PERSECUTING ANWAR: Justice in the drain, what next?

Despite eighty five pages of elaborate rhetoric, the Court of Appeal’s written judgment (the “Judgment”) convicting 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 eye witness to the incident. Without establishing the DNA evidence beyond reasonable doubt, the Appeal Court 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 from tampering.

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 Balia Yusof, Aziah Ali and Zaawawi 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 opion? 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 court, 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 why 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 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 Zabidin 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 without 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 further damaged 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 a hefty 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, which phenomenon was virtually 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 Saiful Bukhari’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 persons extracted from the 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.

SLAMMING OF EXPERTS CHILDISH

But instead of taking these Australian experts’ opinion head on with equally professional counter argument, the judges seem to have found a short cut by resorting to name-calling to devalue the Australians’ testimonies while simultaneously enhancing the status of statements made the government’s professionals. Thus, the Australians have become “armchair experts” who have no practical experience (false, of course) to lend credibility to their argument, while the government chemists have “impeccable credentials” with competence in both the academic and practical fields.

The judges even went to the extent of concurring with lead prosecutor Shafie Abdullah’s submission that the Australians’ evidence were “speculative and theoretical if not hypothetical, thus lacking in probative value” (para 142). In contrast, the evidence of the two local chemists was described as factual and based on their own analysis of samples.

Then, using the premise of “lacking in probative value”, the judges in one sweeping stroke, rejected the Australians’ critical testimonies on all the critical issues, which are sample tampering, doubtful DNA reports and penile penetration (para 150).

Presto! Problem solved! The Australians’ unfavourable testimonies are set aside in favour of the affirmative ones submitted by government professionals. The prosecution case is thus saved.

But what is the truth?

Dr. David Wells, a forensic pathologist, specialises in sexual assault cases. He is head of Clinical Forensic Medicine at the Victorian Institute of Forensic Medicine, Associate Professor in the Department of Forensic Medicine at Monash Unviersity, Member of the Advisory Panel – National Institute of Forensic Science, Member of the International Editorial Board of the Journal of Clinical Forensic Medicine. He has worked with World Health Organisation in establishing medico-legal services for victims of sexual violence in developing countries. He has written several books and articles on sexual violence, and awarded the the Order of Australia Medal. He has testified in all levels of courts where his testimonies have been accepted.

Dr. Bian McDonald, holding a PhD in pathology, is a consultant molecular geneticist. He is a member of the Australian Forensic Science Society, member of the Australian Biomedical Society and served as committee member of the Human Genetics Society, a director of both DNA Consults and Molecular Genetics for the Sonic Clinical Institute. He was also a head geneticist officer in New South Wales. He has written books, papers and articles on the subject of DNA, a list of which fills up five pages.

Clearly, the above credentials speak for themselves, and show how utterly irresponsible is the act of rejecting those expert opinions en bloc with the cavalier and childish comment on those evidence being “mere opinion, speculative and theoretical”, which actually reflects the shallowness of the writer of the Judgment, whoever he is.

PENILE PENETRATION

On the subject of anal penile penetration, this is another major flaw of the prosecution case. All the four doctors who had examined Saiful had reported no sign of penetration, which contradicted the latter’s testimony that the “fast and furious” act had caused him pain. Though the three government doctors had later changed their tune, however, their revised views were based on the subsequent report issued by the chemist, who claimed the presence of semen of “Male Y” in Saiful’s rectum. Such revised view had of course zero value, as the doctors’ report must be based on their own observations and not on subsequent reports issued by others. And no amount of rhetoric by the prosecutor and the judges could alter this simple fact.

Without physical evidence of penetration and without credible DNA evidence, the prosecutor shouldn’t even have charged the accused, neither should the court have entertained a full trial for it.

Perhaps sensing the hollowness of the prosecution case, the judges scraped the bottom of the barrel and picked up peripheral issues to unjustifiably cast negative aspersion on the respondent. They attribute Anwar’s choice to make a statement from the dock as a sign of guilty conscience, and the absence of an Alibi defence as his inability to prove his innocence.

ANWAR’S STATEMENT IN DOCK

Was Anwar Ibrahim a coward, scared of being cross-examined in the witness stand as insinuated by the judges, when he chose to give an unsworn statement in dock as his defence?

Anyone who has read his 9000 word statement which took him 1 hour and 20 minutes to deliver in court, could not have failed to be moved by the endless series of injustice he has suffered and his cries of despair that he would ever receive justice in the court.

The long litany of unjust treatment he had received at every step of his judicial defence as enumerated by him has proved beyond the slightest doubt that this is political persecution, not a criminal trial, where the verdict is a foregone conclusion. There is no better testimony to that than the shock with which the world greeted the acquittal of Anwar at the High Court three years ago, as the proceedings of the trial had been so manifestly unfair and vindictive that no one expected an acquittal.

And so Anwar had chosen a course that Nelson Mandela took in the famous trial in Rivonia in 1963 under the Apartheid regime. As Mandela roared his accusation against the evil regime from the stock, so too, Anwar had put the record straight on how and why it had been a sham trial, and launched his attack on the cruel and unjust regime, without interruption from the court.

Contrary to the vicious insinuation of the judges, Anwar’s statement in dock is an eloquent statement of truth and courage that will help to steer the country onto the right path.

ALIBI

That the prosecutor and the judges did not let go the slightest opportunity to build up the perception of guilt against Anwar is seen in its dishonest inference that Anwar didn’t call alibi witnesses because they couldn’t have substantiated his story of innocence.

This is double injustice to Anwar, because it was the powers that be that had put a spoke to his alibi defence. Anwar said in his statement in dock: “My alibi witnesses made known to the prosecution were in fact included in the prosecution list of witnesses, which was not supplied to my lawyers. They were defence alibi witnesses. I am informed this is the first time this has been done.”

Anwar also gave the example of the owner of the condo where the alleged incidence took place, Haji Hasanuddin bin Abd Hamid, who was harassed by the police for a total of thirty hours where his statements were video recorded. Another alibi witness Fitria binti Dipan the maid, ironically offered by the prosecution, couldn’t even be traced.

PROSECUTION + DEFENCE vs DEFENCE

A trial judge is supposed to be an umpire, taking a neutral position to weigh without prejudice the merits and demerits of facts and legal arguments presented by the prosecutor and the defence and deliver his decision at the end of the hearing strictly according to facts and relevant law, without fear or favour. But this is distinctively not the case in the present trial. Reading through the judgment, one can’t help but get the impression that there is an invisible dividing line seperating the prosecutor and judges on one side and the defence on the other. With due respect, it looks like a joint effort to fix the respondent, and let the facts and law be damned.

In fact, the outcome of this trial was already self-evident when Anwar’s request to replace specially invited lead prosecutor Shafie was rejected all the way to the highest court. Being Umno’s top trouble-shooting lawyer and Prime Minister Najib Razak’s confidante, Shafee’s role as prosecutor despite blatant conflict of interests signifies the dispense of justice for a political agenda.

Now that Anwar has appealed to the Federal Court, the nation will hold its breadth at what will happen next. Will it be another saving grace for the judiciary, or will it be another plunge that will trigger off a new phase of bruising conflict that will cause much suffering, but with the prospect of opening up a new era for the nation? - Mailbag