What next in Anwar sodomy II?
Kim Quek, The Malaysian Insider
Despite 85 pages of rhetoric, the Court of Appeal’s written judgment (the “Judgment”) convicting Datuk Seri Anwar Ibrahim of sodomy has failed to establish the only corroborative evidence of the charge – the DNA evidence.
This is a case of one man’s word against another, with no eyewitness to the incident.
Without establishing the DNA evidence beyond reasonable doubt, the Court of Appeal has no business to overturn the High Court judgment acquitting Anwar on ground of doubtful integrity of the DNA samples.
The crucial question to ask is: have the samples become vulnerable to tampering after the sealed plastic bag containing individual receptacles holding the samples was cut open by the investigating officer without authority and kept for prolong duration before delivering them to the chemist?
The prosecutor said no, reason being that the individual receptacles were also sealed, hence, the samples were protected.
Sample tampering irrefutable
But the catch is: while the plastic bag which was heat sealed was tamper-proof, the seals to the individual receptacles were not tamper-proof.
Australian forensic pathologist Dr David Wells testified that the seals to the receptacles could be removed and resealed based on the materials used and the manner of sealing, after he had examined them.
Appeal Court judges of Datuk Balia Yusof Wahi, Datuk and Datuk Mohd Zawawi Salleh, who took the highly unusual step of appending their signatures to one single written document, dismissed Dr Wells’ claim by saying “he merely looked at the containers in court and gave his opinion solely from the manner in which these containers were sealed and the type of material used as seals. That was merely his opinion pure and simple”. (para 121 of the Judgment)
It was, of course, Dr Wells’ opinion. What else could he do other than expressing an opinion? If the seals were not readily removable, why didn’t the prosecution refute his claim? As a matter of fact, according to Anwar, who saw the receptacles in coAziah Aliurt, these seals consisted of only “ordinary and easily removable tapes and easily removable KL Hospital paper seals” as stated in his statement in dock.
Is that the reason Dr Wells’ testimony was not challenged in court? Would he have been let off the hook if in fact the claim was false, knowing the critical importance of the issue?
And why did Jude Pereira take the reckless step of cutting open the permanently sealed plastic bag? He said he wanted to put the receptacles into individual envelopes and re-label them. But that explanation was obviously phoney as rightly pointed out by High Court judge Datuk Mohamad Zabidin Mohd Diah for the simple reason that each of the receptacles had already been clearly labelled by the hospital doctors and Pereira’s mission was merely to deliver them to the chemist withoMohamad Zabidin Mohd Diahut any input of his own.
Shockingly, despite the opening of the plastic bag had opened the gateway for meddling with the samples in the unsecured receptacles, the judges declared such unauthorised action as not amounting to tampering with the samples, even repeating Pereira’s incredible claim that he was merely following standard operation procedure (para 85).
Talking about SOP, is it also SOP to place the samples in Pereira’s personal steel cabinet for 42 hours instead of the police freezer, which was a beach of police standard practice, as well as defiance of KL Hospital forensic pathologist Dr Siew Sheue Fong’s strict instruction that the samples be kept in freezer?
Why have the judges completely omitted to mention the defence claim that such prolong storage under room temperature would have damaged further the already much degraded samples?
Being a senior police officer familiar with forensic investigation, Pereira must have known that his reckless beach of discipline in his mishandling of the samples could fatally damage the integrity of the chain of custody as well as the quality of the DNA samples, both of which are of vital importance to the prosecution case.
Then why did he still do it? What was it so compelling that he had to take such risks? Why did he keep the samples to himself for 42 hours? If he was not up to something sinister, what was he up to?
Dubious DNA samples
Could that explain the miraculous phenomenon that the these samples were later found to have suffered no degradation at all, despite being retrieved 56 hours after alleged sodomy and stored for another 42 hours under room temperature, something unheard of?
The two Australian experts held the view from their long careers that semen collected 36 hours after ejaculation could hardly be successfully tested for the sperm’s DNA due to degradation.
DNA expert Dr Brian McDonald testified from his observation of test reports handed to him that the profiles of DNA tests for various samples taken from the rectum including those showing DNA of Male Y (which prosecution claims to be those of Anwar) showed no evidence of degradation.
This contradicted with the samples’ history, inferring that they might not be the same samples that were retrieved from complainant Mohd Saiful Bukhari Azlan’s rectum by the hospital doctors 98 hours earlier.
In addition to such contradictions which cast serious doubt over the credibility of the DNA findings, the two Australian experts also pointed out many discrepancies, deficiencies and flaws of the chemist’s DNA reports and hospital doctors’ examination reports, including the exposure of the puzzling presence of DNA of multiple people extracted from Saiful’s rectum, which the chemist have overlooked, compounding the crisis of confidence in these reports.
These are, of course, serious challenges to the prosecution case, which stands or falls on the DNA evidence.
