Sodomy II: Prosecution gets a stay

(The Star) – The High Court here has granted a stay against its earlier ruling ordering the prosecution to supply documents to the defence team representing PKR adviser Datuk Seri Anwar Ibrahim in his sodomy trial.

High Court judge Justice Mohamad Zabidin Mohd Diah allowed a stay of execution on grounds that he did not want the appeal by the prosecution over the same matter at the Court of Appeal to become meaningless.

He said it was a “trite law” that the applicant (prosecution) must show special circumstances in order for the court to grant a stay of execution.

The judge said he had considered the submission by the prosecution that their appeal at the Court of Appeal would become nugatory (of no force or effect), adding that nugatory was one part of special circumstances.

Last Thursday, the judge granted Anwar’s application to get certain documents, including copies of witness statements, to prepare for his sodomy trial.

The court set Sept 2 to mention Anwar sodomy trial and his application to strike out his charge.

“Both proceedings cannot proceed before the disposal of the appeal at the Court of Appeal,” Justice Mohamad Zabidin said.

On Friday, lead prosecutor Solicitor-General (II) Datuk Mohd Yusof Zainal Abiden applied for the stay on the grounds that their appeal would become academic if they succeeded in their bid to overturn the court ruling over the supply of the documents to Anwar.

“If we comply with the court order (now), it means that all documents have to be made available to the defence.

“If the applicant succeeds in its appeal, it will be meaningless. It will serve no purpose. We cannot reverse the process when the original or copies of the statement have already been supplied to them,” he said.

Yusof said the prosecution could not restore the status of the defence as in the original position and it would only cause irrepairable damage to its case.

Anwar’s lawyer, Amer Hamzah Arshad, however argued that the prosecution had not shown any facts under special circumstances in order for the court to allow a stay.

Justice Mohamad Zabidin interjected, saying how could the prosecution reverse its original position if the defence had looked into the content of the documents supplied to it before the disposal of its appeal.

“Are you going to lock those documents and not see it until the appeal is disposed off?” the judge asked Amer to the amusement of those seated in the courtroom.

Amer said his client had no intention of doing so but to use those documents to consult with experts for to prepare his defence in the sodomy trial.

“The fear the prosecution has is only that Anwar will discover more evidence to prepare his defence. Are they hiding something from us?” he said.

He said the applicant had failed to show how the refusal to supply those documents would be prejudical and cause damage to its case.

“Are they saying that by supplying the chemist notes to us, that we will interfere or tamper with the evidence and harass the chemist? It is not stated in their affidavit-in-support for the stay application,” he said.

He said if the court considered granting a stay, it should be over the supply of witness statements only.

Anwar’s laywer R. Sivarasa later applied for time to mention the case, saying that the documents were relevant for the application to strike out the charge and noting that Anwar’s lead counsel had discharged himself.

Sulaiman Abdullah had to drop out of the proceedings because of ill health.

On March 10, Anwar, 62, pleaded not guilty to sodomising his former personal aide Mohd Saiful Bukhari Azlan, 24, at a condominium in Bukit Damansara on June 26 last year.