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Gopal: No reason for Dr Osman to side with Anwar

Hafiz Yatim

Published
Modified 7 Nov 2014, 2:32 am

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7.00pm: The hearing will continue tomorrow at 3pm with Gopal's submission.

6.40pm: Moving to Pusrawi Hospital’s Dr Osman, Gopal says since the doctor is not here to defend himself, he (Gopal) must defend him.

"The country invited him to be a doctor as he is a foreigner. He returned home after finishing service. He had no motive to side with the appellant (Anwar).

"His notes show that a plastic instrument had been inserted (into Saiful’s anus)," he says.

6.25pm: Gopal ( right ) says the provision in India's 'Tandoor' case, as cited by Shafee, is different and should not be applied here.

6.20pm: Gopal cites that condominium owner Hasanuddin could not be called as he had been harassed.

He says Anwar had denied the sodomy incident occurred.

"Our defence witnesses cannot come forward as they were scuttled," he adds.

Initially, Anwar submitted a list of 13 alibi witness but none were called.

6.15pm: The defence counsel says the principle only applies to drug cases and not a case like this.

In this case, there is no presumption against Anwar either statutory or common law and hence such assertions are incorrect.

Gopal refers to Saiful's testimony of "tanpa kerelaan", which means without consent.

"It is not right to give a different connotation," he adds.

6.10pm: Gopal is now submitting on adverse inference that could be inferred on Anwar, if alibi witnesses are not called.

6.03pm: Sitting resumes, with Gopal reading out Saiful's evidence on the KY jelly.

Saiful, he says, offered the gel as an exhibit on June 28 but DSP Jude declined to take it. Jude only seized it in his office the next day.

"It is highly improbable that the item is refused if Saiful had handed it."

Most of Anwar's children and grandchildren are in the court complex, the grandchildren just outside the courtroom.

5.29pm: Gopal says Saiful has the courage to meet the DPM not only in his office but also at the home of the deputy prime minister.

Shafee asks for a break to reply to what was submitted by Gopal.

The judge allows a 20-minute break for prayers.

5.26pm: Gopal says the underwear seized was a Levi's brand.

"If this is believable, then fairies also exist," he says when questioning Shafee's submission and asks if it was a "Brioni or a brownie" suit.

Shafee stood up to reply that the prosecution listened to the transcript again, and it was Brioni and it "sounded like Briyani".

"Yes," Gopal quips, "But the Brioni suit costs more than Briyani".

Gopal says even Saiful's underwear had a label but not the pants, which was alleged to be Brioni.

5.20pm: Gopal now turns to the evidence of special treatment and Brioni suit given to Saiful by Anwar.

"I think your lordships could not afford it. It is a 16,000 dollar suit," he jokes.

He says Saiful produced the pants in court but there is no label.

"Surely, if he sent it to a tailor there would be a label," he says, adding there is no evidence of the Brioni suit submitted.

4.57pm: Gopal is now submitting that the evidence given by Saiful on past incidents should not be accepted.

He says the prosecution tried to show a relationship and that the complainant and appellant habitually did it but this should not be accepted.

4.53am: Gopal questions the serving of coffee and curry puffs after the incident. He says Saiful testified that the door was locked so how can curry puffs be delivered.

4.47pm: Gopal says Saiful is not an ordinary boy as he tried to illicit information from then DPP Farah Azlina Abdul Latif.

4.45pm: Anwar's supporters continue to brave the heavy rain, seeking shelter under a makeshift tent.

PKR secretary-general Rafizi Ramli tells the supporters that Anwar might be acquitted and the supporters are praying.

4.40pm: Gopal says Saiful even seduced a member of the prosecution team. He was reading Anwar's statement from the dock.

4.30pm: This, Gopal says, demolishes the prosecution's case.

"Without the carpet, the prosecution cannot prove (its case)."

Gopal now questions Saiful's credibility in saying he idolises Anwar when in fact, he (Saiful) hates Anwar.

The former federal court judge says there is evidence by Najwan Halimi.

"Saiful usually uploads images of himself with leaders and in the emblem of BN and a photo of Anwar as 'pemimpin munafik' (hypocrite leader)," he reads Najwan's testimony.

Gopal says Najwan was shocked to see Saiful working for Anwar.

