PUTRAJAYA, March 6 — The pristine condition of DNA samples submitted in Datuk Seri Anwar Ibrahim’s second sodomy trial despite it being retrieved from his accuser’s rectum indicates the evidence may have been altered, defence lawyer Ram Karpal Singh asserted today.
During the government’s appeal of the opposition leader’s acquittal of a sodomy charge today, Ram told the Court of Appeal the samples retrieved from former Anwar aide Mohd Saiful Bukhari Azlan were poorly stored and susceptible to contamination such as bacterial and fungus growth.
But Ram pointed out that government chemist Dr Seah Lay Hong did not consider degradation of DNA in scrutinising the samples extracted from Saiful, which he said raises suspicion on whether the sample evaluated were the same as those recovered.
“I am not saying that it is different, but it could not the same sample as in the first that was taken from PW1. (But) it is possibly not the same samples taken to study,” said Ram referring to Saiful, who was the prosecution’s first witness during the course of trial in 2010.
During the two-year trial in which Anwar was previously acquitted of sodomising Saiful, traces of Anwar’s DNA said to be recovered from the former’s rectal region made up the crux of the prosecution’s case.
Of the 12 sample retrieved during a medical examination, four were taken from Saiful’s high and low rectum as well from the perianal region.
“The sample was taken 56 to 58 hours after the incident. The sample was not placed in a freezer but it was found in pristine condition despite the threat of degradation from bacteria,” Ram told the three-men bench chaired by Datuk Balia Yusof Wahi and assisted with Datuk Aziah Ali and Datuk Mohd Zawawi Salleh.
The trial judge was aware that apart from Saiful’s and Anwar’s DNA, the experts also found traces of DNA from a “third male contributor”, said Ram.
“There was contamination in the perianal swab, and also on the lower rectum swab. This was not disputed. There was another male contributor. There is a mixture of semen containing Saiful’s DNA, Male Y (Anwar) and there was another male contributor retrieved from the perianal area,” said Ram, adding that this should have been enough for the charge to be dropped in the initial stages.
Reinforcing his point that Anwar’s DNA could have been retrieved much later, Ram said that the “Good Morning”-brand towel and a toothbrush retrieved from Anwar’s lock up were also contaminated.
He said that Dr Seah agreed that the DNA samples retrieved were found to be in “pristine condition” despite being poorly stored for about 96 hours.
“Degradation is expected to happen and it (DNA samples) reached the chemist after four days.
“However, Dr Seah said degradation is not of concern to her as long as DNA can be read.
“Degradation is due to bacterial growth as a result the samples not being preserved, as a result of it not being placed in a freezer,” said Ram.
“Normally, we would expect there will be degradation, but how is it that there were no degradation after the samples were only given to the chemist four days after the incident?” he asked, suggesting that the samples were not have been the ones retrieved from Saiful.
Prior to Ram’s submission, Anwar’s lead counsel, Karpal Singh, also stressed on the point of degradation, noting that investigating officer Jude Blacious Pereira had failed to follow procedures in storing the medical samples.
Reading excerpts of Pereira’s testimony, Karpal said that the retired police officer did not place the samples in a freezer as ordered by Dr Seah.
“Dr Siew asked Jude to put the samples in a freezer but he did not do so and this shows the sample was compromised when he placed it in his cabinet.”
“The cabinet is not a freezer, and when asked by Sankara Nair (Anwar’s lawyer during the trial) if this is not against police procedure, Jude did not answer that question.
“He knew he should place it in the freezer to prevent degradation. This shows Jude did not follow Dr Siew’s direction and this shows he went against the standard operating procedure,” said Karpal.
Karpal later rebutted a remark private lawyer Tan Sri Muhammad Shafee Abdullah, who is heading the government’s appeal, made against the opposition leader for choosing to offer his statement from the dock.
“An accused person need not put up defence, he can remain silent, make a statement from the dock or witness stand.
“Anwar chose to make a statement from the dock and the prosecution should not poison the minds of the judiciary by making such statements,” he hit out.
Earlier today, Shafee criticised Anwar for the “tactic”, saying that it denied the prosecution the right to cross-examine the latter during the trial.
Karpal also objected to Shafee’s assertion that the standard of proof is a balance of probabilities in a criminal case, citing precedents to back his point that the onus is on the defence to prove the charge “beyond a reasonable doubt” and that was achieve at the lower court that freed Anwar.
“My learned friend has maligned my client and for that he should apologise,” said Karpal.
The veteran lawyer also said that although Saiful accused Anwar forcefully sodomised him, the former’s testimony pointed otherwise and showed that “there was no element of hesitation” on Saiful’s part during the alleged act of intercourse on June 26, 2008.
“He doesn’t strike me as a country bumpkin. He has been to college and was admitted to electrical engineering degree course,” said Karpal, insisting that the conduct of the accuser was inconsistent with that of a person who was sexually violated.
Saiful, during the previous trial, admitted to attending a PKR function after the alleged incident, which Karpal noted was not the behaviour of an individual who had just been sexually violated.
“The court must subject maximum evaluation, and the court should consider Saiful’s evidence with care as it did with Azizan Abu Bakar, which was described by the trial judge to be a credible witness as strong as the Rock of Gibraltar, but the Federal Court overturned this,” said Karpal.
Azizan was among the several witnesses who claimed to have engaged in the sexual misconduct with Anwar during the latter’s first sodomy charge in 1998.
Karpal pointed out that Saiful’s credibility was also in question as the latter delayed lodging the report until two days after the alleged incident and had told a different story of “plastic being inserted into his anus” to the first doctor that examined him.
“It was not a conduct of someone who has been ravaged.”
On January 9, 2012, Anwar was acquitted of the charge of sodomising Saiful at the Desa Damansara condominium on June 26, 2008.
Kuala Lumpur High Court judge Datuk Mohd Zabidin Mohd Diah acquitted Anwar on grounds that the DNA samples were tampered with.
The government is appealing the case mainly on grounds that Zabidin did not specify in his judgement the reason for concluding that the samples were compromised.
The appeal resumes tomorrow.
