Anwar Ibrahim Sodomy II – The Recorded Truth – 22 Februari 2011 February 28, 2011Posted by malaysianstory in Anwar Ibrahim, Malaysian Story, Sodomy II.
Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP : Semua hadir kecuali MM
PB : KS, SN, Ram Karpal, Datuk Param Cumaraswamy, Marissa Fernando (Dato’ CV Prabhakaran, Radzlan tidak hadir)
WB : Zamri Idrus (for Complainant)
Expert for defence: Dr. Brian McDonalds
MH: Hari ini ditetapkan untuk sambung pemeriksaan balas SP5. MY akan datang lewat sedikit.
SP5 mengangkat sumpah di dalam Bahasa Inggeris.
SN: YA, RK will take after I finished because he is supposed to start but he couldn’t come. He will probably need 10 minutes untuk sambung. After that KS will continue.
Q: Dr. Seah, you have informed the court that you are 20 years in your field.
A: Since 1991, I’ve been in the Department of Chemistry.
Q: What was your position in 1991?
A: As scientific officer.
Q: You said you did your PhD in Adelaide.
A: Yes. In the University of South Australia.
Q: Is that a full time course?
Q: As a scientist, do you agree that there is a need for total and exemplary integrity, honesty, unbiasedness. Do you agree with that?
A: Yes, totally.
Q: And to act professionally and should not act without favour or fear.
Q: Irrespective the person and their station in life?
A: I agree.
Q: From your CV that we noticed, can we say that you are a competent person?
A: Yes, I am.
Q: Should we say very competent?
A: I have more than enough experience in forensic case work.
Q: So, no place for tardiness that you take what you do as per your job.
Q: And that you’ll be diligent as well?
Q: And it is prerequisite and paramount to be diligent in your area of work?
Q: Do you agree that whatever you find or whatever assumption you made or whatever finding you made affects the life of an accused or his freedom?
A: Yes, this is forensic science.
Q: There is an impact?
Q: So, there is a heavy duty on you to be accurate, meticulous and everything I mentioned to you just now?
Q: You told that your Jabatan Kimia Malaysia lab is accredited to ASCLD. Is that correct?
Q: ASCLD is just one of the body recognized by the international bodies. Is that correct?
Q: ISO. Do you know what is ISO? International Standard Organisation. What does it do?
A: It sets the quality standards.
Q: Is it a government body or what? Is it an authority? Why is it be of authority?
A: It sets the quality standards for calibration and testing laboratories.
Q: Would you agree by say that ISO is a non-government organisation and it sets standards that will become law either through treaties or national
standards making it more powerful than other non-government organization. Do you agree with that?
Q: As such, if you have set standards accredited by ASCLD and you are also by meeting ISO standards. What standards does lab comes under the ISO standards?
A: ISO 17025.
Q: There are also other labs like the New Zealand AINZ labs, European labs that is accredited to ISO similarly to ASCLD. Do you agree there is another one called Australian National Assosiation for Testing, NATA for short?
Q: What is the purpose of having accreditation?
A: Purpose of accreditation is to set standard for the lab for testing and calibration laboratories. That standard is to ensure that proceduresare carried out correctly. It ensures that testing method are reliable and to ensure that the personnel and the physical facilities are of internationally acceptable standards. And also the results that are generated by printed laboratory are also accpetable by international standard and are reliable.
Q: And do they have to give inspection report?
Q: How often do they come to lab?
A: ASCLD lab requires inspection every 5 years and annual audit.
Q: When was the last time your lab was inspected and audited?
A: It was inspected on 2005 and audited annually.
Q: What does the audit entails?
A: The audit entails the operating functions of the laboratory and normally it is carried out by neighbouring accredited lab.
Q: Your lab has not been inspected since 2005?
Q: I’ve got this ASCLD which is used by FBI. Basically it has list of things very generally as to what to look for in lab accreditation. Under definition amplification. Amplification controls consist of amplification re-agents without additional of DNA sample. The control is used to detect DNA contamination of amplification re-agents.
Q: Calibration being one more.
Q: Proficiency test.
Q: Polymerase Chain Reaction(PCR) and what it is all about, the replication cycles and all that.
Q: Review and evaluation of documentation. Check for consistency, accuracy and completeness.
Q: Also, there is a review. Technical review is an evaluation of reports, notes, data and other document to ensure that the proper basis for scientific conclusion. The review is conducted by second qualified individual.
Q: Is that also practised in your lab?
A: For every report that is being produced by the laboratory.
Q: And you have a record of it?
Q: Similarly, item 3. Quality assurance programme, where the lab shall established and maintained the documented quality system that is appropriate to the testing activities.
Q: The quality manual shall address the minimum goals and objectives.
Q: Organization and management. Personnel qualifications and training, facilities, evidence control, validation, analytical procedures, calibration, maintenance, proficiency, reports, reviews, safety and all that.
Q: Do you have this in placed in your lab?
A: Yes, we have.
Q: And you can produce it if we ask for it?
Q: In evidence control. The lab shall have and follow procedures documented evidence control system to ensure the integrity of the physical evidence. The system shall ensure that the evidence is marked for identification. Chain of custody for all evidence is maintained.
Q: The lab follows documented procedures that minimise loss, contamination and all deleterious change of evidence that lab has secure area for evidence storage. You have that right?
Q: And reports. The lab shall have and follow written procedures for taking and maintaining case notes to support the conclusions drawn in lab reports. Right?
Q: The report according shall maintain in a case record, all the document written by examiners related to case analysis.
Q: The case according to the written guideline include case identifial. What is a case identifial?
A: It is the case number.
Q: Description of evidence examined?
Q: Description of methodology?
Q: Results and conclusions?
Q: An interpretative statement either quantitative or qualitative.
Q: Date issued?
Q: Description of evidence?
Q: Signature and title?
Q: Or equivalent identification of the person accepting responsibilities for the content of the report.
SN: And of course audit thereafter. I won’t go into that one.
Q: Do you have quality assurance for testing of semen samples?
Q: Is it a separate document or is ot part of your guideline? Or how is it in your lab?
A: It is part of our guideline.
Q: Is it specific?
A: It is specific on the test method.
Q: Genrally it is specific guideline or general guideline?
A: General guideline.
Q: Who provide the samples for semen samples?
A: It is collected from the local hospital from the sperm bank at the local hospital.
Q: How do you conduct your proficiency assurance program?
A: We subscribed to a body called CTS, Collaborative Testing Services.
Q: They will provide you semen samples as well as the test?
A: Yes for proficiency. It include all kinds of biological stains.
Q: When did you last do a semen sample?
A: Last November. November 2010.
Q: Who provide you the samples?
A: The CTS.
Q: Did you have records of it?
Q: And you completed successfully?
A: Yes. And the proficiency test results are directed to ASCLD lab. The proficiency test result from the analyst in accredited laboratories are directly fed back to ASCLD and ASCLD have all the records of proficiency test performance.
Q: And you are able to provide a copy?
A: I wouldn’t because that is being held by ASCLD. But if any participant failed the proficiency test or does not achieved satisfactory level in proficiency testing will be queried by ASCLD lab.
Q: What I’m made to understand is that the CTS would publish the proficiency test even on the website. So you have a record of it, don’t you?
A: Yes, the consensus results.
Q: But it is there and it can be obtained?
A: Yes, it can be obtained.
Q: I have here National Association of Testing Authorities Australia . They also follow the same ISO standards. Do you agree?
A: Yes, but I’m not familiar with the NATA system.
Q: Have you ever consider that although your lab are accredited to ISO, but if the police who is working with you don’t have the similar standard, wouldn’t it affect your quality?
A: I wouldn’t know what standards the police have.
Q: Logically. I assume they do not have an ISO standard. Logically it will affect your work, right?
A: They might have some standards.
Q: Have you not asked?
Q: Why not? You are supposed to do quality assurance.
A: No. Because we crime scene investigation is not part of our activity.
Q: I’m talking about the crime scene investigators’s competency. Their standards can affect you. That’s why such lab have such controls. And these are part of your requirement. Do you agree that competency is material to you?
Q: Sampling procedures. Procedures for sampling must ensure evidence sampling is maintained. Agreed?
Q: Handling of test and calibration items. Policies and procedures for retention and disposal of exhibits or samples after the completion of examination and testing must be documented.
Q: Labs must have procedures to ensure the integrity of evidence or samples under its control.
Q: All samples or evidence must be sealed and identified by person sealing the evidence.
Q: A chain of custody record. Signature, date, time, description of evidence, sample must be maintained which provides a comprehensive history of each evidence transferred over which the lab has control. Agree?
Q: All evidence must be sealed. On that part I just want to add one more. If tape is used to sealed containers, it must be initialled or otherwise identified.
Q: Seals on the packages must be initialled or other identification across the seals.
Q: It is understood that labs received numerous sources making it difficult to ensure that all evidence submitted is properly sealed. Packaged evidence received by labs which does not bear the identification of the person sealing the evidence, containers is not considered to be properly sealed. . Procedures for receiver that is expected procedures for receipt of evidence is expected therefore to ensure whatrever possible items are stored properly and sealed.
Q: Is it part of your protocol to also formulate a list or a guideline to people who collect samples like the police, any authorities or anybody bringing samples to you for testing?
A: Yes, we do.
Q: What did you mentioned in the guideline to the police like in a case like this?
A: We’ve issued guidelines on the police on how to collect, how to preserved, how to document.
Q: And you can produced the protocol if I asked you?
Q: Did you always strictly stick to those guidelines?
A: We stick to those guidelines. Those guideline is for them to rely on.
Q: If they do not follow the guidelines you issued, what will you do?
A: We will advice them and usually we will not accept exhibits that failed our accepted guideline.
Q: Will you put a notation?
A: We give a memo to them.
Q: Will you then asked them to bring back the exhibits? Or you totally reject them?
A: We reject them and we will note on the basis of the rejection.
Q: So, every samples that comes to you would have passed the guideline?
Q: It is strict, isn’t it? Or are you suggesting you are making discretionary changes if you like?
A: No. Those are only guidelines.
Q: They are important aren’t they?
A: Yes, they are important.
Q: So, it is not a light matter? It is a general guideline, isn’t it?
Q: You also mentioned in your evidence that there are feedbacks from whoever that used your services. Did you record the down?
A: Yes. We have a file on the documented feedback.
Q: Do you have that system in place?
Q: You are able to tell me on how it is rated?
Q: But in your testimony you said that “Well, I’m not so sure what they think of me, but I think they accepted my evidence”.
A: No. That’s the court testimony.
Q: It’s also part of it, isn’t it?
Q: Why? Is court’s testimony part of your quality assurance?
A: Yes. But that monitoring is not done in every case. It is an ASCLD standard for court’s monitoring.
Q: Where is the standard? It is given in the quality assurance. It is not a specific guideline.
A: But the court’s testimony is recommended for once a year.
Q: When you received samples from the police in this instance, by virtue of your protocol it’s quite strict. It’s very strict. When you received samples from the police, what will you do?
A: When the exhibits are submitted, we will examine the packages. We have to ensure the packages are in good condition and not torn.
Q: You examined the packages personally?
Q: In this case, you would have done it?
Q: What do you look for?
A: We look at the packaging whether it is in good order. We look for the seals, whether the seals were intact. We also look whether the exhibits have markings. And look at the request form from the submitting officer and what the request are for.
Q: Is that all? Give me more than this.
A: We will check for the police report number, whether the number correspond with the request form. Then we will have to check whether the numberings and markings are in order and that is done at the time when the exhibits are received. On the contents, that can only be conducted in the space of the laboratory.
Q: I’m talking about when you received them.
A: We will then register the case, issued a laboratory number which is the unique identifying number. And that unique identifying number would have to be on each and every the packages of the exhibits we received. And we will then acknowledge them with an official receipt which was documented at that time, the date, the number of exhibits, that we received, submitting officer, the name of the investigator, their id, and of course that has to be signed by the receiving officer and that sign is to be on every page of the receipt. That receipt is a duplicate, one of it is given to the submitting officer, and the other will be kept in the case note records for this particular case.
Q: Let’s go to general tagging requirements. All evidence including firearms should be submitted in tempered seal container or package. Do you agree with that?
