Anwar Boleh dibedah akhirnya..
PETIKAN TEKS PENUH PENGHAKIMAN RAYUAN KES LIWAT ANWAR IBRAHIM
It must be borne in mind that the duty on the part of the prosecution at the close of the case for the prosecution is to prove beyond reasonable doubt, not only, that the offence was committed one night at Tivoli Villa, but also that that “one night” was in the month of January until and including the month of March 1993. Even if it is proved that the incident did happen but if it is not proved “when”, in law, that is not sufficient
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Who gave the “May 1994” date to the police? Logically, the date of the commission of the offence could only come from Azizan as he was the “victim”, the only person present other than the appellants.
In this trial, on 3 August 1999, Azizan was cross-examined by Mr. Christopher Fernando:
“S: Adakah kamu beritahu pihak polis kamu diliwat pada bulan Mei 1994? J: Saya tak ingat.” ………………………………..
S: Adakah kamu tahu tuduhan asal terhadap Dato' Seri Anwar adalah pada Mei 1994? J: Ya, saya tahu.
S: Adakah kamu diberitahu polis kamu diliwat pada bulan Mei 1994? J: Saya tak ingat.”
(Jilid 2, page 992 to 993)
On 4 August 1999, still under cross-examination:
“S: Adakah awak beritahu polis bahawa awak diliwat oleh Dato' Seri Anwar dan Sukma pada bulan Mei 1994? J: Tidak.”
(Jilid 2, page 999)
Still under cross-examination on 9 August 1999: “S: Adakah tidak sebelum hari ini awak ada memberitahu mahkamah ini bahawa awak tidak ada memberitahu polis bahawa awak diliwat oleh Dato' Seri Anwar dan Sukma pada tahun 1994? J: Ada.
S: Jikalau awak tidak beritahu tarikh iaitu tahun 1994 siapakah beritahu polis ianya berlaku dalam bulan Mei 1994? (Tidak ada jawapan).”
(Jilid 2 page 1028 to 1029)
On 16 August 1999, now under re-examination by the Attorney General:
“S: Adakah awak katakan apa-apa kepada polis mengenai apa-apa kejadian dalam tahun 1994. J: Saya beritahu polis yang saya ada diliwat pada tahun 1994.”
(Jilid 2, 1055)
So, having denied that he informed the police that he was sodomised by the appellants in 1994, he finally admitted that he did tell the police that he was sodomised in 1994. That answers the question that he earlier on did not answer when asked: if he did not tell the police the 1994 date who informed the police that the incident happened in May 1994?
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On 23 April 1999, the second appellant was charged. The date of the offence was given as “May 1992”. Three days later, on 27 April 1999, the charge against the first appellant was also amended from “May 1994” to “May 1992”. How did this date come about? SAC 1 Musa provides the answer: it was based on “other statements” made by Azizan. (Jilid 2. Page 1101). After the amendment, notices of alibi were served on the prosecution. Then, it was found that the construction of Tivoli Villa had not been completed yet!
On this point, the evidence of Azizan given on 4 August 1999 reads:
“S: Setuju atau tidak pada bulan Mei 1992, Tivoli Villa (belum siap dibina)?
J: Setuju.”
(Jilid 2, page 998).
On 7 June 1999 the charges were amended from “May 1992” to “between the month of January until March 1993”.
On 3 August 1999 under cross-examination, Azizan said that he gave that “date” to the police on 1 June 1999 (Jilid 2, page 993).
Towards the end of his evidence, when re-examined by the then Attorney General, another point cropped up. Azizan said:
“J: SAC1 Musa telah meminta saya untuk mengingati dengan jelas tentang kejadian pertama kali saya diliwat di Tivoli Villa.” (emphasis added)
(Jilid 2, page 1064)
Note that he now talked about SAC1 Musa asking him to remember the incident that he was sodomised by the appellants for the first time at Tivoli Villa. SAC1 Musa (SP9) also said the same thing:
“J: Saya minta Azizan mengingatkan tarikh pertama kali dia di liwat oleh Dato' Seri Anwar dan Sukma di Tivoli Villa.” (emphasis added).
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Second Appellant's Confession On the second day, in the morning, 7 September 1998, he was taken to ASP Rodwan's offfice. There he met a person by the name of “Zul” (ASP Zulkifly bin Mohamed, TPW4). After ascertaining his identity, according to the second appellant, ASP Zulkifli lifted his shirt and pinched his nipple while making fun of him using shameful words (“memulas-mulas buah dada (nipple) saya dengan sekuat-kuatnya dengan mempersendakan diri saya dengan kata-kata yang memalukan”). At the office, ASP Rodwan asked him to make a statement regarding his homosexual relationship with the first appellant. When he denied, ASP Rodwan challenged him to take an oath with the Quran in the presence of a religious teacher (“Ustaz”). He accepted the challlenge but no “Ustaz” came. Later in the same day, 7 September 1998, he was taken to see a magistrate. The magistrate made a remand order of two weeks straight away.
