Amazing Media: Web Advertising YOU Control!
|
Elements to be proved in the charge under section 377B Penal Code: 1) that the accused sodomised the victim (Azizan Abu Bakar);
The prosecution's case rests principally on the evidence of Azizan. The evidence of the defence's case is of alibi and conspiracy to fabricate evidence. In order to establish whether the elements have been proved, it is necessary to consider the credibility of Azizan. Azizan gave evidence for a total of 10 days and was cross-examined aggressively and extensively. He came out unscathed. There is also evidence for cross-examination of Senior Assistant Commissioner Musa Hassan that Azizan has made five prior consistent statements. This enhances his credibility. There is no necessity for Azizan to lie, as he has nothing but everything to lose by coming out with this complaint. In addition, his evidence is consistent with confessions of Sukma (Dermawan Sasmitaat Madja) which I have found to be voluntary. I am also convinced of the truth of what is stated in the confession. This finding is consistent with the fact that Sukma had used this confession in his mitigation when he had pleaded guilty earlier in session court when he was charged for an offence under Section 377D. It is therefore my finding that evidence of Azizan is credible. With regard to corroboration and evidence of Azizan, it is sufficiently supported and corroborated by the confession of Sukma. Although it is a confession of the accused, it is a piece of substantive evidence. It can therefore be used against the first accused. To that extent it corroborates the evidence of Azizan against both accused. The evidence of Azizan is also corroborated by the conduct of the first accused which is: Firstly, the first accused requested to SAC Musa to stop investigations into the allegations against him; secondly, in asking Azizan to lie about the declaration that he had made, that is P5. With regard to the second accused, there are two charges, namely for abetting for sodomy and sodomy. There is ample evidence to establish these two charges in the confession made by Sukma which has been supported by Azizan's evidence. The defence of the first accused is one of alibi, conspiracy and conspiracy to fabricate evidence. If these defences are accepted, then the charges of the second accused will also collapse. In his alibi defence, the first accused must show that he was at a different place from Jan 1 to March 31, 1993. No such evidence was adduced as to his whereabouts for this period of Jan 1 to Feb 12,1993. Therefore, the evidence of alibi fails. With regard to the defence of the second accused, that offence of sodomy could not have taken place because his apartment was under renovation. No evidence was adduced to show when renovation works started and were completed. Even though there is evidence to show that renovation works were in fact carried out, these findings do not create any reasonable doubt that the offence was not committed in that apartment. Even if the divan and mattress were not delivered until Feb 12, 1993, to my mind it does not mean that there was no other bed and mattress. With regard to the defence of fabrication, I am satisfied that the evidence on record does not support the defence. The evidence of Tun Haniff Omar in the question asked by the first accused (Anwar Ibrahim) on the possibility of police blackmailing him indicates that the first accused had something to worry about. The evidence of Azizan when he said the first accused asked him to lie in the declaration when the first accused asked Musa to stop investigations against him militates against the defence of fabrication of evidence. I am therefore satisfied that the defence had not raised any reasonable doubt in the case of the prosecution. For the above reason and after considering the circumstances of the case and evidence adduced, I am satisfied that the prosecution has proved its case against both accused beyond reasonable doubt. I therefore find both the accused guilty of the charges. Judge Arifin Jaka
|
