KUALA LUMPUR, March 14 — The High Court has no power to exclude evidence from Datuk Seri Anwar Ibrahim’s sodomy trial just because it was obtained through “unfair means”, prosecutors argued today.
Solicitor-General II Datuk Mohd Yusof Zainal Abiden claimed that judge Datuk Mohd Zabidin Mohd Diah should not be concerned with how evidence samples in the trial were obtained “as long as it is relevant, it is admissible.”
“Judge has no discretion to exclude evidence even if obtained illegally. Your lordship cannot exclude it just because it was obtained via unfair means, except in cases of confession.
“Court should not be concerned with how it is obtained, as long as it is relevant, it is admissible,” he said.
Anwar’s defence lawyers recently won a ruling in which all evidence retrieved from the lock-up during the period — a towel, toothbrush and mineral water bottle as well all DNA samples relating to the items — was expunged.
The prosecution has however asked the court to review that ruling, resulting in two submissions by Yusof today — one demanding a review of the ruling, and another urging the court to compel Anwar to provide his DNA samples for reference to those found in complainant Mohd Saiful Bukhari Azlan’s anus.
Yusof said that while Mohd Zabidin could not ask Anwar to surrender his DNA samples, the judge could order someone else to obtain them from him.
What was relevant, according to Yusof, was whether the DNA obtained from Saiful’s anus could be matched to the accused (Anwar).
“The chief function of a judge is to see that justice is done between parties, and a too rigid adherence to set rules may sometimes embarrass the judge in the performance of his duties and defeat the ends of justice,” said Yusof.
The lead prosecutor insisted that Anwar’s arrest on July 15, 2008 was legal, saying that he was informed of the grounds of arrest.
Yusof also produced the arrest warrant in court which went missing during the trial-within-a-trial.
“The warrant of arrest was served and acknowledged by Anwar.
“In the trial-within-a-trial, Anwar did not deny or challenge that he was informed by the IO (DSP Jude Pereira). Neither did he deny it was served to him,” argued Yusof who stressed that the three exhibits should be tendered in as evidence.
The defence team will be presenting its submission-in-reply tomorrow morning.
Government scientist Dr Seah Lay Hong testified last month that she had found two unknown male DNA profiles around Saiful’s anus, one of which she had earlier called “Male Y”.
Anwar had refused to provide DNA samples in his first sodomy trial in 1998 for fear they could be manipulated.
Former Kuala Lumpur CID chief Datuk Mat Zain Ibrahim also claimed last January that DNA evidence was fabricated in Anwar’s first sodomy trial.
The DNA Identification Act 2008 was passed to compel suspects to provide DNA samples, despite protests from Pakatan Rakyat (PR) lawmakers.
Anwar, the 63-year-old PKR de facto leader, is currently facing sodomy charges for the second time in his life.
He has denied the charge, describing it as “evil, frivolous lies by those in power” when the charge was read out to him. He is charged under section 377B of the Penal Code and can be sentenced to a maximum of 20 years’ jail and whipping upon conviction.
The trial is taking place 18 months after Anwar was charged in court in August 2008.
He was charged with sodomy and corruption in 1998 after he was sacked from the Cabinet and was later convicted and jailed for both offences.
He was freed in September 2004 and later resurrected his political career by winning back his Permatang Pauh parliamentary seat in a by-election in 2008, which had been held in the interim by his wife.
He led the loose pact of PKR, DAP and PAS to a historic sweep of five states and 82 parliamentary seats in Election 2008. - Malaysian Insider
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