Wednesday 5 September 2012

Sodomy II trial judge: Man of many moods

INTERVIEW Justice Mohamad Zabidin Mohd Diah was described as initially open when conducting the Anwar Ibrahim Sodomy II trial, but as soon as his ruling on ordering the prosecution to provide the witness list and other key documents was overturned by the upper courts, he appeared to have changed his stand.

Queen's Counsel Mark Trowell, the author of ‘The Trial of Anwar Ibrahim Sodomy II', said he found Zabidin to be fair after giving the ruling in favour of the defence, unlike (former Federal Court judge) Augustine Paul, who presided on Anwar's abuse of power trial.

NONETrowell, who observed both trials on behalf of the Inter-Parliamentary Union (IPU) and LawAsia, has worked extensively both as defence counsel and prosecutor in Australia.

Zabidin made the ruling in favour of Opposition Leader Anwar at the pre-trial stage, resulting in the prosecution appealing the decision. The Court of Appeal subsequently overturned the decision and this was upheld by the Federal Court.

Following Zabidin's ruling, Anwar's lawyers were allowed to inspect the CCTV recordings made at the Desa Damansara condominium, the witness statements of complainant Mohd Saiful Bukhari Azlan, Hospital Pusrawi's Dr Osman Abdul Hamid and other witnesses, along with the witness list and medical reports.

However, the Federal Court overruled the High Court's interpretation of section 51 and section 51A of the Criminal Procedure Code, saying it was flawed. Federal Court judge Abdull Hamid Embong said the section did not provide the wide-ranging application for the defence to obtain documents at the pre-trial stage.

"Its scope is restricted in law. In our view, the High Court judge went overboard in deciding to expand section 51 and had effectively changed the law by ordering the prosecution to provide the documents.

NONE"Changes in the law is for Parliament to decide, not the judiciary. Judges interpret the law, and judges under the guise of interpretation should not provide their own preferred amendments to the statutes," Abdull Hamid had ruled.

The ruling, said Trowell, had resulted in Zabidin going "into a shell". According to the Australian lawyer, the decision of the upper courts was only binding at the pre-trial stage.

"When the trial starts and witnesses are called, the defence has the right to get the documents. It is because when the trial starts, it is he (Zabidin) who runs the show and no one else."

However, he said the Federal Court ruling had an adverse impact on the trial judge, resulting in rulings against the defence, time and again, forcing Anwar's lawyer Karpal Singh to attempt to remove the judge on three occasions over allegations of bias.

Right decision to acquit

Trowell said despite this, Zabidin made the eventual decision to acquit Anwar.

"To tell you the truth, I was expecting that Anwar would be convicted on Jan 9 following the many rulings made by the judge against the defence. Anwar also told me that he had expected the worst and ready to be incarcerated for another six years".

"However, justice Zabidin, unlike his decision to order Anwar to enter his defence, announced his verdict within five minutes. I don't think people in the public gallery quite understood - or that it had sunk in - as after delivering it, the judge left (the courtroom) immediately."

NONEZabidin (left) had said: "After going through the evidence, the court could not with 100 percent certainty exclude that the DNA sample is not compromised. As such, the court is left with Saiful's testimony.

"As this is a sexual crime, the court is always reluctant to convict based entirely on Saiful's testimony, which is uncorroborated. The accused is thus acquitted and discharged."

Trowell said Anwar's acquittal was due to "sloppy police work" by the investigating officer Supt Jude Pereira, who had admitted in court that after obtaining the DNA samples from the Hospital Kuala Lumpur doctors, he reopened and repackaged them.

"This does not only happen in Malaysia as such things (sloppy police work) do happen in Australia. In the end, with the uncertainty or reasonable doubt, it was the right decision made by the judge to acquit Anwar," he said.

"Ultimately, he (the judge) found he could not exclude the possibility that the integrity of the sample had been compromised before it reached the laboratory for DNA analysis.

"As such, he was not satisfied this evidence was capable of corroborating the fact of penetration," Trowell wrote in his book.

He added that the samples were retrieved two days after the alleged sodomy incident and was not kept in a refrigerator as directed by the doctors. It was kept in the steel drawer in Jude's office and only given to the chemist two days later.

Poser on prosecution's appeal
Trowell said as an international observer he neither support Anwar nor did he want to tell Malaysia or the judiciary how things should be run.
"As my father had worked as an engineer in Ipoh, I know Malaysian sentiments that they are sensitive on how foreigners view their country and being told what to do.

"But I pose some questions on what could happen with the prosecution regarding its appeal in the case at the end of the book," he said.

NONETrowell wondered aloud whether the court would overturn the verdict should Anwar's Pakatan Rakyat win the next general election.

"I have told Anwar, ‘It seems your life circles around the court rather than fully in politics.'"

The 306-page book ended with several posers as to what fate holds with regard to another Anwar's court case - the Peaceful Assembly Act 2012 charge.

Trowell also asked whether it was right for former solicitor-general II Mohd Yusof Zainal Abiden, who had led the prosecution in the Sodomy II trial, to now defend the opposition leader.

As at press time, Yusof is representing former PKR supreme council member Badrul Hisham Shahrin, also known as Chegubard, who along with Anwar and PKR deputy president Azmin Ali, face charges related to the Bersih 3.0 rally.

Trowell also revealed that initially retailers in Malaysia were hesitant to put his book on the shelves, following actions by the authorities against Border's bookstore, which was raided in relation to another controversial book.

However, his book is now available in all major bookstores and can also be purchased online via

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