Gaps in DNA evidence were highlighted by Datuk Seri Anwar Ibrahim’s defence counsel to the Federal Court today in their move to overturn his conviction of sodomising a former aide.
Co-counsel Sangeet Kaur Deo argued that the gap in the prosecution’s case lay in linking the DNA found in three items from the prison cell where Anwar was jailed with DNA found in the rectum of the complainant, Mohd Saiful Bukhari Azlan.
The three items from the prison cell – a toothbrush, mineral water bottle and a “Good Morning” towel – were alleged to have been used by Anwar when he was held overnight after being arrested for investigations in July 2008.
“DNA in Saiful’s rectum and DNA in the three items matched. But whose DNA it was, they didn’t know so they called it ‘Male-Y’.”
The gap was proving that the “Male-Y” was indeed Anwar’s, she said, as there was no direct evidence to prove that Anwar had used the three items while in prison.
“The court should not rely on circumstantial evidence when contradicted by direct evidence.”
She said the lockup diary or police log book which recorded Anwar’s movements in the cell was detailed and even noted the time when Anwar was just leaning against the bars of the cell. Neither the book nor the witnesses stated that he had used the three items.
She highlighted the testimony of a lance corporal who said that he heard Anwar brushing his teeth. But in trial, he could not answer when asked if he actually witnessed the PKR leader doing so.
“Witness does not allude to having witnessing Anwar brushing teeth. (That) is an erroneous finding of fact.
“This is material. In fact, this is the link. We have a situation where witnesses were specifically asked what did you see and there was no answer. The prosecution cannot then rely on circumstantial evidence because witnesses were there.”
Sangeet said police obtained the three items to use as evidence “by trickery” and by detaining him further.
The trial judge initially agreed that the items were obtained unfairly but then later accepted them as evidence. Sangeet said the prosecution should not have cited the items as evidence later in the trial when the judge had already dismissed them.
She told the court about the manner in which Anwar was arrested, calling it an “ambush”, and added that there had been no warrant issued at the time of arrest.
Anwar was arrested by police commandos and the warrant of arrest was only issued at the Kuala Lumpur police headquarters later, she told the court.
Because his arrest was without a warrant, and also in violation of procedures, Sangeet said the items obtained from the cell as evidence were unlawful.
Police procedures require detainees to be brought to the lockup by 6pm and not brought out again for the detention period.
But Anwar was put in the lock up at around 8pm and then taken to Hospital Kuala Lumpur for his DNA sample to be collected. He exercised his constitutional right not to comply with the sample collection, Sangeet said.
Earlier, co-counsel N. Surendran, who began his submissions yesterday on how the High Court and Court of Appeal failed to give weight to Anwar’s evidence from the dock, started wrapping up today by going through case laws to make his point.
Surendran said the Court of Appeal in its written judgements disregarded the explanation Anwar had given for making a statement from the dock. Anwar had explained why he needed to speak from the dock “not once but five times”.
In his statement from the dock, Anwar had said the the charge against him of sodomising his former aide, Mohd Saiful Bukhari Azlan, in 2008 was a political conspiracy.
But the High Court and the Court of Appeal had regarded the evidence from the dock as a “bare denial”, Surendran said, and failed to consider evidence given of a “pre-arranged plan” that supported Anwar’s claims of political conspiracy.
The federal court’s hearing began yesterday, with lead counsel Datuk Seri Gopal Sri Ram building a case to show that the complainant, Anwar’s former aide Mohd Saiful Bukhari Azlan, was not a credible witness.
The court said it may extend the two-day hearing to another day because of the volume of submissions to be made. The prosecution will also be making submissions before both sides make closing arguments.
The defence is also expected to submit on the DNA evidence used in the trial.
A five-member bench is hearing his appeal, led by Chief Justice Tun Arifin Zakaria. Others on the bench are Tan Sri Raus Sharif, Tan Sri Abdul Hamid Embong, Tan Sri Suriyadi Halim Omar and Datuk Ramly Ali.
Anwar, 67, was sentenced to five years’ jail by the Court of Appeal in March this year but obtained stay of execution pending the outcome of his appeal in the Federal Court. He is out on bail of RM10,000 in one surety.
In January 2012, the High Court, after a lengthy trial, acquitted Anwar of the charge after calling for his defence.
The prosecution also filed a cross-appeal to enhance the jail term which could be extended up to 20 years.
The opposition leader is alleged to have performed carnal intercourse on Saiful at an apartment in Damansara on June 26, 2008.
This is the second sodomy charge against him. The first was in 1998, after he was sacked from government. He was then accused of sodomising his former driver and acquitted by the Federal Court in 2004.
This time, Anwar’s political career could come to an end if the apex court upholds the Court of Appeal’s conviction and sustains the sentence.
Anwar’s defence team is led by retired federal court judge Datuk Seri Gopal Sri Ram. Besides Surendran, other lawyers in the team are Ramkarpal Singh, Sangeet Kaur Deo, Zaleha Al-Hayat, Latheefa Koya, R. Sivarasa and Eric Paulsen.
Gobind Singh Deo and prominent lawyer Tommy Thomas are also observing the case.