With the prosecution having closed its case earlier this month, the Kuala Lumpur High Court today begins hearing submissions from both the prosecution and defence in the controversial Anwar Ibrahim sodomy trial. Lead counsel Karpal Singh was first to submit for the defence team, and he argued why the opposition leader should be acquitted without his defence being called.
Meanwhile, solicitor-general II Mohd Yusof Zainal Abiden is expected to argue that the prosecution has presented a compelling case drawing together all evidence presented in court over 57 days by 27 witnesses. It remains to be seen whether the submissions will be extended beyond today. Nevertheless High Court judge Mohamad Zabidin has set aside tomorrow for the hearing to continue should there be a need for it.
After hearing the submissions from both sides, the judge will set a new date when he will deliver his decision on whether to proceed with the trial or throw it out of court. Anwar suffered a last-minute blow to his case last month when the judge reversed his ruling and allowed the admission of three disputed items - a mineral water bottle, a towel and a toothbrush - as evidence.
9.34am: Court is called into session with justice Zabidin presiding. Karpal is submitting first.
He says a lot has been said in this court and he reminds that judges are human beings. "Rely on what is being told in the court. Not the media or what is being said by the prime minister." 9.40am: Karpal says there should not be any gaps in the prosecution's case. "The court must scrutinise the credibility of each of the prosecution's witnesses."
9.45am: Karpal says the prosecution must prove the evidence at hand. "There should not be any material gaps. The tests at the end of prosecution's case should be prima facie ... if doubt exists, defence ought not be called." "Prosecution has failed to prove a prima facie case. It must prove every evidence is reliable, elements of the offence ascertained and the court must subject them to maximum evaluation," he stresses.
9.50am: Karpal points out one of the inconsistencies is the charge of carnal intercourse against the order of nature - that it is under section 377b, meaning it was consensual.
"
However, complainant Mohd Saiful Bukhari Azlan had testified that it was non-consensual," he says, adding the prosecution cannot amend the charge.
9.53am: Karpal reminds the court of the first sodomy trial involving Anwar 10 years ago where the High Court judge had accepted complainant Azizan Abu Bakar's case only for it to be overturned by the Federal Court. "This court should not fall by this fallacy again. Saiful must be seen as a reliable witness if the court wants to call for defence."
9.56am: Karpal then proceeds to go to facts of the case - that Saiful was not a "country bumpkin" having had acquired tertiary education at Taylor's College.
10am: Karpal notes that Saiful could have left the room where the alleged sodomy took place several times.
10.01am: Karpal goes into detail on what transpired that day based on Saiful's testimony. He says while Anwar asked Saiful to approach him while the complainant was wearing a towel, he could have shouted or run away but he did not.
10.05am: The defence lawyer raises some points relating to the sexual act but this cannot be reported as Saiful's evidence was given in camera. Karpal adds that after the sexual act, Saiful had curry puff and drank coffee and stayed in the room for 20 minutes. He showed no emotional signs that he was sodomised.
10.10am: Karpal says a day after the incident (June 27, 2008), Saiful had gone to the PKR headquarters in Tropicana and even to Anwar's house. This is not the conduct of a person being violated.
10.13am: Karpal points out that Saiful had committed perjury as he had lied in court and police report when he said the sexual act was non-consensual. "Saiful's evidence is not convincing beyond shadow of a doubt. He has committed an offence under section 195 for fabricating evidence," Karpal argues.
10.20am: Karpal calls on the prosecution to frame a charge against Saiful for fabricating evidence.
Saiful, he says, also delayed making a police report - he made the report two days after the incident. "The first doctor whom Saiful saw was Dr Mohd Osman Abdul Hamid
, but he was not called as witness,"says Karpal.
10.22am: Karpal says the non-appearance of Dr Osman as a witness puts the prosecution's case in serious doubt. This was despite that the prosecution has offered Dr Osman as a witness to the defence. "It would have contradicted the evidence of the three HKL doctors," he says. "There would be two versions of the case and benefit of doubt should be given to accused."
10.25am: Karpal says Ezam Md Nor (former PKR Youth chief, now a senator) or Mumtaz Jaafar (Rosmah Mansor's close confidante) should have been called as witnesses too as they were the first to have met Saiful.
10.30am: Karpal wants all evidence with regards to other sodomy incidents as mentioned by Saiful be expunged.
10.32am: Describing Saiful's evidence as incredulous,
Karpal says if the court applies maximum evaluation, it would result in the prosecution's case to be rejected. Karpal ends his submission. Ram Karpal takes over and begins his submission on the DNA evidence.
10.44am: Ram says the evidence of chemists Dr Seah Lay Hong and Nor Aidora Saedon have to be considered together.