4.24pm: Ram points out that the judge visited the site, but Justice Arifin states that the site visit was not recorded.

Gopal reiterates that there is no evidence on record that the carpet moved, when asked repeatedly by the judges.

"Shafee was just giving evidence from the bar," he says.

In his submissions, the lead prosecutor claimed that the carpet was moved to the other unit.

4.21pm: Gopal says the act of sodomy did not take place as the incident was alleged to have happened on a carpet in unit 11-5-1 but the carpet was found in the other unit.

"Based on this, the act of sodomy never took place," he adds.

4.13pm: Gopal says a China silk carpet was seized from unit 11-5-2 by police forensic officer Supt Amidon Anan.

He says the police also seized a strand of hair at 11-5-1 but the carpet was seized at 11-5-2.

Noting that the prosecutor claimed that the carpet was moved, Gopal says, "But I do not believe in flying carpets."

"There is no evidence that the carpet was moved. The owner of the condominium Hasanuddin was not called," he adds.

Justice Abdull Hamid asks was Saiful shown the carpet, and Gopal replies he did identify the carpet.

4.06pm: Lead defence counsel Gopal Sri Ram says the prosecution's case of past incidences is based on probability.

Now he refers to Saiful's police report, where he says the last incident happened at 3.30pm at the Desa Damansara condominium unit 11-1-5.

He says the description of the offence in Saiful's evidence is that he was forced to take position on a carpet.

"The act was performed on a carpet and that is the prosecution's case," he adds.

3.55pm: Gobind now refers to DSP Jude's false testimony at Suhakam and also the Teoh Beng Hock case over the unidentified DNA sample on the deceased's belt.

The investigating officer in Teoh's case, he says, was pro-active in calling all the MACC people to give their samples to exclude them.

"The IO (investigating officer) in Anwar's case did not do that," he adds.

3.43pm: Gobind says there is something wrong in this case that Saiful was sodomised by one person as the evidence suggests two people had sodomised him.

This is because we have this allele 18. On that score alone, Anwar should be acquitted.

Even Shafee goes on to explain that the allele 18 could be Dr Osman and this is as if he is supporting the defence contention, says Gobind.

3.32pm: Gobind ( right ) cites the Hanif Basree case, where Justice Abdull Hamid Embong was the trial judge from the High Court.

He says this case is similar as there was also evidence of the accused DNA and there was another person's DNA in it.

"Evidence exists that there was an 18 allele (another person)."

Hanif, an engineer, was acquitted of murdering Norita Samsuddin because of the presence of another person's semen or DNA.

Gobind urges the court to reject the evidence from the lock-up and question how did "Male Y" get to those exhibits.

"Prosecution has failed to prove that Male Y is the appellant."

3.25pm: Gobind says that there were attempts to connect 'Male Y' to Anwar.

The High Court held that since Anwar was the sole occupant of the cell, Male Y must be him, he says.

He adds that somebody else could have access to those items.

"It is a finding based on sole occupancy, but if there is a person with direct access to the cell, then how," he asks.

3.15pm: Also in the public gallery is former Bersih chairperson Ambiga Sreenevasan.

Sangeet suggests that the person who possessed the “allele 18" could be the perpetrator.

She concludes that the trial judge was right in initially not admitting the three items retrieved from the cell i.e. the mineral water bottle, toothbrush and towel.

"Without these items there is no link to Anwar and this leads to the question who is 'Male Y'," she says.

3.00pm: Sangeet says the police became desperate when Anwar did not allow his specimen to be taken and this led them to possibly use questionable means.

Also in court is Kuala Krai MP Dr Mohd Hatta Ramli.

2.45pm: Sangeet says evidence revealed there is a CCTV camera in the cell but it was not working.

She says the court should reject the circumstantial evidence and accept the direct evidence.

Sangeet says there were several policemen manning the cell who were not called as witnesses and suggested those samples could come from the two (who were not called).

She adds the sample were obtained through unfair means.

2.30pm: Now Sangeet Kaur Deo is submitting.

She says that it is not Anwar's DNA which is in Saiful's rectum but that of "Male Y".

Sangeet ( right ) also argues that the police did not see Anwar use the given toothbrush.

