No proof of penetration means no case against Anwar, defence says

Datuk Seri Anwar Ibrahim’s defence in the Sodomy II trial claims that proof of penetration was crucial in a crime of this nature. – The Malaysian Insider pic by Nazir Sufari, November 6, 2014.

No proof of sexual penetration means there is no proof that Datuk Seri Anwar Ibrahim sodomised his former aide, the defence counsel said today, in closing statements on the final day of the opposition leader's appeal against conviction in the Federal Court.

Co-counsel Ramkarpal Singh said proof of penetration was crucial in a crime of this nature but all four doctors who had examined the complainant, Mohd Saiful Bukhari Azlan, had initially found that there was no conclusive evidence of penile penetration.

The first doctor to examine Saiful after the alleged sodomy, Dr Mohd Osman Abdul Hamid from Pusrawi Hospital, had found no evidence of penetration.

So did the three doctors from Hospital Kuala Lumpur, said Ramkarpal, but they later changed their answer after seeing the DNA samples tendered during trial. The defence holds that the samples had been tampered with.

The samples had been labelled by the case investigating officer Supt Jude Pereira, whom the defence alleges had mishandled the evidence.

Ramkarpal told the court that one of the doctors at HKL was tasked with packing the samples swabbed from Saiful and that he had not examined Saiful at all.

How could that doctor have opined in his testimony that penetration had occurred, when he did not examine Saiful, Ramkarpal asked the court.

Justice Abdul Hamid Embong then asked if the doctors' court testimony on penetration could be taken as hearsay evidence.

Ramkarpal said it had already been established that the doctors only said they swabbed samples from the high rectum area but had not found physical evidence of penetration.

This supported the defence's contention that the samples were planted and tampered with, Ramkarpal submitted.

“How do you find semen in the rectum when there is no penetration?” he asked.

It was wrong of the High Court and the Court of Appeal to fail to see that without evidence of penetration, there was no offence committed, Ramkarpal added.

The Federal Court comprising a panel of five judges is in its seventh and possibly final day of hearing Anwar's appeal against his conviction of sodomising his former aide, Saiful, in 2008.

The conviction was handed down by the Court of Appeal which overturned the acquittal by the High Court on the grounds of weak DNA evidence.

In the prosecution's submissions, lead prosecutor Tan Sri Muhammad Shafee Abdullah had referred to alleged past sexual activity between Anwar and Saiful to explain why there was no physical evidence of penetration.

Ramkarpal said previous encounters should be taken into consideration for this charge.

Shafee had also attacked the defence's witness, Australian DNA expert Dr Brian McDonald, for being a discredited witness as courts in other countries had also rejected his evidence before.

Ramkarpal today listed McDonald's credentials before the court, noting that he was trained in biology which was the foundation of forensic DNA expertise.

"No doubt he didn't attend a specific class on how to do DNA testing because it didn't exist in 1973 (when McDonald went to university).

"It only came about in the late 1980s. But his experience over the next three decades, setting up labs to do these testings, speaks for itself," said Ramkarpal.

He added that McDonald had never disagreed with the methods used by government chemists in testing DNA samples for Anwar's trial, but had only differed on whether a foreign DNA, Allele 18, should have been reported.

The defence holds that Allele 18 which came from neither Saiful nor Anwar showed that the DNA samples had been contaminated and could not be relied on. The government chemists, however, downplayed the contamination by not reporting it and dismissing it as negligible.

The defence also submitted that another major doubt in the case was the credibility of Pereira, the case investigating officer whom they allege mishandled the DNA evidence.

"The exhibits he handled turned out to be different in character than what they ought to be," Ramkarpal said, and told the court of Pereira's move to cut open the plastic bag containing the samples in individual tubes.

There was "absolutely no reason" for Pereira to have done so as the samples had been packed by the doctors who took the DNA swabs from Saiful, the defence submitted.

Ramkarpal also said that Pereira's credibility was found wanting in a separate inquiry by the national human rights body, Suhakam, which had investigated the unlawful arrest of five lawyers in 2009.

Ramkarpal said the Suhakam inquiry had been chaired by Shafee, who was now the prosecuting officer in Anwar's appeal, and that it was Shafee who found Pereira to be lying in the inquiry.

Ending his reply to the prosecution, Ramkarpal said "doubts in this case entitle Anwar for acquittal and discharge".

Other members of the defence team, led by retired Federal Court judge Datuk Seri Gopal Sri Ram, will continue making closing replies this afternoon.

The Federal Court bench of five judges hearing Anwar's appeal is led by Chief Justice Tun Arifin Zakaria.

- TMI