Leak of prosecution's affidavit,caused uproar....

The Kuala Lumpur High Court will hear submissions on two prosecution applications in Anwar Ibrahim's sodomy trial - to review its ruling on the trial-within-a-trial and for the court to order him to provide his DNA samples for profiling.

Solicitor-General II Mohd Yusof Zainal Abiden said on Friday, after its last witness was called, that the applications made under Sections 73 and 165 of the Evidence Act 1950 were to do justice to the case. "The court needs to obtain proper proof of the facts, especially where the facts are in dispute, whether the DNA from the sperm cell found in Saiful's anus belongs to Anwar Ibrahim. We need to determine justice and the truth in this case."

The defence team led by Karpal Singh had objected to the applications leading to Justice Mohamad Zabidin Mohd Diah fixing today to hear arguments from both sides.

9.19am: The court is called into session with Justice Mohamad Zabidin Mohd Diah presiding The prosecution begins by requesting for a review of the trial-within-a-trial decision as well as for the court to compel Anwar to give provide a DNA sample. Defence counsel Karpal Singh brings up the issue of the leaked prosecution's affidavit and demonstrations yesterday by groups calling for Anwar to provide his DNA.

"(The demonstrators) are intimidating this court into compelling Anwar to give his DNA," he said.

He blames the prosecution of leaking the affidavit and describes the media report on it as "mischievous, scandalous and contemptous".

Karpal also reveals that the affidavit was published in full on the Malaysia Today blog for a few hours yesterday. Karpal accuses Soliticitor-General II Mohd Yusof Zainal Abiden of answering to politicians.

9.31am: Yusof says he takes responsibility for the leak as the prosecution head. However, he says that he "answers to no one" but the judge and the court. "I fight my battles in court, not outside," he adds. He believes that the leaking of the submission, although the first time in Malaysian legal history, will not have much impact on the trial. "Karpal can be emotional about it, but I don't think it is anything, just that the submission is out earlier," he said.

The judge calls both parties to meet him in chambers. The court stands down.

9.46am: The parties come out of chambers after about 10 minutes.

9.48am: On the matter raised by the defence, the judge reminds all that the trial is underway and that whatever that is done that may hinder the trial, contemptous or not, should be avoided.
The prosecution procedes with its submission.

9.53am: Yusof submits that there is now fresh evidence which the court should consider. He cites the case of (former federal minister) Mokhtar Hashim where the defence requested the judge to review his ruling on whether a statement was given voluntarily. The judge did review his ruling in light of new evidence in the form of testimonies, but maintained his ruling from the trial-within-the-trial.

10.01am: Yusof submits that the judge has the power to review his ruling either because of emergence of new evidence or if the judge believes he has erred. In reference to the first, Yusof said the new evidence is the original warrant of arrest showing that the arrest was lawful and that the charge was read to Anwar.

10.02am: Yusof says Anwar had signed the back of the arrest warrant as acknowledgement and the defence did not challenge the veracity of the signature, which means that it does not dispute this. He notes that investigating officer Jude Blacious Pereira has said that he had applied for a warrant of arrest and had given it to Supt Ahmad Taufik to execute.

10.06am: Yusof says Anwar did not deny the witness testimony that he was served the warrant of arrest and had signed it. "The positive evidence puts all doubt to rest over as to whether he was informed of the grounds of arrest."

10.10am: The prosecutor submits that if the court agrees that the arrest was lawful, then whatever that was obtained during the arrest can be admitted as evidence.

10.19am: Citing case law, Yusof submits that the court is not concerned with how the evidence is obtained as long as it is relevant. He said the evidence can only be excluded if the evidence involves a confession or a search of the accused or of premises. The evidence obtained from the toothbrush, mineral water bottle and Good Morning towel from the lock-up cell where Anwar was held does not fall under the three categories.

10.37am: Karpal interrupts Yusof to say that the prosecution has gone through the cases cited before, to murmurs from the public gallery where some people are seen nodding off.

"He is going over the same thing over again in the court's time and using taxpayers' money," he said. The judge agrees that the arguments have been heard but allows Yusof to continue.

10:46am: Yusof submits that the arrest and detention is lawful, therefore the evidence obtained is legal. He adds that the evidence is highly probative of guilt. He argues that it is lawful to take 'non-intimate' sample without consent as long as the accused was in custody for an offence and the accused has never had a (DNA) sample taken in the course of investigation.

"We didn't take anything from (Anwar). None. Here it is contact DNA.

"The results of the DNA test must be admitted. It is the right and lawful thing to do."

Yusof rests his submission, on the review of the trial-within-a-trial ruling. The court takes a brief recess.

11.28am: The trial resumes. Yusof continues with the second issue in his submission, that is for the court to compel Anwar to surrender his DNA sample to the court. He cites Sections 73 and Section 165 of the Evidence Act 1950. Yusof argues that the court can take Anwar's DNA for the purpose of comparing it with DNA found on swabs taken from the rectum of complainant Mohd Saiful Bukhari Azlan.

11.34am: Yusof cites Sarkar's commentary on evidence to say that while the accused can refuse to give his fingerprint or handwriting for identification purposes, these can be siezed from him by the court. He reads that truth is not in danger when compulsion is used to obtain identifying marks like fingerprints.

11.40am: Yusof says the showing of finger impressions by an accused is not the same as the accused giving testimony against himself. This is because the accused remains passive and it is the person taking the specimen who is active. "From this reading, the court cannot make (Anwar) surrender (his DNA) but can direct someone else to take (the DNA)," he argues.

11.47am: Yusof argues that DNA evidence appears to be in the same category as handwriting and fingerprints, which is dealt with by Section 73 of the Evidence Act as DNA is as valuable as fingerprints in identification. Section 165 of the Act, he argues, can be invoked to find out the relevant facts of the case; that is whether the sperm cells found match the DNA of the accused. Section 165 deals with the judge's power to put questions or to order the prosecution to produce evidence.

11:57am: Yusof notes that there has been no application like this before but this does not mean it cannot be done, "or else Section 165 will be mere words".

12.06pm: "We have the evidence but for technical purposes it was not admitted," Yusof says, concluding his submission.

Karpal begins his reply but, as he is sitting at the back, the judge cannot hear him. The prosecution makes way for him to be wheeled to the front.

12.09pm: Karpal points out that the application is unprecendeted and that the prosecution is going by the assumption that the DNA evidence is conclusive. He requests that the court allows the defence time to prepare a reply.

The trial is adjourned to 9am tomorrow.

source:malaysiakini

'Afidavit bocor, demonstrasi ditimbulkan'

'Demo minta DNA hina mahkamah – Karpal'

Prinsip asas undang2 Jenayah ialah,"The Prosecution must prove it's case beyond reasonable doubt" bukan meminta pihak tertuduh membuktikan kesnya. Dalam hal ini jika pendakwa tiada bukti yang cukup jangan suruh hakim memaksa pihak tertuduh mengemukakan bukti2 tersebut.

Macam dalam kes rogol bila pendakwa tak dapat mengemukakan bukti yang cukup bahawa berlakunya rogol, kes akan dibuang. Sepatutnya, bila pendakwa tak dapat kemukakan bukti yang cukup,tutup saja kes ini.

Kenapa dalam kes sodomi 2 ini ia masih diteruskan? Bukankah ini bukti sodomi 2 merupakan konsiprasi penyamun2 di Putrajaya secara 'by hook or crook' mahu menjatuhkan ketua pembangkang.....

cheers.