Although Anwar Ibrahim's spine specialist Dr Thomas Hoogland had testified in court in 2011 that the opposition leader was unable to perform the alleged sex acts, the apex court rejected such evidence and accepted that there was sufficient scientific and corroboration evidence to convict him.

 

Chief Justice Arifin Zakaria - who wrote the 54-page judgment - said Hoogland only inspected Anwar again on Sept 8, 2011, a month before the specialist testified as a defence witness.

 

This is opposed to Hospital Kuala Lumpur doctor Dr S Jeyaindran, a rebuttal witness called by the prosecution, who said Anwar admitted having coitus with his wife (Dr Wan Azizah Wan Ismail) a week after the incident.

Hoogland had treated Anwar in Germany as soon as the former deputy prime minister was released from prison in 2004.

 

“Jeyaindran said Anwar did not complain of having back pains, and from his observation during that medical examination, his (Anwar’s) movements were not restricted by any back pain whatsoever.

 

“In the results, we hold that there is overwhelming evidence to support Mohd Saiful Bukhari Azlan's allegation that he had been sodomised by the appellant (Anwar).

 

“The scientific evidence (medical and DNA evidence) adduced by the prosecution clearly established that sperm cells belonging to Anwar were found in the lower and upper rectum of Saiful.

 

“The only logical explanation for this is that Saiful must have been sodomised by Anwar. We are thus convinced beyond reasonable doubt that Saiful was sodomised by Anwar as charged,” the top judicial officer ruled.

 

Based on the above reasoning, the CJ agreed with the Court of Appeal that Anwar had not created any reasonable doubt to the prosecution's case.

 

“Anwar's unsworn statement evidentially carries little weight and the evidence adduced through his witnesses failed to cast any reasonable doubt on the prosecution case.

"The prosecution therefore has established its case beyond reasonable doubt. The appeal against the conviction is dismissed,” he said.

 

Justice Arifin ( left ) led the five-member bench in the unanimous decision that also included his number two in Court of Appeal president, Justice Md Raus Sharif.

The others were Federal Court judges Justices Suriyadi Halim Omar, Abdull Hamid Embong and Ramly Ali.

 

Political conspiracy allegations dismissed

 

Justice Arifin also dismissed Anwar's allegations of political conspiracy, following that Saiful had met the then Deputy Prime Minister Najib Abdul Razak, at his Taman Duta house two days before the alleged sodomy incident occurred.

 

The court ruled that a mere claim by Anwar, did not amount to credible evidence.

 

“We hold that the defence of political conspiracy remains a mere allegation unsubstantiated by any credible evidence,” Justice Arifin said, adding that the appellate court applied the right principle in assessing Anwar's statement from the dock.

 

“As such we find no merit in Anwar's complaint that the Court of Appeal had seriously misdirected itself in making adverse comments on his decision to give his statement from the dock.

 

“It is true that it is within Anwar's right to give such statement from the dock. That statement must however amount to credible evidence,” he said.

 

High Court judge erred

 

While Kuala Lumpur High Court judge, Justice Mohd Zabidin Mohd Diah ruled it was unsafe to convict Anwar following questions surrounding the integrity of the samples retrieved from Saiful, Justice Arifin said the trial judge had erred in accepting Anwar's defence witnesses namely Dr David Wells and Dr Brian McDonald's testimonies.

 

“We are of the view that the trial judge was in error in imposing the 100 per cent “certainty” standard of proof on the prosecution to refute the possibility of the samples taken from Saiful ( left ) being compromised.

 

“The trial judge had imposed too high a burden on the prosecution. The correct standard of proof to constitute proof beyond reasonable doubt need not reach certainty but carry a high degree of probability,” he said.

 

Justice Arifin said on the answer of the possibility of the samples taken from Saiful having been compromised before reaching chemist Dr Seah Lay Hoong is remote.

 

“Such a suggestion can be dismissed with this one sentence “of course it is possible but not in the least probable.”

 

'Samples not compromised '

 

On the question on the possibility of the samples being compromised, Justice Arifin ruled that out as he found the investigating officer DSP Jude Blacious Pereira was merely adhering to the Inspector-General Standing Orders that required him to put proper markings and labelling the exhibits.

 

He added with the bench seeing the sealed plastic bag with Saiful's samples placed in them, they noted that it was snipped by Jude ( right ) and he had left the snipped portion of the plastic bag still on to show transparency in his action.

 

“Furthermore, Dr Seah in her testimony confirmed that she did not detect any tampering of the seals of the exhibits marked B to B10. We therefore found that there was no break in the chain of custody of those exhibits.

 

“As such we agree with the Court of Appeal that the integrity of the samples was not compromised. In view of our finding that there was no break in the chain of custody of evidence, the fanciful suggestion of Anwar's counsel that the DNA evidence had been planted is therefore unsustainable,” Justice Arifin said.

 

The apex court also ruled the retrieval of Anwar's samples taken from his lock-up was not in transgression of any rule, nor was an infringement of his constitutional right of a fair trial.

 

The court discuss in length about the DNA evidence but basically they accepted the evidence by chemist Dr Seah and Nor Aidora Saedon who inspected Anwar's samples retrieved from the lock-up and identified “Male Y” as the opposition leader.

 

All in all, Justice Arifin took two hours to read the unanimous judgment to return the ‘guilty’ verdict.