KUALA LUMPUR: High Court Judge Datuk Mohamad Zabidin Mohd Diah in his written judgment on Datuk Seri Anwar Ibrahim’s sodomy trial ruled that the court could not be 100 per cent certain on the integrity of samples taken for DNA testing from the complainant (Mohd Saiful Bukhari Azlan).
He said the samples could have been compromised before they reached the Chemistry Department for analysis.
Therefore, he said as such it was not safe for the court to rely on the DNA results obtained by chemist, Dr Seah Lee Hong from the analysis conducted on the samples.
“That being the case, there is no evidence to corroborate the evidence of Mohd Saiful on factum of penetration,” he said in his 80-page judgment made available to the media yesterday.
Mohd Zabidin said the court was left only with the evidence of Mohd Saiful to prove penetration.
“This being a sexual offence, it is trite law that the court is always reluctant to convict an accused person based solely on uncorroborated evidence of the complainant. Therefore the accused is acquitted and discharged from the charge,” he said.
On Jan 9, Mohamad Zabidin had acquitted and discharged Anwar, who had been charged with sodomising Mohd Saiful, 26, at a Desa Damansara condominium unit in Bukit Damansara here between 3.10 pm and 4.30 pm on June 26, 2008.
Anwar, 64, who is also Opposition leader and de facto leader of Parti Keadilan Rakyat (People’s Justice Party), was charged under Section 377B of the Penal Code which carries a sentence of up to 20 years’ jail and whipping, upon conviction.
Mohamad Zabidin also said after going through the evidence of three doctors from the Kuala Lumpur Hospital (HKL), the court found that there should not be any objections on their finding of “factum of penetration” based on the evidence of Dr Seah.
“However, whether this evidence from these three doctors could corroborate PW1 (Mohd Saiful) on factum penetration depended heavily on whether PW5’s (Dr Seah’s) findings and reporting could be relied or not. This also hinged heavily on the integrity of the said samples” he said.
The three HKL doctors were Dr Khairul Nizam Hassan, Dr Siew Sheue Feng and Dr Mohd Razali Ibrahim, who examined and collected samples for DNA testing from Mohd Saiful on June 28, 2008, two days after the alleged sodomy incident.
In his judgment, Mohd Zabidin also said that one critical ingredient that needed to be proven in a sodomy charge was factum of penetration.
He said the prosecution relied heavily on the evidence of Dr Seah to corroborate Mohd Saiful’s evidence on factum of penetration.
On the issue of semen found on the complainant’s rectal swabs, Mohd Zabidin said Dr Seah was merely giving oral evidence without any photographic proof.
Both the two DNA experts called by the defence team, Dr David Wells and Dr Brian Mc Donald, had disputed Dr Seah’s findings on the grounds that one could hardly succeed in collecting any specimen of value from which DNA could be extracted beyond 36 hours after alleged sexual assault.
Both experts also had disputed the prosecution’s witnesses finding of “male Y” semen in Mohd Saiful’s anus since the samples were not properly handled.
Mohd Zabidin said although the three HKL doctors opined that there was penile penetration, they based their opinion on the evidence of Dr Seah, who said she found semen which she called “male Y” in the samples taken from the high and low rectal regions of Mohd Saiful.
“As to whom this “male Y” belongs to, the prosecution relied on the evidence of PW6 (chemist Nor Aidora Saedon) who found the DNA profile obtained from samples recovered from the cell which Anwar was detained overnight to match that of DNA found by PW5 (Dr Seah), taken from the high and low rectal regions of Mohd Saiful,” he said.
He added that clearly, corroboration on factum of penetration from all these witnesses hinged on the finding of Dr Seah on the analysis that she conducted on Mohd Saiful’s high and low rectal areas.
He said therefore it was crucial at the close of the defence’s case to re-evaluate the entire evidence relating to collecting, handling, analysing of the samples taken from Mohd Saiful.
The judge also touched on the testimony of investigation officer DSP Blacious Judy Pereira, who had admitted that he stored the samples collected from Mohd Saiful in his room even though Dr Siew had told him to store it in a freezer.
Furthermore, he said DSP Judy in his evidence had said that he had cut open a plastic bag handed over to him by Dr Siew and claimed 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,” added Mohd Zabidin.
He said he also taken into consideration the two DNA experts’ evidence called by the defence whereby Dr David Wells had concluded that the receptacles were not tamperproof as the seal could be removed and resealed.
“By cutting open the receptacles, the confidence in the intergrity of the samples was gone,” he said.
Mohamad Zabidin also said he took into consideration the testimony of another defence expert, Dr Thomas Hoogland, who had testified that due to injury suffered by Anwar, the expert was of the opinion that it would be very unlikely for the accused to be able to commit the sodomy act in the way described by the complainant.
Mohamad Zabidin further said that when calling Anwar to enter his defence on the charge at the end of the prosecution’s case, there was no dispute that Anwar was the one who had directed Mohd Saiful to go to the condominium on Jun 26, 2008, at about 2.15pm.
He said the image of Mohd Saiful taking a lift to one of the units of the condominium was recorded by the condominium’s CCTV system.
He also said someone resembling the accused who was seen taking the lift and was recorded by CCTV system, confirmed the presence of the accused at the vicinity of the crime scene during the period mentioned in the charge.
The judge said the corroborative evidence as to what transpired between Anwar and Mohd Saiful in the unit of the condominium could be found in the medical history of the incident as told by Mohd Saiful.
He said Dr Siew in his evidence had also said that he was informed by Mohd Saiful that he (Mohd Saiful) was sodomised by a high profile public figure. — Bernama