QC’s verdict: Apex court erred in jailing Anwar

By Hafiz Yatim
Malaysiakini
Feb 11, 2015

With controversy still simmering over yesterday’s Federal Court verdict throwing Anwar Ibrahim into jail, an independent observer has described the judgement as ‘superficial, failing to adequately deal with key issues brought up by the defence team’.

Inter-Parliamentary Union observer and Queen’s Counsel Mark Trowell pointed out that Chief Justice Arifin Zakaria’s findings on the DNA material effectively ignored the testimony of Professor Dr David Wells and Dr Brian McDonald both who raised serious doubts as to the integrity of victim Mohd Saiful Bukhari Azlan’s DNA samples.

“It was not sufficient to brush their opinions aside by saying neither (Wells or McDonald) had recently carried out DNA extraction. That is a job to be performed by a laboratory technician. They are both senior scientists sufficiently skilled and experienced in giving an opinion about the DNA extraction process performed by the government chemists and the adequacy of their testing.

“They weren’t disadvantaged by not actually performing the extraction themselves (which is a criticism made by the CJ) because they heard the testimony of the government chemists and were able to give their free expert opinion on it. That is what experts do,” he said.

Trowell – who is also an observer for Lawasia and the Australian Law Council – said federal court’s finding that the chain of custody for the samples was not broken by the conduct of the investigation officer DSP Jude Blacious Pereira was inconsistent with the facts and the law.

Turned air-conditioner on

He told Malaysiakini that a court that properly and reasonably considered the evidence would have excluded the DNA samples because of Pereira’s’s conduct which was ‘sloppy and unprofessional’.

“The trial (High Court) judge was right to reject the DNA evidence,” said Trowell, who had attended Anwar’s Sodomy II trial from the beginning.

McDonald had questioned the ‘pristine condition’ of the samples taken from Saiful’s anus – done approximately 56 hours after the sodomy incident – which were then kept for close to two days by Pereira before being handed over to the Chemistry Deprtment.

While Hospital Kuala Lumpur doctors who examined Saiful had asked the policeman to keep the samples in a freezer, he had merely kept them in his steel drawer besides switching on the air-conditioner in his office.

Trowell, author of the book ‘Sodomy II: The Trial of Anwar Ibrahim’, said without the DNA evidence, there was no corroboration or independent evidence to support Saiful’s testimony.

“As the trial judge correctly concluded that (the DNA samples) was something that could not be relied upon while Pereira’s account was suspect and unreliable.

“The CJ also passed over so many inconsistencies which tainted Saiful’s account making it something that could not be accepted,” he added.

‘Fanciful suggestion’

Justice Arifin – in his judgment yesterday – had turned down the notion of Saiful’s DNA samples being compromised, saying Pereira had adhered to the Inspector-General’s Standing Orders (IGSO) that required him to put proper markings and labels on the exhibits.

He added the bench, on seeing the sealed plastic bag with Saiful’s DNA samples placed in them, noted that it had been snipped open by Pereira and that he had kept the snipped portion of the plastic bag to show transparency in his actions.

“Furthermore, Dr Seah Lay Hong in her testimony confirmed that she did not detect any tampering of the seals of the exhibits marked B to B10.

“We, therefore, find that there was no break in the chain of custody of those exhibits,” he emphasised.

“As such, we agree, with the Court of Appeal that the integrity of the samples was not compromised.

“In view of our finding that there was no break in the chain of custody for the evidence, the fanciful suggestion of Anwar’s counsel that the DNA evidence had been planted is therefore unsustainable,” Justice Arifin ruled.