Public Prosecutor v Dato’ Seri Anwar [2001] 3 MLJbin Ibrahim (Arifin Jaka J) 193 A Public Prosecutor v Dato’ Seri Anwar bin Ibrahim & Anor HIGH COURT (KUALA LUMPUR) — CRIMINAL TRIALS NO 45–51 OF 1998 AND NO 45–26 OF 1999 ARIFIN JAKA J B 30 APRIL 2001 Criminal Law — Carnal intercourse against order of nature — Sodomy — Whether penetration must be proved — Failure to prove potency of accussed — Whether all ingredients proved — Abetment of sodomy, whether proved — Penal Code ss 107, 109 & 377B C Criminal Procedure — Charge — Alteration or amendment of — Numerous amendments to date of offence in charge — Whether amendments made in good faith — Accused not prejudiced — Whether charge as amended clear and unambiguous — Whether charge valid D Criminal Procedure — Trial — Confession to magistrate — Admissibility of — Jurisdiction of High Court to admit confession by holding trial within a trial — Meaning of ‘inquiry or trial’ in s 115(1) of Criminal Procedure Code, whether only confined to preliminary inquiry — Whether confession should be excluded E Evidence — Burden of proof — Alibi — Alibi did not cover whole period stated in charge — Whether defence of alibi proved Evidence — Confession — Co-accussed’s confession — Contradiction with other evidence adduced — Whether court could accept only part of confession supported by other evidence — Whether confession was voluntarily made — Whether confession corroborated — F Subsequent letter by co-accused, whether fresh evidence to justify review as to admissibility of confession Evidence — Credibility — Assessment of — Impeachment and subsequent conviction by Syariah Court — Contradiction with evidence given at previous trial — Whether contradictions explained — Whether mere fact of allowing impeachment proceedings G automatically meant that witness was unreliable and untruthful — Witness convicted by Syariah Court, whether witness should be recalled to assess credibility — Whether conviction ground for disbelieving witness — Whether credit of witness affected by impeachment and subsequent conviction Evidence — False evidence — Defence of conspiracy to fabricate evidence — Whether H proved Evidence — Impeachment — Credit of witness — Contradiction with evidence given at previous trial — Whether contradictions explained — Whether mere fact of allowing impeachment proceedings automatically meant that witness was unreliable and untruthful — Whether credit of witness affected I Evidence — Proof of — Sodomy — Penetration — Whether penetration must be proved by medical evidence alone 194 Malayan Law Journal [2001] 3 MLJ Evidence — Statement — Press statements — By Prime Minister and Inspector General A of Police — Statements point to innocence of accused, whether relevant Evidence — Witness — Recalling of — Witness convicted by Syariah Court — Whether witness should be recalled to confirm his conviction and assess his credibility — Whether proceedings in Syariah Court relevant in assessing credibility of witness B Both the accused were charged separately for offences under the Penal Code. In Criminal Trial No 45–51–98, the accused Dato’ Seri Anwar bin Ibrahim (‘Dato’ Seri Anwar’) was charged with an offence punishable under s 377B of the Penal Code for committing carnal intercourse against the order of nature with one Azizan bin Abu Bakar (‘Azizan’) in May 1994. Subsequently the prosecution amended the C original charge in respect of the year 1994 stated therein to read 1992. In Criminal Trial No 45–26–99, the accused Sukma Darmawan Sasmitaat Madja (‘Sukma’) was charged with two offences, firstly for abetting Dato’ Seri Anwar in committing carnal intercourse against the order of nature and secondly for committing carnal intercourse against the order of nature with Azizan. The offences were alleged to D have been committed at Sukma’s apartment, Tivoli Villa. At the commencement of the joint trial, the amended charge against Dato’ Seri Anwar was amended again in respect of ‘dalam bulan Mei 1992’ (in the month of May 1992) to read ‘di antara bulan Januari hingga Mac 1993’ (between the months of January and March 1993). The E charges against Sukma was also amended in the same manner. The defence took strong objection to the amendment of the charges. Both accused applied to strike out the proceedings on the ground that the amendment was not made in good faith and was an abuse of the process of the court. The court had dismissed the applications to strike out the proceedings on the ground that they were devoid of any merits. F The prosecution sought to admit the confession of Sukma through its witness En Abdul Karim bin Abdul Jalil, a sessions court judge who recorded it in his chambers. The defence contested the admission in evidence of the confession on the ground that it was not made voluntarily. A trial within a trial was held to ascertain whether G or not there was any substance in the objection