The Kuala Lumpur High Court will tomorrow hear submissions from Anwar Ibrahim’s lawyers and the prosecution, over the defence application to have a trial-within-a-trial.

This follows an objection by lead counsel Karpal Singh who protested the admissability of the mineral water bottle, Good Morning towel, toothbrush and the strand of hair as evidence.

“The items were obtained by police through unfair and illegal means. Hence, the court can decide to expunge the evidence as they were illegally obtained," he said.

NONE “We are applying for a trial-within-a-trial for the court to decide on this. Anwar is also willing to testify on this.”

Presently those items are marked as identification and not as evidence. When it is not marked as evidence the court or the judge should not give any weight to such admissability of the item or statements.

A trial-within-a-trial ( voir dire ) is where the judge conducts an inquiry into the admissibility of an item of evidence.  Normally it is done with regard to a confession but it can extend to the admissability of evidence.

DPP Nordin Hassan had applied for the items retrieved by former Bukit Aman Crime Scene Investigation head Amidon Anan, to be admitted as evidence.

Earlier, Amidon, 60, testified in the morning that he had retrieved those items from a D9 Serious Crime Division cell located on the 7th floor of the Kuala Lumpur police contingent headquarters.

Although Amidon did not reveal whom those items belonged to, another prosecution witness DSP Yahya Abdul Rahman testified that he instructed his subordinate officer to pass a toothbrush, toothpaste, soap and the towel to Anwar as they were standard issue items .

NONE Solicitor-general II Mohd Yusof Zainal Abiden said in order for the court to decide on the need for a trial-within-a-trial, the defence must prove there was threat, duress, and the accused was induced.

“If there is none of these elements that could be proven then the court should allow the admission of those items as evidence,” he said.

Karpal said those items were retrieved illegally and should not and cannot be admitted as evidence.

“The court should hear our application for a trial-within-a-trial,” he said.

Justice Mohamad Zabidin Mohd Diah, said he will hear submissions from both parties tomorrow.

Witness testifies he heard Anwar brushing teeth

In the afternoon, four policemen manning the lock-up where Anwar was held gave their testimony.

On of them, Mohd Azry Toyab, the 20th prosecution witness, said he was working on the morning of July 17, 2008, when Anwar was in the lock-up.

“An officer by the name of ACP Razali came to ask Anwar whether he wanted breakfast. I heard Anwar going to the toilet and heard him brushing his teeth,” Mohd Azry said, adding Anwar was released at about 8.10am on July 17.

Another witness, Nik Yusmadi Nik Ismail, the 18th prosecution witness, said when he reported for night shift duty on July 16, 2008, there was no one placed in the lock-up.

“At about 11.05pm on July 16, an OKT (Orang Kena Tuduh, the accused) was brought in. The person is ‘Datuk Seri Anwar Ibrahim’. Prior to this, the cell was empty,” he said, adding he handed Anwar the toothbrush, toothpaste, soap and towel.

There was a light moment in court when Yusmadi was asked to identify Anwar in court, he seemed to be looking high and low, and also got up from his seat in the witness stand.

The witness looked at Anwar sitting in the dock and smiled, and this was followed by laughter in the public gallery. Other witnesses who testified included Lance Corporal Mohd Jasni Jaafar, who related that the accused was alone in the cell.

All of them testified that they did not enter the cell nor disturb whatever was left in there.

Mohd Azry even went to the extent of noting in his pocket diary that he found two bath towels, a small towel, soap and toothbrush in the cell, which he claimed belonged to Anwar.

His pocket diary was also tendered as evidence.