After almost two years, the sodomy trial against Anwar Ibrahim will today go through its last leg with the defence team replying to the prosecution's final submission before verdict is delivered.
Among the issues expected to arise in their reply today is the credibility of the three expert defence witnesses, which wasattacked by prosecution chief Mohd Yusof Zainal Abiden in his Tuesday submission.
Yusof, who is solicitor general II, called Anwar's orthopedic surgeon Dr Thomas Hoogland "speculative" as the Dutch spine doctor last examined the accused in 2005 and could not have truly known if his back condition would prevent him from performing the sex act.
DNA expert Dr Brian McDonald was submitted to have been "flip flop" in giving evidence and was a "paid expert" bent on supporting the defence's case, while forensic specialist Dr David Wells' evidence was "neutral at best".
Yusof also submitted that Anwar's statement from the dock was a "bare denial"which did not adduce evidence of what had happened on June 26, 2008 at the Desa Damansara condominium, when complainant Mohd Saiful Bukhari Azlan was there.
He also said that there was no proof of conspiracy to frame Anwar or that the latter's DNA was planted as sperm heads were spotted in the sample.
Yusof was replying to the defence team's three-part submission, in which it said that Saiful's "contradictory" statements and the lack of degradation in the DNA sample, among others, prove reasonable doubt.
LIVE REPORTS
9.12am: The public gallery is slowly filling up. Neither parties have arrived.
9.15am: The prosecution team led by solicitor-general II Mohd Yusof Zainal Abiden arrives alongside PKR vice-president N Surendran.
9.25pm: The accused, Anwar Ibrahim, arrives with an group of PKR leaders including wife and party president Dr Wan Azizah Wan Ismail.
9.30am: The defence team enters the courtroom. They are seen having a laugh with Yusof. The public gallery fills up.
9.50am: High Court justice Mohamad Zabidin Mohd Diah enters court and proceedings begin.
9.51am: Lead defence counsel Karpal Singh begins his reply to the prosecution's submission.
He submits that the judge can review the finding made during the prima facie case that Saiful is a credible witness and a witness of truth.
9.52am: Karpal refutes Yusof's contention that Anwar's statement from the dock is a "bare denial" as it is not bereft of other evidence produced by the defence team.
"That denial (from the dock) in fact is evidence," he said.
He cites case law which states that giving a statement from the dock is a "substantive right" of the accused.
"This court is bound by the ruling from the Federal Court. You must accept statement from the dock as substantive evidence," he tells the judge.
10am: Karpal says the legal burden is on the prosecution to prove the case beyond reasonable doubt, and that burden does not change in this case.
10.05am: Karpal cites case law that even if the statement from the dock is a mere denial, it must be considered by the court.
10.06am: Karpal refers to the evidence of Hospital Pusrawi doctor Dr Mohd Osman Abdul Hamid (right).
He claims Mohd Osman's evidence demolishes the testimony of Saiful.
"The defence has been been established," he says.
He questions the probability of the evidence given by Saiful.
"The alleged incident was on June 26, report on June 28... why would (Saiful) not go direct to the police station? This is something expected (of Saiful)," he said.
10.10am: Karpal submits that Saiful denied that he told Dr Mohd Osman that plastic was inserted into his anus.
10.11am: Although Mohd Osman testified in the defence's case, he is not "technically a defence witness".
"He was offered to the defence. That does not take away from the fact that he is a prosecution witness... (who) had his statement recorded," he said.
Yusof submitted that Mohd Osman's evidence is not credible but Karpal said the evidence was given under oath and must stand unless there is good cause for its rejection.
10.14am: Replying to Yusof's submission that Saiful was not told that Dr Mohd Osman recorded that plastic was inserted into Saiful's anus, Karpal says this is not required.
He reiterates that Yusof never impeached Dr Mohd Osman's evidence.
10.20am: Karpal goes through a blow-by-blow account of an alleged rape from another case, from both the accused and the complainant's side.
10.26am: In the case, the complainant did not struggle or tried to escape citing fear.
"(Saiful) had every opportunity to get out of that room. His evidence does not stand.
"He says he has been violated... what does he do? According to him... he had curry puff and coffee... for 20 minutes. 20 minutes is a long time," he says.
He adds that even he has taken 20 minutes in his submission so far, to which the judge retorts, "half an hour already".
Laughter is heard from the public gallery.
10.35am: Karpal questions why Saiful was not recalled to deny under oath that he had an affair with former prosecution team member DPP Farah Azlina Latif.
10.36am: Karpal submits the court cannot make any "adverse inference" against the accused because of his statement from the dock, contrary to what is submitted by Yusof.
Citing case law, he says it is no inference unfavourable to the accused can be made, even if Anwar had chose to remain silent.
He submits that in fact the judge does not even have to go through the rest of the defence's submission as the dismantling of Saiful's evidence proves reasonable doubt.
10.38am: Karpal says that the world is watching this trial, "but your lordship should not be intimidated by that".
10.52am: "Our submission is such a meeting at (the condominium unit) did not happen and the prosecution did not prove it," he says.
He also says that the claim that Dr Mohd Osman inserted the account regarding the plastic at a later date is "ludicrous".
"Anwar doesn't know Dr Osman from Adam... he is not a pak nujum(clairvoyant)," he says.
Defence lawyer, Sankara Nair, takes over from Karpal.
10.55am: On Dr Thomas Hoogland, Sankara says one must be qualified in the field to refute the spine surgeon's opinion.
"Instead, he called upon a physician (Hospital Kuala Lumpur's Dr SJeyaindran)... your lordship is deprived of comparing the opinion of two similar experts and deciding which evidence to accept," he says.
