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Anwar Ibrahim Sodomy II – The Recorded Truth 08 Ogos 2011 August 9, 2011

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II.
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Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Pihak-pihak:
PP:    Semua hadir kecuali MHZ
PB:    KS, SN, Marissa,
WB:    Zambri Idrus (for complainant)
Expert for Defence: Prof. David Wells, Dr. Brian McDonalds
AI hadir

[9.38 a.m.]
Keputusan permohonan 44-197-2011 & 44-204-2011

KS:    Pihak-pihak seperti dahulu.

YA:    Ini keputusan mahkamah bagi permohonan 44-197-2011 dan 44-204-2011. Setelah meneliti kedua-dua hujahan yang dikemukan kedua-dua belah pihak, mahkamah metuskan bahawa : (a) apabila pendakwa menawarkan mana-mana saksi kepada pembela dki akhir kes pendakwaan maka menjadi tanggungjawab pendakwa untuk memastikan saksi-saksi tersebut hadir di mahkamah bila diperlukan oleh pihak pembela; (b) pihak pembela pula mempunyai hak untuk meneramah saksi-saksi yang ditawarkan tertakluk kepada syarat saksi-saksi itu sendiri bersetuju untuk ditemuramah. Berdasarkan kedudukan yang dinyatakan seperti di atas maka permohonan 44-197-2011 & 44-204-2011 dibenarkan dengan perintah seperti yang dipohon dalam kedua-dua permohonan tersebut.

MY:    Terima kasih.

YA:    So when can you fulfil this obligation? Or maybe you want to stand down for a while? Stand down for a while.
[9.40 a.m.] Stand down.

[10.12 a.m.]    Pihak-pihak masuk ke Kamar Hakim
[10.22 a.m.]    Pihak-pihak keluar dari Kamar Hakim

[10.24 a.m.]
MY:    YA, pihak-pihak seperti dahulu. Berikutan dengan perintah yang YA berikan sebentar tadi, pihak pendakwa memerlukan masa untuk membuat urusan temubual saksi-saksi ini. Saya telah berbincang dgn En. Karpal dan yang lain-lain. Kami memohon untuk diberi masa seminggu untuk urusan saksi-saksi untuk ditemubual kerana (2) daripada saksi-saksi ini tiada di Malaysia. Ini adalah tertakluk kepada pihak-pihak yang akan merayu.

YA:    So start next week, 15 Ogos – 26 Ogos 2011.

MY:    Much obliged.
[10.27 a.m.] Adjourned.

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Anwar Ibrahim Sodomy II – The Recorded Truth 06 JULAI 2011 July 13, 2011

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II, Transformation in PKR.
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Mahkamah Rayuan
Di hadapan YA Dato’ Hasan Bin Lah, H.M.R
YA Dato’ Hj Abdul Malik Bin Haji Ishak, H.M.R
YA Dato’ Haji Ahmad Bin Maarop, H.M.R

Pihak-pihak:
PP:    NH, WCK, NB, NAA, MM
PB:    KS, Ram Karpal
AI tidak hadir

[9.46 a.m.]

Rayuan Jenayah: W05-162-6-2011

NH:    Sebelum rakan saya memulakan rayuan, pihak kami telah memfailkan notis memaklumkan kami ada bantahan awal untuk dihujahkan sekiranya diizinkan.  YA, kami telah menyediakan hujahan bertulis untuk bantahan awal yang telah dikemukakan kepada mahkamah dan juga ikatan autoriti berkaitan bantahan awal.

YA Dato’ Hasan : Teruskan.

NH:    Mohon izin untuk berhujah di dalam Bahasa Inggeris, YA.

The appeal today is against the decision of the trial judge not to recuse himself from hearing the criminal proceedings against the Appellant.

Our preliminary objection as mentioned in our notice earlier to the Appellant and this honorable court is that the ruling of the trial judge not to recuse himself is not appealable. The trial judge’s ruling is clearly not within the purview of the definition of ‘decision’ in Section 3 of the Court of Judicature Act 1964.

YA, just to inform the honorable court this is the third application to recuse the trial judge by the Appellant and this honorable court on appeal pertaining to the second application has decided that the judge ruling not to recuse himself is not appealable as it is not within the purview of the definition of ‘decision’ as provided by Section 3 of the Court of Judicature Act 1964. It is reported in Dato’ Seri Anwar Ibrahim v PP [2011] 2 CLJ 845.

Our reason for this objection is stated at page 10 of our written submission. If I may refer YA to page 10 at paragraph 16. As mentioned here, the ruling of the learned trial judge, in refusing to acquiesce to the Appellant’s third application for recusal is clearly not within the purview of the definition of ‘decision’ in Section 3 of Court of Judicature Act 1964.

The said ruling was made in the course of a trial, i.e. at the close of the prosecution case. It must be emphasized YA, that the said ruling had not finally disposed the rights of the Appellant.

YA, the rights of the Appellant to appeal against the decision of the high court are governed by Section 50 of the Court of Judicature Act 1964 which provides that:

50. Jurisdiction to hear and determine criminal appeals

(1) Subject to any rules regulating the proceedings of the Court of Appeal in respect of criminal appeals, the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court—
(a) in the exercise of its original jurisdiction; and
(b) in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by the Sessions Court.

(2) An appeal shall lie to the Court of Appeal, with the leave of the Court of Appeal, against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates’ Court but such appeal shall be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision.

(2A) …

(3) …

(4) …

The word ‘decision’ as appeared in Section 50 of the Court of Judicature Act is defined in Section 3 of the same Act:

“decision” means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does nit finally dispose of the rights of the parties.

YA, as we stated here, in the explanatory notes when the word ‘decision’ in Section 3 of the Court of Judicature Act was amended, the reasons for the amendment were stated as follows:

“Pada masa ini, semasa mendengar kes, jika mahkamah membuat keputusan tentang kebolehterimaan apa-apa keterangan atau dokumen, pihak yang tidak berpuas hati boleh memfailkan rayuan. Jika rayuan sedemikian difailkan, mahkamah terpaksa memberhentikan pendengaran kes itu sementara menanti keputusan rayuan itu oleh mahkamah atasan. Ini menyebabkan pendengaran itu lambat selesai, lebih-lebih lagi apabila rayuan difailkan terhadap tiap-tiap keputusan yang dibuat oleh mahkamah bicara. Pindaan ini mencadangkan untuk membantu mempercepat pendengaran kes di mahkamah bicara.”

In Dato’ Seri Anwar Ibrahim v PP [199] 1 MLJ 321 at tab 11 of our bundle, the Court of Appeal when deliberating on the ambit of the word ‘decision’ in Section 3 of the Court of Judicature Act opined at page 335 that:

“A decision made pending the trial of the charges against the appellant is not, in our considered opinion, a decision (ruling) that had the effect of finally determining the rights of the appellant. It is only the outcome of the trial that would have the effect of finally disposing of his rights. A decision on bail (by the court of first instance), whether the grant or refusal of it, will not finally determine the rights of the appellant in the outcome of his trial. That being so, the order of the High Court in refusing to admit the appellant to bail is not appealable to the Court of Appeal.”

Similarly in Saad Bin Abas & Anor v Public Prosecutor [1999] 1 MLJ 129, the application of Section 50(2) of the Court of Judicature Act was explained by the Court of Appeal at page 138 as follows:

“So, for the purpose of s 50(2), this court has to first ascertain whether the ‘decision’ of the High Court in ordering the applicants before us to enter on their defence was a ruling that had the effect of finally disposing of their rights. Certainly not, and it would only happen after a decision had been made at the close of the defence.”

And in our case it is at the close of the prosecution case.

YA, in Regina v Collins [1970] 1 QB 710 at tab 12, the coa of England, pursuant to a motion filed with regards to the decision of the court below in refusing to order further particulars of a count in an indictment held that:

“…the court had no jurisdiction to hear the application; that the Court of Appeal (criminal division), having the same powers as its predecessor, the Court of Criminal Appeal, which was created by the Criminal Appeal Act 1907, had no statutory jurisdiction to hear an interlocutory appeal; that since the court was created by statute, it had no powers beyond those conferred on it by Parliament. Accordingly, there was no inherent jurisdiction to hear interlocutory appeals.”

The above case did not define ‘interlocutory’ nor ‘interlocutory appeal’. However, in Black’s Law Dictionary (Eight Edition), the word ‘interlocutory’, (when referring to an order, judgment, appeal etc.) is defined as ‘interim or temporary, not constituting a final resolution of the whole controversy.’

On the other hand, the phrase ‘interlocutory appeal’ is defined in Black’s Law Dictionary (eight Edition) as ‘an appeal that occurs before the trial court’s final ruling on the entire case.”

It cannot be gainsaid that the appeal filed by the Appellant herein is actually an interlocutory appeal as it was ‘an appeal that occurs before the trial court’s final ruling on the entire case.’ Such being the case, the definition of the word ‘decision’ in section 3 of the Court of Judicature Act would clearly preclude the Appellant from pursuing with this appeal.

If I may refer YA to tab 11 of our bundle where J NH Chan at page 330 had further explained at paragraph D,

“The real distinction is between (for want of a better word) what is called final judgments and orders and interlocutory judgments and orders. In general, a judgment or order which determines the principal matter in question is termed ‘final’: see 26 Halsbury’s Laws of England, para 505 at p 238. Actually, the use of the term ‘final’ is tautological as all judgments and orders are final. The term (final) is used for the purpose of distinguishing between judgments and orders and ‘interlocutory’ judgments and orders. The difference is that judgments and orders which are not termed ‘interlocutory’ judgments and orders are appealable under the new meaning of the word ‘decision’ as defined in s 3 by the 1998 amendment. In other words, judgments and orders which determine the principal matter in question are termed ‘final’ judgments and orders, and they are appealable. But, those judgments and orders which give no final decision on the matters in dispute (which are termed ‘interlocutory’ judgments and orders) are now no longer appealable.”

YA, in fact, this Honorable Court when deliberating on an appeal filed by the same Appellant pursuant to his second application for recusal in Dato’ Seri Anwar Ibrahim v PP [2011] 2 CLJ 845 at tab 7 of our bundle. May I refer first to the head notes in paragraph E at page 845,

“The accused had during the course of the trial filed an application to recuse the learned trial judge on the grounds that the trial judge had intimidated the accused’s learned counsel with contempt proceedings. The trial judge dismissed the recusal application. The accused filed this appeal against the said decision. The learned Deputy Public Prosecutor raised a preliminary objection on the ground that the ruling of the trial judge was not within the purview of ‘decision’ in s. 3 read with s. 50(1) of the Courts of Judicature Act 1964 (‘the Act’), as it was made in the course of a trial and did not finally dispose of the accused’s rights under the charge.”

Then it was decided by this honorable Court, If I may refer to paragraph 16 of page 851,

“[16] The intention as manifested in s. 3, read with s. 50(1)(a) and the Explanatory Statement, is clear and unambiguous ie, to bar the filing of an appeal against a ruling made by a trial court and also to help expedite the hearing of cases in trial courts. In other words, while the law allows appeals against a judgment, sentence or order, it expressly excludes all appeals against all rulings made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties. Put simply, the intention of Parliament in enacting s. 3 and s. 50(1)(a) is to exclude interlocutory appeals in criminal causes or matters.”

YA, then at paragraph 17,

“[17] As the definition of ‘decision’ in s. 3 is clear and unambiguous, it is the duty of the court to give effect to it. This Court has no powers beyond those conferred by Parliament. Accordingly, there is no jurisdiction to hear an interlocutory appeal i.e. Interim appeal against a ruling which does not constitute a final resolution to the whole controversy, or “an appeal that occurs before the trial court’s final ruling on the entire case” (see Black’s Law Dictionary, 8th edn, and Regina v Collins, supra). Justice demands that cases should move without unnecessary interruption to their final conclusion. The right of a party who is aggrieved by a ruling, after all, is not being compromised, as the party can always raise the issue during the substantive appeal, if any, which may be filed after the trial process is brought to its conclusion.”

YA, we go straight to paragraph 19,

“[19] In the instant appeal, the ruling of the learned trial judge in dismissing the accused’s second recusal application was made in the course of the trial which does not finally dispose of the rights of the accused and is therefore not a decision within the ambit of s. 3 read with s. 50(1)(a). It is only the outcome of the trial that would have the effect of finally disposing of his rights.”

It goes on further at paragraph 20,

“[20] The underlying reason behind the amendment to the definition of ‘decision’ in s. 3, introduced by Amendment Act A1031 of 1998 with effect from 31 July 1998, is to stop parties from filing appeal after appeal on rulings made by the trial court in the course of a trial, thereby stifling a trial before the trial court: See Dato’ Seri Anwar Ibrahim v. PP [2010] 9 CLJ 625 FC.”

And the conclusion at paragraph 21,

“Conclusion

[21] On the foregoing grounds, we unanimously sustained thepreliminary objection and dismissed this appeal in limine.”

At page 862 of the same case, J Abdul Malik Ishak stated in paragraph 56,

“[56] The ruling by the learned trial judge is interlocutory in nature and made in the course of the trial and it is not final. And since the ruling of the learned trial judge is not appealable, this court has no jurisdiction to hear the appeal.”

YA, This   Honorable  Court  in  Dato’  Seri  Anwar  Ibrahim v Public  Prosecutor  (Court of  Appeal. Criminal Appeal No. W-05-178-2010 – Unreported), tab 9 of our bundle which was an earlier appeal filed  by the Appellant against the ruling of the learned trial Judge in refusing to allow the defence to inspect the section 112 statement of the complainant, had held that:

“(1)    We are of the view that the ruling of the learned trial Judge was made in the course of a trial where the rights of the Appellant has not been fully disposed off. Therefore the ruling in refusing to allow the statements of the complainant recorded under section 112 Criminal Procedure Code, to be produced for inspection by the Appellant is not within what is envisaged by the definition of “decision” as provided for by section 3 of Courts of Judicature Act 1964.

(2)    Our jurisdiction to hear and determine the appeal is governed by section 50 of Courts of Judicature Act 1964. We have no jurisdiction to hear an appeal which is not against a decision made by the High Court.”

Further at paragraph 31 of our written submission, The Court of Appeal in the above case then proceeded to examine the term “decision” as defined in section 3 of the CJA, the explanatory statement accompanying the amendment to the term “decision” and the relevant authorities illustrating the said term.

Having done do, the Court of Appeal held that:

“(4)    It cannot be gainsaid that the appeal filed by the Appellant herein is really an interlocutory appeal as it is an appeal that occurs before the trial’s court final ruling on the entire case.

(5)    Therefore we have no jurisdiction to hear and determine this appeal.”

The Federal Court had also recently dealt with the same issue in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 6 MLJ 585, tab 8 of our bundle in paragraph 24,

“[24]    The underlying reason behind the amendment to the definition of ‘decision’ in s 3 of the CJA, introduced by Amendment Act A1031 of 1998, which came into effect on 31 July 1998 is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial. This is what the amendment seeks to achieve as evident from the explanatory statement to the Bill which reads:

2 Clause 2 seeks to amend section 3 of Act 91.

At the moment, in the course of hearing a case, if the court decides on the admissibility of any evidence or document, the dissatisfied party may file an appeal. If such appeal is filed, the court has to stop the trial pending the decision of the appeal by the superior court. This cause a long delay in the completion of the hearing, especially when an appeal is filed against every ruling made by the trial court. The amendment is proposed in order to help expedite the hearing of cases in trial courts.”

And the conclusion of the above case is,

“CONCLUSION

[26] For the above reasons, we agree with the Court of Appeal that the ruling of the trial court in this case is not a ‘decision’ as defined in s 3 of the CJA and hence it is not appealable. In the light of our decision, it is therefore not necessary for us to consider grounds 3 and 4 of the petition.”

Applying the principles as enunciated by both the Federal Court in the above case and also the latest decision of the Court of Appeal in Dato’ Seri Anwar Ibrahim v PP [2011] 2 CLJ 845, it is rather obvious that the ruling of the learned trial Judge is refusing to acquiesce to the demand of the defence for him to be recused, is definitely a non-appealable ruling.

On this preliminary issue alone, we respectfully urge this Honorable Court to dismiss the Appellant’s appeal for want of jurisdiction.

YA Dato’ Hasan: Sebelum itu, perayu memang tidak hadir ya, En.Karpal?

KS:    He is here.

YA Dato’ Hasan: Kenapa tak datang depan?

DSAI: []

YA Dato’ Hasan: Okay, proceed.

KS:     My learned friend starts off by saying that this is the third attempt by the Appellant to recuse the learned trial judge. The number of attempts is not an issue, my lord. An accused has the right to exhaust any remedy he has. The number of attempts does not count.

What we have here is the interpretation of the word ‘decision’ in Section 3 or rather the amendment of Section 3 of the Court of Judicature Act. That of course is [] would be Section 50 of the Court of Judicature Act with the right of appeal of an accused person.

I take your Lordship straight away to what is at hand. We refer to our submission.

The respondent has given notice of preliminary objection that pursuant to Section 50 and the definition of ‘decision’ in section 3 of the Court of Judicature Act 1964 and having regard to the decision of this Court in Dato’ Seri Anwar Ibrahim v PP [2011] 2 CLJ 845 [Tab 1] and in which J Abdul Malik had the occasion to say to the court the issue having arisen in the course of the trial and having been decided, that decision is not a final order and, therefore, it could not be appealed to the Court of Appeal.

My Lord, Malik J had occasioned to say this to Honorable Court; and the issue having arisen in the course of the trial and having been decided, that decision is not a final order and therefore, it could not be appealed to the Court of Appeal.

The order of the trial judge dated 6th June 2011 is against his refusal to recuse himself for further proceeding with the trial in disqualifying himself so to do.

What has to be noted is that the Federal Court has had occasion to consider the issue relating to final order in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 9 CLJ 625 [TAB 2]. However, the Federal Court there was dealing, not with an order of recusal, but with a ruling relating to the recording of a statement under Section 112 of the Criminal Procedure Code.

It is to be noted that this issue relating to recusal of a judge arose in this court in Dato’ Seri Anwar Ibrahim v Public Prosecutor [2011] 2 CLJ 845.

It was a unanimous decision of the Court of Appeal that the intention as manifested in the definition of decision in section 3 of the Act, read with the Section 50(1)(a) of the Act and the Explanatory Statement, was clear and unambiguous i.e. to bar the filing of an appeal against a ruling made by a trial court and also expedite the hearing of cases in trial courts. The intention of Parliament in enacting Section 3 of the Act, read with section 50(1)(a), was to exclude interlocutory appeals in criminal caused or matters.

The Court of Appeal went on further to hold as the definition of ‘decision’ in section 3 of the Act is clear and unambiguous; it is the duty of the court to give effect to it. The court has no powers beyond those conferred by Parliament. Accordingly, there was no jurisdiction to hear an interlocutory appeal i.e. interim appeal against a ruling which does not constitute a final resolution of the whole controversy or an appeal that occurs before the trial court’s final ruling on the entire case.

The Court of Appeal went on further to hold the ruling of the learned trial judge in dismissing the accused’s recusal application was made in the course of the trial which did not finally disposed the right of the accused and was therefore not a decision within the ambit of Section 3 read with Section 50(1)(a) of the Act. It was only the outcome of the trial that would have the effect of finally disposing his rights with Abdul Malik Ishak JCA, while concurring, held the ruling by the learned trial judge was interlocutory in nature and made in the course of the trial and was not final. Since the ruling of the trial judge was not appealable, the court has no jurisdiction to hear the appeal. Hence the appeal should be dismissed for want of jurisdiction.

It is submitted with respect that the abovementioned rulings by the Court of Appeal are erroneous. The Court of Appeal is not bound by its own decisions.

In Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1 [TAB 3], the Federal Court at page 14 stated,
‘In Malaysia, the Federal Court and it forerunner, i.e. the Supreme Court after all appeals to the Privy Council were abolished, has never refused to depart from its own decision when it appeared right to do so’.

However, at the same page preceding the above passage appears the following caveat,
‘Experience in the United Kingdom has shown that the power ‘to depart from a previous decision when it appear right to so’ has been used very sparingly’.

In Tunde Apatira & Ors v Public Prosecutor [2011] 1 MLJ 259 [TAB 4] at pages 263-264, in delivering the judgment of the Federal Court, Gopal Sri Ram JCA (as he then was) had occasion to say,

‘With respect, we are unable to accept the learned deputy’s invitation to depart from Muhammed bin Hassan for three reasons. In the first place, Muhammed bin Hassan is a very recent decision of this court. It is bad policy for us as the apex court to leave the law in a state of uncertainty by departing from our recent decisions. Members of the public must be allowed to arrange their affairs so that they keep well within the framework of the law. They can hardly do this if the judiciary keeps changing its stance upon the same issue between brief intervals. The point assumes greater importance in the field of criminal law where a breach may result in the deprivation of life or liberty or in the imposition of other serious penalties. Of course, if a decision were plainly wrong, it would cause as much injustice if we were to leave it unreversed merely on the ground that it was recently decided. In a case as the present this court will normally follow the approach adopted by the apex courts of other Commonwealth jurisdictions as exemplified by such decisions as R v Shivpuri [1986] 2 All ER 334’.

In R v Shivpuri [1986] 2 ALL ER 334 [TAB 5] at page 345 the House of Lords stated,

‘Firstly, I am undeterred by the consideration that the decision in Anderton v Ryan was so recent, the 1966 Practice Statement is an effective abandonment of our pretention to infallibility. If a serious embodied in a decision of the House has distorted the law, the sooner it is corrected the better. Secondly, I cannot see how, in the very nature of the case, anyone could have acted in reliance in the law as propounded in Anderton Ryan in the belief that he was acting innocently and now find that, after all, he is to be held to have committed a criminal offence. Thirdly, to hold the House bound to follow Anderton v Ryan because it cannot be distinguished and to allow the appeal in the case would, it seems to me, be tantamount to a declaration that the 1981 Act left the law of criminal attempts unchanged following the decision in v Smith [1973] 3 ALL ER 1109, [1975] AC 476. Finally, if contrary to my present view, there is a valid ground on which it would be proper to distinguish cases similar to that considered in Anderton v Ryan, my present opinion on that point would not foreclose the option of making such a distinction in some future case.’

The propositions which can be distilled from the abovementioned authorities are as follows:

[1] the Federal Court has never refused to depart form its own previous decision when it appeared right to do so;
[2] Experience in the United Kingdom has shown that the power to depart from a previous decision when it appears right to do so has been used very sparingly;
[3] if a decision were plainly wring it would cause as much injustice if the court were to leave it unreserved; and
[4] if a serious error embodied in a decision of a court has distorted the law, the sooner it is corrected the better.

It is submitted, this principles equally apply to the Court of Appeal.

It is accepted that an appeal is merely a continuation of proceedings by way of rehearing [see Balasingham v Public Prosecutor [1959] 1 MLJ 193 [TAB 6]; See also Adzhaar Ahmad v Public Prosecutor [1996] 4 MLJ 85 [TAB 7]] in which Alauddin J (as he then was) had occasion also to say “that an appeal is merely a continuation of proceedings by way of rehearing”.

If this is the position in law, and it has to be, then this court should carefully consider whether if it had, in the first instance sat, and had come to the conclusion that the learned trial judge ought to have been recused, then that would have been the end of the matter. The trial would have had to be, as a consequence, commenced de novo. This would have meant that the order made would have been final and not an interlocutory or interim one.

Under these circumstances, this court should have the jurisdiction to hear the appeal. The position is as simple as that.

It is respectfully prayed therefore, that this court has the jurisdiction to hear the appeal and consider the merits of it.

Then again, this court should consider if a sanction or consent to prosecute is fundamentally defective in that they are unsigned, and an application is made for a ruling on that and if the court rules against that, would that mean it would not be a final order but had to be raised only on appeal on the reasoning that the trial should be expedited as this was the intention of Parliament in bringing about the amendment to the word decision in Section 3. Such a position would be untenable and would be against public interest in that public expense would be involved in proceeding with a hopeless trial. That could not have been the intention of the Parliament.

We say at this circumstances My Lord, the decision made by this court regarding the same matter should be reviewed, and we pray that this appeal should be proceed with the merits. Much obliged.

YA Dato’ Hasan: Yes, Dato’ Nordin?

NH:    Only on one matter, My Lord. Regarding one of the case cited in the written submission,     this is what we have to say, YA. We should not be part with the decision of this Honourable Court on the same issue because based on the principle cited, we submit that there is no serious error, the decision is the correct decision and also the other principle which say that this court to reverse decision must be used sparingly and not []. So we submit that we should not be part with the decision based on the reasoning and based on what the law had provide.

YA Dato’ Hasan: Kami akan bagi keputusan setelah naik semula nanti. Court tangguh selama setengah jam.
[10.24 a.m.] Stand down.

[11.02 a.m.]
YA Dato’ Hasan: Ini merupakan keputusan kami, yang merupakan keputusan sebulat suara. Ini adalah permohonan perayu terhadap hakim perbicaraan, di mana hakim perbicaraan telah menolak permohonan tersebut. Perayu antara lainnya telah memohon untuk hakim perbicaraan menarik diri daripada mendengar perbicaraan atas sebab berat sebelah. Kami perlu menentukan samaada keputusan yang dibuat pada 6 Jun 2011 oleh hakim perbicaraan boleh dirayu ataupun tidak. Dalam kata lain, sama ada keputusan tersebut termasuk di dalam seksyen 3 Akta Mahkamah Kehakiman. Permohonan yang dibuat oleh perayu untuk hakim perbicaraan menarik diri daripada mendengar kes tersebut berdasarkan alasan-alasan lain dan hakim perbicaraan telah menolak permohonan tersebut. Semasa rayuan perbicaraan di Mahkamah ini, isu yang sama dibuat iaitu samaada keputusan mahkamah tersebut boleh dirayu.

Kami telah menimbang hujah daripada kedua-dua belah pihak mengenai perkara ini dan kami berpendapat kami tiada sebarang sebab untuk kami tidak bersetuju dengan keputusan yang dibuat oleh Mahkamah Tinggi, mengenai isu yang sama. Dengan itu, kami memutuskan bahawa, keputusan yang diputuskan oleh Hakim perbicaraan pada 6 Jun 2011 bukanlah keputusan sebagai ditakrifkan di bawah Seksyen 3 CJA, bukanlah keputusan yang ‘finally disposed the right of the accused’.

Dengan alasan tersebut, kami membenarkan bantahan awal yang dibuat oleh pihak pendakwaraya, dan seterusnya menolak rayuan ini. Dan alasan penghakiman bertulis akan disediakan kemudian.

NH:    Much obliged, YA.

KS:    YA, we have instruction from our client to apply for stay of proceeding pending the outcome of the appeal to Federal Court. We would like to use the case of Rowstead in which it will apply to this court also. We read para 3 of this case at page 122 [read].

NH:    We submit My Lord that this case of Rowstead System is not applicable in our case, because the issues of Section 2 is never argued in this case and Section 3 is with regard to the jurisdiction in which this Honorable Court [] to appeal. Obviously this court has no jurisdiction, and cannot grant bail just merely because of Rowstead. That is our submission YA.

KS:    The principle of this case [] declare [] a just sitting in own cause. In any event the Federal Court allow the appeal, and if your Lordship [], []

Let me say once again that your Lordship ought to seriously consider our application. We will file the appeal as soon as possible, maybe tomorrow itself.

YA Dato’ Hasan:    Kami sebulat suara menolak permohonan untuk stay oleh perayu, dan alasan penghakiman akan kami berikan kemudian.

[11.13 a.m.] Appeal dismissed.

Anwar Ibrahim Sodomy II – The Recorded Truth – 24 Mac 2011 March 26, 2011

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

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

[9.11 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.28 a.m.] Pihak-pihak keluar dari Kamar Hakim.

[9.47 a.m.]

MY: Kes untuk pendakwaan memanggil semula SP15, bekas Supt. Amidon dan SP6, Puan Aidora untuk tujuan mengemukakan eksibit-eksibit secara rasmi, YA.

YA: Ya, teruskan.

KS: Before my learned friend proceed with the witnesses, we have in fact filed a Notis Usul this morning asking for your Lordship to review the ruling that was made yesterday.

YA: Yesterday’s ruling?

KS: Yes. The grounds are set out in the affidavit and in fact I’m told that the file is in your Lordship’s room, probably by now. It is only filed today, but not already there.

YA: Never mind, since you have filed it. But we can proceed with this one. Later on we can deal with whatever application you make.

KS: Our application is very fundamental that these items ought not to go in. If these witnesses are called, the items go in and marked as exhibit.

YA: Okay, marked as exhibit….

KS: You can’t do that unless…

YA: But then later on if I hear you and if I decide in your favour it will be expunged also.

KS: That is not the point. The moment it is marked as exhibit it become public document.

YA: It can be expunged.

KS: That can even be published in the press. You should avoid that.

YA: That is nothing to do with…Sorry, Mr. Karpal. We have to proceed with this. We will deal with your application later.

KS: Sorry is not the right word to use. I think it goes beyond sorry. It’s very important that this application be heard first. Prerequisite, my Lord. Your Lordship should not do something which is inconsistent with your reason. Because if this document go in as exhibit as I kept saying just now, it become public document.

YA: So what?
KS: The prejudice will be there is confusion. Surely your Lordship can see that. Male Y. Tomorrow the papers will say male Y is the accused. Can we allow that? And later your Lordship decides otherwise and said this documents are inadmissible. Harm done. Could we see your Lordship in chambers? I will explain to your Lordship . Let’s not be hasty, my Lord. Hasty judge can be a dangerous judge. Can we see your Lordship in chambers now? It’s very pertinent. Important. Must be done, ought to be done, should be done. Can we see your Lordship in chambers for a while? Just for 5 minutes.

YA: I can’t see you alone.

KS: Of course, with my learned friend.

MY: YA, I’m puzzled. Because with regard to the document become public, evidence has been adduced to that effect and reported in papers. What is not before the court is only the marking “P”. That’s all. With regard to the evidence, they are already in public domain.

KS: No. [].

MY: Public domain, yes. Aidora has given evidence that she compared the…I mean, it was already there. Otherwise…

KS: Could we see your Lordship in chambers? I think it requires more []. My learned friend should be fair.

MY: I have been very fair.

KS: Can we see your Lordship in chambers, my Lord? Just for a while. It is very important. Must be done.

YA: May I see both parties in chambers now?

[9.51 a.m.] Stand down.

[9.52 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[10.03 a.m.] Pihak-pihak keluar dari Kamar Hakim.

[10.08 a.m.]

Permohonan 44-65-2011: Application to review the ruling made on 23rd March 2011.

KS: This is an application for your Lordship to review the ruling made yesterday with regard to the review made on the ruling on 8th March 2011.

I come first to the ruling made on 8th March 2011. I appreciate what the ruling was where the evidence relating to the toothbrush, “Good Morning” towel and the mineral bottle and all the evidence relating to it to be excluded from the trial on the ground that the evidence were obtained by unfair methods and unfair means.

YA has reviewed the ruling yesterday in the light of the evidence given by Supt. Jude which is in the general trial where Lordship is of the view that the ruling made on 8th March 2011 has to be reviewed and that this evidence can be admitted as evidence. I don’t know whether your Lordship did not appreciate the two areas in our submission that we have made. All you Lordship say was the arrest which your Lordship found unlawful to be lawful in the light of the evidence by Supt. Jude that there was a valid warrant of arrest.

We submitted on the lock up rules. Was the lock-up rules, specifically on rule 20, complied with? What does rule 20 says? It states this – Masa rehat. A suspect must be kept in the lockup from 6.00 p.m to 6.00 a.m. the next morning and cannot be taken out and so forth. No interrogation can be made. We have the authority to this effect which renders the detention unlawful and horrendous. We cited the case of Dato’ Mokhtar Hashim and Lee Chee Meng.

Fair enough if you found that the arrest was lawful. But the detention which is more important, not the arrest. The detention of Dato’ Seri Anwar Ibrahim remains unlawful the moment he is not put in the lockup after 6.00 p.m. []. Not put in the lock up at all at 6 o’clock. The requirement is after 6.00 p.m. to be in the lock up.

What happened then? He was brought to HKL at 8.30 p.m. but this was between 6.00 p.m and 6.00 a.m. the next morning. And therefore this is a clear case of contravention of rule 20.. [] subject to rule 20 and [] unfair methods and unfair means. Therefore your Lordship with respect disregarded. The ruling by your Lordship is completely does not touch at all upon the lock up rules, rule 20, the detention on 17.07.2008.

We have the authority. The Federal Court decision, Dato’ Mokhtar Hashim. Your Lordship may not be bound by J James Foong in Lee Chee Meng. If you contravene rule 20, it will make the caution statement recorded at that time inadmissible. In fact on that ground alone your Lordship has to be [] but your Lordship did not do so. []

The 2nd area which is as important as the one which we have submitted before. The police personnel in charge of the lock up after DSP Yahya has supplied the toothbrush, the “Good Morning” towel and mineral bottle, [] but they were directed specifically not to touch the item. Why are they directed not to touch the item? It is obvious that the detention of Dato’ Seri Anwar Ibrahim was for query samples for DNA profiling on the toothbrush, “Good Morning” towel and mineral bottle.

We say your Lordship has completely disregarded what is in Goi Ching Ang. What did the highest court in land says? []

“Evidence obtained in an oppressive manner by force or against the wishes of an accused person or by trick or by conduct of which the policy ought to take advantage, would operate unfairly against the accused and should in the discretion of the court be rejected for admission.’

And from the two areas I have submitted earlier, it falls in the [] trick. That is what Federal Court says. Trick or by conduct of which the policy ought to take advantage. We have no benefit from hearing []. Your Lordship should review the ruling that your Lordship has made in the light of the ruling your Lordship have made on 8th March 2011.

It does not matter what’s going on by now. A judge []. your Lordship ought to completely disregarded. [] the oath your Lordship took when appointed as a judge. I urge your Lordship to take time to resign, not to retire from office, but for a while.[].

Under those circumstances, we would submit that your Lordship should once again be cautious in mind that you should review what your Lordship has done yesterday. Your Lordship is not functius officio. []

MY: I agree that until judgment is given your Lordship is not functious officio. But the question is is there any basis of having the benefit now to review the basis claimed by the defence that you have not considered?

Rule 20 is something that all defence counsel will refer to as far as admissibility of caution statement is involved. In Dato’ Mokhtar Hashim, yes. The caution statement is [] because the issue is not whether you have breach the rule or not.. [] and applying this law, rule 20 in our case, it says you must be detained. Just because the law says you must be detained, does not mean you must be put in the lock up.

Yes, they went to the hospital at 8.30 p.m. but nothing was taken from Dato’ Seri Anwar Ibrahim and the lock up between 6.00 p.m. to 6.00 a.m. DSP Jude was in fact cross-examined by En. Karpal whether he knows what happened between that time and he answered Dato’ Seri Anwar Ibrahim was his family member and his counsel after he came back from the hospital. None of the counsel suggested that they have breached the rule at that time because when it is convenient to them it is okay. But now, when it is not okay, they contended that the police breached rule 20. So rule 20 has no obligation.

If YA remember, these items were collected at 11.00 something in the morning on the next day. The instruction not to touch the items was not given before that, but after Dato’ Seri Anwar Ibrahim was released. The instruction was made by DSP Yahya.

In the Notis Usul and the affidavit, it was stated that DSP Jude instructed the police not to touch anything. But actually it was DSP Yahya and I have pointed it out to my learned friend. And the person who instructed Amidon to collect the items from the lock up was Dato’ Koh Chin Wah, OCCI of KL. The instruction came from higher rank. That’s why DSP Jude himself did not give instruction. Dato’ Seri Anwar Ibrahim was placed in the lock up later than 6.00 p.m. Just because he is placed in the lock up after 6.00 p.m. does not make it unlawful. [].

I really see nothing there for your Lordship to review. Rule 20 does not apply because nothing was taken from Dato’ Seri Anwar Ibrahim and the lock up between that time. With regard to collecting the exhibit in the lock up after Dato’ Seri Anwar Ibrahim was released, that is normal. But what important is what transpires in Jude’s mind.

I humbly pray for this application to be dismissed.

KS: The application we made is not with regard to []. What is important is your Lordship consider the two areas. My learned friend accept that rule 20 is mandatory. [] he said it is on the caution statement. The principle is important. That is something done against the law and your Lordship has a discretion to exclude it. It is as simple as that. My lf does not dispute that direction was given to police personnel at the lockup not to touch the items. []. These are the areas that your Lordship does not consider. I don’t think I can go any further than that. That’s all.

YA: Give me 10 minutes. Start at 10.40 a.m.

[10.31 a.m.] Stand down.

[10.40 a.m.]

YA: This is my ruling. After going through the defence’s Notis Usul and affidavit, I see no reason to review the ruling I made yesterday. Application dismissed.

MY: Much obliged. Izinkan kami memanggil saksi kami iaitu SP15, Supt Amidon.

SP15 : Bekas Supt. Amidon b. Anan.
SP15 mengangkat sumpah di dalam Bahasa Melayu.

Q: Supt. Amidon, sebelum ini kamu telah beri keterangan di mahkamah pada 17.07.2008 di lokap D9, IPK KL kamu telah mengambil 4 barang kes, iaitu satu helai bulu, satu berus gigi, satu tuala “Good Morning” dan satu botol air mineral.
A: Ya.

Q: Dan kemudian kamu telah memberi keterangan bahawa kamu telah masukkan keempat-empat barang tersebut dalam sampul surat yang berasingan dan kemudian kamu seal sampul surat tersebut dan kamu turunkan tandatangan. Benar?
A: Ya.

NH: Mohon saksi dirujuk ID57.

Q: Cuba lihat ID57. Ada atau tidak tandatangan yang kamu buat di belakang ID57 tersebut?
A: Ada.

NH: Pohon ID57 ditandakan sebagai P57.

ID57 ditandakan sebagai P57.

Q: Cuba lihat kandungan P57. Ada sampul itu ada atau tidak sehelai bulu yang dikepilkan pada sehelai kertas yang kamu tandatangan?
A: Ada.

Q: Kamu camkan?
A: Ya.

NH: Pohon ID57 ditanda P57A.

ID57A ditanda sebagai P57A.

NH: Seterusnya pohon saksi dirujuk ID58.

Q: Ada atau tidak tandatangan kamu di belakang sampul ini?
A: Ada.

Q: Kamu camkan?
A: Ya.

NH: Pohon ID58 ditanda sebagai P58.

ID58 ditanda sebagai P58.

Q: Lihat kandungan. Ada atau tidak sebatang berus gigi berwarna putih?
A: Ada

NH: Pohon ID58A ditanda sebagai P58A.

ID58A ditanda sebagai P58A.

NH: Seterusnya mohon saksi dirujuk ID59.

Q: Cuba lihat ada tandatangan kamu di belakang sampul ini?
A: Ada.

NH: Pohon ID59 ditanda sebagai P59.

ID59 ditanda sebagai P59.

Q: Lihat kandungannya. Ada atau tidak sehelai tuala “Good Morning” yang kamu tandatangan pada tuala tersebut?
A: Ada.

NH: Pohon ID59A sebagai P59A.

ID59A ditanda P59A.

NH: Mohon saksi dirujuk ID61.

Q: Ada atau tidak tandatangan kamu di situ?
A: Ada, di bahagian belakang.

Q: Kamu camkan?
A: YA.

NH: Pohon ID61 ditanda sebagai P61.

ID61 ditanda sebagai P61.

Q: Lihat kandungannya. Ada atau tidak satu botol air mineral yang ada tandatangan kamu di bontot atau di belakangnya?
A: Ada.

NH: Pohon ID61A ditanda sebagai P61A.

ID61A ditanda sebagai P61A.

NH: Itu sahaja soalan saya.

KS: We have no question, YA.

NH: Mohon saksi dilepaskan. Saksi seterusnya, SP6 ialah Aidora. Pn. Noorin akan ambil alih.

SP6 : Pn. Nor Aidora Binti Saedon
SP6 mengangkat sumpah di dalam Bahasa Inggeris.

Q: On 23rd February 2011, you have testified in court that on 17.07.2008 you received a request from DSP Jude as well as some items in 4 envelopes to be examined and analysed by you.

NB: YA, izinkan saya merujuk saksi pertamanya kepada sampul surat marked as P57.

YA: Dulu tak identify lagi ke?

NB: Dah. Saja nak minta dia confirmkan kerana semasa dahulu ia ditanya melalui saksi ini, YA.

YA: Ye la, ID. Sekarang P. Benda tu kan sama.

NB: Yes, I just want her to identify again.

Q: So, Puan Aidora, can you just confirm whether this is the enveloped that you received on 17.07.2008 from DSP jude as well as the content in it which has now marked as P57A.
A: Yes, I identify it.

NB: P57 and P57A identified, YA.

P57 and P57A identified.

Q: Seterusnya Aidora, you also received enveloped marked “D1” now marked as P58. Can you please confirm that this envelope as well as the content of it that you also received on 17.07.2008 from DSP Jude to be examined and analysed?
A: Yes, I confirm.

P58 and P58A identified.

Q: Seterusnya, refer to P59 and P59A. Can you please confirm that this envelope as well as the content of it that you also received on 17.07.2008 from DSP Jude to be examined and analysed?
A: YA, I confirm.

NB: P59 and P59A identified, YA.

P59 and P59A identified.

Q: You did something on this towel, I believe. You found a strand of hair and you have isolate that all and put in an envelope ID60 and the content ID60A. Can you confirm this is the exhibit, Pn. Aidora?
A: YA, I confirm.

NB: May this ID60 and ID60A marked as P60 and P60A?

ID60 marked as P60.
ID60A marked as P60A.

Q: Seterusnya Pn. Aidora, you also received another envelope marked as “D3” now marked as P61 and the content as P61A. Can you confirm this is the exhibit?
A: YA, I confirm.

NB: P61 and P61A identified, YA.

P61 and P61A identified.

Q: You also prepared a chemist report dated 22.07.2008. Can we have ID61 to be shown to the witness? Can you please confirm that this is the report that you have prepared with regard to the examination and analysis that you have conducted on these items?
A: YA, this is the report prepared by me.

NB: YA, can we have this ID62 be marked as P62?

ID62 marked as P62.

Q: And you have also printed out the EPG, electro-pherogram of your analysis which was marked before as ID 63. Is this the EPG of your analysis, Pn. Aidora?
A: YA, I confirm this is the EPG printed pertaining to this case.

NB: May we have ID63 be marked as P63, YA?

ID63 marked as P63.

NB: That would be all, YA.

KS: We have no question.

NB: May we have this witness to be released, YA?

MY: YA, pendakwaan menutup kes kami dan kami menawarkan 73 witnesses to the defence. Untuk kemudahan, telah dinyatakan di sebelah nama mereka siapa mereka itu.

YA: (to defence) I’m sure this is not fair to ask you to decide now who you want to call in the event the defence is called. Can we leave it as it is or you want to decide now who you want to call?

KS: We need a short break, YA so that we can decide it straight away.

YA: I will give you some time before I can hear the submission. In the mean time you can go through so masa submission you can let me know siapa nak panggil.

KS: Very well.

YA: So when can I hear the submission?

MY: Saya mencadangkan 2 minggu diberikan kepaada kedua-dua pihak untuk menyediakan hujahan. Jika di akhir 2 minggu itu pihak-pihak ada bundle or written submission to exchange and to be filed in court, then whatever reply to that written submission can be taken during the submission proper on the third week.

YA: (to defence) Is it okay?

KS: I hope we are given 3 weeks instead of 2 weeks, YA. I think we may take some time.

MY: Sama juga, YA. Saya pun minta macam tu tadi.

YA: But I hope the parties can exchange within 2 weeks. How about 18.04.2011? It will be on Monday. But how long would it take to hear the submission?

Satu hari boleh siap ke? Ataupun two days? Kalau tak siap one day we’ll just continue. So that would be 18.04.2011.

[10.55 a.m.] Adjourned.

Anwar Ibrahim Sodomy II – The Recorded Truth – 15 Mac 2011 March 18, 2011

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Malaysian Story, Sodomy II.
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Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

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

[9.04 a.m.]

MY:    YA, hari ini telah ditetapkan untuk hujahan balas oleh pihak pembelaan.

SN:    My Lord, I’ve been informed by Mr. Karpal Singh at about 11 p.m. yesterday, that his youngest brother who was in Penang High Court passed away, and he went there yesterday itself. I was also informed by Mr. Karpal that there is ceremony in the community. And being the eldest brother, he has to conduct personally and he won’t be able to make it to court at least on Monday.

YA:    Why can’t be tomorrow?

SN:    There will be a lot of certain things that he must conduct as the eldest brother, and it is very religious and customary. It is his responsibility

YA. So as a result of which, I wish that this matter will be postpone to at least Monday.

YA:    Datuk Yusof?

MY:    YA, it is very difficult for me to object, and that considering that Encik Karpal is not that mobile, I believe that I have no objection to this application because considering the religious and ritual that they have to go through.

SN:    There will be put the ashes in the sea and I believe, there are full of ceremony event take place in this 4, 5 days, YA, because of the ritual. As a result of this, I think it is unfortunate that the timing is caught with the court case and all. We hope Your Lordship will consider Mr. Karpal’s situation.

YA:    So then we continue on Monday lah, at 9 a.m.

[9.06 a.m.]

Anwar Ibrahim Sodomy II – The Recorded Truth – 14 Mac 2011 March 17, 2011

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Sodomy II.
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Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Pihak-pihak:
PP:    Semua hadir
PB:    KS, SN, Ram Karpal, Datuk Param Cumaraswamy, Marissa, (Dato’ CV Prabhakaran, Radzlan tidak hadir)
WB:    Zambri Idrus (for complainant)

[9.19 a.m.]
MY:    Hujahan bagi 2 permohonan pendakwaan untuk mahkamah yang mulia ini menyemak semula ruling yang dibuat di akhir perbicaraan dalam perbicaraan berkaitan dengan admissibility keterangan berkaitan eksibit yang diambil di sel lokap IPK KL dan juga permohonan di bawah Seksyen 73 dan 165 Akta Keterangan untuk Mahkamah ini memerintahkan DSAI memberikan sampel untuk DNA analisis.

KS:    YA, before my learned friend proceeds, there are certain matters of more than [] consent must also involved this court. This is with regard of the mischievous report, scandalous report, contentious report, of NST of

Saturday and this morning, and also in Utusan Malaysia which we have copies for it, before we proceed, may be your Lordship wants to look at it. On Saturday, the report was “Anwar [] to give DNA sample to the court.

“Demonstration”, as reported in today’s newspaper. “Prosecution files application citing from Evidence Act from judges power”.

The first time in legal history of this country this is happening. The submission of the AG in fact on the internet even before my learned friend started up just now. The entire set of the submission, [] it happened all the time, but for my learned friend to leak out his submission to the internet, for i.e in Malaysia Today, in entirety.

First, this court must of itself, there is no point we filing an application, but it must be the consent from the court in which the court must call upon those who have leak this report, those who reported it, and those who taking part in the demonstration, we want you them to be decided as contempt of court. We want that to be decided first, before my learned friend gets on to the submission which already in the public knowledge. I’m shocked that my learned friend took that role. My learned friend is in the hand of politicians now. It is normal to think YA, here, as representing the Public Prosecutor, he is being manipulated. He is allowing himself to be manipulated.

We want a ruling on that, YA. One, on how that report got leak, YA, or rather the submission and the demonstrators, YA, the manner in which the entire issue had been politically exploited. What is with the press, and what the demonstrators in demanding is in fact intermediating this court, intermediating your Lordship to make an order for DSAI to supply his DNA profile. That is contemptuous. We would wish you to make a ruling on that.

We want to see your Lordship in chambers now, before my learned friend proceeds, unless of course if my learned friend wants to show it here, now, himself which we had prepared for. Let me make it very clear to him. But we rather see you in chambers now. At the moment, that would be all.

MY:    I will reply to that, My Lord. I would like to think that professionally, throughout this trial, I do my battle in court, not outside. Now, whether or not the public knows that I am making this application, I have stated this in open court last Friday, that we are going to make an application that we have take out the extraction, which upon based on the premise. Now, the causes had been distress as much as the causes [], that when the submission we prepared was published. As lead counsel, I take responsibility on that. But the issue is this, whether or not it is contemptuous.

My Lord, not long ago, in the open court before Komathy J, I complaint about an affidavit filed not referred to in court being published in the newspaper. Of course, if we were to read the Etiquette Rules, under Section 50A that you cannot have it published until that particular paragraph had been referred to in the open court.
But we have a decision by Abdul Wahab J, who said that it’s all right because the public has the right to inform. But now, what about this, it is a submission, only a submission. We are not making an allegation, it is only excerpt on Sarkar on Evidence, which anybody can have access to, and can read. It is nothing will have the effect prejudicing the trial. If the members of the public, one of the parties want to demonstrate, not because of the submission but because of the application and that has nothing to do with the prosecution.

I am a bit sad that my learned friend made accusation that I allow myself to be manipulated by the politician. I will not let myself to be used by anybody. I think as long as this concern, I answered to no one, except to this Honorable

Court. To what extent that this will prejudicing your mind, bearing in mind that this is not a jury trial. I don’t see why en. Karpal can be so emotional about it. I don’t think that it is really anything. It just that the submission go out earlier than it should be. And I pray to your Lordship not to entertain the application by my learned friend to call anybody and cite them to contempt. Thanks.

KS:    We reply, Publication of an affidavit, there’s nothing wrong with that. It is a public document. But a publication of a submission, my learned friend just now not denied that it was leak out and must be leak out from him.

Let’s have…

YA:    Since just now you indicate that you want to see me in chamber, so can I see both parties in chamber?

KS:    Yes.
[9.29 a.m.] Stand down.

[9.32 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.42 a.m.] Pihak-pihak keluar dari Kamar Hakim.

[9.47 a.m.]
YA:     With regard to the issue brought by the defence team just now, I only have this to say: the trial is ongoing therefore I remind parties not to do anything that could hinder the smooth running of this trial. Anything done is amount to contempt, those responsible will face it. That’s all.

KS:    Much obliged.

MY:    Much obliged.

MY:    Dengan izin, YA. My Lord, the first application by the prosecution is to urge your Lordship to review your ruling at the end of the trial within a trial with regard to the admissibility of the evidence pertaining to exhibits collected in the cell and evidence of Puan Aidora, the chemist.

My Lord, authorities has held that in order to decide whether there is basis to exclude any evidence the court can look at the evidence both in the trial within a trial and later the evidence adduced during the substantive trial. And the onus is on the party seeking exclusion to prove on the balance of probabilities.

The existence of a basis, for that may I just read some passage from Hanafi b. Mat Hassan v PP [2006] 4 MLJ 134, paragraph 74 at page 170. If I may read my Lord,

“Be that as it may, the party that is seeking to have evidence excluded in the exercise of the discretion of the court has the onus of showing, on the balance of probabilities, that the discretion should be exercised in its favor.”

Two cases were cited, PP v Mohd Farid b. Mohd Sukis and [] v PP. So, if your Lordship remembers the particular page in PP v Mohd Farid b. Mohd Sukis is page 412. What they are saying is that the defence has the onus on the standard of civil case, i.e. balance of probabilities and they have to show more than likely that the basis exist. It is like 51% over 49%. [].

My Lord, as far as the cases goes whether or not the court has the power to review, we have in our bundle 6 cases.

The first case is R v Watson [1980] 2 All ER 293. The question post to the court can be found at page 294, paragraph F. It says,

“The first ground of appeal [] the judge was wrong in law in holding that he had no power to rule on the admissibility of evidence at the end of the prosecution case because he had rule on it in trial within a trial even though there were relevant matters that case in light in the trial that had not done so in the trial within a trial.”

This case concerned caution statement. If I can invite your Lordship to page 293, the headnotes where the Court of Appeal had to say,

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

So it says here if it can show that there are now fresh evidence which may help to show to the court that whether or not there could or could not be a basis then the court can always reconsider and then make an appropriate ruling.

The second case is Dato’ Mokhtar Bin Hashim v PP [1983] 2 MLJ 233 at page 236, paragraph D on the left, it would appear that the defence team had applied to the court for review of the question of voluntariness of his cautioned statement.

And from paragraph F downwards to the right hand column, the judge did in fact reviewed and still maintain its ruling.

And page 245 of the report again at paragraph D on the left, the court was invited to review by the defence team of Dato’ Mokhtar Hashim the evidence of Sudin and the the evidence of Datin Norsiah in the light of another new evidence in the form of testimony of Batumallai, ASP Ibrahim and the testimony of YB Mohd Salleh and the RTM film.

Of course on the right hand column the [] paragraph, it would seem that the court after having review the ruling says that,

“In my view the so call new evidence does not alter the situation.”

Meaning, basically it maintains the ruling.

