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Anwar Ibrahim Sodomy II – The Recorded Truth – 21 Mac 2011 March 23, 2011

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Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Pihak-pihak:
PP:    Semua hadir
PB:    KS, SN, Ram Karpal, Datuk Param Cumaraswamy, Marissa
WB:    Zambri Idrus (for complainant)
AI hadir

[9.22 a.m.]

MY:    Kes ditetapkan untuk hujahan balas oleh En. Karpal Singh. Saya dimaklumkan bahawa Encik Karpal sudah sampai dan ada di luar.

PC:    My Lord, our apologies. Mr. Karpal, he supposes to submit, and he is outside.

KS:    First, my apologies because late.

YA:    Proceed.

KS:     YA, submissions on behalf of DSAI (review of ruling and application for direction by the court for DSAI to provide samples for DNA profiling.

There is no dispute that the ruling made during the trial within a trial can be reviewed by the court. This has been held in Public Prosecutor v Mustaffa bin Ahmad [1986] 1 MLJ 302 [Tab 1] as far back as 9.1.77 even before R v Watson [1980] 2 AER 293 [Tab 2] decided by the English Court of Appeal (Criminal

Division) on 12.2.80.

In Mustaffa bin Ahmad, Ibrahim J ruled the cautioned statement in that case which was admitted in the TWT was ruled inadmissible when the learned judge, after hearing the evidence as a whole, was not sure about the inducement perpetrated on the accused in that case. However, there was compelling evidence which caused the learned judge to review his ruling, unlike in our case. A 5-man bench of Federal Court upheld his decision on 23.1.78. However, no written judgment was delivered (see Editorial Note at page 303).

The parameters as to the position where a ruling in a TWT can be reviewed in the light of subsequent evidence in the general trial are set out in Watson in the following terms:-

‘Because a judge retains control over the evidence to be submitted to the jury throughout a trial, he is not precluded, by the fact that he has already ruled at a trial within a trial in the jury’s absence that a written statement by the accused is admissible in evidence as being voluntary, from reconsidering that ruling at a later stage of the trial if further evidence emerges which is relevant to the voluntary character of the statement, and from ruling in the light of that evidence that the statement is not admissible.’

In the course of his judgment, Cummins- Bruce LJ had occasion to say at page 295:-

‘It is the duty of the judge to exclude from the jury’s consideration evidence which is inadmissible. In the case of a written statement, made or signed by the accused, the judge must be satisfied that the prosecution have proved that the contested statement was voluntary, before allowing the jury to decide whether to act on it. Experience has shown that where the question of the voluntary character of a statement has been investigated and decided at a trial within a trial. It is only very rare and unusual case that further evidence later emerges which may cause the judge to reconsider the question whether he is still satisfied that the statement was voluntary and admissible. But where there is such further evidence the judge has power to consider the relevance of the admissibility of evidence on which he has already ruled.’

Although jury trials have been abolished in the country since 17.2.95, a judge sitting alone now acts both as judge and jury as aptly set out by the Federal Court in Sia Soon Suan v Public Prosecutor [1966] I MLJ 116 at page 118 [Tab 3] as follows:-

‘Irrespective of whether this court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else. This is axiomatic. The directions that we give a jury are no less to be hearkened to by ourselves.’

It is trite that a TWT is held for the purpose of admission of evidence to determine the admissibility of evidence to include in the main trial. It follows that all evidence available by the prosecution to rebut assertions made by an accused must be given in that mini trial. This evidence cannot be withheld for the purpose of a review subsequent to a ruling made by the court. All available evidence has to be investigated and decided at a trial within a trial. It is only in very rare and unusual cases if further evidence later emerges (which must be evidence not available during the TWT) that may cause a judge to review his earlier ruling. The prosecution cannot keep up its sleeve evidence available during the TWT and introduce it after a ruling has been made by court for review. This would be the abuse of process by the prosecution and itself may amount to deception on the court. The accused is constitutionally entitled to a fair trial and fair methods of prosecution and not after thoughts and unscrupulous means to upset a ruling already made by court.

