Sodomy II: Evidence, testimony and Anwar’s defence

By Shazwan Mustafa Kamal
The Malaysian Insider
May 17, 2011

KUALA LUMPUR, May 17 — In the course of the Sodomy II trial, Datuk Seri Anwar Ibrahim’s defence team had pointed out a vast array of “inconsistencies” but trial judge Datuk Mohd Zabidin Mohd Diah has concluded the opposition leader has a case to answer.

This ranged from the credibility of the star witness and accuser Mohd Saiful Bukhari Azlan to the methods in which DNA samples were illegally obtained from Anwar during his overnight lockup detention in the Kuala Lumpur police headquarters.

“It does not come as a surprise but what is shocking is that he (Mohd Zabidin) has prejudged the case, and extended it beyond prima facie.

“This makes the position of the defence very precarious,” Anwar said yesterday.

The following are some of the highlights of the case where the prosecution and defence saw things differently.

1. Prima facie case in Sodomy II

Mohd Zabidin, in his ruling said that there is a prima facie case in Anwar’s sodomy charge as Saiful is a credible witness.

The High Court judge, in his decision, quashed the defence team’s arguments in attacking Saiful’s credibility. They had charged that Saiful had lied in open court, and charged that there were many loopholes in his testimony.

Lead defence counsel Karpal Singh had previously demanded that Saiful be charged with “lying” in court about being sodomised by Anwar, and had pointed out that there were too many inconsistencies between the charge against Anwar and the star witness’ testimony.

On April 25 this year, Karpal urged the court to direct the prosecution to charge Saiful under section 195 of the Penal Code for fabricating evidence with intent to procure conviction of an offence punishable with imprisonment.

The veteran lawyer’s main contention was that although Saiful has accused Anwar of sodomising him, his testimony proved otherwise and showed that “there was no element of hesitation” on Saiful’s part during the alleged act of intercourse on June 26, 2008.

The lawyer’s contention was that the conduct of the accuser had been inconsistent with that of a person who was sexually violated.

According to Karpal, Saiful had every opportunity to leave the condominium unit of Desa Damansara on June 26 (the day of the alleged sodomy act) but based on his testimony in court, he did not do so.

Karpal pointed out that Saiful’s testimony indicated he had “voluntarily” followed through with the alleged sodomy and did not show any form of restraint.

Saiful had admitted to having attended a PKR function the next day, an act unbecoming of a person who had just been sexually violated, according to Anwar’s lawyer.

2. Framing of charge against Anwar

Karpal also said that Anwar had been placed at a “tactical disadvantage” as he was charged under section 377B of Penal Code relating to consensual intercourse with no mandatory imprisonment, instead of section 377C of the Penal Code pertaining to non-consensual intercourse with mandatory imprisonment for a term of not less than five years.

Mohd Zabidin had however quashed all arguments relating to Saiful’s credibility as a witness, and even ruled that Saiful’s failure in not lodging a police report after the alleged sodomy did not mean the complainant had “lied”under oath.

The judge also said that since there had been no dispute that Anwar had directed Saiful to go to the Desa Damansara condominium, there was undeniable proof that both of them were there during the time of the alleged act.

3. Saiful’s alleged “affair” with a deputy public prosecutor

On July 27 last year, deputy public prosecutor Farah Azlina Latif was dropped from the team prosecuting Anwar for sodomy after allegations surfaced that she was romantically involved with the trial’s chief witness — Saiful.

The Malaysian Insider reported the allegations after fugitive blogger Raja Petra Kamarudin alleged that Farah was having an “affair” with Saiful.

In response, Attorney-General Tan Sri Abdul Gani Patail then announced that the junior prosecutor was removed to prevent negative public perception of the Sodomy II prosecution team.

Abdul Gani said Farah Azlina had to be dropped not because she was found guilty, but to avoid any negative public perception on the prosecution team.

Abdul Gani also said that an internal investigation will be held to look into Raja Petra’s claims and action will be taken accordingly.

No action has been taken so far and neither Saiful nor the prosecution team has denied the allegations of an “affair.”

4. Testimonies of expert prosecution witnesses

Defence lawyers have throughout the course of the prosecution’s case sought to raise doubts over the testimonies of witnesses Dr Mohd Razali Ibrahim, Dr Siew Sheue Feng and Dr Khairul Nizam Hassan. All three were the Hospital Kuala Lumpur (HKL) doctors who had examined Saiful on June 28, 2008 when he complained that he had been sodomised by a “high-profile” politician.

Dr Razali had testified last year that evidence of semen in Saiful’s anal region was sufficient to indicate penetration, despite no tear or injury to the anus. The examination was done two days after the alleged sodomy.

The same doctor had also testified that seminal fluids can remain in a person’s rectum up to 72 hours after being sodomised.

Dr Razali had said he inspected Saiful’s anus 54 hours after the alleged act took place.

However, the doctor maintained that upon examination he found that Saiful’s rectum was empty despite the fact that Saiful had complained that he had not defecated since he was sodomised.

