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Anwar Ibrahim Sodomy II – The Recorded Truth – 06 Jun 2011 June 9, 2011

Posted by malaysianstory in Anwar Ibrahim, Najib Tun Razak, Sodomy II, Transformation in PKR.
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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, Dato’ Param Cumaraswamy
WB:    Zambri Idrus (for complainant)
AI hadir

[9.16 a.m.]

Permohonan Jenayah 214-128-2011

KS:    My Lord, there is an application before your Lordship. This is an application impugning the neutrality of this court in that YA has made certain conclusions at the close of the prosecution before calling upon the applicant to enter upon his defence on the ground of prejudgment amounting to bias and therefore calling upon YA from further presiding at the trial.

It is submitted at the outset that an application to disqualify a judge on the ground of bias consequent upon prejudgment does not amount to contempt of court. It has been held a judge must approach such an application without being defensive or resentful. The candour on the part of the judge in expressing his reasons for a decision is to be defended, then candour on the part of the litigant has likewise to be expected (see Tan Kim Hor v Tan Chong Motor Company Sdn Bhd & Ors [2003] 2 CLJ 434 [Tab 1]).

It is submitted that the court has misdirected itself on the standard of proof on the prosecution in relation to the application of the maximum evaluationtest to the evidence of PW1 and therefore being guilty of prejudgment and bias.

In handing down the decision at the close of the prosecution case the court has dealt with the evidence of PW1 at length after bearing in mind what was said by Lord Hailsham in PP v Killbourne [1973] 1 All ER 440 @  425,

‘Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible a witness testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness’s testimony falls of its own inanition the question of his needing, or being capable of giving corroboration does not arise.’

After setting out the above extract from Killbourne the court went on to say,

‘Realising the fact that the charge against the accused hinged on whether the evidence of PW1 could be accepted or not, it was not a surprise the defence had, either cross-examination of PW1 or in their submission, tried to paint a picture as someone who has zero credibility and thus his evi could not be believed and must be rejected.’

Obviously the court considered PW1’s evidence as fundamental towards proof of the charge against the applicant and, it was for this reason, that the court rook pains to minutely set out his evidence in the written decision at the close of the prosecution case. It is pertinent to note the court came to the following set out at page 43-44,

‘Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses tat could suggest  what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.’

The court relied specifically on Looi Kaw Chai & Anor v PP [2003] 1 CLJ 754 [Tab 2] and adverted to it in the course of its decision at page 35-37 as follows,

‘At the close of prosecution case what was needed to be proved was a prima facie case. Under Section 180(4) of Criminal Procedure Code a prima facie case is said to be made out when the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.’

As was held in the case of Looi Kow Chai & Anor v PP [2003] 1 CLJ 754, in determining whether prosecution had successfully established prima facie case or not, the court must subject the prosecution’s evidence to the maximum evaluation. It was held in that case:

‘The correct test to be applied in determining whether a prima facie case has been made out under s.180 of the Criminal Procedure Code (and this would apply to a trial under s. 173 of the Code) is that as encapsulated in the judgment of Hashim Yeop Sani FJ (as he then was) in Dato’ Mokhtar bin Hashim & Anor v. Public Prosecutor. Therefore, a judge sitting alone under s. 180 of CPC must subject the prosecution evidence to maximum evaluation and ask himself the question, ‘If I decide to call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution case? If the answer is in the negative, then no prima facie case had been made out and the accused would be entitled to an acquittal. Subjecting the evidence of the prosecution to the maximum evaluation to determine if the defence was to b called did not mean that the prosecution had to prove its case beyond reasonable doubt at this intermediate stage (see pp.80H-I, 81D-E, 85E0; Dato’ Mokhtar bin Hashim & Anor v PP [1983] 2 MLJ 232 followed.’

In Looi Kaw Chai, the Court of Appeal adopted what was said by Vincent Ng J (as he then was) in PP v Ong Cheng Heong [1998] 6 MLJ 678@691 [Tab 3] in relation to the amendment (Acts A979) to the Criminal Procedure Code as follows:

‘Thus to me, maximum evaluation simply means evaluation, on  a prima facie basis, of each and every essential ingredient of the charge as tested in cross-examination. In other words, maximum evaluation connotes quantitative rather than qualitative evaluation of the evidence; with focus more on the evidential burden in terms of evidence led rather than the persuasive burden in terms of qualitative degree of proof. What then constitutes a ‘prima facie case’? ‘Prima facie’ means on the face of it or at first glance. To me, in the light of Act A979, perhaps the most appropriate definition of a prima facie case’ could be found in the Oxford Companion of Law (p 987), which has it as:

‘A case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive.’

