say that the court must look at it, if the court said it is material, only then it can be refer to the defence. Refer to Dato’ Mokhtar Hashim [Tag 2][read p.276] para D PW1 evidence is consistent with this statement but inconsistent with the charge, this is not a hunch by KS. If PW1 allowed to explain, if PW1 was ask, he didn’t answer coz it is beyond him. Husdi said the court must see the statement 1st, refer to Husdi, pg 81 [read]. YA must take a look at the statement 1st, [read Husdi - after the court has seen it] Refer to amended s.113(2)(read) It is my humble submission, there is no hunch to justify this court to look at the statement or even to supply the statement to the defence.

KS: The general principle the PP have a discretion – fire arms act, ISA – Johnson Tan’s case. Now we have evidence from PW1 and the charge that has been framed – consensual – S377B, PW1 said about non – consensual. The basis for a hunch here, consensual intercourse – s377B, the PP charge AI for s.377B, but the evidence in court reflex s.377C – without consent. There is more than a basis which is sufficient for the court to make an order under s. 145 – the W may be cross exam with his previous statement. S.155 EA – is the procedure, case of Muthusamy come into the picture, we must direct to the intention of the court to the statement that said it was consensual. From that aspect, what happen the attention of the court is directed to the contradiction and the court then decided whether it is material.

YA: This is the 1st time contradiction statement and charge. Far reaching consequences.
KS: This is not based on hunch, it is so clear, non – consensual – there is s. 377C [the penalty referred to]. This is the 1st time in this country.
MY: There is no difference between in s377B and 377C, anal intercourse is an offence with or without consent. It does not provides difference offence, only prescribed enhance penalty. If without consent, it attracts heavier penalty. Have to prove penetration.
YA: Yes, the element is different. The difference is more to the element of consent.
MY: Yes.
KS: The ingredients of the charge is different, the nature that they have to prove. S. 377C – is non consensual. YA ruling will in fact constitute a final order and it is appealable.

YA: Whatever order / decision I made is interlocutory, that ones you can argue later. I’ll consider it. I need time to go thru’. In the afternoon or tomorrow morning.
MY: I can’t force YA to decide, although I prefer afternoon.
YA: Tomorrow morning at9 am.
[09:50 am] [Court adjourned]