In the 80-page written judgment by Justice Mohamad Zabidin Mohd Diah (left), the court at this stage cannot be 100 percent certain as to the integrity of the samples taken from Saiful for the analysis done by Dr Seah Lay Hong.
“As such it was not safe to rely on the DNA result obtained by Seah from the analysis conducted on those samples. That being the case, there was no evidence to corroborate the evidence of Saiful on factum of penetration.
“This court was left with Saiful’s evidence to prove penetration. This being a sexual offence, it is trite that the court is always reluctant to convict an accused person based solely on the uncorroborated evidence of the complainant. Therefore the accused is acquitted and discharged of the charge,” Justice Zabidin ruled.
A total of 27 prosecution witnesses and seven defence witnesses had testified in the highly charged trial.
Integrity of samples compromised?
The judge raised the question on the integrity of the samples as the expert witnesses from the prosecution could not be reconciled with the expert witnesses brought from the defence.
“Which expert was right? This brings to the forefront the issue of integrity of the samples. How the samples were handled after they were taken from the complainant and before they reached Seah for analysis became very important,” he said.
Justice Zabidin said the prosecution had produced evidence that all the samples collected were put individually in plastic receptacles, labelled and sealed at the Kuala Lumpur Hospital. The plastic bag (containing all the samples) identified as P27 was handed over to the investigating officer DSP Jude Blacious Pereira (right).
“It was not in dispute that Jude at his office, cut open P27 (the plastic bag). According to him it was done for the purpose of individually re-labelling the receptacles. In my view this was not necessary since the receptacles were already packed and labelled by the experts who collected them,” he said.
The judge noted that the prosecution had taken the stand that the integrity of the samples were not compromised. However, the third defence witness (Dr David Wells), who examined them, found that the receptacles were not tamper-proof.
“This meant that the seal could be removed and resealed) from the manner in which they were sealed and the type of material used as seals. By cutting open P27, the confidence in the integrity of the samples was gone,” ruled the judge.
Throughout the trial evidence was adduced that the samples was retrieved from Saiful’s anus 56 hours after the alleged incident. Saiful went to HKL on June 28, and was examined between 9pm and after midnight on June 29.
However, as evidence adduced that besides cutting open P27 and re-packaging it, the investigating officer did not follow instructions in air-drying the samples retrieved and also did not keep it in a freezer as instructed by the HKL doctors.
There was also evidence by Pusrawi doctor Dr Mohamed Osman Abdul Hamid who first inspected Saiful, where according to his medical notes, plastic was inserted into the complainant’s rectum.
‘Three doctors confirmed penetration’
Justice Zabidin, who has since been transferred to the Shah Alam High Court said the samples retrieved from Saiful were done by three HKL doctors, Dr Mohd Razali Ibrahim, Dr Siew Shueu Feng and Dr Khairul Nizam Hassan, and they initially stated there were “no conclusive findings suggestive of penetration to the complainant's anus”.
“However, they did opine there was penile penetration based on Seah’s finding, who testified that the samples from high and low rectal swabs taken from the complainant bear ‘male Y’ sperm extract.”
However, the judge noted that Wells had rejected the findings of Dr Razali, Dr Siew and Dr Khairul Nizam that it was their opinion that there was penetration.
The doctors, said Wells, should confine their opinion based on their medical observation of the complainant and not based it on the analysis by Seah (right) on the samples taken from the complainant.
“Going through the evidence of both parties on this issue, I find there should not be any objection for the three doctors (Dr Razali, Dr Siew, and Dr Khairul Nizam) to give their opinion on factum of penetration based on Seah’s evidence, who found that samples taken from Saiful’s rectum bear ‘male Y’ sperm extract.
“However, whether this evidence from these three doctors could corroborate Saiful on factum of penetration depended heavily on Seah’s finding and whether the reporting could be relied on or not. This also hinged heavily on the integrity of the said samples.”
In delivering the verdict on Jan 9, Justice Zabidin only took five minutes to read it out, before the whole written judgment was released yesterday afternoon. - malaysiakini
Excerpts of the Sodomy II judgement
If Najib win the appeal it can backfire. If Najib lose the appeal it can also backfire.
Sodomy II written judgment unlike ruling for Anwar’s defence
Mahkamah keluarkan penghakiman bertulis kes Liwat II...
Mahkamah Tinggi Kuala Lumpur berkata adalah tidak selamat untuk menerima bukti DNA dalam perbicaraan kes liwat terhadap Datuk Seri Anwar Ibrahim dan kerana itu ia tidak boleh menyokong bukti yang dinyatakan oleh pengadu Mohd Saiful Bukhari Azlan mengenai kejadian tersebut.
Dalam penghakiman bertulis 80-muka surat Hakim Datuk Mohamad
Zabidin Mohd Diah (kiri) berkata, mahkamah pada peringkat ini tidak pasti 100 peratus dengan integriti sampel yang diambil dari Saiful untuk analisis yang dilakukan oleh Dr Seah Lay Hong.
Katanya, yang tinggal pada mahkamah ialah keterangan Saiful untuk membuktikan berlaku penetrasi tersebut. Ini sebagai kesalahan seksual, mahkamah sentiasa enggan mensabitkan tertuduh semata-mata berdasarkan keterangan pengadu yang tidak disokong.
Oleh itu, tertuduh dibebaskan dan dilepaskan daripada pertuduhan itu.
Seramai 27 saksi pendakwaan dan tujuh saksi pembelaan telah memberi keterangan dalam perbicaraan tersebut- malaysiakini
Sodomy II written judgment: Unsafe to convict based solely on Saiful’s testimony
Sodomy II: Written judgment out