Anwar wants Sodomy II judge out over medical notes

By Shawan Mustafa Kamal, The Malaysian Insider

In an unsurprising twist Datuk Anwar Seri Anwar Ibrahim is set to apply for the presiding judge of his Sodomy II trial to be disqualified.

The defence raised the issue over Judge Datuk Mohd Zabidin Mohd Diah’s ruling to deny Anwar access to three Hospital Kuala Lumpur (HKL) doctors’ medical notes.

The judge made the ruling because he felt the defence failed to give reasons on why they needed those documents.

Anwar’s lead counsel Karpal Singh claimed today that the judge’s decision had misinterpreted a Supreme Court decision in 1993, which stipulates that the courts are bound by the decision which states that witness must “place before the court all the data in which he bases his information.”

“Oral evidence by witness is (merely) advisory. Any opinion without stating the reasons is valueless” said Karpal.

Karpal told Mohd Zabidin to focus on Section 45 of the Evidence Act which states that evidence must be produced to back up a witness’ testimony.

“I urge your honour to consider Section 45. I predict when the third witness testifies, he will be ‘programmed’ like the other two doctors,” said Karpal.

The judge, however, said that Section 45 merely provided for the “admissibility” of opinion, nothing more and denied Karpal a stay of proceedings to file the application.

The application will be filed tomorrow morning.

In his ruling yesterday, Mohd Zabidin said that in Malaysia, the right for an accused to be supplied with the necessary documents depended on the existing criminal procedure code (CPC), as well as the prosecution team.

“SP2 (Dr Razali Ibrahim) was called by the prosecution, what is important for the court is his oral testimony.

“Notes are only to be used to refresh SP2’s memory… it is not legally admissible, and SP2 has said he does need to refer to the notes to refresh his memory.

“The notes are only admissible, if the prosecution decides so. If prosecution does not decide, then the defence cannot demand for the notes,” said Mohd Zabidin yesterday.

This is not the first time Anwar has attempted to remove the judge.

Anwar had tried to remove the judge earlier this year, in relation to captions on a photograph of the condominium where Mohd Saiful Bukhari Azlan was allegedly sodomised.

The photograph and caption which was carried by Utusan Malaysia did not sit well with Anwar, who had demanded that the judge take action.

Mohd Zabidin’s inaction inadvertently led to an application by the defence to remove him from presiding over the Sodomy II trial.

The high court had refused the application, which led Anwar to file an appeal. However, the appeal was also subsequently dropped.

“Anwar is afraid he is not getting a fair trial. We are filing this application to ensure that he gets a fair hearing,” said Karpal today.

Emotions ran high earlier this morning as Karpal claimed that the HKL doctors were “programmed” to answer questions and did not answer them truthfully despite being under oath.

Karpal accused Dr Siew Sheue Feng, a HKL forensic pathologist of lying in court, as he had refused to refer the proforma report of Saiful despite admitting that he could not remember every detail of the report.