jump to navigation

Anwar Ibrahim Sodomy II – The Recorded Truth – 22 November 2010 November 23, 2010

Posted by malaysianstory in Anwar Ibrahim, Malaysian Story, Sodomy II.
Tags: , ,
trackback

******* The Full English Version (In Blue) After “+++++++++++”

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

Pihak-pihak:
PP:    Semua hadir kecuali NH dan WCK
PB:     KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Ram Singh, (Marissa, Radzlan tidak hadir)
WB:    Zamri Idrus (untuk SP1)
Experts for the defence: Prof. David Wells (Dr. Brian MacDonalds tidak hadir)
AI tidak hadir

[9.13 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.20 a.m.] Pihak-pihak keluar dari Kamar Hakim.

[9.27 a.m.]
MY:     Kes ditetapkan untuk ruling berkaitan permohonan peguambela untuk mendapatkan nota-nota pemeriksaan doktor-doktor pada 28.06.2008. untuk pihak mereka memeriksa.
KS:     We wish to reply to MY’s submission. In fact there was only one page reply. It is one liner. In fact it was a question of the weight to be attached to the evidence if  the notes is referred. Whereas it is in actual fact the question of admissibility, be that the notes, history of SP1 that it is not given in SP2 report. We say it is not as simple as that.
We take your Lordship to S.45 of the Evidence Act 1950. [read the whole skeletal submission]
Our authority show that they keep repeating the production of the data/ it is not a question of admissibility alone. It will be a misdirection if the doctors evidence is not supported by the data, it is a question of admissibility and not weight.
[continue reading skeletal submission]
YA:     Tangguh sebentar. MY nak reply?
MY:    Tidak.

[9.40 a.m.] Stand down.

[9.48 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.51 a.m.] Pihak-pihak keluar dari Kamar Hakim.

[9.56 a.m.]
YA:     This is my decision. [Judge reads ruling]
KS:     [] accept your Lordship ruling. your Lordship has completely disregarded the authorities we gave it is perversed. []
YA:     That’s my decision. [] can we proceed now?
KS:     [] Dr.Siew and Dr. Khairul. []
YA:     That’s my decision.
KS:     Of course we are reluctant to accept your Lordship decision. It is frivolous.
YA:     Panggil saksi.
KS:     We would like to have a short adjournment until []., it is important for me to be there. It involves public interest.
YA:     MY? KS, motion ni sampai bila? Nak adjourn this matter sampai bila?
MY:     I hope KS will make it []. If he can’t, we’ll proceed with []
KS:     MY shouldn’t threat.
MY:     It’s not a threat,
YA:     It’s your motion, so you must be there. If you cannot be here by 12,30, somebody must take over.
KS:     I’ll be back.

[10.22 a.m.] Stand down.

[12.32 p.m.]
MY:     Kes untuk pemeriksaan semula.
KS:     We are not finished yet with the cross-examination.
YA:
KS:     I could continue until SN arrived.
YA:     Since defence [].

SP2 mengangkat sumpah di dalam Bahasa Inggeris.

Q:     Once again, you don’t want to refer to your notes?
A:    Yes.

Q:    From the notes evidence, you afraid not very clear.
A:    I am clear.

Q:    Is there any reason you don’t want to refer to the notes? Why do you insist on not referring to your notes? It will be in your favour. To corroborate.
A:    It is not really necessary because I can give my evidence.

Q:    In reference to SN cross-examination you said his bowel is empty, SP1. SP1 give evidence in court that he had not defecate for 2 days, rather to preserve the evidence. Would that be right that it is inconsistent that he did not defecate for 2 days and his bowel was empty?
A:    Not necessarily. The lower part of the rectal is not a reservoir. It is at the colon. The rectal is just to facilitate the bowel out. It is not necessarily to fill up with faeces.

Q:     Despite that, the bowel will still be empty?
A:     Yes. because the lower rectal part is empty. Because that is the area mainly to facilitate mainly for the faeces to pass motion. When you have the urgency to pass motion, you are in a situation to control it until at a stage where you cannot hold it, the faeces will start coming out.

SN:     My apologies, YA.
YA:     It’s okay.

KS:     SN will continue.
YA:     Didn’t you tell the court the last time that you’ve finished your cross-examinantion?
SN:     This arises from my learned friend’s question.

Q:     You mentioned to KS that SP1’s bowel is empty []
A:     During the examination, I did not see any faeces at the lower part of the rectum .
Q:     Now we go back to the colon area. Ascending traverse, descending and sigmoid. Is that what it is? Is it correct?
A:     Yes.

Q:     Sigmoid connects to the rectum. Is it not correct?
A:     Yes.

Q:     How often does faeces [] what will remain in the sigmoid. Is it food, is it raw or is it faeces?
A:    Faeces.

Q:     How often does the sigmoid open up and it goes to the rectum? In a day. If you have faeces in the sigmoid?
A:    …

Q:     How large is the sigmoid?
A:     Sigmoid is about 15 cm.

Q:     The size of the rectum?
A:    Yes.

Q:    And it will contain faeces, right?
A:     Yes.

Q:    Is there a term of mass movement? Are aware of mass movement?
A:     Yes.

Q:     What is a mass movement?
A:     It is physiological process that happen when the faeces comes down and at one point it goes to the sigmoid and will give the sensation of defecating and dissension.

Q:    I think you are not accurate. Mass movement is where the sigmoid is full and when there is this mass movement the faeces will be pushed to the rectum.
A:     It does not necessarily moves straight away. It depends on the dissension of the sigmoid and depends on the collection of the faeces.

Q:     Precisely that is what mass movement is all about. When it is full, naturally there will be mass movement. It has to be isn’t? Otherwise it will not move.
A:     Like I said just now, if socially you have an inconvenient place, you have physiology indefecant. Basically you can prevent it from moving further.

Q:     From the sigmoid or from the rectum? Is it a movement from the rectum?
A:     It is mainly the movement from the sigmoid to the rectum.

Q:     So the rectum will be fill up?
A:     Basically the upper part of the rectum and the lower rectum will be empty. The sigmoid may push it to the upper part of the rectum. It will not go to the lower part     of the rectum.

Q:     In other words you say it can be controlled. So it is rectal laxity, rectal sigmoid expansion.
A:     Yes.

Q:     In a day, in normal person where there is no complication, how many times does the faeces get discharge from the sigmoid by way of mass movement to the rectum, in 24 hours?
A:     The mass movement does not only happen in the sigmoid, but in the entire colon.

Q:     Whether it is in the entire colon or the sigmoid, how often a day?
A:     Because it is so physiological. You cannot really say how many times it can happen in a day.

SN:     I refer you to an article, Journal of Forensic and Legal Medicine, second last page, middle para, mark in green.

Q:     [read text] Do you agree that it will happen like this a few times daily?
A:     Yes. It happen. Physiologically I agree.

Q:     So you agree daily there is a movement into the rectum?
A:    No. You have to finish the final sentence of the paragraph (Finally, retrograde movements may occur, particularly in the transverse-ascending segment and are thought to retard distal progression of the fecal bolus.)

Q:      I’m not interested in the retrograde movements. Because you did not take the history of the man. Are you aware that the victim, SP1 complain that the incident happened on 26.08.2008. About what time, can you remember?
A:     It happened around 3.15 pm.

Q:     When did you examined him?
A:     We started around 9.00 p.m. on the 28th June 2008.

Q:    You started the second segment, isn’t it? Dr. Khairul started the first segment, correct?
A:    Yes.

Q:     You enter into the anal region at about what time? Around 10 o’clock maybe?
A:     Around 10.30 p.m.

Q:     Can you tell the lapsed of time between the so called incident and the time when you examined him?
A:     Yes. About 2 days.

Q:     About 54 hours according to my calculation. So what do you think?
A:    Yes.

Q:     You are saying that in 54 hours, the sigmoid colon, transverse, descending did not happened? Which has filled up the rectum.
A:     I disagree.

SN:    Come on, doctor. That’s not the answer.
MY:    He has answered the question. He did not agree.

A:    I agree if there is a mass movement, it will happen. But if there is inhibition, it will not.

SN:    This is the problem. You did not take the history of his bowel movement. So how can you make a second statement of that. Yes or no? There will be mass movement many a times, so you agree?
A:     Mass movement will happen on normal person on daily basis.

Q:     On daily basis and you find empty rectum even you examine him 54 hours later? SP1?
A:     Yes. That’s what I found.

SN:    That’s amazing.

Q:     Is there such thing as peristaltic movement?
A:     Yes.

Q:     Where does this peristaltic movement stops?
A:     Mostly at the sigmoid.

Q:     There is always pressure down there, right?
A:     Right.

Q:     Do you agree that gas can also be formed in the stomach and in the intestine. And it also push downwards, correct?
A:     Yes.

Q:     Does gravity plays any part in anything that is coming down?
A:     Agree.

Q:    I want to suggest to you about the high rectal swab. After 54 hours, you either will not get anything from there or very little quantity?
A:    High rectal means which one?

Q:    B7,8 and 9 are high rectal swab.
A:    It is based on the proctoscope, not based on the highest part of the rectum. The area was the low rectal part but the highest part from the proctoscope. It is not the highest part of the rectum.

