On the Federal Court’s judgment in Anwar’s sodomy case

The recently delivered judgment of the Federal Court in Anwar Ibrahim v PP is, it is submitted with respect, flawed in law for the following reasons:

Consideration of the complainant's evidence

To summarise, the court held that there was a ring of truth in the complainant's evidence because (a) he provided a detailed account of the incident and (b) there had been a relationship between the appellant and the complainant and the former had taken advantage of the latter's weaker position. 

There also appears in the judgment a remark that the complainant had been subjected to lengthy cross-examination.

However, where the learned judges of the Federal Court erred was in not re-examining the story told by the complainant against the other circumstances and the probabilities of the case.

It is a well-established principle of criminal law that in a case of sexual complaint (including a charge of sodomy) the evidence of the complainant should be subjected to careful scrutiny. This is because a charge of sodomy is easily made but difficult to rebut which is a point accepted by the courts.

In this case, there were only 2 witnesses to the alleged crime. One was the complainant and the other the appellant. The appellant denied that he did the act. Hence the evidence of the complainant must be scrutinised with care. The complaint before the Federal Court was that the trial judge had failed to do that. Therefore it was incumbent on the Federal Court to re-examine the complainant's evidence.

However, it is submitted with respect that the Federal Court failed to do this.  Instead, it merely rubber stamped the view expressed by the trial judge on Mohd Saiful Bukhari Azlan’s credibility. This is a fatal flaw in the approach adopted by the apex court based on precedent, including the majority judgment of the Federal Court in Sodomy 1. Accordingly, the Federal Court erred in holding Saiful to be a truthful witness because it did not act in accordance with precedent, including its own decisions.

Inherent improbabilities in the complainant's evidence

The most important aspect of Saiful's evidence is that the act of sodomy took place in Apartment 1 and that it took place on a carpet in that apartment. However in a search by the police, a carpet was recovered from Apartment 2.

There is no evidence that the carpet was ever moved from Apartment 1 to Apartment 2, a fact acknowledged by the Federal Court in its judgment. Added to this is the fact that Saiful, who accompanied the police search team, identified the carpet as being the one on which the act had allegedly taken place.

The question that arises is whether the story told by Saiful is probable. It is submitted that it is not because the carpet was never in Apartment 1 and hence the alleged act could never have taken place. However, the Federal Court concluded that the fact relating to the carpet was not material. With respect, that is an erroneous finding of law because the proper inference was not drawn from the evidence. It is now well established that the failure to draw the proper inferences fairly admitted by the evidence on a point is an error of law. It is therefore submitted that the Federal Court fell into error in two respects. First, it treated as immaterial facts which were highly material to the probability of the story told by Saiful. Second, it failed to draw the proper inference from the facts, namely that the act did not take place and that accordingly the appellant was not guilty of any offence.

Once Saiful's story was found improbable and rejected, any corroboration offered by the prosecution would be irrelevant as a matter of law. The rationale is that only a credible witness may be corroborated. Hence it is submitted that on this point alone the judgement of the Court of Appeal should have been set aside.

The other serious improbability  in Saiful's evidence is in relation to the lubricant jelly. According to his evidence, he had the gel with him when he lodged his report on June 28 and met DSP Jude Pereira. He offered it to Pereira who turned it down saying that he would collect it the following day. The question that arises is whether that is a probable story. Pereira was a very senior police officer. He had many years of experience. The gel was, on the account given by Saiful in his police report, a very important piece of evidence. Even objectively speaking, it was an important item of evidence because it led the witnesses of medical and scientific fact to conclude that the gel must have been used, accounting for the fact there was no lesions in Saiful's anus. Hence on any view the gel was a critical piece of evidence.

Yet, Pereira is supposed to have asked Saiful to hang on to it until the following day. It is submitted that this is a highly improbable version. No senior investigating officer would have done that. Add to that the fact that Pereira did not confirm Saiful's version. This highly improbable story should have alerted the courts at all levels to look askance at Saiful's version and to treat the whole of his evidence

As for the complainant having withstood lengthy cross-examination, there is binding precedent in support of the proposition that the fact that a witness withstood lengthy cross-examination is not the true test for credibility and that the true test for credibility is the probability of story told by the witness.

Break in the chain of evidence

Putting to one side the issue of the accuracy of the DNA result purportedly showing that it was Anwar's sperm that was found in Saiful's anus, there is a much more fundamental question to be dealt with, namely whether the samples that were handed by the doctors to Pereira were the same ones that were received by the forensic witness in the Chemistry Department.

