KUALA LUMPUR (Apr 27): Datuk Seri Anwar Ibrahim, who has begun serving a five-year jail term for sodomising his former aide, will apply for a review of the Federal Court's decision to uphold his guilty verdict.
Lawyer Latheefa Koya (pic), a member of the opposition leader's legal team, said the application was being finalised and would be filed this week although there was no deadline.
"There are some valid grounds to review the ruling by the five-man bench after seeking legal consultation," she told The Malaysian Insider.
Latheefa said Anwar, who is PKR de facto leader and currently serving sentence in Sungai Buloh prison, had also instructed that the review application be filed.
A review application is made under Rule 137 of the Federal Court rules on grounds of unfairness, with the applicant asking for the adverse judgment to be set aside and a new bench be constituted to rehear the appeal.
Latheefa declined to elaborate on the grounds of Anwar's review application as the court papers had yet to be filed.
On February 10, the Federal Court bench led by Chief Justice Tun Arifin Zakaria dismissed Anwar’s final appeal against his conviction for sodomising Mohd Saiful Bukhari Azlan and maintained the five-year jail term imposed by the Court of Appeal.
The appellate court in March 7 last year reversed the High Court's finding which acquitted Anwar after his defence was called.
Addressing the panel of five judges in the Federal Court, Anwar, who has maintained his innocence, had said: “You have become partners in crime in the murder of judicial independence,” prompting the judges to get up and walk out of the room.
Anwar continued speaking from the dock, saying, “Allah be my witness. I pledge that I will not be silenced. I will fight on for freedom and justice. I will never surrender.”
His speech came during mitigation proceedings during which the defence and the prosecution were given an opportunity to speak before the judges decided the prison term.
Chief Justice Arifin, who delivered the judgment, said there was “overwhelming evidence” that Anwar sodomised Saiful.
He said the charge under Section 377B of the Penal Code was concerned with acts of carnal intercourse against the order of nature, and that consent was not a necessary ingredient to the offence.
The written grounds said that the judges were convinced that there was a "ring of truth" in Saiful's complaint and he had provided a detailed account of the incident.
Further, there was a relationship between Anwar and Saiful and the former had taken advantage of the latter's weaker position, the judges' decision said.
Anwar was convicted of committing the offence at a unit of the Desa Damansara condominium in Bukit Damansara, between 3.10pm and 4.30pm on June 26, 2008.
However, Anwar's legal team said the Federal Court judges erred in not re-examining the story told by Saiful against other circumstances and the probabilities of the case.
They said the evidence was not subjected to careful scrutiny as a sodomy charge was easily made but difficult to rebut which was a point that has been accepted by the courts.
In this case, only Anwar and Saiful were witnesess to the alleged crime.
Anwar's lawyers said it was incumbent on the Federal Court to re-examine Saiful's evidence, the most important of which they said was Saiful's claim that the act of sodomy took place in Apartment 1 of the condominium building, 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 was no evidence that the carpet was ever moved from Apartment 1 to Apartment 2, a fact acknowledged by the Federal Court in its judgment.
The defence was of the view that Saiful's story was not probable 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 immaterial.
The defence has also said that the Federal Court erred by failing to consider the improbability of Saiful's evidence regarding the investigating officer, then Superintendent Jude Pereiera, who only collected the lubricant jelly allegedly used to facilitate the sexual act a day after Saiful the complainant lodged a police report on June 28.
The defence said Saiful's story was highly improbable as no senior investigating officer would have done that and Pereira did not confirm Saiful's version.
It also said that DNA evidence assumes importance only if there was other evidence to show that the offence was committed but in the present case, Saiful's testimony was shown to be improbable as he lacked credibility. As such, the DNA evidence does not help, the defence had argued.
The defence also questioned whether the samples that were handed by doctors at the Kuala Lumpur hospital to Pereira were the same ones that were received by a forensic expert in the Chemistry Department, alleging that tampering could have occurred in Pereira's handling of the samples.
They said Pereira's action of cutting open the bag in which the samples were secured, re-marking them, placing them in a steel cabinet and turning on the room's air-conditioning, had compromised the samples.
It was accepted by prosecution's witnesses that degradation would have occurred unless the samples were preserved in a freezer.
Yet, the court was told by the government's chemist that the samples were in "pristine" condition.
The defence said that as such, there was serious doubt as to whether the samples taken by the medical witnesses were the same ones that were received and examined by the forensic witness. – The Malaysian Insider