PUTRAJAYA - Previous sodomy encounters might have taught Mohd Saiful Bukhari Azlan to carry a lubricant along when meeting Datuk Seri Anwar Ibrahim so as to protect himself from further injuries, the Federal Court heard.
"How come you have KY jelly (when Mohd Saiful went to see Anwar)? All this will only make it sensible if the complainant says that there were previous encounters.
"If you are used to the situation, you will get prepared not to be injured," lead prosecutor Tan Sri Muhammad Shafee Abdullah submitted before a five-man panel chaired by the Chief Justice Arifin Zakaria.
Muhammad Shafee argued it was, therefore, pertinent that the court considered this part of the evidence.
"It is relevant to explain why there were no injuries or signs of physical trauma on the intimate part of the complainant (Mohd Saiful)," Muhammad Shafee said, adding that such evidence would reflect Mohd Saiful's state of mind and conduct before, during and after the sodomy incident mentioned in the charge.
He argued that the evidence given by Mohd Saiful pertaining to his previous sexual encounters with Anwar was admissible in the current sodomy case.
Muhammad Shafee said such evidence would further be helpful to understand the issue of credibility on the part of the complainant.
The other judges on the panel are Court of Appeal president Justice Raus Sharif and Federal Court judges Justices Abdull Hamid Embong, Suriyadi Halim Omar and Ramly Ali.
Muhammad Shafee said Anwar would not be prejudiced if such evidence was allowed as the apex court was "not in a jury trial".
He said Anwar had contended that the trial judge had erred in law for considering Mohd Saiful's evidence on his alleged previous sexual encounters with the Opposition Leader.
"Mohd Saiful was dominated by the appellant who took advantage of him," he said. "It will not make sense if we do not see it in its context in narrative."
Besides that, Muhammad Shafee argued that such evidence was also relevant pursuant to Section 8 of the Evidence Act among others to explain the preferred sodomy charge.
"Why Mohd Saiful did not physically resist the alleged offence committed by the appellant against him although he 'tidak rela' (not willing)?
"Why he did not run away immediately after the incident when he had the opportunity to do so, so much so that he had become familiar with the situation," he said.
He said the evidence would help the court to better appreciate the continuation of the relationship between an abusive employer who exerted dominance over a young submissive employee.
He argued that Anwar had failed to call 10 alibi witnesses, including the PKR leader's wife, when a notice of alibi had been issued by his solicitor earlier.
"None of the witnesses were called to prove his alibi," he added.
Muhammad Shafee will continue his submissions today.
Anwar was charged with sodomising Mohd Saiful, then 23, at a Desa Damansara condominium unit in Bukit Damansara on June 26, 2008.
Anwar, 67, is now appealing against his conviction and five-year jail term imposed by the Court of Appeal on March 7. The prosecution is appealing for a longer jail term.
The Court of Appeal's decision early this year came after it overturned a High Court judgment in January 2012 which acquitted Anwar.