In Tan Too Kia v PP [1980] 2 MLJ 187 [Tab 4], a decision of the Federal Court, an Inspector had specifically been identified at the TWT as one of the persons who had assaulted the accused. The Federal Court held that the inspector ought to have been called by the prosecution in rebuttal in the TWT to contradict the accused. In his judgment, Suffian LP, at page 188, says:-

‘We are of the opinion that this failure by Mr. Karpal Singh was not fatal. The voluntariness of the statement was not in issue when Inspector Lias was giving evidence earlier in the general trial. It came into issue only during the trial within a trial. As the Inspector was specifically identified at the trial within a trial as one of the persons who had assaulted the accused, he should have been called by the prosecution to contradict the accused. It would have been very easy for the prosecution to call the Inspector because he had been identified and was available.’

The TWT was conducted by the court for the purpose of determining whether there was sufficient material for the court to exercise its discretion to exclude the DNA profiling from the Good Morning towel, the toothbrush and the mineral water bottle seized by the police from the lock up at the IPK, KL where

DSAI had been detained overnight from 16.7.08 to 17.7.08.

Although in the TWT, DSAI adverted to the role of Taufik and Supt Jude Perreira, the prosecution elected only to call Taufik in rebuttal in TWT.

Taufik attempted to produce a Photostat copy of the warrant of arrest which was only marked as an ID and, therefore could not be considered as evidence in the TWT. A Photostat copy of a document is not admissible as evidence in a court of law. It was in the TWT that primary evidence of the document ought to have been given if the original record had been lost or destroyed.

In KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627 [Tab 5], the Supreme Court had occasion to hold:-

‘When documentary evidence is tendered, primary evidence of the said document must be adduced except if it can be shown that the original record had been lost or destroyed. The burden of proving that the record book had been lost or destroyed lies on the party seeking to adduce secondary evidence of the contents of the record book’.

The prosecution cannot, by producing the original warrant of arrest in the main trial, now, cure the infirmity. It is in evidence that 3 copies of the warrant of arrest were in the possession of Jude Perreira. The evidence of the warrant of arrest was available during the TWT.

Even Supt Jude Perreira whose role was adverted to by DSAI during the TWT, chose not to take the stand despite having had the opportunity to have produced the original copy of the warrant of arrest in the TWT.

It was during the TWT that Supt. Jude Perreira should have testified. It would be ridiculous and unacceptable lawfully for the court to accept his evidence in the general trial for the purpose of rebutting DSAI’s evidence in TWT that the DNA profiling from the Good Morning towel, toothbrush and mineral water bottle had been obtained by unfair means and his arrest had been procured unlawfully.

In fact, Jude’s evidence in the general trial confirms that there had been non-compliance with Rule 20 of the lock-up Rules, 1953 in that DSAI, after his arrest on 16.7.08, had not been placed in the lock-up from 6pm to 6am the following day. The provisions of Rule 20 are mandatory. In KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627, the Federal Court had occasion to hold the interrogation ranging into the early hours of the morning of an accused was in breach of Rule 20 of the Lock Up Rules (see also PP v Lee Chee Meng & Anor [1991] I MLJ 226 [Tab 6]).

If this was the position in our case, which it was, then clearly, DSAI’s being taken to the HKL in breach of Rule 20 reflected unfair means and unfair methods being employed by the police to obtain the DNA profiling from the items set out herein before. The position is further compounded by the evidence of Supt. Jude Perreira in the general trial that he did not direct police personnel in charge of the lock up not to touch the said items despite the police personnel in the general trial before the TWT, clearly saying that him had done so.

So the position come to this, Supt. Jude and his evidence on oath in the main trial support the defence case that unfair methods and unfair means had been used by the police to obtain DNA profiling from the items set out herein before.

From the ruling made by the court to exclude the items, it is clear it was based on unfair means and unfair methods employed by the police meaning it was by trick and deception that the police attempted to introduce the DNA evidence.

