On Day Two of sodomy appeal, defence seeks to restore trial judge’s findings

Lawyers for Datuk Seri Anwar Ibrahim trained their guns today on DNA evidence used in his sodomy trial, telling the Federal Court that samples from their client were obtained unlawfully while samples from the complainant were compromised.

Day Two of Anwar's appeal to get his conviction overturned saw his lawyers defending the findings of the trial judge who acquitted him of sodomising his former aide Mohd Saiful Bukhari Azlan because of doubts over the DNA samples.

Anwar's co-counsel Ramkarpal Singh today set out to demolish the scientific evidence that supported the prosecution's case which resulted in Anwar being convicted in the Court of Appeal last March.

"We are defending the trial judge's conclusion as correct although Anwar should have been freed much earlier as Saiful is not a credible witness," he said.

The opposition leader is now appealing the conviction and a five-year jail sentence at the Federal Court before a five-man bench.

In the High Court, judge Datuk Mohamad Zabidin Mohd Diah found Saiful to be a credible witness and ordered Anwar to enter his defence.

But the judge then acquitted Anwar as the court could not be "100% certain" on the integrity of samples taken from Saiful for DNA testing on grounds that the exhibits could have been compromised before being handed over to a chemist.

Government chemist Dr Seah Lay Hong concluded in her report that there were DNA of Saiful, a "Male Y" and another unidentified male contributor based on swabs taken from Saiful's rectum.

On July 16, 2008 Anwar was arrested for investigations and placed overnight in a lockup at the Kuala Lumpur police headquarters.

His detention was for police to obtain his DNA to see if it matched any of the three profiles found by Seah earlier.

Police collected a towel, a tooth brush and a mineral water bottle from the lockup where Anwar was held. These were sent for DNA analysis by chemist Siti Aidora Saedon.

The DNA profile on each of the three items matched each other, indicating that they had originated from the same person.

Siti Aidora then compared the DNA profiles on the three items with Seah's findings and found a match with the "Male Y" profile.

The prosecution concluded that Male Y was Anwar.

Today, the defence sought to dismantle that conclusion.

Co-counsel Sangeet Kaur Deo argued that the three items from the lockup were unlawfully taken.

"There is no evidence which showed that Anwar was using all the three items as no witnesses came to testify," she said.

Ramkarpal also argued that although there was a match between the profile found on the three items with one of the DNA samples from Saiful's rectum, it could not be admissible in court as the sample from the lockup items were obtained by deception.

The defence reminded the court today that its expert witnesses during the trial had suggested that the samples from Saiful's rectum could have been contaminated.

Forensic pathologist Prof David Lawrence Wells and DNA expert Brian Leslie MacDonald had also said that it was not likely that any trace of semen could be retrieved 36 hours after the alleged sexual assault took place.

Doctors at the Kuala Lumpur Hospital had only swabbed Saiful for DNA just before midnight on June 28, 2008 – 56 hours after the alleged offence was committed between 3pm and 4.30pm on June 26.

Wells and MacDonald had said it was likely any sperm specimen retrieved from Saiful that long after the alleged assault would be compromised.

The defence also said that Anwar's DNA was planted.

If the samples were in, or near, "pristine" condition as testified by the government chemist, the defence said it could not have been Saiful's.

Storage of the samples in a steel cabinet by the investigating officer instead of proper refrigeration also contributed to the degradation of the exhibits, the defence held.

Ramkarpal said the trial judge, who believed the opinions of the defence witnesses, had said the court could not with 100% certainty, exclude the possibility that the integrity of the samples taken from Saiful had been compromised.

That being the case, there was no evidence to corroborate Saiful on the evidence of penetration," the High Court judge had said.

However, the Court of Appeal overturned the findings of the trial judge, recognising Seah and Siti Aidora as competent witnesses and accepting the match between the DNA profiles which connected Anwar to the offence.

Ramkarpal will continue his submission on the DNA evidence tomorrow before the prosecution takes its turn to respond. – October 29, 2014.