Sodomy 2- Consensual or non consensual.

Sodomy II: Federal Court reserves decision on Anwar's appeal to get witness statements

PUTRAJAYA: The Federal Court reserved its decision on Datuk Seri Anwar Ibrahim's appeal against the Court of Appeal and High Court's decisions which dismissed his application to obtain the witness statements, including that of star witness Mohd Saiful Bukhari Azlan, in the Opposition leader's second sodomy case.
Chief Judge of Malaya Tan Sri Arifin Zakaria deferred the judgment after hearing the submissions of Anwar's counsel Karpal Singh, and Solicitor-General II Datuk Mohd Yusof Zainal Abiden, who is leading the prosecution in the sodomy trial.
In Thursday's proceedings, Arifin headed the three-men bench with two other Federal Court judges, Tan Sri James Foong and Datuk Seri Md Raus Shariff.
In his submission, Karpal said the defence should be given access to Mohd Saiful's cautioned statement, saying the defence had a "hunch" that he might have told police that the alleged sexual act was consensual, and that he, therefore, contradicted himself at the trial by testifying in court that it was non-consensual.
"We need his statement in order to impeach him and we if we succeed, that's the end of the matter and it would be pointless for the prosecution even if they produce a million witnesses to proof a case against Anwar," Karpal Singh said.
Karpal said the Court of Appeal was wrong when it ruled that the court had no jurisdiction to hear and determine the appeal, and in concluding that the appeal was an interlocutory appeal and occurred during the trial.
On June 25, Court of Appeal judges, Justices Datuk Sulong Matjeraie, Datuk Ramly Ali and Datuk Zaharah Ibrahim held, that they did not have the jurisdiction to hear and entertain the appeal because the High Court's ruling on that matter was not a final order which had the effect of finally determining the rights of the party.
The three-man bench dismissed Anwar's appeal and upheld the High Court's decision delivered on May 12, this year, which denied him access to Mohd Saiful's police statement.
The 63-year-old Permatang Pauh MP claimed that Mohd Saiful had testified that the alleged sodomy took place without his consent, but he (Anwar) was charged under Section 377B of the Penal Code with consensual sexual intercourse.
Karpal also wanted the Apex Court to rule on what constituted a final order within the definition of "decision" in Section 3 of the Courts of Judicature Act 1964.
Meanwhile, Mohd Yusof submitted that the Court of Appeal had no jurisdiction to hear the matter because whatever ruling made by the High Court during the trial was not a final order and that parties could still appeal at the end of the trial.
Yusof also reiterated that the Attorney-General had the power to decide in which section it could charge a person.
In Anwar's case, he said, it was not really an issue whether the charge was under Section 377B or 377C, saying it was more for the prosecution to establish that carnal intercourse had taken place.
Earlier, Karpal insisted that the Court of Appeal had yet to hand down the proper grounds for its dismissal of Anwar's appeal, saying what the court had were just broad reasons.
Yusof said the grounds of judgment were stated in the "broad reasons" and that there was no necessity for another judgement.
"It's just matter of terminology used and we are saying that the grounds of judgment are already here and the court should go on with the appeal proceedings," added Yusof.
After a brief stand down, Arifin said the bench agreed with Yusof and ordered both parties to submit on the merit of the appeal. - Bernama

tunku : it looks like karpal admitted indirectly that the sodomy did take place but right now he just want to know if saiful had said in his statement whether its consensual or non consensual.they are just trying to get out from this case on technical ground like the Sodomy 1.