The Federal Court added that the five-year jail term meted out on Anwar by the Court of Appeal was not grossly excessive and in fact had been more on the side of leniency.
“Taking into consideration the seriousness of the offence and the fact that the appellant (Anwar) had taken advantage of his position as the employer of a young victim, the sentence of five years is not grossly excessive,” according to the 116-page grounds of judgment.
“We are of the view that if at all the Court of Appeal erred, it is more on the side of leniency,” the panel of judges said in the written judgment released yesterday.
The judgment was signed by five judges in the panel chaired by Chief Justice Arifin Zakaria.
In the coram are Court of Appeal president Justice Md Raus Sharif and Federal Court judges Justices Abdull Hamid Embong, Suriyadi Halim Omar and Ramly Ali.
The judges said Anwar’s statement from the dock – which among others, stated that he could not have sodomised Mohd Saiful as the young man was physically bigger than him, whilst he is old and weak with a history of back injury – was not a credible defence.
“We are convinced beyond reasonable doubt that Mohd Saiful was sodomised by the appellant (Anwar).
“The scientific evidence (medical and DNA evidence) adduced by the prosecution clearly established that sperm cells belonging to Anwar were found in the lower and upper rectum of Mohd Saiful.
“The only logical explanation for this is that Mohd Saiful must have been sodomised by Anwar,” the judgment said.
The panel said that Anwar’s unsworn statement, which evidentially carries little weight, and the evidence adduced through PKR leader’s witnesses, failed to cast any reasonable doubt on the prosecution’s case.
“We hold that the Court of Appeal had adopted the right principle in assessing Anwar’s statement from the dock.
“As such, we find no merit on Anwar’s complaint that the Court of Appeal had seriously misdirected itself in making adverse comments on his decision to give his statement from the dock.”
The panel said that while it was within Anwar’s right to give a statement from the dock, the statement must make a credible defence.
The panel of judges said a mere denial did not amount to a credible defence. We hold that the defence of political conspiracy remains a mere allegation unsubstantiated by any credible evidence,” they said.
They said Anwar had contended in his statement that the sodomy incident had never happened and that Mohd Saiful had lied.
“Anwar stated that Mohd Saiful had all the opportunities to flee from the room where the incident happened as it was not locked or latched.
“Mohd Saiful further did not seek immediate medical attention after the incident. Anwar had further stated that Mohd Saiful did not lodge a police report immediately after the incident,” they said.
Besides that, they said the possibility of the integrity of the samples taken from Mohd Saiful having been compromised before reaching chemist Dr Seah Lay Hong was remote.
“Such a suggestion can be dismissed with this one sentence, ‘of course it is possible, but not in the least probable’,” they said in citing a case law.
“We therefore dismiss both the appeal and the cross-appeal.
“The sentence imposed by the Court of Appeal is hereby affirmed,” the panel of judges said in a unanimous decision.
Anwar had on February 10 lost in his final appeal when the apex court upheld his conviction and five-year jail term over the sodomy charge. The prosecution also failed in their cross-appeal to enhance the jail term.
The opposition parliamentarian was sentenced to five years’ jail on March 7 last year by the Court of Appeal for sodomising Mohd Saiful at the Desa Damansara condominium in Bukit Damansara on June 26, 2008.
In the 85-page written judgment, the Court of Appeal had ruled that his defence in making a statement from the dock was a mere denial.
Anwar had filed 35 grounds in his petition of appeal asking the apex court to overturn the court of appeal’s ruling.
On Jan 9, 2012, the High Court acquitted Anwar after trial judge Justice Mohamad Zabidin Mohd Diah held that the court could not be 100% certain after going through evidence that the integrity of the DNA samples had not been compromised.
Justice Mohamad Zabidin said that as the crime was sexual, the court was reluctant to convict based entirely on Saiful’s testimony without corroboration.
The verdict ended a trial lasting over two years, with 27 prosecution and seven defence witnesses called.