It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered ad which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected. (Emphasis added.)’

Obviously the court did not have regard to what was said by Vincent Ng J in Ong Cheng Heong as emphasized above. It is undisputed PW1 gave evidence under oath to tell the truth, the whole truth, and nothing but the truth. By concluding PW1 was a truthful witness at the close of the prosecution case, the court obviously considered his evidence to be conclusive, namely it was the truth, the whole truth, and nothing but the truth.

Conclusive is defined as ‘decisive; convincing; authoritative. Irrebuttable (as conclusive evidence. (see p 945 P. Ramanathan Aiyar’s Advance Law Lexicon, 3rd Ed. [Tab 4].

It follows PW1’s evidence has been accepted by the court as irrebuttable evidence. If this is the position and it is then clearly the provisions of section 182A(1) of the Criminal Procedure Code which state:

‘At the conclusion of the trial, the court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.’

Would be incapable of fulfillment which in effect, would amount to prejudgment of the guilt of the applicant, which would demonstrate bias on the part of the court at the close of the prosecution case, meaning, the applicant would not be in a position to be afforded a fair trial.

It is worthy of not that Looi Kow Chai, and consequently by implication, Ong Cheng Heong, have been adopted in Balachandran v PP [2005] 2 MLJ 301 @ 316 [TAB 5] and lately in Magendran Mohan v PP [2011] 1 CLJ 805 [TAB 6].
The correct test to apply would be the real danger of bias test as enunciated by the House of Lords in R v Gough [1993] 2 ALL ER 724 [TAB 7] and followed by the Federal Court in Mohd Ezam Mohd Noor & Ord v Ketua Polis Negara [2001] 4 CLJ 701 [TAB 8].

With the court having accepted the evidence of PW1 as irrebuttable, there is a real danger of bias following the court’s prejudgment of the evidence of PW1 as being true at the close of the prosecution’s case as opposed to the mandatory provisions of Section 182A(1) of the Criminal Procedure Code, which require the court to consider all the evidence before it at the conclusion of the trial to decide whether the prosecution has proved its case beyond reasonable doubt against an accused person.

Under the circumstances, the applicant is entitled to prayers (1), (2) and (3) of the notis usul herein. In the alternative, for the submissions which follow, the applicant is entitled to an acquittal and discharge with unconditional release.

In Lee Kwan Woh v PP [2009] 5 MLJ 301 [TAB 9], the Federal Court had, in relation to what constitutes a fair trial, occasion to say as follows,

‘The expression law in Art 5 (1) of the Constitution included written law and the common law of England, i.e. the rule of law and all its integral components and in both its procedural and substantive dimensions. It is also clear from the authorities that it is a fundamental right guaranteed by Art 5(1) that a person’s life or personal liberty may not be deprived save in accordance with the state action that is fair both in point of procedure and substance.’

In Shamim Reza bin Abdul Samad v PP [2009] 6 CLJ 93 [TAB 10], the Federal Court @ 98 sets forth the following significant passages,

‘In Lee Kwan Who v PP [2009] 5 MLJ 301, this court held that the fundamental liberties expressed in the constitution must be read in a prismatic fashion to discover the right submerged in the wider concepts expressly guaranteed. This court also affirmed as accurate the following statement of the law by Edgar Joseph Jr. J (as he then was) in [TAB 11]: PP v Choo Chuan Wang [1992] 2 CLJ 1242

‘Article 5(1) of our Constitution does imply in favour of an accused person the right to a fair hearing within a reasonable time by an impartial court established by law. It follows that if an accused person can establish a breach of this right then, in the words of Sandhawakua CJ in Madheshwardhari Singh v The State A1R 1986 (Pat) 324, he would be entitled to an unconditional release and the charges leveled against him would fall to the ground. We therefore accept that the right to a fair trial is a constitutionally guaranteed right.’

This Federal Court has given its stamp of approval to what was said in Choo Chuan Wang in Lee Kwan Woh and Shamin Reza.

In our case, there is clear evidence of prejudgment and bias. It must follow from this, in view of what was said in Choo Chuan Wang, the applicant is in fact entitled to an unconditional release with the charges leveled against him falling to the ground.

This relief squarely comes within the omnibus prayer in the notis usul, namely, ‘Apa-apa perintah lain yang difikirkan wajar dan sesuai oleh Mahkamah Yang Mulia ini’.

The issue we raised is my Lord, something which has not been raised before. Something that your Lordship must and should take time to carefully consider and ought not to dismiss it. We pray that this application be allowed in terms in the notis usul. Much obliged.