Q:    So it is the low rectum, but the highest the proctoscope you can go.
A:     Yes.

Q:     It’s 8 cm, is that what you said?
A:     It’s 8cm from the anal opening.

Q:    Now you are saying the highest part is from the proctoscope.
A:    Yes.

Q:    That is what you call high rectal.
A:    I must make it clear. The rectum is about 15cm. The area that I manage to enter is only the low rectal, 5cm. Because the anal canal is about 4-5 cm from the anal     opening. That is called the anal canal. It is not rectum. So another 3 cm is mainly at the area of the low rectal.

Q:    So it is about 3 cm, right?
A:    3-5 cm.

SN:    Unless the victim’s exceptionally long.
A:    It varies individually, but mainly it is 3-4 cm.

Q:     If peristalsis, gas and gravity, combination of this 3 acting all the same time, simultaneously together with the mass movement, naturally you can expect to find     more or something at the lower rectum and not the higher rectum.
A:    The happening at the low rectal will only happen when you really wanted to defecate. The faeces will form at the sigmoid and upper rectum but if you still can inhibits, it will not go down.

Q:     I’m talking about the level of the samples you have taken, i.e the one you take at high rectum based on the proctoscope you used. So another 2 cm you said.So therefore you couldn’t get anything there because of the three action happening there,
A:     It is not 8-9 cm. I think you get it wrong.

Q:    But you enter that deep.
A:     It is only to the 5cm of the rectum plus 3-5 cm. And the entrance is only at the lower and mid rectum.

Q:    Now you are saying something else. Are you now saying that after 54 hours you found samples 8-9 cm of the rectum? In your evidence you said you insert the proctoscope which is 6.5 cm. And you said you went another 2- 2.5 cm. So you got 9 cm there, right? You are quite more than half into the rectum already. So, I’m saying that you cannot get anything because of all this action because whatever it is would have come down at the lower rectum region. Do you agree or not?
A:     I can’t agree with you because your measurement is not right there.

Q:     You said something. That’s in your evidence here.
A:    It is not.

Q:    You are changing your mind. You are changing your story.
A:    I didn’t change. Your measurement is wrong. I said my proctoscopy is about 6.5     cm. And I go about 2 cm. If you measure from the anal opening until about 9 cm     …

Q:     8 cm is for sure and you consider it the high rectal swab. So 8 cm is more than half of the rectal here.
A:     It won’t go half of the rectum. After going 4 cm further I was only at the low rectal area.

Q:     When you push through at the canal area, you can go further in. There is no problem there. I’ve spoken to medical expert too. Now why are you getting worried of 8 or 9 cm there?
A:    I’m not worried. I explained that I took the swab from the low rectum. I did not go there.

Q:    You’ve got low rectal, high rectal and now mid rectal, isn’t it?
A:    Anatomically, there are 3 parts of the rectum, low, middle and high rectum. I took the sample from the lower rectum.

Q:     I’m talking about your swabs. I did not ask about the specific position of the rectum.
A:    Whatever I took is mainly at the lower rexctum.

Q:    Now you are saying at the lower rectum.
A:    If you take 6.5cm, the proctoscope, you minus 3-4cm, it is still at the low rectum.

Q:    So are suggesting that you found specimens at 7 cm?
A:     I said I took the swab. 7cm of what?

Q:     7cm of the rectum?
A:     No. Not 7cm, but 5cm because normally the low rectum is about 5cm. Around that area.

Q:     So your high rectal swab is how many cm now?
A:     6+3, about 9 cm from anal opening.

Q:    I put it to you that even 6 is high and there won’t be any specimens that you can find there?
A:     Not necessary.

Q:     So are you suggesting that after so called sodomy[] they remain there?
A:     No. Our bowel is not a straight line, but it is folded  area. It is a folded mucosa. Not necessarily all will come out immediately.[].

Q:     But this is after 54 hours. There is pressure, gravity and peristaltic action. You can only find it at the low rectal area, isn’t it?
A:     I disagree.

Q:     The other day you said about rectal flora and e coli. Is there any thing called bacteroides fragilis found at the anus?
A:    Bacteroilis will definitely be there. But you mentioned fragilis. Because there are so many subroot.

Q:     What about e coli? You would agree that there will be bacterial action that can cause degradation on seminal stain by this bacteria?
A:     Yes.

Q:     Do you agree that so long there is warmth, there is bacteria, when there is moistness, there can be a lot of bacterial activity acting on the organic area of the     rectum?
A:     Yes.

Q:     When the swabs were taken out and given to Dr. Siew, were all these taken and put on the table or taken for refrigeration immediately?
A:     I took the swab and put into the container given by Dr. Siew and hand it over to him.

Q:     How long does it take from taking the swab until it is completed?
A:    For each swab it is about 3-4mins.

Q:    There are 13 specimens taken. Were all the swabs put in air tight containers?
A:    I don’t remember because it was handled by Dr. Siew.

SN: That’s all for my cross-examination.

Re-examination by MY.

Q:     Do you agree with what all the literature said?
A:     Yes.

Q:     As far as you are concerned, when you did the examination on the rectum, the lower part of the rectum, on 28th June 2008, between 9.00 p.m.- 12.00 a.m., how did you find the rectum.
A:     I’m sure it was empty.

Q:     You were told about mass movement that happened daily. Have you come across patients who did not pass motion for few days? The patient comes to see you and informed they did not pass motion for few days, have you come across with that?
A:     Yes.

Q:     How was the rectum?
A:     Usually I asked whether they want to defecate or not. If they say no, usually I find it empty.

Q:    Is it unusual to find the rectum empty?
A:    It is not unusual.

Q:     From the opening of the anal to the part you conducted the swab, high rectal you said, how many cm?
A:     The proctoscope is about 6.5 cm, I took 2.5 cm. After minus the anal opening 3-    5cm, so it is about 4 cm.

Q:     4cm into the rectum. And the rectum is how long?
A:     Average is 12 to 15 cm.

Q:    So you went only into 4 cm?
A:    Yes.

Q:     P22 talks about two swabs of the high rectal. The answer to SN is also 2 high rectal swab and that was also in the order stated in P22. And as you came out you took low rectal and peri anal region. But my notes shows that you said during examination-in-chief there is one high rectal, and one low rectal.. Can you clarify how many for high rectal swab?
A:    I took 2 high rectal swab.

Q:     KS ask you how many sodomy cases referred to you and you said about 2-3 cases. In all this 3 cases does it involves the examination of the rectum?
A:     Yes.

Q:     As far as the anus examination which you said you have conducted, in those cases, does it involves the examination of the []
A:     Yes.

Q:     Do you take specimens from the rectum?
A:     Depends on the case.

Q:    In all cases of sodomy where it involves examination of the anal and samples collection, is there any difference in the procedures of the sample taking?
A:     No.

Q:     Coming to the history. I refer to P22. Is it complete?
A:     Yes.

Q:    As far as the complainant in this case who has given the history to Dr. Khairul and Dr. Siew, is this all you think sufficient to be highlighted?
A:     Yes.

Q:     That a Malay gentleman alleged sodomized by a well known public figure.
A:    That’s the most relevant things to be highlighted.

Q:     Were you informed of the name of the prepatrator?
A:     I was informed it was a prominent public figure.

Q:    Were the name mentioned?
A:     Not to me, but not sure to the other 2 doctors.

Q:    Are you sure?
A:    Yes.

Q:    But as far as the three of you are concerned this would sufficient to constitute the history?
A:    Yes.

Q:    Was it your concern for the act of the actor to be known for your purpose?
A:    Not important.

Q:     You were told lubricant was used in the act. And you were told Saiful was examined by a private doctor. And in the examination involving the anus, lubricant will be used?
A:     Yes.

Q:    And you use it?
A:    Yes.

Q:     You were asked by the defence woudn’t it be important to send the lubricant for test and you said it was not important. Why?
A:     Because if he said he use lubricant I don’t see the benefit of checking the lubricant.

Q:     Was this the reason you said it was not important?
A:     Yes.

Q:     About the position. You said it is lateral position. Why lateral position?
A:    Because it is a practice , it is a standard used as that position would give that area a good exposure for us to examine the area and it is also a comfortable position to the patient.

Q:     Would you know other position other than lateral position for the examination?
A:     There is a position where you can examine the patient where the patient will be on his knee and his hands on the ground, but it is not comfortable and convenient     to the patient. You can do the examination quite easily but not comfortable for the patient.

Q:     Whether between lateral position and the other one you mentioned just now, what is the main objective?
A:     To have a good exposure for the examination and to not to make the patient uncormfortable.

Q:     Are you aware of any international guidelines that say lateral position is not suitable or an ideal position?
A:     No. I’m not aware of any guidelines. So far nobody has mentioned about any guideline.

Q:     You disagree with my learned friend suggestion that the lateral position would contract contamination. What is the procedure to reduce contamination?
A:     As long as you mention the sterility, that all equipment are all sterilise, you would be able to reduce contamination.

Q:     When you said in the history the word alleged history, what does the doctor actually meant?
A:      An act where the anus is inserted into the anal.

