SODOMY II The Court of Appeal has downplayed the credentials of Anwar Ibrahim's two Australian hired experts describing them as “armchair experts” and saying their evidence lack probative values.
In the 85-page judgment, the three-member bench of the appellate court ruled there was no tampering of the samples recovered from Mohd Saiful Bukhari Azlan's anus as the local chemist Dr Seah Lay Hoong said the containers remained intact.
The Court of Appeal panel that heard and allowed the prosecution's appeal and overturned the not guilty plea against Anwar comprised Justices Balia Yusof Wahi, Aziah Ali and Mohd Zawawi Salleh.
“The evidence of Dr
Brian McDonald (right) and Dr David Wells were mere opinions, opposed to the evidence by the two local chemists which were factual and based on their own analysis of the samples.
“Both McDonald and Wells are mere 'armchair' experts. McDonald imparted his knowledge, not gained from personally having conducted tests on the analysis but only by reading the manual on DNA extraction protocol issued,” the judgment says.
'Evidence of foreign experts speculative'
Hence, they said, it was understandable why the foreign experts could not appreciate the explanation given by Seah in respect of the extraction of DNA she had carried out because the Australians had never personally conducted the procedure before.
They further said the trial judge should have treated the evidence from the foreign experts as sufficient to rebut.
“Evidence in rebuttal must be credible evidence and have high probative value. Considering the nature of the evidence proffered by these two defence experts, with due respect, we must say that the evidence is lacking in its probative value for the reasons adumbrated earlier,” the judgment says.
“We agree with the prosecution that the evidence of the foreign experts was, to a great extent, speculative and theoretical if not hypothetical, thus lacking in probative value,” they said, adding that they also found merits in the prosecution's criticism of the foreign experts.
“In our view, the comments and criticisms by the two foreign experts pertaining to the two local chemists on their analysis and the three Kuala Lumpur Hospital (HKL) doctors who retrieved the samples and prepared the report have no probative value to cast a reasonable doubt on the prosecution over the factum of penetration.”
Jude did not tamper with evidence
The court also accepted the prosecution's argument that investigating officer Supt Jude Blacious Pereira was merely following the Inspector-General's Standing Orders (IGSO) in removing the samples retrieved from the victim and putting them in separate envelopes.
This was because, they argued, Seah had testified that the seals on the containers from HKL remained intact and there was no evidence of tampering, for otherwise she would have stated it in her report.
“We do not find Jude's act in cutting open the plastic bag (holding all the samples) amounting to tampering of exhibits. He was merely complying with the IGSO.
“Tampering and the possibility of tampering of the samples by Jude (right) have not been proven. In our considered opinion, the contention that Jude tampered with the exhibits is devoid of any merit,” the judges said.
On the sample degradation, the appellate court said there was no notion that the samples taken would be in pristine situation, and the finding of the sperm cells after more than 56 hours after the incident was not unusual.
Seah (right), the judgment said, accepted that degradation could take place, but no one could actually say the actual level of degradation.
The judges further cited various literature to support the DNA findings
“In this case, not only Seah was able to detect the presence of semen on the samples but she was also able to observe under a microscope the presence of sperm cells, non-sperm cells and bacteria from the slides.
“Her (Seah's) evidence clearly shows the deterioration of the samples in the instant case was not to such an extent which did not permit her to do DNA profiling. The finding of sperm cells in Saiful's anus 56 hours after the incident of sodomy is not unusual.
“In light of the above, we have no hesitation to conclude that Seah and another chemist Nor Aidora Saidon were able to obtain perfect DNA profiles connecting the respondent to the offence charged.”
Seah inspected the sample retrieved from Saiful, while Nor Aidora tested the samples retrieved from Anwar's cell, almost two weeks after the alleged incident.
Anwar had been sentenced to five years' jail for sodomising Saiful at the Desa Damansara Condominium on June 26, 2008.
In the 85-page judgment, the three-member bench of the appellate court ruled there was no tampering of the samples recovered from Mohd Saiful Bukhari Azlan's anus as the local chemist Dr Seah Lay Hoong said the containers remained intact.
The Court of Appeal panel that heard and allowed the prosecution's appeal and overturned the not guilty plea against Anwar comprised Justices Balia Yusof Wahi, Aziah Ali and Mohd Zawawi Salleh.
“The evidence of Dr
Brian McDonald (right) and Dr David Wells were mere opinions, opposed to the evidence by the two local chemists which were factual and based on their own analysis of the samples.“Both McDonald and Wells are mere 'armchair' experts. McDonald imparted his knowledge, not gained from personally having conducted tests on the analysis but only by reading the manual on DNA extraction protocol issued,” the judgment says.
'Evidence of foreign experts speculative'
Hence, they said, it was understandable why the foreign experts could not appreciate the explanation given by Seah in respect of the extraction of DNA she had carried out because the Australians had never personally conducted the procedure before.
They further said the trial judge should have treated the evidence from the foreign experts as sufficient to rebut.
“Evidence in rebuttal must be credible evidence and have high probative value. Considering the nature of the evidence proffered by these two defence experts, with due respect, we must say that the evidence is lacking in its probative value for the reasons adumbrated earlier,” the judgment says.
“We agree with the prosecution that the evidence of the foreign experts was, to a great extent, speculative and theoretical if not hypothetical, thus lacking in probative value,” they said, adding that they also found merits in the prosecution's criticism of the foreign experts.
“In our view, the comments and criticisms by the two foreign experts pertaining to the two local chemists on their analysis and the three Kuala Lumpur Hospital (HKL) doctors who retrieved the samples and prepared the report have no probative value to cast a reasonable doubt on the prosecution over the factum of penetration.”
Jude did not tamper with evidence
The court also accepted the prosecution's argument that investigating officer Supt Jude Blacious Pereira was merely following the Inspector-General's Standing Orders (IGSO) in removing the samples retrieved from the victim and putting them in separate envelopes.
This was because, they argued, Seah had testified that the seals on the containers from HKL remained intact and there was no evidence of tampering, for otherwise she would have stated it in her report.
“We do not find Jude's act in cutting open the plastic bag (holding all the samples) amounting to tampering of exhibits. He was merely complying with the IGSO.“Tampering and the possibility of tampering of the samples by Jude (right) have not been proven. In our considered opinion, the contention that Jude tampered with the exhibits is devoid of any merit,” the judges said.
On the sample degradation, the appellate court said there was no notion that the samples taken would be in pristine situation, and the finding of the sperm cells after more than 56 hours after the incident was not unusual.
Seah (right), the judgment said, accepted that degradation could take place, but no one could actually say the actual level of degradation.The judges further cited various literature to support the DNA findings
“In this case, not only Seah was able to detect the presence of semen on the samples but she was also able to observe under a microscope the presence of sperm cells, non-sperm cells and bacteria from the slides.
“Her (Seah's) evidence clearly shows the deterioration of the samples in the instant case was not to such an extent which did not permit her to do DNA profiling. The finding of sperm cells in Saiful's anus 56 hours after the incident of sodomy is not unusual.
“In light of the above, we have no hesitation to conclude that Seah and another chemist Nor Aidora Saidon were able to obtain perfect DNA profiles connecting the respondent to the offence charged.”
Seah inspected the sample retrieved from Saiful, while Nor Aidora tested the samples retrieved from Anwar's cell, almost two weeks after the alleged incident.
Anwar had been sentenced to five years' jail for sodomising Saiful at the Desa Damansara Condominium on June 26, 2008.
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