In any event from the evidence of Supt. Taufik given in the TWT and the general trial, the ground of arrest could not have been given by him in the Segambut as this is, clearly, contradicted by the evidence of SN Nair and DSAI. The question of challenging evidence given in the main trial by Supt Taufek and Jude Perreira does not arise. It was assertion made under oath by DSAI that his arrest was unlawful and unfair methods, unfair means had been used to obtain his DNA profiling in the TWT stood unchallenged by the prosecution by leading lawful evidence in rebuttal of those assertion. In fact, an adverse inference should be drawn by the court against the prosecution for not having done so on the authorities of Dato’ Seri Anwar Ibrahim v Dato’ Seri Dr. Mahathir Mohamad [2010] 3 MLJ 174 at 189 [tab 7], a decision of the Federal Court handed down by Alauddin bin Dato’ Mohd Sheriff PCA which after reviewing all previous authorities on the issue, said:-

‘My respectful view is that the revocation letter by itself to a certain extent that created an impression that the formality of advising the Yang di-Pertua Agong was not done by the first respondent. However looking at the affidavits filed in support of the respondent’s application, there is more than sufficient evidence to show that the formality was done. We have the affidavit evidence of Hj. Jaapar who had affirmed that YDPA had accepted the decision and the advice of the first respondent pertaining to the revocation of the first appellant. The appellant did not contradict the said evidence. It is a well settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of his opponent to materially contradict it is usually treated as an admission by him of the fact so asserted (see Ng Hee Thong & Anor v Public Bank Sdn Bhd [2000] 2 MLJ 29; Alloy Automotive Sdn. Bhd v Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382; Overseas Investment Pte. Ltd v Anthony William O’Brien & Anor [1988] 3 MLJ 332). (This principle equally applies to oral evidence given in court like the one in the nature of TWT).

With respect, we agree fully with the findings of the Court of Appeal as mentioned above.’

The submission of the learned DPP that Goi Ching Ang v PP [1999] 1 MLJ 507 [Tab 8] related to a section 27 information only is misconceived. The principle in Goi Ching Ang enunciated by a strong 5 man bench of the Federal Court, after adverting to various authorities in the Commonwealth including Noor Mohamed v R [1949] AC 182, Kuruma Son of Kaniu v R [1955] 1 All ER 236 and R v Sang [1980] AC 402, mentioned at page 526, although not included in the cases referred to at pages 511-511 is set out in absolute terms with regard to discretion of a court to exclude evidence obtained by unfair means and unfair methods as follows at page 508:-

‘There is a vested discretion in a trial judge to exclude evidence which is prejudicial to an accused even though the said evidence may be technically admissibility. Evidence obtained in an oppressive manner by force or against the wishes of an accused person or  by trick or by conduct of which the policy ought to take advantage, would operate unfairly against the accused and should in the discretion of the court be rejected for admission.’

This principle is of general application and nowhere in the judgment did the Federal Court say it was restricted only to sec 27 information.

Any attempt to dilute the impact of the principles referred to above is a disservice to the Federal Court.

The attempt by the learned DPP to import English law by virtue of section 5 of the Criminal Procedure Court which reads:-

‘5.    Laws of England when applicable.
As regards matters of criminal procedure for which no special provision has been made by this code or by any other law for the time being in force the law relating to criminal procedure for the time being in force in England shall be applied so far as the same shall not conflict or be inconsistent with this Code and can be made auxiliary thereto.’ is misconceived.
What this section imports and implies is where there is a lacuna in procedure, then this section can be availed of, and not where the law relates to evidence. Therefore, section 5 of the CPC cannot import section 62 of the Police and Criminal Evidence Act 1984, which concerns evidence, similar to our Evidence Act 1950.

