Anwar Ibrahim Sodomy II – The Recorded Truth – 8 Mac 2011 March 11, 2011Posted by malaysianstory in 1Malaysia.
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 CV Prabhakaran, Datuk Param Cumaraswamy (Marissa dan Radzlan tidak hadir).
MY: Kes ditetapkan untuk hujahan balas oleh KS.
KS: It is the submission of the learned DPP that R v Payne  1 WLR 637, a 1980 authority, is the only instance in which the court exercised discretion to exclude evidence illegally obtained. However, if the facts in Payne are scrutinized carefully, what emerges is that it was by trick that the evidence there was obtained. The facts of the case as set out in the headnotes are as follows:-
‘Following a car collision, the defendant was taken to a police station and was there asked if he was willing to be examined by a doctor. It was made clear to him that the purpose of the examination was to see if he was suffering from any illness or disability and that it was no part of the doctor’s duty to examine him in order to give an opinion as to his fitness to drive. The defendant then agreed to the doctor’s examination. At the defendant’s trial on charges of driving a car while unfit to drive through drink, the doctor gave evidence for the prosecution to the effect that the defendant was under the influence of drink to such an extents as to be unfit to drive. The defendant was convicted’
On appeal against his conviction, the Court of Appeal held, ‘that had the defendant realized that the doctor would give evidence as to his fitness or unfitness to drive, he might have refused to allow himself to be examined and accordingly, although the doctor’s evidence was admissible, the chairman, in the exercise of his discretion, should have refused to allow it to be given, and therefore the appeal would be allowed and the conviction quashed.’
Lord Parker CJ adverted to and adopted Regina v Court  Crim LR 69, a decision of the Criminal Court of Appeal, when setting out as follows in Payne at page 639:-
‘In Court’s case, this court pointed out that while such evidence from the doctor in circumstances such as these was clearly admissible, nevertheless the chairman in the exercise of his discretion ought to have refused to allow that evidence to be given on the basis that if the defendant realized that the doctor was likely to give evidence on that matter, he might refuse to subject himself to examination.
This present case is, in the opinion of this court, on all fours with Court’s case, and in those circumstances the court is constrained to quash the convictions on counts 1 and 3, and the order for disqualification.’
Clearly, both in Payne and Court, the evidence sought to be adduced had been obtained by deception and trickery.
In our case, Dato’ Seri Anwar Ibrahim had the right to refuse to give blood samples for DNA profiling having regard to the proposition set out in Peter James Binsted v. Juvencia Autor Partosa.
In Noor Mohamed v The King  AC 182, Lord de Parcq says at page 192:-
“…in all such cases the judge ought to consider whether the evidence which it is proposed to adduced is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility.
The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.’
The abovementioned general pronouncement made in Noor Mohamed had been followed in numerous other cases in England and is entrenched in the principle that the English court upholds, which is, it is ‘a judge’s undoubtedly duty to ensure that the accused has a fair trial…’ (per Lord Salmon in R v Sang  AC 402 at page 445.
It is significant to note in R v Sang  AC 402, Lord Salmon adverts to the following passage:-
‘3. The judge has a discretion to exclude evidence procured, after the commission of the alleged offence, which although technically admissible appears to the judge to be unfair. The classical example of such a case is where the prejudicial effect of such evidence would be out of proportion to its evidential value. Harris v Director of Public Prosecutions  AC 694, 707; Kuruma v The Queen  AC 197; Reg. v Selvey  AC 304.’
In Kuruma , Lord Goddard CJ at page 239, says:-
‘If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by trick, no doubt the judge might properly rule it out.’
The Federal Court, at page 526, in Goi Ching Ang adverted to Noor Mohamed, Harris, Sang and Kuruma Son of Kainu v Reginam.
The authority by which the court is bound is Goi Ching Ang which after reference and discussion of the various authorities adverted to above, concluded:-
‘Evidence obtained in an oppressive manner by force or against the wishes of an accused person or by trick or by conduct of which the police ought not to take advantage, would operate unfairly against the accused and should in the discretion of the court be rejected for admission.’
[italicized for emphasis]
The learned DPP’s reference to Hanafi bin Mat Hassan v Public Prosecutor  4 MLJ 134 for the proposition that the court has no discretion to refuse to admit evidence on the ground that it was illegally obtained if it is relevant and therefore, the evidence relating to the blood sample taken from the accused was admissible as it was relevant even if it was taken without his consent runs counter to the proposition in Goi Ching Ang.
In any event, it must be observed Goi Ching Ang does not appear to have been cited in Hanafi which is a Court of Appeal decision.
On the evidence adduced in the TWT, it is clear after Dato’ Seri Anwar Ibrahim had refused to give his blood samples for DNA profiling as requested by the doctors at HKL, which was his right, he was brought back to IPK KL and was there supplied by DSP Yahya with the Good Morning towel, toothbrush and mineral water bottle.