Q: Manufactured evidence storage bags must have such sealing capability initials placed on the sealing. All other plastic bag used for packaging must be heat seal and initial over the seal. Plastic bag not specially manufactured for evidence storage will not be accepted if sealed with evidence tape that the seal can be compromised. This is again ASCLD requirement.
Q: Tempered evidence seal. Please explained what is tempered evidence seal. What is the meaning of tempered evidence. Tempered evidence seal must be initialised.
A: That means the evidence is tempered by sort of another party.
Q: This requirement is absolute?
Q: It has to be absolute?
Q: Why is it to be absolute?
A: To ensure the chain of evidence is preserved.
Q: What about the integrity of the sample?
A: That also.
Q: That would mean at the source?
Q: If you find any unsatisfactory reason, you ought to reject the sample, right?
Q: When you said earlier that you would record all these information down, the police identification, the date and time, is there a pro forma used in your lab?
A: A form.
Q: A form or a pro forma?
A: It’s done on the LIM system. Laboratory information management system.
Q: How does it work?
A: The electronic registration.
Q: You keyed-in or you write it down somewhere?
A: It’s keyed-in into the LIM system.
Q: It is done at the office?
Q: At the reception?
A: Yes. And the LIM system is also linked to the laboratory.
Q: So you will be dealing with the investigator, with all these items and you put everything down?
Q: What will you usually take into data on the samples itself, each samples?
A: The type of exhibits whether it is envelopes or packages or a box or a tube.
Q: Will you be able to produce this pro forma, the one that you received for this case?
A: It’s in the electronic form.
Q: Surely it can be printed out.
Q: Can you print the pro forma that you received for this case?
A: That pro forma cannot be printed into hard copies. It is in the electronic form.
Q: Why cannot be printed? Even the PDF can be printed out.
A: Probably can be printed out by the LIMS administrator.
Q: Who is this LIMS administrator?
A: We have a LIMS administrator in our division.
Q: Can it be printed out?
A: I can give the printed copy but I don’t have the authorization to print out the form.
Q: You keyed-in it and you want to print it out for your file. Can’t you do that?
A: The hard copy that is printed out is the main details. It is in different format.
Q: But it can be printed out
Q: So, you know for a fact of getting it done.
Q: Can you produce it?
Q: It is very standard, isn’t it?
Q: What would you have put in? Envelope number? Seal?
Q: Did you record down the origin of the source? Like if Dr. Siew has given the samples, will you not illustrate it?
A: That is in the case notes. Not in the LIMS system. Not in the pro forma. The pro forma will only….
Q: Would that not be in your pro forma?
Q: But wouldn’t the date and so on is important to you?
A: The first registration is on the LIMS system. That would indicated the type of exhibits, the id number…
Q: Name of Dr.Siew is mentioned there, right?
A: That would be in the next stage in the laboratory. The content of that package or envelope will be documented in the case notes, case worksheet.
Q: Date when it is taken, it is shown in the exhibit, right?
Q: You’ve got to documented it, right?
Q: What ever noted in the pro forma would be in the case note, right?
A: No. It is in our system, the LIMS system.
Q: Are you suggesting that you just noted down you received swab B, B1 B2 and so on?
Q: There will be details, right?
A: Yes, but not in the LIMS system. Whatever is in the LIMS system will be in our record.
Q: Do you have a pro forma for your lab?
Q: You got pro forma for registration and also for the laboratory?
Q: What do you record down at the point of accepting the samples?
A: The identification number of the submitting officer, the description of the exhibits whether it is the envelopes, packages, tubes, or plastic receptacle. The condition of the seal. After that there will be the sample registration that being the case registration. After that there will be sample registration which will be carried out by the receiving officer on the content of the exhibits. The LIMS system will only record the content but without the details description. The next stage would be the generating it in the pro forma that is the samples worksheet. That will be used and kept in the case record. This sample worksheet will document the details of the content. It will have the date received, the label and so on. That pro forma also include sketches, photographs where it is required, the presumptive testing or the confirmatory testing which is carried out and the results.
Q: Is it a practice to photograph the samples that you received?
A: Not at the time of receiving it. In the laboratory, it is either photographed or documented.
Q: Is it not a good practice to also photograph as additional measure to avoid allegation as you received it?
A: Not necessarily so. There are also other alternatives.
Q: Is that good practice?
A: That might not be practical.
Q: Why not? Isn’t it good for you?
A: That’s the reception stage. They are also alternative.
Q: Is it not good practice?
A: It might be, but not practical.
Q: Is it not good practice?
A: It could be.
Q: You will record all the details of the exhibits that you recieved?
Q: I take it you would have done it in this case when the case come to you and you would check it meticulously?
Q: And if there is any mistake, there will be correction, the name of the person correcting it, date and time?
SN: YA, I need to refer to sample B4, B5, and B6.
SN: Sample B5 is exhibit P6F. Another one is B4 which is P6E
Q: You would have recorded the information on the envelope, right?
Q: It talks about swab from peri anal region and so on.
Q: Can you confirm on what date did you received the sample of B, B1-B11?
A: At 30.6.2008 at 7.55 p.m.
Q: Who handed them over to you?
A: DSP Jude Blacious.
Q: Did you opened it?
Q: But the seal was intact?
Q: I refer to samples B4, for P6(E). Can you see the writing HKL there? And the name of the complainant?
Q: Did you record all these down when y?
Q: In proper format?
Q: If you look further down, can you see the . Did you see Dr. razali there? And some description?
Q: Can you read the date on that container?
Q: And you receive this sample on 30.06.2008?
SN: I’ll show you another one which is B5 which is marked as P6F.
YA: You are referring to the white label here and written in blue ink?
Q: I’m going to show P6F which is B5. Can you see the date there? Please read it.
Q: Are you sure it is 6. Is it 6 or is it something else?
A: Could be a 6.
Q: Could be 6 and could also be 8, agree?
A: Could be.
Q: You would’ve recorded this in your record, right?
Q: Wouldn’t it be odd that it is 26/6/08 instead of 28.06.2008?
Q: I’m going to show P6G which is B6. Can you see the date there?
SN: YA, just to inform, all the other is written 28/6/08.
Q: You compared all the three receptacles, are the handwriting the same? Do they look alike?
A: Yes, they appear alike.
Q: How many “B” samples that you received from DSP Jude Blacious?
A: 12 samples.
Q: Which date?
Q: Only 12 on that date?
Q: Only on that date? And not later or earlier?
Q: Did it not occur to you that the taking of the swabs is on the 28.06.2008 but when you record it down, the date on the receptacle is 26/6/08? Did it
not strike you that something is not right?
A: Normally we will not act on this.
Q: Why not. Was it not odd for you? Surely it is taken on the 28th? Do you know it was taken on the 28th although you received it on 30.06.2008?
A: I have very limited information.
Q: At that time, did you know. Are you aware that the samples was taken on the 28th?
A: It was noted down in the request form.
Q: Did it not strike you that something is odd here?
Q: And what would be your duty by way of protocol when you see this descripency?
A: We can’t reject…
Q: What should be your duty according to your guideline?
A: We are not bound to…
Q: What is your duty? You are bound by international standard?
A: We are not bound to reject the exhibits.
Q: Why not?
NB: She has answered the question YA. She answered “We are not bound by it”.
SN: Mrs. Prosecutor, please sit. This is my time to question! You will have your time.
NB: She has answered the question.
SN: You should not intervene when I’m questioning!
Q: So, what is your duty?
A: We are not bound to reject the exhibits.
SN: You are not answering the question!
NB: She has answered the question.
SN: You are not the witness here. Why are you answering for her? Prosecutor, please remain where you are. It is recorded.
Q: You would have record the date as it appeared on that?
Q: So, there are two different dates recorded with regard to the samples?
Q: I’m putting to you, by international standards you ought to have them rejected on the spot. Do you agree?
A: I disagree.
Q: If you have two samples that are already out of line, don’t you think you should also look at other sample with suspicion? Part of your protocol?
High integrity! You have just said it. Isn’t that integrity.
A: That is not integrity.
Q: If you see there is something not right, you should suspect on the other, right? At least a little?
A: No. We will… benefit of the doubt.
Q: The other day you said you won’t speculate and you speculated. Now you said benefit of the doubt of a sample that could actually put somebody in trouble. 
A: No. If it is for benefit of the doubt that it could have been wrongly written.
Q: Then you should note it down. Did you note it down? You did not note it down until in the court. Isn’t it?
A: Because we didn’t…
Q: You only know right?
A: Those label…
Q: You did not raise it until now, right? I raised it. Yes or no?
Q: You did not note it down.
A: That is noted in the case notes.
Q: In this case why don’t you raised this earlier? I put it to you that you only know it now.
YA: Do you agree with the suggestion that you only it now?
A: That was noted down, but..
YA: So, you don’t agree to the suggestion?
SN: Dr. Seah, come on. Straight question, straight answer.
MY: YA, the witness has answered.
SN: She has not answered.
YA: She said no.
MY: She give an answer that the counsel don’t like.
MY: So what? You submit it later. 30 questions, but one answer.
SN: Your witness is the most evasive witness ever.
YA: Both of you, stop quarrelling!
MY: As far the literature is concerned, counsel should not make running commentaries.
SN: I’m asking the witness. But you are not objecting.
MY: I’m not objecting. You are quarrelling with the witness. She already gave her answer but you didn’t accept it.
SN: I decide whether she answers or not.
MY: The court decides whether she answers or not.
Q: I put it to you that you did not know until now.
A: That was noted down at the time of examination.
YA: That means dia tak setuju la.
SN: And then cakap la tak setuju.
YA: You can take it as dia tak setuju.
SN: Okay, I take it dia tak setuju. She should say that.
Q: You said you noted it down, did you inform the prosecutor about it?
Q: Is it important for you to inform them?
Q: It is a serious matter, right?
A: No. Because the labelling was not done to me.
Q: That’s not the matter. But you saw it. You said you saw it and noted it. So, you had the have opportunity during the examination-in-chief to inform the court?
A: I was not asked on that.
Q: Did you not inform the prosecutor?
A: I was not asked of it during examination-in-chief.
Q: I put it to you that you are lying. You never recorded it. You had the opportunity but you didn’t do it.
A: I disagree.
Q: From that date, 26th, what do you understand by the date? That the samples was taken on 26th rather than 28th? What has the assumption be?
A: I can’t assume.
Q: Logically that would be the date, right? The date should be 28th.
A: There is nothing written indicating it was the date taken.
Q: Logically that shouldn’t be the date right? All the others are the 28th.
A: It is what is written there. But there is nothing indicating it was the date taken.
Q: You are not being honest on this at all. I put it to you that you are not honest.
A: I would like to take YA to look at it. There is nothing along there written that it was the date taken.
SN: You can explain it in your examination. So, enough.
A: I wouldn’t know.
SN: I’m moving on.
Q: Did you know that all the swab were taken on the 28.06.2008?
A: That was as noted in the request form.
Q: So you would’ve known from here that in ID 24 when was the sample is taken?
Q: And yet 26 is the benefit of a doubt?
Q: You said to the court that it is vital, prerequisite and the integrity of the samples are paramount.
Q: To ensure that what ought to be done by the person who collects them?
A: The collection has to be documented of what is properly collected, it should be stored in a proper containers, and properly sealed..
Q: It is a special seal, right? It cannot be a normal seal because we are talking about tempered proof seal.
Q: If the seal is not properly tampered prove, normally you have to reject it?
Q: What will you do if you found that the seal may not be tempered proof? Normally you have to queries or reject?
Q: Is HKL Forensic is administratively controlled by Jabatan Kimia Malaysia?
Q: You are an independent unit totally?
Q: You would have issued guidelines to them on the collection of samples?
Q: You informed the court that you received 12 envelopes from DSP Jude on 30.06.2008?
Q: And all the 12 envelopes are sealed with …is that what you received?
Q: And what does the seals show? The HKL seal?
A: No. Not on the envelope. On the envelope is the Polis Diraja Malaysia 330 seal.
Q: What type of seal is this?
A: Wax seal.
Q: What colour?
Q: Is it a standard prcatice by the police to have red wax seal?
A: Sometimes. Forensic Polis Diraja Malaysia has their own seal.
