Don't rely on star witness, court told

Senior lawyer Karpal Singh has cautioned the Kuala Lumpur High Court not to repeat the mistake of the Sodomy I trial, when Judge Arifin Jaka had found Anwar Ibrahim guilty after relying on the star witness’ testimony.

Karpal said Justice Arifin had painted complainant Azizan Abu Bakar as a truthful and credible witness standing as solid as the "Rock of Gibraltar".

Yet, the Federal Court subsequently overturned the High Court's decision.

"This court should not fall into that fallacy. Mohd Saiful (Bukhari Azlan) is the star witness of the prosecution (in the Sodomy II trial). It is important for this court to consider whether his evidence is acceptable or not," he said.

Karpal said Saiful was no country bumpkin, but a dishonest witness who was not credible either, as there were holes in his testimony.

He said Saiful could have run many times before the alleged sex act took place but did not.

Instead, he had testified to having sat down for 20 minutes,eating curry puffs and drinking coffee.

"This is not a proper character of someone who claimed the act was involuntary. He chose to remain there with Anwar, according to his testimony," said Karpal.

Throughout the defence case, three different lawyers made submissions to the case - with Karpal being the first focussing on Saiful, his son Ram Karpal on the DNA evidence, while Sankara focused on a wide range of issues, especially on the doctors, samples being retrieved and the witnesses’ testimony.

Sex act

Karpal went through Saiful’s testimony in court even up to the in-camera proceeding when the court was off-limits to the public, where Anwar purportedly made his sexual advances.

The senior lawyer said while Saiful testified he was scared and angry at Anwar’s advances, but there were numerous opportunities for him to run away to avoid such an incident and he did not.

“At one point of time, he could have left the living room of the condo, and at another he was in front of the condo’s entrance door but he chose not to run when he had an opportunity to flee,” he said.

“There was another instance when Anwar asked Saiful to approach him after washing up, however in such an instance he did not want to leave the bedroom, enlist help or shout. Instead of leaving the bedroom, he went towards the accused,” he said.

Karpal also said there was an instance where Saiful willingly applied KY Jelly on Anwar’s penis and he does so voluntarily and he did also put the lubricant willingly on his anus without hesitation.

“Saiful willingly bent down and he willingly hold Anwar’s penis to be placed inside the anus. But after all that he managed to sit down and drink coffee and take curry puffs. This happened after he was sodomised.

“He had an opportunity to run away but did not do so and instead stayed there for 20 minutes. Saiful was also willing to come to office the next day and also went to Anwar’s house later on that day serving tea.”

Karpal said from the evidence above it was obvious Saiful had lied as he stated in court the incident happened without his consent and bearing this in mind his credibility comes to naught.

“His evidence should be rejected right away without the need for corroboration,” and in fact, the prosecution should have charged Saiful under section 195 of the Penal Code for fabricating evidence and it would have served as an example to anyone who wanted to use the court to convict someone.

The senior lawyer also pointed out that Saiful had delayed making a police report and only did so and went to the hospital after two days.

He also questioned why Senator Ezam Md Nor (former PKR Youth chief, now a senator) or Mumtaz Jaafar (Rosmah Mansor’s close confidante) were not called as witness although they were the first to have met Saiful.

He ended his submission by describing that what Saiful had related was incredulous and the court, in applying the maximum evaluation of evidence, would find that the prosecution’s case ought to be rejected.

Ram: Chemists not credible witnesses

Ram, in his submission, said the evidence by chemists Dr Seah Lay Hong and Nor Aidora Saedon should not be considered as they are not credible witnesses, where Seah was selective in her tests with the presence of ‘starters’ (the presence of other persons in the samples).

“She did not deny her report was inaccurate,” he said, adding Seah also did not deny the presence of a third contributor, and this showed the sample taken could have been contaminated. This shows that the sample had been contaminated and degradation occurred due to the investigating officer (DSP Jude Blacious Pereira) ( left ) had kept it in a drawer instead of putting it in a freezer as recommended by the doctors.

Ram pointed out that if this was not done, the samples could have been degraded.

He also pointed out the inconsistency in the seminal stain found on Saiful’s briefs and pants, where on the briefs it was on the back while for the pants it was on the front.

He remined the court that an expert’s (chemist’s) evidence is never conclusive.

“The function of an expert witness is to give an honest opinion,” Ram Karpal said. However, the defence felt this was not done and he was quick to point out that Seah and Nor Aidora were biased in their analyses.

Sankara: Defence’s hands are tied

Sankara pointed out that the defence’s hands were tied, with them not getting many documents which were withheld from them.

He also pointed out that the doctor’s failure to take record of Saiful’s bowel habits was fatal.

This followed, Sankara ( right ) said, Dr Mohd Razali Ibrahim’s testimony that Saiful’s rectum was empty despite the complainant alleging he had not defecated for two days.

He also questioned why the KY jelly tendered by Saiful was not analysed by Seah as it was allegedly used in the sex act.

“This was not done when it should have been done by the police,” he said, adding the chemist’s report was completed within a week for something that would normally take three months.

Sankara also pointed out that the samples were only handed to the chemist after  97 hours or (four days) for testing, and this may result in the degradation of the samples.

He also raised the possibility of tampering of evidence, as Pereira had cut open the heat-sealed plastic pack containing the specimen cotton swabs from the doctors and had repackaged them.

Describing Pereira as a most untruthful witness, Sankara said the officer has not only failed to follow recommendations put forward by the doctors, but violated the Inspector-General’s Standing Orders in repacking the package containing the cotton swabs.

“This creates the possibility of the samples being tampered with,” he said.