Q:     If plastic is inserted into the anus, could it be sodomy?
A:     No.

Q:     If plastic were to be inserted instead penil penetration, would it be a sodomy case?
A:     No.

Q:    I refer to IDD16. Can you see the diagnosis of the doctor there?
A:    Alleged being sodomized.

Q:    As far as you are concerned does that involves a case of anal penetration?
A:     Yes.

Q:     Look at it again. What is stated there?
A:    Assault sodomy.

Q:    Can you explained to the court what does it mean?
A:     Assault means you are being attacked by a person. In bracket sodomized.

MY:     There is one question that we forgot to ask during the chief. May we be allowed to ask this question subject to cross?
YA:     KS do you have anything to say?
MY:     [read S.138 of Evidence Act 1950].
YA:     What is your question?
MY:    When one person ejaculated in the anus, how long will the fluid remain there?
YA:    I will allow the question subject to cross.

Q:     When one penetrated into the anus, how long will the seminal fluid remain in the anus? Or the rectal area generally.
A:     The duration depends on the anal rectal function, i.e the process of not wanting it to come out. At one point there will be an intermission where at one point of time you cannot control it anymore and fluid will start to come out. But how fast and how early there is no specific duration. But in most literature, you take sample in sodomy case, you can afford to get it within 72 hours. Because the mucosa in our anal canal and rectum is not a straight one where the material would stay there. And that can come out immediately.

Q:     When you put the swab sticks to get specimens, is it your concern that you must find nothing there?
A:     The process where you take swabs, you cannot see anything. You still have to swab and send it to lab to clarify it .

Q:    Was it your concerned that you must find semen there?
A:    No.

MY:    That’s all.

Cross-exam by SN

Q:     You mentioned the fluid will still be there after 72 hours.
A:     Yes.

Q:     Are you a forensically trained man?
A:    I said it is from my reading.

Q:     What is your authority?
A:     I don’t have any.

Q:     So it’s based on your view?
A:     Based on my reading.

MY:    I apply to the court for the witness to be released.
KS:     Subject to recall.
YA:     Short break until 2.30 p.m.
[1.25 p.m] Stand down

[2.34 p.m.]
MY: Kes untuk pemeriksaan balas SP3.

SP3 mengangkat sumpah di dalam Bahasa Inggeris.

Q:     Dr. Siew, you said you have experience in dealing with cases like this.
A:     Yes.

Q:     Do you consider you are an expert?
A:     It’s for the court to consider. I’m a witness.

Q:     So you come here as an expert to give evidence in court.
A:     It’s up to the court.
Q:     We go back to 28th of June. There was a report subsequently.
A:     Yes.

Q:     And that report reflected that there was conclusion that there was no conclusive proof of penetration?
A:     Yes.

Q:    Together with the other 2 doctor?
A:     Yes.

Q:    Subsequently you said there was evidence of penetration.
A:    Yes.

Q:    In the light of what?
A:    In the light of the chemist report.

Q:    When did you get the chemist report?
A:    I get from the police officer on 11th July.

Q:    As a result of that was there any report put up?
A:    The chemist report was together with the DNA and toxicology report.

Q:    So it was 11th of July it was read?
A:    Received on the 11th July, but I read on 12th July.

Q:    So on 13th July you have that report?
A:    Yes.

Q:    Based on the report you made the findings in P22?
A:    The first conclusion was made based on the clinical findings and second was based on the chemistry findings.

Q:    You have the report on the 13th?
A:    Yes.

Q:    So there’s everything on 13th for the report to be conclusive.
A:    The report has some problem where we don’t know where we swab the specimens.

Q:    On the 13th, you had the report with you and you put up this report?
A:    Yes.

Q:    No conclusive clinical findings of penetration.
A:    On the 29th June we made the report but we couldn’t finalise it because of the chemist report.

Q:    Is it not strange you had everything with you on 13th and that was your findings?
A:     Clinically yes.

Q:    But you had the chemist report with you.
A:    But I do not know the location. There is no location in the chemist report.

Q:    But you cannot be positive despite the chemist report? You read it.
A:    Yes I read it on the 12th.

Q:    But based on that you still cannot make a positive conclusion?
A:    This report was prepared earlier on 29th June, but we finalised it when we received the chemist report on 13th july.

Q:    So, P22 is the report based on the chemist report?
A:    Yes.

Q:    So the chemist report is the basis of P22?
A:    It was one of the basis.

Q:    That is very significant, isn’t it?
A:    It is quite significant.

Q:    We come back on the 26th June. What happened?
A:    Nothing happened to me.

Q:    Nothing happened to you. On the 28th?
A:    Yes.

Q:    On 28th June, were you the leader of the team?
A:    I’m just one of the doctors.

Q:    Who was the leader?
A:    Three of us together as a team.

Q:    On 28th June were there any other person other than three of you present?
A:    DSP Jude.

Q:    Why was his presence required?
A:    He was the one who ask us to conduct the examination.

Q:    He asked you to conduct the examination?
A:    Yes.

Q:    And throughout the examination he was present?
A:    Yes.

Q:    Is it normal for police officer to be present?
A:    They have to be there.

Q:    Police officer are always present during examination?
A:    Yes.

Q:    Do you take the history of the patient?
A:    Yes.

Q:    Detailed history?
A:    Yes.

Q:    Do you have with you?
A:    I can produce it through my humble memory.

Q:    You take detailed notes?
A:    I don’t know what is meant by detailed, but I consider it detailed.

Q:    Are you prepare to produce it?
YA:    Under what provision are you asking it to be produce?
MY:    KS should not be repeating the same thing.
KS:     But if he agrees to produce. []
YA:     I’ve already made my ruling so it is settled.
KS:     The law is very clear. [] The court must direct the witness to produce it.

Q:     You are willing to produce it?
A:     If I’m directed.

Q:     What was the history?
A:     A patient alleged he was sodomized by a high profile public figure for the past few months. The patient was working as a private assistant to the high profile public     figure. According to him it started at early Mac 2008 at S.16 PJ.
Q:    I’m asking for the medical history.
A:    This is part of the history. He is being sodomised.

YA:    What do you actually want?

Q:    I’m asking the medical history. Not the complaint made to you.
A:    I don’t know what is the medical history [] I’m a doctor.

Q:    Did you ask him his medical history?
A:    The patient said that he is being sodomized …

MY:     My Lord, we have seen a lot of medical report and when it comes to history it involves the complaint of the patient. So if KS is asking for medical history, perhaps he can be more specific.
YA:    Yes. Usually medical report the history involves the complaints of the patient.
KS:     What about his illness from the past?.
YA:     Ask specifically.

Q:     Did you ask the patient?
A:    I was telling you just now what I ask.

KS:     The problem with you is that you have been programmed to come here, that’s why     you []
MY:    That is not a fair comment.

Q:    I refer to what was recorded by the doctor. ID16 – Pusrawi report. Report by Dr. Osman. Page 1. Pain. That is also part of medical history, is it not?
A:     Yes.

Q:     “Insertion of plastic”. That would be the medical history, isn’t it?
A:     Yes. But the patient complained of being sodomized.

Q:     Did you not ask him what he told the doctor earlier?
A:    We take what he was asked by us.

Q:    You did not ask in line with what the doctor did earlier.
A:     We ask along the line of he being sodomised.

Q:     Don’t you think it is necessary of fit to ask along the line what the earlier doctor did?
A:     We do ask after we checked the complainant.

Q:     What was it did you ask along the line which the earlier doctor did?
A:    I don’t understand.

Q:    You said you ask.
A:    To me I ask about the sodomy episode.

Q:     So you did not ask in line with the doctor.
A:     I did not ask in line with it.
Q:     Would you not when in a case like this ask whether the patient has pain in anus, and passing stool?
A:     We did.

Q:     Did you asked whether he went to a doctor previously?
A:    Yes.

Q:    Did you ask who is the doctor?
A:    The patient only say being examined in a private hospital, but he did not named the doctor.

Q:    Refer IDD 16, Do you agree whether what the doctor here did would be what a doctor should ask a patient alleging sodomized?
A:    This is not a report, the doctor’s handwriting.

Q:    But something is usually done.
A:    Yes.

Q:    Would it be right what he told you would be what he told the doctor? You knew that he went to other doctor earlier and it would be normal to ask him.. []
A:    Yes. We ask what happened.

Q:    Did you ask what happened initially?
A:    The patient told us he went to a private hospital for examination, complaint of pain in anus. The doctor then realised the patient is being sodomised, and refer to us     for examination.
Q:    Rrefer to ID16. Where he “alleged introduction of plastic into the anus”.
A:    We were told some instrument were inserted but not plastic.

Q:     This report is very clear. “Patient assaulted by insertion of plastic into the anus”. If it stated otherwise, it would be inconsistent. Would you agree?
A:    I do not have the report until now.
YA:     He is not the one who made the report.

Q:     If the same patient says something different from here, then there is a different?
A:     Yes. Now I know that since I only get the report now.

Q:     The report was done by 3 of you based on the notes and data collected by the 3 of you?
A:     It is based on history, clinical finding and chemist report.

Q:     You said just now notes were taken.
A:     Yes.

Q:     What purpose would that be for?
A:     It is for the documentation of the location and specimens and the findings.