It is apparent, having regard to the sequence of the events, that the DNA extracted from the said items had been brought about by deception/trickery. This is manifested by having regard to the evidence led in general trial that Supt. Jude Periera had directed police personnel guarding the lock-up not to touch the items referred to hereinbefore.
Why was there a need for such directions unless it was a ploy hatched by the police to ensure DNA samples would be extracted from these items despite Dato’ Seri Anwar Ibrahim having earlier exercising his right by refusing to give his blood samples for DNA profiling at the HKL, which was clearly within the knowledge of Supt. Jude Pereira who accompanied Dato’ Seri Anwar Ibrahim to the HKL.
It is very significant to note that Supt. Jude Periera was not called as a witness in rebuttal in relation to the directions he gave to the said police personnel.
The irresistible conclusion is that the police applied unfair methods and unfair means to procure DNA from those items.
With regard to Taufik’s evidence that he was directed by CID chief Dato’ Sri Bakri Zinin to arrest Dato’ Seri Anwar Ibrahim for diverting from IPK KL, it is significant to note this was not the ground given by Taufik for Dato’ Seri Anwar Ibrahim’s arrest. Taufik testified the grounds of arrest he gave to Dato’ Seri Anwar Ibrahim was that he had committed an offence under Section 377B of the Penal Code.
In conclusion, it is not the American authorities which the court should be concerned with but by the decision of the 5-man bench of the Federal Court in Goi Ching Ang.
If I could round up, what is important here is not what the evidence is of the DNA profile which in fact is disputed, the evidence given by Dr. Seah and Aidora and cannot be taken into account for the purpose of coming to a conclusion in a trial within a trial. A trial within a trial is a part from the main trial. What is to be considered is what transpired in the trial within a trial.
I take your Lordship to S.114(g) of the Evidence Act. I refer to it yesterday. Why when witnesses are available, Supt. Jude, DSP Yahya, Dato’ Seri Bakri Zinin and other police personnel who were guarding the lock-up not called as witnesses during rebuttal. These are matters that YA has to take into account when coming to the conclusion as to whether in this case the unfair method and unfair means employed by the police and above all unlawful arrest which in fact preceded the events which led ultimate to the obtaining of the DNA profile from the items which are disputed.
The proper case for YA to rule that the defence has on a balance of probability and that is that case, YA. Test set out by the Privy Council in the case of Yuvaraj that it is reasonable for YA to come to the conclusion that the ground upon which we have  our submissions ought to be in fact  by YA.
We pray under those circumstances that the three items to be excluded as evidence in the trial properly. Much obliged.
MY: May I just have one minute?
YA: Yes, it should be okay.
MY: I would like to bring to the court’s attention that R v Payne was decided in 1963 by the Court of Appeal. R v Courts 1962. Meaning 17 or 18 years before R v Sang which is now the leading case or authority with regards to exclusion of evidence. And the decision in R v Payne was criticize by the Court of Appeal in R v Sang at page 420 because the judge said they couldn’t follow what the judges said in R v Payne. It was commented upon by all the judges in the House of Lords in R v Sang in particular Lord Diplock at page 435. That’s all.
KS: In reply to that, R v Sang does not appeared in the cases cited in Goi Ching Ang but that case appears to have been considered by the 5-man bench in the Federal Court at page 526. R v Sang was cited, Kuruma was cited, and considered by the 5-man bench in the Federal Court. What is important is not what was decided in R vSang. That is an English case.
What is important is what is decided in Goi Ching Ang. In this case Sang was considered and therefore the principle in Goi should prevail. YA is bound by Malaysian law, not by American law and for that matter even by English law.
. We would like YA to follow the decision in Goi.
YA: Stand down for a while.
[10.28 a.m.] Stand down.
YA: This is my ruling in trial within a trial and full ground will be given in due course. I find in this case the DNA samples on toothbrush-ID58A, Good Morning towel-ID59A, and plastic bottle-ID61 were obtained by unfair means against the wishes of the accused. These items and any evidence related to these items especially evidence relating to DNA analysis conducted by SP6 on those items is to be excluded from being part of the notes of evidence.
YA: Can we proceed with the main trial?
MY: YA, because I’m not ready with the witnesses, may I ask for tomorrow?
YA: How many witnesses more you’ve got?
MY: 3 witnesses, JPJ, Ibrahim Yaakob and Dr. Razuin and then the IO.
YA: We continue tomorrow. They got no witneses. Continue at 9.00 a.m.
KS: Could we have the trial tomorrow at 8.30 a.m.-1.00 p.m.? I have another trail in the afternoon.
YA: We start tomorrow at 9.00 a.m. you have to make some arrangements for other cases. This case takes priority.
[10.37 a.m.] Adjourn.