No proof of penetration means no case — Ramkarpal

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PUTRAJAYA: No proof of sexual penetration means there is no proof that Datuk Seri Anwar Ibrahim sodomised his former aide, the defence counsel said yesterday, in closing statements on the final day of the opposition leader’s appeal against conviction in the Federal Court.

The Malaysian Insider reported co-counsel Ramkarpal Singh as saying that proof of penetration was crucial in a crime of this nature but all four doctors who had examined the complainant, Mohd Saiful Bukhari Azlan, had initially found that there was no conclusive evidence of penile penetration.

The first doctor to examine Saiful after the alleged sodomy, Dr Mohd Osman Abdul Hamid from Pusrawi Hospital, had found no evidence of penetration.

So did the three doctors from Hospital Kuala Lumpur (HKL), said Ramkarpal, but they later changed their answer after seeing the DNA samples tendered during the trial. The defence held that the samples had been tampered with.

The samples had been labelled by the case investigating officer Superintendent Jude Pereira, whom the defence alleged had mishandled the evidence, said the Malaysian Insider report.

Ramkarpal told the court that one of the doctors at HKL was tasked with packing the samples swabbed from Saiful and that he had not examined Saiful at all.

How could that doctor have opined in his testimony that penetration had occurred, when he did not examine Saiful, Ramkarpal asked the court.

Ramkarpal said it had already been established that the doctors only said they swabbed samples from the high rectum area but had not found any physical evidence of penetration.

This supported the defence’s contention that the samples were planted and tampered with, Ramkarpal submitted.

“How do you find semen in the rectum when there is no penetration?” he asked.

The Malaysian Insider report said it was wrong of the High Court and the Court of Appeal to fail to see that without evidence of penetration, there was no offence committed, Ramkarpal said.

The Federal Court comprising a panel of five judges was in its seventh and possibly final day of hearing Anwar’s appeal against his conviction of sodomising his former aide, Saiful, in 2008.

In the prosecution’s submissions, lead prosecutor Tan Sri Muhammad Shafee Abdullah referred to alleged past sexual activity between Anwar and Saiful to explain why there was no physical evidence of penetration.

Ramkarpal said previous encounters should not be taken into consideration for this charge.

Muhammad Shafee also attacked the defence’s witness, Australian DNA expert Dr Brian McDonald, for being a discredited witness as courts in other countries had also rejected his evidence before.

Ramkarpal yesterday listed McDonald’s credentials before the court, noting that he was trained in biology which was the foundation of forensic DNA expertise.

“No doubt he didn’t attend a specific class on how to do DNA testing because it didn’t exist in 1973 [when McDonald went to university].

“It only came about in the late 1980s. But his experience over the next three decades, setting up labs to do these testings, speaks for itself,” said Ramkarpal.

He added that McDonald had never disagreed with the methods used by government chemists in testing DNA samples for Anwar’s trial, but had only differed on whether a foreign DNA, Allele 18, should have been reported.

The defence holds that Allele 18 which came from neither Saiful nor Anwar showed that the DNA samples had been contaminated and could not be relied on. The government chemists, however, downplayed the contamination by not reporting it and dismissing it as negligible.

In ending his reply to the prosecution, the Malaysian Insider report quoted Ramkarpal as saying “doubts in this case entitle Anwar for acquittal and discharge”.

Other members of the defence team, led by retired Federal Court judge Datuk Seri Gopal Sri Ram, continued making closing replies yesterday afternoon.

The Federal Court bench of five judges hearing Anwar’s appeal is led by Chief Justice Tun Arifin Zakaria.

This article first appeared in The Edge Financial Daily, on November 7, 2014.