The defence lawyer says the prosecution has referred to a police witness' testimony that Anwar brought a mineral water bottle to the cell.

2.26pm: Hearing continues.

Also present in court is former PKR deputy president Senator Syed Husin Ali and Kelana Jaya MP Wong Chen.

1.05pm: Ram says there are serious doubts and this entitled Anwar to an acquittal and discharge.

The court breaks for lunch.

1.00pm: Ram says there is a real possibility that the samples have been tampered with and these could be different samples.

One of the samples taken from Saiful shows degradation but not the others and this creates doubt, he adds.

"Penetration did not take place in this case, how could the samples be found up the rectum?" he asks.

Saiful, he says, is not a convincing witness as described by the Court of Appeal.

12.55pm: Ram says there is reason to doubt or disbelief DSP Jude's testimony as he had been found to be a "liar" in different proceedings.

Secondly, he says, the samples are off different character and thirdly Jude ( right ) cut open the big plastic bag P27.

"How then do we explain these samples are clearly different. He was the custodian of criminal samples to this case.

"Anwar is entitled to a fair investigation and this has not been done," he adds.

Ram now cites Dr Thomas Hoogland's evidence where there is evidence to say Anwar cannot perform the sexual act as claimed by Saiful.

Anwar had a back surgery in 2004, after his acquittal with regard to his charge.

Ram says Hoogland's evidence carries great weight.

In conclusion, the defence counsel says this case is “riddled with doubt”.

"It is not a coincidence for Saiful to meet (Prime Minister) Najib (Abdul Razak), and in contrasting with the Tandoor case the suspect politician did not meet the prime minister of India."

12.35pm: Ram questions (chemist) Seah's qualification. In her testimony, she said she has done DNA testing since 1994, but her PHD in criminal testing was only obtained in 2000.

He says the evidence of the government chemists ought not to have been called at the High Court.

He then talks about tampering and the break in chain of evidence.

Ram says there was no reason for DSP Jude to open the big plastic bag containing the HKL samples.

"He was there when the physical examination was done on Saiful and if he wants to make sure they are labelled properly, then he should have asked the HKL doctor, Dr Siew Sheue Feng, to label it with B1 and B2 and so on.

"He should not have opened the plastic bag as this created doubt," he adds.

Ram further reads Jude's testimony during the Suhakam hearing on the arrest of five lawyers where Shafee, who was then chairing the panel, found the police officer not to be a credible witness.

He then reads Jude's testimony in court when cross-examined by the late Karpal Singh (Anwar's former lead counsel) and pointed out that the apex court should be careful in accepting the police officer's evidence.

12.31pm: Now Ram tries to defend forensic expert Dr Brian McDonald's ( left ) reputation following the Court of Appeal describing him as an "armchair expert".

Shafee had also noted earlier that McDonald's testimony was not even accepted in his own country Australia.

12.20pm: Ram warns that chemist guidelines should be followed and a copy should be made available to the defence.

The effect of not giving the guidelines will result in people being convicted of murder or other crimes just because the department does not want to give the guidelines or they (chemists) do not follow them, he adds.

12.12pm: Ram notes that what the HKL doctors had labelled on the sample is different.

This is because DSP Jude had relabelled them when he cut open the big plastic bag containing the HKL samples at his office.

Justice Abdull Hamid asks based on (chemist) Seah's analysis and what the HKL doctors testified that there could be penetration, could it have been hearsay evidence.

Ram agrees.

This reinforces what we say that they cannot be the same samples, as Saiful was not sodomised, adds the lawyer.

12.07pm: Hence, Ram says there is the question whether actual penetration took place.

At this point, DAP's Kepong MP Dr Tan Seng Giaw walks into the courtroom, approaches the dock and shakes hand with Anwar before taking his seat.

12 noon: Now, Ram submits on the issue of penetration.

He says there is no medical evidence to suggest previous encounters.

He (Shafee) was just giving a statement from the bar, says the defence lawyer.

"Previous encounter should not be taken into consideration that penetration did take place," he adds.

What is important, he says, is that four doctors (one from Pusrawi) and three from HKL said there was no penetration.

Shafee had pointed to Saiful's testimony that Anwar ejaculated inside his anus "as always".

