Prosecution cites nine grounds in Sodomy II appeal

The prosecution has cited nine grounds in its appeal against the acquittal of Anwar Ibrahim on the Sodomy II charge.

It argues that there is no evidence that the DNA samples retrieved from complainant Mohd Saiful Bukhari Azlan had been tampered with, as the chemists who examined the samples found the containers to be properly sealed.

The prosecution also focuses on Kuala Lumpur High Court judge Mohamad Zabidin Mohd Diah questioning the integrity of the samples, saying the judge had made an error in law and facts.

It says the samples were collected and analysed properly and further, the judge had made a finding of fact by calling for Anwar's defence.

"The DNA sample of 'Male Y' are sperm extracts that correspond to Anwar's DNA sample retrieved from the lock-up, and there is no way that the investigating officer could have used the samples from the lock-up to tamper the DNA samples taken from Saiful," the prosecution says in its petition of appeal.

The petition was filed by the prosecution on Monday, two days before the deadline.

Anwar was on Jan 9 acquitted on the charge of sodomising Saiful (left) at the Desa Damansara condominium on June 26, 2008.

Justice Zabidin in his written judgmenthad said it was unsafe to accept Anwar's evidence and hence the court could not corroborate the evidence that Saiful was sodomised because investigating officer DSP Jude Blacious Pereira had opened the plastic bag containing the samples.

"It was not in dispute that Jude, at his office, cut open P27 (the plastic bag). According to him, it was done for the purpose of individually re-labelling the receptacles. In my view, this was not necessary since the receptacles were already packed and labelled by the experts who collected them," Justice Zabidin ruled.

Another reason cited in the petition, signed by DPP Noorin Badaruddin who is the Trials Unit head in the Attorney-General's Chambers, was that the prosecution had proven Anwar's guilt beyond reasonable doubt, based on evidence adduced during the trial.

"The trial judge had made an error, and also in law, in evaluating the whole facts of the case and wrongly considering the testimony of second defence witness Dr David Wells and Australian DNA expert Dr Brian McDonald based on their incomplete and incomprehensible theory, and not considering the literary evidence given by the prosecution," Noorin said.

"The judge also made an error in law and facts, as Dr McDonald's expertise and experience in DNA examination is in dispute."

Opinions 'based on theories'

Furthermore, Noorin said, chemists Dr Seah Lay Hong and Nor Aidora Saedon had given their opinions based on their examination and analysis of the DNA samples. However, Wells and McDonald had given their opinions based on theories.

"Seah (right) and Nor Aidora had also taken into consideration the issues that could be raised by the defence witnesses in their examination and analysis of the samples," Noorin said.

"The judge also made an error in law and facts by imposing a heavier burden of proof than the 'beyond reasonable doubt' test and that there were other evidence to corroborate Saiful's testimony when the judge decided to call Anwar's defence."

Following this, Noorin petitioned the Court of Appeal to set aside the acquittal and to find Anwar guilty of sodomy.

The grounds of the petition will be dealt with by the prosecution during the hearing of the appeal, for which no date has yet been fixed.