The prosecution case is that swabs were taken from Saiful's anus and handed to Pereira with instructions to place them in a freezer to prevent degradation of the samples. Pereira cut open the bag in which the samples were secured, had them re-marked, placed them in a steel cupboard and turned on the air conditioning. It was accepted by the relevant prosecution witnesses that unless the samples were preserved in a freezer there would be degradation. Yet the samples that arrived in the hands of the chemist were in pristine condition. Hence, there is serious doubt over whether the samples taken by the medical witnesses were the same ones that were received and examined by the forensic witness.

This, it is respectfully submitted, is sufficient to cast a reasonable doubt as to the integrity of the exhibits received and examined by the forensic witness.  It is therefore sufficient to warrant an acquittal of the appellant. The Federal Court however did not sufficiently address this point with the caution required in the circumstances of the case. Hence, it is submitted with respect that the finding of guilt affirmed by the Federal  Court is unsafe. 

DNA evidence

It is submitted that the starting point is what is called the prosecutor's fallacy. DNA evidence assumes importance only if there is other evidence to show that the offence was committed. In the case under discussion, Saiful's evidence was shown to be improbable and that he severely lacked credibility.  As such the DNA evidence does not help.

In any event, during submissions the appellant was able to demonstrate that the evidence of the forensic expert was doubtful on the point of its accuracy. It was therefore a case where the conviction entered by the Court of Appeal was unsafe. The Federal Court, it is humbly submitted, erred in upholding the conviction.

Dr Othman's evidence

The first doctor whom Saiful met was Dr Othman at Pusrawi Hospital. According to Dr Othman, Saiful told him that he had been sodomised with a plastic implement. Dr Othman made a note of this fact. Saiful denied making that statement. The question then is whether Dr Othman was speaking the truth. The High Court never touched upon his evidence. It was considered by the Court of Appeal which did not see or hear him. It found Dr Othman not to be a truthful witness. The Federal Court affirmed that finding.

Dr Othman is a Myanmarese. He was here under contract. After completing his contract, he returned to Myanmar. It was not shown by the prosecution that Dr Othman had a motive to cook up the story against Saiful. Therefore his evidence ought to have been considered by the trial judge, especially when it cast serious doubt on the credibility of the single most important witness in the case. His failure to do so, it is humbly submitted, was a serious non-direction that amounted to a misdirection.

The finding by the Court of Appeal that Dr Othman was not truthful is, with great respect, irrelevant as it is not the function of an appellate to make original findings of fact. The sole function of an appellate court is to review the findings made or omitted to be made by the trial court and to decide whether the finding or the failure to make it renders the decision wrong in law. In the case of a conviction by the trial court, the question would be whether the complaint when justified renders that conviction unsafe. In the case of an acquittal the question for the appellate court is whether there has been a miscarriage of justice because of the acquittal.

It is therefore respectfully submitted that the Federal Court fell into serious error when it affirmed the Court of Appeal's finding that Dr Othman lacked credibility. In so doing, it was exceeding its function. Its role was only confined to deciding whether the High Court's failure to deal with Dr Othman was a serious non-direction amounting to a misdirection. The limited function of appellate courts to review findings or omissions by the trial court is so ingrained in our law that a departure from it fatally flaws a decision made in breach of it. Hence the judgment of the Federal Court cannot stand.

Prejudicial evidence

At the trial, the prosecution attempted to introduce evidence to show that there had been previous acts of sodomy committed by the appellant upon the complainant. The judge upon the defence objecting excluded that evidence.

However when he gave his reasons for accepting Saiful as a credible witness, he took into account the very evidence he had excluded. In the Court of Appeal no complaint was made by the prosecution about the exclusion. However the Federal Court failed to have regard to the serious breach by the learned trial judge of his own ruling. Surely the appellant was legitimately entitled to expect that the learned judge would follow his own ruling. In its judgment, the Federal Court has not dealt with this point sufficiently or at all. Hence it is humbly submitted that the Federal Court fell into error.

Conclusion

This article seeks to draw attention to some of the main points on which the writer is of the humble opinion that the Federal Court erred in dismissing the Sodomy 2 appeal. It is by no means an exhaustive critique of the judgment under discussion. It merely seeks to argue that the decision of the Federal Court contains serious errors of law. There is no suggestion that a review is called for.

When the writer was studying law he learned that there is no appeal from the House of Lords save to the editorial board of the Law Quarterly Review. In Malaysian terms there is no appeal from a decision of the Federal Court except to the law journals.

* William Leong is a lawyer and Member of Parliament, Selayang.