'Illegally obtained evidence is admissible'

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PUTRAJAYA: Three items seized from the police lock-up where opposition leader Datuk Seri Anwar Ibrahim was held are admissible as evidence notwithstanding the defence’s claim that they were illegally obtained, prosecutor Tan Sri Muhammad Shafee Abdullah submitted yesterday.

The items are admissible because “the value of the [evidence] in relation to the entire case is higher than the prejudicial value,” Muhammad Shafee told the Federal Court.

One of Anwar’s lawyers, Sangeet Kaur Deo, argued last week that the three items — a “Good Morning” towel, water bottle and toothbrush — had been illegally obtained as Anwar’s arrest was unlawful.

According to her, the arrest was illegal as the grounds for arrest were not read out to him when he was detained and an arrest warrant was only issued later at the Kuala Lumpur police headquarters.

The prosecution, however, said the officer who arrested Anwar did inform him of the grounds for the arrest. Anwar maintains that it was not communicated effectively.

A panel of five judges is hearing Anwar’s appeal to overturn the Court of Appeal’s decision to convict him on the charge of sodomising his then political aide Mohd Saiful Bukhari Azlan in June 2008.

The opposition leader, who was initially found not guilty by the High Court in 2012, was sentenced to five years’ jail by the Court of Appeal in March this year.

The issue of the admission of the three items is significant as the prosecution had sought to link the DNA found from the items to that of a Male Y in a sample taken from Saiful’s rectum. Male Y is purported by the prosecution to be Anwar.

Sangeet argued last week that there was a gap in the prosecution’s case as it relied on circumstantial evidence to attempt to show that Anwar had used the three items. She argued that there was direct evidence on the matter in the police log book that raises doubts as to whether Anwar did use those items.

Muhammad Shafee submitted yesterday that the offence Anwar is accused of committing under Section 377B of the Criminal Procedure Code does not require an arrest warrant.

Explaining on the point of admissibility of the evidence to reporters later, Muhammad Shafee said that the Evidence Act 1950 states that anything relevant to the charge is admissible.

“Anything relevant to the charge is admissible unless it is specifically disallowed by the Evidence Act itself,” he said.

He told the court that one of the exceptions was a confession that was illegally obtained.

Muhammad Shafee also countered Sangeet’s argument that there is direct evidence that Anwar had used the items, in particular the water bottle.

Sangeet submitted that the bottle was given to Anwar even before he entered the lock-up and as such it was not necessary that Anwar had used it.

Citing the testimony of the police officer who walked Anwar into the cell, Muhammad Shafee said the officer himself said that the opposition leader brought along a water bottle to the cell.

“[There is] direct evidence that this mineral water bottle was ... carried by [Anwar] himself into the lock-up. Nobody would carry a [water bottle] unless one is consuming it,” he said.

Still on the subject of the mineral water bottle, Muhammad Shafee argued that there was no evidence submitted to deny that this was the same bottle brought from outside into the cell.

On the issue of the alleged illegal arrest, Muhammad Shafee argued that there was no way Anwar would not have known his charge as he had told the court that his counsel was already communicating with the investigating officer when he was in the police station.

“Nobody goes to the police station to have a cup of tea and a chat. Counsel at least would have asked ... to say counsel didn’t know [is like] asking us to believe a cow can jump over the moon,” he said.

“It is a valid arrest ... he was informed of the grounds and [if you believe that he was not informed then] he was informed as soon as he was in the police station ... there was no infringement of rights,” said Muhammad Shafee.

Sangeet also argued that Anwar’s rights were trampled upon and that he was held overnight through “deception and trickery”.

Muhammad Shafee countered this yesterday saying that according to the defence, presumably there is no reason to keep him in the lock-up purely to secure DNA evidence from the lock-up.

“That’s not true according to [the testimony of investigating officer Jude] Pereira; he met Anwar first thing in the morning to speak about his refusal to give any DNA sample in the hospital,” said Muhammad Shafee.

“There was a reason to keep him overnight,” argued the prosecutor.

Muhammad Shafee submitted that Anwar’s rights were respected in relation to getting evidence from him.

He referred to a cotton bud which was inserted into Anwar’s anal region during a medical check-up after he was detained by the police which was not used.

“How far we went, we obliged him. He said, ‘No, don’t take anything from my body’. This cotton bud would have been a powerful DNA [evidence],” he said.

Muhammad Shafee also argued that none of the police officers who were in charge of handling the three items in the lock-up were cross-examined by the defence during the trial stage.

Therefore, he argued, it is “too late” to bring up matters which should have been brought up at trial stage.

This article first appeared in The Edge Financial Daily, on November 4, 2014.