Q: What is the benefit of using this red wax seal?
A: To ensure it is tempered proof.
Q: Would you consider that the seal as 100%?
A: Yes. If it is broken, it will be rejected.
Q: This plastic receptacles, is it not used for urine collection too at the hospitals?
A: There are other containers too.
Q: But it is also used, right?
A: Maybe, because I don’t deal with toxicology .
Q: When you opened the package you also the samples like this?
Q: It is with white label with Dr.Siew’s name and the date?
Q: What else can you describe of the outside of the plastic receptacles?
A: There’s a security label.
Q: In this case security label from HKL. Was it exactly done like this? Was it pasted like this?
Q: What is this yellowish? Is it a paper tape?
A: Yes. A masking tape .
Q: A paper based tape,right?
Q: . What is it made of?
Q: And there is some adhesive here.
Q: If it is to be peeled out , can it be peeled off? Is it peelable?
A: If it is done carefully.
Q: There’s signatures there? Where is the signature?
A: There are various. One is at the top.
Q: Whose signature?
A: I don’t know.
Q: And there is another one at the side?
Q: If someone put their signature at the side, what does it mean?
A: Probably to identify individuals involves in the collection of samples.
Q: Why would you sign at the mouth of the bottle and not on the cap?
A: Because at the point of opening, that will be the point where it breaks.
Q: How did you open this? Did you used a knife to cut or a blade to cut or you just twist it?
A: We twist it and cut the masking tape.
Q: If you cut, the bottom part will show.
Q: Would you consider this to be tempered proof?
Q: Even better than the red wax seal by Polis Diraja Malaysia?
A: It is just as good.
Q: As good as the Polis Diraja Malaysia seal?
Q: But you have just said just now that it is peelable.
A: It is peelable, but it cannot be placed back.
Q: Let me show you what I have here. A similar receptacle like you have with a paper based tape and I must say strong glueable tape. Adhesive strong tape. I take a tape and placed it here. That seal, would you agree is 2 ½ years?
Q: When it is taken and seal by Dr. Siew on 28th, if it is 28th, and DSP Jude give it to you on 30th, you broke it on the same day I supposed? 2 or 3 days later?
Q: And you see how I can peel it off easily? So, a skillful person can take out the seal very slowly, you can take it out. Do you agree?
A: Yes for the tape that you used.
Q: Next, I would suggest to you that a better seal to be double and to be of tempered proofing. A red wax seal would be better. Agree?
A: Red seal will be tempered proof.
Q: If you put something like that additionally, it would be 100% tempered proof?
A: Yes. It would enhance the tempering
Q: And this would meet your standard of ISO, right?
A: It is not my sample. There is a tempered proof seal on this envelope.
Q: Is it good practice?
A: Yes. It could be.
Q: If this was done, there will be no queries, right?
A: Yes, it will enhance.
Q: I suggest to you if it is done by HKL and it could be done, they ought to be done, right?
Q: Never mind if HKL didn’t do it, but to enhance security, the police could have been there and they have the seals,  it will be that kind of seals, right?
Q: When you received the samples, were you shown a white plastic bag from HKL, P27?
Q: Have this be done by the police or HKL then, it would be tempered proof?
Q: Therefore, it would also be good practice?
Q: Do you agree if the exhibits taken are short of tempered proof, it would raised the issue of integrity of the samples, right?
Q: And you agree that it is important to preserve the integrity of the samples you received?
Q: When you opened the bottles, were the swabs moist or dry?
A: I can’t remember.
Q: Did you record it down?
Q: Were they stained or were they clear?
A: Some of it had stain on it?
Q: Which one is stained?
A: The one that was stained are B7, B8 and B9.
Q: Stained badly or what?
A: Visible stain.
Q: Was there smell?
A: The examination was carried out in fume chamber, so we can’t smell it.
SN: That would conclude my thorough cross-examinantion. But RK has some questions.
YA: I thought you dah habis kelmarin.
RK: Yes. But there are some further question. It will not take long.
Cross-exam by RK.
Q: You mentioned drop-in yesterday. Drop-in of certain allele. That there is a possibility which may arise in your examination. Would it be correct to say that drop-in is a situation where you observe an unknown or a foreign allele that is unaccountable and unexplained at certain locus. Is that right?
Q: So you might have for example at B9 that you have an 18 allele which you told us yesterday could be drop-in.
A: Was B9 reamp?
Q: If you notice drop-in allele in the locus for the first time, you can’t possibly conclude that it is drop-in at that point in time, right?
Q: The reason is that because you have to carry out further test to confirm whether it is a drop-in.
Q: So, what you have before you in B9 is the subsequent test, the reamplification test.
Q: The purpose of that reamplification is to exclude the possibility it being a proper allele, is that right?
A: No. The purpose of the reamp for B9…
Q: As far as the drop-in allele is concern. There are other purposes, no doubt. I’m talking about the drop-in. I’m focusing allele 18 now, by way of an example. One of the purpose to carry out reamp in B9 is to exclude the possibility of 18 allele from being a proper real allele, right?
A: Could be one of the sides. That’s not the main reason.
Q: But it was one of the main reason.
A: That’s not the main reason.
Q: It is one of the reason. One of the reason, but not the main one.
A: That’s not the main reason.
Q: Here, when did you first observe the drop-in?
A: The first time I look at the locus, 18 allele is below the reporting threshold.
Q: But you observe the drop-in, right?
A: There’s a peak, but it is below the reporting threshold.
Q: What allele did you observe?
A: 18 allele.
Q: Having observe the 18 allele, what do you conclude at that stage?
A: I don’t conclude yet at that stage.
Q: What do you have in mind at that stage?
A: I have an open mind at that stage.
Q: So what did you do?
A: I reamp, but not for that reason.
Q: Did you reamp all the profile that you had?
A: No, only certain profiles.
Q: So, you have to make selective decision on which profile to reamp?
Q: Having made the decision, you proceeded with reamp?
Q: You reamp B9?
Q: Having reamp B9, did you still observe 18 allele?
A: Allele 18 is now above the threshold.
Q: So even after reamp you saw 18?
Q: So, before reamp and after reamp, you also allele 18?
A: Before reamp, it is below the reporting threshold.
Q: Never mind. I’m asking about 18 allele. You are telling us that it could be possibly drop-in. You can’t tell us for certain it is drop-in.
Q: If you can’t exclude a drop-in, it would mean there is another person’s profile in it, right?
Q: You saw the profile for the first time, you notice 18 allele. I take it you don’t have the pre-reamp result here.
Q: But it does exist, right? You have it in your possession but you can’t refer to it today.
Q: You would require the pre-reamp result to tell us what percentage and the peak height of 18 allele, right?
Q: That’s why you can’t be certain that it is a drop-in.
A: No. It’s concluded as drop-in.
Q: What is the purpose of doing a reamp as far as drop-in is concern? To exclude the possibility of drop-in?
A: To exclude the possibility of drop-in.
Q: If you do a reamp, you do it for many reasons. But as far the drop-in is concern, you want to exclude the possibility of it being there?
A: That’s not the main purpose.
Q: You’ve got an 18 allele in B9 at D3S1358. You have notice that for the first time and you want to exclude it. The implication of a drop-in is far reaching.
Q: Did you exclude allele 18 in reamp?
Q: Then, why were you concern with drop-in?
Q: Were you not concern with drop-in on your pre-reamp result? Did it not bring some alarms there?
A: It’s a small peak.
Q: So, you didn’t bother about it? You didn’t concerned yourself which the 18 allele would be or would not be drop-in? Wasn’t not an issue to you?
A: It wasn’t an issue. It is not concluded during the pre-reamp.
Q: Pre reamp, you said was not an issue. You just saw 18 allele there and you tell us that it is far reaching implication. And now you are telling us that although it is far reaching implication, it wasn’t an issue at the pre-reamp observation?
Q: It wasn’t an issue during pre-reamp?
A: Yes. It was below the reporting threshold.
Q: Was it became greater after reamp?
Q: So, it become greater after reamp?
Q: That means it became more significant after the re amp? First, it was small during pre reamp. It’s something to be worried of even it is small, isn’t
it? You can’t just discard it, can you? Can you just discard the 18 in pre-reamp?
A: No. It has to be explained.
Q: Of course it has to be accounted for and explained. Hence one of the reason you reamp. I apart from re-amp isn’t it? You have explained it. How else would you explain it apart from reamp it?
Q: Can it be excluded in pre reamp?
A: It should be explained.
Q: How else would you explained it apart from reamp?
MY: What is the question?
RK; You don’t understand it.
YA: Setuju tak dengan apa yang counsel cakap?
Q: You’ve got an 18 allele. You can’t just leave the 18 allele at pre reamp stage alone?
A: At pre amp, 18 allele is below the threshold.
Q: Having observe the 18 allele in pre-reamps, you ought not to disregard it, isn’t it?
A: I’ve said it earlier, at pre-reamp stage 18 is below the reporting threshold.
Q: Could you disregard it?
A: It can be disregarded as it is below the reporting threshold.
Q: Did you conclude that?
A: I did not conclude it during pre-reamp.
Q: Can it be disregard at pre reamp?
A: I’ve not interpreted the peak yet at that stage.
Q: So, what did you make of the 18 allele there?
A: It was below the reporting threshold so I have not interpreted yet.
Q: So you went a step further in order to interpret?
Q: That step is reamp?
A: Yes. But that’s not the main purpose.
Q: So, you carried out with the re-amp.
Q: After reamp, you still observe 18 allele?
Q: And this 18 allele was bigger than the pre reamp?
Q: What is the value?
A: I can’t give the value.
Q: In order to conclude the 18 allele is a drop in, the size of the 18 after reamp should be smaller.
Q: What is the size of 18 allele after reamp?
Q: That passed your T-value, right?
Q: You have the reamp result here and you saw 18 allele and you consider it to be drop-in?
Q: But, in order to do that you need the benefit of your result, isn’t it?
A: Could be.
Q: I’m putting to you that the drop-in after reamp, the drop-in should be smaller than the drop-in before the reamp. Or it should not even be there. That’s the reason we call it drop-in.
A: I disagree.
Q: When we talked about degradation of DNA, you said that it also means detroitation of DNA. Do you agree with that? Degradation can also mean detroitation of DNA, isn’t it?
Q: Because that some DNA of certain swab was taken was in the anus for 56 hours and so on and thus it means there would be degradation, right?
A: You suggested it, not me.
Q: There’s a possibility of it?
A: It could be a possibility.
Q: But you told us it is not your concern.
Q: From the graphs, when the peaks declined as it moves to the right, that could be possible evidence of degradation, isn’t it?
A: That could not be concluded just be simply concluded like that.
Q: But it might at least that there being of possibility of degradation.
A: Degradation wouldn’t be descending order. Degradation would probably indicate the smaller amplicons showing signals and absence of allele in larger amplicons.
Q: Can I refer you to a manual. This is the extract from the manual of identifying kit, isn’t it?
Q: And the identifying kit is the one that you used in your lab, right?
Q: These guidelines listed here is applicable to what is being used, right?
Q: I take you to the second page. Second last paragraph on degraded DNA. You’ve got the status here as the average size of degraded DNA approaches the size of target sequence, the amount of PCR product generated is reduced. This is due to the reduce number of intact template necessary for identification.
Q: That is some sort of description of degradation, right?
Q: Look at the next page. Second paragraph, third line. As DNA became increasingly degraded, the loci became undetectable according to size. Preferential amplification was not observed, the loci failed to  reamplify in order to decreasing size as the extent of degradation progress. Example sets out is CSF1PO, D2S1138 and so on. This illustrates the point that in the case of degradation, the loci become undetectable according to size.
Q: And preferential amplification was not observed.
Q: And as a result of that, the loci failed to  amplify in order of the decreasing size as the extent of the degradation progress.
Q: That means the loci failed to amplify?
Q: That means as degradation increase, the loci fails to amplify?
Q: In other words, the loci goes down.
A: Not the loci. 
Q: But the peaks at the loci goes down.
A: Not the peaks go down. The peaks will totally not be seen.
Q: Then, what does “the loci failed to amplify in the order of increasing size as the extent of the degradation” means?
