Sodomy II: No prima facie, only doubts

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What are the underlying principles at the close of a prosecution case? The answer is very straight forward, that is, whether the prosecution has made out a prima facie case against the accused. If there is no prima facie case, the accused shall be acquitted. If there is, the accused has to enter his or her defence.  

So in the current case of ‘Public Prosecutor vs Anwar Ibrahim’, has the prosecution established a prima facie case? Every member of the legal fraternity, especially the judges, unanimously agree that the standard of proof of beyond reasonable doubt pertaining to prima facie has to be strong and very strict.

It must be established by sufficient evidence and it is unsafe to convict upon evidence standing alone. Judge Gopal Sri Ram JCA in ‘Looi Kow Chai’s case (2003)’ even stressed that in the case of a judge sitting alone the matter must be subjected to a maximum evaluation. In other words, the standard of proof for prima facie cannot be simply be based on assumptions and raised doubts.  

At the outset, the prosecution depended solely on the oral evidence of Mohd Saiful Bukhari Azlan who is the complainant in the case. In this context, several assumptions were made, such as the offence took place due to the opportunity of the complainant being close to the accused as a personal assistant, there was mens rea (a guilty mind) on the part of the accused and the complainant’s adulation of the charismatic accused.  

Upon maximum evaluation, the credibility of the complainant Saiful as the witness was at best full of loopholes, inconsistencies, and on closer scrutiny may amount to lying under oath. For example, when crossed-examined by the defence whether Rosmah Mansor, the prime minister’s wife was at home during his visit to the prime minister’s residence, the complainant initially answered in the negative, but subsequently admitted it.

When he was asked about the phone call to the inspector general of police (IGP) (that is, where he got the IGP’s handphone number) he answered that he “saw” the number when the Prime Minister Najib Tun Razak was on the line with the IGP, although the distance was several feet away.

In addition, the complainant contradicted his press statements, such as to Malaysiakini and what was said in the open court. In short, if one evaluates the notes of proceedings of the case, one will discover that there are so many other testimonies of the complainant that will totally destroy his credibility as a complainant as well as the star witness.  

The prosecution went further by deducing the accused’s mens rea based on ludicrous assumptions such as the accused working schedule preparations at the condominium, and the delivery of the envelope by his office staff to the complainant  at the condo.

To add insult to injury, none of the witnesses at the prosecution stage corroborated that the offence took place. Even the doctors fail to corroborate the complainant. Instead they based their findings on hearsay evidence from the complainant.

In the case of Dr Siew, he stated that the complainant had informed him that he was sodomised by a high profile public figure for eight times (the word ‘eight’ was subsequently expunged) for at least two months. In the case of Dr Ridzuan, he testified that he was informed by the complainant that he was sodomised a few times (the word ‘for a few times’ have been expunged also).  

The prosecution went further by attempting to corroborate the evidence but ended up making more assumptions. The CCTV recordings though relevant to show presence of the accused and the complainant at the corridors of the condominium, does not show any evidence of sodomy or anal intercourse.

A CCTV in the condo room, the place of the offence, would have been the relevant piece of evidence from the prosecution. Similarly, the presence of the accused’s car and the complainant’s car at the condominium has no relevance to the offence, and to draw assumptions would be a travesty of justice.  

Now we come to the crux of the matter. Has sodomy taken place? The prima facie ’s standard of proof by the prosecution at this point is of a higher degree.  Firstly, the prosecution failed to show the ‘missing link’ in the case.

The swabs were first taken from the complainant and then sent by the investigating officer (IO) to the chemist for analysis. Who took the swabs from the complainant? When? Where? How? Was the IO present? If so, why?

If not, when was it given to the IO? Or did the IO or any other ‘person’ take the swabs from the complainant personally? Is it likely that the semen in the swab may originate elsewhere?

Secondly, there was a ‘matching exercise’ because the semen containing the spermatozoa in the swab which was identified as Male Y was subsequently matched with the accused whose DNA was wrongfully obtained and tendered as evidence.

This raised a very serious question that goes to the root of justice. Was the matching of the DNA was part and parcel of a grander matching exercise?  

In a football game, match-fixing is a ‘no no’, and in the honourable court of law, it should go beyond a ‘no no’ to the realm of non-existence. As such, even the slightest doubt raised on the possibility of match-fixing in any case is not allowed whatsoever, whether in whole or in part or whether at the head and or at the tail-end.  

It can be concluded that the prosecution has failed to establish a prima facie case against the accused. The prosecution depended only on the oral evidence of the complainant  whose credibility is unacceptable and can be subjected to perjury or even impeachment.

In addition, the prosecution also failed to produce any witnesses who can corroborate that the complainant was sodomised. Furthermore, the issue of ‘match-making’ raised serious doubts on the prosecution submissions.

Under these circumstances, the due process of law should take place - acquittal.

Samarudin Rejab is a lawyer and ex husband to former Umno Wanita chief and former deputy health minister Siti Zaharah Sulaiman.

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