PUTRAJAYA, 30 Oct 2009: The prosecution and PKR de facto leader Datuk Seri Anwar Ibrahim need to wait until 6 Nov for the Court of Appeal to decide on documents and a specimen DNA sample taken from Mohd Saiful Bukhari Azlan.
Anwar, 62, is charged with sodomising Mohd Saiful, 24, his former aide, at a condominium in Bukit Damansara, Kuala Lumpur on 26 June 2008. The prosecution is appealing against the High Court order for it to supply documents to Anwar.
Anwar is in turn cross-appealing against the same High Court order, which rejected his application to get a specimen sample from the complainant, Mohd Saiful.
After hearing submissions from both parties, Justice Datuk Hasan Lah, who led the panel comprising Justices Datuk Wira Abu Samah Nordin and Datuk Sulaiman Daud, said the court needed time to consider the matter.
Earlier, Solicitor-General II Datuk Mohamed Yusof Zainal Abiden, who led the prosecution team, submitted that the High Court judge had erred in his decision to compel the prosecution to supply documents to Anwar under Section 51 of the Criminal Procedure Code (CPC). Yusof said the judge had misconstrued the section as he had interpreted without any legal justification or authority.
“More importantly, the new construction placed on Section 51 of the CPC by the High Court judge was contrary to all established principles and rules of construction of a statute,” he said.
Yusof said the appropriate time for Anwar to have made the application for the documents would have been at the defence stage.
Counsel R Sivarasa submitted that the High Court judge was right in his decision after reading in totality the scope of Section 51. Therefore, the court had no basis to interfere over the High Court’s order.
In his cross-appeal, Sivarasa said the defence needed the chemist’s report on Mohd Saiful’s specimen sample to enable it to seek expert opinion.
He said the court should give the sample even if it had been sealed by the chemists, and that it could be opened under supervision of the court.
Yusof said once the specimen sample was opened, it would be contaminated.
On 16 July 2009, High Court judge Datuk Mohamad Zabidin Mohd Diah granted Anwar‘s application to compel the prosecution to supply him with the recorded witness statements of Mohd Saiful, Dr Osman Abdul Hamid from Pusrawi, condominium owner Hassanuddin Abdul Hamid, and the statements of three other witnesses and other documents.
However, Anwar failed to get Mohd Saiful’s specimen sample after the High Court rejected his application. The court on 24 July granted the prosecution’s stay of execution of the order, pending the disposal of its appeal to the Court of Appeal.
The case is fixed for mention on 3 Nov. — Bernama