In PP v Sanassi [1970] 2 MLJ 198 [Tab 9] at 201, Sharma J, with regard to section 5 of the Straits Settlement Criminal Procedure Court (in exact terms with section 5 of the CPC), had this to say:-

‘It is entirely a matter for the legislature to decide whether the procedure of the courts in this country, which is now sovereign and independent, should depend upon a foreign enactment and whether any amendment made to its own laws by a foreign Government should still continue to remain binding on us who have a supreme legislature of our own. I say so with some emphasis because most of our present law graduates are locally qualified and they should not generally be concerned with how the Parliament of England prescribes a procedure granting a right to the accused to make a statement from the dock or how and why such a right is modified or taken away by that Parliament.’

In fact, the Parliament has passed the Deoxyribonucleic Acid (DNA) Identification Act, 2009 [Tab 10] to which Royal assent was given on 19.08.09.

However the Act has yet to be brought into force.

This court cannot through judicial activism, direct DSAI to give samples for DNA profiling. In any event, section 62 of PACE only provides for the police to take intimate samples with safeguards, including consent to be given by the suspect. Section 62 does not empower the court to direct an accused person in an ongoing trial to give samples for DNA purposes.

Section 165 of Evidence Act limits judicial intervention in a trial. Of course, the unprecedented application for YA to direct DSAI to give samples for DNA profiling is unheard of and unprecedented in the Commonwealth and perhaps elsewhere. Judicial activism has its limits.

In Lim Chin Poh v PP [1969] 2 MLJ 159 [Tab 11], the court held:-

‘it is desirable that the district judges and magistrates should bear in mind that the first and most important thing for the administration of the criminal law is that it should appear that the accused is having a fair trial and that he should not be left with any sense of injustice and certainly not on the ground that the trial judge was prejudiced against him. Where the prosecution and the defence are both represented by counsel, as they were in this case, the trial judge should refrain from intervening unless it is absolutely necessary.’

In Teng Boon How v PR [1993] 3 MLJ 553 [Tab 12], the Supreme Court had occasion to with regard to the limitations of the provisions of section 165 of the Evidence Act to hold:-

‘Notwithstanding the wide ambit of s 165 of the Evidence Act 1950, the desirable limits of judicial intervention in the examination and cross-examination of witnesses as set out under the common law of England apply in this country. These limits apply with double force in the case of interrogation by a judge of an accused person, since the nature of examination contemplated by s 165 of the Evidence Act 1950 is not examination or cross-examination of an inquisitorial nature for the purpose of entrapping an accused or of extracting from him damaging admissions upon which to build up a case against him or to supply a gap in the evidence for the prosecution, especially in the case of a capital charge. The failure of a trial judge sitting alone, to direct himself correctly in accordance with these principles must be treated in the same way as a failure to direct a jury correctly.’

The following passage in the judgment of Lord Denning MR in Jones v National Coal Board [1957] 2 All ER 155 [Tab 13] at page 562 in Teng Boon How emphasizing the importance of a judge not descending into the arena and thereby depriving himself of the ability to take a detached view when forming his decision bears repetition:-

‘Yes, he the judge must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes.

She should be blind indeed to favor or prejudice, but clear to see which way lies the truth; and the less dust there is the better. Let the advocates one after the other put the weight into the scale – the nicely calculated less or more – but the judge at the end decides which way the balance tilts, be it ever so slightly…so also it is for the advocates, each in his turn, to examine the witnesses, not for the judge to take it on himself lets by so doing he appear to favor one side or the other. And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest by the sequence of his argument be lost…The judges’ part in all this is to hearken to the evidence, only himself asking question of witness when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law, to exclude irrelevancy and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth, and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: ‘Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.’

The position with regard to DNA profiling has been lucidly set out by KC Vohrah J (as he then was) in Peter James Binstead v Juvencia Autor Partose

[2000] 2 MLJ 569 [Tab 14] as follows:-

‘There is no general power provided by legislation or through common law for any court in Malaysia to order a person to undergo a test to ascertain paternity. In the case of a DNA test, it is common knowledge that either a blood, a tissue or bone specimen will be taken from the person for testing. If a person refuses to submit himself to such a testing, he is perfectly entitled to do so; a person cannot be subject to hurt within the meaning of sec 323 of the Penal Code for voluntarily causing hurt to the person and a court cannot in the absence of a specific legislative provision, order such person to submit himself to an unlawful act to be committed on his person.’

