The court said Anwar’s appeal was not in accordance with Section 51 of the Criminal Procedure Code (CPC) and that the defence’s reasoning to compel extra evidence for early preparation was legally flawed.
Section 51 (A) of the CPC provides the court with discretionary powers to allow or disallow the prosecution from supplying the defence with evidence.
However, Justice Datuk Abdull Hamid Embong, who led the panel, said the CPC could not be interpreted as a way to “fish” for evidence and that the courts must “safeguard” the prosecution’s space to prosecute, to ensure a fair hearing.
“One settled principle attached to the application for discovery, under section 51 of the CPC, is that at this pre-trial stage, a roving and fishing inquiry for evidence is not permissible. A catch-all net cannot be cast,” he said.
“The appellant is not entitled to know by what means the prosecution proposes to prove the facts underlying the charge he faces. This remains the prerogative of the prosecution,” he added.
The decision was based on the time the appeal was made by Anwar’s team of lawyers, led by Karpal Singh. Abdull Hamid argued that, from precedents, the appeal can only be made only when the trial starts.
On Nov 6 last year, the Court of Appeal granted the prosecution’s appeal against an earlier High Court decision in Anwar’s favour.
Anwar (second right) is seeking additional evidence from the prosecution. — file pic
“In our view, the High Court judge went overboard in amending the provision under section 51, by ordering the prosecution to provide the documents.
“A task of a judge is to interpret the law and not provide interpretation so as to amend the law under section 51 and section 51A,” said Abdull Hamid today in dismissing Anwar’s appeal.
The Federal Court today concurred with the decision made by the appellate court, saying the High Court judge had also erred by interpreting section 51 and 51A together, when they are two separate and distinct provisions.
Anwar, 62, is charged with sodomising his former aide, Mohd Saiful Bukhari Azlan, 24, at the Desa Damansara Condominium, in Jalan Setiakasih, Bukit Damansara on June 26, 2008.
In his bid for discovery of evidence, Anwar wanted access to the witness statement of Mohd Saiful and the condominium owner, Hasanuddin Abdul Hamid; the examination notes of Dr Osman Abdul Hamid from Pusrawi Hospital; statements and notes of three doctors from Hospital Kuala Lumpur Hospital (HKL); a chemist’s notes; and medical reports.
Anwar also wanted the CCTV footage of the condominium at the alleged time of the incident.
Karpal later told reporters that he will file for a review and apply for a stay on the ruling this coming Tuesday.
comments
This is really stupid. Making a mountain out of a molehill. The doctor already said no sodomy but habis, habis the government wants to persecute the innocent. Go after the accuser. The onus on him to provide the proof since there is no basis for the case to even continue
"The court said Anwar’s appeal was not in accordance with Section 51 of the Criminal Procedure Code (CPC) and that the defence’s reasoning to compel extra evidence for early preparation was legally flawed."
"LEGALLY FLAWED" - means appeal was denied on technical ground
What the public wants is REAL justice rather than playing around on technical issue. You should know better - shame on you!!
Jakim and those Islamic experts should explain how in an 'Islamic' country such a blatant accusation is allowed.If I am not mistaken according to Islamic Jurisprudence the accused must be afforded every avenue to defend himself and challenge the accuser/accusers.In this country we talk so much about God given laws and the application of these divine laws.Does God allow false accusations?I do not think so.Come on JAKIM what say you about this false accusation?
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