A: As the DNA become increasingly degraded, the loci became undetecteable.
Q: Undetectable means the peaks become smaller smaller and smaller
A: It means no peaks.
Q: Before no peaks, what happened? Logically what happened in between?
A: In between, there could be partial peaks.
Q: The peaks will decreased, isn’t it?
A: Yes, but not in decreasing order.
Q: But the peak will decrease in order to disappear, isn’t it?
A: This is not on continuos scale.
Q: I’m talking about peaks declining.
A: The peaks will not be detected and the loci…
Q: Look at the graph. The last 3 lines in the paragraph. It says: A similar result at each time point was obtained was whether the DNA sample was amplified for each locus alone . And this example of how it would look, how a degraded DNA will look as it progress.
Q: Look at it. The peaks declined. This is before you.
Q: This is the standard kit used. And the kit shows us that the peaks declined in degradation process.
A: Yes, I agree.
Q: In our profiling of this case, you have peaks that are declining isn’t it? In B10, are the peaks on the left side higher than the right side?
A: Not significantly.
Q: But they are, aren’t they?
A: No. If you look at the green line. The second row, the peaks show declining in the trend that is  how is it significant locus.
Q: The last peak, is it smaller from the other two?
Q: It’s half the size.
A: We are looking at the second row, D2S1138. The size of the peak is 4403 and 4181. Compared that to D3S1358.
Q: How about TH01?
A: Compared to TH01, this is not in declining order.
Q: TH01 is twice the size of D2S1338.
A: This is the characteristic of the loci which is in the green…it has special characteristic.
Q: There are possible dgreadtion because of the declining peaks. I’m putting it to you.
A: I disagree.
RK: YA, I’ve no further question.
SN: KS has some question.
KS: Just a few question.
YA: Don’t repeat the same question.
Cross-examination by KS
Q: Wouldn’t it be right there are multiple DNA profile found in the anus of Saiful?
A: Yes. It’s a mixture.
Q: Wouldn’t that mean that Saiful is a passive homosexual?
SP5: I disagree.
MY: She is a forensic scientist, not a doctor.
Q: There are multiple DNA, isn’t it?
Q: Therefore the conclusion will be that he is a homosexual, a passive one.
A: I wouldn’t be ab;e to conclude on that.
YA: I’m not going to allow this question. She is scientist. She can’t tell who is homosexual and who is not.
KS: Based on multiple DNA found.
YA: So what?
KS: That he is a homosexual. A passive one.
YA: Do you concede that?
A: I wouldn’t be able answer that.
KS: She’s a scientist, she can answer it.
A: I’m unable to answer because I’m not a medical examiner.
Q: But you agree there is multiple DNA profile?
YA: That one she agrees.
Q: Multiple DNA profile means what?
A: There is more than one contributor.
Q: Which means he is a passive homosexual. Otherwise…
A: That I don’t confirm.
Q: Otherwise those profiles wouldn’t be in his anus.
A: I wouldn’t know. I can’t make the conclusion.
Q: I’m putting to you that is the logical conclusion. That is based on what you said that there was multiple DNA profile in Saiful’s anus. I’m putting to you that he is a passive homosexual.
A: I can’t agree neither can I agree.
Q: I refer to D28, the pro forma by HKL. I’m referring to page 3. Before the examination of the three doctors at HKL, Dr.Khairul, Dr.Razali, Dr. Siew and including Dr Razuin who fill in the form. At page 5, details of the act. There were rectal attempted. That mean attempt sodomy?
MY: YA, this witness is neither the author of that pro forma nor the parties to it as the case of Dr. Siew, Dr. Khairul and Dr. Razali. I don’t think that the witness should be asked or cross on the pro forma.
I’ve the case of Chua Beow Huat v PP  2 MLJ 29. It talks about rule of  justice. You cross a person who is in the position to explained. Now as far as this honourable court is concerned, the position of Dr. Seah is just like your Lordship, Mr. Karpal, Datuk Param, Hanafiah. . But we are not the person
who can explain why it is so and all that. 
If I may read and I’ll make it available to the court and my learned friend.  where the court, Sharma J refer to Brown v Dunn which is reproduced in the case of AEG Carapiet v AY Derderianwhere it says that [read].
What it says is basically when you cross a witness, who is in a position to answer or explain or who had a share on that particular thing. As far as the pro forma is concerned, there are four person, Dr. Razuin who we will call later on, Dr. Khairul who was not examined, Dr. Siew who was examined on some part and Dr. Razali was never cross-examined. Not this witness. We will be wasting in time. Because her position is like Sarjan Ahmad here. He look at it and he can read. And then we ask for his opinion which is not relevant. So I’m objecting to any question being put to this witness with regard to the pro forma. It’s not the law. The law is much contrary to that.
KS: The case that my learned friend referred had been updated in . But it is not the position here. 
YA: What’s the purpose? What’s the relevance here? Because she is not the maker nor the one who assist in it. She is not in possession of the document
until now. Whatever question on this asked on this witness at this time is relevant. But I’ll hear your submission further.
KS: I should. Don’t shoot me down when I’m only at the initial stage. . The principle in that case is completely irrelevant. How did it apply.
YA: They are objecting to the question of this witness on the pro forma.
KS: I’m not asking the question, I’m directing the attention of this witness to the document which is the exhibit before this court.
YA: They said you cannot do that.
KS: It’s a document. . I can’t see how it can’t be done. 
KS: My point is this. It is a document. It is an exhibits. And reference was made to Saiful. . If it is attempted sodomy, I can then follow that done. I don’t need to put hypothetical here. If it is attempted sodomy, how can there be DNA in Saiful’s anus. 
YA: That’s the question you want to ask?
YA: And this is the only question you want to ask with regard to the pro forma.
MY: I stand to be corrected. The 3 doctors never said there is attempted sodomy.
MY: Then there is no need to refer to the pro forma.
MY: If we are to refer to the pro forma, we should also look at all the pages that is filled. . Still I don’t think that question should be asked to
Dr. Seah as she is a chemist, not a forensic doctor. She just look at the sample and do profiling.
YA: That’s all? Start at 11.30 a.m.
[11.08] stand down
YA: Counsel have said that the only question that he want to ask or suggest is if it was attempted sodomy there could not be DNA in the anus. I find this question could be asked without reference being made to the pro forma sheet. And the answer may or may not be within the knowledge of the witness. Therefore I allow this question to proceed.
Cross-examination by KS
Q: If it is attempted sodomy, would it be right that it would not be possible to find DNA in the anus?
A Might not be possible.
Q: Impossible at all?
A: Impossible DNA to be inside the anus.
KS: YA, I have no other question.
YA: Now is re-examination. Boleh proceed sekarang?
NB: Yes, YA.
Re-examination of SP5 by NB.
Q: I’ll ask about the last question asked to you. Attempted sodomy. If there is attempted sodomy DNA will not be found in the anus and you said it’s impossible to find. What do you understand with attempted sodomy?
A: Sexual assault probably without penetration.
Q: On Friday, you were asked about the installation of the Gene Mapper software. And you told the court the person who installed this software is the trained engineer from the Applied Bio-system.
Q: Do you know whether maintenance was done on the software?
A: There is maintenance done on the whole Genetic Analyzer which is both the software as well as the hardware.
Q: Who does these maintenance?
A: Trained engineers approved by Applied Bio-system.
Q: How often is maintenance carried out? Do you know?
A: The regular checks, calibrations and clean ups are carried out by the staff, by the analyst that runs the machine. In addition, there is also periodical maintenance check which was carried out by ABI engineers. This periodical check is to ensure the performance of the machine remains reliable, but not when the machine break down. It is a preventive maintenance.
Q: You disagree when you are said to have no involvement in the operating of the software. Please tell the court why you disagree on this?
A: I disagree on that because I’m trained in the operation of the software. But we have a work process in the DNA section where the analyst work as a team and a group of analyst have certain task and that goes on the rotation basis.
Q: In your experience or rather in your involvement of operating the software and conducting the examination and analysis on DNA, would you yourself know if there is any problem accruing with the Genetic Analyser machine?
A: Yes, I would.
Q: And how would you know?
A: The calibration checks that are carried out before each run being special calibration would failed if the machine is not performing correctly. If the condition during the run are not according to the required performance checks, then the run will be aborted. In addition to that, the Gene Mapper software would do a regularity checks before it is being used to size of the DNA fragment. And that regularity checks will check separation profiles of the leathers and also of the internal controls. If that checks fails, the fragment will not be sized and it will be indicated on the software that sizing of the fragment failed.
We have our controls and those controls have to be performed according to what is expected. We also have an external control, it is called the NS (National Standard) control which is by the NS authority in the US. For all the laboratories, there must be an external control and standard eventhough we have our control in our place and that is once annually. That is the primary standard and there is run on the system annually.
In addition, there is an added quality measures that we have taken which ASCLD has  on that. We have also has created the secondary standards of that primary standards. And That secondary standards are used to check the runs result whenever the lot of the Typing Kit Identifier is purchased. And that additional stapes were recommended by ASCLD. Despite we confirming to the primary standard we have added for this extra quality assurance steps that are taken by the laboratory,
Q: That is as regard to your knowledge of the working of the software.
Q: But at one point of time when you were asked again on this matter, you agreed that you have no personal knowledge on how the software works. You did not agree that you here not involved of the operation but you said you have no personal knowledge how the software works. Can you please explain?
A: That question was on the programming of that software, the language the software used and when problems happened how do you rectify it. That of course I have no knowledge. That needed a trained IT specialist by Applied Bio-syetem to rectify. And that question meant to ask me whether I know the integrate working of the software, but it is not on the operation of how to use the software.
Q: You were asked of whether your department has any engineer charged of handling of the software. You said they are not engineers, but trained analyst instead. Please tell the court as to he role of these analyst as well as the engineers in relation to the software and the genetic Analyser Machine.
A: The analysts are part of the DNA personnel. They are trained by the ABI trainers in the running, maintenance and operation of the machine. They are regular with machines. In addition, the member of that group specializes in the running, maintenance and the operation of the machine received additional training . They are proficient and competent in the running, handling of the machine and the regular troubleshooting. Whereas the engineers, it is for schedule maintenance. Even though that machine does not break down, we want to minimize that possibility of the machine breaking down at any point. It’s a regular periodic thing that the engineers come in to check. It’s the sole purpose of maintenance, so that the machine keeps running in order for a long time.
Q: In your experience in Jabatan Kimia Malaysia, have u ever come accross any incident of any problems accruing on the software or the machine for that
A: There were few isolated incident. In that event, work was stopped and the Applied Bio-sytems’ engineers come to rectify the problem where they check k the hardware and the software. When that was rectify and they run control checks that it was alright, the work will only resume only after that.
Q: You were questioned on the running of the computer. You were said that you believe that the computer is running in its ordinary course of business and that the software is running properly. You answered that in fact the software is running properly and it was not just on your believe.Again, how do you
know that the computer and the software are running properly and functioning in its ordinary course of business?
A: As I’ve said, the way to measured that is to check on our non-controls which is used on each and every analytical run that is run on the machine and also our external standard that which we have used, the primary standards, the secondary standards each time when a new kit is opened. Those controls have not failed in all the runs that we have used in our case analysis.
Q: And, it was suggested to you again on this topic before you started the analysis, that you did not questions the regularities of the software or that you did not exercise this questions at all, that you did not question the regularities of teh machine at the time you started conducting your analysis. And you disagreed to this. Please explain why do you disagree?
A: Again, I disagreed because controls were in and in addition to that the proficiency testing that we are engaging as part of our quality assurance programme is done on a regular basis. There are about 15 analyst in the DNA lab and each analyst perform 2 proficiency test a year. Regularly the whole testing system is subjected to the proficiency test. Because the proficiency test does not only the proficiency of the analyst, it test the competency and proficiency of the testing system which mean also the Genetic Analyser. And to date our proficiency test result has not failed.
Q: And in this particular case, in the examination and analysis that u have done, everything, the machines, the software were running properly, functioning properly in its ordinary course of business?
A: Yes. They were all functioning properly.
Q: Next, you agreed that the appendix attached in your report, P25, you agree that it is part of the machine. What do you mean by that?