Q:     Is there any reason why you don’t want to produce all these?
A:     I’ve testifiied orally.

Q:     You can remember everything?
A:     Hopefully.

Q:     Is it not important to produce it in court?
A:     I prefer to give oral evidence, oral statement.

Q:     You said hopefully.
A:     Hopefully I can give oral statement.

Q:     What you have recorded, can it be produce in court?
A:     I can rely on what was stated on the report.

Q:     In P22?
A:    Yes. And the chemist report.

Q:    And so P22 is conclusive?
A:     No. We do not know the location of the swab taken when we made the report.

Q:     But you knew the location then.
A:     But there was no location in the chemist report.

Q:     So you did not based your findings based on the chemist report?
A:     We were not able to identify where the swabs were taken.

YA:     Look at the chemist report. Give the chemist report to the witness, I did not want you to mislead the witness. Perhaps we can stand down for awhile.
KS:     Why did your Lordship said I was misleading the witness [altercations] don’t need to adjourn.

Q:     Look at ID25, [read]. Dr. Seah is a very expereince chemist?
A:     I just know she is a chemist of the Chemistry Department.

Q:     You said this is not details enough?
A:     I just said there was no location of the swabs taken in the chemist report.

Q:     So this report is not sufficient for you to put up your report?
A:     During that time I did not know the location.

Q:    When did you know the location?
A:    I know the location when I testified in the court.

Q:     Are you not responsible of the samples taken?
A:     The samples was taken by Dr. Razali and Dr. Khairul.

Q:    Are you not responsible for it?
A:    I was.

Q:     And then the samples are given to the police officer?
A:     Yes.

Q:     What was the marking done by you?
A:     I named the location and the samples.

Q:     Samples taken, did you mark them?
A:     Yes.

Q:    So the marking in the chemist report is your marking?
A:     No. I mark the location but not B1-B10. This are not my marking.

Q:     Were your marking tallies with your report?
A:    Later on during examination-in-chief, yes.

KS:     My learned friend will continue.

SN continue with the cross-examination.

Q:     You are under oath?
A:    Yes.

Q:    Talking about the marking, you didn’t know the location of the samples.
A:    Yes.

Q:    You testify the DSP was presence during the examination and he had access of it.
A:    Yes.

Q:    I take it you have access all the time.
A:     Yes.

Q:    When you received ID25 on the 12th, there is a misjoint.
A:    Yes.

Q:    Would it not be easy for you to ask DSP Jude for the chemist report and the location and you can finalised your report?
A:    Yes.

Q:    I take it you did not do it?
A:    Yes.

Q:    Dr. Siew, what specific training do you have in sexual assault cases?
A:     I’m trained as ordinary doctor holding the basic degrees. I’m also trained as a forensic phatalogist.

Q:     What about specific training in sexual assault cases?
A:     Not during the examination, but after that in 2009 until early this year I attended a training in Greece. But it is not a training in sexual assault cases. Part of it.

Q:     Very generally in that sense?
A:     Yes.

Q:     How long is your training?
A:     The whole 2009. And early this year.

Q:     So you are a trained forensic pathologist?
A:     Yes.

Q:     What are the exams did you take?
A:     []

Q:     What text did you use?
A:     Basically on the forensic pathology, some of the British textbook.

Q:     Is it an internationally qualification? Forensic Phatology?
A:     Locally, yes.

Q:    Is it recognised internationally apart from Malaysia?
A:     I’m not aware.

Q:     What sort of journal did you refer to?
A:     A lot.

Q:     You said you read a paper on sexual assault cases. What was the last paper you read?
A:     I can’t remember at the moment.

Q:    What text did you used?
A:    I can’t remember.

Q:     What conferences you have attended the last 3 years.
A:     International Academy…in Lisbon, in Greece…

Q:     What are the papers you read on sexual assault?
A:     A lot and one of it is from Australia, by Prof. David Wells.

Q:    Is he in court?
A:    Yes.

Q:     What paper has you published in sexual assault area?
A:     So far I’ve not publish any paper.

Q:     How many cases of sexual assault have you done in the last 13 years?
A:     About 50.

Q:     In a year?
A:     Depends.

Q:     Would you accept that the cases are comparatively low compared to the international standard?
A:     I was a Forensic Phatologist at that time so my main concern is in that area alone.

Q:     So you are not much of an expert when you did the report, P22.
A:     It’s up to the court to decide.

Q:     In examination-in-chief you said you are a member of MMC. What would be the qualifications to be a member of MMC?
A:     We just need to have a basic doctor degree.

Q:     It is not a very prestigious organisation, isn’t it?
A:     I cannot comment. I’m an ordinary member.

Q:     You request for the photography of SP1. Why?
A:     For documentation to show injury or no injury.

Q:     What are the photographs taken?
A:     Body and anal examination.

Q:     Is private part photos taken?
A:     The anus and some part of the rectum.

Q:     Clear picture?
A:     I can’t remember.

Q:     You can’t remember some?
A:     I can remember most.

Q:     Are the photographs part of the medical report?
A:     Part of the documentation.

Q:     Is it part of the report?
A:     I don’t agree.

Q:     What is the purpose of the photography then?
A:     Evidence in court.

Q:     Would you able to produce it?
A:     I don’t have the photographs. It’s with the police officer.

Q:    For what it is with them?
A:     For documentation.

Q:    But you instructed them to take the photos.
A:     They have the camera.

Q:     Is it should be part of corroboration for the report?
A:     Yes.

Q:     So, it is not with you?
A:    Is it not with me.

Q:     Then with whom?
A:    DSP Jude brought a photographer with him.

Q:    Would you be able to produce it if asked?
A:     It’s with the police officer. The photographer is brought by DSP Jude.

Q:     Would not the photos be the basis of your report?
A:     I do not have the photos.

Q:     I refer P22. Can you show where in the report you made reference of the photographs?
A:     Nothing in the report.

Q:     Were it in your notes? Any notation in your notes?
A:     No.

Q:    But you did made notes?
A:     Yes.

Q:     Colletion of samples. What training do you have in collection of samples?
A:     I have a Bachelor in Medicine and Master Degree.

Q:     So by those qualification you are trained and can handle sample collection? So you said any doctor with just an MBBS would be able to handle specimens collection.
A:     Yes. I’ve a Master Degree and specialise in Forensic.

Q:     Can you more specifically tell the court on how you label the specimens?
A:     I labelled the stickers.

Q:     You pre-labelled the stickers? How did you do that since you did not know the location of the specimens taken.
A:     I label the particular and I said “now we are collecting the low rectal swab” and they will swab and passed it to me.

Q:     Were the equipment sterile?
A:     Yes. The bottle came sterelize.

Q:    They came in a seal?
A:     Yes.

Q:     Were you able to show how it is sterile?
A:     Yes. But not now.

Q:     When you sealed them what sort of seal did you use?
A:     A specialised plastic tape.

Q:     The plastic is also sterilise?
A:     Not very.

Q:     You have a bottle about 2 inch height. Then how did you get a 5 cm swab into the bottle?
A:     We break it without touching the stick.

Q:    How did you break it without touching the stick?
A:    [witness demonstrated]

Q:     Was it air tight?
A:    When I sealed it it is air tight. I sealed it with a special plastic tape around the cover. So basically it is untouched.

Q:     So it is untouched and air tight?
A:     Untouched. But not sure how air tight.

Q:     How many samples did you take?
A:     10 samples and 1 FTA card for DNA profiling. So there are actually 12 samples.

Q:     How many times have you done the sampling taking and collection of samples?
A:     About 200 times.

Q:     Did in all the 200 times you sign the bottle?
A:     Not all the time.

Q:     Why not?
A:     Most of the patient are dead person.

Q:     You are more on pathology, isn’t it? You deal with dead person more than alive person. How many dead and how many alive?
A:    Approximately 1000 dead and 200-300 alive.

Q:    Why do you discriminate? There should be a protocol isn’t it? Why did you discriminate here?
A:    Only some of the living I signed not all.

Q:     I put it to you that there is only one case you signed which is DSAI’s case. why?
A:    Disagree. Only in exceptional cases.

Q:     What is the basis of the exceptional?
A:     I have the stickers in my department and it can be used by others. When I signed, only have stickers with my signature and also Mr. Saiful so that nobody can open it.

Q:     Why in this case?
A:     So that nobody can temper it.

Q:     Would it be correct that according to international standard all samples must be signed? But why you, in your case discriminate?
A:     I want to make sure the samples are intact and nobody can temper with it.

SN:     Can we start at 8.30 a.m. tomorrow?
YA:     It’s not even 4 yet. You have the questions now?
SN:     I need to discuss with the expert.
MY:     I believe SN should proceed with those he prepared until 4. Because I’m told Dr. Siew is needed in Terengganu High Court on Thursday.

Q:     You have been handling samples, in pathology and in sexual assault cases. Every time there is a sexual complaint, there would be 3 doctors at the OSCC?
A:     It is a hospital protocol in sodomy cases, a surgeon, a forensic and ….

Q:     Can you produce the protocol? The written protocol.
A:     I don’t have it, but I know we have it. There is a protocol.

