Opposition Leader Anwar Ibrahim is expected to testify at the Sodomy II trial on Thursday after the court agreed to allow his lawyers a trial-within-a-trial to determine if a mineral water bottle, towel and toothbrush from which DNA samples have been lifted were admissible as evidence.
"Generally, the court is not concerned with how inadmissible evidence is obtained," Justice Mohamad Zabidin Mohd Diah said on Wednesday.
“It is in my humble opinion the court has the discretion to exclude the items if they were obtained using unfair means. The trial-within-a-trial should be allowed. I allow the defence’s application."
Unlawful
Anwar was accused of sodomising his political aide Saiful Bukhari Azlan in June 2008 soon after he announced plans to make a parliamentary comeback. He has denied the charges and accused Prime Minister Najib Razak and wife Rosmah Mansor of conspiring with Saiful to derail his political career.
Anwar's lawyers have insisted that his arrest was unlawful, and so was his detention. They have accused the police of trying to get Anwar's DNA samples from his personal effects including hair dropped on the cell floor.
Hence, the insistence on his overnight detention on July 17, 2008 , Anwar's lawyers have said. Anwar himself had refused to allow hospital authorities to take his DNA profile for fear that the samples might be abused and used to incriminate him.
Meanwhile, senior defense counsel Karpal Singh said the water bottle, towel and toothbrush were obtained from Anwar's cell illegally as unlawful methods had been used by the police to remand Anwar.
Anwar was refused bail even though his lawyers had offered to return with him to the station the following day to allow the police to continue interrogating him.
"The judge has no option but to reject items obtained through improper or unlawful means. All relevant matters are before a judge for him to make a ruling. The accused person can give evidence on a trial within a trial," Karpal said.
After deliberating, the judge agreed to allow the trial-within-a-trial and fixed the hearing at 2.30pm Thursday.
Prosecution's clumsy attempts make identity of 'Male Y' a foregone conclusion
On Tuesday, Anwar's team had accused the Malaysian government of treating the Opposition Leader like an animal when it detained him, intentionally throwing him into a filthy and archaic cell that did not have any CCTV equipment to track what happened to him.
The police officers involved in remanding him have admitted the poor conditions of the cell, but were quick to add that they had been instructed to do so by their "superiors".
So far, government chemists have officially recorded the discovery of two DNA profiles on Saiful's pants and anus - his own and that of 'Male Y'.
Anwar's own experts have pointed out that the print-out from the DNA analysis machine showed the presence of at least three other DNA profiles. This discovery has compounded speculation that DNA was planted by Najib's government to incriminate Anwar.
It has also created much public ridicule for the trial and for Najib himself. The Malaysian PM is facing a massive loss in credibility, having failed to institute the reforms he pledged when he came to power in 2009.
“It seems like half a football team’s DNA is found but you chose not to report it,” Anwar's lawyer Ramkarpal Singh had grilled the government's DNA expert in court last week.
"We would not be surprised at all if the prosecution insisted 'Male Y' was Anwar. If they didn't, they would have no case against him," senior PKR leader and Subang MP Sivarasa Rasiah had told Malaysia Chronicle. - Malaysia Chronicle
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