A: It was meant whether the data that was inside the appendix are from the electro-phoreogram that was generated from the machine.
Q: You confirmed again in cross-examination that only from swab B5, P6F you discovered 3 DNA contributors. One of it being concordant with the blood donor of specimens B10, P6K . There’s a male Y as well as an unknown contributor. Will you be able to confirm again that the DNA obtained from this 3 contributors from swab B5 only were non-sperm extract?
A: The third contributor which is other than male Y and the donor of blood sample B10 would probably be a non-sperm contributor. That can be deduced by examining the DNA profile of the other swabs that were taken from that region which is B7, B8 and B9. And B7, B8 and B9 had not indicated the presence of any other male contributor other than male Y and the donor of specimens B10.
Q: B5 as stated in your STR result are only non-sperm extract?
Q: You said in evidence your cross examination you came to the conclusion of who is the contributor of the DNA from the entire DNA profile. Your conclusion is not just based on single single loci but on the entire profile. What is the entire profile?
A: Assessment, evaluation of a DNA profile cannot be made singly, it cannot be made on a single locus. It has to be made from the entire profile in order to condition on who the contributors are.
Q: Can you confirm that this is based on the 15 loci plus the amelogenin?
Q: Will you be able to come to a conclusion based on less than 15 loci of the STR?
A: The minimum number of loci that are actually recommended by the forensic community to make an association is minimum on 6 loci. But in this case, the conclusion were based on much more than 6 loci.
Q: On the term of “not excluded”, you said that you would only use this term if the DNA only matches a small number of loci because you cannot conclusively said that it is a contributor. When you used the word concordant, what would that mean?
A: The word “excluded” as I have explained means that I can’t exclude it nor I can’t include it conclusively. Concordant would be more confirmatory statement, it mean that the conclusion can be made conclusively.
Q: Conclusively of a high certainty?
Q: You were asked in cross-examination that in order for you to jump to the conclusion, you have to carry out further test. And you answered it come from the assessment. And that you said no further test was done as this DNA test is the ultimate result. Can you elaborate further on this?
A: The paper that was submitted to me is a 2006 paper. This are only guideline and this does not make a standard.
Q: At this stage, at the earlier part of the cross-examination, you said you did not to carry out further test because this DNA result is the ultimate result. Please elaborate why you did not do any further test?
A: That is because the DNA profile that was obtained had no noise which usually indicates that there will be no contamination which will be rampant and which could be interpreted clearly. And for the non-sperm and sperm fraction, the interpretation can also be done clearly. That’s because the differential extraction in fact are able for the analyst to make clearer interpretation. The DNA profile that is in the sperm extract and the non-sperm extract has to be interpreted together, simultaneously. In fact one of the approaches that was allocated by the  scientist in this field recently was to use the approach of subtraction where the known contributor can be subtracted from mixed profile in order to deduce who the other contributor are. In this case, all the profile was very clean, very clear and I was able to do deduction and the conclusion without difficulty.
Q: And you decided that no further test need to be done or required?
Q: The statistical evaluation or the statistical report, how does this statistic come about?
A: That is carried out if we have found a match between a crime stain profile and a reference specimen. We want to make a match that this profile comes from this origin. In that case, statistical evaluation will be carried out statistically. But when no reference specimens are submitted and in the event of unknown individuals, that exercise will not be carried out because we have individual to make an assessment. And that link can only be made and statistical exercise can be made when a reference specimen is provided. We want to evaluate, assess and give  on what is the probability that this particular individual could be the contributor to the profile or to the mixture.
Q: Is that why you did statistical evaluation for only A3 because there is a known contributor?
Q: This statistical evaluation or the data, have you gone any proficiency test or auditing for that matter?
A: Yes. That is part of the quality assurance. The auditing will involve examining the statistical package or software that is used for estimation and that has already been audited.
Q: You were asked about several combinations of the allele. You were asked about the possibility combination of certain allele. In particular, at locus D8S1179. The possibility of more than one contributor, in fact 10 contributors were suggested to you. You answered that the possibility would come in the form of a permutation. Please explain what is do you mean by this permutation?
A: The hypothetical situation that was posted to me where we have several allele and you could carry out a permutation exercise on the combination that could work out. That is mathematical exercise. That is not interpretation. Interpretation requires more than that. When the interpretation was carried out, some of the combinations become not feasible; mathematically there could be ten permutations for four allele profile. But, some of this combination is impossible when further loci are being examined. And those examinations can eliminate other combinations which are not feasible.
Q: And in this particular analysis, did you find any possibilities of any permutations based on your assessment?
A: No. That mathematically permutations are not the approach to the interpretation.
Q: You also answered that if one were to based on one locus, example D8S1179,you answered that it is not for certain that allele 12, 13 is the contributor just based on one loci. What if it is based on the 15 loci and anmelogenin loci?
A: That would strongly strengthen the hypothesis of a particular person at this genotype is the contributor of the profile.
Q: From the assessment of the 16 loci, would a scientist like you conclude that this allele 12,13 at locus D8S1179 belongs to only one person?
A: Yes. That is also enhance, added on by information that Saiful is the known contributor of this swab.
Q: We go to the relative peak height method. You said in your cross-examination that another method was the relative peak height method that need to arrive at your conclusion. Please explain this method and how do you derive your conclusion based on this method?
A: Looking at the relative peak height will also help you and enable to assist you in relating the other  combination which are possible
mathematically but which are not feasible as profile of a potential contributor.
Q: You testified that no other method was employed once you have a known sample, in this case B10, P6K. Is this a standard procedure that once have known contributor, you will not proceed to other test? Is there a necessity in that matter to proceed with further steps?
A: No, there’s no necessity for that.
A: Because if he is a known contributor and his DNA profile is determine, that is his DNA that was found.
Q: You were unable to complete your answer when the learned counsel asked you could have gone one step further with the statistical evaluation and you managed to answer not at this stage. Can you explain why at that particular stage, you need not do the statistical evaluation?
A: That question I think is in relation to DNA profile swab B5. B5 is a profile from three contributors – donor of bloodstain contributors of B10, a male Y, and one other male contributor. In fact, of the 3 contributors, only one is known, that is the donor of B10. And the other 2 are still unknown. Therefore there is no necessity for statistical evaluation.
Q: Could you also confirm the reason could also be possibly because you don’t have the known sample, the reference sample for that matter?
A: Yes. When the reference samples are provided, statistical evaluation can be carried out.
Q: About the software, can you confirm again the software is part of your process of examination and analysis?
Q: What is the significance of the certificate that you have in running of the software?
A: Signifies that that particular individual is competent in using the software.
Q: Would you be able to conduct your examination, evaluation, assessment and analysis if you are not familiar with the machines?
A: No, not if not familiar with the software.
Q: You were asked about DNA view software which is responsible for statistical evaluation. That statistical evaluation, the calculation of match probabilities that you have in your machine you agree that it form part of your report as well. What do you mean by this?
A: Because it was used to estimate the probability of a match between semen found on trousers A3 and the donor of the bloodstains B10.
Q: Regarding B5, peri anal swab. Allele 12,13 you said is concordant to the contributor by the donor of bloodstain specimens of B10. You were asked about other possibilities and you said that we cannot view it per se that this is the DNA profile for a swab taken from the known person. But you said in this case you have a known contributor. You said this stain of taken on the surface from an item not from an individuals, your agreement will varies. Please elaborate further what do you mean by this?
A: Swab B5 was taken from an individual, therefore we have a known contributor here, Saiful. But if this particular DNA profile was derived from a surface of an item, then I cannot assume any known contributors.
Q: B5 again. It was suggested that there could be 8 other possible contributors. And you answered there are, but it was not reflected here. Please explain, why is not reflected in your summary of the STR result?
A: If in the event there are 8 contributors kin the profile of B5, this certainly will not be the profile picture. 8 contributors have the potential of maximum of 16 alleles. In my experience working with mixtures and crime stains, the profile coming more than 3 contributors will not be reflected. There could be loci which has higher discrepancies, like D8S1179. If there are 8 contributors, the number of allele should be multiple and this is not reflected in this profile. In this particular profile, I have not seen any particular locus which has multiple peaks which is more than 4.
Q: You were again referred to locus D2S1338. You said that this locus is larger than the other loci.
A: Yes. This is a large amplicons.
Q: And you said there could be an allele drop-out.
A: Yes. It has a high potential of a drop-out.
Q: Allele 24?
Q: Please explain, how do you determine this occurrence of this allele drop-out?
A: The method that was suggested that allele drop-out has to tested further. It is applicable when happened on a crime stain where you want to make a link with the accused. But that is not the case that happened where there is a known contributor here, which is swab B5. It’s happening at a locus which has a high potential of a drop-out. In this case, the known contributor who is the source of blood stain B10 is the minor contributor in this profile. Minor contributor’s allele drop-out is the characteristic of the larger amplicon loci.
Q: Is this the reason or one of the reasons why you did not analyse further as to the samples to determine this allele drop-out?
A: Yes. That together with the information that he is a known contributor to this particular swab.
Q: It was put to you that the evidence from the locus D8 does not tell for certain that a contributor with allele 12, 13 and 15,16 contributed to it. And you disagree to this. Please tell the court why do you disagree?
A: Again, this is assessment at only one single locus.
Q: Which you can confirm that no conclusion could be derived based on one single locus.
Q: You agreed that there are possibilities at D8 that other combinations of contributor reflected at locus D8 may not be excluded. Why do you say this?
A: It is assessment based on only one single locus, not the whole profile.
Q: About the RFU, you testified it was based on Jabatan Kimia Malaysia validation studies. What do you mean by validation studies?
A: Experiments. Test carried out usually by the user of the system that establishes the best procedures to adopt after the assessment of the result from
the validation studies.
Q: From the validation studies, it was recommended that 50 RFU will be the reporting threshold. Why is that 50 RFU recommended as reporting threshold.?
A: Below the RFU, the detection limit is too close to detection limit. On known profiles when they was diluted them down, we could still reliably called correctly the profiles of the known contributors even at 50 RFU.
Q: You did mention about 50 RFU for a single source profile. What about mixed profile?
A: An assessment of a single profile and mixed profile is different. A single profile can usually be assessed clearly. Single source profiles would normally have more than two alleles at a locus. In the single source profile, the stutters can be called reliably. But in the event of mixed stain, the stutters have to be interpreted with caution because the stutters sometimes could have adopted the same size as the minor alleles. And also, it can create masking of the potential contributors.
Q: You said that the manufacturer recommended that laboratories do their own validation studies. Has Jabatan Kimia Malaysia conducted their own validation studies on stutters?
A: Yes, we have. But the stutters are guidelines basically and they are on standard normal profiles which is applicable to single source DNA profile.
Q: And the minimum threshold for stutters? Do you have it?
A: No. The stutters are created from parent allele.  what would be the size of the parent allele.
NB: YA, can we have a break now?
YA: Panjang lagi ke?
NB: Sangat panjang.
YA: Continue at 2.30 p.m.
[12.31 p.m.] Stand down.
Kes dipanggil semula.
Q: Dr. Seah, can we continue. I believe we stop at the validation studies on the threshold. You’ve explained about the 50 RFU of homozygote state. And you said that you will apply the RFU of homozygote state, but with careful consideration and you stated that you will be more concern with the loci with lower amplicon, and you will be less conservative with the larger amplicon. Can you please explain further in relation to this particular case by giving example on the samples? Just give one example on how did you consider this?
NB: Saya ingin merujuk saksi kepada P52.
A: We look at B5 (f), page 6, the first locus, D8S1179, that is the locus with the small amplicon and if we look at the heterozygote , 12, 13 that is the genotypes of B10.
Q: Which one, can you give example to the loci with lower amplicon, and one with the larger amplicon where you said you must be more conservative with the smaller amplicon, and less conservative with the larger amplicon?