No.3 in the list is PP v Ng Lai Huat & Ors [110] 2 MLJ 427. This is with regard to the admissibility of a certain conversations which my learned friend En. Karpal and En. Shafee Abdullah submitted to be hearsay and should not be admitted. It starts from page 428 paragraph G-I on the right hand column but I would just read page 429 left column the top paragraph. If I can read my Lord,

“I heard briefing submissions made by learned defence counsel Encik Karpal Singh, Encik Shafee Abdullah and the learned DPP Encik Jalaluddin Saleh, at the end of which, after due consideration of the brief submissions made, I

ruled that the utterances in respect of the demands made were admissible as I was of the opinion at that time, that the facts contained in the utterances in respect of demands made by Jimmy Chua to PW13 in the light of the evidence adduced by the prosecution had been shown to be logically relevant under s 10 of the Evidence Act 1950.”

But later the judge reconsidered his ruling at page 430, paragraph F left column,

“I have dealt here at length with the basic principle of hearsay evidence because I am of the view that the demands made by Jimmy Chua to PW13 formed the superstructure of the prosecution’s case. I was wrong to admit the evidence of PW13 in relation to Jimmy Chua’s purported demands in the early part of the prosecution stage. I therefore reverse my earlier ruling on this point and rule that those purported demands are inadmissible for being hearsay.”

This is one case where the ruling was reconsidered by the judge own his own motion, not because there is new evidence emerges. Because he thinks that he could have erred in relying the principle of law applicable to the factual

situation.

Then we have the case of R v Allen  [1992] Cri LR 297. We can see what was held there at page 298,

“Held, dismissing the appeal, the judge had a discretion whether to readmit the evidence and had exercised it correctly”

If I may invite your Lordship to the commentary there,
“Commentary: This is an unusual case. The judge took the view that the question put to the officer in cross-examination (which concerned an alleged conversation about the turning-out of the accused’s pockets) was unfair in that the officer was left in the position where he had to say “There was indeed a conversation but this was not it.” It would have left the jury with a misleading impression had the prosecution version of the conversation not been out, notwithstanding the judge’s earlier decision to exercise his discretion against admitting it because the safeguards against verballing in Code C has been broken (though this is often a relevant consideration) but the extent to which the admission of the evidence would adversely affect the fairness of the proceedings. In this case the balance of fairness shifted during the trial, and the judge was entitled to reconsider his ruling. [D.J.B.]”

And the last case is R v Hassan [1995] Crim LR 404. The same thing the judge reconsidered his ruling. The relevant page will be page 405. Whether or not the judge has a power to review his ruling is there, either because the judge thinks there are new evidence emerging which may change or alter the character of the evidence that it had before that or before the ruling was made or because the judge is of the view that he may have erred in the application of the

law.

YA, with regard to the first basis of the review, emergence of new evidence, we are saying we have now call in the substantive trial both the IO and the arresting officer. The IO’s and this officer’s evidence would conclusively prove that Dato’ Seri Anwar Ibrahim’s arrest was legal and lawful and that he was informed of the ground of his arrest.

It was the evidence of Supt. Taufik that warrant of arrest was served and acknowledged by Dato’ Seri Anwar Ibrahim and in fact he signed it at the back there. This document, the warrant of arrest now that we have the original which we don’t have for some reason during the trial within a trial, we have it then during the substantive trial and prove it. We produced the original, we showed to the court where Dato’ Seri Anwar Ibrahim signed. And Taufik said he read what was stated in the warrant of arrest. And what was stated in the warrant of arrest was substantially the charge.

This evidence apart from suggestion by my learned friend that did not inform the ground of arrest to Dato’ Seri Anwar Ibrahim was never disputed, not challenged. My Lord, it is trite law that if you don’t challenge, you don’t dispute, you accept. And you don’t challenge it simply means you cannot dispute and you accept. Now what is accepted is that he was read the warrant of arrest and he acknowledges it. Dato’ Seri Anwar Ibrahim through his counsel did not challenge that it was his signature there at the back of the warrant.

The case is not in my bundle my Lord which says if you don’t challenge you accept is the case of Chua Beow Huat v PP [1970] 2 MLJ 29 and Wong Swee Chin v PP [1981] 1 MLJ 212.

Then we have the oral testimony of the IO. First, he said “I faxed a letter asking Dato’ Seri Anwar Ibrahim to surrender himself on 16.07.2008 at 2.00 p.m.” And in that letter it was mentioned that he had applied for the warrant of arrest. This was never disputed, P86. Then he said he has the warrant given to Taufik to be executed. And before the recording of his statement was done, again he told Dato’ Seri Anwar Ibrahim in this term – that there was a report,

Travers Report by Saiful Bukhari who had alleged that he was sodomised by Dato’ Seri Anwar Ibrahim between 3.00-4.00 p.m.at 11-5-1 Kondominium Desa Damansara. This was never disputed.

YA, we made, I mean we try to tender the statement recorded pursuant to S.112, only the first 4 pages. I’m not sure whether YA would agree to have that part of the statement marked as exhibit. I know the law says that 112 statements is no admissible except for the purpose of contradicting or impeaching but here what was being admitted is not the statement. It is just before the statement was recorded. Be that as it may, before we showed the IO the statement he had already testified with regard to what he told Dato’ Seri Anwar Ibrahim.

KS:    I wish to interrupt my learned friend. But it is marked as an ID. If it is an ID, it can’t be referred to in submission. It is trite law. It is not an exhibit. []

MY:    YA, I mean that is the purpose of my submission, to have it converted to exhibit because..but I’m aware of the law.

YA:    Proceed.

MY:     Now this positive assertion by this witnesses and if your Lordship want to compare what happened during the trial within a trial, Dato’ Seri Anwar Ibrahim did not denied. Here, he did not challenge it. During the cross-examination he did not denied that he was informed by the IO before the recording of the statement. Neither he denied he was served and signed the warrant of arrest.

Now, if we were to sit as a civil court having the defence to prove on the balance of probability that he was not informed of the ground of arrest obviously they have failed.  In fact this is one instance where in the civil case the defence can submit there is no case to answer, they don’t have to adduce evidence. Whether you called the evidence rebuttal or defence, they don’t have to. Because even by their own evidence they have not been able to show to the court that they have material which the court can comfortably act upon in order for the court to “Yes, you were not informed” by their own concession during trial within a trial.  Now the positive evidence unchallenged would put all doubt to rest that he was in fact informed of the warrant of arrest.

How much he was informed, may I refer again to the case of Chong Kim Loy v Timbalan Menteri Dalam Negeri, Malaysia & Anor [1989] 3 MLJ 121. I may invite your Lordship to page 122, holding no.6,

“For the purposes of the first limb of art 5(1) of the Constitution, all that an arrested person is entitled to demand for is to be informed, at the earliest possible moment, not in detail and not necessarily in strict legal terminology, but only in general terms, by virtue of what power he is being arrested and of the grounds of his arrest. But enough must be made known to him to afford him the opportunity of giving an explanation of any misunderstanding or of calling attention to other persons for whom he may have been mistaken with the result that further inquiries may save him from the consequences of a false accusation.”

In fact this is what Cristie v Leachinsky [1947] AC 573 [] is all about. It says when you arrest a person you must tell him why so that he can say, for example if you say he is involed in a murder of Ahmad on a certain date and time, he can say “Look, you are mistaken. I was somewhere else at that time.” So the whole idea telling him in general term what offence he has committed, and when and where is to enable him to explain himself, if he is accused of murder he can say “Look, I was acting in defence.” In fact, at the time of arrest it was the first time an accused is afforded with the opportunity to put up his defence, alibi, explanation and If he could not deny the fact that he did stab somebody but he did it in self-defense.

So that is as far as Chong Kim Loy is concerned, we have satisfied. The prosecution has satisfied that. So if the court is with me that the arrest is lawful then it is only right for your Lordship to reconsider your ruling and say because the arrest is lawful, the subsequent detention is lawful and whatever obtained pursuant to that has not been obtained by unfair or illegal means.

Now, the question may be post is there one or two arrest? If both lawful or one of them is lawful and if one of them is lawful which one of them?

If your Lordship remember, Supt Taufik arrested this accused, Dato’ Seri Anwar Ibrahim 200 meters from his house and he was not acting under the instruction of the IO, he was acting under the instruction of Dato’ Bakri. The instruction is, if Dato’ Seri Anwar Ibrahim did not go direct to IPK he must be arrested. It would appear from that statement that Bakri must have known about the existence of the letter faxed by Jude to En. Nair that he is required to be there by 2.00 p.m. It is the basis there. And he was arrested by virtue of S.377B of the Penal Code, a sizable offence.

He said subsequently he was given the warrant and he served it which we think is a mere formality. But supposing that it is not so, there is a second arrest at the instance of the IO and this is what we have to say, Jude testified that on 15.07.2008 not only he applied for warrant of arrest, he also faxed the letter asking Dato’ Seri Anwar Ibrahim to surrender himself by 2.00 p.m. the next day and that he had applied for a warrant of arrest. And it is in his testimony he said at the time when he applied for the warrant of arrest he has reasonable suspicion under S.23 of Criminal Procedure Code in that he had the report, he had the statement of the complainant, he had viewed the CCTV, he had the medical report, and he had the chemist report by Dr. Seah that those materials are more sufficient for him to form an opinion that he has more than reasonable suspicion to effect an arrest under S.377B against Dato’ Seri Anwar Ibrahim, in which he did.

When Dato’ Seri Anwar Ibrahim was brought to IPK whether legally or illegally he had the warrant of arrest executed. He had the warrant executed and the warrant was explained and then before the recording of the statement he was again informed Dato’ Seri Anwar Ibrahim. If this constitute the second arrest, then this second arrest is lawful and the detention of Dato’ Seri Anwar Ibrahim was made pursuant to this arrest. It is our contention both are lawful.

But in the event there was two arrests and the first one is unlawful, the second is lawful.

In the case of Ooi Ah Pua v OC Criminal Investigation, Kedah Perlis [1975] 2 MLJ 198 where the complaint there to the court is whether or not when the person is denied his right to counsel, he can have his detention to be declared null and void. Before the Federal Court, the Federal Court says there is no issue before the court. The issue is whether or not he was informed of the ground of arrest. If I may read the particular paragraph at page 201 starting from para H on the left, this is what the Federal Court has to say,

“So much therefore regarding the issue as framed by Mr. Karpal Singh. But with all due respect, I do not think that that is the real issue before the learned judge and before us. This being an application under section 365 of the

Criminal Procedure Code and under article 5(2) of the Constitution, with respect I agree with Encik Lamin for the respondent that the real issue is a simple one, namely this, whether or not Ooi was lawfully detained. If so, the court should not release him; if not, the court should release him. As to this the affidavit evidence is very clear. There was an armed robbery, a seizable offence, and there was a reasonable suspicion that Ooi was concerned in that offence, and Inspector Amiruddin not only had power to arrest him without a warrant (section 23(i)(a) of the Criminal Procedure Code), he was also under a duty to do so. By the time this application was filed on January 5, 1975, Ooi had been detained by order of a magistrate, and so there was no question of his detention being unlawful.”

So we are saying if the court says the first arrest was unlawful, by the time the ruling is obtained he was already arrested pursuant to a valid legal powers for a sizable offence for which the IO had reasonable suspicion. It is true my

Lord it was not denied by En. Judy that there was communication between him and En. Nair but that was before he decided that Dato’ Seri Anwar Ibrahim was a suspect. By 15.07.2008, he said that “Dato’ Seri Anwar Ibrahim was a suspect, I had all the materials and I applied for the warrant of arrest”.

So whatever communication or understanding between the parties has superseded by this event, hence the faxed letter, the letter faxed to En Nair. As far as s 15 is concern, it doesn’t matter how the arrest is effected, one of it when the suspect submitted himself. If Dato’ Seri Anwar Ibrahim had any intention to go to IPK that day obviously then he was submitting himself to a notification by the IO that he was going to arrest him. So it doesn’t make the communication between the IO and En. Nair did not make the arrest less than lawful.

That is the first part of the submission, emergence of new evidence.

Now I go to the second basis, the Ng Lai Huat basis. While in Ng Lai Huat the judge on his own motion reconsiders it because he thought he was wrong, here the prosecution is urging your Lordship to review because we perceived that there is a misapplication of the principle of the law when your Lordship make the ruling.

YA, it all started with Kuruma where the Privy Council held that the test of admissibility is relevancy. If evidence is relevant then it must be admissible no matter how it was obtained. Subsequently in 1980 the House of Lords in R v

Sang modified it a little bit.

If I may refer your Lordship to R v Sang [1980] AC 402 to what the House of Lords held is this at page 431 paragraph A,

““Does a trial judge have a discretion to refuse to allow evidence-being evidence other than evidence of admission-to be given in any circumstances in which such evidence is relevant and of more than minimal probative value”.

The House of Lords says there are 2 situations when the court can exercise discretion to exclude admissible evidence. No.1, where its prejudicial effect outweighs its probative value. No.2, a judge has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. Your Lordship has no choice, you cannot exclude it just because it was obtained by improper or unfair means except save with regard to admission, confession, and evidence obtained from the accused after commission of offence. This is something like R v Payne. The court is not concerned with how the evidence is obtained, meaning other than these three categories of evidence the court shouldn’t be concerned how it was obtained. So long as it its relevant, it is admissible.

Now, no.1 is the facts of our case shows that there was an admission? This is not an admission. Is it a confession? No, it’s not a confession. Is it obtained from the accused himself? No. In another part of the judgment it says if of the search from his premises but if it was obtained from the accused himself or his premises then it must be confessionary in nature. Confession is something that by itself would show the guilt of the accused without more.

What is the evidence that we collected among other thing which is relevant was toothbrush, Good Morning towel and the bottle. Was it collected from the accused? It wasn’t. Was it collected from his premises? They were not. The evidence itself would show that this is not the time where the court has a discretion to exclude.  The nature of the evidence itself doesn’t fall within the category of evidence that this Honorable court has a discretion to exclude.

If I may read page 435 of the judgment, paragraph B-H. Actually it starts from the previous page but if I can just read the second paragraph of page 435,

“It is interesting in this connection to observe that the only case that has been brought to your Lordship’s attention in which an appellate court has actually excluded evidence on the ground that it had been unfairly obtained (Reg. v .

Payne [1963] 1 W.L.R. 637) would appear to fall into this category the defendant, charged with drunken driving, had been induced to submit himself to examination by a doctor to see if he was suffering from any illness or disability, upon the understanding that the doctor would not examine him for the purpose of seeing whether he were fit to drive.  The doctor in fact gave evidence of the defendant’s unfitness to drive based upon the symptoms and behavior in the course of that examination. The Court of Criminal Appeal quashed the conviction on the ground that the trial judge ought to have exercised his discretion to exclude the doctor’s evidence. This again, as it seems to me, is analogous to unfairly inducing a defendant to confess to an offence, and the short judgment of the Court of Criminal Appeal is clearly based upon the maxim nemo debet prodere se ipsum.”

“In no other case to which your Lordships’ attention has been drawn has either the Court of Criminal Appeal or the Court of Appeal allowed an appeal upon the ground that either magistrates in summary proceedings or the judge in a trial upon indictment ought to have exercised a discretion to exclude admissible evidence upon the ground that it had been obtained unfairly or by trickery or in some other way that is morally reprehensible; though they cover a wide gamut of apparent improprieties from illegal searches.”

The court has never interfered when the Magistrate or the High Court admitted the evidence on the ground that it was obtained unfairly and by unlawful means. This ground is not sufficient to have the evidence excluded.

“Nevertheless it has to be recognized that there is an unbroken series of dicta in judgments of appellate courts to the effect that thre is a judicial discretion to exclude admissible evidence which has been “obtained” unfairly or trickery or oppressively, although except in R  v Payne [1963] 1 W.L.R. 637, here never has been a case in which those courts have come across conduct so unfair, so tricky or so oppressive as to justify them in holding that the

discretion ought to have been exercised in favour of exclusion.”

The next following sentence is important, YA.

“In every one of the cases to which your Lordships have been referred where such dicta appear, the source from which the evidence sought to be excluded had been obtained has been the defendant himself or (in some of the search cases) premises occupied by him;…”

Either than admission and confession, the evidence must be obtained from the accused or his premises.

“…and the dicta can be traced to a common ancestor in Lord Goddard’s statement in Kuruma v The Queen [1955] A.C. 197 which I have already cited. That statement was not, in my view, ever intended to acknowledge the existence of any wider discretion than to exclude (1) admissible evidence which would probably have a prejudicial influence upon the minds of the jury that would be out of proportion to its true evidential value; and (2) evidence tantamount to a self-incriminatory admission which was obtained from the defendant, after the offence had been committed, by means which would justify a judge in excluding an actual confession which had the like self-incriminating effect.”

My lord, before I read the other part of R v Sang, may I now take your Lordship to the case Ajmer Singh v PP [1987] 2 MLJ 141, a Singapore case where R v Payne was considered. The factual of the case are the same in Ajmeer and R v Payne. Starting from 2nd paragraph of page 6 where R v Payne was reffered to and the short facts were reproduced. Then I go to the fourth paragraph,

“I come now to the submission on lack of consent on the part of the appellant in giving a specimen of his blood to PW1. In R. v. Trump, the Court of Appeal held that the appellant had not given his consent because he gave it in response to a warning to him. But the Court of Appeal also held that “Giving the blood was very close to making an admission…”

I skip that my Lord. Then in the six lines from below, this is what the Singapore court has to say

“But, even assuming that no consent had been given, the appellant would  still have to overcome the hurdle as to whether the evidence amounted to an involuntary confession or admission of a nature that renders the evidence inadmissible. In Pakala Narayana Swami v Emperor (1939) 66 IA 66; AIR 1939 PC 47 Lord Atkin said that “A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence.”

Here, if there had been any confession or admission, it was merely to the fact that the appellant had an excessive amount of alcohol in his blood and not to the fact that he was unable to control his scooter whilst under the influence of drink.

So in Ajmer he was charged for driving while under the influence. Blood was taken from him without his consent and whether or not that amounted to confession the court had to say nothing, it only shows there is alcohol in his blood. That’s all, his blood.

With regard to the 3 exhibits, zero. it doesn’t come within what Lord Atkin term it to be confession or S.17 term it to be confession. It doesn’t say anything. It merely say that Dato’ Seri Anwar Ibrahim must have drink from this bottle, that Dato’ Seri Anwar Ibrahim had used this towel, that Dato’ Seri Anwar Ibrahim must have used this toothbrush. It does not relate him to the offence. We still have to have to have this hurdle to say that “Look, the DNA here matches the DNA sample found in the sperm cells in the anus.” apart from showing by oral evidence through Saiful that this offence actually took place. So at any rate my Lord, what we are saying not only the evidence collected was not collected from the accused himself or his premises is not confessionary in nature. If it is not, the your Lordship has no discretion to exclude it. Your discretion is not triggered.

If I may now invite your Lordship to the judgment of R v Sang at page 433 with regard to the probative value and the prejudicial effect,

“Recognition that there may be circumstances in which in a jury trial the judge has a discretion to prevent particular kinds of evidence that is admissible from being adduced before the jury, has grown up piecemeal. It appears first in cases arising under proviso (f) of section 1 of the Criminal Evidence Act 1898, which sets out the circumstances in which an accused may be cross-examined as to his previous convictions or bad character. The relevant cases starting in 1913 with Rex v. Watson (1913) 109 L.T. 335 are conveniently cited in the speech of Lord Hodson in Reg. v. Selvey [1970] A.C. 304, a case in which this House accepted that in such cases the trial judge had a discretion to prevent such cross-examination, notwithstanding that it was strictly admissible under the statute, if he was of opinion that its prejudicial effect upon the jury was likely to outweigh its probative value.”

Then it refers to similar facts. If I may read 434,

“…but in Harris v. Director of Public Prosecutions [1952] a.c. 694, 707, Viscount Simon, with whose speech the other members of this House agreed, said that the discretion to exclude “similar facts” evidence should be exercised where the “probable effect” (sc. prejudicial to the accused) “would be out of proportion to its true evidential value.

That phrase was borrowed from the speech of Lord Moulton in R v Christie. That was neither a ‘previous conviction’ nor a ‘similar facts’ case, but was one involving evidence of an accusation made in the presence of the accused by the child victim of an alleged indecent assault and the accused’s failure to answer it, from which the prosecution sought to infer an admission by the accused that it was true. Lord Moulton’s statement was not confined to evidence of inferential confessions but was general in its scope and has frequently been cited as applicable in cases of cross-examination as to bad character or previous convictions under the Criminal Evidence Act 1898 and in ‘similar facts’ cases. So I would hold that there has now developed a general rule of practice whereby in a trial by jury the judge has a discretion to exclude evidence which, though technically admissible, would probably have a prejudicial influence on the minds of the jury, which would be out of proportion to its true evidential value.”

KS:    I wish to interrupt. My learned friend has gone through it earlier.

YA:    He has the right.

KS:    He has gone into it earlier.

YA:    Those are last time. This is now. Let him submit.

KS:    Waste of judicial time and taxpayers money.

MY:     “Up to the sentence that I have emphasised there is nothing in this passage to suggest that when Lord Goddard CJ spoke of admissible evidence operating ‘unfairly’ against the accused he intended to refer to any wider aspect of unfairness than the probable prejudicial effect of the evidence on the minds of the jury outweighing its true evidential value…”

With regard to that holding no. 1 what they are saying is this there may evidence which will not prove the charge, similar facts and all other evidence. While technically admissible, the court has to consider whether or not prejudicial effect outweighs the probative value.   But that kind of evidence is not the evidence we seek to admit. It doesn’t belong to the same class of bad character, previous convictions or similar facts. It is direct evidence, almost.

It is corroborative in the sense that it confirms. It helps to confirm identity of the perpetrator of the crime not by directly relevant.

So, if I may then just refer to two cases Hanafi b. Mat Hassan v PP [2006] 4 MLJ 134 and Wan Mohd Azman bin Hassan v PP [2010] 4 MLJ 141. But before that YA, in submission we refer to O’Brien [2005] 2 AC 534 at page 16 of that report where it says when you talk about the probative value that the probative value outweigh the prejudicial effect, the evidence we adduced must be so probative, it is so supportive of the fact that we are supposed to prove. In that sense then the discretion does not apply.

The case of Hanafi b. Mat Hassan v PP [2006] 4 MLJ 134, holding no 6. This is where blood specimen was taken from the accused while he was handcuffed. The Court of Appeal in that case at page 136 of the report, holding no. 6 says,

“(6)    The court has no discretion to refuse to admit evidence on the ground that it was illegally obtained if it is relevant. 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 (see para 68).”

The judgment proper is at page 168 paragraph 64.

“(e) The use of the blood sample taken from the accused
[64]    It was the stand of the defence that the blood samples taken from the accused for the purpose of conducting the DNA tests were not taken voluntarily. It was argued that even though no evidence was adduced by the accused on this issue the evidence relating to the blood sample must be excluded in the exercise of the discretion of the court as the available evidence shows that he was handcuffed at the time thereby rendering the taking of the blood sample involuntary.”

And it says on what case the objection was anchored. And at page 169, paragraph 68 the judge says,

“It is therefore clear that the court has no discretion to refuse to admit evidence on the ground that it was illegally obtained if it is relevant. This rule applies, inter alia, to cases involving illegal searches, evidence obtained by secret listening devices or by undercover police operations. It also applies to evidence obtained by unfair procedures. Thus in R v Apicella (1986) 82 Cr App R 295, the English Court of Appeal upheld a rape conviction based upon the results of tests carried out on a specimen of body fluid obtained from the accused for medical reasons whilst he was on remand. In AG for Quebec v Begin (1955) SCR 593, it was held that even if a blood sample was obtained from the accused without his consent it is admissible to prove intoxication. It follows that the evidence relating to the blood sample taken from the accused is admissible as it is relevant even if it was taken without his consent.”

The next paragraph where they refer to R v Sang still exclude that if it operates unfairly which phrase same from the judgment to make only this, when the prejudicial effect outweighs the probative value.

The case of Wan Mohd Azman bin Hassan v PP [2010] 4 MLJ 141is also in point, it is a Federal Court decision at page 150, paragraph 16,

“[16]    Also the propriety of obtaining the evidence with the use of an agent provocateur would not impair the fairness of the trial itself as this passage from Lord Diplock’s judgment in R v Sang [1980] AC 402 suggests. His

Lordship said:

For the fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused’s guilt it is no part of his judicial function to exclude it for the reasons.

[17]    And Lord Salmon, in the same case stated the same proposition in a more forceful manner when he said:

A man who intends to commit a crime and actually commits it is guilty of the offence whether or not he was persuaded or induced to commit it, no matter by whom. This being the law, it is inconceivable that, in such circumstances, the judge could have a discretion to prevent the Crown from adducing evidence of the accused’s guilt — for this would amount to giving the judge the power of changing or disregarding the law. It would moreover be seriously detrimental to public safety and to law and order, if in such circumstances, the law immunised an accused from conviction.”

And at page 153 under the heading of Similar Facts Evidence, Discovery And The Agent Provocateur’s Evidence, the court was urged to conduct a balancing exercise. So the court says it may apply to similar facts, it may apply to S.27 but it doesn’t apply to agent provocateur. So my submission is that it doesn’t apply to our case.

My learned friend had on occasion cited the case of Goi Ching Ang which is not the authority of our case. Goi Ching Ang is a case of S.27 at the most it may amount to a confession which even R v Sang agreed if that confession is obtained by inducement, threat or promise or by trick the court has the discretion, which is not the case here. []. Goi Ching Ang merely restates the law, nothing more.

Applying the law into the facts, we are saying the arrest was lawful and justified in law. Therefore all evidence was properly and lawfully obtained. In the event the arrest of the Respondent deemed to be illegal and evidence improperly obtained, it does not trigger the exercise of the court’s discretion for the following reasons:
(i)    The evidence is not in the categories envisaged by R v Sang. It is not admission, confession or obtained after commission offence, from the accused himself or his premises. The evidence is not confessionary in nature.
(ii)    Its prejudicial effect if any does not outweigh its probative value. It shows very strongly probative of the Respondent guilt.
(iii)    Its not even a sample taken from accused himself which under normal circumstances can be taken without his consent.

For this, we are referring to s.5 of the Criminal Procedure Code. There was in evidence that Dato’ Seri Anwar Ibrahim was taken to the hospital to have blood specimens taken. Under the law, we can take hair sample. S.5 of Criminal Procedure Code read together with S.63 of PACE because S.5 says if there is no procedure in Malaysia then we apply the law of England.

We then refer your Lordship to the case of PP v Sanassi [1970] 2 MLJ 198. In Sanassi, the three elections does not originates from here. The three elections was found in the laws of England. By virtue of S.5 of the then Ordinance the court said we applied that law here, the three alternatives so the same thing.

What s.63, we have it in our bundle when it comes to non-intimate samples we can take it without the consent provided that he is in the custody for a sizable offence. Here Dato’ Seri Anwar Ibrahim was in custody for that kind of offence.

If I may, tab 12 of my bundle page 1689, the bottom part of the page.

“Other samples
63.     (1) Except as provided by this section, a non-intimate sample may not be taken from a person without the appropriate consent.”
(2) consent to the taking of a non-intimate sample must be given in writing.
(2A) A non-intimate sample may be taken from a person without the appropriate consent if two conditions are satisfied.
(2B) The first is that the person is in police detention in consequence of his arrest for a recordable offence.
(2C) The second is that –
(a)    He has not had a non-intimate sample of the same type and from the same part of the body taken in the course of the investigation of the offence by the police, or
(b)    He has had such a sample taken but it provided insufficient.”

So as far as the prosecution is concerned when he was taken to the hospital that night both the conditions have been satisfied for only non-intimate sample. For intimate sample, that is a different matter. We will leave it for submission. But in this particular case we didn’t take anything from him. Zero. No sample was taken from this person. If the law can recognized that we can take it without his consent, what more this obtaining of contact DNA or traced DNA from the bottle, from the towel, and from the toothbrush.

It was our submission that the evidence pertaining to the collection of the exhibit in the lock-up cell and the result of the DNA test should be admitted. It is the right and lawful thing to do. I rest my submission.

YA:    The second application?

MY:     Can we stand down for 10-15 minutes before I start with my second application?

YA:    So we proceed sekali?

MY:    Yes, I’ll make application and my learned friend will respond to both applications.

YA:    Stand down for a while.

[10.52 a.m.] Stand down.

[11.28 a.m.]
SN:    YA, Mr. Karpal is now going to the other court, but we have no problem with the submission to proceed.

MY:    Dengan izin, YA. This is an application by the Public Prosecutor for an order that this Honorable Court direct the respondent, who is the accused in case to give a non-intimate or intimate sample of himself (the accused), as this Honorable Court deems fit, with a view for this court to compare the DNA of the accused with the DNA sourced from semen found in high rectal swab and low rectal swab obtained from the anus of SP1 and given the nomenclature ‘male Y’ by the chemist (SP5).

We make this application based on Section 73 and Section 165 either individually or read together.
Section 73, if I may read in our bundle, tab 2:
“(1)    In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction of the court to have been written or made by that person, may be compared by a witness or by the court with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any purpose.
(2)    The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by that

person.
(3)    This section applies also, with any necessary modifications, to finger impressions.”

Before we proceed on why Section 73 may be used for that purpose, YA, may I just say that Section 73 is a provision that enable the court to direct any person, and any person as we go to the authorities later, includes the accused present in the court to give specimens, handwriting or finger impression. Section 73 does not give the power to the court to compel the accused to give the specimen or the finger impression. The powers under Section 73 is invoked only when the court feels it is necessary in the interest of justice to make such comparison for the purpose of coming to a conclusion of fact along with other evidences.

In this case, we have the evidence of Saiful and few other evidences which may point to the accused but the presence of the semens of the anus if which compared may have the court for the purpose of coming to a conclusion of fact along with other evidence. Whenever the accused is directed to either give [], he may decline because of the principle that an accused cannot be a witness against himself but it can be taken or seized from him.

But for this purpose YA, may I invite you to tab 14 page 1316 onwards, Sarkar’s Commentaries on Evidence:
“In another group of cases it was held that the words “to be a witness against himself” should be given a liberal interpretation and that under a search warrant or any other kindred process of law, documents or articles or any other incriminating evidence can be seized from the custody of the person of the accused by force against his will, such as stolen articles, blood-stained clothes etc, but he cannot be compelled to produce them himself. For the same reason, an accused person can be taken to a doctor for the examination of injuries on his body so as to ascertain whether he could not have participated in an occurrence. He can also be taken to an identification parade to enable the prosecution witnesses to observe his physical features with a view to identify him. The taking of thumb impression or signature of the accused does not stand on a different footing from the seizure of documents or articles or other facts of evidence from the person of the accused. Though he cannot be compelled to produce such evidence, it can be taken or seized from him.

In the same way, it has been held that taking the finger impression of the accused under the magistrate’s order under the Identification of Prisoners Act is not violation of Article 20(3). The principle of such decisions is that the constitutional inhibition prohibits compulsion or force in obtaining oral or written testimony. But truth is not endangered where the compulsion is used for the exhibition of the body or of any identifying marks on it, for purposes of comparisons with evidence produced in the trial. Similarly, the finger prints, foot prints, palm prints, photographs of the accused, for purpose of comparison with those found at the scene of the crime do not lose their probative character whether they have been obtained voluntarily or involuntarily. In principle resort to compulsion requiring the accused to exhibit his body for purposes of establishing the identity is not objectionable, because by doing so he is not being bound to give false testimony. In fact he does not testify at all and the physical facts which are notice speak for themselves. The permissibility of identification by finger, palm and foot prints and the taking of the accused’s pictures after arrest, blood and urine test, use of emetic stomach pump or similar device for extracting ornaments swallowed etc. requiring suspect or accused to wear or trying on particular apparel or requiring defendant in a criminal case to exhibit himself or perform physical acts during trial and in the presence of the jury are not hit by the immunity conferred by Art 20(3). Even if it is assumed that the accused’s thumb impression was taken by the police for comparison by compulsion or use of force.”

Page 1317:-

“ It was thought that the exhaustive judgment in Sharma’s case as to the meaning of the words “to be a witness against himself” will settle the law as to the limits of the protection under art 20(3) but that hope was soon dispelled as on the question whether a direction on the accused to give his finger impression or specimen writing, or to compel him to give such impression or writing, infringed art 20(3), the different High Courts interpreted Sharma’s case in different ways and in a few case two benches of the same High Court came to different conclusion. There was therefore a confusion of law as to what the expression to be a witness against himself meant or what constituted violation of art 20(3).”

Page 1318:-

“The Supreme Court by a majority held that:-
3.    Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of body by way of identification are not included in the expression ‘to be a witness’ in art 20(3). It must be assumed that the constitution makers were aware of section 73 Evidence Act or ss 5 and 6 of the Identification of Prisoners Axr, 33.
4.
5. The majority of eight judges held that to be a witness means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. But mere production of some material evidence whether documentary or otherwise which is not his statement conveying his personal knowledge relating to the charge against him does not come within the expression ‘to be a witness.”

Page 1319:-

“Under the Supreme Court decision, however giving thumb impressions or impressions of foot or palm or specimen writings or showing parts of the body by way of identification are not included in the expression to be a witness in art 20(3). In other words, when an accused who is asked to give his finger impression does not voluntarily obey the order he may be compelled to do so and it would not be an infringement of art 20(3). Further, s 5 and 6 of the Identification of Prisoners Act authorizes a magistrate to allow measurements or photographs to be taken if he is satisfied that it is expedient for the purpose of any investigation or proceeding under Criminal Procedure Court to do so. The principle of Supreme Court decision appears to be that finger or palm expressions or any mark on scar on the body is a fact of evidence which the accused carries on his body and to force him to display such evidence for purpose of identification is not included in the expression ‘to be a witness’ and does not therefore infringe art 20(3). As observed  by the Supreme Court: “When an accused person is called upon by the court or any other authorities holding an investigation to give his finger impression or signature or a specimen of his handwriting, h is not giving any testimony of the nature of a personal testimony. The statement or refuse to make any statement but his finger impression or handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character”.

As already observed, para 2 of sec 73 unquestionably authorizes the court to direct the accused to give specimen writing or finger impression but it appears that directing an accused to give his finger impression under sec 73 has been equated by the Supreme Court in S v Kathi Kalu, with calling up on him to give specimen writing. There is however a clear distinction between the two. If a direction to give finger impression is met with refusal, it is permissible under the law to compel the accused to give it. In this operation the accused remains passive and it is the person taking the impression who does an act. But when the accused refuses to give specimen writing, it is not possible to get it from him as to write is to do “a positive volitional evidentiary act” and unless he is willing to co-operate, he can never be made to write”.

Page 1320:-

“The following observations of that most eminent American Judge Mr. Justice Holmes in Holt v US are pertinent and shed much light:-
“Another observation is based upon an extravagant extension of the 5th amendment of the American constitution. A question arose as to whether the blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him. It is objected that he did this under the same duress that made his statement inadmissible and that it should be excluded for the same reasons.

But the prohibitions of compelling a man in a criminal court to be witness against himself is a prohibitions of the use of physical or moral compulsion to extort communication from him, not an exclusion of his body as evidence when

it may be material. The objecting in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. Moreover, we need not consider how far a court would go in compelling a man in exhibiting himself. For when he is exhibited whether voluntarily or by order, and even if the order goes too far, the evidence if material is competent.”

In several other American cases, it has been held that the prohibition against compelling an accused person to be witness against himself is a prohibition of the use of coercion or physical or moral compulsion to extort oral or written communications and not of exposure of his body or the taking of finger impression or photograph for the purpose of identification.”

Now, YA, from the reading of this commentary it is obvious that your Lordship to not do is to ask him to surrender the sample but the court can order someone else to take the sample from him because the provision with regard to a person not to be a witness only applies to oral communication and anything in writing from him and not otherwise.

The question is why are we relying on sec 73? From specimens of finger impressions, expert can determine the author of a particular writing or the person who handled any particular object thus [] the perpetrator of a crime.

Similarly, DNA profile helps to identify the perpetrator of a crime, but if I may invite you to para 26 at page 12 of our submission, page 12:-

[26] In the first chapter of his book under the heading – Introduction to criminal DNA, Andrei Semikhodskii wrote:
“Solving a crime is a difficult task. The challenge faced by criminal investigator, though simple, is not trivial – correctly to identify the perpetrator and bring him/her to justice. This can be achieved in a number of ways, by examining eyewitness accounts and physical evidence, DNA evidence has possibly the highest probative value of all, on par with fingerprints evidence in identifying an individual.”

At para 20, page 11:-

[20] “In legal practice, examination of DNA has two major applications – non criminal and forensic applications. The main difference between forensic and non-criminal DNA analysis is the purpose of testing. The purpose of forensic DNA testing is to identify whether a crime scene sample matches a DNA from the suspect.”

My Lord, it would appear then, that a body sample taken from suspect or accused from which DNA profile can be obtain come from the same class of evidence of specimens of handwriting, finger prints impression or urine.

So section 73 should then be construed to extent and to exclude bodily sample whether intimate or non intimate.

We also relying on sec 165, tab 3 of our bundle. Section 165, YA [] invoked by this Honorable Court with the object to discover, to obtain proper fruit of relevant facts. So what are relevant facts in this case? Whether or not the sperm cells, the DNA had been obtained to match DNA of the accused? Court must invoke his power to give truth to both parties and justice is to be done. Now, if I may invite you to our written submission at page 8:-

[11] It was commented at page 2488 in Sarkar’s Law of evidence on the principle and scope of sec 165 of the Evidence Act that “this is a very important section. The judge may exercise all the privileges and powers which he has under the Act or any statute of interrogating witnesses and requiring the production of evidence and yet they may be insufficient to elicit the truth or to get all the facts necessary for a proper decision. The chief function of a judge is to see that justice is done between parties, and a too rigid adherence to set rules may sometimes embarrass the judge in performance of his duties and defeat the ends of justice.

At page 9:-

[12] It was also said at p 2489 that “The position of a judge is not that of a moderator between contestants in a game with no inclination to interfere till the violation of its rules. He has a much higher duty to perform. He has to see not only the proceedings are conducted strictly according to law, but to administer justice and to find out the truth. He must therefore according play an active part and it is not only his right but it is his duty to ask the witness any question in any manner, the answer to which in his opinion would aid in the discovery of truth”.

[13] It had also been said that “Counsel seek only for their client’s success; but the judge must watch that justice triumphs”. The object of the exercise of this power of interrogation must be to discover or to obtain proper proof of relevant facts”. With this object, the judge may also direct the production of any document or thing.”

Page 10:-

[15] In this case we have the evidence of the complainant, SP1 that he was sodomised by the accused. It was in evidence that ejaculation took place. SP1 had informed various persons immediately after the incident. SP1 gave a clear and vivid description as to how he was sodomised to Dr. Razuin who took down his history at HKL. All these facts have not been seriously challenged by the defence.

[16] As a result of the medical examination of SP1, the swabs taken from the anus of the complainant.  Both the swabs were analyzed by the chemist, SP5 and it was found to contain semen of a person known as ‘Male Y’.

[18] In fact, the prosecution had submitted earlier before this Honorable Court in one of the numerous interlocutory applications filed by the accused that the existence of semen in the anus of a complainant would show conclusively that anal penetration had taken place.

[19] In the course of the investigation, the police managed to secure 3 exhibits left behind by the accused in a cell where he was detained overnight and the sole DNA profile of these exhibits conclusively matched the DNA profile of

Male Y but this Honorable Court had refused to admit these 3 crucial exhibits tendered by the prosecution for purpose of matching.

At page 11:-

[21] In the present case, apart from the oral evidence of the complainant, SP1, we have a DNA profile sourced from semen of a person known as Male Y found in the swabs taken from the anus of the complainant. This is a crime scene sample.

[22] It is not only logical but absolutely sensible for an accused person facing a charge of carnal intercourse against the order of nature, in order to exonerate himself, to voluntary offer his DNA sample for matching with that of the crime scene sample.

At page 12:-

[23] Be that as it may, this Honorable Court is clothed with the power and duty under sections 73 and 165 of the Evidence Act to direct the accused in this case to give either a non-intimate or intimate sample of himself for purpose of matching with the crime scene in order that the truth may be discovered and more importantly that justice is administered according to law.

[25] It is in the interest justice that this application is premised upon that an innocent person must be acquitted and a guilty one be held liable for his crime.

At page 13:-

[27] Pursuant to the above explanation, it is incumbent upon this Honorable Court  to direct the accused herein under Section 73 of the Evidence Act read together with Section 165 of the same act to provide a non-intimate or intimate sample of himself for purpose of comparing with the sample taken from the crime scene.

[28] We could do no better than to hearken to the explanation of author Andrei Semikhodsii that:
“The criminal justice system now relies heavily on DNA-based evidence. All over the world, thousands of people have been convicted of various crimes with the help of DNA evidence, and hundreds of wrongfully convicted people have exonerated. DNA analysis has become an indispensable police tool, as it allows unambiguous identification of the criminal by traces of biological material left at the crime scene and the acquittal of innocent suspects, based on DNA evidence. The importance of this silence but faithful witness in fighting crime cannot be underestimated.”

At page 14:-

[29] It is exactly with this purpose in mind i.e. in discovering the truth that an innocent accused be acquitted and a guilty one be convicted which render the application of section 73 of the Evidence Act to be so cogent and crucial in the circumstances of this case.

YA, Section 73 say you exercise your power when there is dispute. Here, clearly there is dispute of DNA profile in Saiful’s anus, so now we asked to compare. We asked the court to invoke your power under Section 73. My Lord, it is true that there had been no application like this before. But just because no application made before, it doesn’t mean that it cannot be done, or else, sec 73 and 165 would be just a [] of the law. Both the sections are there to serve the purpose. And the purpose is exactly what we [] today.

Conclusion of page 14.

[30] With justice paramount in this case, we respectfully urged this Honorable Court to direct the accused, DSAI to provide a non-intimate or intimate sample of himself, as this Honorable Court deems fit, for the purpose of comparing with the DNA profile of the semen sample found at the crime scene, in this case from high rectal and low rectal swab that taken from the complainant.

Either individually, or read together Sec 73 and 165, give this court such power [] to make order that we pray for.

I’m supposed to take you to certain authorities but the authorities here are those mentioned in the commentaries, but if I may quickly run through, the first case is the case of Nga Tun Hlaing, tab 4 page 115. If I may just read the headnotes:-

“Section 73 specifically directs that any person present in court may be directed to make a finger impression for the purpose of comparing it with any finger impression alleged to have been his. There is no exception made in favor of an accused person. Sec 342 Criminal Procedure Court does not prohibit the taking of the finger impressions from an accused.”

The second case, Emperor v Ramrao Mangesh Burde and Others, tab 5 page 313, the court held:-

“I should only like to add in conclusion that although there is nothing illegal in the accused having been made to write by the police officers of the rank I have referred to, especially when the charge against the accused is one of forgery, as there is nothing either in the Criminal Procedure Court or in the City of Bombay Police Act which prohibits it, it would be generally desirable in the interests of the administration of justice in a criminal trial that for the purposes of comparison the accused should be made to write or to give his finger impression in court under the direction of a Magistrate or a Judge. If the accused refuses to write or to give his finger impression in court, an adverse inference may even be drawn against him in respect of the charge on which he is brought to trial.”

Case number 6, Golam Rahman and others v The King is same with case number 1.

Case number 7, Ram Swarup, if he refuses to comply, whatever condition that invoke should be invoke.

Case number 8, Prakhar Singh & Anor says that to do all this is not something that is objectionable.

Case number 9, Subayya Gounder v Bhoopala Subramaniam, page 002/007:-

“The permissibility of identifications by finger palm and footprints and the taking of accused’s pictures after arrest, blood and urine tests, use of the emetic stomach pump or similar device for extracting ornaments swallowed etc requiring suspect or accused to wear or trying on particular apparel or requiring defendant in criminal case to exhibiting himself or perform physical acts during trial and in presence of jury are not hit by the Immunity conferred by Art 20(3) and do not offend that due process clause”.

Case number 11, Ranjit Ram v State page 456:-

“An order directing an accused person to furnish his fingerprints or specimens does not amount to testimonial compulsion and does not contravene the provisions of art 20(3) of the constitution.”

Case number 12, Pali Ram first page 2nd para:-

“In addition to section 73, there are two other provisions resting on the same principle, namely section 165 of Evidence Act and section 540 Criminal Procedure Court (equivalent to sec 256 of our Criminal Procedure Court). What between them invest the court with wide discretion to call and examine and one as a witness, if it is bona fide of the opinion that his examination is necessary for a just decision of the case.”

Also [read] page 16 of the report:-

“It was argues on behalf of Pali Ram accused…that the power of the court is limited to the extent only where the court itself is of the view that it is necessary for its own purpose to take such writing in order to compare the words or figure alleged to have been written by such person and that this power does not extend to permitting one or the other party before the court to take such writing for the purpose of its evidence or its own use. It was further argued that Section 73, Indian Evidence Act did not entitle the court to assist a party to the proceedings. It entitled the court only to assist itself for a proper conclusion in the interest of justice. I have applied this test to the present case before me. It is true that here it is the prosecution which has made this request. But the observation contained in this ruling cannot be stretched to the extent, the defence wants me to do it. Ex, PW-21/F was stated by Tekchand to be in

Pali Ram’s handwriting when he made statement before the police. In his statement during the committal proceedings he resiled from it. This document is undoubtedly a vital link. It has an important bearing on the case as Pali Ram himself happens to be an accused. In this peculiar situation it becomes necessary to take recourse to the court’s power under sec 73 in the interest of justice and to ask Pali Ram to give specimen handwriting (to have it examined by handwriting expert) and then to decide about it. Under these circumstances, I think it fit to allow the request of the prosecution in this regard”.

So YA, the same applies here. There is dispute that on the allegation, even we have the semen in the anus, and the other party it was not happened that way. So we have obtained the necessary evidence but it was ruled not to be admissible. We have the situation where the evidence was there but for technical reason it was ruled not to be admissible. To satisfy the court to do justice to the witness and the accused; that we made this application. And we would seriously urge the court to consider this application. The principle of section 73 which includes and should extent to DNA evidence to allow us to direct the accused to take necessary sample for the purpose of comparison so that the truth could be discovered. Thanks.

KS:    My Lord, second application made by my learned friend, as conceded by him that it is unprecedented.

YA:    We cannot hear you from behind. You must come here in front because the microphone is here.

KS:    As I stated earlier, the second application is unprecedented, it is considered by my learned friend. My learned friend is going on the presumption that the DNA evidence here is conclusive. What we need is time, to reply in detail to my learned friend’s submission, so that your Lordship would not be in a position []. So could we have until tomorrow, YA?

YA:    Datuk Yusof?

MY:    I have no objection.

YA:    Ok, we start at 9 am tomorrow.
[12.09 p.m.] Adjourn.

Anwar Ibrahim Sodomy II – The Recorded Truth – 11 Mac 2011 March 15, 2011

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Sodomy II.
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1 comment so far

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

Pihak-pihak:
PP:     Semua hadir
PB:    KS, SN, Ram Karpal, Daruk Param Cumaraswamy (Dato’ CV Prabhakaran, Marissa, Radzlan tidak hadir)
WB:    Zambri Idrus (for complainant)

[9.09 a.m.]

MY:     Kes ditetapkan untuk sambung bicara dengan pemeriksaan balas SP25, Supt. Jude Blacious Pereira. Sebelum rakan saya memulakan pemeriksaan balas saya memohon untuk bertanyakan beberapa soalan kepada saksi ini.

SP25 mengangkat sumpah di dalam Bahasa Malaysia.

Q:     Semalam kamu beritahu kepada mahkamah yang mulia ini bahawa pada 11.15 pagi 15.07.2008 kamu telah memohon dan mendapatkan waran ke atas Dato’ Seri Anwar Ibrahim di mahkamah Jalan Duta.
A:    Benar

Q:    Apa asas permohonan tersebut?
A:    Asas permohonan adalah berdasarkan siasatan saya yang saya mendapati saya ada reasonable suspicion ke atas Dato’ Seri Anwar Ibrahim.

Q:    Syak munasabah apa?
A:    Saya syak munasabah sebab dia melakukan kesalahan di bawah S.377B KK.

Q:    Apa asas kepada syak tersebut?
A:    Asas saya adalah kerana saya merakam percakapan Saiful dan saksi-saksi lain. Selain itu, saya telah terima laporan kimia yang menyatakan semen yang dalam terkandung di dalam swab. Dan ketiga adalah disebabkan adalah saya lihat CCTV images.

Q:    Pada 15.07.2008 selepas dapat waran, adakah kamu memaklumkan niat kamu untuk membuat tangkapan terhadap Dato’ Seri Anwar Ibrahim kepada beliau atau sesiapa?
A:    Ada maklumkan.

Q:    Bagaimana maklumkan?
A:    Saya maklumkan melalui penghantaran satu faks kepada peguambela Dato’ Seri Anwar Ibrahim, iaitu En.Nair.

Q:    Secara ringkasnya, apa yang terkandung dalam faks message?
A:    Saya menyatakan dalam surat tersebut bahawa saya minta Dato’ Seri Anwar Ibrahim supaya menyerah diri pada 16.07.2008 jam 2.00 petang ke IPK KL dan saya juga telah nyatakan bahawa kami telah memohon waran tangkap ke atas klien beliau.

Q:    Semasa surat dihantar sudah dapat waran?
A:    Semasa surat dihantar memang sudah dapat waran.

Q:    Dalam surat kamu kata kamu telah memohon?
A:    Ya.

Q:    Ada salinan asal surat itu? Saya tunjuk satu dokumen. Sila baca dan tengok adakah ini surat yang kamu maksudkan?
A:    Ya.

Q:    Berapa tarikhnya?
A:    15.07.2008

Q:    Kepada siapa dialamatkan?
A:    Kepada S.N. Nair & Partners, Advocates and Solicitors.

Q:    Apa helaian kedua itu?
A:    Faks penghantaran pada 15.07.2008, 1.05 p.m.

MY:    Saya mohon supaya surat ini ditandakan beserta bukti faks sebagai P87.

P87- Surat yang difakskan oleh Supt. Jude kepada SN Nair berkenaan waran tangkap.

MY:    Itu sahaja soalan saya.
YA:    Yes, cross, KS?

Cross-examination by KS.

Q:     Kelmarin kamu nyatakan sekarang adalah dalam Bahagian Pendakwaan dan Undang-Undang di Bukit Aman?
A:    Ya.

Q:    Semenjak bila?
A:    Sejak 4.10.2001.

Q:    Sebelum itu ada pengalaman yang luas sebagai pegawai penyiasat?
A:    Ya, saya ada pengalaman luas berhubung dengan siasatan.

Q:    Lebih kurang berapa tahun dalam bahagian siasatan?
A:    Dalam 20 tahun.

Q:    Ada menjalani kursus di Kuala Kubu Bahru dan tempat-tempat lain mengenai undang-undang dan siasatan?
A:    Ya, di Kuala Kubu Bahru dan juga maktab polis.

Q:    Pernah jadi pegawai pendakwa di mahkamah?
A:    Ya, pernah.

Q:    Pernah beri keterangan di mahkamah sebelum ini?
A:    Ya, pernah beri keterangan di mahkamah sebelum ini.

Q:    Berapa kali?
A:    Lebih kurang 5-10 kali.

Q:    Di antara 5-10 kali. Ada beri keterangan dalam inkuiri?
A:    Ya, ada beri keterangan dalam inkuiri.

Q:    Satu atau lebih daripada itu?
A:    Sekali sahaja.

Q:    Nyatakan apa inkuiri itu?
A:    Inkuiri itu berhubung dengan SUHAKAM.

Q:    Apa isi kandungan inkuiri itu?
A:    Berhubung penangkapan 5 orang peguambela.

Q:    Boleh memberi butir-butir mengenai tangkapan itu?
A:    Tangkapan ini adalah berhubungkait satu perhimpunan [] di hadapan balai polis Brickfields.

Q:    Berapa orang terlibat dalam perhimpunan itu?
A:    Mengikut siasatan sebanyak 5 orang peguambela ditangkap dalam perhimpunan itu.

Q:    Apa kesalahan?
A:    Berdasarkan siasatan mereka turut hadir bersama-sama dengan beberapa orang  yang berkumpul di hadapan balai polis.

Q:    Itu satu kesalahan?
A:    Ya, satu kesalahan.

Q:    Kesalahan di bawah undang-undang apa?
A:    Di bawah Seksyen 27(3) Akta Polis.

Q:    Bila kejadian ini?
A:    Dalam ingatan saya 05.09.2009.

Q:    Siapa pegawai pemnyiasat dalam kes itu?
A:    ASP Ho.

