PETALING JAYA, Aug 4 – Opposition Leader Datuk Seri Anwar Ibrahim’s lawyers today accused the prosecution in his Sodomy II trial of misconduct for omitting evidence required by law, including two medical reports which showed the complainant did not have any signs of anal penetration.
Speaking to reporters at the PKR headquarters here today, Anwar’s lawyers Sivarasa Rasiah and Edmund Bon stressed that a recent certificate under Section 51A(1)(c) of the Criminal Procedure Code (CPC) signed by the public prosecutor and which is needed before the trial proper can start, was defective.
Under the law, the prosecution is required to mention the existence of all relevant evidence, including that which is favourable to the defence, as part of the discovery process.
Bon claimed the existence of two medical reports from a private hospital and the government-run Hospital Kuala Lumpur, on Anwar’s sodomy complainant, Mohd Saiful Bukhari Azlan, showed there was no anal penetration.
He cited this as an example of evidence which was favourable to the defence.
“The Section 51A(1)(c) submitted is an illegal certificate which does not comply with the law,” Bon said.
“The prosecution has failed in its duty to carry out the law and the Attorney General’s guidelines,” he added.
Bon explained that under the Attorney General’s own guidelines on prosecution, the prosecution is required to give the defence a written statement pointing out facts that were favourable to the defence three weeks before the trial is scheduled to start.
The lawyers said they filed a new application to counter the prosecution’s latest move yesterday at the Kuala Lumpur High Court registry.
The defence wants the high court to review the prosecution’s certificate and set it aside on the basis that it has broken the law which clearly provides an accused person a fair chance to defend himself in a trial.
They also want the court to order the prosecution to come up with a new certificate detailing all the facts in favour of the defence and a stop-order barring the prosecution from continuing their case against Anwar until they’ve handed over the new certificate.
They named deputy public prosecutor Hanafiah Zakaria, one of the seven prosecution members who signed the certificate, in their suit.
Sivarasa, who is also the MP for Subang, explained that Parliament had amended criminal law two years ago making it compulsory for the prosecution to tell the defence there are certain facts favourable to the accused person before the trial begins.
While the new provision of law does not create a completely level playing field, it is still a fairer chance for the accused to defend himself in court, he said.
Before 2007, he said the accused was only entitled to the police report against him.
“It’s literally a trial by ambush,” said Sivarasa on his client’s current status.
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