10.51am: Ram Karpal submits that Seah is not a credible witness as at times she was evasive when being cross-examined, and that the judge had once warned her.
10.58am: Ram Karpal says Seah was selective in her tests with regards to 'starters' (the presence of other persons in the samples). "She did not deny her report was inaccurate," he said.
11.07am: Ram Karpal says the presence of a third contributor shows that the sample had been contaminated.
11.17am: Ram Karpal says it is unwise for the court to follow Seah and Nor Aidora's evidence.
11.20am: Ram Karpal adds that degradation of the sample is also a factor as the sample was taken two days (56 hours) after the alleged act. "The sample was collected after 12 midnight and was given to the chemist two days later. "Investigating officer (DSP Jude Balacious Pereira) said he kept it inside his drawer and not in a freezer as recommended. The IO told him to keep the sample frozen but it was (still) kept in such manner," he says.
11.24am: Ram says the samples would have been degraded as it had been given more than 65 hours after the incident. "It produces grave doubt on the prosecution's case," he says. 11.27am: Ram points the discrepancy where there were seminal stains at the back of Saiful's underwear but on Saiful's trousers stains were found on the front. 11.32am: Ram says Saiful's semen was also found in the complainant's anus as he is the predominant contributor.
11.35am: Ram reminds the court that an expert's (chemist) evidence is never conclusive.
"The function of an expert witness is to give an honest opinion," Ram Karpal adds.
He suggests that Seah and Nor Aidora are biased in their analyses.
11.46am: Ram finishes his submission and calls for the acquittal of Anwar in light of the controversial DNA evidence. Sankara asks for a short break. Justice Zabidin allows 15 minutes.
12.14pm: Court resumes with Sankara continuing the defence's submission.
12.18pm: Sankara says throughout the proceedings the hands of the defence had been indeed "tied behind the backs" and there was no way of obtaining confirmation during cross examination to elicit vital facts following the judge's ruling to limit access to documents.
12.22pm: Sankara submits the doctor's failure to take a medical history of Saiful's bowel habits is fatal.
12.26pm: Sankara submits that the testimonies of Dr Mohd Razali Ibrahim, Dr Siew Sheue Feng, Dr Khairul Nizam Hassan cannot be taken as a whole.
12.29pm: Sankara says Dr Razali was notably evasive when answering on simple aspects of bowel physiology when he had testified Saiful's rectum was empty. Sankara classifies the doctor as a dishonest witness.
12.37pm: Sankara questions why the KY gel used as lubricant in the alleged act, was not analysed as it was only admitted as evidence through investigating officer Pereira and not through the complainant, which is the normal procedure by the prosecution.
12.45pm: Sankara notes that the chemist's report was completed within a week for something that would normally take three months.
12.54pm: Sankara submits that
the total time lag from time of the alleged act leaving semen in Saiful's anus till the time the evidence reached Dr Seah is a total 97 hours (roughly 4 days).
1.10pm: Sankara says there was no evidence that
the equipment used in the DNA testing was properly maintained. He also raises
the possibility of tampering of evidence, as Pereira had cut open the heat-sealed plastic pack containing the specimen cotton swabs and had repackaged them.1.19pm: Sankara describes Pereira as the most untruthful witness, as the officer has not only failed to follow recommendations put forward by the doctors, but violated the Inspector General Standing Orders in repacking the cotton swabs.
1.32pm: Sankara describes
Saiful as a consummate liar, saying his complaint was politically motivated to persecute Anwar. 1.36pm: Sankara finishes his submission and Justice Zabidin calls a break. The proceedings resume at 2.30pm.
2.44pm: Court resumes with Justice Zabidin presiding.
Now it is the turn of solicitor-general II Mohd Yusof Zainal Abiden. Mohd Yusof says the defence's contention is that the complainant and the others, including expert witnesses, are not credible, whereas they are not parties in the matter.
2.47pm: Yusof says evidence of consent is not essential as what is important is whether penis was introduced in the anus.
2.48pm: Yusof says the court must be satisfied that such incident could take place.
"Saiful was the accused personal assistant...
"(The) accused asked Saiful to go to the Desa Damansara condo on June 25 and again on June 26 (the day of the incident)."
2.56pm: Yusof says the defence's misconception was to consider that there were instances when Saiful could have run away from the incident (of sodomy).
3pm: Yusof says Saiful was not asked why he did not do so.
"Saiful said Anwar was someone whom he admired and (was) given preferential treatment by being (given) a room (at PKR headquarters) after two months of work.
"Saiful said at times before the incident that he was scared," says Yusof.
3.03pm: Yusof urges the court to admit the evidence of the previous (sodomy) incidents.
"The prosecution has no time to adduce the previous (sodomy) incidences."
3.07pm: Yusof submits that the incident (sodomy)... at Desa Damansara is credible.
3.10pm: Yusof says the CCTV recording was also corroborative and independent evidence to show Saiful was at the scene. He says the time that the accused was there also corresponds to Saiful's time at the scene. He cites Anwar and Saiful's cars arriving and leaving the condo as evidence.
3.14pm: Yusof says Saiful was there to meet Anwar to work on the work schedule and to deliver documents, and this was not disputed.
He then says penetration of the anus rarely produces signs of injury in consenting and non-consenting adults, citing medical literature whose authors among whom included David Wells, who is a defence specialist.
3.20pm: Yusof says Dr Mohd Razali Ibrahim took the swab and it turned out the three rectal swabs contain semen and spermatozoa. The presence of semen is clear evidence of penetration and intercourse, he says.
3.25pm: Moving on to the three items - the water bottle, towel and toothbrush -
Yusof says Anwar was the sole occupant in the lock-up where he was detained overnight and the items retrieved showed the DNA profile from them matched the DNA profile of the unknown contributor 'male Y'."It confirms the unknown contributor male Y is Anwar. This shows there is a prima facie case," says Yusof. He claimed this was proof that the prosecution has not only shown its case was prima facie but also that it was beyond reasonable doubt. Adding Saiful had no axe to grind with the accused, he says there was "no purpose for him (Saiful) to make (the allegation) up."
3.40pm: Yusof says the physical examination done was reflected in the medical report.
"It is related to medical history, that is sodomy. Lab analysis was done for seminal fluid."
"Dr Razali testified that in sodomy cases it is important to find seminal fluid," he said.
3.51pm: Yusof maintains that the chemist Seah has no knowledge of where the cotton swab containing seminal stain was found. He adds Dr Siew had testified any contact would leave semen and said this constituted evidence of penetration.
4pm: Yusof, likely responding to Sankara Nair's earlier remarks, claims that spermatozoa can still be found in the anus three days after it was deposited, even after the recipient had “passed motion” (defecated).
4.11pm: Yusof now submits on the DNA tests and that they were done according to standards.He says chemist Nor Aidora Saedon has obtained a good and single 'male Y' sample to confirm it through the 18 allele. The allele adduced show there is no other contributor except the accused, he says.
4.23pm: Yusof says chemist Nor Aidora's testimony is not such that she had made it up. "She had found it, and there is no question as to how she found it," he says.
4.34pm: Yusof says results from the DNA test comes from the machine and it cannot be fabricated. He then moves on to CCTV footage that he said the prosecution had established was not fabricated.
4.47pm: Yusof says Jude did not tamper with the exhibit as all the seals by the hospital remain intact. He maintains what was found on swabs B5, B8 and B9 was semen.
"There is no evidence that the accused keeps it in the sperm bank. Unless the defence is suggesting that Anwar's semen is all over the place," says Yusof.
4.51pm: Yusof says evidence by former Bukit Aman CSI head Amidon Aman on retrieving the three items was never challenged. "There is also no evidence that Saiful had gone to HKL prior to June 28," he says.
4.55pm: Yusof says the conflict between the charge (consensual carnal intercourse) and Saiful's testimony of non-consensual sex should not affect the court's judgment, as the public prosecutor has the discretion as to what charge to impose. He adds that even if the complainant changes the story, no issue arises as long as there is penetration.
5.03pm: Yusof says failure to call Mumtaz and Senator Ezam Mohd Nor as witnesses was not detrimental, “as if there is a fight at a football field; are we (prosecution) going to call every of the 80,000 (spectators) as witness?”.
5.07pm: Court adjourns and resumes tomorrow with Yusof continuing his submission.
source:malaysiakini
Peguam: 'Saiful minum kopi, karipap selepas diliwat'cheers.
Seorang peguam hari ini menegaskan bahawa Peguam Negara mempunyai tanggungjawab awam untuk menampilkan segala bukti dan bukan hanya yang dilihat memberi kelebihan kepada pihaknya untuk mensabit Datuk Seri Anwar Ibrahim atas tuduhan fitnah liwat kali kedua. Yusmadi Yusoff, yang juga Ahli Parlimen Balik Pulau, berkata tindakan pendakwaraya cuba menyembunyikan percanggahan dan kelemahan keterangan oleh saksi-saksinya tidak berupaya untuk kebenaran tetapi semata-mata untuk mencari kemenangan.
Umno is confident the Chinese community in the country, particularly in Penang, will switch their support to the BN and strengthen Malaysia's ruling coalition, the party's information chief Ahmad Maslan said in Bukit Mertajam.