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He was further cross-examined by Mr. Karpal Singh. He admitted that in 1997 he investigated the allegations (“tohmahan-tohmahan”) against the first appellant. He did not carry out a full investigation in 1997. However he admitted that he recommended that no further action be taken on the file and that a full investigation be carried out first before such recommendation be made. He also admitted that he made similar recommendation to the Attorney General who agreed with him. The file was however re-opened in June 1998 based on the police report by Mohd. Azmin Ali concerning the book “50 Dalil”. The following question and answers read:
“S: You arranged for a meeting in your office between Mohamed Nor Don and Sukma?
J: Benar, pada 30.9.98.
S: Sebelum tarikh ini, Mohamed Nor Don belum dilantik.
J: Saya setuju.
S: You allowed the use of your office by Mohamed Nor Don to see Sukma.
J: Yes.”
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So, we have to rely on Azizan's evidence alone to prove the “date” of the offence.
The learned trial judge found Azizan a truthful, credible and reliable witness. He was even prepared to convict the appellants on Azizan's evidence alone.
But, we find that Azizan's evidence, especially on the “date” of the commission of the offence doubtful. He had given three different periods, the first two covering one month each and the last covering three months, in three different years (1992, 1993 and 1994), including one (“May 1992”) when the construction of Tivoli Villa was not even ready. Besides, he also contradicted himself on the issue whether he informed the police that he was sodomised in 1994. His demeanor even prompted the learned trial judge to record that he was “very evasive and appears to me not to answer simple question put to him” when he was cross-examined as to the manner the police finally obtained from him the “date” specified in the charges. On such evidence, can the court accept that the “date” of the offence has been proved beyond reasonable doubt? In considering his evidence whether it proves the offence or not, any benefit of the doubt should be given to the appellants who are the accused.
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There is yet another point concerning the date of the commission of the offence. The notes of evidence on 19 August 1999 shows that when Mr. Karpal Singh requested for an adjournment to enable SAC1 Musa (SP9) to carry out an investigation in respect of alibi for the period from January 1993 to March 1993, the then Attorney General, at first had no objection. However, after the lunch break, he objected to the postponement on the ground that, at that stage, he had advised SAC 1 Musa that there was nothing more to investigate. And he said this:
“Peguam Negara: Saya telah memberi nasihat pada saksi ini (SAC1 Musa - added) siasatan lanjut berkaitan dengan alibi yang diberi oleh kedua-dua pihak pembela (tidak perlu (?)- added) kerana pihak pendakwa mempunyai rekod dan keterangan berkaitan dengan pergerakan (movement) Dato' Seri Anwar di dalam negara dan di luar negara dari tahun 1992 hingga September 1998 iaitu tarikh pemecatan.”
(Jilid 2, page 1124)
The point is this. If the prosecution had such a record, which should include the night(s) the first appellant went to Tivola Villa, then the prosecution should be able to know when the first appellant visited Tivoli Villa. Instead, the prosecution had given three “dates” as the date of the commission of the offence covering a period of three years (1992, 1993 and 1994) and the final date covers a period of three months. It only shows that even the prosecution was not sure.
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To summarise our judgment, even though reading the appeal record, we find evidence to confirm that the appellants were involved in homosexual activities and we are more inclined to believe that the alleged incident at Tivoli Villa did happen, sometime, this court, as a court of law, may only convict the appellants if the prosecution has successfully proved the alleged offences as stated in the charges, beyond reasonable doubt, on admissible evidence and in accordance with established principles of law. We may be convinced in our minds of the guilt or innocence of the appellants but our decision must only be based on the evidence adduced and nothing else. In this case Azizan's evidence on the “date” of the incident is doubtful as he had given three different “dates” in three different years, the first two covering a period of one month each and the last covering a period of three months. He being the only source for the “date”, his inconsistency, contradiction and demeanour when giving evidence on the issue does not make him a reliable source, as such, an essential part of the offence has not been proved by the prosecution. We also find the second appellant's confession not admissible as it appears not to have been made voluntarily. Even if admissible the confession would not support the “date” of the commission of the offences charged. We have also found Azizan to be an accomplice. Therefore corroborative evidence of a convincing, cogent and irresistible character is required. While the testimonies of Dr. Mohd. Fadzil and Tun Haniff and the conduct of the first appellant confirm the appellants' involvement in homosexual activities, such evidence does not corroborate Azizan's story that he was sodomised by both the appellants at the place, time and date specified in the charge. In the absence of any corroborative evidence it is unsafe to convict the appellants on the evidence of an accomplice alone unless his evidence is unusually convincing or for some reason is of special weight which we find it is not. Furthermore, the offence being a sexual offence, in the circumstances that we have mentioned, it is also unsafe to convict on the evidence of Azizan alone.
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We therefore allow the appeals of both appellants and set aside the convictions and sentences.
************************2 September 2004
(DATO' ABDUL HAMID BIN HAJI MOHAMAD) Hakim Mahkamah Persekutuan Malaysia
teks penuh : http://www.bharian.com.my/m/BHarian/kes_anwar_ibrahim
Persoalan : Hukuman 6 tahun penjara yang telah dijalani sebelum ini atas tuduhan rasuah, adakah perlu dibincangkan semula.. siapa yang rasuah sebenarnya..?
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