DNA Act 2009 was not in force then,so court cannot direct accused to submit DNA profiling...

Anwar Ibrahim's sodomy trial resumes today with defence lawyer Karpal Singh responding to two unprecedented applications from the prosecution. The prosecution wants Kuala Lumpur High Court judge Justice Mohamad Zabidin Mohd Diah to review his ruling on the trial-within-a-trial and for the court to order Anwar to provide a DNA sample for profiling.

Anwar has since come under pressure from BN politicians and Malay-rights pressure groups to do so. There was a stronger police presence at the Jalan Duta court complex where the trial is being heard, in anticipation of a possible PKR Youth protest in support of Anwar. Police officers were stationed along the roads leading to the court as well as inside the massive lobby of the court complex.

9.22am: The court is called into session as Justice Mohamad Zabidin Mohd Diah enters. Param Cumaraswamy says Karpal is just outside the courtroom.

9.23am: Karpal is wheeled into court by his personal aide.

9.24am: Karpal begins his submission. He says there is no doubt that the trial-within-a-trial can be reviewed, but only if new evidence emerges.

9.28am: Karpal stresses that it is extremely rare for a ruling in a trial-within-a-trial to be reviewed. "Evidence cannot be withheld and it must be decided in a trial-within-a-trial. Prosecution cannot introduce evidence after the trial-within-a-trial for review," he says. "In this case, the original copy of the warrant of arrest was handed in after the trial-within-a-trial ruling was made."

9.35am: Karpal says the police did not follow the Lock-up Rules in that Anwar should have been placed in the cell only after 6pm. "Supt Jude Blacious Pereira's testimony merely supports the defence contention that unfair methods were used when he (told his subordinates) 'do not touch the items left in the lock-up' "Unfair methods and unfair means were used in this case," he says.

9.39am: Karpal says the court should reject any unfair means in obtaining evidence. He adds that the DNA Act 2009 was not into force at the time. Hence the court cannot be involved in judicial activism to direct the accused to submit to DNA profiling. "For the court to direct (an accused to provide evidence) is unheard of and unprecedented in the Commonwealth and elsewhere in the world."

9.45am: Karpal says the trial judge should refrain from intervening in a hearing, unless necessary. "The judge should keep his mind unclouded and he should not be prejudiced," he stresses. "The judge should not be seen as favouring one side against the other but should make up his own mind as to where the truth lies."

9.49am: Karpal says a person can reject outright any request to be subjected to a DNA test as he is perfectly entitled to do so. "You cannot subject a person to such demands against his will as this is against Section 323 of the Penal Code."

9.51am: Hence, Karpal says the application by the prosecution should be dismissed. He also calls for 'contempt of court' proceedings against those who have commented on the trial, including the prime minister.

9.53am: Karpal completes his submission. Yusof is replying to the case laws presented by Karpal.

9.55am: Yusof points out that, in some of the cases to which Karpal referred, the judge had taken an active part.

10am: Yusof says the warrant of arrest was tendered after the original copy was recovered. "We did not call (Pereira) because of admissability of evidence, and furthermore Anwar testified he had signed at the back of the warrant," he says. The emergence of further evidence should be considered in the review (of the court's ruling). Furthermore, it has been pointed out that the judge could have erred. "Although the Evidence Act points to fingerprints and handwriting, the DNA is closest to such a test," he says. "Let justice be done so the court can obtain the truth. We recovered DNA from (Saiful's) anus and we need to compare it - this is why we invite the court to have Anwar make available his specimen."

10.06am: Karpal points out that Evidence Act has not been amended to cover DNA samples. He argues that what the prosecution wants is for the court to take over the role of law-making.

10.08am: The judge says it is obvious he cannot make decision today. He will deliver his ruling on Wednesday. Karpal wants a ruling on the contempt proceedings, but, Justice Zabidin tells the lawyer to file a proper application.

The hearing resumes on Wednesday.

source:malaysiakini

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