A: With B5, if you look across from left to right D8S1179 is a locus with small amplicon and the other locus of the extreme right which is CSF1PO will be the locus with the larger amplicon compared to DS81179. So if you look at peak height of 12, 13 that is the genotype of B10, their reading 117 and 70 that have the heterozygotes peak and if you look at the peak height of CSF1PO, the genotype of B10 is 12, page 20, it’s homozygote peak, and the peak height is only 7. Relatively the 12, 13, actually, the homozygote is 2 alleles, having the same repeat unit. Essentially, 12 is actually 2 alleles, homozygotes are having same allele for the both paternal and maternal, but that only read 67. This is at page 6, but if you look at the 12, 13, the 2 alleles had been added up to a much higher RFU. So, this is what I meant by small amplicon you have to be more conservative with the low RFU, because it is more sensitive, and with the larger amplicon, then you can be less conservative.
Q: So with this approach, the conservative and less conservative approach, can we safely say that the allele of 12 and 13 belongs to Saiful, when considering from the whole profile, and you can do away with any dropout here?
SN: YA, my expert ask for the question to be repeated.
Q: With this approach, can you safely say that 12 and 13 belongs to Saiful?
A: Yes, when the whole profile is considered.
Q: And based on the totality of the whole, profile, can you disregard the drop out?
A: For, D8S1179? Yes.
Q: You informed the court that you have the written guidelines for the RFU?
Q: And is this guideline is in accordance with the international standard?
A: Again, the recommendation by the international community is to do your own validation and based on their validation studies and they could vary from whatever standard that had been set by Jabatan Kimia Malaysia, which could be lower, and which could be higher.
Q: But that is in accordance with the international standard?
A: International standard has not lay down or fix value on the best reporting threshold. They will recommend that you carry out your validation studies and you set your guidelines on the reporting threshold.
Q: You’ve explained about the courses on the allele’s drop out. Can you please now explain to the court, what are the main courses for the allele’s drop out?
A: Main courses for the allele’s drop out usually occurs with the low level of DNA and it is usually evidence at loci with larger amplicon and also when in a mixture, minor alleles are also, there’s also likely to be allele’s drop out at the loci with the larger amplicon.
Q: And in this case, you have detected drop out?
Q: Where you have detected drop out?
A: At locus D2S1338, page 6.
Q: Anywhere else?
A: At FGA, page 7.
Q: At page 6 at D2S1338, can you please inform the court the alleles?
A: Allele 24 and D18S51, which is allele 16, locus at the extreme right. And at page 7, which is allele 25 at FGA.
Q: This allele, 24, 16 and 25 at these 3 locus, you considered them as drop out?
Q: Is this based on just the 3 locus, or based on the entire thing of the loci?
A: These are 3 loci in which allele’s drop out are observed, and based on the consideration of Saiful being a known contributor of B5, and the permission of the reference specimen from Saiful which is B10, those allele’s drop out were observed.
Q: Despite this drop out, did you successfully obtain the DNA profile or the allele of Saiful, Male Y in your analysis?
A: The assessment of this profile, B5, we can still conclusively inferred that Saiful was the contributor of the DNA in B5 despite the 3 allele drop out. And Male Y who was the major contributor in this mixture profile, and also there is other allele which is not contributed by Male Y or Saiful, and that infers that there is another contributor who is unknown.
Q: So you can still safely conclude despite this drop out?
Q: It was put to you in cross examination, that because you have the reference sample that is B10, your mind was influenced by it, because you are relying on it. Dr. Seah, you was disagree to this?
Q: Can you please explain why you disagrre.?
A: I disagree that there would be a bias approach and that was suggested for specimen which was taken from a known contributor, B5, B6, B7 and B8. In fact of all these samples and swabs which was taken from the body of Saiful, and therefore there is no dispute as him being a known contributor for all these swabs.
Q: In the International arena, would the seal exercise be conducted in determining the drop out i.e that there must be a reference sample to determine them?
A: In a case of known contributor, you can conclude that there is allele drop out. The further exercise would be suggested if it is a crime stain that is attributed to that, we want to count for the allele drop out for the accused. In this case, we need to do an extra exercise, which  of more analysis.
Q: Does this apply as well in other field or rather in the international arena?
A: There could be other models, but this is one of the models, or approach which has been audited and it is constant to be a logical approach.
Q: You were asked about the 2006 publication, you were shown of the publication, of the International Society of the Forensic Genetic. You were asked about whether you have adopted the procedures in determining the dropout. You’ve also mentioned that Jabatan Kimia Malaysia has its own procedure. You have been shown the procedures and guidelines from the article in determining the drop out. In this analysis, in this case, is it a necessity for you to adopt the procedures outline in the publication?
A: No, in fact at the first place, this is 2006 publication and the lead author, P. Gill. It was probably the best model at that time, in 2006 and further to that, there were another paper by the same author in Forensic Science International and there were other model which was proposed one in 2008, and one in 2010. And inside in 2010’s paper, he has proposed a newer model and he has proposed that the old model to be change.
Q: The recommendation itself changes?
A: Which could mean that some of the procedures adopted here, they had probably a  approach of the interpretation of mixtures.
Q: Did you follow the procedure like for i.e if you were referred to page 96, “the recommendation on the treatment of dropout”, recommendation 7 and recommendation 8. Is it a necessity for you to follow this recommendation in this particular analysis of this case?
A: Not particularly in the analysis of this case to explain the drop out that happens at the 3 loci. As I mentioned earlier, this would probably be feasible if the allelic drop out would occur on the possible contributor who is also associated of being a penetrator. But the allelic drop out had happen on the contributor who is the known contributor of that stain.
Q: So this recommendation, apart from it changed [2006 publication], in science, did you consider that 2006 publication as the latest recommendation, as the latest guidelines for that matter?
A: I wouldn’t consider that, science is a dynamic field. What is today may not be the best approach tomorrow.
Q: You informed the court that this International Society of Forensic Genetics give recommendations in all aspects, of DNA profiling. Are these recommendations followed and adopted by Jabatan Kimia Malaysia in every case?
A: Not in every case. They are just guidelines, they are not standard. And in all this interpretation of mixtures, laboratories based on their validation and experience, from the experience of the examiner, they might have modification of the approach which might not be endorsed by ISFG or bigger scientific group, but that doesn’t necessarily mean that they do not make it as standard.
Q: Would it be correct to say that these recommendations are the recommendation to be introduced or to be applied or practice based on case to case basis?
A: They are broad guidelines, and case by case, you cannot rigidly apply it to each and every case.
Q: Would you say that this recommendation, are they equivalent to standard?
A: They are not equivalent to standard.
Q: What are the procedures for recommendation to be adopted as standard?
A: It is difficult in approaches like interpretation because when that guideline is made into standard he’s like making that  and it can impede the progress of methodology later on.
Q: We go on with this article. You mentioned about the low copy template of DNA profile. Jabatan Kimia Malaysia does not do the analysis of low copy template. Did you say that?
A: Yes, but they have made a differentiation. We don’t do LCN (low copy number) of DNA profiling where extreme methods were used to increase the sensitivity of PCR for very low level of DNA. But the other term which is used to differentiate between the low copy number is low copy template during the DNA profiling, which is DNA profiling using the same methodology, using the same PCR cycles but they are on low level of DNA which call low copy template DNA, and on this sort of profile, you can observe some common characteristics as seen in low copy number. That could be allelic drop out, that could be drop in, that could be stutters, that could be the statistic effect. This was what happen to B5 for the allelic drop out, and then Saiful is the minor contributor, and you can refer to 2006 paper which is on page 96 on low copy number, on the 2nd para (read). So this is recognized phenomenon with the minor allele.
Q: A recognized phenomenon you said, the drop out of the major minor mixture for the minor allele. You confirmed that in B5, the minor contributor would be Saiful.
A: Yes, it would be the donor of the specimen of blood stain, B10.
Q: It was mentioned here about stochastic effect. Apart from stutter, apart from drop out, we have stochastic effect.
A: It is actually summing up all the effects that can be observe with low level of DNA, which is the enhance stutter. That is why I’ve said in mixture of the crime stain we have peaks that are low, it is hard to employ the stutter range value which we have obtained from validation studies for standard normal DNA profile into a mixed stain that’s on the peak which is very low peak where the components is actually equivalent to low copy template of DNA of a profile.
Q: According to this recommendation from this article, that I were to read the last two lines of the recommendation 9 page 96(read). And this recommendation is adopted by you, even in this analysis.
Q: In this case, does this low copy number of DNA occur?
A: This is again, I’m explaining it because of the low levels of DNA that are presence…
RK: YA, we don’t wish to interrupt, but this is Re-examination. Certain questions that are asked, requires yes-no answer, but the witness keeps on goes to the other things, and explaining other thing .
YA: Yes, this is Re-examination. The witness has to answer whatever popped out during the cross.
RK: But if the witness is allows to go on, without being questioned, YA it was certainly worst than being . She’s not answering the question, she goes on and on.
YA: What’s wrong with that?
RK: Because she’s not answering the question!
MY: YA, if you observed that this witness does not answer directly, she gave explanation first, then only she answered. The question asked by my learned friend, from Mr. Nair and Mr. Ram Karpal and also my colleague, Puan Noorin. She won’t directly answer but whatever happens in that, all those questions that my colleague asked, and the answers given are all with regards to explaining, clarifying or elaborating all the answers that she’s given during the cross.
Q: Perhaps can you please answer first, and later explain? Did you discover any low copy number of DNA in this analysis?
A: Yes, in B5 where Saiful is the minor contributor and the alleles that belong to him had demonstrated characteristics which of that low level of DNA, him being a minor contributor.
Q: That is with regard to B5 only. Any other specimens which you have discovered low level copy?
A: Not particularly, but there’s another profile which I explained drop in. That is B7 (m) because it has occured as single allele and it has not observe in any other loci, which is the characteristics of drop-in.
Q: In other words, you confirmed that the recommendation of low copy number of DNA was followed by you?
A: We have carried out the analysis. We have understand the characteristics of low copy number of DNA profile.
Q: Are the recommendations followed?
Q: You have informed to the court that you did not adopt T-value i.e the threshold value, when drop out is considered to be occurred.
Q: Also the threshold value in which the peak low is not considered. You informed the court that the T-value is of no significant in this case?
A: Yes we adopted the threshold of 50 RFU that was equated to t-value. And it was pointed out at page 7 which is the theoretical approach where they determine the threshold, and the peak height of the peak area, to signify the  limit that the allele’s drop out has been observed in heterozygote. There’s a mathematical expressions here provided that the probability of drop out approaches to zero. That does not mean if your peak height area is above, then you can’t approach this. This is all mathematical approach.
Q: So, you would say that further consideration is drop out, from this article it is a mathematical approach?
A: Yes, which appears simplistic mathematically, but in real practical, it is maybe harder to come out with this.
Q: Why did you say that the t-value is of no significance?
A: Because as I said, it is theoretical you know, the recommendation here.
Q: Move on. We have another software or machine. The earlier was the Genetic Analyzer Machine, and the software is the Bio-Applied System. Next, come the DNA view software. You informed the court that this software is regularly updated as well?
Q: Are you aware of problems that coming up from this software?
A: I’m not aware of any problems arising from this software.
Q: Would you know when problem arising from this software?
A: I would know.
Q: And in this analysis, were there any problems accrued?
A: There was no problem accruing.
Q: Are you trained as well in handling this particular software?
Q: And the software is in the good working order when you used it?
Q: Was the software operating in the ordinary course on the day when you used it to conduct the analysis of this case?
A: Yes, it was.
Q: Back to stutter peaks. You informed the court regarding to stutter peak which is opposite real peak, it is artifact created during the PCR techniques. You cannot apply a single guideline to the lab, and that it must be established individually.
Q: You said that it will be variation as well, from one lab to another. Like Singapore. Because you said that their ranges might fluctuate. Why can’t there be a single guideline, and why there can be a variation also?
A: The DNA profile generally is generated, from a typing system which could include the right time of PCR to the analysis inside the Genetic Analyzer and there could be variation between the laboratories, although they may adopt the same model, and therefore it is best recommended that each laboratories do their own stutter range, because it might be variation between the range that can generated from the same models, but it may be viewed elsewhere.
Q: Is this the reason why you cannot find the range for the stutter peaks because of that fluctuation?
A: Because of the fluctuation and also because the stutter range remains a stutter range. It is the expected range where stutter is expected to be of that value. But it is not a rigid range, you could also have stutter above that range or below that range. It is all depends on the DNA profile, and the labels on DNA profile; it is a mixture or it is a single DNA profile.
