IN THE HIGH COURT OF KUALA LUMPUR CRIMINAL TRIAL NO. 45-9-2009(MTJ 3) BETWEEN PUBLIC PROSECUTOR AND DATO’ SERI ANWAR IBRAHIM PUBLIC PROSECUTOR’S SUBMISSION AT THE CONCLUSION OF THE CASE FOR THE PROSECUTION (A) The Charge [1] The accused, Dato’ Seri Anwar Ibrahim is charged for an offence punishable under section 377B of the Penal Code in that he committed carnal intercourse against the order of nature on PW1 as per the charge. The charge reads as follows: 1 “Bahawa kamu, pada 26 Jun 2008 antara jam 3.01 petang dan 4.30 petang di alamat Unit 11-5-1, Desa Damansara Condominium, No. 99, Jalan Setiakasih, Bukit Damansara, dalam Wilayah Persekutuan Kuala Lumpur telah dengan sengaja melakukan persetubuhan yang bertentangan dengan aturan tabii dengan Mohd Saiful Bukhari bin Azlan dengan memasukkan zakar kamu ke dalam duburnya; dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 377B Kanun Keseksaan.” (English translation) “That you, on 26 June 2008 between 3.01 p.m. to 4.30 p.m. at Unit 11-5-1, Desa Damansara Condominium, No. 99, Jalan Setiakasih, Bukit Damansara, in the Federal Territory of Kuala Lumpur, did intentionally commit carnal intercourse against the order of nature with Mohd Saiful Bukhari bin Azlan by inserting your penis into his anus; and thereby you have committed an offence punishable under section 377B of the Penal Code.” 2 (B) Ingredients of the Offence [2] Unlike in India, the offence of carnal intercourse against the order of nature in Malaysia is defined and is restricted to the introduction of the penis into the mouth or anus of another person. Hence, it would make the accompanying explanation in section 377A of our Penal Code somewhat superfluous or redundant. [3] At this juncture, it is useful to refer to the offence of carnal intercourse against the order of nature as provided in section 377A of our Penal Code as follows: 377A. Carnal intercourse against the order of nature Any person who has sexual intercourse with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature. Explanation – Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section. 3 [4] The punishment for the offence of committing carnal intercourse against the order of nature is provided in sections 377B and 377C of the Penal Code as follows: 377B. Punishment for committing carnal intercourse against the order of nature Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping. 377C. Committing carnal intercourse against the order of nature without consent, etc. Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting the other person in fear of death or hurt to the other person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping. 4 [5] From the outset, it is important to note that the issue of consent of the victim is not an ingredient required to be proved in the offence of committing carnal intercourse against the order of nature. [6] However, as provided in section 377C of the Penal Code, non-consensual carnal intercourse against the order of nature would carry with it an enhanced punishment of imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping. [7] Essentially, in order to bring home the charge against the accused person, the prosecution has to prove: (1) that the accused had introduced his penis into PW1's anus (however little); and (2) that the accused did it voluntarily. C. Evidence Establishing a Prima Facie Case The Oral Evidence of Mohd Saiful Bukhari (PW 1) [8] Mohd Saiful Bukhari (PW1) is the complainant in this case. 5 [9] It is pertinent to note that PW1's evidence by itself, provides a complete narration of event from his first meeting with the accused, his employment as personal assistant to the accused, right up to that eventful day on 26 June 2008, when he was sodomised by the accused in unit 11-5-1 of Desa Damansara Condominium. [10] Narratives of the evidence of PW1 are as follows: a) PW1 started working as a volunteer with the accused from early March 2008. From end of April 2008 until his resignation on 27 June 2008, PW1 was the personal assistant of the accused. b) PW1’s duties include arranging meetings of the accused and communicating with agents and Member of Parliament of the Party. PW1 also assisted the Chief of Staff in preparing work schedule and he was also involved in filing confidential documents like bank account. PW1 was also responsible to oversee the accused’s personal handphone and the accused would hand over his handphone to PW1 to check on the SMS received. 6 c) On 26 June 2008, PW1 went to Unit 11-5-1, Desa Damansara Condominium, No. 99, Jalan Setiakasih, Bukit Damansara at about 2.45 p.m, at the instance of the accused and also for the purpose to deliver some documents at the request of the accused. d) PW1 drove to Desa Damansara Condominium in a Fiat van bearing registration number WPK 5925. e) Upon arriving at the unit, PW1 opened the door which was not locked, entered the place and placed his shoes on the left behind the door. f) In Unit 11-5-1, he noticed that the accused was already seated at the dining table. PW1 sat at the table facing the accused and placed the documents which he brought on the table. g) After having sat down at the table, the accused and PW1 discussed about work schedule and not long after that the accused asked PW1 to have carnal intercourse with him. 7 h) PW1 said he refused initially and the accused asked him why and when PW1 again responded in the negative, he was instructed in an angry tone by the accused to go into the master bedroom. i) PW1 complied and went into the master bedroom. In the room, the accused went to the end of the room to close the curtain and then proceeded to the door to switch off the light in the room. j) Having done so, the accused then directed PW1 to clean himself in the bathroom. k) PW1 did not bathe but merely wiped himself in the bathroom and came out covered only with a towel. He then saw the accused at the lower right end corner of the bed. l) The accused was standing wearing a white towel and he asked PW1 to come to him. At that moment, the accused hugged PW1 while standing. m) At this juncture of the examination-in-chief of PW1, unexpectedly, learned counsel for the accused insisted that 8 the rest of the hearing concerning what transpired in the master bedroom to be heard in camera. n) This Honourable Court acquiesced to the request and the proceedings as to the details of what happened in the master bedroom were heard in camera. o) In short, PW1 testified that carnal intercourse against the order of nature took place on the carpeted floor of the master bedroom overlaid with a towel and with the aid of a type of lubricant known as ‘KY Jelly’ or ‘KY Cream’. p) The crucial part of the evidence against the accused as vividly narrated by PW1 was never seriously challenged by learned counsel for the accused. (i) Issues before the Court [11] The crucial issue for consideration before this Honouarble Court is to decide whether PW1 was in fact sodomised by the accused. 9 (i)(a) Opportunity for offence to take place [12] In order to decide this issue, it is imperative for the Court to determine from the outset whether there is opportunity for the th offence to take place. In Sarkar’s Law of Evidence, 16 Edition, it was explained with relation to section 7 of the Evidence Act at p 218 that ‘The reason for admission of facts of this nature is that, if you want to decide whether a thing occurred or not, almost the first natural step is to see whether there were facts at hand calculated to produce or afford opportunity for its occurrence, or facts which its occurrence was calculated to produce.’ [13] Evidence affording opportunity for the accused to commit the offence could be gleaned, firstly, from the relationship between PW1 and the accused. [14] PW1 was the accused's personal assistant. In that capacity, PW1 assisted in the management of accused’s work schedule and more importantly, PW1 was entrusted to oversee the accused’s personal phone. 10