PUTRAJAYA, March 6 — The DNA samples presented in Datuk Seri Anwar Ibrahim’s second sodomy prosecution were not compromised and should have been accepted as evidence during the trial, a government lawyer submitted today.
In appealing to reverse the opposition leader’s acquittal at High Court last year, Tan Sri Muhammad Shafee Abdullah argued that the trial judge had made a crucial mistake when he misconstrued that the DNA samples had been tampered with.
“The exhibit inside remained intact and the seal remained intact,” he told a three-judge panel at the Court of Appeal today, referring to the DNA samples.
The lawyer pointed out that High Court judge Datuk Mohd Zabidin Mohd Diah had not disputed the testimonies of the prosecution’s DNA experts, particularly chemist Dr Seah Lay Hong and pathologist Dr Siew Sheue Feng during the marathon Sodomy II trial.
Shafee noted that Dr Seah’s previous testimony that the bottles containing semen extracted from the rectum of former Anwar aide Mohd Saiful Bukhari Azlan — whom he was accused of sodomising — were in good condition when she received it for testing.
The lawyer argued that the only item that had been touched was the clear plastic bag containing Saiful’s 12 medical examination samples. He then claimed the investigating police officer, Jude Blacious Pereira, had cut open the bag in order to put the bottled samples in separate envelopes.
He added that Zabidin erred in deciding that the tearing of the plastic bag containing the sealed samples amounted to tampering.
“I suspect he must have confused it with the bottles that were sealed,” said Shafee, referring to Zabidin.
Shafee noted that defence’s foreign witness, Dr David Wells, had also concurred that it was the plastic bag that was altered.
The exhibit inside remained intact and the seal remained intact,” he said, pointing out Seah’s previous testimony that the bottles were in good condition when the latter had received it for scrutiny.
“The chemist had said that for the receptacles (test tube) to be compromised, the seal on the bottle had to peeled off completely, but that didn’t happen,” said Shafee, adding that Pereira would not have admitted that he transferred the samples into individual packaging “for the world to know”.
“The judge only says there is no 100 per cent certainty that the samples remained intact,” said Shafee to the bench led by Datuk Balia Yusof Wahi together with Datuk Aziah Ali and Datuk Mohd Zawawi Salleh.
Shafee then argued that while Anwar had also submitted a notice of alibi that the latter was not present at the Desa Damansara condominium that was corroborated by 14 witnesses, none was called to testify after security video evidence was presented during the trial.
“Not a whisper of an alibi was produced. The defence is dishonest when confronted with the video; they dropped the entire defence without a whisper.”
Shafee also questioned Zabidin’s judgement for not analysing Anwar’s decision to give his statement from the dock.
“The way the statement was crafted from the dock was devious. He said that he was forced to give the statement from the dock because the prosecution and the government was unfair.
“His statement was like reading an Agatha Christie thriller. It is only in the final two points, the judge decided to acquit,” he said and noted that Anwar’s statement was nothing but a “bare denial”.
He added that if the defence had doubts on the credibility of the samples, these were not raised during the trial.
“There was no accusation of conspiracy. And if there was, where will Jude get the accused’s sperm?” he posed.
Aziah then asked if Zabidin had addressed how Anwar’s semen found its way into Saiful’s anus.
“There is no suggestion that Anwar kept his sperms in a sperm bank. I know it rains cats and dogs but I didn’t know it rained semen. Even an ordinary person would protect his semen. What more a dignitary who claims the whole country is against him,” he added.
“The judge did handle this in his judgment, but did not go into it further,” said Shafee.
“Not only must have Jude obtained the semen but he must have obtained a degradation sample, in order to prove conspiracy. Judges must watch National Geographic and similar programmes,” he said.
Aziah then retorted to say “We watch CSI” referring to the popular US criminal thriller series “Crime Scene Investigation”, drawing chuckles from crowded gallery.
Summarising his submission, Shafee said the “appeal must be allowed as the evidence is overwhelming”.
On January 9, 2012, Anwar was acquitted of the charge of sodomising Mohd Saiful at the Desa Damansara condominium on June 26, 2008.
Zabidin freed Anwar on grounds that the court could not rule out possible tampering of the DNA samples submitted as evidence.
Anwar’s lead counsel Karpal Singh will respond to Shafee’s submission next.
