November 23, 2009 19:03 PM

No Penetration, Anwar's Sodomy Charge Should Be Quashed - Anwar's Counsel

KUALA LUMPUR, Nov 23 (Bernama) -- The sodomy charge against Datuk Seri Anwar Ibrahim is malicious and not sustainable in the absence of medical findings on penetration, the High Court was told Monday.

Anwar's counsel R.Sivarasa said it was trite that to constitute an offence in the sodomy charge under Section 377B of the Penal Code, penetration was the main and core ingredient.

He said in this, there was case no conclusive medical evidence suggesting there was penetration of the anus of Mohd Saiful Bukhari Azlan, the complainant.

"From the medical report by the medical officer of Pusrawi who first examined the complainant, it was stated that the anus was not bleeding, no injury, no abscess and that it clean, dry and looked normal," he said, adding this was also supported by the Kuala Lumpur Hospital medical report which indicated penetration was non-existent.

As such, he contended that this was sufficient for the court to quash the charge against Anwar as it was clear that no offence had been committed.

Sivarasa was submitting before Judge Datuk Mohamad Zabidin Mohd Diah on Anwar's application to strike out his sodomy charge.

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

Sivarasa also submitted that the charge against Anwar was not based on evidence but biased, unlawful, malicious, politically motivated and an abuse of the court process.

He said the court had the right and inherent power to grant the application to quash or stay the charge to prevent an oppressive and mala fide prosecution against Anwar.

Sivarasa said the involvement of the Attorney-General Tan Sri Abdul Gani Patail in the case clearly showed the malicious intent against Anwar, as he had been under probe by the Anti-Corruption Agency (now Malaysian Anti-Corruption Commission) following a police report lodged against him by Anwar over fabrication of evidence in the investigation of the "black-eye" incident when Anwar was arrested by police in 1998.

Solicitor-General II Datuk Mohamed Yusof Zainal Abiden who led the prosecution team replied that the court had inherent jurisdiction to quash or stay the charge, to correct miscarriage of justice if the charge was really an abuse of the court process.

"But we think in this action, it is simply to stop the proceedings, or to injunct the court from further hearing of this case," he said.

Mohamed Yusof said according to the DNA report by the chemist, there were DNA specimen mixture of two males at the scene, which supported Mohd Saiful's claim that he was sodomised by Anwar.

"This is not a proper case for the court to use its inherent powers to quash or stay the charge as the prosecution did not know how the case is prejudicial to Anwar," he said.

Justice Mohamad Zabidin set Dec 1 for a decision.

-- BERNAMA

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