Q:    Ada main apa-apa peranan dalam siasatan itu?
A:    Saya adalah pegawai yang membuat S.28(2a) di mana saya tidak membenarkan representation.

Q:    Membuat apa?
A:    Membuat urusan berhubung dengan seksyen tersebut yang tidak membenarkan peguambela akses kepada klien-klien mereka.

Q:    Inkuiri ini dijalankan oleh SUHAKAM?
A:    Ya, benar.

Q:    Dalam inquiry itu kamu adalah saksi utama?
A:    Salah seorang saksi utama.

Q:    Dinyatakan bila inkuiri ini diadakan?
A:    Saya tak dapat ingat.

Q:    Lebih kurang tahun lepas?
A:    Tahun lepas, ya.

Q:    Ada beri keterangan di inkuiri itu di bawah sumpah?
A:    Ya.

Q:    Adakah keterangan kamu diterima?
A:    Tidak diterima.

Q:    Kenapa?
A:    Sebab pihak SUHAKAM dapati ada percanggahan dalam keterangan saya.

Q:    Ada apa?
A:    Sedikit percanggahan.

Q:    Sedikit percanggahan. Apa itu?
A:    Ada contradiction,YA.

Q:    Sedikit contradiction, a little bit of contradiction. En. Jude, you are here to tell the truth. [] . Sedikit percanggahan? []. You are under oath. Bukan sedikit percanggahan bukan?
A:    Ya, bukan sedikit.

Q:    Bukan sedikit. Kenapa bohong tadi?
A:    Saya tidak bohong.

Q:    Ada bohong tadi sedikit sekarang sebaliknya. I’m warning you. I don’t like to threaten anyone, but if necessary I’ll do it within the parameters of the law. Bukan sedikit percanggahan, bukan? Percanggahan yang serius?
A:    Percanggahan.

Q:    Percanggahan yang serius?
A:    Yes, serious.

Q:    Why are you telling lies under the oath? One after another. Contradicting yourself here.

MY:    I think you should stop running commentaries. Submit it later.
KS:     It is not a commentary.
YA:    Proceed.

Q:    Dalam inkuiri ada nyatakan tidak bercakap benar?
A:    Bukan saya tidak bercakap benar.

Q:    You tell lies about it?
A:    Saya tidak bohong dalam inkuiri.

Q:    You told the whole truth at the inkuiri?
A:    Saya bercakap benar.

Q:    The whole truth nothing but the truth?
A:    Ya, saya cakap benar.

Q:    Do you know the findings of that enquiry?
YA:     How is that relevant to this case?
KS:     It is relevant. His credibility.
MY:     I’m waiting for the [] whether it is serious matter that the court should allow or not. I don’t know when it’s coming.
KS:    I’m coming to it. His credibity.

Q:    Here’s a copy of the findings of the enquiry. I want you to read it. Look at page 34. Boleh baca isi kandungan dari baris pertama dari muka surat itu starting with “we find…”
A:    [read] We find the the evidence of DSP Jude Pereira totally unsatisfactory. DSP Jude was conciously not telling the truth or suffered from a serious loss of memory. DSP Jude Pereira initially denied interacting with any lawyers [] contradict with direct evidence and the documentary evidence in the form of video footage. [] had no contradiction with the 5 lawyers. Looking the evidence as a whole it seems to be very dependant that DSP Jude Pereira for the purpose of interaction with the 5 lawyers and legal advise for matters of legal procedure.

Q:    Apa yang disebut disana, “DSP JudePereira either consciously was not telling the truth or suffered form a serious [] loss of memory. DSP Jude Pereira initially denied interacting with any lawyers [] contradict with direct evidence and the documentary evidence in the form of video footage. [] had no contradiction with the 5 lawyers.” Adalah keputusan inkuiri itu bahawa Jude Pereira tidak memberi keterangan yang boleh diterima.
A:    Ini adalah pendapat mereka.

Q:    Pendapat oleh siapa?
A:    SUHAKAM.

YA:    He already agreed that is the decision of SUHAKAM.
KS:    I’m telling..could I just ask? I’m coming to the end of this part.

Q:    SUHAKAM is a body set up by Parliament?
A:    Yes.

KS:    We want this report to be marked as an exhibit, page 34. We are putting the whole report.
MY:    At this juncture can this be marked as ID?
KS:     It is a certified copy, YA.
YA:     He is not the maker. But what is important to you is the findings. The findings he already read orally there. And he is not a maker. How to put in as exhibit?
KS:    It can be. It is a certified copy of the report. But if YA is satisfied with what he said…
YA:    Oral evidence is much better.
MY:    []
YA:    Yeah, he read that findings.
KS:.    Okay, fair. I just want to make sure that this document is properly [].

Q:    Kelmarin kamu ada sebut lock-up rules.
A:    Ya, saya ada.

Q:    Dato’ Seri Anwar Ibrahim apabila dia ditangkap hari itu ada 2 tangkapan, bukan?
A:    Satu tangkapan sahaja..

Q:    Bukan dua?
A:    Bukan dua.

Q:    Siapa buat tangkapan itu
A:    Dibuat oleh Supt. Taufik.

Q:    Dengan waran?
A:    Semasa tangakapan dibuat, tiada warrant of arrest.

Q:    Tetapi waran itu wujud, bukan?
A:    Waran itu wujud.

Q:    Waran itu dalam simpanan kamu?
A:    Ya.

Q:    Tiga-tiga salinan?
A:    Ya, benar.

Q:    Adakah En. Taufik megetahui masa itu kamu ada ketiga-tiga salinan waran tangkap itu dalam simpanan kamu?
A:    Saya tidak begitu pasti sama ada dia tahu saya ada simpanan tiga waran itu.

Q:    Siapa mengararahkan dia melakukan tangkapan?
A:    Saya difahamkan kemudian selepas tangkapan bahawa arahan tangkapan diberikan oleh Dato’ Bakri, Dicrector of Criminal Investigation.

Q:    Kenapa dia yang memberi arahan itu?
A:    Saya tak terima arahan secara direct jadi saya tidak tahu kenapa arahan itu…

Q:    Ada satu tangkapan oleh En. Taufik lebih kurang pukul 12.30 p.m. 16.07.2008.
A:    Benar.

Q:    Lagi satu tangkapan dilakukan di IPK KL?
A:    Di IPK KL hanya penyempurnaan warrant of arrest ke atas Dato’ Seri Anwar Ibrahim.

Q:    Itu shaja? Tidak ada tangkapan?
A:    Tidak ada.

Q:    Tidak ada tangkapan melalui waran tangkap?
A:    Tangkapan di tempat dia ditangkap kemudian penyerahan waran itu adalah di IPK kemudiannya.

Q:    Oleh siapa?
A:    Oleh Supt. Taufik.

Q:    Ada satu tangkapan sahaja?
A:    Satu tangkapan sahaja.

Q:    Itu lebih kurang pukul berapa?
A:    Penyempurnaan waran itu adalah lebih kurang 2.40 petang.

Q:    2.40 petang 16.07.2008?
A:    Ya.

Q:    Sampai di IPK pukul 2.00 petang, lebih kurang 2.00 petang?
A:    Lebih kurang 2.00 petang.

Q:    Statement direkodkan dr Dato’ Seri Anwar Ibrahim hari itu oleh kamu?
A:    Ya, saya yang rakamkan percakapan Dato’ Seri Anwar Ibrahim.

Q:    Mulakan pukul berapa recording itu?
A:    2.45 petang.

Q:    Dan selesai?
A:    Selesai 5.45 petang.

Q:    Apabila statement ini direkodkan dari Dato’ Seri Anwar Ibrahim, apa status dia, sebagai saspek?
A:    Ya, sebagai saspek.

Q:    Saspek kerana dia telah ditangkap?
A:    Saspek berdasarkan kepada siasatan saya.

Q:    Adakah dia dikurung dalam lokap selepas pukul 6?
A:    Selepas pukul 6 beliau tidak dikurung di dalam lokap.

Q:    Kamu fasih dengan lock-up rules? Familiar with it?
A:    Yes, I’m familiar with it.

Q:    A suspect has to be within or rather in the lock-up from 6.00 p.m. to 6.00 a.m. the next morning?
YA:     Kita buat dalam Bahasa Malaysia ya, KS.
KS:     My apologies, YA.

Q:    Mengikut peraturan-peraturan lokap, seorang saspek adalah diwajibkan untuk ditempatkan di dalam lokap selepas pukul 6.00 petang sehingga 6.00 pagi keesokan hari.
A:    Mengikut lock-up rules yang saya tahu, seorang tangkapan selepas dimasukkan dalam lokap tidak boleh dikeluarkan untuk sebrang soal siasat dan sebagainya selepas 6.00 petang.

Q:    Tidak boleh dikeluarkan?
A:    Tidak boleh dikeluarkan untuk soal siasat dan sebagainya selepas pukul 6.00 petang.

Q:    Boleh baca lock-up rules itu? Do you have it?
A:    Saya tak mempunyai lock-up rules itu.

Q:    You read it.
A:    Which part?

KS:     You should know.
YA:    Which section you want him to read?
KS:    He is very familiar with it, YA.
SP25:     It’s been a long time, YA.
KS:    Long time? Not very long isn’t it?
YA:     You ask him question you should find out which sections. You lebih tahu lagi.
KS:    He is reading the copy, YA.
RK:     We only have one copy, YA. We’ll make copies for the court’s benefit.
KS:     DPP don’t know either.
MY:    We are aware of that.
KS:    If your Lordship could assist?
YA:    Why should I? I’m just sitting here to listen and decide later on and not now.

SP25:    Can i…?
KS:     You can’t find it?

Q:    Isi kandungan yang berkenaan lock-up rules itu adalah ini: hours of rest, masa untuk berehat bagi seorang saspek di dalam lokap.
A:    Saya tak berapa pasti.

KS:    I’m putting it to you?
YA:     His answer is dia tak pasti. But this is rules,kan? You can submit later. Kan dah ada semua dalam tu.

Q:    P20- Hours of rest.
A:    [read]

Q:    So its hours of rest. Kata lain, seorang saspek tidak boleh dikeluarkan dari lokap selepas 6.00 petang sehingga 6.00 pagi.

YA:     In fact, that is what he said tadi, saspek tak boleh dikeluarkan selepas pukul 6.00 sehingga 6.00 pagi esok.

Q:    Tidak boleh kan? Langsung tidak boleh kerana ini adalah hours of rest?
A:    Ya, benar.

Q:    Kenapa Dato’ Seri Anwar Ibrahim tidak ditempatkan di dalam lokap selepas pukul 6.00 kerana semasa itu dia adalah seorang saspek. Beliau tidak dikurungkan?
A:    Tidak dikurungkan lagi.

Q:    Tetapi ikut lock-up rules dia harus dikurungkan?
A:    Ya.

Q:    Jika ikut lock-up rules tidak boleh, bukan?
A:    Ya, tidak boleh dikeluarkan dari lokap.

Q:    Langsung tidak boleh?
A:    Tidak boleh jika dia sudah masuk dalam lokap. Ini dia tidak dimasukkan lagi, YA.

Q:    Tetapi dia seorang saspek, diwajibkan masuk ke dalam lokap selepas pukul 6.00. Bersetuju dengan itu?

SP25:    Boleh saya jelaskan, YA?
YA:    Setuju atau tak dengan cadangan itu?

Q:    Setuju atau tak setuju?
A:    Tak setuju.

Q:    Seorang saspek tidak diwajibkan masuk ke dalam lokap…
A:    Dalam keadaan yang saya siasatn ini pada hari tersebut, tidak setuju.

Q:    Tidak ada apa-apa tentang peraturan 20 lock-up rules tadi?
A:    Tidak, sebab beliau belum dimasukkan ke dalam lokap lagi.

Q:    Adalah diwajibkan dimasukkan?
A:    Kalau ikut lock-up rules, ya.

Q:    Jika ikut lock-up rules dia wajib ditempatkan di dalam lokap?
A:    Ya, benar.

Q:    Benar, bukan? Dalam kes ini…
A:    Saya tidak masukkan dalam lokap.

Q:    Itu bermakna tidak ikut lock-up rules itu? Itu satu kesalahan bagi kamu, bukan?
A:    Saya anggap ini bukan satu kesalahan bagi saya oleh kerana…

Q:    Bukan oleh kerana. Tidak kesalahan? Satu kesalahan bukan?
A:    Bukan.

Q:    Bukan kesalahan?
A:    Bukan.

Q:    Kenapa?
A:    Sebab  beliau ditangkap pada pukul 12.00 lebih, kemudian beliau telah dibawa masuk untuk dirakamkan statement beliau dan seterusnya siasatan masih diteruskan dan kita tak masukkan dia ke dalam lokap sebab kami nak hantar dia untuk pergi ke hospital untuk pemeriksaan. Sebab ini, kita tak masuk Dato’ Seri Anwar Ibrahim dalam lokap sehingga siasaatan pada tarikh tersebut telah habis selepas beliau balik dari hospital. So, beliau belum dimasukkan dalam lokap semasa itu.

Q:    Jadi jangan masukkan saspek dalam lokap dan buat apa yang disukai? Adakah juga ada?
A:    Tiada.

Q:    Saya katakan kamu melanggar Peruntukan 20 Peraturan Lokap?
A:    Saya tidak langgar.

Q:    Tidak langgar?
A:    Tidak langgar.

Q:    Kamu siasat laporan oleh saiful yang dibuat pada 28.06.2008?
A:    Ya.

Q:    Adakah dalam masa 28.06.2008 – 16.07.2008 apa-apa cubaan untuk rekodkan statement di bawah S.112 dari Dato’ Seri Anwar Ibrahim?
A:    Ya, ada percubaan dibuat.

Q:    Ada dapat rekodkan statement dari dia?
A:    Tidak dapat.

Q:    Kenapa tidak dapat?
A:    Sebab pada 12.07.2008, kami telah buat percubaan untuk menyempurnakan satu notis di bawah S. 111 Criminal Procedure Code kepada Dato’ Seri Anwar Ibrahim pada 12.07.2008 di mana saya telah pergi ke rumah beliau di Segambut untuk menyempurnakan notis tersebut. Beliau tak ada di kediaman beliau pada masa itu dan saya telah sempurnakan notis tersebut kepada pemandu beliau yang ada dalam kediaman dan peguambela telah di inform berhubung dengan notis yang telah saya serahkan kepada beliau. Bagaimanapun, peguambela telah memberitahu saya beliau tidak dapat dhadir pada 14.07.2008 kerana Dato’ Seri Anwar Ibrahim ada urusan di Pulau Pinang.

Q:    Pada 14.07.2008, En. Nair ada berhubung dengan kamu?
A:    Ya, ada.

Q:    Dan satu masa telah ditetapkan untuk rekod statement S.112 dari Dato’ Seri Anwar Ibrahim pada 16.07.2008?
A:    Ya, benar.

Q:    Itu adalah fahaman di antara kamu dan En. Nair?
A:    Ya, memang benar.

Q:    Tujuan untuk rekod statement di bawah S.112 sebagai saksi? Itu tujuan S.112, bukan?
A:    Benar.

Q:    Bukan untuk tangkap dia? Fahaman adalah untuk dia hadir ke IPK untuk statementnya direkodkan?
A:    Fahaman diantara saya dan peguambelanya.

Q:    Bukan untuk dia ditangkap pada hari itu?
A:    Pada masa itu tidak.

Q:    So apa sebab buat tangkapan itu walaupun ada fahaman antara kamu dan En. Nair?
A:    Kerana pada 15.07.2008 saya mohon warrant of arrest di atas sebab-sebab yang saya terangkan tadi yang mana saya ada reasonable suspicion.

Q:    Reasonable suspicion untuk apa?
A:    Untuk menangkap beliau.

Q:    Kenapa? Kan ada fahaman sebelum itu? 14.07.2008 ada fahaman untuk Dato’ Seri Anwar Ibrahim pergi ke IPK KL untuk member statement kepada kamu.  15.07.2008  kamu buat satu permohonan kepada mahkamah untuk mendapat satu waran tangkap. Kenapa perlu buat?
A:    Berdasarkan siastaan saya, saya ada syak dan seterusnya saya berpendapat adalah lebih baik saya memohon satu warrant of arrest

Q:    Apabila mohon untuk mendapatkan warrant of arrest ini, ada buat satu afidavit?
A:    Tidak, saya hanya buat permohonan kepada Registar.

Q:    Apa sebab yang diberi kepada Registrar ini untuk dikeluarkan warrant of arrest?
A:    Saya buat permohonan untuk dapatkan warrant of arrest dari Registrar.

Q:    Ada salinan permohonan itu dengan kamu sekarang?
A:    Tiada.

Q:    Boleh diperolehi?
A:    Saya kena semak dengan mahkamah.

Q:    Apa sebab diberi dalam permohonan itu? []
A:    Saya kena semak permohonan saya. Saya tak ingat.

Q:    Lebih kurang []. Boleh ingat, bukan?
A:    Ya, seperti yang saya cakap berdasarkan kepada siasatan saya dan alasan-alasan telah diberikan.

Q:    Apa alasan? Apa yang boleh diingat?
A:    Saya tak ingat.

Q:    Langsung tak ingat?
A:    Langsung tak ingat.

Q:    Selepas tangkapan, Dato’ Seri Anwar Ibrahim dihantar ke hospital?
A:    Bukan selepas tangkapan, selepas rakaman percakapan.

Q:    Ya, semua itu. Selepas semua itu.
A:    Ya.

Q:    Pukul 8?
A:    Pukul 8.50 saya sampai ke hospital bersama-sama beliau.

Q:    DSP Yahya ada dengan kamu masa itu?
A:    Semasa di hospital DSP Yahya tidak hadir.

Q:    Setelah kembali dari hospital ke IPK KL, ada jumpa dengan En. Yahya?
A:    Ya, saya ada jumpa dengan DSP Yahya.

Q:    DSP Yahya ada berikan Good Morning towel, toothbrush dan mineral water bottle, bukan?
A:    Saya tak tahu berhubung dengan barang-barang tersebut.

Q:    Ada beri apa-apa arahan kepada police personnel di lokap selepas Dato’ Seri Anwar Ibrahim ditempatkan di dalam lokap?
A:    Saya tidak ada memberikan arahan apa-apa kepada sesiapa.

Q:    Langsung tidak memberi arahan kepada sesiapa?
A:    Tidak ada.

Q:    Arahan seperti jangan sentuh Good Morning towel, toothbrush dan mineral bottle itu?
A:    Tiada.

Q:    Tidak memberi apa-apa arahan kepada police personnel di lokap?
A:    Tidak member apa-apa arahan.

Q:    Ada keterangan bahawa arahan diberikan oleh kamu.
A:    Tiada. Saya tidak ada keterangan apa-apa yang menyatakan saya ada bagi arahan kepada mana-mana anggota di lokap.

Q:    Berbalik kepada 28.06.2008. kamu dipilih sebagai pegawai penyiasat untuk laporan yang dibuat oleh Saiful?
A:    Saya terima arahan daripada Ketua Jabatan Siasatan Jenayah Kuala Lumpur.

Q:    Iaitu kamu dipilih sebagai Pegawai Penyiasat?
A:    Ya, untuk kes ini.

Q:    Apa peranan atau tugas-tugas sebagai seorang Pegawai Penyiasat?
A:    Tugas-tugas seorang Pegawai Penyiasat adalah menyiasat kes menurut kepada undang-undang.

Q:    Luas bukan ini?
A:    Memang luas.

Q:    Apa peranan kamu pada 28.06.2008?
A:    Peranan saya adalah sebagai Pegawai Penyiasat kes yang dilaporkan itu, Travers Report 4350/08.

Q:    Ada soal siasat Saiful hari itu? Pada 28.06.2008.
A:    Bukan pada hari itu. Pada 28.06.2008 di hospital saya telah menebual Saiful.

Q:    Menemubual?
A:    Menemubual. Temuduga. Tidak siasat.

Q:    Tidak ada apa-apa statement direkodkan dari dia?
A:    Semasa itu tidak ada statement direkodkan dari dia.

Q:    Di hospital tidak ada?
A:    Di hospital ada rekodkan.

Q:    Di hospital ada, bukan?
A:    Pada 29.06.2008.

Q:    28.06.2008 tidak ada?
A:    Tidak ada.

Q:    Pada 28.06.2008 perbualan sahaja?
A:    Perbualan sahaja pada 28.06.2008 malam.

Q:    Saiful aada diperiksa oleh 3 orang doctor pada hari itu?
A:    Dua orang doctor yang memeriksa Saiful.

Q:    Siapa dia?
A:    Dr. Razali dan Dr. Khairul.

Q:    Bukan 3?
A:    Tiada.

Q:    Dr. Siew tidak ada di sana hari itu?
A:    Dr. Siew ada, tetapi dia hanya mengutip swab-swab.

Q:    So dia tidak periksa? Dua doctor periksa dia?
A:    Ya, dua orang doctor telah memeriksa tubuh badan beliau.

Q:    Adakah satu keperluan seorang Pegawai Penyiasat hadir apabila seorang saspek pengadu diperiksa oleh doctor?
A:    Ikut keadaan kes.

Q:    Apa yang luar biasa di dalam kes ini?
A:    Kes ini pada pendapat saya adalah kes penting untuk saya dan saya perlu membuat pemerhatian.

Q:    Pemerhatian?
A:    Ya.

Q:    Kenapa pemerhatian? Tidak ada kepercayaan dengan doctor?
A:    Saya percaya doctor.

Q:    Ada percaya doctor, bukan?
A:    Ada.

Q:    So biasanya seorang Pegawai Polis tidak hadir dalam pemeriksaan itu oleh doctor?
A:    Ya.

Q:    Dalam kes biasa,bukan?
A:    Seperti yang saya beritahu mengikut keadaan. Saya memutuskan untuk hadir di sana.

Q:    Kenapa?
A:    Hanya saya hendak buat pemerhatian sahaja.

Q:    Kenapa walaupun biasa tidak ada satu keperluan untuk itu? Kenapa dalam kes ini?
A:    Sebab saya hendak lihat bahawa..

Q:    Yalah, sebab apa lihat?
A:    Saya hendak lihat semua yang dilakukan oleh doctor supaya saya dapat pengetahuan dan juga apakah setiap doctor itu melakukan untuk siasatan saya.

Q:    Untuk siasatan awak?
A:    Untuk melengkapkan siasatan saya.

Q:    Kamu ada katakan tadi peranan seorang Pegawai Penyiasat tugas-tugas adalah luas.
A:    Benar.

Q:    Adakah satu keperluan untuk siastan di tamatkan sebelum seorang dituduh dalam mahkamah?
A:    Bukan semestinya.

Q:    Biasanya?
A:    Biasanya kita menangkap apabila kita ada reasonable suspicion.

Q:    Bukan reasonable suspicion. Maksud saya adalah ini – sebelum seorang dituduh di mahkamah siasatan harus ditamatkan?
A:    Ya, harus dilengkapkan sebelum seorang dituduh di mahkamah.

Q:    Dan tidak boleh ada sesuatu siasatan selepas itu?
A:    Ya, benar. Ikut kepada keadaan.

Q:    Dalam kes ini adakah apa-apa siasatan apabila kes ini dibicarakan?
A:    Dalam ingatan saya tidak ada selepas dibicarakan.

Q:    Tidak ada buat apa-apa siasatan selepas kes mula dibicarakan di mahkamah ini? Did you investigate in the course of this trial?
A:    Yes, I remember. Ada. Saya telah rakamkan percakapan Dr. Razuin.

Q:    Kenapa? []
A:    Pada 21.02.2011.

Q:    Siapa arahkan kamu merekodkan statement dari Dr. Razuin?
A:    Pihak team pendakwaan.

Q:    Pihak pendakwaan. Siapa khasnya?
A:    Datuk Yusof.

Q:    Biasanya tidak boleh ada satu siasatan bukan apabila perbicaraan dimulakan?
A:    Kebiasaannya tiada.

Q:    Dan dalam hal ini kenapa ada? Satu keperluan?
A:    Saya hanya diarahkan rekod percakapan.

Q:    Tentu ada tujuan, bukan? Apa tujuan untuk merekodkan?
A:    Tujuan adalah untuk saya dapatkan satu sambungan statement berhubungkait dengan borang pro forma sahaja.

Q:    Berhubung borang pro forma?
A:    Ya.

Q:    Apa catatan dalam pro forma itu yang memerlukan satu siasatan disambung?
A:    …

Q:    Kenapa? Kenapa menjalankan siasatan dalam perbicaraan?
A:    Saya tidak tahu kenapa. Saya hanya merakamkan percakapan berhubung pro forma.

Q:    Kenapa? Tentu ada arahan diberi. Untuk apa pergi ke Kota Bahru? Untuk tujuan bukan?

YA:    Yalah. Pergi rakam percakapan Dr. Razuin atas arahan team pendakwa.
KS:    But, what was the reason?
YA:    Berhubung dengan pro forma.

Q:    Jadi apa catatan dalam pro forma itu?
A:    Saya tidak dapat jelaskan itu, YA.

Q:    Saiful dengan pro forma sahaja? Tiada apa-apa yang lain?
A:    Hanya pro forma sahaja. Soalan-soalan berhubungkait dengan pro forma.

Q:    Ini luar biasa, bukan?
A:    Ya, luar biasa.

Q:    Balik kepada 26.06.2008. Ada meneliti isi kandungan laporan yang dibuat oleh Saiful?
A:    Ya, ada.

Q:    Ada meneliti isi kandungan P3 ini dengan baik sebelum memulakan siasatan?
A:    Ya, benar.

Q:    Adakah apa-apa di dalam P3 ini mengenai oral sex?
A:    Tiada.

Q:    Langsung tiada?
A:    Tiada.

Q:    Cubaan untuk oral sex?
A:    Tiada.

Q:    Langsung tiada?
A:    Tiada.

Q:    Apa yang disiasat oleh kamu? What were you investigating?
A:    Saya menyiasat kesalahan di bawah Seksyen 377B iaitu meliwat.

Q:    Oral sex bukan liwat, bukan?
A:    Bukan.

Q:    Itu tidak disiasat oleh kamu kerana tiada di dalam P3 ini?
A:    Tiada disiasat.

Q:    Kejadian yang dikatakan dalam P3 ini adalah 26.06.2008.
A:    Benar.

Q:    Apa yang dapat tahu dari Saiful apa yang jadi selepas 26.06.2008 sehingga 28.06.2008 apabial laporan polis ini dibuat. Ada siasat itu, apa yang dibuat oleh beliau?
A:    Ya, beliau telah menghubungi beberapa orang selepas 26.06.2008.

Q:    Apa yang jadi selepas 26.06.2008? Diantara 26.06.2008 hingga 28.06.2008?
A:    Selepas 26.06.2008.

Q:    Dapat tahu apa yang dia buat?
A:    Dia ada mengadu kepada beberapa orang kawan.

Q:    Siapa mereka ini?
A:    Yang saya dapat ingat adalah seorang lelaki nama Rahimi.

Q:    Boleh senaraikan?
A:    Rahimi.

Q:    Satu, Rahimi. Yang kedua?
A:    Yang kedua adalah En. Ezam.

Q:    Ketiga?
A:    Ketiga adalah pakcik beliau sendiri, Yuah.

Q:    Mumtaz? Datuk Mumtaz?

MY:     YA, saya tak pasti sama ada soalan ini wajar sebab En. Saiful sudah pun memberi keterangan, he is the best person to ask about this.
YA:     To see consistency la?
MY:    Whatever he said will be hearsay.
YA:    The truth, it will be hearsay. But for consistency I allow it for the time being.

Q:    Siapa orang lain? Mumtaz ada bukan?
A:    Ya.

Q:    Datin Rosmah?
A:    Not very sure. Saya tak berapa pasti. Saya kena semak semula.

Q:    Datuk Seri Najib Tun Razak?
A:    Tiada.

Q:    Langsung tiada apa-apa?
A:    Itu adalah kejadian sebelum itu.

Q:    Ada pada kejadian sebelum itu?
A:    Sebelum kejadian meliwat pada 26.06.2008.

Q:    Bagi kejadian tidak ada apa-apa?
A:    Selepas kejadian 26.06.2008 tiada.

Q:    Boleh cakap dengan tepat Datin Rosmah tidak ada di senarai?
A:    Ya, saya telah ambil statement beliau.

Q:    Ada ambil statement daripada Datin Rosmah, bukan?
A:    Ya

Q:    Itu bermakna dia terlibat dalam kes ini. Peranan itu lain, tetapi ada. Ada ambil statement Datin Rosmah oleh kerana dia disenaraikan sebagai orang-orang yang ada hubungkait dengan Saiful selepas 26.06.2008. Oleh itu merekodkan statement dari Datin Rosmah.
A:    Pohon rujuk pada ID saya kerana tak pasti sama ada statement ada direkodkan dari Datin Rosmah.

Q:    Ada katakan tadi, ada cakap bukan?
A:    Itu saya tak berapa pasti. Boleh saya semak saya punya ID?

Q:    Ada katakana tadi.

MY:    []
YA:    Yeah, but now he is not very sure. Rujuk ID.

Q:    Now you are not sure?
A:    Ya, not sure…[semak ID]…Ada, YA.

Q:    Bila?
A:    Pada 17.07.2008 statement beliau dirakamkan.

KS:     YA, could we have a short break?
YA:     Panjang lagi ke?
KS:     Quite certain areas.
RK:     Also, we might want to cross on the exhibit. It has not being set up yet. I did say it to my learned friend earlier and he agreed to set it up so that we can refer to it.
YA:     Okay, 15 minit ya.
[10.14 a.m.] Stand down.

[10.38 a.m.] Kes dipanggil semula.

Q:    Jude ada katakan tadi ya, bahawa Saiful ada berjumpa dengan Dato’ Seri Najib Tun Razak?
A:    Dia berjumpa dengan DS Najib sebelum 26hb.

Q:    Bila itu?
A:    Pada 24hb untuk mengadu berdasarkan beberapa kejadian sebelum itu.

Q:    24hb?
A:    Ya, 24.

Q:    Ada statement direkodkan daripada Dato’ Seri Najib?
A:    Ya, ada.

Q:    DSP Rodwan, apa peranan dia dalam kes ini?
A:    Peranan dia tidak ada dalam kes ini.

Q:    Sebelum atau selepas?
A:    Sebelum kes ini, ada.
Q:    Apa peranan itu?
A:    Beliau telah memberi nasihat apabila Saiful menghubungi beliau pada 24.6.2008.

YA:    We are going to hearsay already. No longer relevancy here.
MY:    Yes, because Saiful had already giving his evidence.
YA:    I have to allow the objection. Please proceed to some other point, Mr. Karpal.

KS:    26hb, ada tak dalam siasatan mengenai Hospital Pusrawi?
A:    26hb tiada.

Q:    28hb?
A:    Ya, sebab Saiful telah pergi ke Hospital Pusrawi sebelum pergi ke HKL.

Q:    Telah diperiksa oleh Dr. Osman?
A:    Ya.

Q:    Ada statement yang direkod daripada Dr. Osman? Dalam siasatan?
A:    Ya, ada.

KS:    YA, my learned friend Nair wants to ask few questions.

SN:    Encik berkhidmat di Jabatan Siasatan Jenayah berapa lama?
A:    Lebih kurang 34 tahun.

Q:    Berapa kes yang telah disiasat?
A:    Banyak kes, tak dapat ingat.

Q:    Lebih kurang?
A:    Sebab saya sebagain IO selama 8 tahun, jadi saya tak dapat ingat. Lebih kurang 500.

Q:    Tapi beri keterangan mahkamah 15 kali sahaja?
A:    Ya.

Q:    Apakah yang berlaku kepada semua siasatan yang dijalankan, lebih kurang 500 kes itu?
YA:    Counsel, I think you should not repeat. This questions telah disentuh oleh Mr. Karpal.

Q:    Bilakah Encik ambil eksibits swab P6A-L daripada HKL?
A:    Pada 29.6.2008, jam 12.35 pagi.

Q:    Dan apa yang berlaku selepas itu?
A:    Selepas saya terima swab-swab tersebut daripada Dr. Siew, saya telah simpan swab-swab itu sendiri sehingga saya pergi ke pejabat dan simpan dalam cabinet besi saya.

Q:    Kabinet besi ini adalah digazettekan?
A:    Ia telah dibekalkan oleh pejabat di IPD Brickfields.

Q:    Di pejabat mana peti besi ini ada?
A:    Di pejabat saya sendiri, YA. Pejabat KBSJD Brickfields.

Q:    Mana lagi ada pesi beti macam ini?
A:    Ada juga di bahagian dan cawangan lain, cabinet besi juga ada.

Q:    Yang boleh dialihkan? Bukan stay?
A:    Bukan.

Q:    Mengikut IGSO,  adakah buku rekod disimpan?
A:    Mengenai apa?

Q:    Eksibit yang dibawa balik?
A:    Ya, ada satu buku daftar di store berhubung dengan eksibit-eksibit yang diterima.

Q:    Dengan eksibit yang Encik Jude simpan di peti besi, ada simpan atau tidak buku rekod?
A:    Saya hanya ambil nombor pendaftaran daripada store, berkaitan dengan eksibit-eksibit yang saya simpan dalam cabinet besi di pejabat saya sendiri.

Q:    Apa nombor pendaftaran store?
A:    53/08.

Q:    Saya pun Pegawai Polis juga dulu. Dalam peraturan polis, kalau ambil number pendftaran daripada store, ada atau tidak barang tersebut letak dalam store dan bukan di tempat lain?
A:    Ya, patut letak dalam store.

Q:    Tapi bagaimana pulak Encik simpan dalam peti besi dalam bilik anda?
A:    Saya merupakan KBSJD dan saya ingin menentukan barang berada dalam selamat, dan saya mengawal barang itu sendiri di pejabat saya.

Q:    Boleh tak Encik Jude nyatakan di IGSO mana mengatakan KBSJD boleh menyimpan sendiri barang eksibit.
A:    Saya buat keputusan untuk simpan sendiri.

Q:    Membuat keputusan tanpa ikut arahan?
A:    Ya, memang.
Q:    So memang ada langgar arahan?
A:    Saya melanggar arahan, tetapi saya memutuskan seperti itu.

Q:    Encik telah terima swab-swab. Apakah bentuk swab2 ini?
A:    Saya percaya ia adalah DNA dan juga kemungkinan kewujudan semen.

Q:    So benar tak swab-swab ini organik?
A:    Benar.

A:    Dan adakah mungkin degradation akan berlaku?

MY:    YA, I don’t think the counsel should ask …
SN:    I will establish it. I did not complete the question yet.
YA:    He’s not an expert in DNA. He is only the IO.
SN:    It’s true YA, but I’m coming to that. I just want to ask whether he knows or he doesn’t know.
YA:    Ok proceed. (To the witness): You tau atau tidak?

A:    Saya tau degradation mungkin berlaku.

Q:    Adakah Dr. Siew memberitahu cara untuk meng’handle’kan eksibit ini?
A:    Ya beliau telah memberitahu saya supaya barang-barang itu dimasukkan dalam freezer.

Q:    Tapi Encik beritahu ia disimpan dalam cabinet besi? Adakah cabinet ini ada freezer dalam itu?
A:    Tiada.

Q:    Ini langgar prosedur polis?
A:    Itu arahan Dr. Siew tapi bukan arahan IGSO.

Q:    So IGSO tiada arahan letak dalam freezer?
A:    Tiada. Yes, IGSO ada bagi arahan supaya barang-barang yang saya kutip ini harus di preserve supaya dia tidak hilang bahan-bahan yang perlu kita kekalkan.

Q:    Look at exhibit P6E and F, B4 and B5. Encik telah beri keterangan bahawa Encik telah mengambil eksibit swab dari Dr. Siew dan telah bawa ke pejabat. Encik juga beritahu ada Encik ada buat re-marking, buka seal besar dan buat re-marking, iaitu bukak P27. Ada minta kebenaran kepada sesiapa?
A:    Tiada.

Q:    Adakah ini memang ikut prosedur?
A:    Ya, ikut prosedur supaya setiap satu barang ditanda dengan jelas, tidak boleh dicampuradukkan supaya pihak kimia dapat membuat perbandingan dengan baik.

Q:    Ini bukan prosedur IGSO.
A:    Memang ada prosedur IGSO.

Q:    Encik, ini prosedur bab yang mana dalam IGSO?
A:    Boleh saya rujuk IGSO.  Ini adalah terkandung dalam IGSO bahagian D102, para 7 yang mana saya akan bacakan. [read- semua barang kes hendaklah dibungkus berasingan. Barang kes hendaklah dibungkus supaya tidak hilang, bercampur aduk, tumpah, pecah atau tercemar semasa dalam perjalanan. Barang kes hendaklah dimateri, seal dan label dengan jelas. Label pengenalan tambahan dikepilkan dengan barang kes itu untuk pengecaman di mahkamah kemudian. Huruf P tidak boleh digunakan].

Q:    Contoh, kalau kita ambil eksibit A, baju dan seluar. Itu dirampas oleh polis?
A:    Ya.

Q:    Barang itu you kena label dan seal sendiri?
A:    Ya.

Q:    IGSO itu kena mengena dengan barang eksibit yang diambil oleh polis?
A:    Ia tidak nyatakan sebarang barang diambil oleh polis. Ia menyatakan semua barang kes, tidak kira diambil oleh polis atau doktor.

Q:    (Tunjuk P27). Ini diambil oleh doktor. Semua sudah siap sedia, kenapa kena buka?
A:    Permohonan kepada Jabatan Kimia dibuat oleh polis, bukan doktor.

Q:    Tapi semua tanda pun sudah ada di sini, kenapa kena letak balik?
A:    Walaupun nama-nama tersebut telah ditanda dengan angka, bagi saya itu bukanlah tanda, hanya angka.

Q:    So dalam IGSO ada tulis tak barang yang diambil daripada doktor boleh dibuka dan ditanda sendiri?
A:    Tidak disebut.

Q:    Bila Encik buka ini, saya rujuk eksibit P6E and F. Encik ada cek tulisan dan butir?
A:    Saya cek butiran, nama. Dan saya cek seal.

Q:    Itu sahaja?
A:    Ya.

Q:    Dalam IGSO tak sebut apa yang cek?
A:    Tidak ada bagitahu.

Q:    Perlu bukan? Semua harus dicek dengan teliti.
A:    Ya perlu.

Q:    So kalau teliti mesti ada Nampak kan tarikh?
A:    Saya tidak cek kepada tarikh setiap satu bahan.

Q:    Berapa jauh tarikh dengan nama-nama ini?
A:    Saya dah beritahu saya tak cek tarikh.

YA:    Just tengok je lah. Berapa jauh.
A:    Tak jauh YA.

Q:    Apa tarikh di E dulu?
A:    26. 8. 2008.

Q:    Yang F?
A:    26.8.

Q:    8 ke 6?
A:    26. Yang saya lihat di sini 26.8.

Q:    It looks like 6, but it is 8.
A:    Tidak.

Q:    Ok, we leave it to submission. Tarikh 26 June, apa yang berlaku? Report dilaporkan perkara itu bila?
A:    Kejadian berlaku pada 26.

Q:    Kenapa Encik Jude tak nampak perkara ini? Kenapa tak catat kesalahan ini? (merujuk kepada tarikh pada P27)
A:    Saya tak nampak kesilapan yang dilakukan.

Q:    Tak jalan tugas secara betul?
A:    Saya tak setuju.

Q:    Bila Encik bawak eksibit ini kepada Jabatan Kimia?
A:    Saya serah eksibit ini pada 7.55 p.m, 30hb.

Q:    Daripada terima dan hantar ke JK, berapa lama tempoh dalam simpanan Encik?
A:    Lebih kurang 34 jam.

Q:    43 jam lah.  Cuba kira balik.

Q:    Ada tak jumpa Dr. Seah?
A:    Ya, apabila saya serah barang ini.

Q:    Ada tak memberitahu Dr. Seah bila kamu terima swab ini dari HKL?
A:    Dalam ingatan saya tidak beritahu.

Q:    Beritahu cara simpan eksibit ini?
A:    Tidak

Q:    Ada tak Dr. Seah tanya tentang perkara-perkara ini?
A:    Dalam ingatan saya tiada.

SN:    Itu sahaja soalan saya.
RK:    YA, I have a few questions.

Q:    Supt. Jude, ada terima barang-barang untuk dihantar ke Jabatan Kimia?
A:    Ya.

Q:    Barang-barang termasuk adalah swab yang diterima di HKL?
A:    Ya.

Q:    Adakah Encik simpan dalam bilik?
YA:    You are repeating.
RK:    I don’t even start the question.
YA:    No, the first few questions you asked tadi is repeating what. You can ask, but jangan repeat apa yang counsel dah tanya.
RK:    Very well.

Q:    Barang-barang yang diterima, ada 2 set kan, satu swab tersebut, dan satu daripada tempat kejadian.
A:    Benar.

Q:    Berkenaan barang diterima di tempat kejadian, adakah Encik diberi maklumat tersebut daripada pengadu?
A:    Ya, ada.

Q:    Sebab itu barang itu dihantar untuk tujuan DNA profiling?
A:    Benar.

Q:    Seperti yang dicatat atas envelope?
A:    Benar

Q:    Catatan itu catatan Encik sendiri?
A:    Benar.

Q:    I think all the exhibits ada catatat ‘for DNA profiling’.
A:    Atas envelope tiada. Permohonan saya kepada Jabatan Kimia, ada.

Q:    Berkenaan barang yang dijumpai di apartment, di tempat kejadian, itu pada tarikh bila?
A:    30hb

Q:    Bersama pengadu?
A:    Ya.

Q:    Beliau menunjukkan tempat-tempat yang disyaki ada kesan DNA? Sebab itu Encik telah hantar untuk DNA profiling?
A:    Di tempat kejadian, perjumpaan duvet dan Chinese silk carpet.

Q:    No, soalannya, Saiful ada ikut sama dengan you kan? Di sana, Encik ada mengambil nasihat dari Saiful kan, berkenaan tempat-tempat yang disyaki ada DNA, sebab itu hantar ke Jabatan Kimia untuk DNA profiling?
A:    Tidak.

Q:    Then kenapa hantar?
A:    Bukan saya berpandukan apa yang Saiful beritahu, saya berpandukan kepada bila saya jumpa barang itu seperti karpet dan duvet, saya panggil Amidon dari Forensik supaya mengesan sekiranya ada apa kesan di atas barang-barang itu.

Q:    Ye lah, jadi mengikut makluman itu, ada kesan kan, sebab itu kita hantar untuk DNA profiling?
A:    Ya, dia ada kesan atas carpet.

Q:    Barang-barang yang dihantar kepada Jabatan Kimia kepada Dr. Seah Lay Hong, berapa kali jumpa Dr. Seah?
A:    2 kali.

Q:    Untuk item B dan A, B dihantar sebelum A?
A:    Benar.

Q:    Barang yang ditemui di tempat teman wanita Saiful, termasuk satu seluar dalam?
A:    Benar.

Q:    Siapa nama teman wanita itu?
A:    Masa itu bukan teman wanita, tetapi adalah tunang, nama Duratul.

Q:    Awak ada maklumat Saiful ada pergi ke rumah Duratul?
A:    Saya cuma ada information bahawa ada barangan di rumahn tunangnya, yang saya rampas kemudiannya, seluar dalam levis kaler hitam biru.

Q:    Yang disyaki dipakai pada masa kejadian?
A:    Ya.

Q:    Berapa seluar dalam yang disyaki di pakai di tempat kejadian?
A:    Hanya satu.

Q:    You rampas dua kan?
A:    Ya.

Q:    Ada seluar dalam yang dirampis yang tidak kena-mengena, tidak digunakan dalam kejadian ini kan?
A:    Dua-dua ada kena mengena.

Q:    Tetapi tidak pakai pada masa yang sama kan? Mesti dipakai pada masa separate kan?
A:    Ya benar.

Q:    So dalam kes ini, you rampas 2 seluar dalam?
A:    Ya.

Q:    So, satu seluar dalam tak terlibat dalam  kejadian ini, setuju atau tidak?
A:    Saya tak setuju.

Q:    Tapi seluar dalam yang kedua yang awak rampas di rumah tunang Saiful dalam wachine machine?
A:    Ya.

Q:    Ada borang serah-menyerah dengan tunang?
A:    Tiada.

Q:    Beliau yang serahkan underwear itu kan?
A:    Seluar itu diserahkan oleh Saiful sendiri.

Q:    Tapi tunang yang handle seluar dalam itu kan?
A:    Saya tidak tahu.

Q:    Siapa yang cuci underwear itu?
A:    Saya percaya, mak tunang Saiful

Q:    So ada jumpa mak tunang?
A:    Ada jumpa.

Q:    Siapa nama mak?
A:    Saya tak tahu.

Q:    Dan adakah Encik menerima barang-barang trousers, underwear  selepas dalam siasatan?
A:    YA.

Q:    Barang-barang tersebut disimpan di mana?
A:    Barang-barang tersebut Saiful pakai.

Q:    No, soalan saya disimpan. Barang-barang ini, kamu kutip dari mana?
A:    Rumah Saiful

Q:    Dalam siasatan, awak kutip barang ini, awak simpan di mana?
A:    Cabinet besi saya, yang sama di pejabat.

Q:    Kabinet tidak berhawa dingin kan?
A:    Tidak, tetapi bilik berhawa dingin.

Q:    Tapi cabinet yang kamu simpan barang-barang ini termasuk swab-swab ini tidak berhawa dingin kan?
A:    Kabinet tidak berhawa dingin.

Q:    So suhunya panas lah dalam cabinet tersebut?
A:    Tidak setuju.

Q:    Jadi awak tahu lah macam mana keadaan suhu dalam cabinet?
A:    Masa itu saya buka air-cond dalam bilik. Kesejukan itu turut berada dalam kabinet.

Q:    Macam mana kamu tahu perkara ini? Kamu pernah masuk ke dalam cabinet itu?
A:    Saya pernah masuk tangan saya ke dalam cabinet.

Q:    Awak diarahkan oleh Dr. Siew untuk specifically letak barang-barang ini dalam keadaan sejuk bukan?
A:    Ya.

YA:    That also asked by SN Nair.
RK:    Yes but we asked it based on different items.

Q:    Berkenaan barang trousers and underwear tersebut, awak simpan dalam plastic bag?
A:    Ya, saya masukkan dalam plastik beg, kemudian saya simpan dalam cabinet besi.

RK:    That would be all.
SN:    I have another 1 question to ask YA.

Q:    Dengan membawa barang dari HKL dalam beg ini iaitu P27, selepas  bukanya dan label sendiri, saya katakan kepada Encik, Encik telah tempered eksibit?
A:    Saya tidak setuju.

SN:    That’s all YA.

Re-examination by Datuk Yusof.

A:    Pada 15.7.2008, adakah kamu yang mengarahkan tangkapan dibuat, yang awal itu?
A:    Bukan saya yang arah.

Q:    Tapi kamu ada waran?
A:    Ya, saya menyimpan warrant.

Q:    Ada kamu beritahu kepada pegawai tangkapan mengenai waran, sebelum dia buat tangkapan di Segambut?
A:    Tidak

Q:    Bila pertama kali kamu serahkan warrant it?
A:    Semasa di IPK

Q:    Masa itu DSAI berada di mana?
A:    Beliau sudah sampai ke IPK.

Q:    Berkaitan dengan warrant of arrest P 85, bilakah pertama kali kamu beri arahan berkaitan warrant yang kamu mohon ini?
A:    Pertama kali di IPK tingkat 7, pukul 2. 30 pm.

Q:    Encik, dalam siasatan ini, Encik ada terima laporan perubatan daripada Dr. Siew?
A:    Ada.

Q:    Pada masa diberikan laporan perubatan itu. ada dikepilkan pro forma?
A:    Tidak.

Q:    Encik tahu tak, bila issue pro forma ini pertama kali ditimbul?
A:    Saya difahamkan ialah selepas perbicaraan langsung. Dalam perbicaraan ini.

Q:    Encik beritahu Encik telah diarahkan untuk rakamkan percakapan ini berkaitan dengan pro forma ini. Ada tak apa-apa soalan atau penjelasan khusus yang diminta oleh Encik Jude yang Encik dapatkan daripada Dr. Razuin?
A:    Soalan berkaitan dengan kemasukan..

Q:    Kamu ingat tak, ia mesti berkaitan dengan pro forma itu? Apakah soalan khusus yang diminta oleh Dr. Razuin?
A:    Adalah di para 1.6; oral attempted, rectal attempted performed ejaculation. Itu sahaja.

Q:    Boleh diterangkan kepada Mahkamah ini, sebelum ini mengapa awak kata awak tidak dapat jelaskan mengapa awak disuruh merakamkan percakapan Dr. Razuin?
A:    Saya tak faham.

Q:    Tadi, bila karpal tanya, kamu cakap kamu tak tahu kenapa kamu diarahkan rakam percakapan.

MY:    He knew the reason, tapi tadi dia jawab “saya tak tahu kenapa saya disuruh rakam”. Can you explain now why?
A:    Yes, I can after I see the part which I cannot remember.

Q:    Masa awak rakam percakapan itu, awak ada bawa pro forma ini?
A:    Ya saya ada bawa pro forma ini.

Q:    Encik, ada freezer di IPD Brickfield?
A:    Ada freezer di dalam store.

Q:    Kenapa tak simpan dalam freezer di store?
A:    Disebabkan terdapat banyak barangan dalam freezer itu, dan saya juga mementingkan keselamatan barang itu secara persendirian, jadi saya memilih untuk meletakkan dalam cabinet besi saya dengan air-cond dipasang dalam bilik.

Q:    Encik habis rakam percakapan DSAI pada pukul 5.40, dan hantar ke hospital pukul berapa?
A:    8.50 malam.

Q:    Antara waktu 5.40 dan 8.50 itu, di mana DSAI ditempatkan?
A:    Beliau ada di IPK, di bilik mesyuarat.

Q:    Ada siapa bersama beliau di bilik mesyuarat ketika itu?
A:    Ada beberapa peguam, antaranya Sivarasa, dan ahli keluarga beliau.

Q:    Siapa ahli keluarga dia yang kamu ingat?
A:    Saya tidak ingat.
MY:    Itu sahaja soalan saya yang arif. Pohon saksi dilepaskan.

MY:    Saya ingin panggil SP 26: Supt Ahmad Taufek, saksi saya yang akhir.
SP26 angkat sumpah dalam Bahasa Malaysia.

Q:    Pada bulan June 2008…
YA:    Kena bagi pangkat kerja semua dulu. Sebab ini main trial. Kena rekod semula.
A:    Saya sekarang sedang bercuti melanjutkan pelajaran, cuti gaji penuh selama 18 bulan. Saya berumur 49 tahun. Sebelum melanjutkan pelajaran, saya bertugas di Siasatan Khas D9, Bukit Aman.

Q:    Bila mula bercuti belajar?
A:    Mulai 20 Feb 2010.

Q:    Pada 2008 khususnya bulan June, adakah kamu bekerja di Bahagian Siasatan Khas D9 ini?
A:    Ya.

Q:    Pada 16.7.2008, ada Taufek terima apa-apa arahan berkaitan dengan DSAI?
A:    Ya, saya telah menerima arahan dari Pengarah Bahagian Siasatan Jenayah, Dato’ Seri Bakri, untuk menyediakan pasukan bagi menangkap DSAI sekiranya beliau tidak menuju ke IPK dan menuju ke tempat lain apabila pulang dari Putrajaya.

Q:    Adakah ini bermakna pasukan Encik Taufek kena ikut pergerakan DSAI?
A:    Saya mengikut pergerakan melalui orang saya

Q:    Ada orang Taufek yang ikut pergerakan beliau?
A:    Ya.

Q:    Adakah DSAI dari Putrajaya terus ke IPK hari itu?
A:    Daripada pemerhatian pihak polis, saya dapat makluman pada 12.55, bahawa kenderaan DSAI sedang menuju ke arah rumah beliau di Segambut.

Q:    Apakah tindakan Encik selepas dimaklumkan?
A:    Saya telah mengarahkan 2 buah kereta peronda yang bersama pasukan saya untuk membuat halangan di Jalan 161 Segambut, dan apabila kenderaaan DSAI sampai, saya telah menjalankan tangkapan tersebut.

Q:    Pada waktu itu, adakah DSAI seorang atau ada orang lain?
A:    Ada. Semasa tahan kereta tersebut, kalau tidak salah saya, ada 4 orang dalam kereta tersebut bersama DSAI.

