Sodo trivia : Did you know…? (1)

Posted on July 1, 2008

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This trivia, and the others that may follow if time permits, were inspired by the following advise by Rocky Bru in his post relating to the latest sodomy police report against Anwar :

‘My advice (to those who aren’t yet fanatics) is still the same: let the police investigate the claim. If it goes beyond that, let the courts hear the case.

After all, don’t we have a more credible judiciary now? A more credible police force? A more courageous civil society movement? A freer and more democratic Press under Prime Minister Badawi.’

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Did you know that when Sukma Dermawan was convicted in the Sessions Court in 1998 of the offence of gross indecency pursuant to section 377D of the Penal Code for allegedly permitting DSAI to insert the latter’s penis into the former’s anus, the prosecution were then in possession of a medical report that confirmed there was no evidence of anal penetration?

If you recall, Sukma pleaded guilty to this charge, only to later claim that he had been tortured into making a confession. He appealed the conviction.

On technical grounds, the High Court dismissed Sukma’s appeal.

On appeal to the Court of Appeal, this is what Justice Gopal Sri Ram observed in his judgment :

‘…at the time when the accused pleaded guilty the prosecution had in their possession material which, at the very least, cast a doubt on the guilt of the accused. The material in question was a medical report by a Government doctor who had examined the accused. In his report he says that there were no signs of any penetration in the accused’s anus, whether recent or old.’

His Lordship then referred to the following pronouncement by Lord Denning in relation to the duties of the prosecution :

‘The duty of a prosecuting counsel or solicitor, as I have always understood it, is this: if he knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence. It would be highly reprehensible to conceal from the court the evidence which such a witness can give. If the prosecuting counsel or solicitor knows, not of a credible witness, but a witness whom he does not accept as credible, he should tell the defence about him so that they can call him if they wish.’

Justice Gopal Sri Ram then concludes :

‘In the present case, the sessions judge was denied access to information favourable to the accused. Had it been made available to her, she may well have rejected the plea of guilt on the ground that an offence may not have been committed for the want of proof of an essential allegation in the charge. For it is trite law that in a case where an accused pleads guilty, the prosecution when reciting the facts, confine itself to only those facts it can prove’. We are satisfied that the accused’s conviction based on his plea of guilt may be quashed on this ground alone.’

For those who would care to read the judgment in full, the same, in pdf, is linked below.

sukma-appeal-ca

Posted in: Right to know