Arguments over integrity of sample take centre stage in Sodomy II appeal
Tarani Palani, fz.com
The government’s appeal against Datuk Seri Anwar Ibrahim’s Sodomy II acquittal began at the Court of Appeal today with the integrity of the semen sample being one of the main points of contention.
The semen sample has much significance as investigation officer Jude Pereira’s confession of tampering with the evidence was one of the reasons for the Opposition leader’s acquittal.
Lead prosecutor Tan Sri Muhammad Shafee Abdullah submitted that the integrity of the semen sample collected during the investigation was intact.
Shafee told the three-member panel headed by Justice Datuk Balia Yusof Haji Wahi that the trial judge had taken the “easy way out” and merely re-stated the prosecution and defence DNA experts’ opinions in his judgment.
Shafee argued that High Court judge Datuk Mohd Zaibidin Mohd Diah did not interpret the explanation given by the experts from both sides when there was clearly a “gaping hole” between the experts’ testimonies regarding the semen sample.
Shafee: There does not need to be 100% certainty
“According to the Evidence Act, there does not need to be 100% certainty. What the law requires is a case beyond reasonable doubt. Not burden of truth but credibility of exhibit,” he said.
Shafee went on to highlight chemist Dr Seah Lay Hong’s testimony where she testified that the evidence received from Pereira was intact and not tempered with.
Anwar was acquitted by Jutice Mohd Zabidin in 2012 of sodomising his former aide, Mohd Saiful Bukhari Azlan, in 2008.
During the trial, Pereira, who had claimed that he acted in accordance with police Standard Operating Procedure (SOP) had removed 12 containers containing semen samples from a sealed plastic bag and re-labelled them and inserted them into different envelopes.
The samples were signed by the doctor and Mohd Saiful as an extra precautionary measure and sealed in a rectangle clear plastic bag with a fluorescent pink seal.
Shafee submitted that Pereira made a “honest mistake” as he merely cut the bottom of the plastic bag to remove the samples to adhere to police SOP.
Pereira, he said, obviously did not want to tamper with the evidence as he had “cut the bottom of the plastic for the whole world to see”
“If PW25 (Pereira) is a dishonest police officer there is no signs to rip it open, take out exhibit, tamper and put back and seal back. One would have to be clever and dishonest.
“He openly and transparently took out the exhibit and marked them with numbers,” argued Shafee.
Seah had testified during the trial that the condition of the samples when she received it from Pereira was in “good condition” as the plastic containers containing the samples had not been opened and had the seals intact.
Recounting her testimony, Shafee read her answer when asked if once opened, can the containers be re-sealed.
She answered: “When that happens, you have to unseal it all the way to the back. But it had not (been opened)”
She had said that in order to tamper with the evidence, the plastic containers needed to be opened “all the way back” even if a swab is to be placed completely in them.
“This is completely missing from the judgment,” submitted Shafee.
He added: “In many ways, Pereira was doing what a post-office would be doing. I’m not minimizing his role but he has been accused of doing so many other things”.
Shafee also pointed out that if Pereira was indeed a “rascal” who wanted to tamper with the evidence, he would have to get Anwar’s semen.
“Even if he wanted to tamper with the evidence, where would he get the respondent’s semen from… Also he would have to get the semen which has been exposed for the right amount of time and not degenerate, not an old or fresh sample,” argued Shafee.
He said that to get Anwar’s semen would be something of a challenge as “any ordinary person would protect their semen, let alone a dignitary who is claiming that the whole country is against him”.
Throughout his submission, Shafee mentioned several times that the High Court judge had “taken the easy way out” when delivering his decision.
Shafee: Alibi defence not produced in court
Another point that Shafee raised in his almost three-hour long testimony is that none of the witnesses who can support Anwar’s alibis were called to testify.
This fact, noted Shafee, was not considered in the High Court judge’s judgment.
“The respondent didn’t deny that he wasn’t there (at the place where offence took place). But he said that he didn’t commit the offence,” he said.
Shafee claimed that the defence’s case was rather shaky as they had listed 14 witnesses, including Anwar’s wife Datuk Seri Wan Azizah Wan Ismail, but did not call a single one of them to offer alibi evidence.
“What does it mean notices for alibis were sent but not even one was called…when confronted with CCTV footages with particular timing of the incident, the defence dropped the whole alibi,” he argued.
He said that the trial judge did address this in his judgment.
Another issue which the High Court judge missed in his judgment, according to Shafee, is that Anwar gave his testimony in the dock and was not cross-examined.
“(The judge) accepted respondent’s evidence from the dock… (There was) absolutely no analysis (on his answers,
“(The respondent) was making devious statement from the dock. He was talking about other things, such as Saiful’s affair…,” he argued.
He said: “Cross-examination is known as the genius invention of the common law system.
“It will expose whether person telling the truth when put under pressure. Accused has stayed away in the dock,” he said adding that the trial judge should have considered these elements.
Karpal: Pereira stores sample in freezer against orders
Anwar’s lead council, Karpal Singh, meanwhile submitted that Pereira was given clear instructions by forensic pathologist Dr Siew Sheue Feng to store the samples in the freezer but rather than committing a “honest mistake”, he disobeyed the orders instead.
Citing Pereira’s testimony during cross-examination, Karpal submitted that Pereira was asked if he knew degradation would occur unless the sample is kept in good conditions.
To this Pereira answered in the affirmative.
Reading the transcript, Karpal said:”Did Siew tell you how to handle the sample when passing them to you? He answered yes and that the doctor told him to put it in the freezer.
“You were asked to put in a freezer but you put it in an iron cabinet? He answered, ‘Yes'”.
Karpal went on to say that what was important to consider was whether the contents had been compromised.
“The witness knew what to do as he was instructed but did not follow it…
“That is sufficient to show that samples was compromised,” he said.
Karpal: Saiful could have escaped ‘assault’ but didn’t
Karpal also argued in his submission that if Saiful considered Anwar’s act as assault and did not participate in it voluntarily, then there were many instances where he could have escaped, as reflected in his own testimony.
“(In his testimony) he said that he didn’t want to do it but was forced to.
“He said he was asked to go into the room which he did…The door was not closed, he could have escaped.
“He had tea and curry puffs for 20 minutes after (as per his testimony)…He lied when he stated in the police report that it was against his will,” he said.
Karpal added that the 23-year-old could have easily pushed any “overtures from the accused”.
Later another counsel representing Anwar, Ram Karpal, submitted that Dr Seah was not too concerned over degradation of the semen sample.
This, he said, could to some point show that the sample found was not the same sample due to degradation.
He argued that the process took about 96 hours, from the time the sample was extracted from Saiful to when it was placed in the iron cabinet in Pereira’s office. Even Siew when cross-examined had admitted that the sample could be subjected to degradation over such duration.
Siew had however added that no test was conducted for degradation as there was no known test for it, he said.
Ram Karpal continues his submission on degradation and contamination of the sample tomorrow.