11.52am: Ram ( right ) says what is shocking is that the prosecutor asked Anwar to take his own DNA sample to prove his defence.

He argues that it is for the prosecution to prove its case beyond reasonable doubt and not put the burden on the defence.

"This is basic law, as it is incumbent for the prosecution to prove its case," he adds.

Shafee had suggested on Tuesday that Anwar take his DNA sample at an international DNA centre to prove he is not involved.

11.13am: Justice Arifin calls for short break. Hearing to continue at 11.30am.

11.05am: Ram says there is no doubt the prosecution concedes there is degradation in the samples and there is no degradation on the intimate swab.

Ram questions how could the sample be in pristine condition when they are not stored in the freezer as recommended.

He says this shows that the sample is not the same sample and could have been compromised.

The point which the prosecution missed is that there must be degradation following the samples are taken after 56 hours and not kept in the required submission.

11am: He says that the defence does not dispute that DNA can be retained for thousands of years as with dinosaurs, which is well documented.

"But what is in question is that this sample is not found in the dinosaur’s anus," he adds.

10.56am: Ram says degradation is a major concern in this case.

"The sample is expected to deteriorate and Seah (the chemist) agreed.

"Seah's evidence is unreliable, first she says the sample showed no signs of degradation but when asked further she agreed it should show signs," he says.

10.43am: Justice Suriyadi asks if the 18 allele is foreign that does not extinguish the presence of Anwar in those samples i.e. from the lock-up and Saiful but Ram emphasised that what it can also mean is that Anwar was not even there (in the condominium).

Ram says the chemist Seah ( right ) also agreed there was no degradation in the sample although it was taken after 56 hours.

He points out that she did not use the word "pristine" but agreed there was no degradation in the samples.

However, he adds, she agrees degradation will happen.

10.30am: Ram says there cannot be speculation and assumption.

He says the contamination or the conclusion that one can infer is that the samples had been compromised.

10.20am: Ram says the 18 allele appeared on the Good Morning towel, toothbrush and mineral water bottle.

He adds that a re-amplification should be done to explain the presence of the 18 allele.

This is similar to the Teoh Beng Hock case where a foreign allele was found on the deceased’s belt.

Ram emphasised it is for the prosecution to explain why there is the presence of the 18 allele.

"It also appeared in the B9 high rectal swab and the lock-up from the Good Morning towel".

Prosecution explained that it probably came from Pusrawi Hospital’s Dr Mohd Osman Abdul Hamid ( right ) but there is no evidence for this.

Ram argues that the prosecution cannot say it is Dr Osman but can term it as probable.

"But the 18 allele also appeared in the lock-up. Did Dr Osman go to the lock-up. This shows the said samples must come from a third party," Ram says.

He says the link to Dr Osman cannot be proven and it is dangerous to speculate.

"There is no evidence to support the prosecution's argument. The burden is on the prosecution to prove the case beyond reasonable doubt," he adds.

10.10am: Defence lawyer Ram Karpal refers to the "Good Morning" towel and there is also the presence of an 18 allele.

The chemist (Nor Aidora Saedon) says the 18 allele is a stutter.

"However, based on the Chemistry Department guidelines the 18 allele is not a stutter, and it should be reported.”

Reading from Nor Aidora's testimony, the chemist later agreed that she went against her own guidelines.

"Had the Chemistry Department follow the guidelines, we would have a report of contamination.

"There can be no doubt the presence of a contaminor in the alleged 18 allele cannot be denied."

10am: Ram says government chemist Dr Seah Lay Hong said the 18 allele could be a sporadic contamination. It could have dropped from the same loci and that was why she ignored it.

"B9 (the high rectal swab) could have been contaminated and she says possibly," the defence lawyer said.

9.38am: Defence lawyer Ram Karpal is first from the defence team to address the court in its final reply.

He addresses the samples taken from Saiful Bukhari Azlan's rectum.

9.32am: Shafee complains that he has been directed by the attorney-general to raise the issue in court over what Anwar had said which he considers as serious contempt.

He cites the article by Malaysiakini , ' Go back to law school, Anwar tells Shafee '. Shafee cites the last two paragraphs of the article, which he says Anwar had made it out as if the government is seeking to end his political career.