Similarly, HKL forensic pathologist Dr Siew testified that there were no signs of injury to Saiful’s anus upon examination, saying that he took down a “detailed” history of Saiful.

Anwar’s lawyers have questioned why the KY Jelly lubricant, used by Saiful in the alleged sodomy, was not analysed despite being admitted as evidence together with the other items.

The item was filed as evidence through investigating officer ASP Jude Pereira.

This led Anwar’s lawyer Sankara Nair to accuse Pereira of evidence tampering.

But Mohd Zabidin also decided that there was nothing “inconsistent” with the clinical findings of the HKL doctors as well as the government chemists who had taken DNA samples from Saiful and Anwar.

This is despite the defence’s repeated claims of possible contamination and degradation of material evidence by Pereira.

5. DNA samples obtained in the Sodomy II trial

Anwar’s lawyers have argued that the DNA samples obtained in the trial were obtained through illegal means and that seminal fluids found in Saiful’s anal region may have been his own semen.

Ramkarpal Singh, one of Anwar’s lawyers, argued that government chemist Dr Seah Lay Hong’s report findings showed that seminal fluids found in Saiful’s high rectal area may be his own as Saiful’s DNA profile — identified as profile “12, 13” — was more “dominant” than the DNA profile of an unidentified “Male Y.”

Dr Seah, however, had denied this, saying that there were two types of extracts found in the high rectal area — non-sperm and sperm extracts.

Saiful’s DNA profile, according to the government scientist, fell in the first category.

The findings of the chemist report had however confirmed the defence’s arguments, as Saiful’s DNA profile was found both on the sperm extract and the non-sperm extracts.

Ramkarpal also questioned why there were no seminal stains found on Saiful’s undergarments and trousers if semen had been ejaculated into the complainant’s anus.

Dr Seah refused to comment on the matter, and said that Ramkarpal’s question was just a “speculation.”

The prosecution, headed by Solicitor-General II Datuk Mohd Yusof Zainal Abiden, had argued that the High Court has no power to exclude evidence from Anwar’s sodomy trial just because it was obtained through “unfair means.”

Yusof claimed that judge Mohd Zabidin should not be concerned with how evidence samples in the trial were obtained “as long as it is relevant, it is admissible.”

Anwar’s defence lawyers had won a ruling in which all evidence retrieved from the lock-up during the period — a towel, toothbrush and mineral water bottle as well all DNA samples relating to the items — was expunged.

The judge had overturned his earlier ruling when the prosecution produced an arrest warrant which had gone “missing” during the trial, therefore justifying Anwar’s overnight arrest.

In their closing submissions, the prosecution submitted that the DNA samples taken from three items in a cell where Anwar spent the night on July 16, 2008 matched the “Male Y” DNA profile.

“It confirms the unknown contributor Male Y is Datuk Seri Anwar. This shows there is a prima facie case,” Yusof said in his submission on whether Anwar should be called to enter his defence in the Sodomy II trial.

Yusof had also said Anwar was the sole detainee in the lockup at the time when the items — a towel, toothbrush and mineral water bottle — were retrieved.

Chemist Dr Nor Aidora Saedon and Supt Amidon Anan were called earlier this month to identify the items to be marked as exhibits.

Anwar had refused to provide DNA samples in his first sodomy trial in 1998 for fear they could be manipulated.

Former Kuala Lumpur CID chief Datuk Mat Zain Ibrahim also claimed last January that DNA evidence was fabricated in Anwar’s first sodomy trial.

The DNA Identification Act 2008 was passed to compel suspects to provide DNA samples despite protests from Pakatan Rakyat (PR) lawmakers.

Mohd Zabidin again in his ruling quashed all the defence’s objections and points, and ruled ultimately in favour of the prosecution.

He also said that the DNA evidence taken from Anwar’s lockup on July 16, 2008 could be used as evidence as the PR de facto leader was the last “occupant” in the holding cell before the three items were retrieved for DNA sampling.

“There is no reason for this court not to accept evidence in this case… I find degradation, even if there is, to be insufficient,” ruled the judge.

The trial will resume from June 6-30 where Anwar will be defending his case.

The 63-year-old PKR de facto leader is currently facing sodomy charges for the second time in his life.

He has denied the charge, describing it as “evil, frivolous lies by those in power” when the charge was read out to him. He is charged under section 377B of the Penal Code and can be sentenced to a maximum of 20 years’ jail and whipping upon conviction.

The trial began 18 months after Anwar was charged in court in August 2008.

He was charged with sodomy and corruption in 1998 after he was sacked from the Cabinet and was later convicted and jailed for both offences.

He was freed in September 2004 and later resurrected his political career by winning back his Permatang Pauh parliamentary seat in a by-election in 2008, which had been held in the interim by his wife.

He led the loose pact of PKR, the DAP and PAS to a historic sweep of five states and 82 parliamentary seats in Election 2008.