COMMENT In the Court of Appeal on March 6, lead prosecutor Muhammad Shafee Abdullah made a series of false claims against the judgment given by High Court judge Mohamad Zabidin Mohd Diah (“the Judgment”), who freed Anwar Ibrahim on the Sodomy II charge on Jan 9, 2012.

The crux of Shafee’s submission was that Justice Zabidin had mistakenly thought that the individual plastic receptacles containing the DNA samples were tampered with when in fact it was only the plastic bag containing these individual receptacles that was cut  open.  

Shafee further claimed that based on this singular issue, the judge acquitted Anwar on the erroneous ground that the integrity of the DNA samples were compromised.

Shafee’s allegation of Justice Zabidin’s so-called misconception is completely unfounded.  The judge was not only well aware of the true facts, he in fact went at length to explain why tampering of the plastic bag by investigating officer Supt Jude Blacious Pereira had seriously damaged the credibility of the samples.

In Para 204 of the Judgment, Jusrtice Zabidin relates the prosecution evidence that all DNA samples were collected and put individually in plastic receptacles, labelled and sealed with the Kuala Lumpur Hospital seal.  

And these receptacles were then put in a tamper-proof Hospital Kual Lumpur plastic bag and heat sealed.

Justice Zabidin further said in Para 205 that the prosecution had claimed that despite the unauthorised opening of the plastic bag, the integrity of the samples was not compromised because the receptacles were individually sealed with the Hospital Kuala Lumpur seal.  

However, this prosecution claim was refuted by defence witness Professor Dr David Lawrence Wells ( left ), who after examining the sealed receptacles, said that the receptacles were not tamper proof, as the seal could be removed and re-sealed from the manner in which they were sealed and from the materials used as seals.

Judge Zabidin therefore concluded that with such tampering of the plastic bag, which was the only tamper-proof container, the integrity of the samples was gone.

DNA samples compromised

Apart from the tampering of the plastic bag, the other fatal flaw of the DNA samples pointed out by Justice dge Zabidin was the extraordinarily lengthy time lapse before the semen were extracted from complainant Mohd Saiful Bukhari Azlan Saiful’s body.

Quoting from the Australian experts, the judge said that it was near impossible to collect any specimen of value from which DNA could be extracted beyond 36 hours after sexual assault, hence the common practice of not collecting such samples.

However, to do so after 56 hours, as in this Saiful case, is unheard of. The problem was compounded when police officer Jude Pereira failed to have the samples frozen and air-dried as instructed, rendering the samples easy prey for bacterial attack and serious degradation that would surely have destroyed any trace of DNA.

In spite of all these adverse factors, the prosecution tendered a chemical report that described the DNA obtained from Saiful’s body to be in “pristine condition”. So, isn’t the prosecution asking the court to believe in something that does not seem to be remotely plausible?

Investigating officer’s conduct suspicious

Shafee said Pereira had followed the standard operating procedure, and that it was impossible for him to tamper with the DNA samples. However, neither he nor Pereira has satiated the court’s curiosity over the following puzzling issues:

  • Why did Peirera cut open the plastic bag on the ostensible reason of re-labelling the receptacles when these were already labelled, as the judge pointed out? What was the real motive for this?

 

  • Why didn’t he keep the plastic bag of samples in the freezer in the police station, as required by standard police procedure and as strictly instructed by Dr Siew of the Kuala Lumpur Hospital? Was it because keeping it in the police freezer would have involved protocol that would have deprived him of unrestrained access to them (for whatever purpose)?

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  • Why did he keep the samples in his office for more than 36 hours from early June 29 to the late evening of June 30, when he should have delivered them to the chemist in the first instance to avert inevitable degradation over such extended hours under room temperature?
    • These unanswered questions, together with the questionable fiddling of the samples, speak for themselves as to the integrity of the custodian of the sample as well as the credibility of the samples submitted for analysis by the chemist.

    When these gaping holes of the DNA samples, which is the only collaboration of Saiful’s solitary evidence, remain glaringly open for everyone to see, is there any point for prosecutor Shafee to keep on hammering on the point that both the DNA samples and chemical reports are beyond suspicion?

    Prosecutor Shafee also misdirected the court that the questionable integrity of DNA samples was the only leg that Justice Zabidin relied on to free Anwar.

    The truth is: Zabidin had also dealt with other issues, including that of “anal penile penetration”, which he described as “a critical ingredient of the charge”.

    No penile penetration

    On this issue, Shafee claimed that all the three doctors in Hospital Kuala Lumpur who examined Saiful said that there was penetration of Saiful’s rectum.

    This assertion is misleading.

    As pointed out by Justice Zabidin (Para 199), all the three doctors in their medical reports stated “no conclusive findings suggestive of penetration to the complainant’s anus”.

    They only opined later that there was penile penetration, but that was purely a regurgitation of chemist Seah’s report claiming she found in Saiful’s body presence of semen called “Male Y”, which the prosecution later claimed to belong to Anwar.

    But such kind of opinion by the three doctors are worthless, as correctly pointed out by Wells (Para 200), who said that these doctors “should confine their opinion based on their own medical observation on the complainant and not based on what was subsequently revealed from the analysis conducted by some other expert”.

    Another reason why the three doctors should not have followed another person’s opinion to conclude there was “anal penile penetration” is that ‘there are many other ways which any DNA could have found its way into the complainant’s anus.

    One of the ways is self-introduction by using a syringe or other manner, or perhaps a plastic instrument as testified by  Dr Mohamed Osman Abdul Hamid ( right ) of Pusrawi Hospital, as recorded in his medical report (Para 189, quoting Wells).  

    Osman was the first to have inspected Saiful’s anus by inserting a proctoscope and he reported that there was no tear or bleeding. He also recorded a statement from Saiful that a plastic object had been inserted into his anus.

    So, it is a fact that all the four doctors who have examined Saiful had reported no sign of penile penetration, which is a far cry from Shafee’s assertion in court that the doctors have reported “penetration in Saiful’s high and low rectum”.

    High Court judgment solid and unassailable

    Apart from the false presentation of Justice Zabidin’s judgment, Shafee has also childishly and unfairly played on rhetoric of the judgment when he pounced on the judge’s use of the words “100 percent certainty” to describe his lack of full confidence in the integrity of the DNA samples.

    Anyone who has read the judgment will realise that Justice Zabidi used this expression as a figure of speech, and not literally demanding for perfection from the prosecution.

    This is evident from Para 198, where Zabidin emphasised the importance of re-evaluating the entire evidence collection, handling and analysing process of those samples so as to see whether the prosecution had proven its case beyond reasonable doubt.

    This statement of Justice Zabidin indicates conclusively that he has only asked of the prosecution to prove beyond reasonable doubt – not 100 percent certainty as claimed by Shafee.

    It is hence a dishonest distortion of the Judgment on the part of Shafee to claim that Justice Zabidin had acquitted Anwar because of the unusually high burden of proof the judge demanded, as exemplified by his “100 percent certainty” remark.

    Anyone who has read Justice Zabidi’s judgment would be impressed by his tempered and balanced presentation of the facts and legal arguments from both protagonists.  

    In fact, the evidence produced by the prosecution is so fundamentally deficient and defective that no judge would even hesitate to throw the case out at the prima facie stage, not to mention entertaining the thought of a conviction.

    As for prosecutor Shafee, what substance has he produced to overturn such a solid and obviously inevitable judgment, other than his vocal but groundless rhetoric?

    KIM QUEK is a retired accountant and author of the banned book ‘The March to Putrajaya’.