Q:    Yang kamu boleh ingat?
A:    Peguam beliau, Encik Sankaran, pemandu saya tak ingat nama dia, dan seorang lagi kalau saya tak silap ialah YB Sivarasa

Q:    Tapi Nair kamu pasti?
A:    Ya

Q:    Semasa tangkapan, siapa yang Taufek jumpa dulu?
A:    Apabila saya menghampiri kereta DSAI, saya telah pergi ke pintu belakang, dan pada masa yang sama, peguam beliau, Encik Sankaran telah keluar dan tanya saya ground of arrest. Saya telah maklumkan bahawa saya menjalankan tangkapan ini di bawah sek 377B iaitu kesalahan yang lazim ditangkap.
Q:    Bagaimana dengan DSAI?
A:    Pada masa itu, pintu telah dibuka, DSAI duduk di kanan kereta, dan pada masa itu, kalau tak salah saya dia telah berhubung dengan telefon.

Q:    Adakah perkara yang sama dimaklumkan kepada beliau?
A:    Ada. Selepas saya maklumkan, peguam telah berbincang sesuatu dengan Dato’ Seri. Dan kemudian saya minta DS ikut saya ke kenderaan polis.

Q:    Ada tak sendiri kamu bercakap dengan DSAI?
A:    Ya, saya ada maklumkan DSAI tentang ground of arrest.

Q:    Kemudian, ke mana kamu bawa?
A:    Saya minta DSAI ikut ke kenderaan saya yang berada di hadapan, dan DSAI beri kerjasama dan terus ke IPK KL.

Q:    Di IPK, di mana kamu bawa DS?
A:    Bawa dia ke tingkat 7, dan saya serahkan pada IO tangkapan tersebut.

Q:    Selain itu?
A:    Semasa di IPK, pukul 2 atau 2 lebih, IO telah meminta saya untuk sempurnakan waran tangkap terhadap DSAI.

Q:    Penyempurnaan waran tangkap dibuat selepas atau sebelum kamu serahkan kepada IO?
A:    Saya serahkan kepada IO.

Q:    Mana dulu? Penyempurnaan waran tangkap atau serah DSAI kepada IO?
A:    Saya membawa DSAI dan serah kepada IO dulu baru IO suruh saya sempurnakan waran tangkap.

Q:    YA, saya mohon saksi ditunjukkan P85. Masa penyempurnaan waran kepada DSAI, apa yang encik lakukan?
A:    Saya telah tunjuk dan baca warrant of arrest tersebut kepada DSAI. Dan saya catit penyempurnaan waran tangkap di belakang waran tersebut. Dan saya mentandatangani dan saya suruh DSAI tandatangani juga di belakang waran tersebut.

Q:    Boleh saya rujuk P85A. Encik lihat dokumen ini, yang depan. Apakah document ini?
A:    Waran tangkap.

Q:    Adakah ini waran tangkap yang kamu maksudkan?
A:    Ya.

Q:    Encik telah bacakan waran itu.
A:    Ya.

Q:    Bahagian mana yang dibacakan?
A:    Ya. Bahagian bold ini. [read charge di bahagian bold page hadapan P85A]

Q:    Kamu telah kemudian buat catitan mengenai penyempurnaan waran ini?
A:    Ya, di belakang waran ini. Saya catit tarikh dan masa, saya tandatangan di belah kiri, dan DSAI tandatangan di sebelah kanan.

Q:    Encik, sebelum masa menangkap di Segambut itu, selain daripada Dato’ Seri Bakri, ada siapa yang lain bagi arahan?
A:    Tiada ada.

Q:    Arahan ini diberi secara terus?
A:    Secara terus kepada saya, berjumpa dengan beliau.

Cross-examination by Karpal Singh.

Q:    Encik adakah Encik terlibat dalam penyiasatan kes ini?
A:    Tiada.

Q:    Apabila melakukan tangkapan di Segambut, tidak langsung mengetahui tentang kes ini?
A:    Dari segi siasatan saya tak tau…

Q:    Masa itu, tak tahu langsung mengenai kes ini bukan?
A:    Ya, saya tidak terlibat dalam siasatan ini.

Q:    Bagaimana kamu ada menyatakan kamu ada memberi ground of arrest iaitu Sek 377B.
A:    Saya diberitahu oleh Dato’ Seri Bakri untuk melaksanakan tangkapan tersebut di bawah kesalahan ini.

Q:    Saya letakkan kepada kamu, kamu tidak melakukan itu; tidak memberi sebab tangkapan kepada Nair dan DSAI pada bila-bila masa?
A:    Saya ada beri, seperti yang saya maklumkan tadi.

Q:    Di Segambut, ada keluarkan waran tangkap dan diberikan kepada DSAI?
A:    Semasa disana, saya tidak diberikan waran tersebut.

Q:    Ada tahu pada masa itu tentang waran yang dikeluarkan oleh Mahkamah?
A:    Saya tidak tahu.

Q:    That would be all.

Re-examination by Datuk Yusof.

Q:    Adakah Encik Taufek mempunyai apa-apa alasan untuk tidak memberitahu DSAI ataupun Encik Nair tentang mengapa DSAI ditangkap, tentang ground of arrest?
A:    Tiada.

Q:    Itu sahaja soalan Re saya, YA.
KS:    YA, before my learned friend closed this prosecution case, we wish to recall Saiful. Only one question I want to ask, with regard to the finding made by Dr. Seah Lay Hong. This finding is only made known later, after Saiful gave evidence.
YA:    This question apa soalannya?
KS:    With regard to another DNA profile in the anus of Saiful.
MY:    There was no such evidence. I know there was suggestion, but there was no such evidence. In the onus, there were only 2. Only at the perianal, more than 2. Because we cannot assume that there was evidence.
KS:    There was an evidence.
YA:    Itu outside je tu kan.
KS:    We suggested it to her. She said she cannot either agree or disagree.

MY:    In Fact, when the last time Karpal posts the question, I was intervening on it. Because looking at it, you cannot assume it was there when it wasn’t there.
KS:    My learned friend did not object to it at all YA, at that time.
MY:    And now, I’m objecting.
YA:    Wait, we stand down for a while.
[11.40] Stand down

[11.46] Kedua-dua pendakwaraya dan peguambela masuk ke kamar Hakim.

[11.49] Kedua-dua pendakwaraya dan peguambela keluar dari kamar Hakim.
[11.53]
Re-call SP1

KS:    YA, I wish to recall SP1.
SP1 angkat sumpah dalam BM.

Q:    Anda telah beri keterangan iaitu ada kejadian pada 26.6.08. Anda telah diperiksa pada 28.6 di HKL?
A:    Ya.

Q:    Di antara 26 dan 28, adakah Saiful pergi ke tandas?
A:    Ada pergi ke bilik air, tetapi tak buang air besar.

Q:    Tidak buang air besar?
A:    Tidak.

Q:    Di mana tandas ini?
A:    Ada beberapa.

Q:    Keterangan telah diberi oleh seorang pakar, Dr. Seah iaitu DNA profiling ada didapati di perianal region, swab B9, dan dia mengatakan iaitu DNA profiling kepunyaan lebih kurang 3 orang yang lain ada didapati dalam perianal region.

MY:    It is not correct.
KS:    I’m saying it.

Q:    Ada faham soalan saya. Kesan 3 DNA lain ada didapati di tubuh Encik Saiful?
A:    Saya tidak tahu.

Q:    Keterangan ini telah diberi oleh doktor ini.
MY:    So, soalan?

Q:    Di keliling tubuh. Itu bermakna, ada 2 atau 3 partners yang telah melakukan seks ke atas awak?
A:    Tidak.

Q:    So apa yang dikatakan oleh doktor itu tidak benar?
A:    Saya tak dapat komen. Tetapi tidak ada..

Q:    Tetapi adakah itu bermakna..
YA:    He already said he don’t want to answer.
KS:    Ok, we leave it to submission. That would be all.

Re-examination of SP1 by Datuk Yusof.

Q:    Antara 26.6 sehingga 28.6, boleh beritahu ada tak kamu mandi?
A:    Saya ada membilas badan saya.

Q:    Antara 2 tarikh ini, mandi di mana?
A:    Di rumah. Satu, semasa selepas kejadian di kondo, yang kedua, keesokannya di rumah.

Q:    Ada kamu pergi ke tempat lain, bermalam di tempat lain selepas kejadian?
A:    Saya tidak.

Q:    Ada kamu bilas badan kamu di lain-lain tempat?
A:    Tidak, kecuali di dua tempat ini sahaja.

Q:    Itu sahaja soalan saya.

MY:    Sebelum kes pendakwaan menutup kes ini, saya ada dua permohonan yang hendak dikemukakan.
SN:    Just for the record, YA, we do not have any further cross on SP8, ASP Fauziah.

MY:    YA telah membuat satu ruling berkaitan dengan eksibit-eksibit yang dikumpulkan di lokap, dan apa-apa tentangan mengenainya. Pihak lawan ingin memohon supaya Mahkamah ini menyemak semula ruling itu berdasarkan keterangan baru yang ada. Masalah yang dihadapi pihak pendakwaan ialah, bila YA membuat ruling itu, kita tidak tahu apa asasnya. Is it because you find that the arrest is unlawful or whatever it is. I’m sure whether or not in the course of your ruling and when you consider the submission by parties, whether or not D3, the copy of the warrant of arrest which was produced by us through arresting officer was considered by you. We didn’t know, because it was not marked as exhibit. Now, we have the original warrant before the court, and also the evidence to the effect that it was read, and for the first time in the Honourable Court that what was read is actually something that is similar to the charge.

YA:    In short, you want to ask me to review my decision based on the new evidence so far.
MY:    Yes.

YA:    So when can you have the full submission on it?
A:    That is one. The second one, without prejudice to the first application, we invite your lordship to exercise your power under Section 73 and 165 of Evidence Act, to order DSAI to provide specimen for DNA profiling. But of course if my learned friend has no objection, then we won’t have any problem on that.
Because this court is concerned with justice, and to find out the truth, and in order to ascertain the truth, the court should obtain certain proof to certain facts which are in dispute, i.e whether of not the DNA found in the anus of Saiful is DNA belonging to DSAI. So these two, if my learned friend have objection, we would request, of having consulted Mr. Karpal, that a full submission to be made on Monday. But if the second application Mr Karpal has no objection to it, that would be the end of the matter.
KS:    We have objection to the second application YA.
YA:    First one?
KS:    Well, depends on what my learned friend has to say. Even on that, it was not so much on the arrest, it is on unfair means and unfair method.
YA:    Never mind. Now I get it. That you are objecting to both.
KS:    Of course, the objection will be there. They are raising the second one, that they are asking your Lordship to direct to be examined, for DNA purposes. This was not happening anywhere before this.
YA:    Never mind. I’ll here the full submission by both parties then and I’ll decide lah. So it will be on Monday.
YA:     Submission panjang ke ni?
MY:    For the review, I’ll make it short and sweet.
YA:    Takpelah, we fix on Monday and let see how. Kalau tak habis Monday kita sambung je lah. Kita pun ada 2 minggu lagi tarikh yang kita fix untuk kes ini. So I take it there is no more witness to be call. Only on Monday there is submission on these two application. Pukul 9 kita sambung.
[12.04] Court adjourn.

Anwar Ibrahim Sodomy II – The Recorded Truth – 10 Mac 2011 March 14, 2011

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

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

[9.06 a.m]
MY: Kes untuk sambung bicara. Izinkan saya panggil saksi pendakwaan yang ke 25, SP 25 Supt Jude Pereira.
Supt Bahagian Pendakwaan dan Undang-Undang di Bukit Aman, umur 58 tahun.

SP 25 baca sumpah dalam BM.

EIC by MY.

Q: Sejak bila bertugas di Bahagian Pendakwaan dan Undang-Undang Bukit Aman?
A: Mulai 4.1.2011.

Q: Sebelum ditukarkan ke Bukit Aman, di manakah Encik bertugas?
A: Sebelum ditukarkan ke bahagian pendakwaan, saya bertugas sebagai KBSJD Brickfields iaitu mulai 1.6.2007.

Q: Cuba lihat ke arah kandang orang kena tuduh mahkamah. Siapakah itu?
A: DSAI.

Q: Tahu mengapa beliau berada di situ?
A: Ya, beliau menghadapi pertuduhan di bawah seksyen 377B iaitu satu laporan yang dibuat oleh Saiful Bukhari Azlan.

Q: Adakah Encik telah menjalankan siasatan dalam kes ini?
A: Ya.

Q: Encik beritahu yang DSAI berada di sini kerana menghadapi pertuduhan berikutan satu laporan yang dibuat oleh Saiful. Boleh Encik camkan Saiful Bukhari ini?
A: Ya.

Saiful Bukhari bin Azlan dicamkan.

Q: Bilakah pertama kali Encik diberitahu mengenai laporan ini?
A: Mula sekali saya diberitahu mengenai laporan ini adalah pada jam 6.35 petang pada 28.6.2008.

Q: Ketika itu di mana Encik berada?
A: Saya berada di pejabat saya Bahagian Siasatan Jenayah Daerah Brickfields.

Q: Pada bulan Jun, khususnya 28.6.2008, Encik bertugas di Daerah Brickfields ya, bahagian siasatan Jenayah?
A: Ya.

Q: Apa yang diberitahu kepada Encik?
A: Saya telah dimaklumkan mengenai satu laporan iaitu Travers Rpt 4350/08 di mana pengadu adalah seorang lelaki Melayu bernama Saiful Bukhari yang telah saya cam, dan beliau telah mengadu bahawa beliau telah diliwat oleh DSAI di unit 1151 Kondominium Seri Damansara, Jalan Setiakasih, Bukit Damansara Kuala Lumpur.

Q: Encik diberitahu melalui telefon?
A: Ya.

W: Tindakan seterusnya yang diambil oleh Encik Jude?
A: Saya telah maklumkan laporan tersebut kepada Dato’ Khoo Chin Wah iaitu ketika itu beliau adalah OCCI KL.

Q: Setelah diberitahu, adakah apa-apa arahan yang diberi kepada encik?
A: Ya beliau telah mengarahkan saya menjalankan siasatan untuk laporan ini.

Q: Berikutan dengan arahan ini, apakah tindakan Encik selanjutnya?
A: Saya telah pergi berjumpa pengadu di HKL pada lebih kurang 8.30 malam.

Q: Masa berjumpa beliau, adakah beliau seorang atau bersama orang lain?
A: Ada, iaitu Dr. Razuin yang sedang menemu bual pengadu pada ketika itu.

Q: Adakah Encik ada bercakap dengan kedua-dua orang ini?
A: Ya.

Q: Dr. Razuin yang camkan Encik semalam?
A: Ya.

Q: Apa yang Encik cakapkan kepada mereka?
A: Saya telah menemubual pengadu secara ringkas berhubung dengan kejadian, dan beliau telah mengadu bahawa beliau telah diliwat oleh DSAI dan pada masa yang sama, Dr. Razuin juga telah menemu bual pengadu dan buat catitan mengenai latar belakang dan sebagainya.

Q: Apa yang Saiful buat ketika berada di hospital itu?
A: Saiful berada di hospital untuk buat pemeriksaan berkaitan dengan laporan ini.

Q: Sebelum saya pergi jauh, tentang Travers Rpt. yang Encik beritahu tadi. Encik ada lihat laporan itu?
A: Ya.

Q: YA, saya merujuk saksi kepada eksibit P3. Cuba lihat laporan ini, adakah ini laporan yang dibuat oleh Saiful yang Encik katakan tadi?
A: Ya.

Q: Apakah nombor report nya?
A: Travers Rpt 4350/08.

Q: Pengadunya?
A: Pengadunya adalah Mohd Saiful Bukhari bin Azlan.

P3 Travers Rpt No: 4350/08 dicamkan.

Q: Boleh beritahu mahkamah, Encik Saiful berada di sana untuk tujuan pemeriksaan? Boleh beritahu bagaimana Encik tahu?
A: Saya tahu sebab saya telah jumpa 3 orang doktor yang telah datang ke sana untuk membuat pemeriksaan ke atas Saiful yang mana saya telah memberitahu doktor tersebut tentang pengaduan Saiful.

Q: Bila ketiga-tiga doktor ini datang?
A: Jam 9 malam.

Q: So mereka datang kemudian selepas Encik berjumpa Saiful?
A: Ya.

Q: Boleh beritahu siapakah doktor-doktor itu?
A: Dr. Siew Shueu Feng, Dr. Razali, dan Dr. Khairul.

Q: Encik beritahu maklumkan kepada mereka?
A: Saya telah maklumkan kepada mereka mengenai laporan tersebut yang dibuat oleh Saiful.

Q: Adakah kemudiannya Saiful diperiksa?
A: Ya.

Q: Sebelum pemeriksaan dibuat, ada apa-apa doktor ini buat? Adakah mereka ada tanya soalan dulu kepada Saiful?
A: Mereka tidak tanya soalan. Yang tanya soalan sebelum itu ialah Dr. Razuin.

Q: Adakah Encik pasti mereka tiada temubual?
A: Saya rasa mereka telah menemubual Saiful secara ringkas kalau mengikut ingatan saya.

Q: Pemeriksaan ini dibuat, di mana tu?
A: Bilik Mawar, HKL.

Q: Encik Jude bertemu dengan Saiful dan Dr. Razuin tu di mana?
A: Di luar bilik Mawar.

Q: Apakah tempat itu?
A: Sebuah bilik di dalam Bilik Mawar.

Q: Di OSCC?
A: Ya.

Q: Masa pemeriksaan, Dr. Razuin ada?
A: Ya.

Q: Apa peranan Dr. Razuin?
A: Saya lihat dia hanya membuat catitan semasa pemeriksaan dilakukan,

Q: Encik juga berada dalam Bilik Mawar itu semasa pemeriksaan dilakukan?
A: Ya, saya turut ada bersama-sama.

Q: Apa peranan Encik?
A: Hanya membuat pemerhatian.

Q: Adakah Encik berada di sana sepanjang masa pemeriksaan dibuat?
A: Ya

Q: Pemeriksaan dilakukan lebih kurang pukul berapa?
A: 9.30 malam sehingga pukul 11.30 malam.

Q: Adakah ini termasuk temubual atau pemeriksaan sahaja?
A: Lebih kepada pemeriksaan.

Q: Siapa yang membuat pemeriksaan sepanjang ingatan Encik?
A: Dr. Razali dan Khairul.

Q: Dr. Siew?
A: Dr Siew telah mengambil swab-swab yang diambil daripada Saiful.

Q: Yang buat pemeriksaan 2 orang sahaja ya?
A: Ya, 2 orang.

Q: Ada specimen diambil daripada Saiful?
A: Ya.

Q: Encik tahu, apa yang dilakukan terhadap specimen yang diambil daripada Saiful?
A: Ya, specimen telah dimasukkan ke dalam bekas oleh Dr. Siew, iaitu ada 10 specimens swab yang diambil. Dan satu FTA card darah, dan satu botol darah untuk ujian toksikologi.

Q: Kalau boleh Encik teruskan?
A: Seterusnya selepas pemeriksaan dilakukan dan kesemua swab itu ditelak dalam bekas, dan FTA card serta satu botol darah untuk toksikologi, Dr. Siew dan Saiful telah sealkan bahan-bahan berikut. Selepas itu, Dr. Siew dan pengadu telah menandatangani di atas setiap specimen yang di ambil. Seterusnya, Dr. Siew telah masukkan kesemua specimen dalam satu beg plastik yang telah ditutup. Beg plastik itu adalah Kementerian Kesihatan Forensik HKL, yang saya boleh ingat, YA.

Q: Beg ini, ditutup?
A: Yang diseal.

Q: Kemudian?
A: Saya telah tandatangan satu borang penerimaan barang-barang tersebut daripada Dr. Siew.

Q: Kenapa penerimaan?
A: Kerana beliau memberi beg yang mengandungi specimen-specimen yang telah diambil dan terus serahkan kepada saya dalam Bilik Mawar.

Q: Jude telah menandatangi satu dokumen. Dokumen apakah itu?
A: Mengenai pengesahan penerimaan barang-barang tersebut daripada Dr. Siew.

Q: Saya ingin merujuk saksi kepada P23. Cuba lihat adakah dokumen ini serah-menyerah yang Jude dan Dr. Siew tandatangani?
A: Ya.

Q: Ini adalah merupakan akuan bahawa Encik ada terima barang-barang ini?
A: Ya.

Q: Boleh Encik bacakan apa swab yang diambil?
A: [read senarai specimen yang diambil di dalam P23]

Q: Dan di bawah itu dinyatakan siapa yang melabel dan mengambil dan memeterikan specimen ini?
A: Bekas specimen di labelkan oleh Dr. Siew, specimen diamblil oleh Dr. Khairul dan Dr. Razali, dan specimen di sealkan/meteri oleh Dr. Siew.

Q: Encik, dokumen ini siapa yang sediakan?
A: Pihak hospital yang sediakan.

Q: Tulisan?
A: Di para 1 adalah tulisan saya, dengan pangkat, nombor dan jabatan.

Q: Yang lain?
A: Yang lain ditulis oleh Dr. Siew.

Q: Ini beg plastic ini yang boleh telus, lutsinar?
A: Ya, lutsinar, jadi boleh nampak yang dalam.

Q: Lebih kurang pukul berapa ini serahkan?
A: Saya diserahkan bungkusan yang mengandungi barang-barang tersebut pada pukul 12.35 am.

P23, Borang pengendalian specimen Mediko-Legal dicamkan.

Q: Setelah menerima barang-barang ini di dalam beg plastic itu, apa yang Encik lakukan seterusnya?
A: Selepas terima barang-barang dr Dr. Siew, saya balik ke pejabat] di bahagian siasatan jenayah di Brickfields. Saya masuk ke pejabat saya, dan saya telah menyimpan specimen-specimen ini di dalam sebuah kabinet besi yang telah saya kuncikan.

Q: Siapa yang pegang kunci?
A: Saya.

Q: Ini lebih kurang pukul berapa encik simpan dalam cabinet?
A: Lebih kurang pukul 1 pagi 29.6.2008.

Q: Bagaimana keadaan pejabat Encik Judy?
A: Air cond dipasang, lebih kurang suhu 18c.

Q: Adakah lazim ianya dipasang?
A: Ya, memang dipasang setiap masa.

Q: Berkaitan dengan laporan polis oleh Encik Saiful, adakah Encik Judy menerima atau mengambil atau merampas apa-apa eksibit?
A: Ya, saya telah rampas satu baju Ralph Lauren warna biru muda di Hospital selepas saya rakam percakapan beliau pada 30hb.

Q: Beliau ini siapa?
A: Mohd Saiful.

Q: Lagi?
A: Dekat sana saya ambil baju sahaja.

Q: Adakah apa-apa akuan penerimaan ditandatangani?
A: Saya telah tandatangani satu akuan serah menyerah baju tersebut, bersama Saiful.

Q: YA, saya merujuk saksi kepada eksibit P7.
A: Ya, ini adalah akuan serah-menyerah baju Ralph Lauren, dan tandatangan saya dan Saiful ada di sana.

P7, Borang serah-menyerah “baju kemeja Ralph Lauren” dicamkan.

Q: Pada tarikh yang sama, 29.6.2008, jam 7.30 petang, ada kamu terima atau rampas apa-apa barang kes lagi?
A: Saya mohon rujuk pada ID siasatan saya. Saya telah merampas satu tiub KY Gel jenama Johnson & Johnson semasa di pejabat saya.

Q: Untuk KY ini, adakah kamu telah keluarkan borang serah-menyerah?
A: Ya, yang mana telah ditandatangani oleh saya dan Saiful

Q: YA, saya ingin rujukkan saksi ini kepada P10. Adakah ini akuan serah-menyerah item KY jenama Johnson&Johnson?
A: Ya, ini adalah borang serah menyerah tiub KY jenama Johnson Johson.

Q: Ada tandatangan kamu dan Saiful?
A: Ya.

P10, Borang serah-menyerah KY Jelly dicamkan.

Q: Kedua-dua KY Jelly dan baju jenama Ralph Lauren, apa yang Encik buat kepada barang ini?
A: Saya telah ambil barang tersebut dan letak dalam peti besi saya dalam pejabat dan menguncinya.

Q: Saya ingin merujuk saksi kepada P4.  Adakah ini yang kamu terima daripada Saiful? Ada apa-apa tanda dibuat ke atasnya?
A: Saya tidak membuat sebarang tanda ke atas gel, tetapi saya ada buat tanda pada envelope di mana saya telah membungkus barang tersebut.

Q: Kamu tidak buat tanda pada gel, tapi membuat tandaan pada envelope?
A: Ya.

Q: Seterusnya, selepas itu, ada apa-apa lagi eksibit?
A: Pada 29.6.2008, jam lebih kurang 8.50 malam, saya telah pergi ke rumah pengadu di Bandar Utama Damansara bersama-sama pengadu. Sampai di rumah tersebut, Mohd Saiful telah menyerahkan kepada saya
i. Satu helai seluar panjang hitam yang beliau katakan telah dipakai semasa kejadian’
ii. Satu helai baju kemeja lengan panjang hijau jenama G2000; dan
iii. Satu helai seluar dalam warna dark grey jenama Levi’s.

Q: Jadi ada 3 items?
A: Ya.

Q: Adakah itu sahaja barang yang diserahkan?
A: Di rumah Saiful itu sahaja.

Q: Adakah Encik ada menandatangani borang serah-menyerah bersama Saiful?
A: Ya, saya telah menandatangani satu borang serah-menyerah bersama dengan Saiful.

Q: Saya merujuk saksi kepada P8. Adakah ini dokumen serah-menyerah yang kamu tandatangani berkaitan dengan 3 item yang kamu rampas di rumah Saiful di Bandar Utama Damansara?
A: Ya.

Q: Saya ingin merujuk saksi kepada P12, P13 dan P14. Cuba lihat kandungannya. . Cuba bandingkan dengan borang P8. Adakah ini ketiga-tiga item tadi?
A: Saya cam seluar warna hitam biru, saya juga cam baju warna hijau G2000 dan cam seluar dalam Levis warna dark grey.

Q: Berdasarkan apa Encik buat pengecaman ini? Ada tanda dibuat di atas 3 item ini?
A: Saya ada letak sign saya di bahagian dalam barang-barangan ini.

Q: Ketiga-tiga ada tandatangan?
A: Ya.

Q: Apa tarikhnya di situ?
A: 29hb.6.08..

Q: Untuk ketiga-tiga item ini, selain daripada itu, ada eksibit lain lagi?
A: Ada. Saya juga telah rampas seluar dalam hitam biru/dark jenama Levi’s di rumah teman wanita Saiful di mana barangan tersebut berada di dalam washing machine telah dibasuh.

Q: Adakah kamu keluarkan borang dan tandatangani?
A: Ya saya telah keluarkan  borang serah-menyerah yang telah ditandatangani oleh Saiful dan saya.

Q: Barang ini telah diserahkan oleh Saiful kepada Encik?
A: Ya, Saiful yang serahkan pada saya.

Q: Saya rujuk saksi kepada P9. Adakah ini borang serah-menyerah tersebut?
A: Ya, ini adalah borang serah menyerah yang saya telah tandatangan  bersama Saiful.

P9, Borang serah-menyerah “seluar dalam jenama Levi’s warna hitam/biru”dicamkan.

Q: Saya ingin merujuk saksi kepada P15. Cuba lihat adakah ini seluar dalam yang diserahkan ketika di rumah teman wanita Saiful?
A: Ya, ini adalah seluar dalam yang saya terima dari Saiful.

Q: Ada buat tandatangan kamu pada seluar dalam itu?
A: Tidak ada, sebab semasa itu dia basah.

Q: Encik, berkaitan dengan kesemua eksibit ini, apa yang kamu lakukan ke atas semua eksibit ini?
A: Kesemua eksibit yang saya terima, saya telah masukkan ke dalam peti besi di pejabat saya. Seterusnya, pada 1hb Julai…

Q: Selepas 29hb, 30/6/2008 apa jadi?
A: Saya telah pergi ke tempat kejadian, di Kondo Desa Damansara KL, Jalan Setiakasih Bukit Damansara Kuala Lumpur.

Q: Tadi Encik mahu mengatakan tentang 1hb. Apa yang berlaku pada 1hb?
A: Saya telah menanda eksibit ini yang saya terima.

Q: Pada 1hb ini? Cuba lihat ID Encik. Berapa haribulan ini?
A: 1hb Julai 2008, saya telah membuka kabinet besi di pejabat saya dan telah mengeluarkan eksibit2 yang telah saya bagitau tadi, bersama-sama dengan ada beberapa eksibit yang saya terima di tempat kejadian.

Q: Exhibit mana ni? Can you be more specific?
A: Saya telah membungkus satu helai bulu di belakang pintu di unit 1151 di Kondominium Desa Damansara.

YA: Tapi tadi kata 30.6.2008 kamu pergi ke tempat kejadian?
MY: Dia terus pergi 1hb, saya tanya pasal 30hb.

A: Pada 30hb, pukul 12.10, saya telah pergi ke tempat kejadian bersama-sama dengan satu team forensic.

Q: Boleh tak khusus sedikit apa tempat kejadian ini?
A: Satu kondo dengan beberapa blok di mana entrance dikawal oleh anggota…

Q: Encik, bila kata tempat kejadian itu, tolonglah beri yang khusus sedikit, seperti di pertuduhan.
A: Dia adalah sebuah unit 1151 di tingkat 5 di Blok 11.

Q: Jadi kamu pergi bersama team forensik?
A: Ya, juga bersama-sama dengan pengadu yang turut hadir. Team forensic apabila masuk ke dalam unit 1151, telah menjumpai sehelai rambut di belakang pintu bilik utama.

Q: Seterusnya?
A: Seterusnya, pada pukul 3.05 petang itu, team forensik telah rampas satu duvet warna biru dan juga satu china silk karpet daripada unit 1152.

Q: Ini team forensic ini, siapa yang ketuai?
A: Yang mengetuai team forensik ini adalah Supt Amidon.

Q: Di bilik 1151, kamu telah dapatkan satu helai bulu, di unit 1152, kamu dapat satu duvet dan satu china silk carpet.
A: Ya.

Q: Sebelum pergi jauh bagaimana Encik boleh masuk ke dalam kedua-dua unit ini?
A: Saya masuk ke unit 1151 dan 1152 dengan meminta tuan punya rumah, iaitu Encik Hasanuddin.

Q: Boleh camkan?
A: Ya.

Q: Selepas rampas barang-barang ini, 3 item itu, apa yang kamu buat?
A: Saya telah tandatangan borang serah menyerah bersama dengan tuan punya rumah iaitu isteri kepada Encik Hasanuddin bernama Nor Sham.

Q: Di mana Encik Hasanuddin ketika itu?
A: Beliau juga berada di situ.

Q: Adakah ini Encik Hasanuddin?
A: Ya.

Q: Adakah ini tuan punya unit 1151 dan 1152?
A: Ya.

Encik Hasanuddin bin Abdul Hamid dicamkan.

Q: Encik beritahu ketiga-tiga item ini diberi kepada Encik oleh Supt. Amidon. Bagaimana dia kasi?
A: Beliau telah membungkus kesemua ketiga2 item ini.

Q: Ada kamu membuat menandatangani dokumen serah menyerah?
A: Ada.

Q: Saya ingin merujuk saksi kepada eksibit P43A dan P43. Cuba lihat.
A: Ini adalah…

Q: Ini dia memang kasi dalam envelope?
A: Ya. Ini adalah satu helai bulu.

Q: Adakah ini envelope dan kandungan yang kamu terima daripada Amidon pada hari itu?
A: Ya.

P43 Envelope marked “A”dan 43A, dan 43C dicamkan

Q: Sekarang saya mahu merujuk saksi kepada P49 dan 49A, carpet.
A: Ya, ini adalah bungkusan dan karpet yang saya terima daripada Supt Amidon yang diambil dari Unit 1152.

P49, Packaging marked “A1” dan P49A Multi-coloured carpet from packaging “A” di camkan

Q: Sekarang, cuba lihat P50 dan P50A.
A: Ya, ini adalah duvet yang telah dibungkus oleh Supt. Amidon.

Q: Untuk ketiga-tiga item ini, semasa diserahkan kepada kamu, kamu telah tandatangani dokumen serah-menyerah?
A: Ya.

Q: Di mana penyerahan itu telah dibuat?
A: Penyerahan itu telah dibuat di Unit 1152.

Q: Saya ingin merujuk saksi kepada P79. Ini borang apa, Encik Judy?
A: Ini adalah borang serah-menyerah barang kes antara Supt. Amidon dan saya.

Q: Encik ada beritahu, isteri Encik Hasanuddin pun ada tandatangan borang serah-menyerah? Itu antara dia dengan awak, atau dia dengan Amidon?
A: Saya dengan dia.

Q: Siapa yang rampas?
A: Supt Amidon.

Q: Kesemua barang-barang ini kemudiannya apa yang Jude lakukan?
A: Saya bawa semua barang-barang kes tersebut pulang ke pejabat dan saya telah masukkan dalam kabinet besi berkunci di pejabat saya di IPD Brickfields, dan kunci.

Q: Encik Jude, ada 12 specimens yang Encik beritahu telah terima daripada Dr. Siew, yang Encik cakap telah bawa balik dan simpan dalam peti besi?
A: Benar.

Q: Pada 29/6?
A: Ya.

Q: Apa yang Jude buat pada kedua belas-dua belas specimen ini?
A: Pada 30.6.2008 pada 9.00 pagi di pejabat saya, saya telah membuka peti besi, dan mengeluarkan beg plastic yang mengandungi barang-barang kes yang telah diterima daripada Dr Siew iaitu 12 spesimen-spesimen,untuk dibungkus dan dibuat penandaan.

Q: Menda tu dah seal dah, kenapa Encik keluarkan semula?
A: Saya keluarkan specimen-specimen itu,disebabkan saya hendak memeriksa dengan teliti sama ada barang-barang itu mempunyai seal yang in tact, dan saya juga hendak tandakan setiap satu barang sebabnya, Dr. Siew tidak membuat sebarang penandaan, hanya buat nombor sahaja iaitu 1-12.

Q: Ada label?
A: Ada label tetapi tiada tanda.

Q: Macam mana kamu tanda ini?
A: Saya tanda setiap barangan ini yang setiap satu specimen saya masukkan ke dalam satu envelope putih. Dan saya tandakan specimen ini dari B hingga B11.

Q: Buat penandaan pada container ke atau tidak?
A: Hanya pada envelope.

Q: Setiap specimen, Encik letak dalam satu envelope yang berasingan?
A: Ya.

Q: Dan apa yang Jude katakan tadi?
A: Saya tandakan sebagai B-B11.

Q: Selain daripada itu, ada apa lain yang Encik buat?
A: Saya telah sealkan setiap envelope itu.

Q: Selain daripada penandaan B-B11 itu, ada catitan lain yang dibuat?
A: Nama specimen itu, berdasarkan kepada nama specimen yang terkandung di dalam setiap specimen itu yang diserahkan.

Q: Adakah penandaan itu dibuat mengikut turutan seperti dalam borang?
A: Ya.

Q: Masa beritahu encik nak periksa sama ada seal itu intact, masa keluarkan itu, bagaimana keadaan seal pada container?
A: Setiap specimen yang saya telah lihat, seal nya adalah intact.

Q: Encik kata masukkan, tanda, pastikan nama dia, kemudian seal. Kamu sealkan dengan seal apa?
A: Saya sealkan dengan 330 Polis Diraja Malaysia.

Q: Kemudian apa yang Encik Jude buat?
A: Selepas saya tanda setiap specimen, masukkan ke dalam envelope B-B11, saya telah masukkan semua dalam cabinet yang saya telah kunci.

Q: Mula-mula saya mahu tunjukkan P27. Encik, adakah ini plastik lutsinar yang kamu katakan di mana barang-barang ini diletak semasa barang-barang ini diserahkan oleh Dr. Siew?
A: Ya, saya cam plastic ini, dan juga nama-nama specimen yang ditulis dalam pen biru, 1 hingga 12.

Q: Adakah Encik tandatangan di atas plastic ini?
A: Saya tidak buat sebarang tanda tangan di atas plastic beg ini.

Q: Kamu cam plastic ini kerana apa?
A: Saya cam kerana Institut Perubatan Forensik Negara Hospital, Kuala Lumpur dan juga nama-nama specimen yang ditulis oleh Dr. Siew.

P27, Plastic bag dari Jabatan Forensik HKL (yang digunakan untuk menyimpan semua sampel yang diambil) dicamkan.

Q: Saya ingin merujuk kepada eksibit P31 hingga P42. Cuba lihat sampul dulu. Adakah ini sampul surat-sampul surat bertanda yang kamu tandakan tersebut sebagai B-B11 yang diisi dengan 12 barang kes yang diterima daripada Dr Siew?
A: Ya, saya cam.

Q: Selain daripada itu? Itu tulisan kamu ke?
A: Tidak, ini bukan tulisan saya, ini adalah tulisan sarjan yang membantu saya untuk membungkus bersama saya. Saya tidak tandatangan, tetapi saya camkan berdasarkan tanda-tanda yang diletakkan B-B11 dan juga nama swab yang ditulis oleh Sarjan Mat yang membantu saya.

Q: Masa Sarjan menulis ini, atas seliaan Encik?
A: Di hadapan saya, bawah seliaan saya.

P31-P42 dicamkan.

Q: Boleh kamu keluarkan kandungan envelope-envelope itu? Saya ingin merujuk kepada kandungan envelope ini, iaitu yang telah ditanda sebagai P6A-L. Cuba lihat satu-satu. Awak bukak, pada itu tulis apa, dan dalam itu label sama tak?
A: Ok, saya lihat bekas di dalam envelope B1…(saksi ingin membuka)

MY: YA, pada peringkat ini, saya ingin mohon stand down sekejap sementara saksi ini melihat setiap satu, sama ada correspond dengan tandatangan dan ..
KS: We have no objection.
YA: Ok, tangguh sekejap.

[10.11] Stand down

[10.42]

Q: YA, tadi saya telah meminta supaya Encik melihat kepada setiap envelope dan kandungan masa kita berhenti rehat tadi. Pertama, ada kah kandungan P6A-L itu adalah barang-barang yang kamu terima daripada Dr. Siew pada malam 29hb 6 itu?
A: Ya.

Q: Adakah ini specimen yang ditandatangani oleh Dr. Siew dan Saiful?
A: Ya, kesemua specimen ini saya telah memeriksa dan sahkan ia mempunyai tandatangan.

Q: Maksud saya, adakah ini dokumen yang kamu lihat Dr. Siew dan Saiful tandatangan, dilabelkan dan diserah kan kepada kamu?
A: Ya, benar.

Q: P6-P6L, envelope B-B11, encik lihat adakah setiap envelope itu mengandungi specimen yang dinyatakan di luarnya? Label di dalam sama dengan yang dicatitkan di luar?
A: Ya.

Q: Saya merujuk saksi ini kepada P6E dan 6F. Tadi kamu dah periksa semuanya. Semua container ini ada 2 tandatangan? Ada tarikh juga, dan label?
A: Ya.

W: Bagi P6E dan 6F, cuba beritahu apa tarikh yang dicatit?
A: Tarikhnya adalah 26.8.08 untuk P6E.

Q: P6F?
A: Juga 26.8.2008.

Q: Boleh kamu sahkan ini yang kamu lihat di tandatangan dan diserahkan kepada kamu pada 29.6.2008?
A: Ya, ini yang diserahkan kepada saya pada 29.6 di Bilik Mawar.

Q: Dan diberi kepada kamu selepas sahaja pemeriksaan dibuat?
A: Ya.

Q: Sepanjang pengetahuan encik, berkaitan siasartan dakwaan Saiful, ada tak apa-apa eksibit diberikan pada tarikh 28.8.2008 atau tarikh2 yang lain?
A: Tiada.

Q: Boleh Encik beritahu, pada malam itu 29.6.08, ada 12 specimens telah diserahkan?
A: Ya.

Q: Termasuk dua specimens yang tercatit tarikh 28.8 itu?
A: Benar.

Q: Berkaitan specimen ini, kamu telah masukkan ke dalam envelope, kamu tandakan dan seal. Kamu juga labelkan apa kandungannya, kemudian apa yang kamu lakukan, adakah kamu hantar ke Jabatan Kimia?
A: Ya.

Q: Apabila hantar, pada siapa diserahkan?
A: Pada 30.6.08 jam 7.50 p.m saya telah hantar kesemua eksibit ke Jabatan Kimia Petaling Jaya.

Q: Kepada siapa kamu serahkan kesemua eksibit ini?
A: Kepada ahli kimia Dr. Seah Lay Hong.

Q: Dan Dr. Seah telah mengecam kamu tempoh hari?
A: Ya, dia telah mengecam saya.

Q: Bersama dengan specimen yang dihantar ini, ada kamu keluarkan POL 31?
A: Ya.

Q: Saya mohon supaya rujuk kepada eksibit P24. Adakah ini borang POL 31 tersebut yang kamu keluarkan?
A: Ya.

Q: Adakah kamu serahkan satu salinan kepada Dr. Seah?
A: Ya.

Q: Cuba rujuk m/s pertama P24, cuba rujuk tarikh?
A: Dicatitkan sebagai 28.8.2008.

Q: Hari yang encik pergi ke Jabatan Kimia tu sebenarnya bila?
A: 30 hb 6.

Q: Boleh beritahu saya, apakah tarikh ini (sambil merujuk kepada tarikh dalam P24)?
A: Sepatutnya ia adalah tarikh laporan dibuat.

Q: Dalam P3, tarikh laporan dibuat itu adalah bila? P3, tarikh aduan adalah tarikh laporan polis? Apa tarikhnya?
A: 28.6.2008

Q: Jadi, apa maksud Encik tentang tarikh itu?
A: Terdapat kesilapan YA. Sebenarnya adalah 28.6.08.

Q: Tarikh pada POL 31 ini sepatutnya merujuk kepada apa?
A: Tarikh report.

Q: Setelah kamu menyerahkan barang-barang kes kepada Dr Seah, adakah kamu menerima apa-apa akuan penerimaan daripada Jabatan Kimia?
A: Ya.

Q: Rujuk saksi kepada P30. Cuba lihat document tersebut.
A: Ya, ini adalah akuan penerimaan. Tarikh adalah 30.6.08, masa 7.55.

P30, Receipt from Chemist Department dated 30th June 2008 issued by Dr. Seah.dicamkan.

Q: Encik Jude beritahu telah diberikan specimen di hospital, di Bilik Mawar OSCC. Kemudian, Encik ada pergi ke Kondominium di unit 1151 dan 1152 mengambil barang-barang kes. Kemudian, ada juga ambil baju, seluar di rumah Saiful dan rumah teman wanitanya. Selain daripada eksibit ini, di Kondominium Damansara, ada apa-apa eksibit lain yang Encik ambil?
A: Pada 30.6.2008, pukul 11 malam saya telah terima satu HD di pejabat pengurusan dan saya juga telah terima satu HD dari guard house pada pukul 11.30.

Q: Ini En. Jude terima atau ambil?
A: Saya terima sahaja.

Q: Daripada siapa?
A: Terima daripada En. Aris iaitu pengurus kondo.

Q: Semasa menerima hard disk ini, di mana penyerahan di buat? Di pejabat pegurus atau di guard house?
A: Di pejabat.

Q: Siapa yang hadir selain daripada En. Aris?
A: Yang hadir semasa penyerahan adalah Supt. Fadzil, En. Zabri dan En. Shahrizuan.

Q: Mereka tlh camkan kamu tempoh hari?
A: Ya, mereka telah camkan saya.

Q: Semasa menerima hard disk 2 ini adakah borang serah menyerah dikeluarkan dan ditandatangani?
A: Ya, dikeluarkan borang serah menyerah dan saya dan en. Aris iaitu manager kondo tersebut telah tandatangan.

Q: Saya rujuk saksi kpd P76. Adakah ini borang yang kamu maksudkan?
A: Ya.

Q: Ini borang apa?
A: Ini borang serah menyerah sebuah hard disk jenama Sea Gate.

Q: Tapi ditulis disitu senarai pemerikaan?
A: Ya, sebenarnya ini adalah borang serah menyerah.

Q: Tajuk disitu “senarai pemeriksaan”?
A: Ini adalah rampasan sebenarnya.

Q: Jadi semasa kamu sebut borang serah menyerah inilah ianya?
A: Ya.

Q: Ini borang serah menyerah untuk hard disk dari mana?
A: Hard disk dari guard house.

Q: Ada naytakan butir-butir /hd itu ke dalam ini?
A: Ya. Ada disebutkan sebuah hard disk jenama Seagate dan no. sirinya.

Q: Saya rujuk saksi kepada P77. Boleh bagitau mahkamah apa dokumen ini?
A: Ini adalah juga senarai pemeriksaan.

Q: Untuk?
A: Untuk rampas sebuah hard disk.

Q: Di mana?
A: Di pejabat pengurus kondo.

Q: Ada dinayatakan nama model dan siri nombornya?
A: Ya, ada dinyatakan sebuah hard disk jenama Western Dingital dan serial numbernya.

Q: Dalam P77, ada tak tandatangan kamu dan En. Aris?
A: Ya, ada tandatangan saya dan En. Aris.

MY: YA, P76 dan P77 dicamkan sebgaai dokumen yang telah dikeluarkan berkaitan kedua-dua rampasan hard disk di guard house dan pejabat pengurusan Kondominium Desa Damansara.

Q: Apa yang kamu buat kepada kedua-dua hard disk ini?
A: Selepas saya menerima hard disk ini, saya telah balik ke pejabat dan kedua-dua hard disk disimpan di dalam cabinet besi dan dikunci.

Q: Ada buat apa-apa tandaan pada hard disk ini?
A: Ya, sya ada buat tandaan ke atas kedua-dua ini.

Q: Tanda apa?
A: Iaitu “HD1” ke atas hard disk di guard house dan “HD2” pada hard disk yang dirampas di pejabata pengurusan.

Q: Selain tandaan itu, ada apa-apa lagi yang kamu buat?
A: Saya telah catitkan tandatangan saya dan tarikh rampasan di atas hard disk tersebut.

MY: Saya merujuk saksi kepada P68C dan P67C. Itu kemudianlah.

Q: Selepas kamu simpan kedua-dua hard disk di dalam cabinet besi, ada apa-apa lagi yang kamu lakukan?
A: …

Q: Berkaitan eksibit-eksibit yang kamu ambil di Kondominium Desa Damansara seperti carpet dan duvet?
A: Pada 01.07.2008 jam 3.30 p.m. saya telah buka cabinet besi saya dan keluarkan eksibit-eksibit yang saya telah terima di kondo berkenaan dan buat tandaan iaitu sehelai bulu yang saya terima yg didapati di unit 11-5-1 saya telah masukkan dalam satu envelope yang saya tandakan “A” dan saya telah seal dengan seal Polis Di-Raja Malaysia 330. Satu Chinese silk carpet yang dijumpai di unit 11-5-2 saya juga telah  letakkan seal pdrm 330 pada bungkusan yang sama yang saya terima, yang Supt. Amidon rampas.

Q: Capet ini apa tanda?
A: Tanda “A1”.

Q: Kemudian?
A: Duvet saya tanda “A2” dan saya seal dengan cop PDRM 330. Satu seluar panjang warna hitam biru saya masukkan dalam sampul dan tandakan “A3”. Sehelai baju kemeja lengan panjang jenama Ralph Lauren warna biru juga saya telah masukkan dalam satu envelope yang saya tanda “A4” dan seal dengan PDRM 330. Seterusnya satu helai seluar dalam warna biru jenama Levi’s yg saya masukkan dalam envelope yang syaa tanda “A5” dan seal dengan Polis Di-Raja Malaysia 330. Seterusnya satu helai seluar dalam warna kelabu jenama Levi’s saya masukkan ke dalam enevelope “A6” dan seal dengan PDRM 330. Kemudiaannya satu helai baju lengan panjang warna hijau jenama G2000 saya masukkan ke dalam envelope yang saya tanda “A7” dan seal dengan Polis Di-Raja Malaysia 330.

Q: Semua eksibit A-A7 ini, ada dicatatkan kandungannya?
A: Ya, saya ada catatkan kandungan di luar envelope.

Q: Apa yg kamu buat setelah membungkus dan catatkan kandungannya dan seal?
A: Pada 4.45 petang, saya telah menyerahkan kesemua barangan yang saya tandakan tadi “A”-“A7” kepada Jabatan Kimia Malaysia.

Q: Kepada Jabatan Kimia Malaysia atau orang?
A: Kepada  Dr. Seah Lay Hong.

Q: Ada terima resit penerimaan?
A: Ya, saya telah terima satu akaun terima dari Dr. Seah Lahy Hong.

Q: Saya rujuk saksi kpd P51. Adakah ini resit penerimaan yg kamu terima dari Dr. Seah?
A: Benar, ini adalah surat akuan terima dari Dr. Seah Lay Hong.

P51 dicamkan.

Q: Slps itu, kita berbalik kepada hard disk tadi, P67C dan P68C. Saya mohon saksi melihat P68C dan P67C. Boleh camkan adakah ini kedua-dua hard disk yang kamu rampas atau ambil dari pejabat pengurusan dan guard house di Kondominium Desa Damansara?
A: Saya cam tandatangan dan tarikh yang telah saya buat pada hard disk “HD2” dan pada “HD1”.

Q: Tengok P76 dan P77, sama tak no siri dan modelnya?
A: Benar. Siri nombor adalah sama seperti mana P77 untuk “HD2”.

Q: P76?
A: No siri sama dengan yang ada dalam borang rampasan iaitu “HD1”.

Q: Selepas ambil kedua-dua hard disk, apa yang pihak kondo guna untuk ganti hard disk ini?
A: Supt. Fadzil telah uruskan supaya kedua-dua hard disk diklon.

Q: Apa tindakan kamu terhadap kedua-dua hard disk ini?
A: Saya telah membungkus kedua-dua hard disk ini.

Q: Pada 03.07.2008, ada kamu serahkan ini kepada C.Insp Fauziah di Makmal Forensic Polis Di-Raja Malaysia Cheras untuk dianalisa?
A: Ya, pada 10.15 pagi 03.07.2008 saya telah menyerahkan kedua-dua hard disk yang bertanda “HD1” dan “HD2” ini kepada C.Insp Fauziah.

Q: Ada kamu keluarkan borang serah menyerah dan tandatangan dengan Fauziah?
A: Ya, borang serah menyerah dikeluarkan dan ditandatangani oleh Pn. Fauziah dan saya.

Q: Saya rujuk saksi kepada P64. Adakah ini borang yang kamu maksudkan?
A: Ya, ini adalah borang serah menyerah.

P64 dicamkan sebagai borang serah menyerah untuk hard disk P67C dan P68C.

Q: Berkaitan dengan eksibit-eksibit yang telah kamu hantar kepada Dr. Seah iaitu specimen dan eksibit yang kamu hantar di mana berkaitan penerimaannya iaitu P51, adakah kamu menerimanya kembali daripada Dr. Seah bersama-sama laporan?
A: Pada 07.07.2008 pukul 11.30 pg, saya telah terima kesemua barangan tersebut yang saya  hantar kepada Dr. Seah pada 30.06.2088 iaitu “A-A7” dan “B- B11”.

Q: Adakah kamu juga terima laporan kimia berhubung 2 set eksibit ini?
A: Ya, saya telah terima satu laporan kimia berhubungkiat dnegan semua eksibit ini.

Q: Saya mohon supaya saksi dirujuk kepada P25.
A: Ini adalah laporan kimia yang saya terima daripada Dr. Seah Lay Hong.

Q: Itu adalah pada 07.07.2008?
A: Ya.

Q: Berkaitan dengan eksibit yang kamu terima daripada Amidon, apa yang kamu buat pada eksibit tersebut? Yang ambil di kondo di unit 11-5-1 dan 11-5-2?
A: Kesemua eksibit ini yang saya terima dari Dr. Seah Lay Hong…
MY: Bukan. Maksud saya eksibit dari kondo seperti bulu…

Q: Pada 16.07.2008, adakah kamu membuat tangkapan pada Dato’ Seri Anwar Ibrahim?
A: Ya, Supt.Taufik telah membuat tangkapan terhadap Dato’ Seri Anwar Ibrahim.

Q: Adakah waran tangkap dikeluarkan untuk tangkapan ini?
A: Ya, satu waran tangkap telah dikeluarkan.

Q: Bila waran tangkap dipohon dan dikeluarkan?
A: Saya memohon waran tangkap ini pada 15.07.2008. saya pohon rujuk pada ID saya. Pada 11.15 a.m. saya telah pergi ke mahkamah dan memohon waran tangkap.

Q: Mohon dan dapatkan waran tangkap?
A: Ya.

Q: Bila dilaksanakan?
A: Pada pukul 2.40 ptg. Minta maaf, waran ini dilaksanakn pada 16.07.2008 pada 2.40 petang.

Q: Dilaksanakan oleh Supt. Taufik?
A: Ya.