The learned DPP’s reference to sections 73 and 165 of the Evidence Act [Tab 15] is clearly misplaced. Section 73 refers to comparisons of signature, writing or seal with others admitted or proved whereby the court can direct any person to write any words or figures for the purpose of enabling the court to compare those words or figures so written with any words or figures alleged to have been written by that person. Subsection (3) of section 73 makes subsection (2) applicable to finger impressions. In our case, the learned DPP has presumed the DNA evidence sought to be adduced has been proven, when it has not been.

Section 165 provides for the power of a judge to put questions or order production of document or things. Section 73 and 165 cannot by any stretch of the imagination empower a court to direct an accused to provide samples for DNA profiling! Even the case cited by learned DPP, King-Emperor v Nga Tun Hiang

AIR 1924 Rang 115 [Tab 16], refers to the proviso that the power to take finger impressions under sec 73 of Evidence Act is qualified by the accused privilege against self incrimination.

Even in Goi Ching Ang, the Federal Court adverted to the principle against the right of self incrimination when holding at page 508:-

‘Admitting the s 27 information would infringe the principle of the right against self-incrimination since there was no evidence of s 112(ii), (iii) and (iv) of the Criminal Procedure Code (FMS Cap 6) having been complied with. Since the trial judge had not exercised his discretion to exclude the s 27 information, the appellate court would be at liberty to do so’.

It is submitted that under the circumstances both applications by the prosecutions ought to be dismissed as being a manifest abuse of the process of this honorable court. So we pray for both applications to be dismissed.

Now coming to something which is substantial in court. It is in relation to YA’s caution that whoever commits contempt of court would have to face the music.

YA:     That is outside of this submission. It is nothing to do with the application, right?

KS:    That is not the point. A ruling was made, YA had cautioned. Various personality     including the Prime Minister have committed on this application that Dato’ Seri Anwar Ibrahim ought to give his DNA. It is reference to this application, YA. It is contempt of court. The Prime Minister should be hold up here to show cause why he should not be committed for contempt of court apart from other personalities  who are very [] to go against YA’s caution which is given in open court. YA ought to stand on the by the caution YA has given and take action against those who have got against that caution.

YA:    Yes DPP, any reply to this application?

MY:    Application for contempt?

YA:    No. This.

MY:     May I just take the last case, Goi Ching Ang. In the submision, I’ve submitted     that Goi Ching Ang is relevant on the factual matrix. The principle, yes it doesn’t come up with new law, but on the facts this is in aspect of S.27, information, which have been commented upon in the case of Wan Mohd Azman that in other cases other than confession, there is no necessity for balancing exercise.

With regard to the other cases, Lim Chin Poh v PP [1969] 2 MLJ 159 and Teng Boon How v PR [1993] 3 MLJ 553, again this cases are with regards to situation where the judge cross-examining the witnesses.

If I may first invite your Lordship to the case of Lim Chin Poh v PP [1969] 2 MLJ 159, the complaint in this case is because the judge interrupted so much but at     page 162, paragraph F left,

“There is one other matter. Counsel for the appellant criticized the manner in which the learned district judge conducted the trial of the appellant. His complaint was that, by reason of the frequency and nature of the interruptions by the learned trial judge when the appellant was giving evidence, the appellant did not have a fair trial. It was alleged that the trial judge intervened on no less than fifteen occasions; that he cross-examined the appellant; that he made it known that he was displeased with the appellant; and that he was so thoroughly annoyed with the appellant that he gave vent to his feelings by imposing a severe sentence.”

So, it has no application to this case. Your Lordship has not cross-examine anybody yet.