Q:    Is there a written protocol?
A:    No. We have a consensus understanding in sodomy cases there must be 3 doctors. Except in rape cases because the gynae must be present.

Q:     Would you be able to verify that HKL meets the international standard?
A:     Yes.

Q:     Surely there is a protocol.
A:     We have a meeting on this matter.

Q:    Do you or don’t you have one?
A:    we have a standard operating procedure. But I can’t produce it because it is not my authority.

Q:    But you ask for it.
YA:     Show him whatever you have, the examples.
SN:     [shows].

Q:     Have you seen a protocol like this?
A:     This are forms.

Q:     Protocol, form, whatever. Do you have that?
A:     We have this.

Q:     Have you seen this?
A:     Yes.

Q:     Will you able to produce it tomorrow?
A:     Yes.

SN:     Could we stop to tomorrow morning? I need to consult my expert.
YA:     Start early. KS? So datang esok 8.30 a.m.

[15.55 p.m.] Adjourned.

“+++++++++” The Full English Version “+++++++++++”

Criminal High Court 3 KL

Before Arif Dato’ Mohamad Zabidin Mohd Diah

Parties :

PP: All present except NH and WCK

Defence : KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Ram Singh, (Marissa, Radzlan absent)

WB: Zamri Idrus (for SP1)

Experts for the defence:Prof. David Wells (Dr. Brian MacDonalds absent)

AI absent

[9.13 a.m.] Parties enter Judges’ Chambers.

[9.20 a.m.] Parties exit Judges Chambers.

[9.27 a.m.]

MY: Case for the ruling on motion from Defence to obtain doctor’s medical examination notes on 28.06.08 for their review.

KS: We wish to reply to MY’s submission. In fact there was only one page reply. It is one liner. In fact it was a question of the weight to be attached to the evidence if the notes is referred. Whereas it is in actual fact the question of admissibility, be that the notes, history of SP1 that it is not given in SP2 report. We say it is not as simple as that.

We take your Lordship to S.45 of the Evidence Act 1950. [read the whole skeletal submission]

Our authority show that they keep repeating the production of the data/ it is not a question of admissibility alone. It will be a misdirection if the doctors evidence is not supported by the data, it is a question of admissibility and not weight.

[continue reading skeletal submission]

YA: One moment. MY wishes to reply?

MY: No.

[9.40 a.m.] Stand down.

[9.48 a.m.] Parties enter Judges’ Chambers.

[9.51 a.m.] Parties exit Judges’ Chambers.

[9.56 a.m.]

YA: This is my decision. [Judge reads ruling]

KS: [] accept your Lordship ruling. your Lordship has completely disregarded the authorities we gave it is perversed. []

YA: That’s my decision. [] can we proceed now?

KS: [] Dr.Siew and Dr. Khairul. []

YA: That’s my decision.

KS: Of course we are reluctant to accept your Lordship decision. It is frivolous.

YA: Call the witness.

KS: We would like to have a short adjournment until []., it is important for me to be there. It involves public interest.

YA: MY? KS, when is this motion until? Until when do we adjourn this motion?

MY: I hope KS will make it []. If he can’t, we’ll proceed with []

KS: MY shouldn’t threat.

MY: It’s not a threat,

YA: It’s your motion, so you must be there.If you cannot be here by 12,30, somebody must take over.

KS: I’ll be back.

[10.22 a.m.] Stand down.

[12.32 p.m.]

MY: Case for cross examination

KS: We are not finished yet with the cross-examination.

YA:

KS: I could continue until SN arrived.

YA: Since defence [].

SP2 takes oath in English.

Q: Once again, you don’t want to refer to your notes?

A: Yes.

Q: From the notes evidence, you afraid not very clear.

A: I am clear.

Q: Is there any reason you don’t want to refer to the notes? Why do you insist on not referring to your notes? It will be in your favor. To corroborate.

A: It is not really necessary because I can give my evidence.

Q: In reference to SN cross-examination you said his bowel is empty, SP1. SP1 give evidence in court that he had not defecate for 2 days, rather to preserve the evidence. Would that be right that it is inconsistent that he did not defecate for 2 days and his bowel was empty?

A: Not necessarily. The lower part of the rectal is not a reservoir. It is at the colon. The rectal is just to facilitate the bowel out. It is not necessarily to fill up with faeces.

Q: Despite that, the bowel will still be empty?

A: Yes. because the lower rectal part is empty. Because that is the area mainly to facilitate mainly for the faeces to pass motion. When you have the urgency to pass motion, you are in a situation to control it until at a stage where you cannot hold it, the faeces will start coming out.

SN: My apologies, YA.

YA: It’s okay.

KS: SN will continue.

YA: Didn’t you tell the court the last time that you’ve finished your cross-examinantion?

SN: This arises from my learned friend’s question.

Q: You mentioned to KS that SP1’s bowel is empty []

A: During the examination, I did not see any faeces at the lower part of the rectum .

Q: Now we go back to the colon area. Ascending traverse, descending and sigmoid. Is that what it is? Is it correct?

A: Yes.

Q: Sigmoid connects to the rectum. Is it not correct?

A: Yes.

Q: How often does faeces [] what will remain in the sigmoid. Is it food, is it raw or is it faeces?

A: Faeces.

Q: How often does the sigmoid open up and it goes to the rectum? In a day. If you have faeces in the sigmoid?

A: …

Q: How large is the sigmoid?

A: Sigmoid is about 15 cm.

Q: The size of the rectum?

A: Yes.

Q: And it will contain faeces, right?

A: Yes.

Q: Is there a term of mass movement? Are aware of mass movement?

A: Yes.

Q: What is a mass movement?

A: It is physiological process that happen when the faeces comes down and at one point it goes to the sigmoid and will give the sensation of defecating and dissension.

Q: I think you are not accurate. Mass movement is where the sigmoid is full and when there is this mass movement the faeces will be pushed to the rectum.

A: It does not necessarily moves straight away. It depends on the dissension of the sigmoid and depends on the collection of the faeces.

Q: Precisely that is what mass movement is all about. When it is full, naturally there will be mass movement. It has to be isn’t? Otherwise it will not move.

A: Like I said just now, if socially you have an inconvenient place, you have physiology indefecant. Basically you can prevent it from moving further.

Q: From the sigmoid or from the rectum? Is it a movement from the rectum?

A: It is mainly the movement from the sigmoid to the rectum.

Q: So the rectum will be fill up?

A: Basically the upper part of the rectum and the lower rectum will be empty. The sigmoid may push it to the upper part of the rectum. It will not go to the lower part of the rectum.

Q: In other words you say it can be controlled. So it is rectal laxity, rectal sigmoid expansion.

A: Yes.

Q: In a day, in normal person where there is no complication, how many times does the faeces get discharge from the sigmoid by way of mass movement to the rectum, in 24 hours?

A: The mass movement does not only happen in the sigmoid, but in the entire colon.

Q: Whether it is in the entire colon or the sigmoid, how often a day?

A: Because it is so physiological. You cannot really say how many times it can happen in a day.

SN: I refer you to an article, Journal of Forensic and Legal Medicine, second last page, middle para, mark in green.

Q: [read text] Do you agree that it will happen like this a few times daily?

A: Yes. It happen. Physiologically I agree.

Q: So you agree daily there is a movement into the rectum?

A: No. You have to finish the final sentence of the paragraph (Finally, retrograde movements may occur, particularly in the transverse-ascending segment and are thought to retard distal progression of the fecal bolus.)

Q: I’m not interested in the retrograde movements. Because you did not take the history of the man. Are you aware that the victim, SP1 complain that the incident happened on 26.08.2008. About what time, can you remember?

A: It happened around 3.15 pm.

Q: When did you examined him?

A: We started around 9.00 p.m. on the 28th June 2008.

Q: You started the second segment, isn’t it? Dr. Khairul started the first segment, correct?

A: Yes.

Q: You enter into the anal region at about what time? Around 10 o’clock maybe?

A: Around 10.30 p.m.

Q: Can you tell the lapsed of time between the so called incident and the time when you examined him?

A: Yes. About 2 days.

Q: About 54 hours according to my calculation. So what do you think?

A: Yes.

Q: You are saying that in 54 hours, the sigmoid colon, transverse, descending did not happened? Which has filled up the rectum.

A: I disagree.

SN: Come on, doctor. That’s not the answer.

MY: He has answered the question. He did not agree.

A: I agree if there is a mass movement, it will happen. But if there is inhibition, it will not.

SN: This is the problem. You did not take the history of his bowel movement. So how can you make a second statement of that. Yes or no? There will be mass movement many a times, so you agree?

A: Mass movement will happen on normal person on daily basis.

Q: On daily basis and you find empty rectum even you examine him 54 hours later? SP1?

A: Yes. That’s what I found.

SN: That’s amazing.

Q: Is there such thing as peristaltic movement?

A: Yes.

Q: Where does this peristaltic movement stops?

A: Mostly at the sigmoid.

Q: There is always pressure down there, right?

A: Right.

Q: Do you agree that gas can also be formed in the stomach and in the intestine. And it also push downwards, correct?

A: Yes.

Q: Does gravity plays any part in anything that is coming down?