Q: On the stutter peak, you were referred by the counsel the other day to first page of P52; Locus D8S1179. You informed the court that there was a stutter peak there, at the allele 12.
Q: Next to it is the high peak. The peak of allele 12 is 1654, and next 1627. You testified that you accepted the threshold of the system. And you said that this stutter peak can be read of. Why?
A: They can be call from the software the peak height of the stutter. You could have it read you know, the peak height of that stutter. ‘Can be read of’ meaning that you could read the exact type of the stutter from the software which is the Gene Mapper, and here although the exact peak height of the stutter is not there, because it is belong to the stutter range and therefore it is not considered.
Q: It was suggested to you that your lab has not confirmed to the manufacturer’s guidelines. You said that we don’t use stutter range from any sources, except that carry out in our system.
A: It is recommended that each laboratory carry out its own stutter range.
Q: Again, validation studies are required.
Q: About the overloading, the amount of template used is higher than the optimum amount. You referred the court to page 20 of P52 of locus D19, allele 13, and the peak 8315.
Q: Does this pull up affect your reading?
A: It does not affect my reading. Where the pull up occurs, it is there in the electropherogram. The software is a very intelligent software. It would indicate when the pull up detected in the other colors and unless that pull up occurs in a reagent where an allele presence, it might cause abnormally peak structure but that does not mean that allele cannot be call reliably.
Q: About the peak height balance, you also informed the court in this particular balance, the manufacturer also recommends that the lab carries their own validation.
Q: Do you know why the manufacturer cannot fix the ratio or the percentage of this peak height balance for lab to follow?
A: That is because of the variation, even though the same model or machine may be used, but in different setting, in different environment, there could be variation in that. And this is to allow the variation to be minimized, when you create your own stutter range, you recommend the best heterozygote balance to be used in the interpretation.
Q: You were also asked about the degree of the variation in the mixture ratio between loci, and the variation can’t be too large from each loci. And you said that there is no need of a guideline as it depends on that variation.
A: Yes, it was pointed out, in fact in the 2006 paper that the proportions of the various contributors are approximately preserve throughout the mixture of each locus. From our observations and experiments on the identifier which is on the simplex loci, the proportions are approximately preserved, probably at not all the loci, but probably at smaller amplicon, and probably when this statement is made, it was based on their studies on the smaller number of loci which approximately preserved. But we are not observed that in validation studies using their . And of course if we were used single plex meaning using locus by locus 60 times, it will not being approximately preserved. I think the ratio would be quite constant if you do a single locus, but this is multiplex, quite big number of loci which is 60 loci. And we are not observing the proportion, and therefore we are not recommended that the ratio be fixed on the proportion of each contributor in the mixture.
Q: So, no ratio?
A: No ratio. We would recognize major minor but we would not recommend that the ratio is fixed.
Q: So, I think that would be all as regards to cross examination on Friday. Now, we go to the questions of cross examinations in Monday, to the question of having 3 contributors in the sample B5. It was said by the counsel that it was unlikely for someone to share the same alleles. But it is possible for them to share some of the alleles. Can you please explain to the court with regards to uniqueness of a profile?
A: Sharing the alleles among the contributors? Yes, it could. And it might not be reflected in ratio of the various alleles, because there is phenomenon known as masking, and I think they had explain what masking is in this paper, on the page 95, where the contributor share commons alleles.
Q: So in this B5, do the contributors share some of the alleles? If yes, can you show us?
A: Yes, they do. At the second locus, D21S11, page 6 on the electropherogram. They are three alleles there, 29, 30, 22. Saiful is 22. Male Y is 29, 30. And that the third contributor would have common alleles. But you can’t predict the genotype of the third contributor here because there’s masking.
Q: So here is the occurrence of masking?
Q: Why did you disagree to the suggestion of the counsel that none of the loci in this analysis shows clear evidence of more than two people?
A: Because as I explained earlier I think during the examination in chief, there were alleles at the number of loci, where it cannot be attributed to Saiful and to Male Y. That makes me to infer the presence of third contributor.
Q: And this is again based on 16 loci?
A: Based on the 16 loci of specimens B5. But as I said there is some loci where they could share the common alleles because of masking.
Q: 3 alleles drop out, 20, 24 and 16. Would it be correct to say again you testified that you cannot single out the locus? Everything must be based on 16-loci profile.
A: Yes, on the entire profile.
Q: You were referred to D2S1338 again. There’s an allele drop out here?
Q: You confirmed that allele 24 is a drop out?
Q: Taken into account the allele which is unaccounted for, at these 3 loci, if you were to consider them based on the totality of the STR, can you still say that it is a drop out?
A: Yes, you can safely say that there is allele drop out and we can safely conclude that Saiful is the contributor of this profile based on the remaining loci, where all his alleles are detected.
Q: Would you not being taken into account in determining the identification of the contributor, or are they ignored, or not considered?
A: They are recognized as allelic drop out but they are not considered into the statistical evaluation.
Q: So, you have taken into account this allelic drop out in your analysis?
A: That had been taken into account but in this analysis of B5, that the statistical estimation is not carried out which is our guidelines which involves contributor that are unknown.
Q: You disagree to the suggestion made by counsel that your conclusion to drop out that because this allele is furthest to the right? And therefore that was why you concluded that there was drop out, and you disagree? Why is that so?
A: Because even though the loci on the extreme right, they also have potential of allelic drop out but that does not necessarily mean that allelic drop out are least expected from those region. It also could happen at loci which are with small amplicons.
Q: Furthest to the right or left, that wouldn’t be the basis of conclusion of the drop out?
A: Yes. The dynamic of PCR is complex especially in mixtures, because besides of the normal amplifications that goes on, that means there are multiple alleles which are target for amplifications, and there would be phenomenon like different ratio amplifications, that certain loci and alleles are preferred, and those alleles which are amplified, which are targeted for amplification during the early round are usually preferentially amplified.
Q: You were asked about the implication of drop out in unknown samples found in crime scene such as B5. Did you know where swab B5 are taken from?
A: Yes. It was the peri anal region. And that was not considered as crime scene. It is considered as region of the body where it was taken.
Q: If the sample was not taken at the crime scene, would the implication of dropout be important?
A: The implication of drop out would be important if the association made is penetrator, and also you carry out LCN (low copy number of DNA profiling). If the samples come from a known contributor, you would have to explain the drop out and it would enhance the understanding that it is from a known contributor and explanation would not be an assumption.
Q: Would it be correct to say that in 16-loci STR, allele is not present as opposed to drop out, that person can be excluded?
A: That also must be observed from the entire profile. That allele might not be observed in some of the profile. If the assessment result in you being able to  at the sufficient number of loci and the statistical evaluation of likelihood ratio is sufficiently high, then there is a likelihood that he is the potential contributor of DNA profile.
Q: Likewise, again in the entirety of the loci, if allele is present, but on some locus, the allele is drop out, that person cannot be excluded?
A: Yes when the entire profile is being assessed as to whether particular individual become the contributor, if his profile has been observed at a small number of loci, and if the statistical evaluation provides a very low likelihood ratio, then the certainty of course is much lower that he could be potential contributor. But if the number of loci which the allele is not found increases, and his allele is only observed in small number of loci and rampantly, then we were to exclude him as the contributor.
Q: On stutter peak again, when you were asked to calculate, when will you report and not report the stutter?
A: The stutter range that we established as a guideline from standard and normal DNA profile. And that can be applied very clearly in standard single source normal DNA profile. One of the example is A6 (B) (m), the assessment clearly indicate that this is from single individual. The stutter range could be applied on this. When the same stutter range being applied on the mixture, then it comes more complex, because sometimes the minor allele can assume that this is the same size of the stutter and sometimes in a very low template DNA, the stutter in fact can be enhance, and which may be above the stutter range that established. So therefore, it is to guide us in single source DNA profile and in the mixture, the recommendation among the scientist is to regard the stutter range as the guideline, and in mixture, there are many examples in which the minor alleles in the size of this stutter. And also there are many examples where the stutter range is well above, that is the stutter range which is established from the validation studies.
Q: So, it had put to you, had you record the stutter accurately, you will find the presence of another party, apart from Male Y at swab A6 (b). You disagreed. Why?
A: A6 (b) is clearly a single source DNA profile, meaning come from a single individual. The greater stutter arithmetical calculation for 12 for instance, for CSF1P0, was higher than that calculated for the mixed stain; therefore if we were to apply rigidly, then we would also assume that other allele is also a stutter. Again, this was considering the profile as single basic, not based on the entirety.
Q: Based on the entire profile again, you can confirm that there is no other party, or contributor apart from Male Y.
A: Yes. And if I were to consider what was proposed to me that CSF1PO 12, 13 is the heterozygotes pair, that would be gross erroneous you know.
Q: You were referred to sample B9 in your summary P25. Again, here with the cross reference to page 18 of P52, you did not report allele 18 here. Can you please explain why you did not report allele 18?
A: At B9(m) when this whole entire profile being assessed, this is the condition of 2 contributors. Therefore, the presence of the 5th allele which is the smallest at D3S158 which is very small allele of 50 RFU, if you were to fit that into the stutter range, it is a very high RFU you know, and therefore it is not fit into the stutter range and because from the consideration of the entire profile doesn’t found any other single allele that does not belong two, that cannot be explained by the 2 contributors, and since it is a  and occurring at D3S1358, which is the locus with the small amplicon, then it was inferred then to be drop in.
Q: Can you confirm whether allele come from Saiful or Male Y?
A: It does not come out from them.
Q: But it is suggested to you, that it could be another contributor.
Q: Despite the possibility, if you were to go locus by locus which was referred to you if there was an allele drop out, which was cited to you that locus D2S1138, D18S51 and FGA when we talked about allele 15 again found on specimen. If you were go locus by locus, there will always a possibility more than 1 or 2 persons?
A: Yes, if we go locus by locus, mathematically you can combine and proposed a large number of contributors. But that is not the way, because if we have the large numbers of contributors, these are very special loci that are being used in DNA profiling for human identification, and most of these loci have large power of discrimination and particularly from one of these loci would be D8S1179. And if you were proposed more than 3 contributors, the study that we are conducted, because this one is without high PD, you would see multiple of alleles coming from more than 3 contributors. That usually provides the indication that it would be more than 3 contributors. It would be highly unlikely that it is coming from 3 alleles, 4 alleles.
Q: Again, on the scenario put by the counsel in the cross examination, despite the possibility of 10, or 5 persons at each locus, would you be able to confirm that the fact remains that there are 2 contributors at sample B9 which are Saiful, as well as Male Y?
A: Yes, even if I give the benefit of the doubt that 18 could be the potential contributor and even though that his alleles might not be observed in the all remaining loci, but it still remains that the 2 contributors which are condition to this profile remains.
Q: Saiful, as well as Male Y?
A: Yes but there is no indication of any of the other loci that there could be possible third contributor.
Q: At B9 again, would you be able to confirm again that source of Male Y is sperm extract?
Q: Which is more dominant?
A: If you look at B9 (f), that of non-sperm extract and B9(m) is the sperm extract. They could be equal contributors here, but the approach that being used, that could be applied to DNA profile from semen stain, and where differential extraction is carried out, has allow the subtraction of the non-sperm DNA profile from the sperm extract, to further conclude the donor of the sperm extract . For B9 (m) the contributor will be Male Y. Even though the presence of Saiful is on B9 (m), but his DNA only present in non-sperm extract would support that his allele in the sperm extract which was on the remaining cells, which were (as my learned friend suggested, he used the word carried over, he was carried over into the sperm extract, even though we don’t used the term here) because B9(f) has a very high level of DNA and the standard extraction for standard DNA differential extraction would not be able to digest all the non- sperm cells, which is in B9, resulting in some of the non sperm extract being seen in sperm extract.
Q: So again, listening to all of your explanation, would you be able to confirm, on swab B9 which contributor is more dominant?
A: The source of the sperm extract here would be Male Y, logically, by looking at B9 (f) and B9 (m). I wouldn’t use the word of more dominant here, I would use the term that B9 (f) the presence of Saiful which was carried over from the non-sperm extract, which means that the real donor of the semens of B9 is Male Y.
