PUTRAJAYA: On the third day of Datuk Seri Anwar Ibrahim’s Sodomy II appeal hearing at the Federal Court yesterday, his lawyer submitted that the Court of Appeal had not given adequate consideration to several factors which raised a reasonable doubt about the integrity of the DNA samples taken from the complainant, Mohd Saiful Bukhari Azlan
Counsel Ramkarpal Singh submitted on the contamination of the samples and on the subject of the foreign DNA, 18Allele, found both in the “Good Morning” towel taken from the police cell in which Anwar was held overnight after being charged, and in Saiful’s rectum.
18Allele, said Ramkarpal, indicates that the DNA of a third party was present. However, the DNA did not belong to Mohd Saiful or Male Y (alleged to be Anwar).
Noting that the prosecution had claimed that Anwar was the sole occupier of the cell, he asked how traces of a third party’s DNA could have been found in an item seized from the cell.
“This ‘Good Morning’ towel came from the lock-up where prosecution claims Anwar was the sole occupant. So how did this DNA get there,” he said.
Anwar’s team has long maintained that investigating officer (IO) Jude Pereira could have tampered with the DNA samples, and this argument was made during the Court of Appeal hearing in March.
Anwar, 67, is alleged to have sodomised Saiful, who was his former aide, at an apartment in Bukit Damansara, Kuala Lumpur on June 26, 2008. The High Court found the opposition leader not guilty in January 2012, but the Court of Appeal reversed the acquittal and sentenced him to five years in jail.
At the Federal Court hearing yesterday, Ramkarpal submitted that the foreign DNA was also found in the DNA sample taken from Saiful’s rectum. However, government chemist Nor Aidora Saedon had failed to report this in her report as she found it to be negligible or a “stutter”.
Counsel said that by Nor Aidora’s own guidelines, the presence of 18Allele should have been reported as it passed the threshold of beyond 15% to 20%. Nor Aidora examined the items seized from the lock-up Anwar was remanded in when he was charged in 2008.
“She chose to call it a stutter without conducting any other tests. She could have done a second test that if it is a stutter it would have [registered] a 10%, but it was at 25%,” he said.
Ramkarpal also argued that the appeals court panel had misdirected itself in not seeing that since the defence had raised this doubt, the burden was then on the prosecution to dispute it. The Court of Appeals panel had said that Nor Aidora and another government chemist, Dr Seah Lay Hong, were giving factual evidence based on their own analysis of the sample.
Ramkarpal, however, argued yesterday that they were merely offering an opinion.
“[The] burden was completely on the prosecution [to show that] 18 Allele didn’t need to be reported as opposed to [the chemist merely] offering an opinion,” he said.
Counsel added that the alleged contamination and the issue of degradation of the sample, which he raised on Wednesday, “ought to have rung alarm bells in any objective scientist”.
He then submitted on how the samples could have been contaminated by Pereira through a break in the chain of evidence. This argument was also given a lot of focus during the prosecution’s appeal at the Court of Appeal.
Pereira had opened the sealed envelope containing the separate tubes of samples. He had testified that he did not see any markings on the tube and therefore took it upon himself to put the tubes in separate envelopes and label them.
The IO claimed that he was merely following the standard procedures of police when handling the evidence.
Ramkarpal asked the Federal Court panel to consider if Pereira’s explanation was reasonable, stressing that there was “absolutely no reason to open a sealed envelope as tubes were already labelled”.
Ramkarpal said the Court of Appeal panel had not considered if Pereira was truthful when testifying on how he handled the samples.
He said Pereira had acted against orders as it was not part of the police procedure to open sealed items of evidence.
“He was clearly lying when he said that [he was] complying with [police procedure],” said counsel.
Ramkarpal referred to defence witness Dr David Well’s testimony that tampering of the tubes was possible as the seals could have been removed and replaced without detection. The Court of Appeal had disregarded this, said Ramkarpal, on the grounds that Well had not witnessed the alleged act of tampering.
This article first appeared in The Edge Financial Daily, on October 31, 2014.