A: Agree.

Q: I want to suggest to you about the high rectal swab. After 54 hours, you either will not get anything from there or very little quantity?

A: High rectal means which one?

Q: B7, 8 and 9 are high rectal swab.

A: It is based on the proctoscope, not based on the highest part of the rectum. The area was the low rectal part but the highest part from the proctoscope. It is not the highest part of the rectum.

Q: So it is the low rectum, but the highest the proctoscope you can go.

A: Yes.

Q: It’s 8 cm, is that what you said?

A: it’s 8cm from the anal opening.

Q: Now you are saying the highest part is from the proctoscope.

A: Yes.

Q: That is what you call high rectal.

A: I must make it clear. The rectum is about 15cm. The area that I manage to enter is only the low rectal, 5cm. Because the anal canal is about 4-5 cm from the anal opening. That is called the anal canal. It is not rectum. So another 3 cm is mainly at the area of the low rectal.

Q: So it is about 3 cm, right?

A: 3-5 cm.

SN: Unless the victim’s exceptionally long.

A: It varies individually, but mainly it is 3-4 cm.

Q: If peristalsis, gas and gravity, combination of this 3 acting all the same time, simultaneously together with the mass movement, naturally you can expect to find more or something at the lower rectum and not the higher rectum.

A: The happening at the low rectal will only happen when you really wanted to defecate. The faeces will form at the sigmoid and upper rectum but if you still can inhibits, it will not go down.

Q: I’m talking about the level of the samples you have taken, i.e the one you take at high rectum based on the proctoscope you used. So another 2 cm you said. So therefore you couldn’t get anything there because of the three action happening there,

A: it is not 8-9 cm. I think you get it wrong.

Q: But you enter that deep.

A: It is only to the 5cm of the rectum plus 3-5 cm. And the entrance is only at the lower and mid rectum.

Q: Now you are saying something else. Are you now saying that after 54 hours you found samples 8-9 cm of the rectum? In your evidence you said you insert the proctoscope which is 6.5 cm. And you said you went another 2- 2.5 cm. So you got 9 cm there, right? You are quite more than half into the rectum already. So, I’m saying that you cannot get anything because of all this action because whatever it is would have come down at the lower rectum region. Do you agree or not?

A: I can’t agree with you because your measurement is not right there.

Q: You said something. That’s in your evidence here.

A: It is not.

Q: You are changing your mind. You are changing your story.

A: I didn’t change. Your measurement is wrong. I said my proctoscopy is about 6.5 cm. And I go about 2 cm. If you measure from the anal opening until about 9 cm …

Q: 8 cm is for sure and you consider it the high rectal swab. So 8 cm is more than half of the rectal here.

A: It won’t go half of the rectum. After going 4 cm further I was only at the low rectal area.

Q: When you push through at the canal area, you can go further in. There is no problem there. I’ve spoken to medical expert too. Now why are you getting worried of 8 or 9 cm there?

A: I’m not worried. I explained that I took the swab from the low rectum. I did not go there.

Q: You’ve got low rectal, high rectal and now mid rectal, isn’t it?

A: Anatomically, there are 3 part sof the rectum, low, middle and high rectum. I took the sample from the lower rectum.

Q: I’m talking about your swabs. I did not ask about the specific position of the rectum.

A: Whatever I took is mainly at the lower rectum.

Q: Now you are saying at the lower rectum.

A: If you take 6.5cm, the proctoscope, you minus 3-4cm, it is still at the low rectum.

Q: So are suggesting that you found specimens at 7 cm?

A: I said I took the swab. 7cm of what?

Q: 7cm of the rectum?

A: No. Not 7cm, but 5cm because normally the low rectum is about 5cm. Around that area.

Q: So your high rectal swab is how many cm now?

A: 6 + 3, about 9 cm from anal opening.

Q: I put it to you that even 6 is high and there won’t be any specimens that you can find there?

A: Not necessary.

Q: So are you suggesting that after so called sodomy[] they remain there?

A: No. Our bowel is not a straight line, but it is folded area. It is a folded mucosa. Not necessarily all will come out immediately.[].

Q: But this is after 54 hours. There is pressure, gravity and peristaltic action. You can only find it at the low rectal area, isn’t it?

A: I disagree.

Q: The other day u said about rectal flora and e coli. Is there any thing called bacteroides fragilis found at the anus?

A: Bacteroilis will definitely be there. But you mentioned fragilis.Because there are so many subroot.

Q: What about e coli? You would agree that there will be bacterial action that can cause degradation on seminal stain by this bacteria?

A: Yes.

Q: Do you agree that so long there is warmth, there is bacteria, when there is moistness, there can be a lot of bacterial activity acting on the organic area of the rectum?

A: Yes.

Q: When the swabs were taken out and given to Dr. Siew, were all these taken and put on the table or taken for refrigeration immediately?

A: I took the swab and put into the container given by Dr. Siew and hand it over to him.

Q: How long does it take from taking the swab until it is completed?

A: For each swab it is about 3-4mins.

Q: There are 13 specimens taken. Were all the swabs put in air tight containers?

A: I don’t remember because it was handled by Dr. Siew.

SN: That’s all for my cross-examination.

Re-examination by MY.

Q: Do you agree with what all the literature said?

A: Yes.

Q: As far as you are concerned, when you did the examination on the rectum, the lower part of the rectum, on 28th June 2008, between 9.00 p.m.- 12.00 a.m., how did you find the rectum.

A: I’m sure it was empty.

Q: You were told about mass movement that happened daily.Have you come across patients who did not pass motion for few days? The patient comes to see you and informed they did not pass motion for few days, have you come across with that?

A: Yes.

Q: How was the rectum?

A: Usually I asked whether they want to defecate or not. If they say no,usually I find it empty.

Q: Is it unusual to find the rectum empty?

A: It is not unusual.

Q: From the opening of the anal to the part you conducted the swa, high rectal you said, how many cm?

A: The proctoscope is about 6.5 cm, I took 2.5 cm. After minus the anal opening 3 – 5cm, so it is about 4 cm.

Q: 4cm into the rectum. And the rectum is how long?

A: Average is 12 to 15 cm.

Q: So you went only into 4 cm?

A: Yes.

Q: P22 talks about two swabs of the high rectal. The answer to SN is also 2 high rectal swab and that was also in the order stated in P22. And as you came out you took low rectal and peri anal region. But my notes shows that you said during examination-in-chief there is one high rectal, and one low rectal.. Can you clarify how many for high rectal swab?

A: I took 2 high rectal swab.

Q: KS ask you how many sodomy cases referred to you and you said about 2-3 cases. In all this 3 cases does it involves the examination of the rectum?

A: Yes.

Q: As far as the anus examination which you said you have conducted, in those cases, does it involves the examination of the []

A: Yes.

Q: Do you take specimens from the rectum?

A: Depends on the case.

Q: In all cases of sodomy where it involves examination of the anal and samples collection, is there any difference in the procedures of the sample taking?

A: No.

Q: Coming to the history. I refer to P22. Is it complete?

A: Yes.

Q: As far as the complainant in this case who has given the history to Dr. Khairul and Dr.Siew, is this all you think sufficient to be highlighted?

A: Yes.

Q: That a Malay gentleman alleged sodomized by a well known public figure.

A: That’s the most relevant things to be highlighted.

Q: Were you informed of the name of the perpetrator?

A: I was informed it was a prominent public figure.

Q: Were the name mentioned?

A: Not to me, but not sure to the other 2 doctors.

Q: Are you sure?

A: Yes.

Q: But as far as the three of you are concerned this would sufficient to constitute the history?

A: Yes.

Q: Was it your concern for the act of the actor to be known for your purpose?

A: Not important.

Q: You were told lubricant was used in the act. And you were told Saiful was examined by a private doctor. And in the examination involving the anus, lubricant will be used?

A: Yes.

Q: And you use it?

A: Yes.

Q: You were asked by the defence wouldn’t it be important to send the lubricant for test and you said it was not important. Why?

A: Because if he said he use lubricant I don’t see the benefit of checking the lubricant.

Q: Was this the reason you said it was not important?

A: Yes.

Q: About the position. You said it is lateral position. Why lateral position?

A: Because it is a practice , it is a standard used as that position would give that area a good exposure for us to examine the area and it is also a comfortable position to the patient.

Q: Would you know other positionother than lateral position for the examination?

A: There is a position where you can examine the patient where the patient will be on his knee and his hands on the ground, but it is not comfortable and convenient to the patient. You can do the examination quite easily but not comfortable for the patient.

Q: Whether between lateral position and the other one you mentioned just now, what is the main objective?

A: To have a good exposure for the examination and to not to make the patient uncormfortable.

Q: Are you aware of any international guidelines that say lateral position is not suitable or an ideal position?

A: No. I’m not aware of any guidelines. So far nobody has mentioned about any guideline.

Q: You disagree with my learned friend suggestion that the lateral position would contract contamination. What is the procedure to reduce contamination?

A: As long as you mention the sterility, that all equipment are all sterilize, you would be able to reduce contamination.

Q: When you said in the history the word alleged history, what doies the doctor actually meant?

A: An act where the anus is inserted into the anal.