Q: Adakah kamu telah serahkan waran ini?
A: Ya, saya telah serahkan waran ini kepada beliau

Q: Pukul berapa?
A: lebih kurang pukul 2.15 kalau tak silap saya.

Q: Adakah ini Supt. Taufik yang kamu serahkan waran tersebut?
A: Ya, ini adalah Supt Taufik yang mana saya serahkan warrant of arrest.

Supt. Taufik dicamkan.

Q: Di mana kamu serahkan waran ini kepada beliau?
A: Di pejabat D9 di tingkat 7, IPK KL.

Q: Berapa salinan kamu perolehi dari mahkamah?
A: 3 salinan.

Q: Berapa salinan beri pada Taufik?
A: Ketiga-tiga salinan.

Q: Adakah kamu tahu sama ada waran telah dilaksanakan oleh Supt Taufik?
A: Ya, saya tahu.

Q: Bagaimana kamu tahu?
A: Saya lihat belaiu melaksanakan waran tangkap terhadap Dato’ Seri Anwar Ibrahim.

Q: Ada terima balik waran tangkap tersebut?
A: Ya, saya telah terima salinan asal waran tersebut.

Q: Di mana?
A: Juda di tingkat 7 di pejabat D9, IPK KL.

Q: Saya ingin merujuk saksi kepada 2 salinan kepada En. Jude. Cuba lihat apakah kedua-dua helai dokumen ini?
A: Kedua-dua dokumen ini adalah waran tangkap yang dilaksanakan terhadap Dato’ Seri Anwar Ibrahim.

Q: Adakah ini waran tangkap yang kamu pohon dari mahkamah Jalan Duta pada 11.15 pagi 15.07.2008 dan serahkan pada Taufik?
A: Ya, ini adalah waran tangkap yang saya pohon dari mahkamah dan serahkan kepada Supt. Taufik.

Q: Kamu terima dari mahkamah 3 salinan dan beri 3 salinan kepada Taufik. Berapa salinan yang kamu terima daripada Taufik?
A: 2 salinan.

Q: Cuba lihat belakang itu. Cuba bacakan apa yang tercatit di situ. Sebelum itu, itu  salah satu salinannya?
A: Salinan asal. [baca] Pada 16.07.2008 jam 2.40 petang saya Supt. G/10159 Ahmad Taufek bin Abdullah, telah menyempurnakan waran tangkap ini kepada Dato’ Seri Anwar Ibrahim K/P470810-07-5095 bertempat di Tingkat 7, IPK KL.

Q: Ada tandatangan?
A: Ada tandatangan Supt. Taufik dan Dato’ Seri Anwar Ibrahim.

Q: Bagaimana kamu tahu bahawa salah satu tandatangan itu adalah tandatangan Dato’ Seri Anwar Ibrahim?
A: Saya camkan.

Q: Kamu sudah biasa lihat?
A: Saya lihat semasa saya rakamkan percakapan beliau.

MY: Saya pohon waran tangkap ditanda P85. Ada 2 salinan, satu carbon copy. Untuk tujuan kemudahan, bolehkah kita tandakan P85A untuk yang ada catitan dibelakang dan P85B untuk carbon copy.
Q: Ada bertemu Dato’ Seri Anwar Ibrahim selepas tangkapan dibuat?
A: Ya, saya telah rakam percakapan Dato’ Seri Anwar Ibrahim.

Q: Pukul berapa kamu merakam percakapan beliau?
A: Saya telah rakam percakapan belaiu pada 16.07.2008 pada jam 2.45 petang.

MY: YA, mohon merujuk saksi kepada satu dokumen asal statement iaitu TWT1.

Q: Cuba lihat dari awal hingga akhir. Adakah ini rakaman percakapan yang dibuat ke atas Dato’ Seri Anwar Ibrahim pada hari itu?
A: Benar.

MY: Saya pohon eksibit ini ditanda sebagai P86.
KS:  YA, I would like it as an ID.
MY:  Ok, ID86.

Q: Sebelum merakamkan percakapan Dato’ Seri Anwar Ibrahim, ada beliau menanya mengapa beliau ada di situ?
A: Ya, beliau ada menanya mengapa beliau ada di situ.

Q: Apa jawapan kamu?
A: Saya beritahu pada Dato’ Seri Anwar Ibrahim beliau ada di sini kerana ada satu laporan terhadap beliau mengenai satu kejadian meliwat di kondo 11-5-1 oleh seorang lelaki Melayu.

Q: Ada kamu beritahu orang yang mengadu terhadap beliau?
A: Ada.

Q: Ada kamu beritahu di mana perkara itu dilakukan?
A: Ya, saya telah memberitahunya.

Q: Ada kamu beritahu tarikh dan masanya?
A: Ya.

Q: Pada waktu itu semasa merakam percakapan, adakah Dato’ Seri Anwar Ibrahim menyatakan kepada kamu dia tidak tahu kenapa dia ditangkap?
A: Tidak.

Q: Berapa lama rakaman percakapan itu dibuat?
A: Saya pohon rujuk pada ID. Pada  tarikh berkenaan iaitu 16.07.2008, saya telah selesai rakam rakaman percakapan beliau pada 5.45 petang.

Q: Semasa rakaman  percakapan dibuat ada siapa-siapa berada bersama kamu selain Dato’ Seri Anwar Ibrahim ?
A: Ya, ada peguam bernama Sivarasa semasa rakaman percakapan dibuat.

Q: Ada peguam ini mengadu atau menyatakan kepada kamu mereke tidak diberitahu mengapa Dato’ Seri Anwar Ibrahim ditangkap?
A: Tidak.

Q: Selepas tamat merakam percakapan, apa lagi tindakan yang kamu buat berkaitan siastan ini?
A: Saya pohon rujuk pada ID saya. Pada hari yg sama iaitu pada 16.07.2008, lebih kurang 8.30 petang saya telah membawa Dato’ Seri Anwar Ibrahim ke HKL untuk pemeriksaan medical.

Q: Apakah tujuan pemeriksaan itu dibuat?
A: Tujuan pemeriksaan dibuat adalah untuk beliau beri saya satu contoh darah.

Q: Siapa yg memeriksa Dato’ Seri Anwar Ibrahim?
A: Yg memeriksa ialah Datuk Dr. Jayendran.

Q: Ada doctor lain?
A: Dr. Ee Bun Leong.

Q: Selain daripada Dato’ Seri Anwar Ibrahim, doctor-doktor tersebut dan kamu, siapa lagi yang pergi ke sana?
A: Peguam iaitu En.Sivarasa.

Q: Adakah Dato’ Seri Anwar Ibrahim memberi contoh darah seperti yang dikehendaki oleh kamu?
A: Tidak.

Q: Ada apa-apa sebab dia berithau mengapa tidak mahu beri?
A: Dia member sebab menyatakan perkara sama akan berlaku seperti mana yang berlaku pada 1998.

Q: Kamu tahu apa yang berlaku pada 1998?
A: Tidak.

Q: Ini dinyatakan atas kehendaknya sendiri atau dinasihatkan oleh sesiapa?
A: Saya lihat beliau ada berhubung dengan seorang peguam dengan menggunakan telefon. Sebaik selepas itu beliau memberitahu doctor beliau tidak mahu memberikan.

Q: Bagaimana dengan Sivarasa?
A: Sivarasa telah berbincang dengan Dato’ Seri Anwar Ibrahim juga.

Q: Ada kamu dengar sama ada Sivarasa memberi nasihat?
A: Tidak, saya tidak dengar.

Q: Tapi kamu katakan selepas berhiubung dengan telefon dia katakan tidak.
A: Ya.

Q: Kamu tahu pada masa itu siapa yang beliau hubungi?
A: Tidak tahu.

Q: Selepas pemeriksaan, ke mana Dato’ Seri Anwar Ibrahim di bawa?
A: Sebaik selepas pemeriksaan lebih kurang 10.25 malam Dato’ Seri Anwar Ibrahim telah di escort semula balik ke IPK di pejabat D9, IPK KL.

Q: Dan?
A: Selepas bawa balik, beliau hendak jumpa beberapa orang di bilik mesyuarat di tingkat 7 itudan setelah beliau berjumpa beberapa orang lebih kurang 11.05 malam, saya bersama-sama DSP Yahya telah escort Dato’ Seri Anwar Ibrahim untuk ditahan di lokap.

Q: Adakah kamu bawa Dato’ Seri Anwar Ibrahim ke lokap?
A: Ya.

Q: Semasa dia ke lokap, adakah dia membawa apa-apa barang lain?
A: Saya lihat beliau telah membawa satu botol air mineral.

Q: Ingat jenisnya?
A: Tak ingat sangat, tapi saya lihat dia bawak botol air mineral Cactus.

Q: Bawa ke dalam lokap?
A: Ya.

Q: Ada beliau ditempatkamn ke dalam sel?
A: Saya tak lihat ke mana botol itu dibawa tapi ke dalam lokap. Saya tak nampak beliau bawa ke dalam sel.

Q: Pada 17.07.2008 jam lebih kurang 12.40 ptg…sebelum itu kamu tahan Dato’ Seri Anwar Ibrahim dlm lokap. Kenapa tak lepaskan memandangkan dah habis rekod statement.
A: Saya menahan beliau lagi kerana siasatan saya belum selesai dan selepas balik dari hospital saya ada beberapa soalan kepada beliau oleh itu telah menahan beliau di dalam lokap.

Q: Pukul berapa kamu tahan dia dalam lokap?
A: Pukul 11.05 mlm.

Q: Kenapa tak rekod malam itu juga?
A: Disebabkan sudah lewat dan ada arahn supaya tidak merakam percakapan pada waktu malam.

Q: Arahan IGP atau lock-up rules?
A: Lock-up rules.

Q: Bila Dato’ Seri Anwar Ibrahim dibebaskan?
A: Saya rujuk pada ID saya.

Q: Adakah pada malam itu atau esoknya?
A: Keesokan harinya, 17.07.2008.

Q: Pukul berapa?
A: Pada pukul 9.30 pagi.

Q: Kamu beritahu kamu menahannya lagi kerana kamu ada perkara hendak ditanya. Ada kamu rakam lagi percakapan beliau pada 17.07.2008 pagi?
A: Ya, pada pukul 8.35 pagi saya telah sambung rakaman percakapan beliau.
Q: Sambungan rakaman percakapan ini berkaitan dengan apa?
A: Berkaitan dengan keengganan beliau member darah kepada saya.

Q: Berkenaan pemeriksaan di hospital?
A: Ya.

Q: Pukul berapa tamat rakaman percakapan?
A: Rakaman percakapan tamat lebih kurang 9.20 pagi.

Q: Pada hari yang sama 17.07.2008 lebih kurang 12.40 petang, ada terima apa-apa barang dari Supt. Amidon?
A: Pada 12.40 petang 17.07.2008, saya telah terima daripada Supt. Amidon…saya rujuk pada ID…satu helai bulu, sebatang berus gigi warna putih, sehelai tuala Good Morning dan sebotol air minuman jenama Cactus 500 ml..

Q: Kamu terima barang ini bagaimana?
A: Dia ada bungkus.

Q: Jadi yang kamu terima barangan atau bungkusan?
A: Bungkusan.

Q: Bungkusan tersebut mengandungi bulu, berus gigi, Good Morning towel dan botol air?
A: Ya.

Q: Bagaimana kamu tahu?
A: Ada catatan pada envelope.

Q: Ada tandaan pada envelope?
A: Tiada tanda.

Q: Selepas kamu menerima, ada keluarkan boring penerimaan dan tandatangan bersama Amidon?
A: Ya.

Q: Saya rujuk saksi kepada P80. Cuba beritahu mahkamah adakah ini borang serah menyerah akuan terimaan yang kamu keluarkan dan tandatangan bersama Amidon berkaitan 4 barang yang kamu sebut tadi?
A: Ya, ini borang serah menyerah yang saya tandatangan dengan Amidon yang mengandungi sehelai bulu di atas lantai di tanda dengan “4”, sebatang berus gigi warna putih di atas lantai ditanda “5”, sehelai tuala warna putih jenama good morning di atas lantai ditanda “6” dan sebotol air mineral jenama Cactus di atas tembok tandas ditanda “7”.

Q: Jadi ada tandalah?
A: Ya.

Q: Saya ingin rujuk saksi kepada ID57 dan kandungannya ID57A. Envelope sahaja. ID58, ID59 dan ID61. Adakah ini envelope yang kamu terima bertanda “4”, “5”, “6” dan “7” yang kemudiannya kamu keluarkan borang serah menyerah yang kamu terima dari Supt. Amidon pada 17.07.2008 jam 12.40 petang?
A: Benar.

MY:  Saya mohon envelope-envelope ini ditandakan sebagai P. Envelope sahaja.
YA: P57, P58, P59,P61.

Q: Di mana Supt. Amidon menyerahkan envelope ini?
A: Di IPK, di tingkat 7, pejabat D9, IPK KL.

Q: Semasa kamu terima envelope-envelope ini, ada seal di envelope?
A: Ya, ada seal Forensik.

Q: Pada ketika itu, adakah seal ini intact, baik?
A: Ya.

Q: Apa yg kamu buat kepada keempat-empat sampul ini yang mengandiungi eksibit yang dicatatkan?

MY:  Sebelum itu, izinkan saya meminta saksi ini menyatakan apa yang tertulis pada envelope-envelope tersebut?

Q: Pada P57, apa catitan di atasnya?
A: P57 dicatitkan sebagai sehelai bulu di atas lantai.

Q: P58?
A: Sebatang berus gigi warna putih di atas lantai.

Q: P59?
A: Seheiai tuala warna putih jenama Good Morning dia ats lantai.

Q: P61?
A: Satu botol air mineral jenama Cactus.

Q: Keempat-empat exhibit ini, P57, P58, P59 dan P61, apa yang kamu buat terhadap kemepat-empat ini?
A: Saya juga telah meletakkan tanda saya iaitu “D”, “D1”, “D2” dan “D3”.

Q: “D” untuk enveople apa?
A: “D” adalah untuk envelope yang mengandungi sehelai bulu di atas lantai. “D1” adalah sebatang berus gigi warna putih, “D2” adalah sehelai tuala berwarna putih jenama Good Morning dan “D3” ialah satu botol air mineral jenama Cactus.

Q: Kemudian?
A: Barang-barang ini saya bawa balik ke pejabat dan seterusnya pafda 3.25 petang saya telah menyimpan barang-barang ini ke dalam cabinet besi saya. Pada 6.50 petang saya telah keluarkan barang-barang ini dari cabinet besi saya dan saya bawa empat barangan kes ini kepada ahli kimia, Puan Siti Aidora di Jabatan Kimia Malaysia.

Q: Siti Aidora ini adakah ahli kimia yang telah camkan kamu tempoh hari?
A: Ya.

Q: Jadi, kamu serahkan keempat-empat envelope yang diberikan oleh Supt. Amidon kepada Siti Aidora hari itu tanpa apa-apa bungkusan?
A: Tiada.

Q: Kamu ada letak seal pada envelope?
A: Ya, syaa letak seal saya pada setiap barang.

Q: Kamu ada letak seal kamu?
A: Ya, seal PDRM.

Q: Seal Amidon?
A: Ya. Seal Forensic.

Q: Apablia kamu serahkan, adakah kamu menerima resit penerimaan daripada Siti Aidora?
A: Ya, ada resit penerimaan.

Q: Rujuk saksi kpd P55. Adaakah ini resit penerimaan keempat-empat envelope yang mengandungi barang-barang yang kamu nayatakan tadi?
A: Ya, ini adalah akuan penerimaan yang saya terima dari Nur Aidora, ahli kimia.

P55 dicamkan.
Q: Adakah kamu menerima semula eksibit-eksibit yang kamu serahkan pada Siti Aidora ini?
A: Saya minta rujuk ID saya semula. Pada 22.07.2008, jam 2.15 ptg, saya telah menerima envelope-envelope ini semua yang saya tanda sebagai “D”-“D3” dari Puan Siti Aidora, ahli kimia.

Q: Dan juga?
A: Laporan kimia.

Q: Saya pohon ID 62 dirujuk untuk tujuan penegcaman. Adakah ini laporan kimia yang kamu terima bersama eksibit-eksibit itu daripada Siti Aidora?
A: Benar.

Q: Kamu terima pada pukul berapa laporan kimia ini?
A: Jam 2.15 ptg pada 22.07.2008.

Q: Selepas kamu terima barang ini dari Puan Nur aidora adakah kamu simpan?
A: Saya simpan semua barang ini dalam peti besi dan saya kunci.

Q: Pada 24.09.2008 jam lebih kurang, adakah kamu menerima apa-apa barang daripada bahagian Forensic PDRM?
A: Ya. Saya menerima 2 buah hard disk yang saya tandakan “HD1” dan “HD2” dari C.Insp Fauziah dari bahagian Forensik PDRM

Q: Adakah ini hard disk yang kamu serahkan sebelum ini?
A: Ya, hard disk yang sama.

Q: Adakah Puan Fauziah yang kamu maksudkan?
A: Ya.

C.Insp Fauziah dicamkan.

Q: Untuk tujuan ini adakah borang serah menyerah dikeluarkan?
A: Ya.

Q: Adakah kamu dan Fauzian tandatangani?
A: Ya.

Q: Saya rujuk saksi kepada P69. Cuba lihat adakah ini borang serah menyerah “HD1” dan “HD2” yang diserahkan kepada kamu dan kamu terima pada hari itu?
A: Ya.

P69 dicamkan.

Q: Di mana kamu simpan kedua-dua hard disk ini?
A: Kedua-dua hard disk ini saya simpan di dalam cabinet besi saya di pejabat saya.

Q: Berkenaan hard disk adakah kamu melihat rakaman di dalamnya?
A: Pada 9.30 pagi 05.07.2008 saya telah lihat rakaman bersama-sama dengan C.Insp Fauziah.

Q: Rakaman daripada kedua-dua hard disk?
A: Ya.

Q: Kamu tahu sama ada diskdimainkan itu adalah disk yang kamu berikan kepadsa C.Insp. Fauziah atau disk lain? 
A: Saya tak tahu.

Q: Apa tujuan kamu pergi menonton rakaman?
A: Tujuan saya adalah untuk saya lihat siapakah yang masuk ke dalam kondo dan juga lif dan seterusnya ke tingkat 5 tempat kejadia pada 26.06.2008 di antara pukul 12.00-6.00 ptg.

Q: Adakah siapa-siapa individu di dalam rakaman itu yang kamu boleh cam?
A: Pengadu dalam kes ini.

Q: Selain daripada itu?
A: Saya juga camkan Dato’ Seri Anwar Ibrahim.

Q: Ada camkan orang lain?
A: Saya juga camkan beberapa orang yang lain.

Q: Beberapa orang?
A: Ada 5 orang selain Dato’ Seri Anwar Ibrahim dan pengadu.

Q: Bila saya kata camkan maksudnya yang kamu tengok saja kamu boleh tahu. Ada 5 orang kamu boleh camkan?
A: 5 orang.

Q: Bagaimana kamu cam? Kamu kenal mereka sebelum ini?
A: Saya hanya kenal 1 orang dan yang lain saya camkan bila mainkan rakaman tersebut.

Q: Kenal mereka?
A: Tak kenal.

Q: Pernah jumpa mereka sebelum itu?
A: Tak pernah jumpa.

Q: Kamu tahu nama?
A: Saya tahu nama mereka.

Q: Selain dari itu, apa yang kamu lihat?
A: Saya juga lihat pada kenderaan yang masuk.

Q: Ada kamu target kenderaan-kenderaan tertentu untuk disiasat?
A: Ya.

Q: Boleh kamu beritahu apakah nombor kenderaan yang kamu kenalpasti untuk siasat lanjut?
A: WMK 6, WPK 5925, WND 1173 (Perdana), BHA 5476 (Honda Accord), WNK 6238 (Toyota Harrier) dan DAE 5 dan WNK 5251.

Q: Bagi kesemua kereta ini ada semak dengan JPJ siapakah pemilik berdaftar?
A: Ada.

Q: Boleh beritahu mahkamah yang mulia ini nama pemilik berdaftar bagi kenderaan—kenderaan ini?
A: WND 1173 (Perdana) – Malaysian Institute of Economic Research;
BHA 5476 (Honda Accord) – Nik Mahmood b. Nik Hassan;
WMK 6 (MG Rover) – Dato’ Seri Anwar Ibrahim;
WNK 6236 – Omar b. Malek Ali Merican, Chief Operating Officer of Bursa Malaysia;
DAE 5 – Dato’ Nik Mohd Sidek;
WMK 5251 – Deutsch Bank;
WPK 5925 – En. Zaki.

Q: Adakah kamu kesan dan rakam percakapan mereka semua ini?
A: Ya.

Q: Daripada beberpaa nama ini, siapa yang kamu sendiri rakam percakapan?
A: Daripada semua penama yang saya beri saya telah rakamkan percakapan Prof . Datuk Dr. Mohamed Ariff.

Q: Dia guna kereta apa mengikut siasatan kamu?
A: Beliau tekah menggunakan kereta WND 1173  Jenis perdana Hitam.

Q: Individu yang lain siapa yang rakam percakapan?
A: [] dan []

Q: Boleh camkan Prof Ariff jika ditunjukkan kepada kamu?
A: Ya. Ini adalah Prof Datuk Dr.Ohamed Ariff b. Addul Kareem.

Q: Yang menggunakan kereta?
A: Yang menggunakan kereta WND 1173.

Q: Adakah imej Prof Ariff ada di dalam rakaman?
A: Ada.

Q: Apa imej yang kamu camkan tadi?
A: Pengadu, Dato’ Seri Anwar Ibrahim, dan Prof. Datuk Mohamed Ariff.

Q: Imej En Hasanudin ada dalam rakaaman?
A: Ya.

Q: Yang empat orang ini kamu pasti ada dalam rakaman itu?
A: Ya, saya pasti.

MY:  Just to confirm, nak mainkan rakaman sekejap yang menunjukkan imej Prof. Ariff, Dato’ Seri Anwar Ibrahim, pengadu, dan En. Hasanudin. Lepas tu dah habis my examination in chief.
YA: Ok, do it.

Q: Jika tunjukkan rakaman, boleh cam?
A: Ya.

YA:  This part dah dibuat gambar, kan?
MY: Ya, dah buat gambar.
YA: So, why we need to go into this?
MY: Saya terlupa ada gambar.

Q: Still photos untuk rakaman yang kamu kenal pasti dengan Fauziah, adakah dibuat?
A: Ya, dibuat.

Q: Saya rujuk saksi kepada P71. Lihat dalam gambar ini imej siapa yang kamu boleh cam?
A: Imej Datuk Dr. Ariff dan En. Hasanudin.

Q: Gambar apa itu?
A: Dalam lif.

Q: Gambar apa itu?

YA: Gambar mark apa dalam P71 ini?

Q: Gambar siapa yang kamu boleh cam?
A: Gambar Dato’ Seri Anwar Ibrahim di lif.

Q: Ditandakan sebagai apa?
A: D, E, F, G, H, I, J, K, L, dan M adalah Dato’ Seri Anwar Ibrahim dan juga En,. Hasanudin.

Q: Gambar L dan M adalah gambar Dato’ Seri Anwar Ibrahim dan En. Hasanudin?
A: Dan N dan O, gambar yg sama. Dan P dan Q adalah sama. Gambar Dato’ Seri Anwar Ibrahim dan En. Hasanudin.

Q: Saya rujuk saksi kpd P5. Boleh cam gambar siapa di situ?
A: C, C1 adalah Mohd Saiful Bukhari. D, D1, E, E1, F, F1 adalah Mohd Saiful. G dan G1 saya tak cam.

Q: Dalam itu ada gambar Saiful?
A: Ya.

Q: Saya rujuk saksi kepada P75. Boleh cam gambar siapa dalam itu?
A: Saya cam A dan B ialah Prof Datuk Mohamed Ariff dan En. Hasanudin, C juga, E&F juga sama.  G, H, I, J, K, L, M, N, O, P, Q, R hanya Prof. Datuk Mohamed Arif.

MY: Ya, pada peringkat ini saya tiada soalan lain cuma saya ingin membawa perhatian YA kepada ID86. Sebenarnya apa yang ingin saya kemukakan untuk tujuan rekod ialah 4 muka surat pertama, tidak termasuk actual statement.
YA:  Sama sepert TWT dulu? Pages yang sama?  
MY:  Ya. Sebab yang lain tu content and we are not []/
YA:  It is still ID, kan?
MY: Yes, ID. 
YA: Cross?
KS:  It remains as ID. We are objecting to it.
YA: Yes, they are putting it as ID. So, cross?
KS: We need some times. Perhaps tomorrow moring?
YA: No. We start at 2.30 p.m.
KS: Tomorrow morning if possible, YA.
YA: 2.30 p.m. la. How long? Tomorrow is Firday. So we start petang ini and if tak habis…
KS: I can finish it in the morning. But for now I have certain things to discuss with my learned friend.
YA: Never mind. Start at 2.30 p.m.
[12.11 p.m.] Stand down.

Pihak-pihak masuk ke dalam Kamar Hakim.
Pihak-pihak keluar dari Kamar Hakim.

Kes ditetapkan untuk sambung bicara pada esok hari, 11 Mac 2011.

Anwar Ibrahim Sodomy II – The Recorded Truth – 9 Mac 2011 March 12, 2011

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Sodomy II.
Tags: , ,
5 comments

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

Pihak-pihak:
PP: Semua hadir
PB: KS, SN, Datuk Param Cumaraswamy
AI hadir.

[9.04]
MY:    YA, kes untuk sambung bicara. Pendakwaan akan memanggil saksi kami yang ke 22.

SP22: Ahmad Humaizi bin Awang
SP22 angkat sumpah dalam Bahasa Melayu.
Ketua Unit Rekod di bahagian Pendaftaran JPJ, Kuala Lumpur, berumur 34 tahun.

EIC SP22 oleh Tuan Hanafiah

Q:    Sejak bila Encik bertugas sebagai Ketua Unit Rekod JPJ KL?
A:    2004.

Q:    Apakah peranan anda sebagai Ketua Unit Rekod?
A:    Bertanggungjawab ke atas rekod-rekod dan fail kenderaan yang di daftarkan di JPJ KL.

Q:    Adakah Encik juga bertanggungjawab bagi urusan pengendalian komputer di JPJ KL?
A:    Ya.

Q:    Komputer tersebut adakah dalam perjalanan penggunaan biasa di JPJ?
A:    Ya.

Q:    Boleh anda beritahu berkenaan dengan pemilikan dan penggunaan sesuatu kenderaan di Malaysia? Apakah keperluan bagi seseorang yang hendak mengguna atau memiliki sesuatu kenderaan di Malaysia pada

pengetahuan anda?
A:    Untuk kenderaan yang digunakan di Malaysia, kenderaan tersebut mestilah dilesenkan di JPJ KL dan apabila dilesenkan, pihak JPJ akan mengeluarkan satu nombor pendaftaran kenderaan.

Q:    Nombor pendaftaran kenderaan ini adakah JPJ akan simpan rekod daftar?
A:    Ya.

Q:    Ada undang-undang yang digunakan untuk JPJ menyimpan rekod daftar kenderaan yang didaftarkan?
A:    Ya.

Q:    Itu untuk pendaftaran baru?
A:    Ya.

Q:    Sekiranya sesiapa mahu tukar milik kenderaan tersebut, apa keperluannya?
A:    Perlu diisi borang pertukaran hak milik iaitu borang JPJ A3 di antara pemilik lama dan pemilik baru.

Q:    Berkenaan dengan nombor pendaftaran kenderaan tersebut,  adakah keperluan untuk diperagakan dan dipamerkan pada kenderaan?
A:    Benar.

Q:    Di bahagian depan dan belakang?
A:    Ya.

Q:    Semasa Encik bertugas sebagai Ketua Unit Rekod JPJ Kuala Lumpur, adakah Encik boleh akses kepada pendaftaran kereta bagi negeri Selangor dan Kelantan?
A:    Ya, untuk makluman, system JPJ boleh akses kepada satu negeri, untuk satu Malaysia.

Q:    Ada Encik membawa rekod untuk nombor kenderaan?
A:    Ya, saya ada bawa rekod daripada sistem kenderaan.

Q:    Boleh rujuk kepada nombor pendaftaran WMK 6?
A:    Ya.

Q:    Boleh Encik beritahu kepada siapa nombor ini didaftarkan?
A:    Berdasarkan rekod JPJ, kenderaan ini didaftarkan atas penama Anwar bin Ibrahim.

Q:    Nombor pengenalan beliau?
A:    470810-07-5095.

Q:    Apakah jenis kenderaan tersebut?
A:    Audi Wald WAA6 (A).

Q:    Warna?
A:    Biru.

Q:    Adakah berlaku pertukaran hak milik selepas didaftarkan? Sebelum itu, bila kenderaan ini didaftarkan?
A:    Pada 25.7.2008.

Q:    Berlaku pertukaran hak milik selepas didaftarkan?
A:    Berdasarkan rekod JPJ, tiada. Hanya seorang penama sahaja.

Q:    Kenderaan WMK 6, sebelum itu adakah diberi nomber pendaftaran lain?
A:    Sebelum ini, nombor pendaftaran kenderaan ini bernombor WRQ 2741.

Q:    Bila pertukaran nombor pendaftaran ini berlaku?
A:    Proses pertukaran nombor pendaftaran berlaku pada 25.7.2008.

Q:    Jadi, nombor WMK 6 ini sebelum itu didaftarkan ke atas kenderaan jenis apa?
A:    Jenis MG Rovers model 75U86A berwarna hitam.

Q:    Milik siapa kenderaan ini?
A:    Anwar bin Ibrahim.

Q:    Ada Encik bawa rekod untuk WPK 5925?
A:    Ya.

Q:    Siapakah pemilik berdaftar kenderaan tersebut?
A:    Mohd Zaki bin Muhammad, no. kad pengenalan: 540903-11-5181.

Q:    Bila ia didaftarkan?
A:    10.7.1997

Q:    Apakah jenis dan buatan kereta serta warna kereta ini?
A:    Fiat Ulysse, warna merah.

Q:    Berlaku pertukaran hak milik selepas didaftarkan?
A:    Mempunyai beberapa pemilikan sebelum Mohd Zaki iaitu 3 pemilik.

Q:    Selepas 10.7.1997?
A:    Pada 10.7.1997 dimiliki oleh Encik Zulkifli bin Zainal Abidin sehingga 23.11.1999. Pada 23.11.1999 kenderaan ini dimiliki oleh Encik Zaki bin Mohd.

Q:    Ada lagi pertukaran milik selepas itu?
A:    Syaridah Hamisah binti Jaafar, bermula pada 11.9.2006.

Q:    Ada lagi pertukaran hak milik selepas itu?
A:    Pada 20.9.06, kepada pemilik sekarang iaitu Mohd Zaki bin Muhammad.

Q:    Ada Encik bawa rekod untuk kenderaan bernombor WND 1173 hari ini?
A:    Ada.

Q:    Siapa pemilik  berdaftar bagi kenderaan tersebut?
A:    Malaysian Institute of Economic Research.

Q:    Bila didaftar?
A:    28.7.2005

Q:    Apakah jenis buatan, model dan warna kenderaan ini?
A:    Proton Perdana V6 Automatik, warna maroon.

Q:    Selepas itu, ada pertukaran hak milik?
A:    Tiada.

Q:    Ada Encik bawa rekod untuk WNK6238?
A:    Ya. Pemilik berdaftar ialah Omar bin Malek Ali Merican, kad pengenalan 590328-10-6793.

Q:    Bilakah ianya didaftarkan?
A:    20.10.2005

Q:    Apakah jenis, buatan, model dan warna kenderaan tersebut?
A:    Toyota Harrier MCU36(A), warna hitam.

Q:    Selepas didaftarkan, ada berlaku pertukaran hak milik?
A:    Tiada.

Q:    Ada Encik bawa rekod kenderaan WMK5251?
A:    Ada. Pemilik berdaftar ialah Chan Wai Hung, nombor kad pengenalan  620403-10-6553.

Q:    Bilakah tarikh pendaftaran?
A:    30.12.2004.

Q:    Apakah jenis model dan buatan?
A:    Buatan BMW, 525 I (A), warna biru.

Q:    Adakah berlaku apa-apa pertukaran hak milik selepas ianya didaftarkan?
A:    Ada satu pemilikan sebelumnya iaitu [] Bank Malaysian Berhad.

Q:    Bila tarikh milikannya?
A:    Pada 30.12.2004 sehingga 8.12.2010.

Q:    Dan bila didaftar atas nama Chan Wai Hong?
A:    Pada 8.12.2010 sehingga sekarang.

Q:    Bawa rekod untuk DAE 5?
A:    Ada. Pemilik berdaftar adalah Nik Mohd Sidek bin Nik Abu Bakar, kad pengenalan 430325-03-5093.

Q:    Bilakah ianya didaftarkan?
A:    17.9.1997.

Q:    Buatan dan model?
A:    Porsche Boxter berwarna perak.

Q:    Adakah berlaku pertukaran hak milik selepas pendaftaran kenderaan ini?
A:    Tiada.

Q:    Ada bawa rekod untuk kenderaan BHA 5476?
A:    Ada. Pemilik berdaftar adalah Ching Thiam Soon. Kad pengenalan 880714-10-5575.

Q:    Tarikh pendaftaran kenderaan itu?
A:    12/12/2003

Q:    Buatan dan model?
A:    Honda Accord 2.4L I-VTEC, berwarna emas.

Q:    Apakah berlaku pertukaran hak milik selepas ianya didaftarkan?
A:    Terdapat pemilik lain sebelum penama di atas, iaitu di atas nama Nik Mahmud bin Nik Hassan.

Q:    Bila kenderaan tersebut didaftarkan atas nama Nik Mahmud?
A:    Bermula tarikh 12.12.2003 sehingga 27.12.2010.

Q:    Bila ia ditukarkan kepada hak milik Ching Thiam Soon?
A:    Kenderaan ini ditukar hak milik kepada Ching Thiam Soon pada 27.12.2010.

Q:    Ada berlaku pertukaran hak milik selepas itu?
A:    Tiada.

MH:    Itu sahaja soalan pihak pendakwa.

KS:    Tiada soalan untuk cross.

MY:    Seterusnya, pihak pendakwaan akan  memanggil Doktor Razuin sebagai SP 23.

SP 23: Doktor Razuin binti Rahimi,
Forensic Pathologist at Hospital Sungai Buluh, age 37 years old.
SP 23 angkat sumpah dalam Bahasa Inggeris.

Q:    What are you at Hospital Sungai Buluh.
A:    Forensic pathologist.

Q:    When did you join Hospital Sungai Buluh?
A:    Since June 2010.

Q:    Prior to that?
A:    Prior that, I was attached to University Malaya Medical Center and Hospital Kuala Lumpur

Q:    Your designation?
A:    Master medical officer.

Q:    In June 2008, were you at HKL?
A:    Yes.

Q:    Can you tell the court what were your duties in HKL in July 2008?
A:    I was a medical officer attached to the department of forensic medicine.

Q:    What were you do as a medical officer?
A:    So we do our core business which is most of the time, post mortem examination.

Q:    28 June, where were you around 6 pm?
A:    I was at home.

Q:    Were you at that time, received information or anything from the hospital?
A:    Yes.

Q:    What was informed to you and by whom?
A:    I was informed by a medical officer in Emergency Department of HKL about an alleged sodomy case.

Q:    Were you told who was involved?
A:    At that time, during the telephone call, I was only informed that it involved a well known political figure in the country.

Q:    Was any name mentioned then?
A:    At that time, no.

Q:    Exactly, what time did you received the call?
A:    I received the call twice from the emergency. First, around 3.30 p.m, the second one was around 7.30pm.

Q:    What was the call at 3.30 pm were about?
A:    At that time, they informed me about an alleged sodomy case, however to my understanding at that time, the police report has not being lodged. So my advice to them was to lodge a police report first.

Q:    After you have been informed around 7.30 pm, about this case and then a well known personality was involved, then what did you do?
A:    I called the specialist in charge which was Dr. Siew Sheue Feng.

Q:    After that?
A:    He asked me to come to HKL first.

Q:    Any particular place in the Hospital he asked you to come to?
A:    I went to OSCC at Emergency Department.

Q:    Roughly what time did you arrive at OSCC?
A:    Approximately at 8.30 p.m.

Q:    Upon arrival, did you meet anybody there?
A:    Yes, DSP Jude Pereirra.

Q:    Can you identify him? Is this DSP Jude that you mentioned just now?
A:    Yes.

DSP Jude dicamkan.

Q:    Did anything transpired between both of you?
A:    Yes, he briefed me about the case.

Q:    Roughly what did he brief you?
A:    He informed me that this is an alleged sodomy case involving Mohd Saiful Bukhari bin Azlan and DSAI.

Q:    Was this Saiful present at that time?
A:    When DSP Jude briefed me, he wasn’t present.

Q:    Did you at any time see him? I mean Saiful?
A:    After that, DSP Jude introduced him to me.

Q:    After being introduced to Mohd Saiful, what did you do?
A:    Then I informed DSP Jude that I will take history from Saiful.

Q:    Can you identify him?
A:    Yes.

Saiful Bukhari bin Azlan dicamkan.

Q:    You said you informed Jude that you want to take the history from Saiful. Did you proceed to do that? Where?
A:    Yes, in the OSCC room.

Q:    Briefly, what Saiful told you in the course of history taking with regard to this allegation?
A:    I was informed that he has been sodomised by DSAI a few times. And the latest incident took place on 26.6.08 at approximately 3.15 pm at Kondominium Desa Damansara.

KS:    At this stage, we object to the evidence given in the earlier instance YA. In fact, the report had been expunged with regard to that.
MY:    YA, if I may, let the witness say and YA can exclude after that because this is what had been told to her. She cannot change that.

KS:    But the word had been expunged and it is admissible. I think that is elementary.
YA:    Just expunge the word ‘few times’.
KS:    I mean now, YA. Not later.
YA:    Yes, it is excluded.

Q:    What else he told you? Was he a willing partner?
A:    No he was not.

Q:    What did he tell you actually? Did he consent to it or what?
A:    He said he did not consent to it.

Q:    Then? Just tell whatever important that he told you with regard to the allegation.
A:    So basically he informed me about the incident that took place on 26.6.2008. So he was [] by DSAI and even though he was unwilling but it still occurred and I asked him about the intercourse basically for i.e. whether

there was penetration, oral sex, lubricant used such things.

Q:    What did he tell you? Was there any penetration?
A:    Yes there was.

Q:    Was there any ejaculation?
A:    Yes.

Q:    Was there any lubricant used?
A:    Yes.

Q:    What else?
A:    He informed me that DSAI also fondled with his breasts and the event occurred for about half an hour.

Q:    Any oral sex?
A:    According to Saiful Bukhari, it was attempted but he refused.

Q:    How long does this interview last?
A:    For about 20 minutes.

Q:    What time does it started?
A:    Roughly around 9 p.m

Q:    At the time when you interviewed Saiful, was Dr. Siew there?
A:    No.

Q:    Did he come after that?
A:    He came in later.

Q:    Was he alone when he came?
A:    No, he came in with two other specialists, Dr. Mohd Razali and Dr. Khairul Nizam.

Q:    And Dr. Razali was?
A:    He was a surgeon at HKL.

Q:    Dr. Khairul Nizam?
A:    Emergency Case specialist.

Q:    So by the time they came, was the interview over?
A:    Yes.

Q:    What did you do after that?
A:    I briefed the 3 doctors about the case, and I also showed Dr. Siew on a clinical forensic examination draft.

Q:    Can you give more specific answer? Did you wrote down on a blank piece of paper of what? Or form?
A:    The pro forma.

Q:    Now, when you briefed them (the 3 doctors) about Saiful what he told you, then what took place after that?
A:    Then 3 doctors interviewed him again

Q:    Were you present?
A:    Yes.

Q:    Did you hear what he told the doctors?
A:    Yes.

Q:    Was there any difference from what he told you and what did he tell the doctors?
A:    No.

Q:    Then after the interview of history taking, what did the doctor do?
A:    Then we started with physical examination.

Q:    Were you present?
A:    Yes.

Q:    What was your role in this examination?
A:    My role was to assist Dr. Siew in jotting down and taking notes.

Q:    Be more specific.
A:    I have to take notes of the history, as well as the physical examination findings.

Q:    This note of examination that you took down, did you write in the pro forma that you told earlier?
A:    No.

Q:    Why?
A:    That is because initially I filled in pro forma and then when I showed to Dr Siew, he thought that the pro forma was not suitable, and later we proceeded on jot down everything on blank sheet of paper.

Q:    So the documentation that you did after the examination was all done on a blank sheet of paper?
A:    Yes.

Q:    After you did everything, what did you do with this sheet of paper?
A:    I handed everything to Dr. Siew.

Q:    What about the pro forma?
A:    That includes the pro forma.

Q:    YA, at this juncture, may this witness be referred to the pro forma, D 28.  Can you have a look at this document: page 1, 2, 3, 4, 5, 6. In particular the signature in page 6, 5, 3 and the handwriting on top there, and all the

handwriting in this document up to page 6. Whose signatures are those?
A:    Mine.

Q:    Ok, now look at the handwriting. First at page 3. Can you tell whose handwriting there?
A:    It was my handwriting except for the part of the police officer’s name, i/c number and police station.

Q:    This is not your handwriting?
A:    No. It was DSP Jude’s handwriting.

Q:    Now at page 5, [read] whose handwriting is there?
A:    Mine.

Q:    All this that appeared here that need to be fill and circled, who did all this?
A:    I did.

Q:    What about page 6, the circle there? And there also employer. Whose handwriting and whose circled the particular answer. Who did that?
A:    I did.

Q:    So can you confirm that this is the pro forma that you filled in, except for the part filled by Jude that you told the court just now, which was you later handed this form to Dr. Siew?
A:    Yes.

Q:    I refer you to page 5 now at para 1.5, if force and violence was used, then it was circled no. And then, did she put up resistance, you said yes. Was this given by Saiful during the interview when you asked him regarding

the alleged sodomy?
A:    Yes.

Q:    Exactly what did he told you?
A:    He told me that he was unwilling and his body became tense.

Q:    That’s all?
A:    Yes.

Q:    Now, at para 1.6 under the heading ‘details of the act’, you circled oral attempted, and then the answer you put yes. Can you explain to the court?
A:    It means that based on what Saiful told me, oral sex was attempted however it did not happen.

Q:    Can you be more specific?
A:    According to him, he was asked but he refused.

Q:    Now, the next two lines, rectal attempted/performed ejaculation, the answer is yes. So what does it mean?
A:    To my understanding, sodomy is anal intercourse. Hence, anatomically speaking, rectum is located above the anus.  So this line, the word is confusing because I do not know at that moment in time, whether penetration

did reach rectum. If the word given here is anal attempted or performed, then I would have circled performed.

Q:    So now you said as far as you concern there was anal penetration but you are not sure whether or not it reach rectum.
A:    Yes.

Q:    What about ejaculation?
A:    Yes, according to Saiful Bukhari, he ejaculated inside.

Q:    So you circled?
A:    Ejaculation yes, rectal attempted also yes.

Q:    Meaning there was ejaculation?
A:    Yes.

Q:    Now, under subheading what was used, penis you circled yes, and penetration full. Where did you get this information?
A:    From Saiful Bukhari.

Q:    And then the rest is what he told you also. Any pain yes, bleeding yes, number of assailant, was any drug used: no, alcohol: no. But there was no mentioned about lubricant? Why? Because the form doesn’t state it?
A:    Yes.

KS:    YA, my learned friend is leading the witness.
MY:    Because she had mentioned about lubricant earlier.

YA:    Proceed.
Q:    The form didn’t mention about that, any reason?

A:    This is supposed to be the medical form for rape victim. That is why after I showed the pro forma to Dr. Siew, and he thought this pro forma is not suitable.

Q:    At para 1.7, under the heading ‘identity of the assailant’, it was circled he was known to him. The answer you circled is yes. Ethnic: Malay and relationship: employer. This employer refer to the assailant?
A:    Yes.

Q:    1.8 – did she change clothes after the incident, the circle is yes. That was told to you?
A:    Yes.

MY:    That would be all My Lord.

Cross- examination by Karpal Singh.

Q:    Dr. Razuin, you are here to tell the truth. Are you aware that you are here to tell the truth?
A:    Yes.

Q:    Have you taken the hypocratic oath?
A:    Yes.

Q:    So, double now?
A:    I am sorry, I did not really understand.

Q:    Double means, the hypocratic oath plus the oath just now? More so that you have to tell the truth?
A:    Yes.

Q:    Was any statement taken from you in the course of the investigation taken by the police?
A:    Yes

Q:    When was it?
A:    I couldn’t recall now.

Q:    Taken by Supt. Jude?
A:    Yes.

Q:    Did Supt. Jude gone through the statement with you lately?
A:    No.

Q:    He did not go through with this statement with you?
A:    No.

Q:    No [] regarding your statement?
A:    Not lately.

Q:    All right, when was it then?
A:    It was when he came to my hometown to get my statement.

Q:    That was the first time?
A:    That was the second time.

Q:    When was the second time and first time?
A:    The first statement is Jan 2010, the second one was around 3 weeks ago, I am still on my confinement.

Q:    So 3 weeks ago your statement was taken?
A:    Yes.

Q:    Did he told you why he wanted to take second statement?
A:    Yes, it was regarding the pro forma.

Q:    You said nothing about the pro forma in the first statement?
A:    I did not say anything about the pro forma in the first statement.

Q:    This pro forma was for what purpose?
A:    This pro forma was actually for clinical forensic cases.

Q:    For rape, and none for sodomy?
A:    At that time, the HKL forensic department does not have pro forma for sodomy.

Q:    You are responsible for everything filled in here isn’t it?
A:    Yes.

Q:    You signed on most of the pages?
A:    Yes.

Q:    And you personally filled up the form?
A:    Yes.

Q:    Let me take you to page 5. On top of the page, you put there alleged sodomy?
A:    Yes.

Q:    1.6, oral attempted. Whether in English language it means oral sexual attempted?
A:    Yes.

Q:    Rectal attempted in normal term would mean sodomy isn’t it?
A:    Normal term will be anal sex.

Q:    Rectal sex would amount to sodomy?
A:    I don’t agree.

Q:    What is sodomy?
A:    Sodomy to my understanding is anal intercourse.

Q:    Slightest penetration on the rectal would be anal intercourse isn’t it? Slightest penetration would be rape isn’t it?
A:    Slightest penetration through the anus would be sodomy.

Q:    Rectal would be sodomy in normal term?
A:    I still do not agree.

Q:    What is rectum? Rectum is not part of the anus?
A:    No.

Q:    What is the difference between rectum and anus?
A:    Anus situated below. Rectum is above the anus.

Q:    So sodomy would be an introduction of [] to the anus. To get to the anus we must go through the rectum?
A:    Yes.

Q:    So that would be sodomy isn’t it? You are here to tell the truth. That would amount to anal intercourse? English language?

YA:    But here it doesn’t talk about anus, it talks about rectal.
KS:    Yes, but she said rectum is part on the above of the anus.
MY:    Leave this to submission.
KS:    No, I’m asking YA. This is an English language.
YA:    We are not here to learn English.
KS:    But whatever written here is in English. Therefore she must answer the question.

Q:    All right, rectum is above the anus?
A:    Yes.

Q:    For sodomy, you must go through the anus?
A:    You have to go through the anus but not necessarily to reach the rectum.

Q:    But it will still be a sodomy?
A:    Yes.

Q:    What you stated is rectal attempted?
A:    Yes.

Q:    Was there any bleeding?
A:    According to Saiful Bukhari, there was bleeding for the first and second time.

MY:    I thought they don’t want this evidence?
YA:    But they want it.
KS:    I’m asking before it is stated here.

Q:     On 28, but not 26th?
A:    Yes.

Q:    There is not for the second time?
A:    YA, I will like to explain or elaborate a little about the form.

YA:    Takpe you can elaborate later when the needs arrived. You will be question by DPP if they think that it is necessary. But now, just answer what Mr. Karpal ask you.

Q:    So this was on 28th?
A:    I filled the form on 28th.

Q:    He said there was bleeding on 26th?
A:    No.

Q:    He didn’t say that there is bleeding on 26th?
A:    According to the history given…

Q:    There was no bleeding on 26th?
A:    There was no bleeding on the 26th…

KS:    That would be all, YA.

MY:    I have no re. May this witness be release.
MY:    YA, saksi pendakwaan yang ke 24 ialah Encik Ibrahim bin Yaakob.

SP24: Encik Ibrahim bin Yaakob
Chief staff of DSAI’s office, age: 59 years old.
SP24 angkat sumpah dalam Bahasa Inggeris.

Q:    You are the Chief of Staff of DSAI?
A:    Yes.

Q:    In 2008, you were also the Chief of Staff?
A:    Yes.

Q:    Where was your office then on June 2008?
A:    Section 16 PJ.

Q:    In June 2008, did you have an employee by the name of Mohd Saiful Bukhari bin Azlan?
A:    He is not an employee, he was a temporary volunteer.

Q:    He’s not officially employed, but he worked in the office?
A:    Yes.

Q:    What were his duties then?
A:    He was a general office worker.

Q:    So what did he do?
A:    Well I’d send him on errands. That’s about it lah.

Q:    []
A:    Not really.

Q:    Other than you, were he get instruction from anybody else?
A:    No, he has to take instruction from me.

Q:    If somebody else gives instruction to Saiful, would you know?
A:    Yes, I will know.

Q:    If DSAI gave instruction to him?
A:    Usually DSAI would CC to me.

Q:    If he gave direct oral instruction, would you know?
A:    Usually he would SMS or e mail me.

Q:    Can you identify Saiful, this is just for the sake of formality.
A:    Yes.

Saiful Bukhari dicamkan.

Q:    On the 26th of June, were you working at the office at Sec 16?
A:    Yes.

Q:    What about Saiful?
A:    Yes he came in.

Q:    What about DSAI?
A:    Dato’ Seri came in earlier.

Q:    That day, did DSAI had any meeting?
A:    Yes. The meeting was held at the apartment of Hasanuddin, in Damansara. I know where it is, but I can’t tell the address.

Q:    Do you know what kind of meeting?
A:    Luncheon talks with fellow mates together with Prof. Arif.

Q:    Now, you remember what time he left for the meeting?
A:    Around 11.45a.m to 12 pm.

Q:    That day, after DSAI left, did he call you about anything?
A:    Yes, he called around 12.15-12.30, to say that he left an envelope on his table.

Q:    And he needed that for the meeting?
A:    Yes.

Q:    So what did you do?
A:    I was quite busy, so the only person in the office was Saiful, and I said to him please deliver this thing to DSAI.

Q:    Did Saiful carry out your instruction?
A:    As far as I concern, he left the office, yes with the envelope.

Q:    Was the envelope carried by him just like that, or he put in any bag?
A:    I gave to him in the envelope, where he put it, I’m not sure.

Q:    Did you know how he delivered the documents to DSAI?
A:    He drove.

Q:    Did you know what car that he drove?
A:    I don’t know what model, but it is MPV, color maroon.

Q:    Was it his car?
A:    I believe no.

Q:    Now, is Saiful still working at the office today?
A:    No, he left, he tendered his letter on 27th if I’m not mistaken, through email.

Q:    Did he give reasons why he wants to quit?
A:    Yes, actually he e-mailed to Dato’ Seri, and Dato’ Seri ‘cc’ to me. He said he was not adequate and cannot perform the duties.

Q:    Upon receiving this thing, was there any attempt make to ask him to stay?
A:    Well, the thing is he said he wanted to leave because he wants to be a pilot, and since he was willing to leave, so be it. So there was no attempt made to make him stay.

MY:    YA, that would be all.
KS:    No question for cross.

MY:    YA, I’ll be calling the IO next. But before that, can I ask the court to stand down for a while. I think both of us would like to see YA in chamber.
[10.16 a.m]    Stand down.
[10.19 a.m]    Kedua-dua pihak berjumpa YA dalam chamber.
[10.28 a.m]    Kedua-dua pihak keluar dari chamber.
(Kes akan disambung pada pukul 9.00 pagi keesokan harinya untuk keterangan saksi pendakwaan ke 25, DSP Jude Pereira.)

Anwar Ibrahim Sodomy II – The Recorded Truth – 7 Mac 2011 March 10, 2011

Posted by malaysianstory in Anwar Ibrahim, Karpal Singh, Sodomy II.
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Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Pihak-pihak:
PP: Semua hadir
PB: KS, SN, Ram Karpal, Datuk Param Cumaraswamy
AI hadir.

[9.06 a.m.]

Hujahan perbicaraan dalam perbicaraan.

