Anwar’s fate hinges on Saiful’s credibility, say lawyers

Opposition leader Datuk Seri Anwar Ibrahim’s career might be over if the Federal Court upholds his jail sentence on Tuesday. – The Malaysian Insider pic, February 7, 2015.On Tuesday, opposition leader Datuk Seri Anwar Ibrahim will be in the dock as the Federal Court delivers the much-awaited verdict on the PKR de facto leader's sodomy appeal, reminiscent of the scenario about 10 years ago.

In September 2004, the apex court, in a majority 2-1 ruling, acquitted him and his adopted brother Sukma Darmawan Sasmitaat Madja of having carnal intercourse with Azizan Abu Bakar, who was the driver of Datuk Seri Dr Wan Azizah Wan Ibrahim, Anwar’s wife.

In this second sodomy case, the Court of Appeal last year convicted the Permatang Pauh MP of sexual misconduct on his former aide, Mohd Saiful Bukhari Azlan, at a unit of the Desa Damansara condominium in Bukit Damansara, Kuala Lumpur, on June 26, 2008.

In 2012, trial judge Datuk Mohamad Zabidin Mohd Diah freed Anwar at the close of the defence's case on grounds that the integrity of the samples could have been compromised.

However, Zabidin accepted Saiful as a credible witness. The Federal Court's verdict on February 10 will thus hinge on whether the judges find Saiful's testimony able to stand up to the holes and gaps that Anwar's defence team has highlighted.

Lawyer Amer Hamzah Arshad said any other corroborative evidence would not matter to the court if the judges were convinced that Saiful's testimony was unreliable.

The carpet

In the apex court's hearing of Anwar's appeal last October 28, lead counsel Datuk Seri Gopal Sri Ram told the five-man bench led by Chief Justice Tun Arifin Zakaria that Saiful was not a worthy witness nor could he have been a sodomy victim.

There were gaps in Saiful's testimony, such as his claim that the alleged act took place on a carpet but this exhibit was never produced in court.

The prosecution attempted to refer to another carpet, but it was one found in an adjacent condominium unit and not the one where the crime was said to have happened.

Sri Ram said there was also no evidence produced to show that the carpet was moved from the alleged crime scene.

"If the carpet was never moved to the adjacent unit, then the act of sodomy never took place. So, Saiful's evidence can't be believed," Sri Ram said during submission last year.

K-Y Jelly as material evidence

Another contested piece of evidence in Saiful's testimony was a tube of lubricant allegedly used in the crime, which the former aide had offered to the case investigating officer, Superintendent Jude Pereira on June 28, 2008. But Pereira told Saiful to wait and that he would collect it the following day.

Sri Ram said the lubricant, purportedly used to aid in the sexual act between Anwar and Saiful, was only seized from the complainant the next day and this had raised the question as to why an investigation officer would decline a material exhibit from the accuser.

The tube of K-Y Jelly was never tendered as evidence, nor had it been mentioned by Saiful in his police report. The former aide only raised it for the first time during his testimony.

Sri Ram had also said if the lubricant had been used in the sodomy attack, Saiful would not have complained of pain, which he did.

The plastic object 

The defence also noted Saiful's claim that he had told Dr Mohd Osman Abdlu Hamid, the first doctor to examine him after the alleged sodomy, that he had been assaulted by a VIP with a plastic object inserted into his anus.

Dr Osman's findings after examining Saiful were also that there was no evidence of penile penetration.

However, the prosecution never called Dr Osman to testify – yet another failure to produce material evidence by a key witness, the defence had said.

The prosecution, however, had considered Dr Osman an unreliable witness and accused him of modifying Saiful's medical report.

Chain of evidence

Anwar's lawyers had also asserted that there was break in the chain of forensic evidence during  the time the samples were taken from Saiful at Kuala Lumpur Hospital on June 28, 2008 until they was handed to chemist Dr Seah Lay Hong two days later.