taken by counsels for the defence. At the commencement of the proceedings in the trial within a trial, counsel for Dato’ Seri Anwar raised a preliminary objection as to whether the court has the jurisdiction to embark on the issue of admission of any statement or confession made by an accused H person for purpose of use in this proceeding by holding a trial within a trial. Sukma’s confession was recorded under s 115 of the CPC (FMS Cap 6). It was submitted that s 115 was enacted for the purpose of using the confession in the High Court after a preliminary enquiry in the magistrate’s court. As a preliminary enquiry has been abolished, the High Court has no jurisdiction to conduct a trial within a trial and I this would mean the confession can be used only in a magistrate’s court. Public Prosecutor v Dato’ Seri Anwar [2001] 3 MLJbin Ibrahim (Arifin Jaka J) 195 A The defence had embarked on the impeachment of Azizan on the basis that there was a contradiction between the statements he made when he gave evidence in the trial of Dato’ Seri Anwar on charges of corrupt practices and his testimony in the present trial. The defence also challenged the evidence of Azizan on the principal ground that he was an unreliable witness and was not a witness of truth because he B gave inconsistent statements in his testimony. It was argued that the fact the court allowed impeachment proceedings be brought against Azizan was acknowledgement of the fact that there were material contradictions in his testimony and this by itself was a ground for disbelieving Azizan and rejecting his evidence. The other ground advanced by the defence for attacking the credibility of Azizan was his C conviction in the Mahkamah Syariah. It was contended by the defence that it was necessary to recall Azizan to give evidence to confirm his conviction and to assess his credibility. The defence of Dato’ Seri Anwar substantially was that of alibi, denial that he went to Tivoli Villa and conspiracy to fabricate D evidence. Sukma’s defence briefly related to alibi and the offences against him could not have been committed as alleged due to the renovation of his apartment. Held, finding both accused guilty on the charges against them: E (1) On a close scrutiny of the explanation by Azizan, the court found no difficulty in accepting it under the circumstances and on the evidence available. The statements in question which form the basis of the impeachment of Azizan must be read in the context of the questions that were asked. The court found that F there was in fact no contradiction at all between what he had said in the previous trial and the evidence he gave in this instant proceedings in respect of the act of sodomy as stated in the charges against both accused. In any event, even assuming that there was a material contradiction, the court was more than satisfied that Azizan had successfully explained the contradiction G beyond any doubt. Therefore, the court ruled that the impeachment proceeding failed and the credit of Azizan was saved and remained intact and further that in truth, in fact and in substance Azizan was a truthful witness (see p 229D–F). (2) The High Court had the jurisdiction to decide the question of H admissibility of the confession made by Sukma to En Karim who acted in his capacity as a magistrate. This is clearly borne by the wordings of s 115(1) which says that the statement or confession may be recorded by the magistrate as any time before the inquiry or trial. The words used are ‘inquiry or trial’. ‘Inquiry’ as defined in s 2 of the CPC includes every inquiry conducted under this I Code before a magistrate. It is not confined only to a preliminary inquiry. Once the statement or confession is recorded by the magistrate, it can be used in any court if it is relevant and it 196 Malayan Law Journal [2001] 3 MLJ becomes the duty of the trial court or the court which hears the A inquiry to determine the admissibility of the statement or confession. The preliminary point raised by the defence counsel was a non-issue (see p 230E–G). (3) Having considered all the evidence adduced in the trial within the trial and the submission of counsels both for the prosecution B and in all the circumstances, the court was satisfied that there were no grounds sufficient to persuade the court in the exercise of its discretion that the court should exclude the confession as evidence. The court therefore admitted in evidence the confession made by Sukma on the ground that the prosecution had proved beyond reasonable doubt that it was made C voluntarily in the sense that it was not obtained by threat, inducement, promise or oppression (see p 244E–F). (4) It was clear in the charges it was specified the offences were alleged to have been committed one night at about 7.45pm between the months of January and March 1993 at Tivoli Villa, D in the Federal Territory of Kuala Lumpur.