MY:    Hari ini ditetapkan untuk hujahan berkaitan dengan trial within a trial. Sebelum rakan saya memulakan hujahan, saya memohon untuk memanggil pegawai penangkap untuk mengemukakan warrant of arrest yang original, YA.

KS:    We object to the application. In fact the prosecution case for the trial within a trial had been closed. Today is the date for submission. We can’t hear it at this stage, in criminal trial; there are certain rules and regulations governed. We have this submission based on the evidence as led in the TWT. It is wrong for the prosecution at this stage produce it to the court. What cannot be done, ought not to be done, YA.

MY:    YA, I do not remember Mr. Karpal or the witness, DSAI challenging the existence of the warrant arrest at highest nature because DSAI said I remember of signing certain evidence but I cannot recall. That is in the light of evidence of Taufek said that the document signed by DSAI and he had made a copy. The only reason why I couldn’t produce it last week was because this warrant of arrest was misplaced. So I asked them to search for it. I didn’t know when they will find it, only this morning I was told they already found it. This morning I made a point to compare this one, with the one that we tender to the court. Only this time, the warrant was in hand written. With regards to this is criminal trial, YA, I remember you in your years of practicing law as DPP and Session Court’s judge and High Court Judge, you have came across cases like Ramli bin Kechik, Pon Nam and sec 425 of Criminal Procedure Court. You would allow this kind of application to arrive at the just decision. We are not [] any surprises, as far as we concerned. I leave it to your Lordship.

KS:    Sec 425 does not apply, in fact it cannot be applied once the case had being closed. [] that is elementary. 2 cases cited YA, I’ve read both of the cases, but that was in relation of recalling of witness in the course of a trial.  Submission had been prepared in the light of evidence given last week and it must remains so, it must not to be otherwise, YA. I pray that the application by my learned friend is dismissed. Let’s get and move on. That’s all.

YA:    In these circumstances, I have to refuse the application by DPP, so we must go on with the submission.

KS:    [read the Submission on Behalf of the Accused (Trial within a Trial)].
It is undisputed that the evidence of the items [the Good Morning towel, toothbrush and the mineral water bottle found in the lock up occupied by DSAI on the night of 16/7/08 at approximately 11.00p.m and after his release at approximately 8.30 a.m on 17.7.08] intended by the prosecution to be admitted as evidence has to be, on a balance of probability, shown by the defence to be sufficient enough for the court to exercise discretion to exclude it. This has been held in PP v Mohd Farid bin Mohd Sukis [2002] 3 MLJ 401 [Tab 1]. In Farid, Augustine Paul J (as he then was) ordered a trial within a trial for that purpose. However, he declined to exercise his discretion to include the Section 27 Evidence Acrt 1950 information in that case after hearing the accused.

In Goi Ching Ang v PP [1999] 1MLJ 507, a 5-man bench of the Federal Court exercised discretion itself to exclude Sec 27 Evidence Act information when the trial judge had not done so when concluding, having regard to the position there, as follows:-

“In short, since the learned trial judge in the instant case under appeal had found that the sec 27 information of the appellant was not voluntary made, it is irrelevant. It was not the appellant’s own statement and was extracted from his contravention of the privileged against self-incrimination and would be unfair to have it admitted against him. The facts and circumstances of the case show that sec 27 information obtained has an adverse effect on the fairness of the proceedings so that the learned trial judge ought not to have admitted it.

For the aforementioned reasons, we are of the view that the Sec 27 information of the appellant ought to have been excluded from evidence in the discretion of the court which was not exercised by the trial judge.

With the exclusion of the Sec 27 information, we find that there is no or insufficient evidence to justify the conviction of the appellant on the first charge.”

In our case, it is submitted the evidence of the items set out hereinbefore ought to be excluded at the discretion of the court on the following grounds:-
[1]    the arrest of DSAI was in contravention of Article 5(3) of the Federal Constitution and Section 28A(1) of the Criminal Procedure Court.
[2]    the items referred to hereinbefore were obtained for DNA profiling by improper and unfair means i.e. deception/trickery.

It is submitted the standard of proof on the defence to prove the existence of materials to substantiate the above 2 grounds is not proof beyond reasonable doubt, which is a higher standard of proof, than the standard of proof on the defence in the trial within a trial namely, proof on balance of probability.

In PP v Yuvaraj [1968] 1 MLJ 238, the Federal Court held:-
“Where either by statute or by common law, some matter is presumed against an accused person, the burden of rebutting the presumption may be discharged by a defence which is reasonable and probable. Section 3 of the Evidence Ordinance does not affect the quantum of proof”.

The Federal Court in this appeal applied what was said by Azmi CJ in Wong Chooi v PP [1967] 2 MLJ 180 at 181 as follows:-
‘In my view the law is quite clear, that where a burden is placed on an accused person to prove anything, by statute or common law, that burden is only a slight one and that this burden can be discharged by the evidence of the witnesses for the prosecution as well as evidence by the defence.

Yuvaraj went on appeal to the Privy Council (Public Prosecutor v Yuvaraj [1969] 2 MLJ 89) which held:-
‘Upon the true construction of the Evidence Ordinance, 1950, and the Prevention of Corruption Act, 1961, there is no relevant difference between the two descriptions of the burden of rebutting the presumption of corruption which are contained in the question if the ‘burden of rebutting this presumption can be said to be discharged by a defence as being reasonable and probable” is understood as meaning “the burden of rebutting such presumption is discharged if the court considers that on the balance of probability the gratification was not paid or given and received corruptly as an inducement or reward as mentioned in section 3 or 4 of the Prevention of Corruption Act, 1961.’

[1]    Unlawful Arrest

In the TWT, DSAI elected to give evidence under oath.

In a short compass, he testified on 16.7.08 at approximately 9.30 a.m, he accompanied 3 of his lawyers i.e Dato’ Param Cumaraswamy, R. Sivarasa and S.N. Nair in his car to the MACC office in Putrajaya for the purpose of having his statement recorded. At that time, he was aware that he had attend at the IPK Kuala Lumpur to give a 112 statement at 2m in relation to a report lodged by Mohd Saiful Bukhari bin Azlan. He had been so informed that a prior appointment had been made between Supt. Jude Pereira and S.N Nair on 14.08.2008 for this purpose.

Having regard to his prior appointment, DSAI testified that he informed the MACC officers of this and for that reason, requested that he leave for Kuala Lumpur in the midst of the recording of his statement by the MACC at about 12pm. This was recorded by the MACC. He says he was accompanied by his lawyers in his car on the return journey. Dato’ Param Cumaraswamy was dropped at the Royal Selangor Club in Mont Kiara at approximately 12.30 p.m after which DSAI decided to go to his house in Segambut to perform prayers.

On the way to his house, his car was ambushed by several unmarked vehicles and police cars with around 10-15 UTK commandos clad in balaclavas and armed with machine guns. Nair, who was seated in the front seat beside the driver alighted from the vehicle to find out why they had been waylaid while DSAI remained seated in the back seat. He had wound down the window and heard the conversation between Nair and the police officer who was later identified as Supt. Ahmad Taufik bin Abdullah. Nair demanded to know the grounds for stopping them. Supt. Taufek replied he was merely following orders to arrest DSAI. Nair was not told the ground of arrest. Neither was DSAI told the ground of arrest by Taufik who accompanied him seated at the back of the police car to IPK KL.

Under cross-examination by lead counsel for the prosecution, Datuk Mohd Yusof Zainal Abiden, DSAI denied having any knowledge as to why he was arrested.

With regard to the arrest, Taufik testified that he had informed DSAI the reasons of his arrest, namely that it was under Sec377B of the Penal Code and that the police had obtained the warrant of arrest against him (IDTWT3). Taufik further added that he executed the warrant of arrest at the IPK KL since the warrant was at that time with the Investigating Officer, Supt. Jude Perreira. Taufik added that he showed and read the warrant of arrest to DSAI. Taufik further added that he kept a copy of the warrant with him. It is significant to note that the said warrant was issued by the Magistrate Court, WP KL on 15.7.08 and, as such, the so-called ground of arrest would have been fresh in mind of Taufik at the time DSAI was waylaid on 16.7.08 at approximately 12.30 p.m.

There are 2 versions with regard to whether DSAI was informed of the ground of arrest when he was intercepted on his way home to Segambut by the police. DSAI denies that Nair was informed of the ground of arrest following his having overheard the conversation between Nair and Taufik and neither was he informed of his arrest by Taufik who accompanied him in the back of the police car to the IPK KL.

The law on the subject is clear. Article 5(3) of the Federal Constitution in Part II under the heading, ‘Fundamental Liberties’ states:-

‘Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.’

Section 28A(1) of the Criminal Procedure Court under the heading ‘Rights of Person Arrested’ (in force at the time of DSAI’s arrest), states:-
‘A person arrested without a warrant shall be informed as soon as may be of his ground of arrest by the police officer making the arrest.’

It is submitted the evidence of DSAI and Nair should be accepted, namely that no ground of arrest were given by Taufik at the time DSAI was waylaid by the police.
In law, a police officer arresting a person without a warrant both under Article 5(3) and Section 28A(1) is required to furnish the person arrested the grounds of his arrest.

In Nik Adli bin Nik Abdul Azin v Ketua Polis Negara [2001] 4 MLJ 598, it was held:-
‘Notwithstanding that, the liberty of a detainee cannot be taken lightly if the deprivation of personal liberty is not carried out ‘in accordance with law’ (art 5(1) of the Constitution). It is thus trite that as a person shall be informed as soon as may be the grounds of his arrest (followed simultaneously by the right of representation), it must mean that the grounds must have already been in existence when he was arrested. What may be delayed, perhaps due to some extreme exigencies of the moment as stated above, is limited only to the informing. But this remark should not be construed as a carte blanche by the arresting officer to delay in fulfilling his duty, of informing the detainee of the grounds, bearing in mind that an unexplained delay could render the detention order invalid’.

It is submitted, in any event, there is no evidence of any exigency adduced by Taufik to delay informing DSAI of the grounds of arrest at the time when he was stopped by the police or on the way back to the IPK KL. Surely, Taufik would have known the grounds upon which he intended to arrest DSAI before he led the police contingent to waylay him.

A weak attempt is made by Taufik to justify DSAI’s arrest at the IPK KL by the production of IDTWT-3 which, it is submitted, is in any event, inadmissible.

The learned DPP attempted to justify the production of a Photostat copy of the said warrant by relying on section 159 of the Evidence Act to refresh Taufik’s memory. However, the provision of Section 159(3) clearly prohibits this, which states:-
‘Whenever the witness may refresh his memory by reference to any document, he may with the permission of the court, refer to a copy of that document.

Provided that the court is satisfied that there is sufficient reason for the non-production of the original.’

Clearly, the so-called Photostat copy of the warrant of arrest is inadmissible.
In Lee Kok Nam v PP [1999] 5 CLJ 283, the court held as follows:-
[1]    A Photostat, being a copy made from the original by a mechanical process within the meaning of sec 63(b) of the Evidence Act 1950 is undoubtedly secondary evidence, and will be available as evidence only under the combined provisions of S 65 and 63(b) of the same act. It will not be available if an explanation is not given as to why the original is not produced. The explanation must of course satisfy one of the conditions of Sec. 65.
[2]    in the instant case, the Photostats (except for P4), without the evidence satisfying any one of the conditions precedent for its admission, were undoubtedly inadmissible evidence.

Lee Kok Nam went on appeal to the Supreme Court which upheld the above propositions by Jeffrey Tan J but set aside his Lordship’s order for a retrial. However, no written judgment was handed down by the Supreme Court.

In our case, the condition precedent to the admissibility of IDTWT-3 has not been fulfilled. On this ground, the application to refresh his memories on the basis of IDTWT-3 ought to have been disallowed by this court. Without this document to refresh memory, Taufik’s evidence in relation to the contents of IDTWT-3 must, of necessity, fall.

On a further ground, IDTWT-3 is inadmissible as it has only been marked by court for identification (ID). As far back as 24.1.77, Abdoolcader J, (as he then was) had occasion in PP v Datuk Haji Harun bin Haji Idris & Ors [1977] 1 MLJ 180 in his regard to hold:-

‘It is necessary to refer to certain exhibits which have been pit in the course of these proceedings for identification but have not in fact have been proved as they should have been and are accordingly not exhibits in the strict sense and cannot therefore form part of the record in this case, namely D41 and D43 which were both put in for identification only and which are the audited accounts and annual report of the Bank for the years 1973-74 and 1972 respectively. As these two exhibits have not been proved and properly admitted as such, they must in the ultimate analysis be discounted and I shall accordingly disregard references to them and also all oral testimony as well adduced thereto.’

Lately, in Nobies Weah Ezike v PP [2010] 1 CLJ 578, the Court of Appeal had occasion to hold at page 586 as follows:-
‘We accept that the learned trial judge fell into error when he took into consideration the guest registration card (ID39), the payment receipt (ID52), the fax message to Thailand (ID51), the customs declaration (ID6E), and the UPS pack (ID6A).’

Further, Taufek had testified that he had returned the original of the warrant of arrest to the IO. However, Jude was not called as a witness in TWT. This non-calling of the witness and the law on the point will be taken up later in this submission.
In the cross-examination of DSAI, the learned DPP put to him that the ground of arrest appeared in the Sec 112 statement recorded by Supt Jude. DSAI’s reply was that the charge appeared in the Sec 112 statement but not the ground of arrest which he repeatedly asked for. Here again, Supt. Jude was not called to rebut these assertions. Then again, the copy of the Sec 223 statement (DTWT-2), as pointed out by DSAI, served on his lawyers, materially differed from the one {DTWT-1) produced by the prosecution.

Clearly, DSAI’s arrest was unlawful, apart from being clearly improper, having regard to the number of the police personnel and vehicles deployed to effect his arrest on his way back home on 16.7.08 to say the least of the armed balaclava-clad police officers. It must be pointed out at this stage, that the prior appointment between Nair and Supt. Jude was at 2 p.m. there was not conceivable reason for DSAI to have been arrested in the unholy haste and high-handed police action at about 12.30 pm while he was on his way back home for prayers. In this regard, it is significant to note that Taufik admitted in examination –in-chief that he received instructions from CID Director, Dato Seri Bakri Zinin, to arrest DSAI who was deviating instead of heading to the IPK KL from Putrajaya. Here again, Dato Seri Bakri Zinin was not called by the prosecution in the TWT to explain why he gave such instructions to Taufik.

Having regard to the evidence given in TWT by DSAI, his arrest, apart from being unlawful and unconstitutional, it was also highly unwarranted, particularly so when this arrest took place on a public highway. The actions of the police were highly insensitive.

[2]     The items obtained for DNA profiling by the police officer were by improper and unfair means i.e. deception/trickery.

DSAI was called to the IPK KL on 16.7.2008 for a s. 112 Criminal Procedure Court statement to be recorded from him. However, despite the recording of the statement being completed at about 5.30 pm and despite various requests by R. Sivarasa, who was called as a witness in the TWT, that DSAI be allowed to go home, he was not allowed to do so. Instead, he was taken to Hospital Kuala Lumpur (HKL) where he was examined by consultant physician, Datuk Dr. Jayainderan Sinnathurai, and consultant surgeon Dr. Ee. Boon Leong. He was requested by these doctors for his blood sample for DNA purpose but he refused on the advice of his lawyers, Sulaiman Abdullah, Nair and Sivarasa, claiming that during the investigations into the first sodomy case on 1998 his blood sample had been stolen from the hospital.

DSAI was not illegally obliged to provide his blood sample for DNA purposes. There is authority for this in Peter James Binstead v Juvencia Autor Partosa [2000] 2 MLJ 569, in which KC Vohrah J (as he then was) held:-

‘There is no general power provided by legislation or through common law for any court in Malaysia to order a person to undergo a test to ascertain paternity. In the case of a DNA test, it is common knowledge that either a blood, tissue or bone specimen will be taken from the person for testing. If a person cannot be subject to hurt within the meaning of Sec 319 of Penal Code against his wall by submitting himself to such testing. Whoever carried out such testing without the person’s consent would violate s 323 of the Penal Code for voluntarily  causing hurt to the person and a court cannot, in the absence of a specific legislative provision, order such person to submit himself to an unlawful act to be committed on his person.’

It is significant to note DSAI was traumatically humiliated during the examination having regard to his evidence as follows:-

‘The doctors asked me to take off my clothes except for my singlet and underwear. They measured my private parts and pubic hair. They also checked my penis and anus. it was degrading.’

Instead of being released after the medical examination, DSAI was brought back to IPK KL and was supplied by DSP Yahya with a Good Morning towel, toothbrush, toothpaste, and a mineral water bottle from which DNA samples for profiling are being sought to be introduced through former Crime Scene Investigation (CSI) chief Amidon Anan. In his evidence, DSAI said that he was placed in the IPK KL lock up from 11.30 p.m, 16.7.08 until 8 a.m the following day before he was released at noon after a further s 112 statement was recorded from him.

It is significant to note when the items were recovered from the lock-up, DSAI was not present. He was the sole occupant of the lock-up overnight. Section 64 of the Criminal Procedure Court states:-

’64.    List of all things seized to be made and signed.
A list of all things seized in the course of a search made under this Chapter and of the places in  which they are respectively found shall be prepared by the officer or other person making the search and signed by him.’

’65.    Occupant to be present at search.
The occupant of the place searched, or some person on his behalf, shall in every instance be permitted to attend during the search, and a copy of the list prepared and signed under this section shall be delivered to that occupant or person at his request.

It is submitted, clearly, the items procured for DNA profiling by the police were obtained by improper and unfair means i.e. deception/trickery.

It is submitted the prosecution’s failure to call IO Supt Jude Pereira, DSP Yahya and CID Chief Dato’ Seri Bakri Zinin in rebuttal to the sworn evidence of DSAI, S.N. Nair, and Sivarasa in the TWT trial is fatal. These personalities played a significant part in the arrest, detention, custody, and procurement of the DNA samples from DSAI. Further, police personnel in charge of the lock-up, whose evidence would have been significant, were also not called to testify in the TWT.

On the authority of Tan Too Kia v PP [1980] 2 MLJ 187 their failure to be called as witnesses in rebuttal leaves the evidence led by the defence in the TWT is unrebutted.

In PP v Tan Kok An [1996] 1 MLJ 89, Abdul Malek J (as he then was) held:-
‘It was not wrong to draw an adverse inference against the prosecution, when being in position to produce better evidence, deliberately abstained from doing so.’

Conclusion

It is submitted the court should be guided by what was held by the 5-man bench of the Federal Court in Goi Ching Ang as follows:-

‘There is a vested discretion in a trial judge to exclude evidence which is prejudicial to an accused even though the said evidence may be technically admissible. 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.’
Under these circumstances, we submit that the exhibits that are sought to be marked as exhibit should be completely disregarded and removed from the court as evidence under the inherent power of the court to disallow such evidence although such evidence can be made technically admissible.

Much obliged.

MY:    Dengan izin, YA. There are 2 issues before the court. The first issue is whether the evidence pertaining from the collection of the exhibits from the lock up cell in IPK KL by DSAI on 16th and 17th of July is unfairly, illegally and improperly obtained. If the judge says yes, then the question is whether it triggers the court to exclude it.

YA, with regards to the first issue, the defence premise their application to exclude on the ground that DSAI was illegally arrested, and therefore the detention was unlawful, and therefore whatever evidence that was obtained consequence to that would be improper and should not be admitted. Now, the question that the court has to address is whether or not the arrest was unlawful.

Before you go to that, perhaps it is good to remind ourselves that this application is made by the defence to exclude evidence. In such application the defence has to prove it basis on the balance of probabilities. The burden is on them to show that there is basis of balance of probability. The case in point is Hanafi bin Mat Hassan [2006] 4MLJ, page 134, tab 12 of 3rd volume, at page 170, para 74:-

‘Be that as it may, the party that is seeking to have evidence excluded in the exercise of the discretion of the court has the onus of showing, on the balance of probabilities, that the discretion should be exercised in its favor. It’s follows that the party seeking the exclusion of the evidence must satisfy the court that the circumstances are such that the court should exercise its discretion in favor of the party making the application. Neither PW43 nor PW47 were cross-examined by the defence to elicit evidence of circumstances that may weigh in favor of the accused in the exercise of the discretion. Indeed learned counsel conceded that no evidence was adduced by the accused on this issue. However, it was contended that the fact that the accused was handcuffed at the time the blood samples were taken the handcuffs were removed. In any event the mere fact of the accused being handcuffed does not on its own disclosed any improper conduct on the part of the police to enable a consideration of the exercise of the discretion in favor of the accused. The objection raised therefore has no merit whatsoever.’

And as far as the evidence with regard to the basis, YA is elementary to look at both evidence adduce during a trial within a trial and the evidence in the substantive trial. This could be found in the case of Farid Mohd Sukis [2002] 3 MLJ, in our bundle volume 1, tab 3. If I may read, page 412, para between D to F:-
‘At the resumed hearing, the parties would generally agreeable to the applicable law. The Australian courts have held that the party seeking to have evidence ruled inadmissible in the exercise of the discretion of the court has the onus of showing, on the balance of probability, that the discretion should be exercised in that way.

The appropriate way of dealing with an application of this nature is by way of a trial within a trial. Street CJ expressed the view that a judge, in considering an application of this nature, ‘…must necessarily act upon such evidence as is placed before him either in the substantive trial or on the voir dire, or both’.

In the course of submission, I will refer to both. What is [] evidence? My learned friend had adverted to it just now, when they laid the ground for exclusion. What is obvious is this. With regards to the warrant of arrest, DSAI did not categorically denied the existence of such warrant of arrest. All he said he remembered being served with certain documents, he remembered signing it, but he couldn’t recall what document is that.

If we remembered in the light of evidence of Supt. Taufek, there was no other document served in IPK to DSAI except the warrant of arrest. In the same time, DSAI did not deny that before the recording of his statement [TWT 1] that he was explained and told about this at page 2, ‘sebelum Dato’ Seri menandatangani borang rakaman percakapan, Dato’ Seri meminta penjelasan mengenai tuduhan dan ianya telah dijelaskan oleh DSP Jude bahawa terdapat satu laporan polis iaitu Travers Rpt 4350/08 oleh seorang lelaki melayu nama Mohd Saiful Bukhari Azlan dan mendakwa Dato’ Seri telah meliwat beliau pada 26.6.2008 di Unit 1151 Kondominium Desa Damansara Jalan Setiakasih Bukit Damansara Kuala Lumpur’.

This he did not deny. He said yes. This is the request evidence. Now when it come to prosecution, the prosecution said through Supt. Taufek, that DSAI was in fact inform of the ground at the time of the arrest that he was being arrested for a seizable offence, under Sec 377B, and before the recording of the statement, Taufek had served on him, and read it to him which contained the charge and he got DSAI to sign at the back of the warrant, which he subsequently handed to the IO but not before he made a copy of the warrant, which was signed by the accused.

My learned friend with regard to the photocopy of the warrant did object to it. DSAI did not remember, so pursuant to Sec 159 of Evidence Act, I showed him, of course there was an objection. DSAI couldn’t remember, so I wasn’t able to show him the signature appearing on the photocopy.
But what remains is this; Supt Taufek did make a copy. My Lord, I say, this should be made admissible. It shouldn’t be marked as ID, because this is real evidence. Forget about real evidence first, if I may refer to Sec 60 of EA, the best evidence rule, that the evidence must be direct, must be oral by the person who perceived all those whatever he testifying with his senses, and Sec 60(3) says, ‘if oral evidence refers to the existence of any material including a document, the court may if it thinks fit, require the production of that material or the document for inspection’.

Bearing in mind, DSAI was not in the position to deny that there was in existence of such warrant. Now Taufek says there was warrant of arrest, and I make a copy of it. So, this is real evidence. So it corroborates his story that not only about the warrant of arrest, but also he made a copy for it. Because of that the court may require the production of that material thing for inspection, and this is tendered, but if the lordship refuses that the fact still remains that he made a copy of that warrant. This is direct evidence. Therefore, the photocopy of that warrant should be admitted as P3.

It is our submission My Lord that, when the onus is on the defence, and the defence is not being able to support the allegation they made. In fact, the confession by DSAI that he was shown certain documents and signed it neutralizes his assertion than he was never informed of the ground. This confession with regard to this statement where he was informed by Jude, destroy whatever basis that they may have with regards to this application. And the arresting officer’s testimony, were raised on whatever left on that allegation. My Lord at this juncture may I just make a comment on the complaint of DSAI with regard to original statement recorded from him and the one served on him.

DSAI confirmed that P TWT 1 was the statement recorded from him. He took his time, he wanted to be careful, and he said “yes, this is my statement”. Supposing it is different from what served on him, but it is still remain that this is not a fabricated document. This document bears the signature of the recording officer and his signature. What is the different between this statement and his statement?

He said that 1) there are minor differences, that is a bare statement. When a person said that there are minor differences, without even saying about the particulars, I don’t think that the court should give any weight on it, to be fair on the prosecution. If he showed us, so that we can say where the difference is and you can explain your way. But when he chose to say that there are minor differences but I don’t want to say it, and in fact, there is none.
2) That he has no word sulit appearing at the top. This is the official document My Lord.  Meaning, anybody who takes it out unauthorized will be liable to be prosecuted under the OSA. DSAI doesn’t have the word ‘sulit’, because he is entitled to the statement. So what is the difference? He said to the court, that there were in fact 2 sets; the first set, where at the second page, we have this thing recorded singed by DSAI and Jude where said sebelum memulakan rakaman percakapan ke atas DSAI “beliau juga ditanya samaada boleh atau tidak rakaman video dibuat sepanjang rakaman percakapan ini dijalankan”. This, we asked the police to do so that people won’t make any allegation. “Atas nasihat peguam, surprisingly, beliau telah meminta rakaman percakapan beliau dicatat sepenuhnya dan disahkan, manakala rakaman video tidak diperlukan.”  I thought they want to be transparent, and with this video recording they supposedly should be happy with the request. Only these two pages were not supplied to him. What was supplied to him was the actual statement that was recorded. He said that his copy, the first page under the signature of Pegawai Perakam, there is no name. Jude’s name was not there. Well, what I can say is it is also similar with ours. It has no name there.

The name appears only on the first page where this thing about] video recording was stated there, Jude Pereira. But in both documents, DSAI’s signature appears. So we don’t have different documents, but what he had was his statement minus the first two pages. So obviously, whatever he said about the document being different, materially or otherwise is not true.

Now My Lord, I said with the view to the confession by DSAI. That is sufficient to have this application thrown out. Because you can’t possibly raise the standard on the balance of probability when your evidence is so uncertain and he make concession. Now, can we look at the arresting officer’s evidence? Is there anything that he said that is highly improbable and incredible? He was so certain with what he said, ‘I informed, I served, I asked him to sign’. Supt. Taufek is not an interested witness, he is not the IO, neither was he one of the witness in the main trial. The information asked from him by Nair and DSAI is not official secret information. He said he has no reason not to inform on the counsel and DSAI on the ground. And then we have to bear in mind the person who requesting on the information are no lesser mortal. DSAI and his lawyer were not just any ordinary man on the streets. In fact, DSAI said that the officer was polite and nice at that day and treated him with respect. So, YA had them not informed about it, they surely will make noise throughout the end and at the balai. We will hear about it in the newspaper on the next day. But it wasn’t, because it was never happened that way.

So, the law is very clear, when a police witness, not another witness says something that is not highly incredible, not highly improbable, then the court must accept. I mean, that’s the law. If I may refer your Lordship to volume 3 tab 5, PP v Mohamed Ali 1962 MLJ 257:-
‘When a police witness says something that is not inherently improbable his evidence must in the first instance be accepted. If his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted.’

So when they talk about contradiction here Yang Arif is not between what he said and what DSAI’s said. Which made his testimony less than credible, but that is not the case because he is the only witness. Then we have the case of PP v Teh Cheng Poh, tab 6 held number 1:-
‘the police officer in charge of the police patrol car (PW2) was not an interested witness but a public officer performing his duties. In the absence of contradiction of anything improbable in his evidence, he should be accepted as a witness of truth and as a reliable witness’.

What I said just now, Taufek’s role is just to perform the warrant of arrest. He has no interest in this case whatsoever. He was merely performing his duty that was tasked to him. At this point of time, this Honourable Court has no reason to believe not to accept him. There’s nothing he said as incredible and highly improbable. ‘

Now, I would also like to refer to few cases involving habeas corpus application. The principle is the same. First case is Re Pe Long, tab 2, volume 3. The application was grounded upon the fact that the accused was not informed on the ground of arrest. What happen was, the police swore that he told him and the court accept, that’s all.

Also in the case of Aminah v Supt of Prison, Pengkalan Chepa, Tab 1, if I may read the fact there:-
‘One Haron was detained under the Restricted Residence Enactment. An application by originating motion was made by his wife for issue if a writ of habeas corpus challenging the detention on the ground that there had been non-compliance with Article 5(3) of the Federal Constitution in that the detainee had not been informed “as soon as may be of the grounds of his arrest”.

Held number 1:-
‘as in supporting affidavit the applicant had deposed that when she saw the detainee a few hours after his arrest he was fully informed by the police and knew the reasons for his arrest, this satisfied the requirement of Article 5(3) of the constitution which applies to arrest made under any law including Restricted Residence Enactment in this case.’

YA, on the next page, page 20; the second last para from the below:-
‘Coming to the substantive issues of law raised by counsel for the applicant, I shall first consider the contention that there had been non compliance with Article 5(3) of the Constitution in that the detainee had not been informed as soon as may be of the grounds of his arrest.

What was communicated, in the warrant of arrest, is the charge that is being reproduced. At that time, just before recording, again he said something similar to the charge, that he has committed one offence on one Saiful between this time and this time at this particular place. So, all was there. What the court is saying the information was communicated to this person not at the time of the arrest, but a few hours later, in the balai that he was informed about it.

If I may read the next page, the third below:-
As was held in the Indian case of Tarapade v State of West Bengal [1959] SCR 212, the words “as soon as may be” appearing in article 22(1) of the Indiaan Constitution (and article 5(3) of ours) means as nearly as is reasonable in the circumstances of the particular case. The applicant cannot be heard to deny what she had deposed to in her affidavit, and though what A.S.P Gill told the detainee may not be sufficient grounds, what he had been told by some other member of the police force a few hours later would satisfy the requirements of article 5(3).’

And if I may refer to my learned friend’s submission just now, page 7 I believe, of the submission. I mean, starting from page 6 in Nik Adli bin Nik Abdul Aziz, somewhere in the middle there.
‘It is thus trite that as a person shall be informed as soon as may be the grounds of his arrest (followed simultaneously by the right of representation), it must mean that the grounds must have already been in existence when he was arrested. What may be delayed, perhaps due to some extreme exigencies of the moment as stated above, is limited only to the informing.

So we are saying now there were no delays, he was informed at the time of the arrest. But in case what was communicated to him was insufficient then 1 hour later, not 3 hours, upon reaching IPK, he was informed again this time having the warrant of arrest read to him which its contain the charge and then DSP Jude telling him again. So DSAI is complaining, I’ve been asking for the report. A report is not a ground. Under Article 53 what was important is the ground on where it was communicated.

So My Lord, it would appear then the prosecution has shown to this honorable court that everything had been complied with. He was arrested, he was informed on the ground of the arrest, and subsequently he was detained. Now, the question is whether at that particular time, there was in existence ground to arrest him. In other word, whether there was reasonable suspicion to arrest him.

We have to look at both evidences in the trial within a trial. On 28 June, a report was lodged by Saiful with regard to the offence. His medical examination also done, around the same time of 29th, his statement is being recorded. On 5th July, Jude and Fauziah viewed the CCTV in trace of certain people, it was in evidence. After that, chemist report of Dr. Seah was received. Normally, after a police report for an offence of this nature had been lodged, DSAI would be in the lock up, because that is not the reasonable believe or reasonable suspicion. But here, we have the medical examination, the statement, the report, the chemist report, the CCTV and the medical report.

Now, it was in evidence that Nair that they did recognize 111 CPC notice requiring DSAI to be present.  But what he said is just the communication. Be that as it may, has the police at that point of time have the ground of reasonable suspicion to arrest DSAI, he had. On the 15th of July, warrant of arrest was applied and issued against DSAI with regards to this offence. So, there was no malafide YA. DSAI was not arrested [] whatever Dato Bakri may have instructed. What we have is that there was a possibility that he was not [] because through counsels, they said they are not going to recognized [] for whatever reason. Warrant of arrest executed that day was not an afterthought.

Now, the question is, in fact my learned friend asked, whether there are one or 2 arrest. Taufek said that there was only one arrest. He knew that there is warrant of arrest, but he only given when he took DSAI to IPK. He was told that if DSAI did not go directly to Putrajaya.  Jude had applied and had applied the warrant of arrest at 15th July, the moment he knew that DSAI was in IPK, he had the warrant executed. He had every reason under the law to [] which the Supt Taufek did. YA, I have only 2 copies. Most of the cases will be referring to, it involved Encik Karpal.

This is the case of Ooi Ah Pua, Federal     Court’s decision, whether or not the applicant should be released because he was denied the right to counsel of which his application was rejected. But I would invite you to page 201 of this report para within G to I, left hand column [read].
Using this, I would say this. There was the allegation of sodomy, a seizable offence. And there was reasonable suspicion on the part of the police. And Supt Taufek not only has the power to arrest him without warrant, he was also under duty to do so. I also add, Jude Pereirra also under duty to do so. Where is the unlawfulness of the arrest?

Now, whether or not the detention is lawful, YA at the exercise of investigation power under the Criminal Procedure Court, the police can recover statement, recover exhibits and all that, and for that purpose, they could detain. Whether a witness assure their presence or otherwise, it doesn’t retract the fact that the police had the power to detain, at least for 24 hours before further detention authorized by the magistrate. This was what the police did. Anwar was detained, but not before his statement was recorded. Then he was taken to hospital for medical examination so that the police can have some specimens for the purpose of investigation which he refused. After that, he was brought back to the police station, IPK, and there was way pass 11. Lawyers had argued do not record statement after 11, in the lock up rules. And further statement was taken between 8.45 to 9 something, and this further statement recorded substantially as proceeded by DSAI [] the visit to the hospital.

Now, my learned friend talks about degrading treatment. Medical examination whatever you call it, degrading or what, is not something that apply to DSAI for this purpose. It is not as if they have employed different method of procedure when it comes to DSAI. The hospital authority does not discriminate. The hospital authority is not part of the prosecution or investigation team. They are natural and impartial. So, for DSAI examination, they are doing it because the investigation authority needs that. It is not as if DSAI treated differently. Otherwise every person; those ladies who went to the medical check up, when they were expecting, they were subject to all kind of examination,  and everybody start to scream it is degrading, but this is the reality of the situation. Certain thing has to be done that way. It is not at the instance, it is not the prosecution told the doctor on this is how you do it. This is number 1.

Number 2: it is not as if those exhibit that police recovered, is recovered as the result of degrading examination. Nothing is given by the medical examination. So this is irrelevant for my learned friend to bring up before this court.

Now, it is our submission and stand then, 1) the applicant had failed to prove anything on the balance to prove that the arrest is illegal. The prosecution evidence was to confirm that there was nothing there, that the evidence was legal. If your Lordship is with me, this is the end of this application, you Lordship then your Lordship will allow us, as a matter of admissibility, called Aidora and Amidon to tender the respective exhibits. But if in the event if your Lordship is not with me, then we go to the law on exclusion of evidence.

Now, the other day and today, again I am reminding myself, this court and my learned friend, retraction of the evidence in this trial is governed by Evidence Act. The most relevant section is sec 5, sec 136. Of course my learned friend will not be happy I read sec 136, but I have to read it. It merely says this, the court will only admit evidence if it is relevant. So the test of admissibility is the test of relevancy. Now, we go to the common law, the case of Kuruma v The Queen, decision from Privy Council from Jamaica can be found in our first volume, tab 5. In the Kuruma, it was held that the test of admissibility is relevancy. After that, we have R v Sang. My Lord may I seek a short adjournment because suddenly the thing (T-Pad) hang. Less than 10 minutes, probably.
YA:    Ok, kita mula balik 10. 45
[10.27]:     Stand down

[10.27 a.m.] Stand down.

[10.50 a.m.]
MY:     Before I continue with my submission there is something that I have omitted. My learned friend’s submission talks about the absence of S.64 i.e. the search list when the exhibits were collected from the lock up. The fact that those exhibits was collected from the lock up cell where Dato’ Seri Anwar Ibrahim was detained was never disputed. It was not challenged. The bottle, the towel, the toothbrush was never disputed.

And it is my submission that S.64 talks about premise occupied, not a place where you were detained. An occupier is a person, if I’m not mistaken when I read “Word or Phrases: Judicially Defined”, it’s a book by MLJ is a person you said when you knock the door who said “Come in”. Or under other laws, the person take care of the management of the place. Obviously DSAI doesn’t fit into that.

But whatever it is, the case of San Soo Ha deals with the absence of the list. If I can straight away go to page 4 of the report, 1st para, starting from the word “the most that can be said about the failure to comply with the provision relating to search list is that it may cast doubt upon the bona fide of the parties conducting the search and accordingly afford ground for scrutiny. But if after close scrutiny the court arrived at the conclusion that [] articles were recovered from the possession of the accused person, it is obviously no defence to say that the evidence was obtained in an irregular manner. There is nothing in law which made such evidence inadmissible”. An evidence of recovery. Here the evidence on recovery was never disputed therefore the submission by my learned friend actually holds no [].

My lord, I stopped at Kuruma v The Queen. It is an African case, Privy Council decision which held that the test of admissibility is relevancy. The court held that if the evidence is admissible, the court is not concerned with how it was obtained. In that particular case, ammunition was found on the person searched by police personnel below the authorized rank, below the rank of Assistant Inspector so it makes the whole search illegal. In refusing to exclude the evidence and confirmed by the Supreme Council this is what the court says, once admissible, the court is not concerned on how it was obtained.

Now we go to the celebrated case of Regina v Sang [1980] AC 402, the House of Lords decision. Here is the case of agent provocateur. In this case, the House of Lords held,

“that a judge in a criminal trial always had discretion to refuse to admit evidence if, in his opinion, its prejudicial effect outweighed its probative value or when the admissibility of evidence was obtained unfairly from the accused.”

And it says,

“save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, the judge had no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means.”

This is an important case that all the cases in the Commonwealth will follow and apply. May I take your Lordship to certain dicta of the judges in R v Sang.

First, it says the court has discretion to exclude if though admissible, the prejudicial effect outweigh its probative value. May I invite your Lordship to dicta by Lord Diplock at page 433 of the report, between para D&E,

“I turn now to the wider question that has been certified”

What is the question certified? The question certified could be found at page 431,

“Does a trial judge have a discretion to refuse to allow evidence-being evidence other than evidence of admission-to be given in any circumstances in which such evidence is relevant and of more than minimal probative value”.

That is the question. Can you still, other than confession, other than admission where the evidence is relevant but has more than minimal probative value? I continue reading page 433,

“It does not purport to be concerned with self incriminatory admissions made by the accused himself after commission of the crime though in dealing with the question I will find it necessary to say something about these. What the question is concerned with is the discretion of the trial judge to exclude all other kinds of evidence that are of more than minimal probative value.

Recognition that there may be circumstances in which in a jury trial the judge has a discretion to prevent particular kinds of evidence that is admissible from being adduced before the jury, has grown up piecemeal.”

It goes on until the next reference was made to Lord Hodson in R v Selvey [1970] AC 304,

“A case in which this House accepted that in such cases the trial judge had a discretion to prevent such cross-examination, notwithstanding that it was strictly admissible under the statute, if he was of opinion that its prejudicial effect upon the jury was likely to outweigh its probative value.”

Then it talks about the discretion to exclude similar facts evidence. Again, they are talking about the probable effect of the case. At paragraph C at page 434 the judge said,

“So I would hold that there has now developed a general rule of practice whereby in a trial by jury the judge has a discretion to exclude evidence which, though technically admissible, would probably have a prejudicial influenced on the minds of the jury, which would be out of proportion to its true evidential value.”

And then at page 435,

“In no other case to which your Lordships’ attention has been drawn has either the Court of Criminal Appeal or the Court of Appeal allowed an appeal upon the ground that either magistrates in summary proceedings or the judge in a trial upon indictment ought to have exercised a discretion to exclude admissible evidence upon the ground that it had been obtained unfairly or by trickery or in some other way that is morally reprehensible; though they cover a wide gamut of apparent improprieties from illegal searches.”

Then we have at page 436,

“That statement was not, in my view, ever intended to acknowledge the existence of any wider discretion than to exclude (1) admissible evidence which would probably have a prejudicial influence upon the minds of the jury that would be out of proportion to its true evidential value; and (2) evidence tantamount to a self-incriminatory admission which was obtained from the defendant, after the offence had been committed”.

It is something like blood specimens and all that, my Lord.

Lord Viscount Dilhorne at page 441 has got to say with regard to the discretion,
“In Kuruma v. The Queen [1955] AC 197 evidence was not held to be inadmissible because it was illegally obtained.  evidence so obtained must surely be regarded as unfairly obtained. Evidence may be obtained unfairly though not illegally but it is not the manner in which it has been obtained but its use at the trial if accompanied by prejudicial effects outweighing its probative value and so rendering the trial unfair to the accused which will justify the exercise of judicial discretion to exclude it.”

We have Lord Salmon at page 444 paragraph H to page 445 paragraph C, Lord Fraser at page 449 paragraph E-F, and Lord Scarman at page 453 paragraph C and at page 452.

If I may read Lord Scarman at page 452 paragrah D,

“In my judgment, certain broad conclusions emerge from a study of the case law. They are:
(1)    that there is one general discretion, not several specific or limited discretions;
(2)    that the discretion now extends further than was contemplated by Lord Halsbury and Lord Moulton in Chrities’s case, or even by Lord Simon in Harris v Director of Public Prosecutions [1952] AC 694: it is now the law that “a judge has a discretion to exclude legally admissible evidence if justice so requires” (Lord Reid in Myers v. Director of Public Prosecutions [1965] AC 1001, 1024);
(3)    that the formula of prejudicial effect outweighing probative value, which has been developed in the “similar fact” cases, is not a complete statement of the range or the principle of the discretion;
(4)    that the discretion is, however, limited to what my noble and learned friend, Viscount Dilhorne, calls the “unfair use” of evidence at trial: it does not confer any judicial power of veto upon the right of the prosecution to prosecute or to present in support of the prosecution’s case admissible evidence, however obtained.

These broad conclusions leave unresolved the critical question as to the limits of the discretion and the principle upon which it is founded. It may be, as Lord MacDermott C.J. said in Reg. v Murphy [1965] N.I 138,149, that unfairness, which will be found to be its modern justification, cannot be closely defined. One must, however, emerge from the last refuge of legal thought-that each case depends on its facts-and attempt some analysis of principle.”

At page 453 paragraph C,

“Notwithstanding its development case by case, I have no doubt that the discretion is now a general one in the sense that it is to be exercised whenever a judge considers it necessary in order to ensure the accused a fair trial. Reg. v. Selvey [1970] AC can be seen to be of critical importance. Viscount Dilhorne, though he was directing his attention to the specific situation in that case (cross-examination of situations, e.g. Rex v. Christie [1914] AC 545, Noor Mohamed v. The King [1949] AC 182, Harris v. Director of Public Prosecutions [1952] AC 694 and Kuruma v. The Queen [1955] AC 197, and concluded by saying, at pp. 341-342:
“It [i.e. its exercise] must depend on the circuses to which your mstances of each case and the overriding duty of the judge to ensure that a trial is fair” (my emphasis).” ”

At page 435, Lord Diplock has said this,

“Nevertheless it has been recognized that there is an unbroken series of dicta in judgments of appellate courts to the effect that there is a judicial discretion to exclude admissible evidence which has been “obtained” unfairly or by trickery or oppressively, although except in Reg. v Payne [1963] 1 WLR 637, there never has been a case in which those courts have come across conduct so unfair, so tricky or so oppressive as to justify them in holding that the discretion ought to have been exercised in favour of exclusion.”

So what they are saying is that up to 1980 complaints of evidence being obtained through trickery, unfair means and oppressive have been raised but except for Reg. v. Payne, all the courts deem it’s fit not to exclude because they found them not to be so unfair, so trickery or so oppressive to justify the exclusion.

In R v Sang, the court says that they are more concerned with how the evidence obtained by those means, whether illegal or legal is being used. This can be found in the judgment of Lord Diplock at page 436 paragraph F-H.

“I think, make it clear that the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is not part of a judge’s function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law; if it is obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial.

Lord Viscount Dilhorne said the same thing at page 439 paragraph E-F, page 441 paragraph F-G, and page 445, para G. Court in R v Sang also says, to exclude evidence just because they were obtained by those means improperly and no more is wrong.

If I may now refer to page 441, the judgment of Viscout Dilhornne at paragraph C-E,
“In Jeffery v. Black [1978] QB 490 Lord Widgery C.J. expressed the same view, saying that it was open to justices to apply their discretion and to decline to allow evidence to be given if it has been obtained by police officers by trickery, oppressive conduct, unfairly or as a result of behavior which was morally reprehensible.  With great respect I do not think that these observations were correct. I have not been able to find any authority for the general principle enunciated by Lord Parker or for those statements by him or by Lord Widgery. If there is any authority for it, it conflicts with Lord Goddard’s statement in Kuruma v The Queen [1955] AC 197 that the court is not concerned how evidence is obtained. If obtained in one of the ways referred to, its credibility may be impaired. That will be a matter for the jury to consider. It cannot be said that in addition to the probative value of evidence so obtained, it has a prejudicial effect such as to render the trial unfair to the accused if it is admitted.”

The House of Lords in R v Sang says you cannot exclude just because it was improperly obtained. The application of this discretion only confined to evidence exclusively from the accused.

Lord Scarman at page 456 paragraph F,
“The question remains whether evidence obtained from an accused by deception, or a trick, may be excluded at the discretion of the trial judge. Lord Goddard C.J. thought it could be : Kuruma v The Queen [1955] AC 197,204, Lord Parker C.J. and Lord Widgery C.J. thought so too: see Callis v. Gunn [1964] 1 Q.B. 495,502 and Jeffery v Black [1978] Q.B. 490. The dicta of three successive Lord Chief Justices are not to be lightly rejected. It is unnecessary for the purpose of this appeal, to express a  conclusion upon them. But, always provided that these dicta are treated as relating exclusively to the obtaining of evidence from the accused.”

Be it confession, be it admission or any specimens, blood, body fluid or hair samples but confined to the accused. Lord Fraser said the same thing, it refers to admission and confession and all other evidence obtained from the accused himself or from his premises. This could be found at page 449  paragraph E-F and page 450 paragraph A. Lord Diplock says the same thing at page 436 paragraph A-B, it refers to admission, confession and anything from the accused. Then of course they talked about whatever it is, even if it is legally admissible if it would lead to an unfair trial then the court could reject it.

What is a fair trial? If I may refer to Lord Diplock’s dicta at page 436 paragraph H,
“A fair trial according to law involves, in the case of a trial upon indictment, that it should take place before a judge and a jury: that the case against the accused should be proved to the satisfaction of the jury beyond all reasonable doubt upon evidence that is admissible in law; and as a corollary to this, that there should be excluded from the jury information about the accused which is likely to have an influence on their minds prejudicial to the accused which is out of proportion to the true probative value of admissible evidence conveying that information. If these conditions are fulfilled and the jury receive correct instructions from the judge as to the law applicable to the case, the requirement that the accused should have a fair trial according to law is, in my view, satisfied; for the fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused’s guilt it is no part of his judicial function to exclude it for this reason. If your Lordship so hold you will be reverting to the law as it was laid down by Lord Moulton in Rex v. Christie [1914] AC 545, Lord du Parcq in Noor Mohamed v. The King [1949] AC 182 and Viscount Simon in Harris v. Director of Public Prosecutions [1952] AC 694 before the growth of what I believe to have been a misunderstanding of Lord Goddard’s dictum in Kuruma v. The Queen [1955] AC 197.”

Between paragraph D-E, this is what he said,

“I would accordingly answer the question certified in terms which have been suggested by my noble and learned friend, Viscount Dilhorne, in the course of our deliberations on this case. (1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.”

This discretion only confined to this two kind of evidence, admission, confession and anything that has the effect of confession. Lord Scarman at page 452 paragraph C, page 453 and page 455 paragraph B said the same thing.

From the judgment by the House of Lords what we can conclude is that (1) the judge has a discretion to exclude evidence whether legally or illegally obtained if justices so requires in order to have a fair trial which means the evidence if its prejudicial effect outweighs the probative value, then it should be excluded though strictly admissible; (2) that this discretion is confined to evidence obtained conclusively from the accused either oral evidence or any other evidence or from his house, premises occupied by him and the ct should not exclude evidence  just because it was obtained improperly either by trick or by any illegal means unless it is so trickery, it is so oppressive and it is so unfair. And up to 1980 when the judgment was written there is only one case despite all complaints by the accused person, R v Payne where discretion was in fact exercised.

My lord, the principle in Kuruma v The Queen and R v Sang has been applied throughout the Commonwealth including the Malaysia court and Singapore. If I may invite your Lordship to the case of Hanafi b. Mat Hassan v PP [2006] 4 MLJ 134. If I may read, in Hanafi blood samples was taken from the accused while he was handcuffed without his consent therefore it was supposedly to have been involuntarily given. Court of Appeal held that this evidence is admissible. If I may refer to page 136, holding no.6,

“The court has no discretion to refuse to admit evidence on the ground that it was illegally obtained if it is relevant. 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.”

If I may invite your Lordship to the actual judgment at page 168, paragraph 64,

“It was the stand of the defence that the blood samples taken from the accused for the purpose of conducting the DNA tests were not taken voluntarily. It was argued that eventhough no evidence was adduced by the accused on this issue the evidence relating to the blood sample must be excluded in the exercise of the discretion of the court as the available evidence shows that he was handcuffed at the time thereby rendering the taking of the blod sample involuntarily.”

And next page at paragraph 68 this is what the judge said,
“It is therefore clear that the court has no discretion to refuse to admit evidence on the ground that it was illegally obtained if it is relevant. This rule applies, inter alia, to cases involving illegal searches, evidence obtained by secret listening devices or by undercover police operations. It also applies to evidence obtained by unfair procedures. Thus in R v Apicella (1968) 82 Cr App R 295, the English Court of Appeal upheld a rape conviction based upon the results of tests carried out on a specimen of body fluid obtained from the accused for medical reasons whilst he was on remand. In AG for Quebeck v Begin (1955) SCR 593, it was held that even if a blood sample was obtained from the accused without his consent it is admissible to prove intoxication. It follows that the evidence relating to the blood sample taken from the accused is admissible as it is relevant ebven if it was taken without his consent.”

Then it goes to deal with Kuruma v The Queen and  R v Sang at patra 70 quoting R v Sang,
“That is why there is no discretion to exclude evidence discovered as the result of an illegal search, but there is a discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair.”

Hanafi applied R v Sang and Kuruma and says “Look, we admit first”.

Then we have the case of Ajmir Singh (1987) 2 MLJ 141 which I undertake to supply to the court. It is a Singapore case where the accused was charged with riding a scooter under the influence of alcohol. Blood sample was taken from him without his consent. After referring to R v Sang at page 144 of the report, paragraph F-J,

“Accordingly I do not find it is necessary to consider whether or not the appellant gives his consent and in that connection whether consent in S.70(3) means consent given expressly as distinguished from consent given impliedly i.e. without compulsion by a failure to object to blood being taken. But even assuming that no consent had been given, the appellant will still have to overcome the hurdle as to whether the evidence amounted to an involuntary confession or admission of a nature that renders the evidence inadmissible. In [] Lord Atkins said that a confession must either admit the terms of the offence or at any rate substantially or the [] which substantively commit the offence. Here had there be any confession or admission it was merely to the fact that the appellant had excessive amount of alcohol in his blood and not to the fact that he was unable to control his scooter was under the influenced of the drink.”

Therefore it is not confession and thus admissible. The same thing with our case. To prove the case we have to have the oral evidence with regard to the act. The DNA that was found on the bottle didn’t do anything, did not amount to confession to be excluded to have the discretion envisaged by R v Sang to be applied. So we []. The prosecution need to show the connection between the DNA from the bottle to the DNA in the sperm cell in the body of Saiful and the oral evidence of Saiful himself. So, it is not a direct confession. It is not something that you can equate it with a confession where by the DNA result obtained from the bottle that directly prove the case. We are saying our case is something like this. It does not fall within the exception envisaged by R v Sang, admission, confession or anything that is obtained from him which amounts to confession.

After the Singapore case and Malaysia case I would invite your Lordship to a few cases which the prosecution thinks very relevant for our purpose.