The chemist found the samples to be "pristine" but documentary evidence and testimonies by defence experts showed that the exhibits would have degraded as they were not refrigerated. 

Instead, Pereira, the investigating officer, had kept the samples in a steel cabinet in his air-conditioned office.

The defence also suggested that the samples had been tampered with by Pereira when he cut open the plastic bag containing the swab samples in order to transfer them to individual envelopes.

Claim of political conspiracy

Co-counsel N. Surendran had argued that the charge against Anwar was a political conspiracy as Saiful had admitted meeting Prime Minister Datuk Seri Najib Razak, and had called the then inspector-general of police Tan Sri Musa Hassan. All these meetings were before the date of the alleged sodomy.

Saiful had also met senior police officer Senior Assistant Commissioner Mohd Rodwan Mohd Yusof who was involved in Anwar's first sodomy case.

Anwar had given a 32-page unsworn statement from the dock during trial stage to deny committing the crime and to explain why the second sodomy charge against him was political in nature.

The prosecution, however, said that this evidence was worthless as unsworn statements from the dock were not admissible and could not be cross-examined.

The High Court and Court of Appeal had dismissed Anwar's unsworn statement, considering it a "bare denial" of the charge.

Burden of proof

The prosecution, when making submissions at Anwar's appeal last year, tried to shift the burden of proof to the accused.

Led by Umno lawyer Tan Sri Muhammad Shafee Abdullah, the prosecution defended the Court of Appeal's ruling, which had reversed the acquittal decision of the trial court.

Shafee was acting as an ad hoc deputy public prosecutor engaged by the government for the case.

He said the court should believe the testimony of the government chemists who conducted DNA profiling of samples to connect Anwar to the sodomy charge.

"If Anwar claims the semen sample was not his, then he should do his own DNA test to prove otherwise," Shafee had said.

The prosecutor also said claims that the semen samples kept by the investigating officer had been tampered with were "unreasonable" as it would have been difficult to find fresh semen.

Shafee also said Anwar should explain how his sperm had ended up in "intimate areas" of Saiful.

And he also questioned why the defence did not call any alibi witnesses when Anwar had put up an alibi defence. The court was obliged to draw an adverse inference, Shafee had said.

Saiful's credibility

Lawyers asked to comment on the evidence said that if the defence could convince the judges that Saiful should not be believed, any other corroborative evidence would then become irrelevant.

Amer said the prosecution would not be able to cross the first hurdle if there were deficiencies in the primary evidence of the complainant.

"Corroborative evidence cannot be relied upon if the main evidence is deficient or inadmissible," he said.

Amer said that the legal burden to prove a case always remained with the prosecution and the defence need only to create a reasonable doubt.    

Another lawyer, Ramesh Sivakumar, said Anwar's statement from the dock and alibi defence was only relevant if the prosecution had proved a prima facie case against the accused, as he should have been acquitted without calling for his defence.

Sivakumar said the defence conducted its case in the Federal Court to show that Saiful was an unreliable witness and that the trial judge should have acquitted Anwar because the prosecution failed to establish a prima facie case.

Sivakumar said the defence had explained that it did not use Anwar's alibi defence because the witnesses had said they were harassed by the police.

"Anwar's statement from the dock also cannot be dismissed altogether because it raises the defence of denial (that the sexual act never happened) and political conspiracy," he added.

The Court of Appeal had sentenced Anwar to five years' jail but granted him a stay on the sentence pending the outcome of his appeal.

The prosecution has filed a cross-appeal for a higher jail sentence against Anwar, which could stretch up to 20 years.

It will be a straightforward matter for Anwar if the Federal Court frees him, but if the court upholds the conviction, Shafee is expected to give submissions as to why the opposition leader deserves an enhanced sentence. The defence will then be given the opportunity to argue against this.

Anwar's political career could come to an end if he is fined more than RM2,000 or jailed more than a year and does not received a free pardon.