Q: If plastic is inserted into the anus, could it be sodomy?

A: No.

Q: If plastic were to be inserted instead penil penetration, would it be a sodomy case?

A: No.

Q: I refer to IDD16. Can you see the diagnosis of the doctor there?

A: Alleged being sodomized.

Q: As far as you are concerned does that involves a case of anal penetration?

A: Yes.

Q: Look at it again. What is stated there?

A: Assault sodomy.

Q: Can you explained to the court what does it mean?

A: Assault means you are being attacked by a person. In bracket sodomized.

MY: There is one question that we forgot to ask during the chief. May we be allowed to ask this question subject to cross?

YA: KS do you have anything to say?

MY: [read S.138 of Evidence Act 1950].

YA: What is your question?

MY: When one person ejaculated in the anus, how long will the fluid remain there?

YA: I will allow the question subject to cross.

Q: When one penetrated into the anus, how long will the seminal fluid remain in the anus? Or the rectal area generally.

A: The duration depends on the anal rectal function, i.e the process of not wanting it to come out. At one point there will be an intermission where at one point of time you cannot control it anymore and fluid will start to come out. But how fast and how early there is no specific duration. But in most literature, you take sample in sodomy case, you can afford to get it within 72 hours. Because the mucosa in our anal canal and rectum is not a straight one where the material would stay there. And that can come out immediately.

Q: When you put the swab sticks to get specimens, is it your concern that you must find nothing there?

A: The process where you take swabs, you cannot see anything. You still have to swab and send it to lab to clarify it .

Q: Was it your concerned that you must find semen there?

A: No.

MY: That’s all.

Cross-exam by SN

Q: You mentioned the fluid will still be there after 72 hours.

A: Yes.

Q: Are you a forensically trained man?

A: I said it is from my reading.

Q: What is your authority?

A: I don’t have any.

Q: So it’s based on your view?

A: Based on my reading.

MY: I apply to the court for the witness to be released.

KS: Subject to recall.

YA: Short break until 2.30 p.m.

[1.25 p.m] Stand down

[2.34 p.m.]

MY: Case for cross-examination of SP3.

SP3 takes oath in English.

Q: Dr. Siew, you said you have experience in dealing with cases like this.

A: Yes.

Q: Do you consider you are an expert?

A: It’s for the court to consider. I’m a witness.

Q: So you come here as an expert to give evidence in court.

A: It’s up to the court.

Q: We go back to 28th of June. There was a report subsequently.

A: Yes.

Q: And that report reflected that there was conclusion that there was no conclusive proof of penetration?

A: Yes.

Q: Together with the other 2 doctor?

A: Yes.

Q: Subsequently you said there was evidence of penetration.

A: Yes.

Q: In the light of what?

A: In the light of the chemist report.

Q: When did you get the chemist report?

A: I get from the police officer on 11th July.

Q: As a result of that was there any report put up?

A: The chemist report was togethre with the DNA and toxicology report.

Q: So it was 11th of July it was read?

A: Received on the 11th July, but I read on 12th July.

Q: So on 13th July you have that report?

A: Yes.

Q: Based on the report you made the findings in P22?

A: The first conclusion was made based on the clinical findings and second was based on the chemistry findings.

Q: You have the rpt on the 13th?

A: Yes.

Q: So there’s everything on 13th for the report to be conclusive.

A: The report has some problem where we don’t know where we swab the specimens.

Q: On the 13th, you had the report with you and you put up this report?

A: Yes.

Q: No conclusive clinical findings of penetration.

A: On the 29th June we made the report but we couldn’t finalise it because of the chemist report.

Q: Is it not strange you had everything with you on 13th and that was your findings?

A: Clinically yes.

Q: But you had the chemist report with you.

A: But I do not know the location. There is no location in the chemist report.

Q: But you cannot be positive despite the chemist report? You read it.

A: Yes I read it on the 12th.

Q: But based on that you still cannot make a positive conclusion?

A: This report was prepared earlier on 29th June, but we finalised it when we received the chemist report on 13th july.

Q: So, P22 is the report based on the chemist report?

A: Yes.

Q: So the chemist report is the basis of P22?

A: it was one of the basis.

Q: that is very significant, isn’t it?

A: It is quite significant.

Q: We come back on the 26th June. What happened?

A: Nothing happened to me.

Q: Nothing happened to you. On the 28th?

A: Yes.

Q: On 28th June, were you the leader of the team?

A: I’m just one of the doctors.

Q: Who was the leader?

A: Three of us together as a team.

Q: On 28th June were there any other person other than three of you present?

A: DSP Jude.

Q: Why was his presence required?

A: He was the one who ask us to conduct the examination.

Q: He asked you to conduct the examination?

A: Yes.

Q: And throughout the examination he was present?

A: Yes.

Q: Is it normal for police officer to be present?

A: They have to be there.

Q: Police officer are always present during examination?

A: Yes.

Q: Do you take the history of the patient?

A: Yes.

Q: Detailed history?

A: Yes.

Q: Do you have with you?

A: I can produce it through my humble memory.

Q: You take detailed notes?

A: I don’t know what is meant by detailed, but I consider it detailed.

Q: Are you prepare to produce it?

YA: Under what provision are you asking it to be produce?

MY: KS should not be repeating the same thing.

KS: But if he agrees to produce. []

YA: I’ve already made my ruling so it is settled.

KS: The law is very clear. [] The ct must direct the witness to produce it.

Q: You are willing to produce it?

A: If I’m directed.

Q: What was the history?

A: A patient alleged he was sodomized by a high profile public figure for the past few months. The patient was working as a private assistant to the high profile public figure. According to him it started at early Mac 2008 at S.16 PJ.

Q: I’m asking for the medical history.

A: This is part of the history. He is being sodomised.

YA: What do you actually want?

Q: I’m asking the medical history. Not the complaint made to you.

A: I don’t know what is the medical history [] I’m a doctor.

Q: Did you ask him his medical history?

A: The patient said that he is being sodomized …

MY: My Lord, we have seen a lot of medical report and when it comes to history it involves the complaint of the patient. So if KS is asking for medical history, perhaps he can be more specific.

YA: Yes. Usually medical report the history involves the complaints of the patient.

KS: What about his illness from the past?.

YA: Ask specifically.

Q: Dis you ask the patient?

A: I was telling you just now what I ask.

KS: The problem with you is that you have been programmed to come here, that’s why you []

MY: That is not a fair comment.

Q: I refer to what was recorded by the doctor. ID16 – Pusrawi report. Report by Dr. Osman. Page 1. Pain. That is also part of medical history, is it not?

A: Yes.

Q: “Insertion of plastic”. That would be the medical history, isn’t it?

A: Yes. But the patient complained of being sodomized.

Q: Did you not ask him what he told the doctor earlier?

A: We take what he was asked by us.

Q: You did not ask in line with what the doctor did earlier.

A: We ask along the line of he being sodomised.

Q: Don’t you think it is necessary of fit to ask along the line what the earlier doctor did?

A: We do ask after we checked the complainant.

Q: What was it did you ask along the line which the earlier doctor did?

A: I don’t understand.

Q: You said you ask.

A: To me I ask about the sodomy episode.

Q: So you did not ask in line with the doctor.

A: I did not ask in line with it.

Q: Would you not when in a case like this ask whether the patient has pain in anus, and passing stool?

A: We did.

Q: Did you asked whether he went to a doctor previously?

A: Yes.

Q: Did you ask who is the doctor?

A: The patient only say being examined in a private hospital, but he did not named the doctor.

Q: Refer IDD 16, Do you agree whether what the doctor here did would be what a doctor should ask a patient alleging sodomized?

A: This is not a report, the doctor’s handwriting.

Q: But something is usually done.

A: Yes.

Q: Would it be right what he told you would be what he told the doctor? You knew that he went to other doctor earlier and it would be normal to ask him.. []

A: Yes. We ask what happened.

Q: Did you ask what happened initially?

A: The patient told us he went to a private hospital for examination, complaint of pain in anus. The doctor then realised the patient is being sodomised, and refer to us for examination.

Q: Rrefer to ID16. Where he “alleged introduction of plastic into the anus”.

A: We were told some instrument were inserted but not plastic.

Q: This report is very clear. “Patient assaulted by insertion of plastic into the anus”. If it stated otherwise, it would be inconsistent. Would you agree?

A: I do not have the report until now.

YA: He is not the one who made the report.

Q: If the same patient says something different from here, then there is a different?

A: Yes. Now I know that since I only get the report now.

Q: The report was done by 3 of you based on the notes and data collected by the 3 of you?

A: It is based on history, clinical finding and chemist report.

Q: You said just now notes were taken.

A: Yes.

Q: What purpose would that be for?

A: It is for the documentation of the location and specimens and the findings.

Q: Is there any reason why you don’t want to produce all these?

A: I’ve testified orally.

Q: You can remember everything?

A: Hopefully.

Q: Is it not important to produce it in court?

A: I prefer to give oral evidence, oral statement.

Q: You said hopefully.

A: Hopefully I can give oral statement.

Q: What you have recorded, can it be produce in court?

A: I can rely on what was stated on the report.

Q: In P22?

A: Yes. And the chemist report.