The first case is Herman King v The Queen [1969] 1 AC 197 . In this case drugs was found on the accused person as a result of illegal search in the sense that the search was not justified by a warrant or is not justified by law. The court held that the evidence is admissible.

If I may refer to what the court says at page 314 paragraph C,

“Although the search was not authorized by the Dangerous Drugs Law or the Constabulary Force Law there was no evidence that the appellant was willfully misled by the police officers or any of them into thinking that there was such authorization.”

So here it said he was not tricked neither he was misled. At page 315 paragraph C-G, [read].

Next, on page 316 paragraph A-B[read].

I now invite your Lordship to page 318 paragraph D-E,
“The appellant relied in his argument on the use of the word “trick” which appears in Kruma v The Queen and Callis v. Gunn and in other cases as well. The court reviewed this and other authorities and commenting on the passage in Lord Parker C.J.’s judgment to which their Lordships have already referred, use this language:
“We do not read this passage as doing more than this thing a variety of classes of oppressive conduct which would justify exclusion. It certainly gives no ground for saying that any evidence obtained by any false representation or trick is to be regarded as oppressive and left out consideration.””

It says it doesn’t. It is not a ground to exclude it if obtained by false misrepresentation.

Then at page 319 paragraph B it said,
“Their Lordships agree with the judgment of the Courts-Martial Appeal Court in holding that unfairness to the accused is not susceptible of close definition:
“It must be judged of in the light of all the material facts and findings and all the surrounding circumstances. The position of the accused, the nature of the investigation, and the gravity or otherwise of the suspected offence, may all be relevant. That is not to say that the standard of fairness must bear some sort of inverse proportion to the extent to which the public interest may be involved, but difference offences may post different problems for the police and justify different methods.””

That is as far as illegal search is concerned. In our case we are not saying there is anything illegal. The arrest and detention subsequently was lawful. So in obtaining the exhibit there was no trick employed. Dato’ Seri Anwar Ibrahim was not tricked to use the toothbrush, or the towel. He was not tricked to drink the water from the mineral bottle and then he brought it into the cell neither was he induced to do all that nor was he threaten to do it. There is no oppression.

Going by this case my Lord, it appear that even if it is illegal, the court still held that evidence from the illegal search was still admissible.

I next proceed to the next case in my list my Lord, the case of Jeffrey v Black [1978] 1QB 490, this is two cases before R v Sang. In this case drugs, cannabis was found in the accused’s premises where there was no search warrant is showed and neither the accused was presented to the search. It was held by the court that though the search was unlawful and evidence illegally obtained it is still admissible because it is relevant.

I’m coming to the case after R v Sang which is Trump [1980] 70 Cr App R 300. In this particular case, the accused was charged for drunk driving. Specimens were given after a trap of prosecution, he did not consent to the giving of breath specimens. And it was held the evidence with regard to the specimens was admissible.

If I may invite your Lordship  to page 302, 4th paragraph, I skipped that because it repeat R v Sang. Next, I refer to page 303 last paragraph,
“There are two particular aspects of the problem before the court. One is whether the court should attempt to discipline the police by ensuring that irregular behavior will, so far as the court can achieve it, be fruitless. This may also be regarded as a means of seeing  that an accused is fairly treated. The other aspect is to ensure that the trial itself is fair. It is possible to regard a trial as being a fair trial itself even though the evidence used at the trials was unfairly or improperly obtained. A trial is not a game. Lord Scarman said, at p.304 and p.286 respectively: “…the discretion is, however, limited to what my noble and learned friend, Viscount Dilhorne, calls the ‘unfair use’ of evidence at trial: it does not confer any judicial power or veto upon the right of the prosecution to prosecute or present in support of the prosecution’s case admissible evidence, however obtained.””

At page 305,
“In the present case, however, it would seem that the accused gave his consent as a result of the warning that he might be prosecuted for failure to provide the specimen. In giving this warning the officer was following the procedure applicable to obtaining a specimen under Section 9, not under Section 7. This court does not think that the specimen does obtained is a specimen obtained with the accused’s consent, within the meaning of Section 7. There was therefore no obligation to admit the evidence by virtue of Section 7 of the Road Traffic Act 1972. Consequently, while considerations of the policy disclosed in the Road Traffic Act 1972 may provide some assistance in determining the question before this Court, there is nothing mandatory in the act one way or the other.

This Court thinks that it is consistent with all the speeches in SANG (supra) to hold that evidence provided by the accused himself in the circumstances of the present case should be treated as being subject as to its admissibility to discretion of the judge. It was provided by the accused. It was given as a result of a threat. The police officer was responsible for that, although he was acting in good faith. Given the blood was very close to making an admission that the accused had consumed an excessive amount of alcohol. We think it is a matter for the judge’s discretion rather than of compulsory exclusion, because evidence analogous to admissions is so treated in the speeches in the House of Lords, and in the passages quoted from the speech of Lord Diplock there are specific references to the exercise of judicial discretion.

In the judgment of this Court the judge would have exercised his discretion improperly if he had excluded the evidence.”

So, despite there being a threat of the prosecution in obtaining the specimens still this case my Lord the court held it would be improper to exclude the evidence.

Now, I come to the case of Regina v Fox [1986] 1 AC 281. In this case the accused was charged for driving with excess alcohol in his breath. Breath specimens was obtained after an unlawful arrest. It was held by the House of Lords that the evidence is relevant to prove guilt therefore admissible. The fact that he was unlawfully arrested was irrelevant.

If I may invite your Lordship to page 290 of the report at paragraph E,
“In your Lordships’ House a frontal attack was mounted on the admissibility of the specimens as evidence, on the ground that it had been obtained by means which were not authorized by the act and which were illegal, that it was, therefore, tainted by illegality.”

At page 291 in the last paragraph, this is what the judge had to say,
“In the present case, on the other hand, the offence of which the accused now stands convicted is not the offence of failing to provide a specimen of breath. It is the offence of driving with excess alcohol in his breath, and the specimen was only evidence, important but not in itself conclusive, tending to show that he had committed the offence. Moreover, it was “evidence subsequently obtained from the accused himself relating to an offence that [had] already been committed by him,” and as such it would be capable of falling with the judge’s exclusionary jurisdiction.”

Then it refered to R v Sang between paragraph D-E,
“The Crown Court held, following the Kuruma line of authorities, that the evidence was admissible although it exercised its discretion to exclude the evidence on other grounds which are not here material. Having had the privilege of reading in advance the speech of my noble and learned friend in the instance appeal, I can now express the confident opinion that the holding of the court in Smith’s case was correct and that in that case, as in this the fact that the evidence had been obtained illegally did not make it inadmissible. Accordingly the Divisional Court in the present case was in my view right in treating the fact that the appellant was in the police station because he had been unlawfully arrested merely as a historical fact, with which the court was not concerned.”

In fact I think it was stated there in the holding that the fact that he was illegally arrested is not relevant. At page 294 it sets out the fact of the case, my Lord. So, what is clear from this case is that there was unlawful arrest and unlawful obtaining of the evidence and the court still says no. It admissible after refereeing to Kuruma and R v Sang.

Next is the case of Apicella [1986] 82 Cr App R 295. Here the case is of rape and attempted buggery. After he was charged and imprisoned, sample of body fluid was taken without consent because he thought being in prison he had to give it and had no choice.  The DNA evidence obtained from the samples were used against him. What happened was this, my Lord. There are 3 ladies who were raped and they were attempted buggery. All three of them suffered from gonorrhea. While this person is imprisoned the prison doctors suspected that he was also suffering from gonorrhea. So body fluid was taken, sent for analysis and they found that the strain of this gonorrhea was similar to that and based on that he was charged.

If I may invite your Lordship to page 296, holding no.1 and 2,

“(1) there was no rule of law which said that evidence of anything taken from a suspect, be it body fluid, a hair or an article hidden in an orifice of the body, could not be admitted unless the suspect consented to the taking.
(2) in the present case as the appellant was not tricked into submitting to the examination by the consultant, the prosecution’s use of the evidence derived from the appellant’s body fluid, taken in the circumstances it was, was not unfair and the trial judge was right in his discretion not to exclude it.”

At page 298, 2nd last paragraph and last paragraph, [read].

Then the 5th paragraph [read].

Next paragraph, my Lord,

“The pertinent question in this case is whether the intended use of that evidence was likely to make the trial unfair. The appellant was not tricked into submitting to the examination in the way which led to this Court’s predecessor in PAYNE (1963) 47 CR.App.R. 122; [1963] 1 WLR 637 to exclude evidence. In our judgment the prosecution’s use of the evidence derived from the appellant’s body fluid, taken in the circumstances it was, was not unfair.”

Again, looking at the factual material of this case and looking at our case, our case is grounded on more, stronger putting. There was no illegality, no impropriety, nothing. The exhibit from which DNA profile was obtained was not even in the possession of the accused. So that to equate it to be physical confession, nothing of that sort: no trick, no inducement.

There is another case which is R v Christou which I will not read.

I come to the case of Stephen Cooke [1995] 1 Cr App R 318 as far as the English Court is concerned. In this case the accused was convicted for rape and kidnapping. Identification of the accused depended on DNA evidence obtained from hair sample taken from the accused, from DNA profile taken from the semen in the victim’s vagina and camisole.  It is almost like our case, the DNA obtained from the towel, toothbrush and mineral water bottle matches with the DNA that was found in the sperm cells found in Saiful’s anus.

The complaint by the accused there is that there was no consent for the hair to be taken or the hair where the DNA traces were to be found. It was held that the evidence is admissible even if it is extracted without consent.  In Stephen v Cooke, this objection was taken under S. 78 of the Criminal Evidence Act.

If I may read page 328, paragraph B-G, page 329 para A.[read].

So, the evidence that was obtained and subsequently adduced to support the charge somehow similar to our case. The only difference is that there the court is prepared to [] even if it is unauthorized and impropriety, it is still admissible. Here, we are saying that there is nothing improper, nothing illegal and it must be admitted.

My lord, I’m coming to the last four cases. The last four cases is an American case which involved the Fourth and Fourteen Amendments to the United States Constitution, the expectancy to the privacy of the property.

The first case on the list is Commonwealth v Jeffery Byl (2007) SC. In this particular case, defendant was convicted for murder of a prosecutor assigned to prosecute him. The trial was supposed to begin the next day and today he murdered the prosecutor.  Among the evidence used was the DNA test result from water bottle that he left behind after an interview with the police.

He was called for interview and they supplied him with water bottle and they give him cigarette. He left them behind and he claimed now that he deceived to come to the interview in order for the police to obtain sample. He would not have consented to give any sample. The court held that it is admissible because he had abandon his rights over those article and there was no expectation of privacy when he left them behind.

The report is not paginated. If I may refer your Lordship to page 7 under the paragraph “Suppression issues” under subparagraph “physical evidence”,
“Bly argues that the method used by the Commonwealth in obtaining his known DNA sample constituted a non-consensual seizure and thus violated his rights under the Fourth and Fourteen Amendments to the United States Constitution, under R.14 of the Massachusetts Declaration of Rights and under the search warrant requirements. The judge denied Bly’s motion to suppress on this issue, finding that the cigarette butts and water bottle seized by the police constituted trash that was abandoned by Bly.

The thrust of Bly’s argument is that the police, suspecting they could not gain consent deceived Bly into providing the same material that would have resulted from a consensual search and seixure. Additionally, Bly argues that he did not abandon voluntarily the ite,s collected by the police, but rather was required by institutional rules to leave those items behind when he left.”

The fact of the case is in the third paragraph. And the last paragraph of the next page, it was held that,

“Based on the judge’s well supported findings, it is clear that Bly was not in custody at the time of the interview. Although he was in a police station, he had gone there voluntarily. The interview was not conducted in an interrogation room, but rather in an open door office. The investigation into McLaughlin’s murder was in its nascent stages, and Bly was interviewed only because he was on the victim’s trial schedule, and not because the police had any evidence specifically linking him to the crime. At no point during the interview was Bly told that he was a suspect. Bly stated that his attorney informed him that the police would be interested in speaking to all persons McLaughlin was prosecuting the officers acquiesced in that belief. The objective circumstances could not lead Bly to believe that this was anything other than an interview for the purposes of information gathering.”

The second case, Commonwealth v Lee Perkins (2008) SC. In this case the defendant was convicted for murder and rape. Sperms cells were detected in the victim’s vagina and rectal swab. The DNA samples were taken from there, the DNA matched with defendant’s DNA obtained from the soda can and cigarette butt used by him during interview with the police 5 years after the incident.

It is not disputed that the police wanted to obtain the evidence by this means after the defendant declined to give the samples. The police considered and it was in evidence “If I cannot get the sample from him, then we will call him for interview, interrogate him and then in the process give the drink and cigarette and take DNA from there. Held, it was admissible because he has abandoned the cigarette butt, he could not take the can of soda because of the rules and there was no expectation of privacy.

I take my Lord to the fourth page in the last paragraph,
“3. Motion to suppress. The defendant asserts error in the denial of his motion to suppress the butts of two cigarettes he smoked and the soda can from which he drank during his interrogation by police at the Massachusetts Correctional Institution at Concord (MCI Concord), as well as the fruits of evidence, namely, all the DNA testing. The defendant contends that he had a reasonable expectation of privacy in the seized evidence, especially where he declined to give police a sample of his blood for DNA testing. He contends there are prison rules that forbade him from taking the cigarette butts and soda can with him, and where the officers acknowledged a backup plan to make cigarettes and soda available to him to obtain his saliva sample for DNA testing in the event he declined to give blood sample, his failure to remove the soda can and cigarette butts cannot be deemed an abandonment of the item seized for purpose of Fourth and Fourteen Amendments to the United States Constitution, or art. 14 of the Massachuesetts Declaration of Right.”

The third paragraph,
“The defendant does not challenge the judge’s findings of fact. Instead he relies on the undisputed testimony of the officers that he declined to give a blood sample, and that the officers had discussed among themselves that if he declined to give a blood sample, their fall-back plan would be to collect anything he discarded that might contain a biological sample suitable for DNA testing, such as a cigarette butt.”

Last paragraph,

“The judge correctly determined that the cigarette butts had been abandoned by the defendant. Nothing prevented the defendant from bringing them with him after the interview had ended, as he had done with the balance of the pack of cigarettes. Whatever reasonable expectation of privacy he may have had in the cigarette butts was abandoned under both the State and Federation Constitutions.”

The next page, 2nd paragraph,

“With respect to the soda can, the judge correctly found that the defendant did not have a reasonable expectation of privacy in that item, where he knew that he could not take it with him because guards at the institution reasonably would consider it contraband capable of being made into a weapon. We note that the defendant made no attempt to sanitize the item or exert control over it, and therefore it, too, could be considered abandoned. There was no error.”

My Lord, evidence was led by the prosecution through witnesses who were called by NH that at no time other than the two towels that DSAI asked back he didn’t asked for the water bottle. With regard to the standard issue of the towel, toothbrush, of course he couldn’t. So, going by the Fourth Amendment: expectation to privacy, DSAI has abandon his right with regard to the water bottle and he had no expectation of privacy which will render the evidence with regard to DNA obtained from the towel and the toothbrush inadmissible.

Now, I’m coming to the third case, State of Iowa v Peter Christian (2006) COA. Here, defendant was charged and convicted for burglary and sexual abuse. DNA evidence obtained from water bottle and fork used during an interview at a voluntary program was used against him. It matched with DNA obtained from seminal stains on victim’s underwear. It was held that he has abandoned those items and had no expectation of privacy.  The court also held that evidence obtained by trick may not be suppressed if not coercive and fundamentally unfair,
Here, instead of being interrogated by the police, he was called for a voluntarily program by the Iowa City Rape Victim Advocay Program. During the interview he was served with cake and water. You can find it at page 2 in the second paragraph.

The third paragraph says that,

“Christian filed a motion to suppress all DNA test results, claiming the DNA samples obtained from the water bottles and fork were product of an illegal warrantless search.”

At page 3, the last 6th lines below,

“Christian’s motions for directed verdict were overruled. The jury convicted Christian of sexual abuse in the third degree and acquitted him on the burglary count. The court entered a judgment of conviction and sentence in accordance with the verdict.

On appeal Christian argues the following in the brief submitted by his attorney:
1.    The court erred by not suppressing the DNA evidence secretly acquired by the state and committed further error by simultaneously finding that the subsequent search warrant affidavit contained probable cause to search if the DNA evidence was removed.”

Page 4 in the second last paragraph,

“To establish a violation of the Forth Amendment, Christian must show that he had a legitimate expectation of privacy in the item seized. “When individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had.” In other words, “[v]oluntary abandonment of property in the constitutional sense occurs when an individual no longer has a reasonable expectation of privacy.” To determine whether a person has voluntarily abandoned property, we consider whether the person intended to abandon the property. Intent to abandon the property “may be inferred from words, acts, and other objective facts.””

The next relevant paragraph could be found at page 5. The judge above the
heading “Bill of particulars”,
“Based on the foregoing facts, we do not find Clarahan’s conduct so coercive or fundamentally unfair as to deny Christian’s right to due  process of law. We therefore affirm the trial court’s ruling denying Christian’s motion to suppress the DNA test results seized without a warrant. Because we have affirmed on this issue, we need not address the merits of Christian’s challenge to the search warrant.”

What happened is that they served him with a water bottle. Midway the switched the bottle, they took the bottle and replaced it with another one so as not to cause the accused’s suspicion. They employed trick and the court said that it is not coercive or fundamentally unfair to have it rejected.

My last case is Kevin Piro v State of Idaho (2008) COA. Here the accused was arrested for attempted lewd conduct. While under interrogation he was given a bottle of water, a pencil and a piece of paper. He was later told to leave the bottle behind. DNA obtained from the bottle matched with DNA from sample taken from unsolved rape case. He was later charged with rape and burglary and convicted. The DNA evidence from the bottle was used against him during the trial. It was held that he had no expectation of the water bottle provided by the police during custodial and interrogation, just like in our case, just like he had no expectation of privacy in bed sheet and prison uniform provided by authorities. So, in our case, Dato’ Seri Anwar Ibrahim also have no expectation of privacy with regard to those items issued to him during his stay in the lock up.

All these cases my Lord, will show whether it is English case, African case or American case; the court had consistently admit evidence though illegally obtained so long that if ever there is any trick the trick is not so trickery. There was no inducement, no threat, and no promise. Those cases which the English court had declined to admit were only cases involving confession. In fact I was asking my learned friend to get me the particular paragraph in Hanafi or Wan Mohd Azman where J Paul said as opposed to what R v Sang said. By 2006 when Hanafi was decided there are only two cases. There is one more after R v Payne where the court actually excluded illegally obtained evidence.

There was one issue there. The prejudicial effect must not outweigh the probative value. The cases of Noor Muhammad, Boardman…

In Hanafi, paragraph 73 this is what J Paul said,

“It must be observed that except for cases such as R  v Court (1962) Crim LR 697 and R v Payne [1963] 3 All ER 848 there appear to be no other English reported cases where this discretion has been exercised.”

That is up to 2006. We are talking about when something is said to be prejudicial. When you talked about probative, the saying when something was forced, it support  and substantiate the allegation.

In Noor Muhammad, the prejudicial effect surely outweigh the probative value because we are talking about bad character evidence. Nothing to be the issue of the court. In Boardman, we are talking about similar fact evidence. Again, we are not talking about the case being tried. We are talking about evidence with regard to other cases which may afford corroboration. After all corroboration is something that confirms.

In our case, the question of balancing exercise does not arise. The question whether or not prejudicial effect outweighs the probative value does not arise because this evidence will directly confirm the commission of the offence, the DNA evidence.

If I may I refer your Lordship to the case of DPP v Boardman [1975] AC 421. At page 451 last paragraph, [read]. In Boardman, they admitted the evidence because of the striking similarity. This balancing exercise of prejudicial effect and probative value only applies to those kind of cases.

In fact it was discussed in Wan Mohd Azman that only when that evidence covers instances, cover a time and place other than what is specified in the charge, then you  need to have this balancing exercise.

But when in this case, the evidence obtained will confirm Saiful’s testimony. Saiful’s testoimony is in fact a complete story that will support the charge. All the rest, chemist report, chemist’s evidence, medical evidence, DNA; these are all    merely confirmatory of what he has said. So it is corroboration actually. And these are admissible because it tends to confirm what Saiful said.

Other than that we have also literature which I will not read. Just for your convenience my Lord, Blackstone’s Criminal Practice 2005, Archbold’s Criminal Pleading, Evidence and Prcatice 2007 and Sarkar’s Law of Evidence 16th Ed 2007; all on illegally obtained evidence and the instances which the court had applied or declined to apply and most of the cases that I cited could be found there except the American cases.

To sum up, I would say this:
(1)    defence has failed to prove the basis that the evidence obtained or collected from the cell was improper or illegal because they have not been able to prove on balance of probability that DSAI was not informed of the grounds of arrest which makes the subsequent detention unlawful;
(2)    the taking of the exhibits had nothing to do with the arrest and detention. There was no trick employed, there was no inducement or threat. The condition while he was examined and the condition in the lock up is not something that induced him to use the items that was collected later on. There was no inducement, no threat, no trick or no promise. There is nothing illegal.

But if the court is of the view that it is something improper because the arrest is illegal, then all these cases that is referred to your Lordship would help the court to arrive at a decision that this is not a proper case for your Lordship to decline, to admit evidence. Because there is nothing so tricky, nothing so coercive, there is nothing so fundamentally unfair for your Lordship to exercise your discretion.

Our stand is that there is nothing before the court either in the trial within a trial or the substantive trial which can trigger the exercise of your Lordship discretion [] to exclude admissible evidence no matter how it was obtained.

I pray for the application of my learned friend to be dismissed and order or for your Lordship to allow us to call both Supt. Amidon and Aidora to tender the respective exhibit and to be marked as P.

Much obliged.

KS:    We need time to reply.

YA:    2.30 p.m
[12.25 p.m.] Stand down.

Anwar Ibrahim Sodomy II – The Recorded Truth – 14 Februari 2011 February 15, 2011

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

Pihak-pihak:-
PP    : Semua hadir
PB    : SN, Datuk Param Cumaraswamy, Dato’ CV Prabhakaran, (KS, Ram Karpal, Marissa, Radzlan tidak hadir)
WB    : Abd Shukor bin Tokachil (Bar Council), Zamri Idrus (for Complainant)
Expert for defence: Prof. David Wells
AI hadir

Sambung bicara 45-09-2009

[9.05 a.m.]

MY:    YA, pihak-pihak masih seperti dahulu. Kes untuk sambung pemeriksaan balas SP3.
PC:    KS is not here yet. He will be here in 10 minutes. There’s a traffic jam on the way to the court. He is just 10 minutes away.
YA:    Who’s going to cross? KS?
SN:    Yes. On his part. And I will doing on my part.
YA:     MY, stand down for 10 minutes.
[9.07 a.m.] Stand down

[9.41 a.m.]
MY:     YA, kes untuk sambung pemeriksaan balas. SN akan sambung.
YA:     Panggil SP3.

Pemeriksaan balas oleh SN

SP3 mengangkat sumpah dalam Bahasa Inggeris.
Q:     Dr. Siew, the last instance you are supposed to give to us the pro forma. Did you give it to us? As ordered by the judge. The entire set?
A:     Yes.

Q:     Did you have the copy of the pro forma with you?
A:     Yes.

Q:    It appeared that you have filled up page 1, 2 and 3. Would that be all?
A:     YA, I filled up page 3, 5 and 6 of this so called pro forma for the suspected rape case examination.

Q:    Why did you said “this so called pro forma”?
A:     Because the pro forma is for rape cases. I’m dealing with a sodomy cases.

Q:     Sodomy cases does not fall into that?
A:     No. This pro forma is designed mainly for ladies victim.

Q:     Why then don’t you have the pro forma for sodomy?
A:     There was no specific pro forma in the hospital for sodomy cases.

Q:     Is that because there is no sodomy cases reported then?
A:     There was, but there was no pro forma for such allegation.

Q:     Why don’t you have it?
A:    I’m not the hospital management.

Q:    You are the forensic scientist. Don’t you have a pro forma for sodomy cases?
A:     No. All the time we only have this pro forma. We don’t have specific one for suspected sodomy victim, only pro forma for alleged rape victim.

Q:     Why is page 4 missing?
A:     Page 4 is for the consent in rape cases. It is not suitable for my case. Therefore I have to fill another form for the consent of the sodomy case

victim which I’ve tendered in court.

Q:     How different could it be for consent of rape victim and a sodomy victim? I find it very hard to understand.
A:     In the original consent of a victim, the word “rape” is used.

Q:     Examination. At page 5, why did you cut the word rape and put sodomy there?
A:    At that time there was no pro forma.

Q:     If you can’t get the consent for rape, then how come there is a consent of a sodomy case here?
A:     There was a time when there was no pro forma for sodomy cases, and most of the doctors try to adapt the pro forma for sodomy victim. But in this

particular case, after filing the 6 pages, it is not suitable for us to fill up the form. Therefore it is better for us to write notes rather than filing up

the subsequent form.

Q:     You admit there were sodomy cases. But there is no pro forma for it. And you don’t intend to do one.
A:    This is government standard form. But there is no sodomy form at that time.

Q:     What is the grand difference?
A:     Sodomy is for men and women while rape is for women.

Q:     This is a medical examination pro forma. Are you suggesting the minute a person come for asthma, you need another pro forma and when another person

come for meningitis you need another pro forma? So there is specialise pro forma for sexual assault cases, agree or not?
A:     No. It is very clear in page 1.

Q:     Does it matters or not whether it is sodomy or rape case?
A:     I did not agree.

Q:     Explain
A:     At page 1 of the pro forma, it is stated it is for rape victim of women. More to the examination of private part of a woman and asking about history

of the woman, e.g. menstrual history, sexual history. Some of this examination is more pertaining to a woman. Even on the later examination, it is also meant

for a woman. The diagram also show the front of a woman. []. The pro forma is meant for a woman.

Q:     Did you alone fill up the pro forma? Page 3
A:     No. Page 3, 5 and 6 was filled by Dr Razuin bt. Rahimi under our supervision.

Q:    Who is Dr. Razuin?
A:    A medical officer who was present with us during the examination. She documented the thing for us.

Q:    What was her role there?
A:     Documentation.

Q:     Did she fill this one up?
A:     Yes

Q:     Every word of it?
A:     Yes.

Q:    Are you very sure of it?
A:    Yes. The signature is here.

Q:     Page 3, look at the name of DSP Jude Pierera. Are the handwriting the same?
A:     No.

Q:     But you said she fill up.
A:     But…

Q:     So looks like there is 2 different handwriting here. Is that correct? Why?
A:     Yes. Jude Pierera is the police officer.

Q:    Police officer fill up the document? It is a doctor’s document, not a police document.
A:    Maybe the police officer fill up himself.

Q:     Have you seen the Kuantan’s pro forma?
A:     Yes. You showed me before.

Q:     Kuantan is more a hospital clinic compared to HKL. And Kuantan has a proper sodomy pro forma. Do you agree with that?
MY:     YA, at this point in time I would like to ask what is the relevancy of the question.
SN:     The relevancy would be the relevancy of expertise. I’m saying that HKL is the most top notch hospital in Malaysia.
YA:    It does not follow the procedure. Is that what you are saying?
SN:    Yes.
YA:    Objection overuled. So you can proceed.
MY:     YA, my concern is this. There are about 15 pages of this pro forma. And he mentioned about Dr Razuin whom he mentioned first time when KS is

examining. But he also says that he had prepared a report not in form of a pro forma. And at the end of the day, what is important is whether or not you put

in in form, no matter what form it is.
YA:     Let them ask question.
MY:    He cannot be asked on what Kuantan Hospital did.
SN:     The prosecution at all time []
YA:    Nevermind. You proceed.

Q:     Assuming that this is not the real format for the pro forma. But you did fill up certain pages. You only fill up page 3, 5 and 6. Can you explain

this.
A:     We have it written down as notes.

Q:     The notes, do you want to produce it in court?
A:     No. I can give it orally.

Q:     You have left several pages blank in the pro forma. And now we know there is another set of notes that you would have depend for your finding.

Compared to Kuantan’s pro forma, it is complete although it is more inferior. Can you produce the notes to compliment the pro forma that you have?
A:     I do not need to produce the original notes until it is ordered  by the court. The Kuantan’s form is very complete because Dato’ Dr. Zahari is the

first person who specialized in this subject.

Q:     Do you agree the history taking is the corner stone, the crust of any medical officer? Therefore don’t you think the production of the notes is

important to ensure the completeness of the court?
MY:     I remember the court made a ruling on 24 Nov for the production of the pro forma because it was referred under S.159. [] And the whole pro forma has

been supplied to the defence. The question of whether the notes should be made available does not arise.

SN:     My question is this, the pro forma is complete at that time, but I don’t know there is separate notes on the examination, []. If this report is going

to be produce, it has to be a complete report. If you have a supplementary notes to the pro forma, then you should supply it in court and show it to us.
YA:     They are not entitled to give the pro forma sheet. They are required to give you the pro forma because they referred to it. []
SN:     []
YA:     So ask him about the notes. Not asking him to produce it. That’s it.

Q:     Explain to the court what are the exact question that you put to SP1.
A:     The patient came to us complaining that he is being sodomized by a VIP for eight times since…

Q:     I’m talking about the history, others than regular history. Other aspect of the history.
A:    May I know which portion of the history?

Q:     I’m refering to McLeod’s book on Clinical Examination. This is an extract of the book on page 113.
A:     Mine is page 23. The psychiatric history.

SN:     I’ll come to it later. Let me read from the book.
Q:     The history is crucial in making diagnosis. Do you agree?
A:     Yes.

Q:    One of the important history is past history.
A:    Yes.

Q:     You also ask about drug history? Family history? Social history?
A:     Yes. Yes. Yes.

Q:     Why would you ask family and social history?
A:    Social history is to know the patient’s behaviour in the social circles. Family history mainly for some of family members characters, any known

disease.

Q:     When you ask about family history, what did he said? Did you ask about the family history?
A:    I did not ask the family history per se. I have to admit.

Q:     Why did you did not ask? Is it a protocol?
A:     This case came with a complaint of sodomy, so they are more pertaining to ask about the social history, some of the medical history, surgical history

and it is not important to ask about family history. This is not about a congenital problem or heart attack. Sodomy is not inherited from the family.

Q:     So doctor need not ask about the family history?
A:     We need to ask importantly pertaining to the past history because the past history is very important to build up with the current examination. The

past history in this case is very important to me especially the past episode.

Q:    Why didn’t you ask about the family history?
A:     Usually we ask for any of the heredity disease like diabetes, hypertension, heart related problem.

Q:    How many times or how often in your caree a person come to E&T and say I have been sodomised by a famous public figure?
A:    This is the first time.

Q:     That’s why. You must also take the history of psychiatric and mental state of this person. Why did you role it up?
A:     It is not the first thing in mind. It is the last thing we have in mind after we do examination. Later if there is a problem, we will conduct

psychiatric test.

Q:     Did you role it up any way?
YA:     Jawab saja ada tidak.
A:    We did not role it up.

Q:    Doctor, do I have to look at the medical book again? You have to do it also.
A:     YA, I did not examine a psychiatric patient.

Q:     This is a basic question on examination level. You don’t need to be a psychiatrist to ask the question.
MY:    Why are you quarelling with him. He said he did not ask. That’s it.
YA:    You should ask why he did not ask. Tapi if you keep on quarrelling with him susahlah. [] Proceed.

Q:     Do you agree when you examine patients you would look into his biological history, medical clinical history and you’ll also touch on his

psychological state of mind.
A:     I’m a forensic doctor not a psychiatrist. I just examine patient who alleged being sodomised.

Q:    Is it a basic standard of a doctor? Isn’t it a basic protocol that a doctor need to know about the psychological state of mind of the patient?
A:    Yes.

Q:    Part of your duty. Any medical doctor. Not only you.
A:     The medical history depends on what is the case I’m attending. In that particular case, the patient claimed to me that he was sodomized. He give full

cooperation and he did cooperate with good manners. So I did not need to go into the psychological part because the content is straight foward which he

claims sodomy.
Q:     Was Saiful attended by another person in HKL before he went to see you?
A:     Saiful came, first attended as an outpatient. Subsequently he was referred to ED, which is then referred to OSCC for our examination.

Q:     Who first attended Saiful because he went to A&E first? Which doctor attended him when he went there at 6 o’clock?
A:     I just know that the patient referred to outpatient department, later referred to E&T, but I was not in charge in any of it. I only came at 9.00 p.m.

Q:    Who first attended him at 6.00 p.m.?
A:     A doctor in outpatient department.

YA:     They want to know the name. What is the name of the doctor?
A:     Some name I know is Dr. Suresh. But in sequence I don’t know because when he is referred from one department to another there must be a doctor

attending him. I am a forensic doctor, not part of the hospital management.

Q:     You should know it.
A:     YA, Dr. Khairul will be the one who knows it.

Q:    Did you talk to Saiful and questioned him?
A:     Yes.

Q:    Did you ask him?
A:    I don’t ask about that part. First, he was attended in the outpatient department, then E&T, then referred to OSCC, then attended by us. There is Dr.

Suresh who attended him, but I don’t know the exact sequence.

Q:     Was there a Dr. Daniel?
A:     I’m not very sure.

Q:     Did you ask Saiful about Dr. Daniel?
A:     I don’t ask.

Q:    You didn’t ask him what happened in E&T?
A:     No.

Q:     Since you said that P22 is made based on your notes, don’t you think Dr. Daniel’s notes relevant?
A:     Yes.

Q:    Why is it important? Because, can I say he is the first person in contact with Saiful?
A:    Yes.

Q:    Therefore there has to be some level of history and examination taking, correct?
A:     History, yes. Examination no.

Q:     But do you know there is examination taken?
A:     Usually they don’t do examination. In this type of cases, usually they will refer straightly to OSCC. The moment they know it is a sodomy case, they

don’t exam  further. They let the doctor in charge to do it.

Q:     Then what happened in between? Because you assemble at 9.00. I need to know.
A:     The patient came to outpatient at 3.25 p.m., subsequently he is referred to E&T. But in between they lodge a police report because they have not file

it. I don’t know about that but maybe Dr. Khairul knows it because he is attached to E&T. I was informed about him at 7.30 p.m. by Dr. Razuin.

Q:     How many years you have been dealing with Forensic unit?
A:     Since the year 2000.

Q:     How many case of sodomy cases?
A:    About 20.

Q:    Rape cases?
A:    I don’t really count.

Q:    Many? Hundreds?
A:     Not up to that. Because rape cases is handle by O&G.

Q:     What happen normally when someone has been sodomised or raped? Did they go straight away to E&T in HKL or how? What is the normal sequence of the

event take place?
A:     Usually, the patient come and escorted by the police. The moment they admit of being a sexual assault case, we straight away send them to OSCC

because we don’t expose them to the public. We straight away admit them to OSCC. They will be referred to a specific doctor who will manage them in OSCC.

But in this particular case, Saiful come to out patient department first, but the doctor came to know about the sexual assult, then he is subsequently

referred to E&T and later to OSCC.

Q:    Is it normal for a patient to go and lodge a police report first and later go to the hospital?
MY:    I don’t think that question should be ask. KS keep on saying SP3 is an expert. Then ask him relating to expertise. Why must the person goes to the

doctor, not to the police. This is beyond him. I think that is []
SN:     We are not wasting anybody’s time. This is a serious matter.
MY:     []
SN:     []
MY:     He is not an investigator. I mean we have heard from Dr Razali, Saiful and we had been informed what is this case. And they came to examine and it is

not for them to investigate why did you came to us, why didn’t you go to the police first.
SN:     It is wrong use of word. I did not ask him to investigate. []
MY:     You only allowed to ask relevant question.
SN:    This is relevant.
YA:     At this stage I’m going to allow the question. Ask only relevant question. At this stage I have yet to see the relevancy.

Q:     Didn’t it come in your mind that this gentlemen come straight to E&T and not the police first.
A:     As from my experience we don’t refuse patient when they came to us without lodging a police report.

Q:     How often did you get people go directly complaining to E&T?
A:    I did not manage the hospital.

Q:    []
A:     For example in child abuse or sexual assault case, the parents usually come to see the doctor first to confirm then lodge a police report. Sometimes

they don’t want to lodge a report because of shame. But sometimes these patients went to the police and lodge a report and subsequently the police would send

them over directly to the hospital. In this case, the patient went to the hospital first. For me it’s alright either way so long they make examination.

Q:     You ask for social history, but not family history. What else did you ask?
A:     We ask about the previous history, mixed up with the current history. Because it is relevant as it is done by the same person over some period of

time.

Q:     Personal history?
A:     For example, if he is a smoker or non smoker. I asked whether he has sexual experience before, he denies. And what he is working as, he said private

assistant.

Q:     So I assume what you said just now recorded and I have no way to have access of it?
A:    I give oral testimony.

YA, may I refer to IDD 16, Laporan Perubatan Hospital Pusrawi.

Q:    Doctor, what is this document?
A:    Notes by a doctor.

Q:     What is the name of the doctor?
A:     Dr. Mohd Osman Abdul Hamid.

Q:     Can you read what is mentioned there? First page. The history.
A:     [read] unable to read. [read] not very sure. [read] not very sure when passing motion. [read] YA, I’m not able to read some of the handwriting.

Q:     Did you ask or did Saiful tell him that he went to Dr. Osman?
A:     Yes. We get to know it from the outpatient department where we are told he went to Hospital Pusrawi.

Q:     In the report it says “Pain when passing motion”. What could cause pain?
A:      Could be any of the condition, such as injury to the area, [] and a lot of [].

Q:     [] ? Possible?
A:     Possible.

Q:     Trauma?
A:     Yes.

Q:     If a person comes at 2 o’clock and he says to doctor “I’ve pain in passing motion”. Is it possible for somebody who demonstrate pain that a

proctoscope would have been inserted for examination?
A:     Usually if the patients is in tremendous pain, the doctor usually don’t put a proctoscope. no if [] pain.

Q:     And also even touching that spot is very sensitive?
A:     Yes.

Q:    And so more the reason why a proctoscope will not be use. Agree?
A:    If the patient is in pain.

Q:     So, if he had pain there, and SP1 came to you at 9.00 pm. Would the pain dissipates at that time?
A:     When we exam the patient, he was comfortable, calm and cooperative he did not complaint of pain at all. He only complaint of being sodomised.

Q:     Then who is telling the truth here. The doctor in IDD 16 says there is pain but you said he told you there is pain.
A:    It’s not my role to decide.

MY:    I don’t think that’s a proper question. Who is stating the truth is not his expertise.
SN:     But the doctor here wrote there is pain.
MY:    YA, to begin with, this is not even admissible. It is IDD only. He is not in the position. Neither the court at this position can tell who is telling

the truth. I mean what kind of question is this.
SN:     He examined the patient and says there is no pain. And there is another report here saying there is pain. What’s wrong of asking the question?
YA:    That’s why we allow you to ask the question. But when it comes to a stage who is telling the truth, that one…
SN:    []
MY:     Opinion may be asked to him. But with regards to who is telling the truth, surely it is not his expertise.
YA:     Objection sustain. You can submit later on who is telling the truth. But not from this witness.

Q:     I refer to page 3 of IDD 16.
A:    I only have page 1 and 2.

SN:    I have it in my copy here, YA.
YA:    Is it part of IDD 16?
MY:     No.
SN:    Yes.
YA:    You only tender two pages.
SN:    I want to cross-examine on page 3. Are you objecting to it?
MY:    Make it IDD 16A.
YA:     Okay.

[Notes made and signed by Dr. Osman] is refered and identified as IDD 16A.

Q:     Doctor, can you read the notes?
A:     [read]

Q:     “He presented with pain in the anus for two days. He cannot sit down because of pain”. Ordinarily, if the patients says that, can the pain be

dissolved about 7 hours thereafter? I’m talking about that kind of pain.
A:     If it is so severe, it won’t be. But the doctor managed to put the proctoscope in and managed to see the inside also even when the patient complaints

of pain.

Q:    [] Can the pain be dissolved in 7 hours? Yes or no?
A:    No.

Q:     About your forensic qualification and experience. Doctor, what papers have you published in this field especially sexual assault?
A:     I’ve published a paper of medical science together with other doctors.

Q:     When? Which year was that?
A:     It was last year.

Q:     How many papers?
A:     Only one. But other paper is not in medical science, more to death.

Q:     From what you have told, would you accept that your case load is low compared to international standard?
A:     Not necessarily.

Q:    Some doctors have about 2000 cases per year but you only have about 200-300 cases in the last 13 years and that makes it about 69 cases per year. Do

you agree it is low compared to the international standard?
A:    Yes.

Q:     How many times have you testified in court?
A:     More than 100 times.

Q:     How many forensic pathologist were there in HKL in June 2008, at the time of this complaint?
A:     Approximately 5 at that time.
Q:     How are they chosen to deal with cases?
A:    On-call.  [Explain further]

Q:     Are the other forensic pathologist as qualified as you in terms of experience and qualifications?
A:     There are those who are older than me. Some have more cases than me. Some are more experienced than me.

Q:     This is a public interest cases. Why would not the more experienced one handled the case?
A:     I was on-call at that time doing co-covering for clinical cases. I was not chosen to handle the case but it was my duty to handle this case.

Q:     Lets go to standards here. Are the standards adopted in your forensic recognised by any international standards? In your forensic unit.
A:    There are some accreditations on…

Q:     What accreditations?
A:     The Malaysian standard.

Q:    What is the standard?
A:     I don’t go through that. I don’t know about that.

Q:    But you said there is a standard.
A:     There are some accreditation, but I’m not in charged on that portion.

Q:     But you are assuming there is a standard?
A:     Yes.

Q:     But you don’t know who and what. And would that be international standard. How can you say it is?
A:    I don’t really know about it.

Q:     So you don’t know. You may not even be accreditated. You are not very sure?
A:     I can check for it if you want.

Q:    What are the quality forensic control that you use at your place?
A:    I will locate it on that session.

Q:     Lets go to the lab. You have a lab at HKl, don’t you?
A:    I don’t manage the lab.

Q:    But you have a lab?
A:    I don’t have it in the Forensic Department.

Q:    Nevermind. Forensic should be accreditated for it to be of quality. Is it correct?
A:     Yes.

Q:     And you say you have quality. When you have a lab, what kind of quality control do you have?
A:     We don’t have a lab in my department.

Q:     What is the quality control in your work to avoid cross-contamination in your unit?
A:    YA, may I have time to find it in a proper way?

YA:    Can we move to some other question? So right now you can’t give the answer?
SP3:    Let me find it out. And I’ll give it to you.

Q:     Have you been to courses for quality control?
A:     No. Some other doctor have been.

Q:    Why?
A:    Chosen one will be.

Q:    Why you said chosen one? This is a standard quality control. You are doing your job everyday. So that’s why I’m asking you. When you do your job

everyday, there has to be courses you go because your job is ever changing. Therefore there has to be certain standards and protocol and you’ve not gone to

any courses.
A:    I don’t go to the course.

SN:     YA, can we take a short break for 10 minutes? KS is here.
YA:     Stand down for 10 minutes.
[10.49 a.m.] Stand down.

[11.09 a.m.]
YA:     What happen to KS?
SN:     He is stuck at the Royal Commission inquiry. He made a submission and is waiting for the decision.
YA:     Saksi diingatkan masih dibawah sumpah.

Q:     Do you have a control system in your unit where you can get feedback?
A:     YA, may I find out that thing for you?

Q:     Your position and role as forensic pathologist. Do you agree you run you unit in un-bias manner?
A:     Yes.

Q:    That you should as well without fear or favor?
A:    Yes.

Q:    All complaints by patients treated equally and fairly, without exception?
A:    Yes.

Q:     In some countries, the forensic and DNA testing is at the same unit. Here in Malaysia what is the position?
A:     The DNA is sent to the Jabatan Kimia Malaysia.

Q:    So you don’t run your own lab?
A:    No.

Q:    But there is a lab in HKL?
A:     No. Not in my department.
Q:     In your qualification you have mentioned of the years of experience. So you would be required to have done, you have read ID25 the Laporan Kimia. Is

that correct?
A:    Yes.

Q:    Therefore you ought have to have knowledge in DNA, some level in DNA, sample of testing.
A:    No. It is more pertaining to scientific role, DNA expert role.

Q:    But you are an expert. You should have some knowledge of it right? How it is prepared.
A:    Not expertise.

Q:    Not expertise. Knowledge. What is DNA? I’m sure you know what is DNA, how it is extracted, right? I’m not asking for specific analysis, because it is

not your expertise. But when you read something, for example ID25, you would have an idea how DNA test is generally conducted, right?
A:    Some idea, YA.

Q:    And you read the report, don’t you?
A:    I read the report for interpretation.

Q:    But for interpretation you ought to have some knowledge, right?
A:    Some knowledge, yes.

Q:    So, therefore there has to be a symbiotic relationship between the forensic doctor and a forensic scientist. There is some understanding of each

others work.  It is sometimes overlap, right?
A:     I disagree.

Q:    Why did you disagree that there are some level of overlap?
A:    Because the forensic scientist is more to the lab, more to the analytical aspect. For the doctor it is more to the interpretive aspect. We interpret

the result from the report, we don’t do the analysis.

Q:    I’m saying there is some overlap, undertsnading of each others work. That’s all. I’m sure you know what is electro-pyrosis. You don’t need to be a

DNA expert to know it. Correct? That’s why I’m referring to knowledge. Some level of overlap.
A:    Yes. Some basic knowledge of it.

Q:    You supplement each other, right?
A:    Yes.

Q:     Are you aware that our Jabatan Kimia is an accreditated lab?
A:    Yes.

Q:    What accreditation?
A:    I don’t know what it is specifically.

Q:    What level? International standard? SIRIM? Singapore standard? What?
A:    I don’t know about that.

Q:     You have confidence that the Jabatan Kimia is accredited.
A:    Yes.

Q:    And whatever they come out with you’ll believe it?
A:     Yes.

Q:     I refer to ID25, Laporan Kimia. Who prepare the report?
A:     The DNA report is by Dr Seah Lai Kong and the toxicology analysis report was prepared by Mr. Mohan.

Q:    You said you have confidence in what Dr Seah is reporting because her lab is accreditated.
A:    Yes.

Q:     You have in your area of expertise certain manner of reporting. Meaning protocol in reporting.
A:     Yes. We have a general guideline on how to prepare the report.

Q:     Do you have a copy with you?
A:     No. In preparing the report, you have to do the biodata, the history, the examination, the test done, the result you received and the conclusions and

diagnosis, the cause of death. That is the general guideline for all the doctors.

Q:     So, those guidelines are used to prepare P22.
A:     Yes. Generally.

Q:     The basics have to be there?
A:     Yes.

Q:    And it must be done un-biasly.
A:    Yes.

Q:     And in P22, Medical report HKL. In your summary you said “No conclusive clinical findings suggestive of penetration. In fact there is no clinical

findings indicative of suggestive penetration” . []. That one you found?
A:    Yes.

Q:     So this is part of the protocol you always follow?
A:     Yes.

Q:    Is it considered as protocol?
A:    Guideline.

Q:     So I assume even the DNA scientist will follow similar protocol?
A:    I don’t know about their protocol.

Q:     You don’t know, but you think there is a protocol?
A:    I don’t know. []

Q:     Examination  of the patient. Why did you choose just swab? Wouldn’t that be anything that you can use to take samples from SP1?
A:     [] To take sample.
Q:    But you go to the peri anal region. []. Is there any other methods and other procedure of taking further sample.
A:     I don’t understand.

Q:     Why didn’t you use slides? To smear on the slide from each swab.
A:     The slides is for the study of the otality of the sperm to estimate the last time since the last intercourse happened. But in this particular case,

in our opinion, the swab is more appropriate because the incident already happened two days before so we want to preserve whatever evidence for DNA.  That’s

why we choose the swab.

Q:     Isn’t that international standard? I put it to you that you that it is international standard that apart from taking the swab you smear it on the

slides. Not only for that reason, but more than that. What other thing that is used to smear on the slides?
A:    In this particular case, we don’t know there is a point to do the slides. The swab is more valuable in our case because the patient came two days

after the incident. The slides is prepared for the biological studies of the sperm. To see whether the sperm is intact or [] or to estimate the time since

the last intercourse. But in this case the patient came almost two and a half days and we are worried whether the sample still remain there or not. That is

why we choose to get whatever valuable to sent which is more sensitive case in this particular case.

Q:     Even if you take the swab and then smear, how will you lose the sample? It is the same sample you test. In what way will it affect?[]
A:     Depends on the method.

Q:     Yes or no?
A:     Please repeat the question.

Q:     You take the slides and smear on it too. Because you want to identify whether there was sperm. So one of the methods apart from taking the swab, put

it in the bag and send it over, you also smear it on slides. It is always a double because if you miss that you have it here. Therefore it is more than that.

It is actually a safeguard. Do you agree?
A:     It depends on what type of method I want for the analysis done. I want the DNA, I prefer the swab. If I want to study the microscope, I use the

slides. But in this case the DNA studies is more valuable than microscopic test in our opinion. That’s why we used the swab.

Q:    That is not an international standard. []. If you smear it on the slides, the microscope will give instant answer whether there was present sperm. Do

you agree?
A:     Yes. It will be faster.

Q:    And immediate? And you will see instantly, right?
A:    Yes.

Q:     It doesn’t be whose it was, but it will be there, right?
A:    Yes.

Q:     And with the microscopic you also take the photograph.
A:    I don’t have the facility in our department. But it is possible if we have the facility.

Q:    And that slides you can even send it to Jabatan Kimia. There would be no problem.
A:     That should be the domain of the [].

Q:    But you would have done it.
A:    I’m not an expert on [].

Q:    But you don’t do it.
A:    I don’t think I need to do it in this particular case.

Q:    But it will be a good practice. Do you agree?
A:    Depends on the case. But in this case we don’t think.

Q:     Why not in this case?
A:    Because in this case it involved sperm. Every male has sperm. But the DNA…

Q:    You are going too far. I’m asking you just for the identification of the sperm. It doesn’t have to be whose.
A:     Ideally sperm, but []. That’s why we choose for DNA. It is more sensitive.

Q:     You do that. But you can also do this. Agree?
A:     Not in this case. In this case I would prefer to send for DNA.

Q:    This could have been done?
A:    Yes. But I prefer to send it for DNA.

Q:     Would a photograph of a sperm be a good evidence?
A:     It is just to show sperm. It is evidence but…

Q:     May I refer witness to ID 25, Laporan Kimia. You have made some opinion in court during EIC about anal penetration.
A:     Yes.

Q:     In your reporting of P22, can you show in ID25 there’s a reference in page 3 of it. Whatever contains in ID25 you have transferred it in P22?
A:     No.

Q:     Why would you not?
A:     Some of the sample from the whole report are not from me.

Q:    So you only recorded what is from you?
A:    Yes.

Q:     You have read and testifies during EIC that Dr. Seah’s report is complete. Look at DNA profile. Item 4 of ID 25, Para 3. Can you read the last part?
A:     [read].

Q:     “One other male contributor”. How did you extract it and put it in P22?
A:     In my report, “a mixture of male DNA found on swab B5”.

Q:    So general?
A:    General.

Q:     But this is something you examined. You take the swab. You said you reported whatever that is related to you. Why is it selectively short here, but

the other one got more information? Why didn’t you put the whole thing in that?
A:    The report has “a mixture of male DNA” from the chemist report also.

Q:     [] Why didn’t you put it in here?
A:     Because I wrote “please refer to chemist report..for full details”

Q:     Why didn’t you write it in full here, but you left it? One male contributor. It could happened from cross-contamination also.
A:     I’ve mentioned “refer to chemist report for the full details”.

Q:     Why didn’t you do it here?
A:     This is more to my summary of the chemist report.

Q:     An independent forensic scientist will have to report whatever even if he find something odd.
A:     I’m not a forensic scientist. I’m a forensic doctor.

Q:     []
A:     I’m using the result of the forensic scientist to my case.

Q:     Why didn’t you put at least a notation? Since you are interpreting here. Read ID25, page 4 para 2.
A:     [read]

Q:     Whose semen is it there?
A:     I don’t interpret this because the specimen is not from me. The underwear.

Q:     Para 1 of same page. Read.
A:     [read]
Q:     Basically “two seminal stains are found on the trouser of Saiful Bukhari and belongs to him”. Isn’t that odd? That he is being sodomised but his

semen or seminal stain was found? A notation could have been put there that it is odd because you are dealing with a sodomy case here.
A:     No notation is made because the specimen is not from me. I only interpret the specimens that I sent.