10.40am: Sankara refutes Yusof's submission that defence witness and Saiful's college mate Mohd Najwan Halimi was "jealous".
"Yusof should have displaced Najwan's evidence but he did not. Najwan's evidence stands and the (jealousy call) is mere allegation," he says.
10.43am: Sankara submits that Dr Mohd Osman was consistent, having said more than three times that Saiful told him that plastic was inserted into his anus, upon which the doctor recorded it into his report.
"He was firm... without doubt the plastic was mentioned by Saiful, there is no reason to doubt Osman," he says.
Sankara adds that Saiful had gone "doctor shopping" and had used the same modus operandi as in Pusrawi when he got a check-up from Hospital Kuala Lumpur.
He had only told the doctor he was sodomised after no injury was found on his anus.
Sankara submits that the KY Jelly entered into evidence later was included to explain the lack of trauma and tears.
10.45am: "Our submission is that such a meeting at (the condominium unit) did not happen and the prosecution did not prove it," he says.
He also says that the claim that Dr Mohd Osman inserted the account regarding the plastic at a later date is "ludicrous".
"Anwar doesn't know Dr Osman from Adam....he is not a pak nujum(clairvoyant)," he says.
10.50am: Sankara continues to say that Dr Jeyaindran was "making a spectacle of himself" by trying to discredit Dr Hoogland, who is a foremost spine surgeon.
"He did not make the necessary examination...(He cannot conclude) by just looking at the movement of person. No way, his evidence cannot be accepted," he says.
Honing his point, he likens this to sending a client who wants to get a divorce to a shipping client and not a matrimonial client, to laughter from the public gallery.
He also questions why Dr Ee Boon Leong, who co-examined Anwar alongside Dr Jeyaindran was never called to give evidence.
"I urge your lordship to draw adverse inference from this," he says.
10.55am: On Dr Hoogland, Sankara says one must be qualified in the field to refute the spine surgeon's opinion.
"Instead, he called upon a physician (Dr Jeyaindran)... Your lordship is deprived of (the opportunity to) compare the opinion of two similar experts and deciding which evidence to accept," he says.
10.55am: On the conspiracy claim, Sankara says that Yusof's had submitted that Anwar denied conspiracy in his affidavit in reply to PM Najib Abdul Abdul Razak.
"It was to say that the matter of conspiracy is not the reason (Anwar) wants (Najib) to come to court," he says.
He adds that in this case, the "puppeteer" was then SAC Mohd Rodwan Mohd Yusof and then IGP Musa Hassan and Saiful the "puppet".
11.00am: Sankara concludes and Ram Karpal continues, focusing on the DNA evidence.
He says that the prosecution's submission that Dr McDonald was not competent enough as he does not do DNA testing himself was a "red herring" as the expert is a senior scientist.
11.10am: Ram submits that chemist Dr Seah Lay Hong made a conclusion that the DNA mixture came from ‘Male Y’, before a process was undertaken to separate the sperm and non-sperm fraction.
He added that Seah said that the separation is not ideal, thus not possible for the DNA found in the sperm-fraction is ‘Male Y's’ sperm.
Replying to Yusof's submission of "spill over" between the sperm and non-sperm fractions, Ram says this means that no conclusive evidence is established.
He adds that McDonald testified that the separation process should have been done until there was no spill over, consistent with the industry manual.
"This shows an attitude of the prosecution where it is willing to assume," he says.
11.15am: Ram says Yusof used "harsh" and "uncalled for" words against McDonald by accusing the latter was "creating a deception".
Yusof said this because the latter was the view that the samples collected is not the same as analysed, given the lack degradation.
"The deception is on the part of the prosecution," he says.
The prosecution submitted that no degradation was evident as it did not go through harsh condition, with Seah also testifying no degradation was observed.
McDonald opined that this is not consistent with the history of the samples, kept without preservation for approximately 96 hours before testing.
11.20am: Yusof had submitted that McDonald denied using the word "pristine" when describing the DNA samples.
"Upon perusal of the evidence, the submission is completely untrue," Ram says.
On the issue of the foreign allele (DNA straind) found, Ram questions why the two chemists ignored the Chemistry Department guidelines to report this finding.
"(It) amounts to an admission by the prosecution that the (chemists) ignored their own guidelines without explanation and observing the guideline could have indicated a mixture in the samples and contamination," he says.
11.25am: Ram says that the defence did not say the investigating officer contaminated the samples.
"We are not saying this. It could be anybody... It is not for the defence to prove who it may be, it is the prosecution's burden to prove their case beyond reasonable doubt," he says.
Ram says Yusof makes another "erroneous submission" by saying that Seah had indeed made slides, and that Dr McDonald said she did not.
"He was referring to the doctors at HKL," he says.
11.30am: Ram says that McDonald's testimony should be considered in its totality and not be penalised for one mistake which he later owned up to.
The DNA expert corrected himself on the stand, on a procedural matter in the DNA analyses done by Seah.
"(McDonald's) expertise is unquestionable," he says.
Ram concludes by saying that Anwar should be acquitted.
11.35am: Yusof replies that the purpose of DNA testing is to exclude the accused.
"At no time did their expert say Male Y is excluded," he says.
Referring to DPP Farah Azlina, who was dropped from the prosecution team after allegations she was romantically linked to the accuser surfaced online, Yusof says he is not of the opinion she should be recalled.
On the plastic inserted into the anus, the solicitor general II said this is "something the lordship should look into".
11.36am: Answering rebuttals on his charge that Hoogland was "speculative", Yusof said Jeyaindran was not called to give an expert opinion.
"We called him because he recorded something. The history. Even Hoogland conceded you would see it if people are in pain," he says.
The judge says he will deliver the verdict on Jan 9. The proceeding concludes.
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