Solicitor-General II Mohd Yusof Zainal Abiden, who is leading the prosecution team in the Anwar Ibrahim's sodomy trial, will not appeal today's Kuala Lumpur High Court decision to exclude three crucial items as evidence.

Yusof, when contacted, explained that the court ruling was made in the course of the trial.

Past appeals by Anwar in this case were rejected by the Court of Appeal and Federal Court on the basis these were interlocutory matters that did not fall within the definition of a decision at the end of the trial.

However, despite the dismissal of the appeals, the courts stressed that Anwar or the prosecution can still appeal when the final judgment is delivered.

Given this, the prosecution team said the court ruling today was not appealable.

azlan Justice Mohamad Zabidin Mohd Diah this morning ruled as inadmissable three items - a mineral water bottle, a Good Morning towel and a toothbrush - from which the DNA of 'Male Y' was retrieved.

The judge ruled, after two days of a trial within a trial that the DNA samples were obtained through unfair means and should therefore be excluded as evidence.

Justice Zabidin will give the full grounds of his decision later.

In his submission, Yusof provided case laws from British, American and Commonwealth countries to argue that items obtained through questionable means could be admitted as evidence.

Karpal in his reply today reiterated that deception or trickery had been used to extract the DNA samples from the three items.

“Anwar had refused to give his blood sample for DNA profiling as requested by the Hospital Kuala Lumpur doctors, which was his right. Anwar was brought back to IPK Kuala Lumpur, and there DSP Yahya Abdul Rahman supplied the towel (and) toothbrush.

“It is apparent, having regard to the sequence of these events, that the DNA extracted from the said items had been brought about by deception or trickery,” the senior lawyer told the court.

Abide to Federal Court’s decision

Karpal said the evidence of trickery was manifested by the fact that investigating officer Jude Blacious Pereira had directed police personnel guarding the lock-up not to touch the three items.

“Why was there a need for such directions unless it was a ploy hatched by the police to ensure DNA samples could be extracted from these items, despite Anwar exercising his rights by refusing to give his blood sample for profiling.

“It is very significant to note that Jude was not called as a witness to rebut the directions he gave to other police personnel. The irresistible conclusion is that the police applied unfair methods and unfair means to procure DNA from the items.”

Karpal said the High Court was bound by the Federal Court decision in the Goi Ching Ang case, which had been decided by a five-member bench.

“The decision is that evidence obtained in an oppressive manner by force, against the wishes of an accused person, or by trick or by conduct of which the police ought not to take advantage, would operate unfairly against the accused and should, at the discretion of the court, be rejected for admission,” he said.

In conclusion, Karpal said it was not the American or English authorities the court should be concerned with, but the decision of the Federal Court in the Goi Ching Ang case.

Anwar pleased with decision

Commenting on the ruling later, Anwar said he is pleased with the decision as the items were obtained unlawfully and without his knowledge.

NONE “There are also questions over the testimony of the chemist as to the DNA result obtained.

“The alleged incident happened on June 26, 2008, and Saiful went to hospital on the 28th with DNA being retrieved. This shows there must have been orders from those higher up,” he said.

The trial will continue tomorrow, with the prosecution wrapping up its case with three witness - investigating officer Pereira, Anwar's chief of staff Ibrahim Yaakob and Dr Razuin Rahimi, one of the HKL doctors who examined Saiful.

Razuin is the doctor responsible for taking notes while Saiful was being examined and his signature appears on the medical pro forma form. 

Hearing resumes at 9am.

Anwar wins critical ruling in sodomy trial

Mini-trial: Judge disallows items as evidence

Prosecution will not appeal decision

Sodomy charge 'should fall': Bar Council president