Q:     Page 4. B7, B8 and B9. Can you see from Para 5, 6 and 7 is there any word or any indication of semen or seminal stain?
A:    …

Q:     Sorry. Once more. B5 is peri anal, isn’t it?
A:     Yes.

Q:     B7, B8 and B9, which will two high rectal swab and one low rectal swab. In Para 5, 6 and 7, is there any word of semen or seminal stain?
A:     No.

Q:     All it say is it is intact for DNA profile?
A:     Yes.

Q:     When you did your report in P22, you were only shown ID25.
A:     Yes.

Q:     Is there any indication in ID25 as to who male Y is?
A:     No. We don’t know.

Q:     You didn’t do smear on slides. In ID25, where is it mention there is was a test done for semen or seminal stain?
A:     Page 2, [], above (a), [read..I found the presence of semen..]

Q:     I can say there is semen and B can say there is urine. There must be a test to confirm. Isn’t it?
A:     Yes.

Q:     What are the common test? What is acid phosphatase test?
A:     To test the presence of semen.

Q:    []
A:    []

Q:     What is RSID?
A:     That is also in forensic science domain.

Q:     What other method for testing?
A:     Ultra[]

Q:     What about PSA test?
A:     That one is the forensic science domain.

Q:     Of this test, which is the most accurate?
A:     Refer the DNA.

Q:    Why?
A:    Because it can identify the []

Q:    I’m asking of all the test, which is the most accurate?
A:    That’s not my domain.

Q:     I tell you. RSID. Can you show in ID25 where the test is conducted?
A:     Not mentioned.

Q:     We discuss about protocol just now. What is the protocol here (ID25)?
A:     This is not my report.

Q:     Precisely. But you read the report. [] Therefore, where is it stated in here? No, right?
A:    No

Q:     Then don’t it trigger your mind how can she say there is a semen or seminal stain because there is no test here? It is very important.
A:     Chemist will answer it.

Q:     Yes or no?
A:     …

SN:     He is not answering YA. I don’t understand why he don’t want to answer it.

Q:     Since it is not known shown this male Y, therefore you wouldn’t even know who it is in the first place.
A:     Yes. We don’t know.

Q:     In EIC, you have said that the specimens were sent also for seminal analysis. You were asked on it. [read] Basically what you are looking is for

seminal analysis?
A:     Yes.

Q:     “have you personally read this chemist report?”
“Yes”
You said further you want to refer to ID24 because you don’t know the sight.
A:    Yes.

Q:    “Having identified the sight of the sampling”, []. So you are referring to what Saiful told you that he was sodomised by DSAI and you are explaining

your story here. Is that correct?
A:    Yes.

Q:    The entire court heard your testimony. []
A:    Yes. He said he was being sodomised by a VIP but I don’t know who is the VIP.

Q:     Then you came to the conclusion that “After seeing this ..”.You have gone through ID25. [] and you have interpreted the chemist report more than once

and you have full confidence of Dr. Seah on her expertise and her lab is accreditated. All that is unclear, yet you believe there was semen and seminal

stain. Therefore you are saying seriously that there is penetration, more so anal penetration. How can it be? If the report is flawed, then your answer

should not be this. But you said you are independent.
A:     In chemist report, page 2  indicate that “the plastic containing B1 to B9 was respectively sealed with Kementerian Kesihatan…and the chemist found

the presence of semen on B5, B7, B8 and B9 but no other semen from others]”. Then later I came to know B7 and B8 are the high rectal swab and B9 are the low

rectal swab. And according to the forensic principle, every contact leaves traces, therefore there is a male organ contacting the area and leave the sperm in

the low rectal and high rectal swab. And that is evidence of penetration.

Q:    My question is this. There is no acid phosphotase test done in the chemist report. Therefore the chemist report is flawed. And you have based your

opinion that it is true. [] My question is, you have based your finding on a flawed report, on a report that is not tested.
A:     I don’t agree.

Q:     But you agreed there is deficiency.
A:     I don’t agree with that also.

Q:     Then you were asked “..under what circumstances can penetration []..”. And you answered “delay attend by doctor, use of lubricant, no force and no

undue resistance”. Delay attend by doctor, in what way can it not find the injury?
A:     I mentioned those are causes without injury. The injury may be very superficial, very small and the patient came after two days and there will be no

trace of it since there is delay attended by doctor.

Q:     But you have question Saiful as to what happened. And what did he say to you?
A:    There was penetration.

Q:    He told you there was pain.
A:     He deny of pain.

Q:     And use of lubricant, right?
A:    Yes.

Q:    That is an interesting point. When you examined, surely it will in your mind that lubricant was used. Did Saiful told you that?
A:     He said that lubricant was used by the suspect.

Q:     Then why didn’t you order for the test of the lubricant?
A:     The patient went to a private hospital earlier, Hospital Pusrawi. And there was lubricant used prior to this. And the doctor used lubricant so there

is no point of having the test. And during our examination, we again use lubricant.

Q:    How did you know lubricant was used?
A:    It is in the history. It was told by the patient that some lubricant was used during examination. And just now I also know that the doctor put

lubricant at the tip of the proctoscope.

Q:    But it is now. You should ask for the test then. In 2008.
A:    We also put lubricant to facilitate our examination.

Q:    I mean before you touch anything, you take sample. You don’t contaminate the samples. []. This is the process for elimination, right? []
A:    Yes.

Q:     And then “there was no undue force”. What did he told you about was there force used on?
A:     The patient told not much resistance on the last incident.

Q:    But what is the complaint by SP1?
A:    He complaint of being sodomised.

Q:     But he said it was non-consensual, right?
A:    He didn’t say. He just say there is no force used.

Q:    Do you know that SP1 says in his EIC that it was non-consensual?
A:     No.

Q:     So during examination did you ask him whether it is consensual or not?
A:     He said no force was used.

Q:     If it is non-consensual, the patient can contract the splinter? His anal muscle can be contracted. Tight, right?
A:     I disagree with that.

Q:     When you first saw Saiful, were you open minded when dealing in this case?
A:    Yes.

Q:     Did anyone brief you about this case?
A:     Yes. By the police officer, DSP Jude Pierera.

Q:     And what did he exactly tell you?
A:    The patient has been sodomised by a VIP and he also mentioned the name of the VIP, DSAI and after that it was not the first time.

Q:    Did you then immediately call Dr. Daniel?
A:    No. Because the case has already been referred to us.

Q:    Maybe there is examination was done by Dr. Daniel.
A:    There was no examination done by Dr. Daniel because the patient was referred direct to us.

Q:     How come you can be so sure that no examination was done?
A:     In sexual assault case, the patient will be referred and examined by specialists at the OSCC. They don’t do examination.

Q:    My question is so different from your answer. You are not answering. You are so sure no examination was done. But you also do not know what

examination Dr. Daniel did.
A:    The doctor just referred to us the case to be examined by us.

Q:     In rape and sodomy cases, how many doctors attend to a patient at a time?
A:     In sodomy case, you need the E&T doctor, surgery doctor together with the forensic doctor.

Q:    So, are you suggesting that in sodomy cases there will be 3 doctors attending a patient?
A:    Yes. At HKL.

Q:     Is that part of your guideline?
A:     It is an instruction.

Q:     Why would you require a police officer all the way?
A:     The police officer is the one who send the case. He’ll be there to see the case he brought to us and we need the police photographer to be around for

documentation.

Q:     Police photographer? For documentation of your examination?
A:     Yes.

Q:    Is the private part photographed?
A:    Yes, if there is consent from patient.

Q:    Is it usually and commonly done in HKL?
A:    In my case, yes.

Q:    Your cases or this case alone?
A:    My cases.

Q:     But you said it is a guideline, right?
A:    It depends on the doctors.

Q:    []
A:     Guideline is just to guide you. But ultimately is the doctor who have access of the case.

Q:     DSP Jude saw the entire examination?
A:     He was around.

Q:    Did he see or not?
A:    I don’t know.

Q:     But you said he was there. Did he see the entire examination?
A:    He was there but I don’t know whether he sees it or not.

Q:     What is the Lockhart’s principle?
A:     Every contact leaves traces.

Q:    []
A:    I’m not sure.

Q:     When you were briefed by DSP Jude when you saw the patient, SP1 what was on your mind straight away? To take the swabs from the rectum, right?
A:     We will get the history, exam the patient and then we will take swabs.

Q:     After you get the history, and exam the patient what did you do? Since the patient complaints of being sodomised, straight away it will come to your

mind to take anal swabs, right?
A:     Not necessarily. It depends on cases presentation. If the case come in less than 3 days, there is a chance of recovering evidence. If the case come

in later than that, I wouldn’t even bother to take swabs.

Q:     Did he described generally to you as to what happened?
A:     Yes.

Q:     Then you decided to swab the anus, right? Plus you swab the top also, right?
A:     Yes.

Q:     If you seriously want to see DNA, you go to the back portion and butt, isn’t it? At least to do a touch of DNA, right?
A:     We collect from the peri anal swab.

Q:    But surely you will take swabs at the buttock and back portion, right?
A:    Yes.

Q:    But you only take swabs from [], tongue, and..It is in P22.
A:     …

Q:    Surely it cross your mind as an experienced man that if he touch any part of the body there must be DNA. It need not be at the inside of the anus or

anywhere, right? It would indicate that you have done a thorough examination without being in any way influenced by DSP Jude’s story. Right? Why didn’t you

take swabs from the back part?
A:    We did body swab of saliva for licking and sucking of the body.

Q:    But the simple is body touch. You have read the Lockhart’s principle, the DNA principle. So it would be a right thing to do, right? That will show

you un-bias, right?
A:     Yes.

Q:    So, you didn’t do.
A:    I did one, for saliva test.

Q:     You said you use tampered proof seal at the point of taking your sample. There is an international standard on sealing and handling of samples. What

standard did you follow?
A:     I follow international standard not to contaminate the sample.

Q:     I’m talking about ISO 2009:2002. There’s so many like Australian NATA,etc. What standard did you follow?
A:     So far I’ve not come to any standard, but there is a guideline to collect specimens on our working procedure in our department.

Q:    This guideline is of some standard, right?
A:    It’s the department standard operating procedure.

Q:    You have produced the pro forma, so can you produce the standard to me?
A:    I’ll get permission from my Head first.

Q:    You said tampered proof seal. What is tampered proof? Do you have a sample of that tampered proof seal?
A:     I don’t have it here.

Q:    Can you bring it in the afternoon?
A:    YA, can I just show the one with the specimen, instead?

YA:    The one that is tendered, you can refer to it.
SN:    Is it intact?
YA:    Of course it is not intact now.
MY:    We didn’t open the tag.
YA:    Then use that one.

Q:     Why does doctors collect forensic exhibits?
A:     To look for evidence.

Q:     What are the general principles in collecting the exhibits?
A:     The most important is to avoid contamination of the specimens.

Q:     What are the specific []?
A:     To make sure the instruments and the bottles are sterile to avoid contamination. And the procedure must be correct also. For example, wearing a glove

to avoid direct touching of the specimens.
Q:     Why is the labelling and packaging security is very important?
A:     Labelling is to ensure the specimens does not cross over with other person’s specimens and to ensure the specimens [] and does not mixed up.

Packaging is to avoid different type of specimens from mixing up and contamination during the transfer process.

Q:     You said you have put the specimens in tampered proof beg. Look at this. [refer court to container containing specimens in a plastic bag]. In what

manner this can be considered a tempered proof seal?
A:     The bottle is sealed with a tape around its cap and there is a security tag across the tape. The security tag is very fragile, it is tissue paper.

Any moment you can break this security tag, it is very fragile for the labelling. And on top of that, to ensure nobody use the same label, I put my signature

and Saiful’s signature on the security seal. If somebody ever open and seal with that, there won’t be same signature as me and Saiful. All the security

measure are intact. This seal is provided by my department but there is further security to ensure my signature and Saiful’s so nobody can [] this thing.

Q:     This is a paper tag. It is not a modern sealing method. It is just a normal paper tape.Thus, how can it be tampered proof?
A:    What is important is the security tag across the cap that any moment you cannot break this circling tape. It also ensure that nobody moves it around

and contaminate it.

Q:     Is this open?
A:     It was open. There was a cut.

Q:     The chemist will cut using a knife, right?
A:     Yes.

Q:     If you say your security label is your back up guarantee, plus your signature. And if the chemist has cut it and not tear, the other portion should

be here, right? How come it is not here? If a person cuts, the portion will be there. But if the person tear, the portion will not be there.
A:     The chemist can cut the my security seal but cannot open the tape, so they have to twist. So the moment they twist, the tag will break of and some of

it will fall of. That’s why you see it as being tempered.

Q:     Some are, some are not. Especially ID6. This is just a plastic on top. Anybody can put a plastic. Your seal is the one. So if the chemist cut the

seal, the balance of the thing should be here. Why is it in this specimen it is not?
A:     Not necessarily. Some portion attached to the plastic and the tape also. When you twist it will fall of.

Q:    It is outside. So it can easily be removed.
A:    No. They have to twist the bottle.

Q:     Correct. But the other portion under the twist should remain.
A:     Not necessarily.

Q:    If it is cut, the other portion would be there.
A:    Yes. But when they twist the thing will drop of.

Q:    Cut or twist doesn’t matter. It should be there.
A:    Not necessarily. Because the other protion is on the tape.

Q:     Your signature is on top here and Saiful here. If it is tempered, your signature will remain there. Because it is not at the exact cut.
A:     This security tape I’ve a lot in my department. Somebody can imitate one. But the security bearing my signature and Saiful’s is only on these

bottles.

Q:     Correct. But it should be on the part where the chemist cut where your signature will be cut into two. But your signature is intact here.
A:    I put the signature not for it to be cut into two or break when the chemist twist it.

Q:    []
A:    []

Q:    I put it to you it is not tampered proof.
A:     No. The tempered proof is for the tape. The signature []

Q:     Your signature and Saiful’s are all intact. And it should break when it is cut. That means it is tampered proof.
A:     No.

Q:     Did you tell the police officer how to handle the sample? How to keep it. How to store it?
A:     Yes. Put in freezer on transit send it to Chemist Department as soon as possible.

Q:     You ought to tell him specifically right?
A:    Put in the freezer, but do not freeze it.

Q:    How many degrees you require?
A:     Depends on how long to store. Ordinarily 4 degree celsius but for prolong storage it is -30 degree celcius .

Q:     Did you tell him that?
A:     Yes.

Q:    Did you also advise him to as quickly as possible send it to the Chemist?
A:    Yes.

Q:    Do you know how long does he takes to send it to the chemist?
A:    I don’t go through this detail. But when they give the chemist report, it says it was received on the 30th of June.

Q:     You gave it to him?
A:     On 29th June 2008, midnight. But I don’t know the day. Probably Saturday or Sunday.

Q:     Are you aware that Jude delivered it on 30th June?
A:     Yes.

Q:     How many hours was that?
A:     After 24 hours.
Q:     Is it merely 48 hours?
A:     Not yet I think.

YA:     Can we continue at 2.00 pm?
SN:     Yes.
MY:     Yes.

[12.32] Stand down.

[2.13 p.m.]
KS: My apologies for not being here this morning.
YA: we manage to proceed.

Saksi diingatkan masih dibawah sumpah.

Q:     We’ve discussed earlier about the time line when SP1 went to ENT and then you said you have been instructed at what time?
A:    Around 7.36 pm

Q:    You have a higher officer? You have a boss?
A:    Yes. Dr Mohamad shah, head of forensic department

Q:    You give instruction and advice to DSP Jude as to how to store and deal with the exhibits. Is it correct?
A:    I just advice him and tell him the way to put it.

Q:    And you said you tell him to store it under certain temperature?
A:    Yes, to preserve it.

Q:    What time and when did you delivered it?
A:    26 June 2008, at about 12.35 a.m.

Q:    You took the swab? With your friends?
A:    Yes.

Q:    How did you then seal them before you handed it to Jude?
A:    The bottles were labeled first, after that, I tell the sequence to my friends, for the next samples after the examination. After the doctor collected

the samples, I open the cap of the sterile bottle, I put the swab stick within the bottle and break it. After that, I cap the bottle. I put all the bottles

on the table under my supervision, I sealed it after the specimens were completed together. First, I turned it around with the tag, subsequently after that,

I cross the tag. After that, I completed this procedure, I signed on the tag, as well as I asked Mr. Saiful to sign on that.

Q:    How many did you collect?
A:    The samples? Ten swabs.

Q:    After you sealed the individual bottles, what were you do with them?
A:    I wrote a form, all chemistry form, all the necessary particular, I give it to DSP Jude.

Q:    You’ve been into the details. After taking the samples, what happen?
A:    I put the bottle in the security bag, and I handed it over to the Jude, together with the chemistry form.

Q:    How do you describe the bag?
A:    it s a plastic bag, and it was sealed.

Q:    How did you seal it?
A:    Just open up and sealed it.

Q:    Did you sign on the bag?
A:    I remembered on that day, I didn’t sign on that.
Q:    You say you didn’t sign it?
A:    On that day, no. I signed on the individual samples.

Q:    Ok, when you said it is a flat seal, did you sign it? I mean the security bag.
A:    I did not sign it, but my handwriting was on it.

Q:    You did sign the bottles, but you did not sign this one? Why?
A:    I did sign each and every bottle of the specimens.

Q:    It is a good security isn’t it, to do another one?
A:    Yes, but I did sign on every bottle.

Q:    When you say it is sealed, it is gum?
A:    Yes.

Q:    It can easily be torn?
A:    Yes.

Q:    Then how do you say it is temper proof?
A:    Because, each and every bottled had been signed and sealed. The bag is just an additional bag I gave him.

Q:    May I refer to P27. Is this the bag?
A:    Yes this is the bag. The bag is sealed.

Q:    So the red seal is the so called seal?
A:    Yes.

Q:    And you considered it as temper proof?
A:    Yes.

Q:      But it can be removed?
A:    Yes, but it will leave marks, after removal.

Q:    What marks?
A:    Some of the remaining of marks, it will remain there.

Q:    But you could done the right thing by sign on it right?
A:    YA, it’s a good thing to do, but I had already signed on the individual samples.

Q:    You said earlier, that you didn’t do the smear on the slide? And you also said it was more than two days?
A:    Yes.

Q:    If that is the case, then why do you took alcohol and drug test?
A:    Because I want to know whether the patient was under the influence of drugs or alcohol or not.

Q:    It’s been two days. Even if someone took the beer, it will go in two days. Are you kidding? The right test you did not want to do, but this one, you

did it?
A:    I said, after the incident.

Q:    If you are so particular about it, why don’t you take the smear test as well?
A:    The smear is not very indicated to my case. This is based on our clinical judgment at that time. We don’t need the smear, we need more precise test

at that time, which is the DNA.

Q:    You are medico legal man here, therefore there must be medico legal procedure here. Do you agree?
A:    Yes, but based on the case. Not every case we did the same thing.

Q:    Don’t you agree that alcohol and drugs can go very fast in the body?
A:    The patient may have consumed drugs and alcohol afterwards.

Q:    Does it matter afterwards?
A:    Yes, it was important for me to know. See whether the patient was under influenced when he came to see us, see whether his mind was conscious, so we

can draw our inference during that episode. Alcohol can be inserted before, during, or after the sexual assault.

Q:    If you are so meticulous, why don’t you fill up the form properly?
A:    I filled up the form properly.

Q:    Only three pages? Tell me the truth, please. This is the court of law. Of course I’m going to submit it later, but here, you are the witness of

truth!
YA:    So, what is your question?

Q:    My question is, if the slide indicated that there was a sperm. Wouldn’t it be good for any forensic officer to say that yes, there was a sperm. So

wouldn’t it be good to do that test?
A:    I agree that it is important, but I do not agree that it must be done in this case.

Q:    You are utterly incompetent, I put it to you
A:    That is your opinion.

Q:    You took swabs on tonsils and tongue, why?
A:    It was performed by Dr. Khairul. It was because, from the history, the patient told us that he was asked to perform oral sex.
Q:    He told you that?
A:    Yes.

Q:    You go to all irrelevant parts, but the relevant one, you didn’t go. I put it to you that you didn’t do it!
A:    The most relevant part is to know whether there is a proof of penetration.

Q:    You want to know whether there is a proof of penetration or not, but you took swabs on tonsils and tongue. And then you go into blood and alcohol

test later. Why didn’t you do the smear test?
A:    I don’t have to answer this.

Q:    Let’s go back to taking sample again. Did you know when Jude did passed the sample to Jabatan Kimia?
A:    I didn’t know until the chemist received the specimen.

Q:    So, when did the chemist report received? I take it as 30th of June 2008, at 7.45 pm.
A:    On the 29th.

Q:    Early morning?
A:    Yes.

Q:    How many hours would that be, from the time you gave him? 48 hours?
A:    Roughly, not more than 48hours. It was about 43 hours.

Q:    So, when did you get the report back from chemist?
A:    I received it by my department on 11th of July 2008 through the police officer.

Q:    And you read the report on the 13th?
A:    Yes.

Q:    How long normally would it take to get the report?
A:    What report?

Q:    Any chemist report? Normal chemist report.
A:    should ask to the chemist, not me. I am not preparing the report.

Q:    You’ve said before, you do deal with the chemist report. Based on experience, how long does it take for the chemist report to be return to you?
A:    The duration is very vary. It depends on how fast the police officer give it to us. Actually, we get or received it through the police officers.

Unless the case is sudden death, then we will get the copy.

Q:    So generally, 1 month, 2 months or 3 months?
A:    It is very vary. Usually it takes about 3 months, but sometimes, it could be faster.

Q:    So 3 months, or 4 months, is possible?
A:    In very complicated case, yes.

Q:    This case, it was only 12 days, right? Would you agree, this is super fast?
A:    Fast, but not super fast.

Q:    How long you take medical history from SP1?
A:    Half an hour, approximately.

Q:    What were you having in mind as to ask to establish for yourself?
A:    Asking the history or..?

Q:    Most of the doctors, I want to establish with you that you’ve gone to the entire basic things to ask as a doctor? What did you ask about his personal

life?
A:    Whether he had married, sex activities prior to this event, smoking etc.

Q:    What about his family?
A:    As I said, no. I did not go into details.

Q:    Isn’t it is important to ask?
A:    Not in this case. If I’m dealing with some other case, like psychiatrist illness, then it is important. Like in this case, for sodomy case, we are

more concentrate with the complaint and about the sex assault, what he has been done. We are more particular about that aspect, rather than the family

history.

Q:    I now refer to you why it is important to ask about psychiatry history done as well, look at this carefully, at page 23. [READ AN ARTICLE]. Do you

agree with that?
A:    Yes.

Q:    This is no case of a man complaining that he got asthma. This is a boy complaining a sexual assault. Did you take his demeanor down, record his

demeanor down, his facial expression?
A:    Yes, we recorded it down. The complainant is calm, cooperative, well manner. And that what was we observed on the patient.

Q:    Did you record it down somewhere?
A:    Yes.

Q:    You want to produce it?
A:    No, I’ve already gave my oral statement.

Q:    If a person that had complained that he has been sexually assaulted, don’t you think he will look flustered, angry, irritated, in agony?
A:    Different people will take it differently. Some people will jump, some are not. It is all depends on the patient personality.

Q:    You are very independent person, you are very unbiased. Did you at least consider that this person should take psychiatry examination?
A:    No. When we recorded his history, we also observe the way he answered our question, the way he communicate with us. We are under impression that this

patient came to us under purely sexual related assault problem and not related to psychiatry problem.

Q:    So, you take a person who had been sodomised, would also come in kind of demeanor?
A:    Not necessarily, shouting, aggravated after the sexual assault. Some patients are not like that. This patient coming cool and calm. This is normal

also after the incident of sexual assault, accept it as the way it is.

Q:    Is it more agitation than happiness, or more cool and calm?
A:    I don’t know. I cannot answer precisely.

Q:    Most of them agitated or come coolly?
A:    Most of them, if man, come coolly. Man, can take it better than lady.

Q:    There was earlier you did mention about Dr Osman right?
A:    At that time, he was only mentioned that he was gone to a private hospital, not a name of Dr. Osman.

Q:    You were aware that some examination done on him?
A:    Yes.

Q:    A protoscopy test as well?
A:    Just an instrument inserted, not any name of that instrument mentioned.
Q:    What do you mean by instrument then?
A:    Instrument was put on him.

Q:    What instrument put on him?
A:    That what the patient told. But of course, when it comes to my mind, most lightly the doctor used protoscope.

Q:    Did you agree that in any case of a crime, the scene cannot be disturbed, the first person coming to that scene should get the scene as untempered as

possible. But this one, it appears to be that protoscope had been used, therefore, when you examine it for the second time, your result may have been

contaminated. Did you agree?
A:    There is always a possibility.

Q:    There is a lot of..Back to Jude..Did you know that Jude actually broke the main seal of the bag?
A:    Yes, I knew.

Q:    When?
A:    Cannot remember.

Q:    Recently, or before you come to court?
A:    I cannot remember, because that was the labeling problem on that.

Q:    Before you coming to the court, isn’t it?
A:    Yes, there was a labeling problem, that’s why we cannot link with the labeling by the police officer.

Q:    So the bag was open? P27? Contain all the specimens right?
A:    Yes.
Q:    Are you aware that Jude broke the seals on the bag?
A:    I aware that he was re-label the things inside the bag.

Q:    Can you say that the bottles you used were air tight?
A:    Yes.

Q:    We went to P22, and ID 25 earlier on, where you have imported some of the findings there into your report.
A:    Yes.

Q:    You have taken some, and then you have left some.
A:    Yes.

Q:    I put it to you, that you have to say that you are independent and neutral. Why did you do that? Isn’t it a good practice to take it all and put it

in your report?
A:    I only tried to interpret what had been sent by chemist report.

Q:    Why did you don’t put everything there? Why don’t you take the exact sentence, why did you summarize it into your own words?
A:    I did summarize it.

YA:    No, they want to know why you summarized it. Why don’t you put everything there, that’s the thing they want to know?
A:    I sent the specimen because I want to know the result to help me to interpret the case.

Q:    Why didn’t you put in full? I mean you only said about the mixture, you didn’t say about the unknown male. Why, because you are independent, neutral

and honest man?
A:    YA, I’ve already said that it is the mixture of DNA.
Q:    But you’ve left the important part. I put it to you that you are acting very dishonestly. You are hiding something. You are supposed to be

independent, but in fact you are being biased!
A:    I don’t hide anything. In fact I asked to refer to the full chemist report to the full report.

Q:    YA, but what’s the point. And then we just gone through in ID25 that Dr Seah didn’t do an AP test, didn’t do proper semen’s test, didn’t record that

she did a test, and did not show how she came about in identifying the semen.

MY:    At this point of time, may I interject? ID25 is the report of the chemist, report of her analysis. What we agreed the test was not mentioned, but to

say that she didn’t conduct the test is ridiculous.
SN:    I come to that later, but I’m afraid that it is not presumptuous, but he just agreed on what she put in her report.
YA:    He just said that he wasn’t mention about it. Never mind, proceed and put that in your submission if you want.
SN:    But again, protocol-wise, if she did the test, she should record it, and he agreed with me.

YA:    Did you asked about that?
A:    No, I haven’t been asked about the chemist protocol. I didn’t know about it.

Q:    Now you give me another story already.
A:    YA, I didn’t know about the chemist protocol, because I’m working as medical officer, and I didn’t know how she did it.

Q:    You agreed that those tests weren’t shown there. You said you have some knowledge that the tests is carried out.

YA:    But he never said that those unmentioned test, meant that those tests had never been carried out.

Q:    You should know that there could be flawed.
A:    You have to ask the chemist.

Q:    No, you’ve been dealing with it every day! You imported the report 100% and then you said that there was seminal and stain. And that’s when you come

into conclusion of penetration, agree or not?
A:    Not agree YA. The role of a doctor is just to interpret.

Q:    I put it to you that such things didn’t even take place and you depended on the flawed and insufficient report to come to a wrong conclusion – there

was a penetration and penal anal penetration?
A:    I’m not agree.

Q:     You also said, that whatever you’ve done in P22, you followed the protocol and the guidelines. And whatever you got, you wrote it down?
A:    Yes.

Q:    If you have follow protocol, she should do the same?
A:    We’ve done a very different thing. So I cannot interpret the things she did, or she should do. I don’t know about her.

Q:    Any professional should follow the protocol.

YA:    But he said he doesn’t know about the protocol of the chemist.
SN:    Every expert must know, that’s why I’m asking him. Protocol is a must to follow. That was what happened normally. She also has to follow the

protocol, but she didn’t follow it.
A:    I don’t know how to answer other people protocol or other discipline. It is not my protocol. I only did the medical protocol. I don’t know how to

answer that question.

Q:    From the evidence you’ve given here, and the manner you wrote P22, you have practice selective importation of information? Do you agree?
A:    I don’t understand your question.

Q:    Firstly, you only want to put what is prejudicial to my client. Then you also simply enunciated that the samples were my client’s without even

knowing. So I put it to you that you are selectively put things that are prejudicial to my client.
A:    To be very honest, until now who is the Male Y. My interest is through my patient to know whether there was an evidence of penetration. I didn’t know

who Male Y is until now.

Q:    I put it to you that you are biased in your reporting?
A:    No, I cannot confirm who is Male Y also.

Q:    You don’t even highlight that in your report, and you said that you are independent. I put it to you that you are not independent, and you have acted

very pro police.
A:    No.

Q:    And much of the information you’ve given here are uncertain and full of lies.
A:    Not agree at all.

Q:    Did you first tell other person in HKL when you first examined this patient that you’ve found nothing?
A:    There’s nothing..

Q:    And then after the police saw you, you changed your statement?
A:    Examination of the sexual assault case is based on the interpretation of the physical examination as well as [] together.

Q:    My question is simple. Did you tell somebody that there’s nothing, and then week later after the police saw you, you changed your tune?
A:    No, but the statement I will say yes.

Q:    But did you tell somebody else that you found nothing?
A:    Yes, during the police statement. We didn’t find anything during the police statement regarding the physical injury.

Q:    No, I’m talking about the swabs. That after you took the swabs you said that nothing was in the swabs, and then a few days later, you changed the

stories.
A:    No.

Q:    What did you said earlier?
A:    Then, the police come and take the statement. We told them we didn’t find anything during the physical examination per se.

Q:    I put it to you that you told somebody else in HKL about it.
A:    To the police who came there.

Q:    Not the police. Someone else.
A:    No.

Q:    I also put it to you that there are a lot of things that need to roll out, but you did not rolled up? Like putting a notation when we discussed ID25,

about the semen and seminal stain found.
A:    My notation is cross referred to chemist report, and I even put the number of the report, full details. It is obvious that I put it in two liners

there.

Q:    You should highlight it, but the thing you highlighted is the peri anal swab not the DNA mixture?

MY:    I think we have gone through this time so many times, YA. Enough with that.
SN:    I’m just rounding it.
Q:    HKL, I’m putting it to you,that they had put up a lot of activities against DSAI. Dr. Rahman, and now we have..
MY objected.
YA:    Takpelah, he is from HKL, let him answer.
A:    I don’t think I have to answer this question, because I came here to do within my professional area which is connected with this case.

YA:    So, you don’t know?
A:    I’m not involved with those things. I am not interested in knowing the past things about HKL. The thing I know is, I’m doing a good thing so far.

Q:    You said just now when ID25 was referred to you that you didn’t know who it was, who was Male Y. But you said that Jude told you before that, he was

DSAI.
A:    No.

Q:    Come on, before you know that he was DSAI, now you want to change it?
A:    I don’t know who is who. I’ve been told that the VIP is DSAI, but until now I don’t know who Male Y is. I didn’t compare the profile.

MY:    No, he knew who the alleged assailant was, but when the report told about Male Y, I mean the name, he doesn’t know about it.
YA:    If he put the report based on what they told him, surely the complaint would be there.
SN:    He already know the link. But he denies it now. That’s what I’m telling that he’s biased now. He seems to contradicting himself.
A:    I based on the scientific report.

Q:    Ok, now you’ve said that, let’s go to ID25. Who is Male Y?
A:    I don’t know.

Q:    You know that he is DSAI, because you’ve been told by Jude!
A:    Not necessary, YA. Unless if I see that DNA can link with that profile, that one I can confirm. I was told, but I cannot confirm, unless I see the

profile.
MY and SN quarrelling.
SN:    I’m quite done, YA.
YA:    Yes, any Re-examination?
SN:    Yes, YA.

RE-EXAMINATION of SP3.
Q:    During cross-examination, you agreed that P22 which is your report reflected that there was no conclusive prove of penetration. This is your initial

answer to the counsel. You then agreed with the counsel that in your testimony report, you testified that there was an anal penetration.
A:    Yes.

Q:    Then you’ve been asked further by counsel, I quote in light of what you answered of the ID25, the chemist report. My question, please look at P25. I

believe you have read para 1 of P25?
A:    Yes.

Q:    Do you agree that para 4 till para 1 page 2, it states that Envelope B2-B9, each contained a plastic packet inside which a plastic contains a swab

stick, do you agree?
A:    Yes.

Q:    Can you read at page two, 2nd para?
A:    [read]

Q:    Did you make the marking of B2-B10?
A:    No.

Q:    Do you know who make those markings?
A:    Police officer.
Q:    Do you know the site of sampling B7,8 ,9 where the semens samples were found?
A:    No.

Q:    On the 13th of July when you prepare P22, and having known the ID 25, do you know the sites of sampling of B5, B7, B8 and B9?
A:    No.

Q:    Do you have any reason to doubt about chemist report prepared by Dr Seah?
A:    No.

Q:    May the witness been referred ID 24. When you prepared P22, on the 13th of July 2008, were you given or shown ID24?
A:    No.

Q:    When were you first shown ID24?
A:    In the court, when giving evidence.

Q:    And by looking at ID24, were you be able to know the site of the sampling B5, B7, B8 and B9?
A:    Yes.

Q:    So, when you testified in open court that there is an evidence of penetration, were you also referred to ID 24, besides ID25?
A:    Yes.

Q:    It means, together with ID25, and this ID 24. Doctor, when in cross-examination, you said that you’ve took the history from the patient, that he was

alleged being sodomised by a well known high profile public figure, so my question; is this history given by SP1 sufficient for you, Dr Khairul and Dr.

Razali to proceed to examine SP1 on the 28th of June 2008?
A:    Yes, it is sufficient.
Q:    In cross examination, you were shown IDD16, you were then asked whether the insertion of plastic be the medical history in the earlier cross

examination. On the 28th of June, when you met SP1, what was his complaint?
A:    He was sodomised.

Q:    Did he complaint any word plastic had been inserted to his anus?
A:    Not the word plastic.

Q:    I show to you ID26. In your testimony, you said that this form was prepared by you. You mention in Para d, alleged sodomy. Is it correct?
A:    Yes correct.

Q:    Where stated in ID26, mention about the patient alleged insertion of any plastic into anus?
A:    No.

Q:    In cross-examination, you said that there were photographs taken on 28th June, and taken by police?
A:    Yes.

Q:    Did you refer to any of the photographs that were taken by the police when prepared the report of P22?
A:    No.

Q:    Did you need any of those photographs to prepare the report of P22?
A:    No need.

Q:    Did you refer to any photograph when you testified in open court that there is evidence of anal penetration?
A:    No.
Q:    Did you need those photographs to assist you to testify that there was anal penetration?
A:    No.

Q:    You were also asked about the labeling of those specimens. Did you write on the label the location of the specimens taken from SP1?
A:    Yes, each and every.

Q:    On the label?
A:    Yes.

Q:    Did you see all the containers, after putting all the samples in the containers?
A:    Yes, all on my own.

Q:    Air containers were air tights?
A:    Yes.

Q:    When you passed it to DSP Jude, were all the seals intact when handed to Jude?
A:    Yes.

Q:    You were shown and asked the great details of the so called Pro forma. What Is the purpose of having that Pro forma?
A:    Generally to guide the doctor on how to handled and exam the case.

Q:    Did you really need the Pro Forma to assist you to testify in open court to establish that there was an anal penetration?
A:    No.

Q:    Look at the Pro forma. You agree that this Pro forma is for suspected rape victim?
A:    Yes, it is written there.

Q:    Does the Forensic Department of HKL have the Pro forma form for the sodomy victim?
A:    At that time, no.

Q:    Have a look at para 2, you mentioned that [read Para 2 – fresh case, any case less than 72 hours after the incident]. My question is, can you tell

the court why did you consider a fresh case is case less than 72 hours after the incident?
A:    If less than 72 hours, there are higher chances to recover the evidence. This was documented in the Journal Article by William and Alan in 1981. The

sperm in the rectum is up to 75 hours, where the anus is about 46 hours.

Q:    This is also the guide to HKL in sodomy cases?
A:    Yes.

Q:    You were also asked about the Pro forma, first page, the handwriting was not the same. Can you tell the court which part is not the same? Under what

topic?
A:    Yes.

Q:    Which part? Under what topic?
A:    Under the name of the police officer [read Name of Jude Perreira] and IC, the rank, and where he is from.

Q:    The particular of the police officer.
A:    Yes.

Q:    The next question asked by counsel, the IO was presence throughout the examination of SP1?
A:    Yes.

Q:    Did IO tell you what to do during the examination?
A:    No.

Q:    The IO interfere in any of your works in taking samples during the examination of SP1?
A:    No.

Q:    You did mention that you haven’t take the family history, The family history of SP1 relevant in so called sodomy case?
A:    Not relevant in this particular case.

Q:    Is it unusual for victim to come to hospital first before lodging a police report?
A:    It is common also.

Q:    You were also asked several times about your report, that because of that, you are deemed to be biased. Please have a look at P22. Look at the

conclusion, para 1. [read PARA 1]. Is it helpful to the police to get evidence against the suspect?
A:    No.

Q:    You were also shown page 3. Just because you mentioned mixture of male DNA type from swab B5. You did not mention the details. My question, is it the

ordinary practice, to put everything in chemist report in your own report?
A:    No.

Q:    You mention clearly here, please refer to chemistry report [read lab number] for full details. If you put this, is this the intention for the person

to hide something?
A:    No. This is to ask them to read the full report.

Q:    You were also asked about an issue that you did not smear on the slide or rather take the swabs from those parts. Again, in this particular case, is it important for you to smear on the slide and to do as what suggested by the counsel?
A:    In this particular case, even though I detect the sperm on the slide and it was very fast, but I can’t locate who’s the person the sperm was belong

to. But however if I send a swab for DNA, it is not only can detect, but the profile also can be compared to a potential suspect. It is more important for me

to do this because you     can link it to a suspect.

Q:    You were also shown to ID16(a). Before that you were shown page 1, about pain complaint by SP1. If a patient was in tremendous or great pain, can the

doctor insert the proctoscope into the anus?
A:    No, too painful.

Q:    In the report by Dr Osman, did he mention about proctoscope had been inserted in SP1’s anus?
A:    Yes.

Q:    Can you read those portions?
A:    [READ]

Q:    So protoscope was inserted by Dr Osman?
A:    Yes.

Q:    You were also asked earlier whether you are an expert. And then you said, it is for the court to decide. You are forensic medicine specialist?
A:    Yes.

Q:    Since 1998?
A:    Yes.

Q:    Is it true that your work scope also include clinical forensic examination?
A:    Yes.

Q:    Is it not you have conducted 200-300 examination?
A:    Yes, clinical examination.

Q:    Is it not that you have done sample taking and collection of sampling about 200 times?
A:    Yes. On the tag, there are more than 1000.

Q:    Is it not that you have attended 20 sodomy cases?
A:    Yes

NH:    I have one extra question which had been asked through SP2. Regarding the period of spermatozoa remain in the anus. But of course, subject to

cross     examination.
SN:    Rather that can we recall Dr Razali, because I also want to ask some question. He is the surgeon.
YA:    The questions not asked and not arise before through Dr. Siew?
NH:    Not yet.
YA:    I think counsel have the right to cross after this. Proceed. This questions through court ya.

Q:    When ejaculating the person anus , how long can the seminal fluid or spermatozoa remains in the anus or rectum approximately?
A:    The anus is about 46 hours. That’s the longest, documented by study.

Q:    What about the rectal area?
A:    65 hours.

Q:    Do you have any literature to support your answer?
A:    Yes. May I show it the literature?

YA:    Mention of the name of the literature.
A:    The literature is General Forensic Science International volume 19, in the year 1983.

Q:    Just look at the summary. Where does it stated the rectal swab is 65 hours?
A:    [READ THE RELEVANT PART]

Q:    If this result or statistic based on microscopic or DNA analysis?
A:    Microscopic.

Q:    Based on DNA analysis, would the period is longer?
A:    I’m not sure, I think the chemist will be best explaining that.

Q:    Do you have any other literature to assist us on this issue, the period time of the spermatozoa remains in the rectal area?
A:     There’s a very old literature, but I cannot download it from the internet anymore.

Q:    You get this literature about clinical forensic medicine.
A:    Yes, I have the book.

Q:    About anal intercourse? Do you have it with you? Can you read the title of the     book?
A:    Clinical Forensic Medicine 3rd edition, edition 2009, [read the title].

Q:    Can you read page 146, chapter 13.
A:       [READ THE RELEVANT PART].

Q:      You mention here that it may be identified..
SN:     This is a laboratory report.
NH:     You still can cross after this.
YA:     So this is still remain questions through court which you have the right to cross afterwards.
NH:    YA, I think that’s it. I have no more questions to ask.
YA:    Yes, counsel. Please confine yourself to this area only.

Q:    Did you agree that this document is lab experiment?
A:    No, it is not. It is a form of actual sample of the victims, that being analyzed.

Q:    Yes, but this is done by the lab. You need to have a lab to do all this.
A:    This is actual cases, which the lab studied the samples sent to them.

Q:    It is a lab job, you agree?
A:    Yes. I’m giving a forensic interpretation. The lab is about the analysis. The doctor is giving interpretation.

Q:    You can’t keep changing your answer. I may have to reserve on this. I need time to study.

SN:    There is a lot of matters can arise from this document. And also I also want to ask Dr Razali more so. I want to apply to court to recall him
MY:    I don’t know about Dr Razali, because I remember when I ask him, he gave an answer. I asked him whether he has the literature, and he answered no. So

now, you asking the same question to Dr. Siew, and he answered he has. At the end of the day, all of this will be part of our submission. So, what’s the

point?
SN:    You said you don’t want to bring. But now you bring it.
YA:    Never mind, about re calling of Dr. Razali, I will hear from both of you later on whether to recall him or not.

Q:     This talk about spermatozoa. Not semens, not seminal fluid. Why didn’t you seriously do a smear on the slide? It doesn’t matter who identity that you

want to show.
A:     This document is prepared in the year of 1981, at that time we don’t have DNA technology yet. That was the time that they looking at the sperm. But now, we have DNA technology which is much more superior.

Q:     But more the reasons, because you are referring to the old one, why don’t you do the smear, because it is a good practice?
A:    In my particular case, it is more important for us to send out the samples for DNA because we can get the suspect person. Sperm we cannot identify

the identity.

Q:    You should have done it, you didn’t even do the basic test. Isn’t it a good practice?
A:     It is a good practice but now we prefer to do and to have DNA to identify the suspect which was more precise than sperm. Sperm, any male can produce

the sperm. It is

Q:    In that case, you should not bring this one in. This is connected to spermatozoa.
A:    I’m saying that spermatozoa can go up to 65 hours. Nowadays with DNA, it is more sensitive although I’m not in the position to answer this question.

Q:    D25 no mention of sperms. Right? The chemist report.
A:    I found the presence of semens. Sperm is a component of a semen.

Q:    Even though there was not a test being done. And then you gave conclusion based on the flawed report. You are accepting a report that you don’t know

that it is true or not.
A:    I don’t agree the report is flawed.

SN:    I have to recall Dr. Razali.
YA:    Never mind, as I said, I need to hear submission from both of you first, later then I decide whether to recall. No more questions on this witness?
SN:    No, subject to recall.
NH:    May this witness be released, YA?
YA:    Yes.
NH:     Can we call Dr Khairul? Cross examination of SP 4.
SN:    Can we start it on Wednesday morning? It won’t be very long I think. I pray Your Lordship to start it on Wednesday morning?
NH:     At least you can start with Dr Khairul with basic questions, then you can check the facts later?
SN:    But the facts is relate with cross examination.
YA:    Yes, proceed with few preliminary questions first. I’m sure you want to ask him about qualification and so forth. Then we go to the substance on

Wednesday.

Cross-examinantion of SP4.

SP4 mengangkat sumpah di dalam Bahasa Inggeris.

Q:     Dengan izin, you were one of the 3 doctors who were summoned to examine SP1?
A:    Yes.

Q:    What time on the day you asked to join the team?
A:    I was instructed to join around..actually I was first notified by the first attending medical officer, roughly around 4.30 pm.

Q:    Who was the doctor?
A:    Dr Suresh.

Q:    Was there any other earlier doctor to examine this patient?
A:    I was informed that SP1 went to out-patient department, to see medical officer there, prior he came to Emergency Department.

Q:    And who was that person, can recall him?
A:    No.

Q:    And you were in charge of ENT?
A:    Yes.

Q:    For how long?
A:    I was in HKL as specialist from 2006, December.

Q:    What would your job entail of?
A:    I was a specialist in Emergency Department, which was also include One Stop Crisis Centre.

Q:    Administrate or examine patient?
A:    Examine patients.

Q:    And what would be your nature? OSCC? It can be rape, or what?
A:    It can be rape, child abuse, sodomy.

Q:    How many sodomy cases you have been attended to.
A:    20 cases of sodomy so far?

Q:    At OSCC?
A:    Many, uncountable.

Q:     Isn’t it the norm for any complainant to make police report first, and then police refers it to you?
A:    Actually, the idea of OSCC is to facilitate the victims.

Q:    But normally in the sexual assault, they are always run to police station first to complaint, right?
A:    Some of it, but in case if the patient first come to us; we will examine them also and facilitate them to lodge police report.

Q:    I agree if that was domestic violence cases because you want to take immediate treatment. But when it comes to sexual assault?
A:    Same.

Q:    Which is more, which is less?
A:    In the process if they come to us, we will entertain them first. We have both experiences. More or less the same.

Q:    Did you keep records?
A:    No.

Q:    Who refer them to you? Police officers?
A:    We have log book and we keep record of that.

Q:    At what time were you alerted?
A:    4.30.

A:    Who alerted it to you?
A:    Dr Suresh.

Q:    Why didn’t he examine the patient?
A:    Because he mentioned that it involved a high profile public figure.

Q:    And that what happened? Did you form the team or what?
A:    He just informed me, and also, as a medical officer he was also facilitates me in calling all the necessary disciplines that involved in that

particular case, which are surgical and forensic.

Q:    They are on call, are they?
A:    Yes.

Q:    How long it usually took them to come? Generally?
A:    Within one hour.

Q:    Normally around one hour?
A:    Yes.

Q:    How many doctors attended to one patient in OSCC?
A:    Usually more than one. Because it involved more than one discipline, it depends on the nature of the case.

Q:    But one doctor can also handled it right?
A:    Actually, we get the best person to examine the patient.

Q:    All the time?
A:    Yes.

Q:    Can’t the forensic people entertain the same person?
A:    At OSCC, we need to facilitate the patient, when it comes to that particular case we will call the best doctor to do examination.

Q:    Won’t one forensic person can attend one patient?
A:    In my opinion, yes. But in this case, 3 doctors. Because, we want to get the best person to examine the patient.

Q:    Within one hour you can get the team ready and assembled because they were on call. Do you know what time Saiful made a complaint?
A:    He lodged the police report around 4 pm. Then for his instance, he first came to OSCC, and then when we knew that there was no police report lodged

yet, we facilitate him to make the police report.

Q:    But that was about 6 o’clock?
A:    He made the police report was earlier than that, around 4.30 p.m.

Q:    Do you want to check your report?
A:    Yes, 4.30, at OSCC.

Q:    Within 1 hour you assembled already rite?
A:    Around 9.

Q:    Why it is so long?
A:    Prior to that, we have our medical officer from emergency and forensic department who handling the initial part of the history taking. We need time

to inform the specialist, because some of them were outside of the hospital and all. By the time they finished the history taking is already 5 o’clock, so we

manage to get the specialist. First the process is the medical officer will handled the case and they will informed the specialist and asking the specialist

to get involved later on.

Q:    Why are you not waiting for higher authorities? Were you not reporting this to DG himself?
A:    No, usually we will handled it ourselves first. We informed DG later on because I have to tell my head of department first.

Q:    Who assembled the team?
A:    Dr. Suresh.

Q:    Who ordered and assembled the team?
A:    Actually, the work flow is like that.

Q:    What do you mean by that?
A:    We have a flow chart of case management. For instance, for this case, what we must do at emergency level etc.

Q:    And it takes so long to 9.45?
A:    Roughly about 9. We have everyone assembled around 9.

Q:    4 o clock you said he reported, and then taking history. How long did it take?
Q:    Very short.

A:    Was he examined by Dr Suresh?
A:    No.

Q:    Not anybody else?
A:    No.

Q:    Why are you so sure?
A:    Because this is a high profile case. He had to inform me first.

Q:    Did you asked for Dr. the notes?
A:    No.

Q:    Why didn’t you?
A:    I was informed by Dr. Suresh.

Q:    Did you know that the first doctor attended to Saiful is Dr. Danial?
A:    Yes. Based on the notes, he immediately brought Saiful to us when Saiful told him about the nature of the case. He ordered SP1 to go to Emergency

Department.
Q:    And did you have a meeting, among yourselves before you started the examination?
A:    Yes.

Q:    Why must you have the meeting?
A:    There are 3 of us, so we want to minimize the time taken and conduct in order of the examination.

Q:    Did you brief to anybody? Apart from the doctors?
A:    There was a police officer.

Q:    What was his role?
A:    The person was there not from the very beginning, because he needs to be there to take the samples from the victim.

Q:    Did he brief you about the entire case?
A:    Yes.

Q:    What did he say?
A:    He said the patient is being alleged sodomised by a high profile person, and a brief history on that.

Q:    Normally, when you took the case, you look at the person as the patient, you should not be biased right?
A:    Yes.

Q:    What was your role in these whole things of examination? Did you take history again from him?
A:    Yes.

Q:    For how long?
A:    For 10 minutes- 15 minutes.

Q:    Don’t you think that you should take more than that?
A:    Because I have the preliminary history taken by medical officer, Dr. Suresh, so I just add on whatever he left.

Q:    Do you remember what he said about his psychological state of mind? Into his demeanor?
A:    I remember asking him whether he understand his allegation. He looked calm.

Q:    Would it be normal?
A:    Could be.

Q:    It is more abnormal than normal right?
A:    Yes.

Q:    Was it recorded down?
A:    Yes because he was calm and well composed.

Q:    And you found that to be normal?
A:    Yes.

Q:    Did you ask him whether he was angry?
A:    He said he took sometimes to make a police report. And he prepared all the consequences that he might face.

Q:    Did he sound irritable as well?
A:    No, he was calm.
Q:    How did you divide your work?
A:    I also entertain trauma cases so we divided our duty like firstly; I examined the physical and external examination. Then, when it comes to specific

part, I give it to my colleague from surgical department.

Q:    You took it from the navel above?
A:    Yes.

Q:    Why?
A:    Because the part that he complaint I let it best to our friend from surgical.

Q:    Why there is no need to do anything above?
A:    We relate to the history given by the patient.

Q:    Are you aware of Lockhart principle? Contact DNA?
A:    Yes.

Q:    Did you look at the contact DNA as well?
A:    Yes.

Q:    Did you take personally the DNA from the part of the body?
A:    Yes.

Q:    Part of the top as well?
A:    Yes.

Q:    May he been shown P22, please. Page 1 and 2. You took a swab from saliva, tongue, nipple, areola. Where it shown that you’ve taken swab from

back and buttock?
A:    No I didn’t.

Q:    Why didn’t you do so? This is an allegation of sodomy. Human body, contact is available. Therefore, if there is human contact, you can get some level

of DNA there right?
A:    Because it is for this case, we relate to the last activity of the perpetrator and the complainant. Based on history taken by SP1, I take from the

necessary area only.

Q:    Why didn’t you cover the whole body?
A:    Because it was already pass two days.

Q:    He said he cleaned and washed himself?
A:    Yes.

Q:    Let’s go to Dr Siew. What was his role?
A:    He is a forensic pathologist.

Q:    Why didn’t he take the swabs? Why he gave it to Dr. Razali?
A:    Because Dr Razali is the best person to perform the examination on that particular area.

SN:    YA, could we stop there, so I can make a further reading when I come back? It’s already 4.15.
YA:    So how, Dato’ Nordin?
NH:    If you ask me, we still can continue to maybe 4.45.
YA:    Never mind lah, we will come back later at 8.30 pm, Wednesday morning.

[4.18] Adjourned.