Q: It was said by the counsel about what you have reported in P25 is different from information that you have received; the envelope, and in particular P43: the hair which in your report, you said it was pubic hair. Can you confirm that what you stated in your report was pubic hair, was it after, or before you conduct the examination and analysis?
A: It is after I conduct the examination and analysis, and it stated to in my report, what I acknowledged the things I received, that is in para 1, para 2 and para 3.
Q: So, nothing is mentioned here about pubic hair?
Q: But if you were to go further, in your P25?
A: If I go further, that I have examined and analyze the exhibits that were submitted and I found..
Q: That’s explain why in your report you said that in envelope A there were strands of pubic hair.
Q: After your analysis and examination done?
Q: What was the document to confirm the things that you received when DSP Jude came to you to handover the exhibits?
A: There was a receipt that was issued to him, P51.
Q: Can the witness be referred to P51. Just to confirm this is the receipt you gave to Jude.
Q: Is there mention about pubic hair there?
Q: You said that could be possibility that unknown male contributor from sample B5 could happen from contamination?
Q: In what form the contamination could be that could have contributed to unknown male sample in sample B5?
A: The contamination could have occurred, the swab was taken from perianal region, which is region around the anus and that was exposed to the exterior,
and that region could have come into contact with surfaces, that could results in the presence of the unknown DNA in B5.
Q: Could it be possibly come from the lab?
A: No, in fact, one of the measures that was taken, to have the DNA profile of all personnel working in the laboratories in database, whenever there is presence of unknown DNA profile is obtained, the very first exercise is to eliminate that DNA which derived from people or personnel in the laboratory. And the reagent blank too was not indicate that it was come from any reagent during the analysis.
Q: So you can confirm that apart from B5, Male Y DNA also found in sample B7(P38), B8(P39), B9(P40) as well as A6B – P40.
A: That’s correct.
Q: You did mention to court yesterday that it was not necessary to exclude degraded sperm, in the process of extraction, to separate the sperm and non- sperm. Why is it not necessary to exclude any degradation of the sperm?
A: What I take to mean of degraded sperm cells, it could mean the structure of the sperm head,  but that does not mean so. DNA could still be intact despite the head suffered degradation. That’s the reason why it has not carried out.
Q: So, as far as you concerned, in the process of the samples where you did the separation between the sperm and non sperm, the finding of the DNA of the sperm and non-sperm of the contributors were intact.
A: Yes. The DNAs were readable.
Q: If a seminal stain of say 2, 3 years of age seminal stain. Is it still possible for you to obtain DNA profile?
A: Yes, if the DNA is well preserved.
Q: And what about seminal fluid.
A: If that seminal fluid had been frozen. It is the liquid stain.
Q: If ejaculation happens inside that anus, what would you call that?
A: That would be a semen.
Q: The sperm isolation record to show how much sperm observed, this record, , what about the sperm isolation record?
A: There is no formal of exercise for the sperm isolation record. It is a check of the other test which is the PSA and the sperm cells was observed on microscope slide and there usually a counter check by another personnel, that the particular cells is in fact a sperm cells.
Q: How significant is this sperm isolation record in the analysis for this case?
A: It is a simple term for establishment of presence of sperm cells in that particular sample but the exact counting of the sperm cells are not crucial.
Q: So in this case, is it important in your analysis to really record or know the numbers of the cells that you observed?
A: Yes, the exact number of the cells in fact observed can be recorded, but the real exact number which actually present, in that particular fraction, it cannot be counted basically mere on microscope plasma. It is actually 700 layers of cells  and the light microscope allows only two dimensional observation. You will not be able to observe layers which are on top of those layers. There could be sperm cells which was beneath the top layer, which was not be able to counted just by using a mere microscope light observation.
Q: So, not withstanding how many sperms, the number of sperm, could you be able that whatever your finding, they are sperms?
A: Yes, they are sperm cells.
Q: We go to reaction volume for the PCR. And you said that total volume of PCR measured in micro meter. Did you mention that?
A: In 20 microliter.
Q: Jabatan Kimia Malaysia, using 20 microliter.
Q: Can you confirm that you recorded this in your case notes?
A: The volume of the reaction volume is based on our validation study too. And this is the extended volume at the PCR that was carried out at the samples.
Q: How important is this volume, as the parameter of your assessment?
A: Which parameter?
Q: How important it is, as regard to DNA profiling?
A: We have demonstrated in our validation study that the 20 micro liter volume which used is reliable and it has not caused the DNA profile quality to be compromised. They have used that on known DNA sample, and it still can be read clearly and fully.
Q: The fact that it has not being compromised, is reflected from the reading of the DNA that you have obtained from the 16-loci?
Q: You told the court that you had re-amp, sample B5, B6, B7, B8, B9, A3 and A6. You said that this is due to inhibitions. What kind of inhibitions?
A: In any biological sample, inhibitors could be derive from components in that biological sample that there would be protein presence in biological sample, from fabric, that could be dyes, from red blood sample, that could be . And this had been demonstrated to post as inhibitors to the PCR process and despite putting in the optimum amount of DNA into the PCR for such sample, it has been observed that sometimes a complete DNA profile has not obtained, in which case the recommended collective step is either to clean up the DNA extract  or if there is sufficient level of DNA, a dilution technique can be used. Because the dilution technique is used to lower the DNA template, it is also can be used in lowering the threshold of inhibitors. Now a complete DNA profile is obtained.
Q: Is the inhibitions is the main reason for you to conduct the re-amp of this sample?
A: Yes, the assessment of the first profile had indicated that there are inhibitions, and therefore this collective step was taken.
Q: Is there anything significant to know the result of pre reamp?
A: The pre reamp being the incomplete DNA profile would probably not have the complete data, complete allelic information and the assessment is best perform at the most successful DNA profile, meaning the profile of re amplification which is the most complete and successful DNA data.
Q: So, re amplification is the more reliable data?
A: Yes, in this case.
Q: You were told by the counsel on the incidents of 26th of June 2008 that was the situation after 46 hours of ejaculation took place and remaining in the anus. You said the quality of the specimens was expected to be deteriorate. You said that contamination could have taken place. You said that contamination is hard to be recognized. You also said that the decline on one of the peak is one of the indications that there is degradation. Even if the degradation occurred on the sample, taken from the inner part of the body, the high rectal and the low rectal of Saiful, can you confirmed that this affected the reading of general typing of your analysis?
A: No. The DNA profile was clear. It was readable. The degradation has no effect on the DNA profile that was obtained from this sample.
Q: So you can confirmed that you can still obtain the allele reading from the 16 loci of those sample?
A: Degradation only become a problem if DNA profile is  and it is not readable.
Q: This morning, my learned friend has shown you an article entitled stability, or it’s a manual about degraded DNA. There was this chart on 2nd page of this manual. Could you be able to confirm that this graph is an example of degraded DNA.
Q: You were asked to compare the electropherogram of B10, the blood sample of Saiful. This is at P52 page 20. It was put to you that this electropherogram of B10 is an example of degradation.
A: That would be erroneous interpretation of DNA profile. This is an exemplary high quality DNA profile.
Q: So this B10 of this electropherogram is a high quality DNA profile.
Q: So, there cannot be degradation.
A: No degradation in this profile. To interpret DNA profile as degraded DNA profile, is grossly erroneous.
Q: Despite of the alleles on the left or on the right that you’ve been referred to it, you cannot say that this is the sample of degraded DNA profile?
A: No, the declining phenomenon that was seen was made based not withstanding on the characteristics on each of the loci in each of the panel in this DNA profiling. And particularly in the second panel it was pointed out that 201 heterozygote , the level is much higher; this was the characteristic of the loci in this panel. And where it was clearly demonstrated in the validation studies, it was also pointed out to by other laboratories system that in fact in this panel, the most difficult locus is actually the sample locus D13S317 this is the locus that is most sensitive and most prone to not being amplified in the presence of the inhibitors. And yet in this particular DNA profile, the genotypes of allele D13S317 was strong, clearly readable and unambiguous.
Q: You mentioned about the misconception of the term ‘carry over’.
A: Not a misconception. It is probably a term which is not used to ..(tak sempat jawab), because it is also could mean carried over, it also means a process which occurs you know during  where one sample is carried over to one sample and also during PCR, during the set up of the amplification, where the previous sample was carried over to a sample. But that carry over was being used probably in a context that the non sperm fraction that could be very high level of non sperm fraction, resulting in part of non sperm fraction not being extracted out during the time for the extraction of non sperm extract resulting in the remaining non sperm cells being detected in the sperm extract. What happen during differential extraction, YA, it is a two process. The first process was design by recognizing the chemistry of the sperm cells and non sperm cells. So during the first step, the non sperm cells, the environment would favor the extraction of the digestion or the breakdown of non sperm cells and this will be collected. The remaining fraction would then be subjected to harsher treatment that will be unable the sperm head ofrobust structure to be digested or to be extracted. But in the event of non sperm cells, that is very high level of the epithelial of the non sperm cells. The first process was not completely extract out the non sperm cells resulting in some of the non sperm cells  presence in the sperm fraction. And that will be collected in the sperm fraction, and the DNA type will be seen on the sperm extract.
Q: So, you cannot call this a carry over?
A: We have not used this term because we reserve it during phenomenon that could have done during patting, where there is carry over from previous  when the best practices is not carried out.
Q: This is about the possibility that whether seminal fluid can actually leak at the back of the trousers or underwear. You’ve said that there is a possibility of that to happen. As far as the underwear is concern, do you remember which part of the underwear that had been detected the seminal stain?
A: First part of the underwear.
Q: Which part? There are two spots. Front part in which particular part?
A: In the central region.
Q: If the question was asked to you, about the possibility of the seminal fluid can leak to trousers and underwear, you said there is a possibility, could it be possible also for the seminal fluid to leak at the middle or front of the trousers, or that underwear?
RK: She said she couldn’t be speculative yesterday. I think I remembered she said that she don’t want to agree or disagree. I think, we can’t have this, to be fair.
NB: Because the questions were actually asked ..
RK: I am very clear on this…
YA: OK, let me hear from her first. What is your answer to his objection?
NB: Yesterday, she was asked many times. First, she was asked again and again and she answered that there is a possibility but at the end of it, she said ‘I don’t want to answer’. But she did at one stage say that there is a possibility.
RK: The point is this. You can check the record that we were accused for asking speculative question yesterday. Now, in re-examination she was asked the speculative question. Why she was being allowed to do it in prosecution case, not in the defence stage?
YA: Because during cross you asked specific question, and she was answering to that first. So because of that, they have the right to clarify.
RK: She said I don’t want to answer when I asked her agree or disagree. That was on our record. In any event, my learned friend asking about that speculative question…
YA: In clarification to clarify your speculative question.
RK: But she didn’t answer.
YA: So now the issue here whether she answer or not. If she had answered, then they have the right. But if she doesn’t answer, they have no right to ask. According to them, she keeps on said ‘ada possibility’.
RK: But she said I don’t want to answer.
NB: Never mind.
RK: You go on to the next question.
NB: Yes. You disagree to this question yesterday when it was suggested to you that profile B8, can be interpreted to mean that Saiful’s semens is found in his own anus. Can you please explain to the court, why did you disagree to this?
A: Looking at the electropherogram on the non-sperm extract and sperm extract, where we could see in the sperm extract, that Male Y is a minor contributor, and the dominant contributor is Saiful. In differential extraction, if the levels of non sperm cells are high, then the entire non sperm cells will not be collected in non sperm extract. There will be proportion to it, which will be collected in the sperm extract. And that is the reasons why Saiful’s DNA was seen on his own sperm extract. It does not mean that he is the donor of the semen which is detected in swab B8.
Q: Now, you disagreed as well that it was suggested to you that the sperm fraction indicates other party apart from Saiful and Male Y, at the lower rectum B9. Why?
A: In B9, there was the presence of allele 18 at D3S1258 and that is the drop in. Third person was not being observed at all the remaining 14 STR loci. Being the small peak, the most logical reason is, it is the drop in.
NB: That was all my re-examination covering Friday and yesterday’s cross YA. May I be given time to cover the cross today at tomorrow. It could just be in one hour.
YA: I think it’s the time to stop. Continue tomorrow.
[4.27 p.m] Adjourned