With regard to the other case, Teng Boon How v PR [1993] 3 MLJ 553, if I may first refer your Lordship to page 562, the paragraph before the one referred to by my learned friend in his submission, if I can read paragraph C,

“It was Lord Greene MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations. If a judge, said Lord Greene, in Yuill v Yuill, should personally conduct the examination of witnesses, ‘he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict’”

And at page 564, in reference to the case at paragraph B,

“Nevertheless, we were reluctantly driven to the conclusion that the judge did, in this case, descend into the arena and did allow his judgment of the facts to be clouded by the results of his cross-examination of the appellant, the brother, Tan Booy Keng, and the taxi driver, Loh Chin Wah, though we do not doubt that he was actuated by the best of motives.

As for allowing his judgment of the facts to be clouded by the results of his cross-examination, we need no more than refer to the following extracts from his judgment,…”

In both cases, the judge took an active part in cross-examining the witnesses. So I do not think it really applies.

At case no. 14, Peter James Binsted v Juvencia Autor Partosa [2000] 2 MLJ 569,J KC Vohrah’s decision. This is with regards to affidavit evidence. We can read from the headnotes,

“The respondent applied for maintenance in the magistrates’ court under s 3(1) of the Married Women and Children (Maintenance) Act 1950 (‘the Act’). In her supporting affidavit, the respondent claimed that the appellant was her husband and that they had a child from the marriage. The respondent’s lawyer made an oral application to the court to order the appellant, the respondent and child to, inter alia, undergo a deoxyribonuclei acid (‘DNA’) test. The magistrate allowed the application and the appellant appealed against that decision.”

We do not know under which provision of the law the Magistrate is acting. It is a civil case. People take for granted that Evidence Act doesn’t apply to civil case. Normally they do not give any weight or attach any weight to the Evidence Act when they do civil cases. But what the judge said at page 571, slightly below paragraph A…

YA:    You mean the Evidence Act doesn’t apply in civil cases?

MY:    No. I mean is it is not quoted. People take for granted Evidence Act, somehow it doesn’t apply. Hearsay and all other things in civil trial. I mean it is very relax.

At page 571, slightly below paragraph A,

“At the outset it has to be noted that the Act has no provision to allow any court to make such an order.”

The Act here refers to Married Women and Children (Maintenance) Act 1950. Nobody tells J Vohrah that we have S.165 and maybe can be extended in context of S.73. Nobody says it there.

As far as both cases are concern, all said is different from the context of our case.

With regard to the statement at page 3 of the submission, this is with regard to the review, in the 3rd paragraph where my learned friend reproduces part of the judgment in R v Watson which reads,

“The prosecution cannot keep up its sleeve evidence available during the TWT and introduce it after a ruling has been made by court for review. This would be abuse of process by the prosecution…”

This statement is not backed by any authorities. But if I may remind this honorable court, before submission, after two days searching for the original warrant of arrest, then only we got hold of it. I compared it to the copy with the court and then I made a proper application to recall so that I can tender the warrant of arrest but it was refused by the court even though I cited S. 425 of Criminal Procedure Code and the case of Ramli b. Kechik and Pon Nam, both

Federal Court decision.

With regard to the IO, we didn’t call the IO just because of the voluntariness, to decide on the admissibility. The IO give evidence beyond that. But during the trial within a trial what is obvious is this, the onus is on them to prove but when Dato’ Seri Anwar Ibrahim made the confession orally that he was informed before the start of the recording that there was a report alleging that he sodomised certain someone at certain time and address, I thought there it goes. There couldn’t have [] concession by Dato’ Seri Anwar Ibrahim and less than certain denial with regard to Taufik’s assertion that he had read, explained and obtained the signature of Dato’ Seri Anwar Ibrahim with regard to the warrant of arrest, I do not think then it would be important for me to call Jude.