Q: And so P22 is conclusive?

A: No. We do not know the location of the swab taken when we made the report.

Q: But you knew the location then.

A: But there was no location in the chemist report.

Q: So you did not based your findings based on the chemist report?

A: We were not able to identify where the swabs were taken.

YA: Look at the chemist report. Give the chemist report to the witness, I did not want you to mislead the witness. Perhaps we can stand down for awhile.

KS: Why did your Lordship said I was misleading the witness [altercations] don’t need to adjourn.

Q: Look at ID25, [read]. Dr. Seah is a very expereince chemist?

A: I just know she is a chemist of the Chemistry Department.

Q: You said this is not details enough?

A: I just said there was no location of the swabs taken in the chemist report.

Q: So this report is not sufficient for you to put up your report?

A: During that time I did not know the location.

Q: When did you know the location?

A: I know the location when I testified in the court.

Q: Are you not responsible of the samples taken?

A: The samples was taken by Dr. Razali and Dr. Khairul.

Q: Are you not responsible for it?

A: I was.

Q: And then the samples are given to the police officer?

A: Yes.

Q: What was the marking done by you?

A: I named the location and the samples.

Q: Samples taken, did you mark them?

A: Yes.

Q: So the marking in the chemist report is your marking?

A: No. I mark the location but not B1-B10. This are not my marking.

Q: Were your marking tallies with your report?

A: Later on during examination-in-chief, yes.

KS: My learned friend will continue.

SN continue with the cross-examination.

Q: You are under oath?

A: Yes.

Q: Talking about the marking, you didn’t know the location of the samples.

A: Yes.

Q: You testify the DSP was presence during the examination and he had access of it.

A: Yes.

Q: I take it you have access all the time.

A: Yes.

Q: When you received ID25 on the 12th, there is a misjoint.

A: Yes.

Q: Would it not be easy for you to ask DSP Jude for the chemist report and the location and you can finalised your report?

A: Yes.

Q: I take it you did not do it?

A: Yes.

Q: Dr. Siew, what specific training do you have in sexual assault cases?

A: I’m trained as ordinary doctor holding the basic degrees. I’m also trained as a forensic phatalogist.

Q: What about specific training in sexual assault cases?

A: Not during the examination, but after that in 2009 until early this year I attended a training in Greece. But it is not a training in sexual assault cases. Part of it.

Q: Very generally in that sense?

A: Yes.

Q: How long is your training?

A: The whole 2009. And early this year.

Q: So you are a trained forensic pathologist?

A: Yes.

Q: What are the exams did you take?

A: []

Q: What text did you use?

A: Basically on the forensic pathology, some of the British textbook.

Q: Is it an internationally qualification? Forensic Phatology?

A: Locally, yes.

Q: Is it recognised internationally apart from Malaysia?

A: I’m not aware.

Q: What sort of journal did you refer to?

A: A lot.

Q: You said you read a paper on sexual assault cases. What was the last paper you read?

A: I can’t remember at the moment.

Q: What text did you used?

A: I can’t remember.

Q: What conferences you have attended the last 3 years.

A: International Academy…in Lisbon, in Greece…

Q: What are the papers you read on sexual assault?

A: A lot and one of it is from Australia, by Prof. David Wells.

Q: Is he in court?

A: Yes.

Q: What paper has you published in sexual assault area?

A: So far I’ve not publish any paper.

Q: How many cases of sexual assault have you done in the last 13 years?

A: About 50.

Q: In a year?

A: Depends.

Q: Would you accept that the cases are comparatively low compared to the international standard?

A: I was a Forensic Phatologist at that time so my main concern is in that area alone.

Q: So you are not much of an expert when you did the report, P22.

A: It’s up to the court to decide.

Q: In examination-in-chief you said you are a member of MMC. What would be the qualifications to be a member of MMC?

A: We just need to have a basic doctor degree.

Q: It is not a very prestigious organisation, isn’t it?

A: I cannot comment. I’m an ordinary member.

Q: You request for the photography of SP1. Why?

A: For documentation to show injury or no injury.

Q: What are the photographs taken?

A: Body and anal examination.

Q: Is private part photos taken?

A: The anus and some part of the rectum.

Q: Clear picture?

A: I can’t remember.

Q: You can’t remember some?

A: I can remember most.

Q: Are the photographs part of the medical report?

A: Part of the documentation.

Q: Is it part of the report?

A: I don’t agree.

Q: What is the purpose of the photography then?

A: Evidence in court.

Q: Would you able to produce it?

A: I don’t have the photographs. It’s with the police officer.

Q: For what it is with them?

A: For documentation.

Q: But you instructed them to take the photos.

A: They have the camera.

Q: Is it should be part of corroboration for the report?

A: Yes.

Q: So, it is not with you?

A: Is it not with me.

Q: Then with whom?

A: DSP Jude brought a photographer with him.

Q: Would you be able to produce it if asked?

A: It’s with the police officer. The photographer is brought by DSP Jude.

Q: Would not the photos be the basis of your report?

A: I do not have the photos.

Q: I refer P22. Can you show where in the report you made reference of the photographs?

A: Nothing in the report.

Q: Were it in your notes? Any notation in your notes?

A: No.

Q: But you did made notes?

A: Yes.

Q: Collection of samples. What training do you have in collection of samples?

A: I have a Bachelor in Medicine and Master Degree.

Q: So by those qualification you are trained and can handle sample collection? So you said any doctor with just an MBBS would be able to handle specimens collection.

A: Yes. I’ve a Master Degree and specialise in Forensic.

Q: Can you more specifically tell the court on how you label the specimens?

A: I labelled the stickers.

Q: You pre-labelled the stickers? How did you do that since you did not know the location of the specimens taken.

A: I label the particular and I said “now we are collecting the low rectal swab” and they will swab and passed it to me.

Q: Were the equipment sterile?

A: Yes. The bottle came sterelize.

Q: They came in a seal?

A: Yes.

Q: Were you able to show how it is sterile?

A: Yes. But not now.

Q: When you sealed them what sort of seal did you use?

A: A specialised plastic tape.

Q: The plastic is also sterilise?

A: Not very.

Q: You have a bottle about 2 inch height. Then how did you get a 5 cm swab into the bottle?

A: We break it without touching the stick.

Q: How did you break it without touching the stick?

A: [witness demonstrated]

Q: Was it air tight?

A: When I sealed it it is air tight. I sealed it with a special plastic tape around the cover. So basically it is untouched.

Q: So it is untouched and air tight?

A: Untouched. But not sure how air tight.

Q: How many samples did you take?

A: 10 samples and 1 FTA card for DNA profiling. So there are actually 12 samples.

Q: How many times have you done the sampling taking and collection of samples?

A: About 200 times.

Q: Did in all the 200 times you sign the bottle?

A: Not all the time.

Q: Why not?

A: Most of the patient are dead person.

Q: You are more on pathology, isn’t it? You deal with dead person more than alive person. How many dead and how many alive?

A: Approximately 1000 dead and 200-300 alive.

Q: Why do you discriminate? There should be a protocol isn’t it? Why did you discriminate here?

A: Only some of the living I signed not all.

Q: I put it to you that there is only one case you signed which is DSAI’s case.why?

A: Disagree. Only in exceptional cases.

Q: What is the basis of the exceptional?

A: I have the stickers in my department and it can be used by others. When I signed, only have stickers with my signature and also Mr. Saiful so that nobody can open it.

Q: Why in this case?

A: So that nobody can temper it.

Q: Would it be correct that according to international standard all samples must be signed? But why you, in your case discriminate?

A: I want to make sure the samples are intact and nobody can temper with it.

SN: Can we start at 8.30 a.m. tomorrow?

YA: It’s not even 4 yet. You have the questions now?

SN: I need to discuss with the expert.

MY: I believe SN should proceed with those he prepared until 4. Because I’m told Dr. Siew is needed in Terengganu High Court on Thursday.

Q: You have been handling samples, in pathology and in sexual assault cases. Every time there is a sexual complaint, there would be 3 doctors at the OSCC?

A: It is a hospital protocol in sodomy cases, a surgeon, a forensic and ….

Q: Can you produce the protocol? The written protocol.

A: I don’t have it, but I know we have it. There is a protocol.

Q: Is there a written protocol?

A: No. We have a consensus understanding in sodomy cases there must be 3 doctors. Except in rape cases because the gynae must be present.

Q: Would you be able to verify that HKL meets the international standard?

A: Yes.

Q: Surely there is a protocol.

A: We have a meeting on this matter.

Q: Do you or don’t you have one?

A: We have a standard operating procedure. But I can’t produce it because it is not my authority.

Q: But you ask for it.

YA: Show him whatever you have, the examples.

SN: [shows].

Q: Have you seen a protocol like this?

A: This are forms.

Q: Protocol, form, whatever. Do you have that?

A: We have this.

Q: Have you seen this?

A: Yes.

Q: Will you able to produce it tomorrow?

A: Yes.

SN: Could we stop to tomorrow morning? I need to consult my expert.

YA: Start early. KS? So come tomorrow at 8.30 a.m.

[15.55 p.m.] Adjourned.

Comments»

No comments yet — be the first.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: