12 December 2011

Sodomy 2 - the submissions begin...

the charge against anwar ibrahim sodomy allegation trial 070808Almost two years after the Sodomy II trial began, the Kuala Lumpur High Court will hear submissions from both parties.

The submissions, which had initially been scheduled for Nov 23-24, take place today and tomorrow before Justice Mohamad Zabidin Mohd Diah.

Anwar Ibrahim is charged with sodomising his then-aide Mohd Saiful Bukhari Azlan on June 26, 2008, and was arrested on July 16, 2008.

The trial, which closed on Oct 18 after 87 days of hearing, will also be the last for prosecution head Yusof Zainal Abidin as Solicitor-General II.

It is learnt that his third application for optional retirement since 2007 has been accepted and that his last day at work will be either Jan 1 or Feb 1, regardless of the outcome of the trial.

Among the notable expert witnesses during the trial were Dr Thomas Hoogland, Anwar's orthopaedic surgeon, who said t was unlikely for the accused to have committed the sex act, given his back condition.

Australian DNA expert Dr Brian McDonald, who also testified for the defence, had raised doubts as to whether the DNA samples retrieved from the complainant's anus were in pristine condition when analysed.

The defence had subpoenaed Prime Minister Najib Abdul Razak and wife Rosmah Mansor, but the subpoenas were set aside. When his defence was called, Anwar had opted to testify from the dock, rather than from the witness stand.



11.50am: Anwar arrives with his wife and PKR president Dr Wan Azizah Wan Ismail and an entourage of PKR elected representatives and leaders. Many are in official attire as they have come straight from the official farewell ceremony for the 13th Yang di-Pertuan Agong.

12.05pm: Justice Zainal Abidin Mohd Diah enters the courtroom.
Lead defence lawyer Karpal Singh begins his submission by asking the court to cite Prime Minister Najib Abdul Razak for contempt, for having criticised Anwar for making a statement from the dock.

"The law is no respecter of persons. Someone has to bell the cat, and that cat is the prime minister."

Najib's remarks had been made during the recent Umno general assembly.

12.18pm: Karpal says the testimony of Pusrawi doctor Dr Mohd Osman Abdul Hamid has "demolished all semblance of truth in the evidence" of complainant Mohd Saiful Bukhari Azlan. Mohd Osman had testified that the complainant had said he had been sodomised by a VIP and had a piece of plastic inserted into his anus.

"Surely, had plastic been inserted into (Saiful's) anus, injuries would have been found in the anal region. (Saiful) clearly lied when he said that he had not told (Mohd Osman) this."

12.25pm: Karpal says the prosecution had an opportunity to demolish Mohd Osman's testimony, but did not.

"No step whatsoever was taken by the prosecution to impeach the credibility of (Mohd Oman) in particular with regard to plastic having been introduced into (Saiful's) anus."

The complainant, being "a young man of 23 and therefore strong enough to have fended off the alleged overtures in the bedroom, did not do so or show any signs of distress, he notes.

12.27pm: Saiful's actions after the alleged crime were suspect, says Karpal, because he did not make an immediate complaint. He had even attended the Anwar Ibrahim Club meeting at the residence of the accused.

12.29pm: Karpal submits that a 1962 case in the Court of Appeal held that a statement from the dock is evidence.

12.33pm: Referring to the testimony of expert witnesses Dr Brian McDonald and Dr David Wells for the defence, Karpal submits that the integrity of the DNA samples analysed is "seriously flawed".

12.37pm: Referring to the testimony of Anwar's orthopedic surgeon, Dr Thomas Hoogland, Karpal says it is unlikely that the accused could have perfomed the sex act that saiful had described as "laju and rakus".

"(Saiful's) evidence is therefore on this score suspect and incapable of belief and destroys the sub-stratum of the charge against the accused."

12.40pm: The complainant's conduct before he began working for Anwar and in the moments before and after the alleged sex act is "unworthy of belief". Based on Saiful's testimony, it appeared like he had "acted like a lamb", continues Karpal.

12.45pm: He submits that the court should reappraise the complainant's credibility as it takes "centre stage" in the case. He also brings up the allegation that Saiful was involved in a romantic affair with prosecution team member DPP Farah Azlina. He says that the Attorney-General's Chambers' finding that there was no such affair is not credible as the office is not an independent party.

"An independent inquiry would have been an answer and that must be one conducted by this court by recalling (Saiful) to deny the allegation under oath and summoning Farah Azlina as a witness to do likewise in court."

12.49pm: If the affair had taken place Saiful could have had access to the prosecution notes and tailored his testimony accordingly, Karpal points out. He calls for the proceedings to be adjourned in order to recall Saiful and Farah Azlina, especially since the outcome of the AG's Chambers' probe had only been made public on Nov 11, 2011, about a month after the defence concluded its case.

12.55pm: Karpal concludes his submission. Court is adjourned for the lunch break until 2pm.

About 30 people are waiting outside the courtroom, with many asking to be photographed with Anwar in his official attire.

2.12pm: Theproceedings resume with defence counsel Sankara Nair submitting. Anwar has changed into a grey jacket.

2.14pm: Sankara says Saiful is "a compulsive and a consummate liar" as his testimony was fraught with "contradictions" and "incongrous statements".

NONEHe begins picking apart Saiful's (left) credibility by pointing to the complainant's testimony that he did not get a check-up at Tawakal Hospital when he went there, as the staff had told him that it was a half-day that day.

"Surely this cannot be true as it is common knowledge that Tawakal Hospital or any private hospital for that matter does not operate on half-day on Saturday, more so the emergency department which operates 24 hours a day."

2.18pm: Sankara says Mohd Osman had testified he had inserted the protoscope into Saiful's anus.

But Saiful had testified that the doctor stopped just as he was inserting the protoscope, as he had told the doctor he had been sodomised.

2.21pm: Sankara also asks how curry puffs and coffee found their way into the Desa Damansara Condominium, as Saiful had testified to having latched the door from the inside before the sex act. The complainant had said he had the snack after the sex act. Sankara says this could not happen unless Saiful "engaged the services of the infamous David Copperfield".

2.24pm: Referring to Saiful's testimony that he had overheard the police chief's phone number when then Deputy Prime Minister Najib Abdul Razak had an unidentified aide for it. Saiful had testified that he met with Najib and told the latter that he was sodomised.

"(Najib) would have just said 'get me the IGP'...it is an incredible story," says Sankara.

2.30pm: He moves on to the credibility of investigating officer Jude Blacious Pereira, for having mishandled the DNA samples. Sankara points out that instead of being censured for contravening procedure, Jude has been promoted two ranks higher.

2.37pm: Still on the questionable integrity of case exhibits, Sankara raises the "mystery of KY jelly".

He contends that the tube of KY Jelly was not initially sent to the Chemistry Department for analysis along with the complainant's siezed clothing, but that it was an "afterthought" planted to explain why there was no tear to Saiful's anus.

2.45pm: Prosecution witness Kuala Lumpur Hospital (HKL) forensic pathologist Dr Siew Sheue Feng's demeanour on the stand is called into question.

"He was clearly hesitant, not objective and was biased," claims Sankara.

NONE2.52pm: He revisits the testimony of Wells (left) who, to a question by the prosecution, had said that the sealing of some specimens was not tamper proof.

2.57pm: Sankara says that government chemist Dr.Seah Lay Hong "gave the benefit of the doubt" to the police and did not follow internationally adhered to standards in protecting the integrity of specimens.

3.04pm: He submits that Seah, Dr.Seah Lay Hong and HKL general surgeon Dr Mohd Razali Ibrahim had "wavered, hesitated, ducked and dived" to the extent that they made a "spectacle of themselves".
This, he says, was in stark contrast to the demeanour of Wells, Hoogland and McDonald.

3.13pm: Many are leaving the court room as the defence submission continues. Jude, who is present in the public gallery, is spotted yawning.

3.15pm: Sankara submits that the prosecution has failed to prove mens rea (criminal intent) as evidence had been adduced that Saiful had been randomly selected to deliver files to Anwar on the day of the alleged sex act.

"(Anwar) did not specifically ask for (Saiful)."

Sankara also points out that the complainant was never seen at the unit where the crime allegedly took place.

"It is submitted that (Saiful) had never entered or was in the unit at any time."

The "bad CCTV recording which is not even in full real time" he says cannot be admitted as proof that Saiful was there.

3.21pm: Sankara further submits that the prosecution "has not adduced one iota of evidence to show penetration, a crucial ingredient (in the charge)".

He says no evidence was produced on the physical manner of the alleged penetration, which Saiful had described as "laju and rakus".

Saiful's testimony was given in camera. However, his "cursory demonstration: at the alleged crime scene was not recorded.

azlan3.27pm: The charge is a "conspiracy", claims Sankara, who also says it is "not a surprise that the epicentre of the conspiracy was found at the residence of the Deputy PM then" (Najib).

He raises the "contradicting" answers that Najib, now the premier, has given to the press, beginning with the statement that Saiful "an unknown college dropout" came to his house to ask for a scholarship.

3.27pm: The charge is a "conspiracy", claims Sankara, who also says it is "not a surprise that the epicentre of the conspiracy was found at the residence of the Deputy PM then" (Najib).

He raises the "contradicting" answers that Najib, now the premier, has given to the press, beginning with the statement that Saiful "an unknown college dropout" came to his house to ask for a scholarship.

3.31pm:The counsel calls then police chief Musa Hassan and SAC Rodzwan "nemeses" of Anwar. He supports the argument of a conspiracy to destroy Anwar's political career.

"What business does (Saiful) have meeting with (Rodzwan) in a hotel?"

3.35pm: Sankara concludes his submission while colleague Ram Karpal starts, focusing specifically on the testimony of the defence expert witnesses.

His submission goes into technical detail.

NONE4.16pm: Ram submits that the DNA tested by chemist Nor Aidora Saedon (left) did not objectively analyse the samples as she did not report that it was from a mixed profile.

"It could not have been mere coincidence that same 18 allele were found on the high rectal swabs and 'Good Morning' towel."

He contends that this raises questions about tampering by the same person.

The judge suggests a break but the lawyer says he will finish in 30 minutes, so the proceeding continues. Murmurs are heard from the public gallery where several have dozed off.

4.27pm: Ram says the prosecution has failed to prove its case beyond reasonable doubt - that no tampering or contamination had occured in the DNA evidence.

"Who is to say that the DNA of 'Male Y' was not planted by the members of the investigating team, by someone with the 18 allele?"

The 18 allele had been observed by two chemists from the Chemistry Department but was unreported as it was assumed to be "sporadic contamination".

4.32pm: The lawyer says the suggestion that the samples were dried and thus appropriate to be stored in an airtight containers is "devoid of logic". This is because the samples were retrieved from anal swabs and it has not been disputed that the complainant's anus was moist.

"The fact remains, anal swabs are moist."

The fact that the samples were in "pristine" condition despite the failure to follow procedures raise questions as to whether the specimens were authentic, he notes.

4.36pm: "Even assuming semen can persist in the anus for up to 113 hours as prosecution contends, the prosecution has not adduced any evidence on the question of degradation," he says. This, he says, is due to the "pristine" condition of the specimen despite its history before tested.

4.40pm: Referring to DNA expert McDonald's testimony, Ram said the evidence showed there was no or very little evidence of degradation observed.

NONESeah (right), in her testimony had agreed to this based on the peaks of the graph from the anal swabs. And this was despite the specimen being not properly preserved.

"The samples analysed were not the same as those collected from (the complainant)," Ram submits.

4.47pm: He contends that in cases of sexual crimes, the presence of sperm in the vagina or anus is imperative.

However, no evidence has been adduced that the DNA specimen was from sperm or that sperm cells were distinguished from other cells, in this case.

5.06pm: The DNA evidence offered by the prosecution raises more question than answers, says Ram.

He concludes that, based on this alone, the accused must be acquitted.

The hearing is adjourned to 1.30pm tomorrow, when the prosecution will submit.


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