Shafee ( right ) says the AG wants him to bring this matter up in court. He complains that the trial judge in the High Court was “scandalised” and now here, the Federal Court is also “scandalised”.

Shafee wants Anwar to clarify in court as to what he had said was true or otherwise. He also points to a Malay Mail Online article but did not cite anything from it.

Sri Ram asks whether the court wants the defence to address the issue. However, Justice Arifin says the court will instead proceed with the trial.

9.27am: Court in session with Chief Justice Arifin Zakaria presiding.

Anwar, while getting into the dock, flashes a smile at the gallery where journalists are sitting.

9.16am: Defence lawyer Ram Karpal enters the courtroom with his mother, Gurmit Kaur.

Gurmit is the late Karpal's wife and she is seated next to Wan Azizah.

9am: The courtroom is already packed with people.

Seen sitting in the public gallery, which can accommodate about 70 people, is Selangor exco and Seri Delima assemblyperson Nik Nazmi Nik Ahmad, who is also PKR Youth chief, Wangsa Maju MP Dr Tan Kee Kwong, and former deputy housing and local government minister Lajim Ukin, who is from Sabah.

Lead prosecutor Muhammad Shafee Abdullah arrives in court.

8.45am: Opposition Leader Anwar Ibrahim arrives with his wife and PKR president Dr Wan Azizah Wan Ismail as well as two daughters.

He is having a discussion with defence lawyers Gopal Sri Ram and R Sivarasa. The court is getting ready to start.

8.15am: Journalists and the public are allowed to enter the Palace of Justice in Putrajaya, where the court hearing is held. The process is slow as security is extremely tight. Police personnel are scanning each and everyone entering the building.

PKR supporters who can get into the building are seen milling around the court complex. Police presence is heavy in the area.

About 100 other supporters have gathered outside the court complex.

8am: Opposition Leader Anwar Ibrahim's Sodomy II appeal is expected to end today at the Federal Court with his defence team replying to the points raised by government-appointed prosecutor Muhammad Shafee Abdullah.

Originally fixed for two days, the hearing of Anwar's appeal in the country’s highest court is entering its seventh day today, with the defence and prosecution having taken three days each for their submissions.

Despite the absence of the late Karpal Singh (right), who played a critical role in the High Court trial as well as the hearing of the prosecution's appeal at the Court of Appeal, his legacy looms large as three of his children - all lawyers - are expected to make their arguments in court today.

Ram Karpal, who replaced his father as Bukit Gelugor parliamentarian, is expected to reply first on the DNA evidence raised by the prosecution.

This is followed by Karpal's only daughter, Sangeet Kaur Deo, on the three items allegedly containing Anwar's DNA which was retrieved from the Kuala Lumpur police contingent lock-up, and finally Gobind Singh Deo, who is also Puchong MP.

Karpal, 73, died in a tragic road accident on April 17 in Perak.

Padang Serai MP N Surendran will reply on Shafee’s points dismissing political conspiracy relating to Mohd Saiful Bukhari Azlan's meeting with then deputy prime minister Najib Abdul Razak - two days before the alleged incident.

Finally, former Federal Court judge Gopal Sri Ram ( left ), who is leading the defence team, will finish of his submission on Saiful's credibility as well as the overall defence case.

With this, the appeal by the opposition leader to set aside the conviction and five-year prison sentence will come to a close. Anwar was acquitted by the High Court in 2012 but this was overturned by the Court of Appeals in March this year.

It is worth mentioning that following the extended hearing of the appeal at the Federal Court, several cases had been postponed and among them is the appeal by former Selangor menteri besar Dr Mohd Khir Toyo, who was convicted and sentenced to one-year jail by the Shah Alam High Court for corruption, a decision which was upheld at the Court of Appeals.

Ironically, Shafee is representing Khir's defence in the Federal Court appeal, which was initially to begin today.

The biggest question is whether the five-member bench led by Chief Justice Arifin Zakaria, will follow the controversial Court of Appeal’s example in delivering its verdict immediately after the submissions or reserve its judgment to another day.

Should the Federal Court uphold the verdict on Anwar, Shafee, who is leading the prosecution team, will then submit on increasing the five-year jail term.

Malaysiakini is covering the hearing live.

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