PUTRAJAYA: The adopted brother of DatukSeri Anwar Ibrahim had his conviction forsodomy quashed, and a new trial was ordered.The Court of Appeal ruled that it was “whollyunsafe” to convict Sukma DarmawanSasmitaat Madja on the charge because therewas suppression of material facts showing hisinnocence.
A three-man Bench comprising JusticesGopal Sri Ram, Hashim Mohd Yusoff andJames Foong yesterday allowed Sukma’sappeal to remit the case back to the SessionsCourt for a retrial.
Mention of the case hasbeen set for today.
Sukma, now a consultant to wedding planners,was convicted and sentenced to sixmonths' jail by a Kuala Lumpur Sessions Courton Sept 19, 1998, after he pleaded guilty toallowing Anwar to sodomise him.
He had pleaded guilty to committingan act of gross indecency underSection 377(d) at the official residenceof the former deputy prime minister inthe capital in April that year.
He was then released on bail pendinghis appeal of the conviction andsentence on Dec 15 the same year, 17days short of him fully serving the sentence.
Sukma's lawyer Gobind Singh Deo,who submitted yesterday on the voluntarinessof his client's plea of guilt,noted that Sukma had said he wasunder pressure when he pleadedguilty to the charge.
“We are asking the court to set asidethe conviction. We are not asking foran acquittal. We are asking for a retrial.Let him have his day in court. If thecourt then finds him guilty, so be it,”said Gobind Singh.
Justice Sri Ram interjected, sayingthat even if Sukma sought an acquittal,the court would not allow it.Gobind Singh also said there was aFederal Court decision which rejectedSukma's confession as involuntary.
(On Sept 2, 2004, the Federal Courtacquitted Sukma and Anwar of acharge of sodomising the former'sfamily driver Azizan Abu Bakar. It alsoruled that Sukma's confession was notadmissible as “it appeared not to havebeen made voluntarily”.)
Justice Sri Ram said: “How can weignore the Federal Court's decision inruling on the inadmissibility of Sukma'sconfession? Doesn't this renderhis guilty plea unsafe?
“After careful consideration, weunanimously feel that the appealshould be allowed. In our view, theconviction based on the plea of guilt ismanifestly unsafe.”
Earlier, Gobind Singh submitted thatthere was suppression of evidence bythe prosecution. He said Sukma hadbeen charged with sodomy althoughthere was evidence to prove otherwise.
“There was a medical report whichstated that Sukma was not sodomised,and yet the prosecution dragged himto court for sodomy. The report statedthat there was no evidence of penetration,”he said.
Justice Sri Ram interjected: “Sincethe prosecution knew that the medicalreport revealed that there was no newor old tear, it had a duty to bring it upto the court.
“And since the Federal Court hadruled Sukma's confession inadmissible,we have to follow the presidedcase. It will be a terrible case of injusticeif we were to shut our eyes to theFederal Court's decision.”
Deputy Public Prosecutor NurulhudaNoraini Mohd Nor submitted that theprosecution need not prove penetrationas Sukma was charged for outrageof indecency, and therefore the medicalreport was irrelevant.
However, Justice Sri Ram said thatthe charge under Section 377(d) of thePenal Code clearly stated that the elementof penetration needed to beproven, and asked DPP Nurulhuda toread out the charge.He then said: “There you have it.Semua sudah habis! (All is gone). If penetrationcannot be proven, then thewhole case collapses like a pile ofbricks.
“We are talking about the liberty ofthe individual. How can we close oureyes and fold our arms and let injusticewalk by?”DPP Nurulhuda continued her submission,but was stopped by Justice SriRam, who said: “The case is based onthe same facts (as in Anwar's andSukma's sodomy case at the FederalCourt). There is nothing you can do.
You are not the author (of the judgment),so in that way the cookie crumbles.”Anwar, who turned up in court toshow his support for Sukma, said hewas happy with the Court of Appealdecision as it affirmed the earlierFederal Court decision that rejectedSukma's confession.
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