PUTRAJAYA (Bernama) – PKR adviser Datuk Seri Anwar Ibrahim should have undergone a DNA test to prove that the unknown profile of ‘Male Y’ found on Mohd Saiful Bukhari Azlan’s rectum was not his, the Federal Court heard yesterday.
Lead prosecutor Tan Sri Muhammad Shafee Abdullah said the defence never explained why Anwar’s semen samples were found on Mohd Saiful’s rectum.
“He should be ready to do his own DNA test if the semen is not his. He can do it quietly in Australia or Europe,” he submitted before a five-man bench chaired by Chief Justice Tun Arifin Zakaria, which is hearing Anwar’s final appeal against a sodomy conviction and five-year jail sentence. He said Anwar could have tendered the results of his DNA test at the High Court stage as an additional defence evidence.
The Court of Appeal had found Anwar, 67, guilty of having sodomised his former aide, Mohd Saiful Bukhari, 27, at Unit 11-5-1 of the Desa Damansara Condominium in Jalan Setiakasih, Bukit Damansara, between 3.10pm and 4.30pm on June 26, 2008.
Anwar was charged under Section 377B of the Penal Code, which carries a jail sentence of up to 20 years and whipping, upon conviction.
The appeal hearing, which was initially set for two days from Oct 28, has been extended as both sides submitted lengthy submissions. The defence is seeking to free the opposition leader from a sodomy conviction while the prosecution wants the court to dismiss Anwar’s appeal to overturn his conviction and jail term.
The other four judges on the Federal Court panel are Court of Appeal president Tan Sri Md Raus Sharif and Federal Court judges Tan Sri Abdull Hamid Embong, Tan Sri Suriyadi Halim Omar and Datuk Ramly Ali. Submitting on Anwar’s claim that his sodomy charge was a conspiracy, Muhammad Shafee argued that it was a mere allegation as it was illogical and unbelievable.
On the high rectal swab taken from Mohd Saiful Bukhari’s intimate parts which showed the presence of Anwar’s DNA, Muhammad Shafee said: “What is the appellant’s DNA doing there at 4cm (in the complainant’s rectum), and it should be answered by the appellant.”
He also questioned why Anwar’s semen was found on Mohd Saiful Bukhari’s grey underwear which the complainant wore the day he was examined by a Pusrawi doctor and when he lodged a police report on June 28, 2008, two days after the alleged sodomy incident.
The lead prosecutor also questioned the defence’s contention that the swab samples taken from Mohd Saiful’s intimate parts were in a “pristine condition”, about 56 hours after the incident took place before it reached the chemistry department.
He pointed out that the prosecution never said the samples were in pristine condition and the word came from the testimony of defence’s foreign expert witness, Dr Brian McDonald.
Muhammad Shafee also submitted that an Australian court had held that although McDonald was an expert in DNA, his statement and evidence could not be relied upon.
“In fact, the Court of Appeal in convicting the appellant, in its judgment stated that McDonald’s evidence was (coming from an) ‘armchair expert’,” he said.
He also cited a murder case in Australia where a DNA sample was retrieved after more than 13 years, yet the DNA still could be read and the perpetrator was convicted.
Muhammad Shafee said chemist Dr Seah Lay Hong, in her testimony, did not say the samples were in pristine condition but the DNA reading was perfect.
“The chemist managed to read the DNA and the degradation of the samples should not be questioned,” he added.
Muhammad Shafee cited a Thai case law pertaining to the issue of sample degradation which was objected by lawyer Ramkarpal Singh on the ground that it could not be understood as it was in Thai language.
“Only the conclusion is in English. How we will understand that, if that is so, I can also bring a Spanish case law,” said Ramkarpal, drawing laughter from people in the courtroom.
In his submission, Muhammad Shafee also attacked the way Dr Mohamad Osman Abd Hamid from Pusrawi Hospital examined Mohd Saiful Bukhari’s anus on June 28, 2008, as there was no evidence whether he wore gloves or proctoscope.
He said therefore, there was a possibility that Dr Mohamad Osman’s DNA could be deposited in Mohd Saiful Bukhari’s anus.
Muhammad Shafee concluded his submission after more than four hours yesterday. The court adjourned the hearing to Thursday for the defence to reply after Ramkarpal said the defence team needed time.