G Sara Lily, the mother of a missing police detainee, was today allowed by the Kuala Lumpur Magistrate's Court to access detailed notes of a DNA report.

The report had not shown a match between her and a body lying in the University Malaya Medical Centre mortuary, which she claims is that of her son G Francis Udayappan.

Magistrate Nazran Mohd Sham, acting as coroner, said he recognised the centrality of the DNA report, including the numerical data contained in the electropherograms, to determine if the body was that of Francis.

Nazran added that he saw no basis to categorise the report as a 'privileged document' as there were no grounds to fear that its disclosure 'would prejudice the evidence or witnesses' in the proceedings.

"Scrutinising the DNA findings is inevitable (in this proceedings)," he said, when stating his reasons for the decision.

No access

His ruling on the matter unraveled at least one knot that had threatened to form last week on whether Sara Lily, through her counsel M Puravelan, could access the notes belonging to DNA expert Dr Chang Yuet Meng.

Deputy Public Prosecutor Ishak Mohd Yusoff, representing the AG's Chambers, had said that papers relating to the summary DNA analysis were confidential and open only to the AG's Chambers and coroner.

"These are the chemist's case notes and thus are privileged documents," he had said.

This morning, Ishak argued further that when the High Court ruled last year that Sara Lily's lawyers could question witnesses and examine evidence in the inquest, it pertained to evidence tendered in court.

Unlike the summarised DNA report, the electropherogram charts detailing Chang's analysis of DNA samples purportedly belonging to Francis had not been tendered in court.

"The High Court did not give the right to have access to documents which were not tendered in court.

"Therefore, the ruling of (High Court Judge) Mokhtaruddin Baki only gives the right to inspect documents which were tendered and marked as exhibits but not documents which were not tendered," said Ishak.

He also argued that Section 161 of the Evidence Act gave the right of inspection of witnesses' documents only in so far as these were referred to by a witness or used to refresh the witness' memory.

"In the current inquest, the witness did not at any time refer to the documents in issue," he said.

Divisible privilege

However, Puravelan noted that it was not the chemist who was claiming privilege to her notes which she herself had produced but the DPP.

"In this instance, Dr Chang has produced a report. She had never claimed that this report is privileged. Now the DPP is saying the findings are not privileged but the working (papers) are.

"How does one apply the concept of privilege in a divisible manner which is one whole exercise? A new concept of divisible privilege is now being created and this court is being asked to lend credence to this," he added.

Puravelan also stressed that he was not seeking to challenge the credibility or expertise of Chang, but rather to scrutinise weaknesses, such as the inevitable contamination that occur to DNA specimens before analysis.

"The DNA profiling will be one of the criteria to determine the identity of the body. The summary is but the findings of the tests done on the sample. The tests are not infallible," he said.

"They are subject to weaknesses. The validity of the findings will only be known if the tests, in this case the electropherograms, can withstand scrutiny. It is already known that the sample was degraded and contaminated.

"An examination of the electropherograms will show the level of contamination amongst other matters, like interpretation of the tracing data," he added.

Nazran fixed Oct 19 for the next hearing.