Datuk Seri Anwar Ibrahim's fate in the Sodomy II case will be decided over two days at the Federal Court and hinges on the acceptance or rejection of the experts’ views on the DNA samples taken from his alleged victim. – The Malaysian Insider pic by Najjua Zulkefli, October 28, 2014.
Datuk Seri Anwar Ibrahim's fate in his latest sodomy case will depend on whether the Federal Court accepts the testimony of two foreign DNA experts or go with the testimony from government chemists, says a lawyer in the opposition leader's legal team.
Lawyer Ramkarpal Singh said Anwar would walk a free man if the apex court reinstated the judgment of High Court judge Datuk Mohamad Zabidin Mohd Diah, who accepted the testimony of foreign DNA experts – Professor David Lawrence Wells and Dr Brian Leslie MacDonald – who said the samples taken from alleged sodomy victim, Mohd Saiful Azlan
Bukhari, could have been compromised.
Bukhari, could have been compromised.
Zabidin freed Anwar as the court could not be "100% certain" on the integrity of samples taken for DNA testing from Saiful on grounds the exhibits could have been compromised before they were handed over to a chemist.
However, a three-man Court of Appeal bench led by Datuk Baliah Yusof Wahi on March 7 overturned the verdict after going with the testimony of government chemists, Dr Seah Lay Hong and Siti Aidora Saedon.
The Court of Appeal ruled that Seah and Siti Aidora were competent witnesses as they possessed the professional qualification and experience and were able to obtain perfect DNA profiles which connected Anwar with the offence charged.
A five-man apex court bench will hear Anwar's appeal today, the second time the former deputy prime minister is coming to the nation's top court to set aside his acquittal for sodomy.
In September 2004, Anwar won his final appeal in a majority 2-1 ruling for allegedly sodomising his wife's driver, Azizan Abu Bakar, at an apartment in Tivoli Villa, Bangsar.
This time, Anwar is stand accused of committing a similar offence at a unit of the Desa Damansara condominium in Bukit Damansara, between 3.10pm and 4.30pm, on June 26, 2008.
Ramkarpal, who appeared together with the late Karpal Singh during trial and in the appellate court, said the defence would make submission before the Federal Court that Anwar should have been acquitted without his defence called.
Zabidin had found that the credibility of Saiful's evidence was intact, there was corroboration in the Saiful's testimony, the integrity and chain of evidence in relation to the samples were neither broken nor compromised.
"We will impress upon the judges, based on evidence and existing legal arguments, that the judge was wrong to order Anwar to enter his defence," Ramkarpal, now the Bukit Gelugor MP, told The Malaysian Insider.
Zabidin only freed Anwar as the court could not be "100% certain" on the integrity of samples taken for DNA testing from Saiful.
The prosecution, led by Umno lawyer Tan Sri Muhammad Shafee Abdullah, is expected to vehemently defend the Court of Appeal ruling which convicted Anwar soon after hearing submissions in March.
The Court of Appeal judgment by Balia, Datuk Aziah Ali and Datuk Mohd Zawawi Salleh, said Zabidin failed to undertake a critical analysis of defence witnesses Wells and Dr MacDonald.
"This is a serious error and falls far short of the proper approach that a judge should have taken when judicially appreciating evidence," the judgment said.
The two witnesses were called to give their opinions on the evidence and the reports prepared by Dr Seah and Siti Aidora.
The bench added that the trial judge was simply overwhelmed by the evidence of the two foreign witnesses whom the appellate court labelled as "armchair experts".
Wells had suggested that the samples could have been contaminated and Anwar's DNA was planted.
Both witnesses said it was unlikely that any trace of semen could be retrieved after 36 hours of sexual assault.
They said in this case it was unlikely any sperm cell could have been retrieved from Saiful's rectum as it was taken 56 hours after the alleged offence was committed.
The reason is that active bacterial action in the rectum for 54 to 58 hours would have degraded the specimen.
The two also said that investigating officer Superintendent Jude Pereira had kept the samples in a steel cabinet and this further contributed to the degradation of the exhibits.
However, the appellate court acknowledged that Dr Seah and Siti Aidora were competent witnesses as they possessed the professional qualification and experience.
As such, the bench said they had no hesitation to conclude that both Dr Seah and Siti Aidora were able to obtain perfect DNA profiles which connected Anwar with the offence charged.
On the other hand, the judges said not much weight should be given to the conclusion derived by the foreign experts who sourced their opinions from textbooks and journals.
The judgment said Pereira had merely cut open a transparent plastic bag to remove the receptacles (containing the semen samples) to be put into separate envelopes and thereby ruled out that the exhibits were compromised.
"The tampering of semen samples is devoid of any merit as contamination was not proven," they said.
The judgment said the trial judge had also overlooked the evidence of Wells, who under cross-examination admitted he could not say that there had been tampering of the containers.
In any event, the bench observed that Dr Seah did not find any evidence of tampering or else she would have stated as such in her report.
Lawyer M. Viswanathan said the central issue in the case was why it took Saiful two days to lodge a report that he was sexually assaulted by Anwar.
He said the samples retrieved from Saiful was finally analysed by Dr Seah some 96 hours after the incident.
"The samples were not in sterile condition. It was taken from the anus which is rich in bacteria to break down organic matters like semen," said the lawyer, who had defended clients charged with sodomy and rape.
He described this piece of evidence in this case as "incredible and miraculous".
"I am no fan of Anwar but based on established legal principles and the evidence in this case, his legal team could convince the apex court to possibly get an acquittal.”
Viswanathan said the prosecution had to prove its case beyond reasonable doubt, a higher standard placed on them.
"On the other hand, the defence was only required to cast a doubt in the prosecution's case to earn an acquittal," he added.
He said the apex court judges had to decide whether the trial judge was right in accepting the opinions of the foreign experts or the appellate court's reliance on the evidence of the chemists.
Meanwhile, Lawyers for Liberty executive director Eric Paulsen also expressed concern over how counsel N. Surendran was going to discharge his duty since he was charged with sedition in relation to Anwar's case.
Surendran, who is Padang Serai MP, has been roped in to be part of Anwar's legal team in the apex court.
"A serious question mark now hangs over Anwar’s defence team as Surendran still faces two sedition charges for reiterating his client’s defence that the sodomy proceeding against Anwar was a political conspiracy," he said.
Paulsen said the same might also be argued for the rest of the defence team as there was a possibility that they too may face sedition charges for bringing up Anwar's political conspiracy defence.
There is a precedent for this – the late Karpal Singh was charged with sedition while defending Anwar in 2000 for statements made in court (although the charge was eventually withdrawn by the Attorney-General).
Surendran is expected to advance the theory of conspiracy by Prime Minister Datuk Seri Najib Razak for the purpose of ending Anwar's political career and also the conduct of Saiful before the alleged sodomy took place.
During trial, Saiful confessed he had met Najib at his residence, before he lodged a police report about the alleged sodomy attack.
Anwar, 67, who was sentenced to five years' jail, is now on RM10,000 bail in one surety.
The prosecution has also filed a cross-appeal for a higher jail sentence against Anwar.
Anwar's political career as an elected representative will end as he will be disqualified from office, if the conviction was sustained and fined more than RM2,000 or jailed more than a year and has not received a free pardon.
- TMI
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