But this paragraph at page 3, can I now compare with what the judge in R v Watson says at page 2 of the submission,

“It is the duty of the judge to exclude from the jury’s consideration evidence which is inadmissible in the case of a written statement, made or signed by the accused, the judge must be satisfied that the prosecution have proved that the contested statement was voluntary, before allowing the jury to decide whether to act on it. Experience has shown that where the question of the voluntary character of a statement has been investigated and decided at a trial within a trial. It is only in very rare and unusual cases that further evidence later emerges which may cause the judge to reconsider the question whether he is still satisfied that the statement was voluntary and admissible. But where there is such further evidence the judge has power to consider the relevance of the admissibility of evidence on which he has already ruled”.

Nothing to support what En. Karpal Singh said. What they are saying is very rare further evidence later emerges. But further evidence did emerge and if it emerges, then the court should consider. If your Lordship remembers, when I started my submission the other day I said the review was based on two, (1)

because the emergence of further evidence; (2) that we perceived that your Lordship could have erred in the application of the law.  That ‘s why we cited the case of PP v Ng Lai Huat & Ors [110] 2 MLJ 427which say there the judge on its own upon reviewing his ruling held that he could make a mistake there. That’s all.

All in all S.73, true, it refers to handwriting and finger impression. But what I said the last time was that all it talks is about identification. And DNA also talks about identification and were said to be in the book that we cited before your Lordship to be the closest to finger print. The status of the DNA test is closest to finger pints. That’s why we said why not we extend this, because when S73 was enacted there is no DNA test. The law is a living thing, it should develop.

S.165 is a section of general application. It does not have any conditions before it can be invoked. The only consideration is that it is invoke so justice can be done. It is invoked so the court can obtain the proper truth. And it is not we presume that certain things have been proved.

What the literature said is this, what is admitted or proved under S. 73 was the DNA that we have adduced is that recovered from the anus, and then we need to compare it with someone which we recover in the cell. But bearing in mind now that that evidence with regards to whatever collected from the cell was held to be inadmissible, that’s the reason why we invited the court to exercise your discretion or powers under S.73 and S.165 individually or read together to order Dato’ Seri Anwar Ibrahim to make available the specimen.

So on this thing, [] talks about you cannot ask an accused person to be a witness in his own trial. I believe the literature had all stated it is true. But there is nothing stopping the court from taking it from him if he doesn’t want to surrender. What he cannot do is to produce himself if he doesn’t want to.

And the court cannot force him to produce it but the court can order for it to be taken from him.

That’s all, YA.

KS:     Just one point, YA. The Evidence Act has not been amended to include the court of law directing an accused person to provide his DNA profiling. My learned friend is asking your Lordship to do what the legislature should do and if such there is an amendment to the Evidence Act []. This court has no power. J KC Vohrah has made it very clear. I am made to understand from my learned friend’s submission the Evidence Act does not apply in civil case…

YA:     He said apply, but some other people think it didn’t apply. As far as he is concern, it applies. That is what I understand from his submission.

KS:     Alright. If it applies clearly what J Vohrah had said…I don’t think we should read again. It is very clear.

“There is no general power provided by the legislation or through common law for any court in Malaysia to order a person to undergo a test to ascertain the paternity. The case of a DNA test, it is common knowledge that either a blood, tissue or bone specimen will be taken from the person for testing…”

And if it is done without his consent then it will be an offence under S.323 of the Penal Code. We say nothing has [] in the main trial. If anything had emerges, it strengthens…

YA:     You are submitting. Actually it is supposed to be at the end …

KS:     []. Just to impress upon your Lordship.

YA:    It is already in your submission.

KS:    Very well if your Lordship got it there. []

YA:     It is obvious I cannot make my decision today. I need time to go through. By Wednesday? Give me one or two days to go through.

KS:     With regard to what I said just now about Prime Minister committing obvious contempt of your Lordship ruling. Your lordship might want to make a ruling on that.

YA:     If you really think the way you do, you can file the application in the management unit and they will handle it. Now we have the management unit to handle all file for the cases in all courts. That’s all.

[10.09 a.m.]

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