MY:    My Lord, before I answer my learned friend I want to make an observation. This is the 3rd time that my learned friend is applying to recuse your Lordship. I think by itself it should be fine for this case to be in the Malaysian Book of Record because I know not of any  other case  where the defence has persistently apply for the judge to be recused on whatever ground whether with merits or not [] YA, this application is filed by my learned friend to have your Lordship to be recused on the ground that you have prejudged the case on the accused and therefore you are bias against him. The applicant also apply for the case to be heard de novo and the other two prayers plus the fourth prayer for any order which this Honorable Court deems fit.

The basis of the application is found in the affidavit of Dato’ Seri Anwar Ibrahim supporting this motion. If I may refer to paragraph 5 of the affidavit and read it:

“Saya adalah dinasihatkan oleh peguamcara saya, nasihat yang saya percayai adalah tepat dan benar bahawa dalam Alasan Penghakiman oleh Y.A Dato’ Mohd Zabidin bin Mohd Diah, di antara lain, telahpun menyatakan, di muka surat 43-44 seperti berikut,

‘Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses that could suggest  what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.’”

Then after referring to Looi Kow Chai & Anor v PP and the two cases which my learned friend produced in his submission, at para 8:

“Saya adalah dinasihatkan oleh peguamcara saya, nasihhat yang saya percayai adalah tepat dan benar bahawa dengan membuat penemuan (finding) seperti berikut,

‘He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.’

Y.A. Hakim Dato’ Mohd Zabidin Bin Mohd Diah telah membuat satu penemuan konklusiff dan dengan ini memutuskan pihak pendakwaan telah ‘proved their case beyond reasonable doubt as to the guilt of the accused at the close of the case for the prosecution’ yang telahpun mengakibatkan peruntukan mandatory dalam seksyen 182(A) Kanun Acara Jenayah menjadi sia-sia (nugatory).”

My Lord, this application obviously is based on one this passage, one paragraph out of 180 paragraphs contained in your ruling at the close of the prosecution case. It’s a 68 pages judgment with 180 paragraphs and my learned friend is relying on one paragraph to say that you had prejudged the case.

When those words in one passage or one paragraph is taken out of context and considered in isolation it may give the wrong impression to the public or the uninformed public or to the [] that the judge in fact had prejudged the case against the accused. When it is done this way taking out the context  then it is difficult for us to believe or to accept that this application is made bona fide. It is difficult even to accept that this application is made out of genuine belief that your Lordship has been biased against the accused.

Now, the question is, is there a prejudgment? Or had your Lordship been bias? The answer can be found in your own judgment at the last page, page 68, paragraph 183,

“Based on all the above reason I find the prosecution through the evidence of PW1 which had been corroborated in material particulars had proved all the facts required to establish all the ingredients of the charge. I find a prima facie case not a beyond reasonable doubt case as suggested by Dato’ Seri Anwar Ibrahim in his affidavit as defined under S. 180 of the Criminal Procedure Code had been made out against the accused. Therefore the accused is called to enter his defence.”

May I my Lord refer to S. 180 (4) of the Criminal Procedure Code,

“(4)    For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible     evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.”

So what your Lordship is saying is there is credible evidence. At this stage, at the close of the prosecution case there is credible evidence establishing all the facts required to prove all the ingredients to bring home the charge under S.377B of the Penal Code. Nothing less, nothing more.  That’s all. Credible evidence.

And to see whether or not that passage refered to by Dato’ Seri Anwar Ibrahim in his affidavit amounted to a prejudgment we must look into the context it appear. It is without doubt my Lord those passage appear during discussion whether or not PW1 is a credible witness and his evidence is credible evidence.

If I may invite your Lordship to paragraph 104 of your judgment…Before that, under the subheading “At The End Of The Prosecution Case”, this is after your Lordship had set out all the evidence, relevant evidence adduced by the prosecution witnesses,

“At the close of the prosecution case what was needed to be proved was a prima facie case. Under S. 180 (4) of the CPC a prima facie case is said to be made out against the accused when the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction as held in the case of Looi Kaw Chai.”

At paragraph 105, you set the brief charge of the accused.

At paragraph 106 this what your Lordship wrote,

“The prosecution relied on PW1’s evidence to prove its case where PW1 testified he was at the place mentioned in the charge and while he was there the accused introduced his penis in PW1’s anus until the accused ejaculated.

This evidence from PW1 if accepted clearly establish a prima facie case for an offence of carnal intercourse against the order of the nature as stated in the charge.

So the question here is whether PW1 was a credible witness and whether his evidence as to what transpired between him and the accused in the unit 11-5-1 was true and could safely be relied on. If the court finds PW not true, not to be credible then the accused had to be acquitted without having to look for corroborated evidence to support PW1’s evidence.”

So what follows is beyond discussion in evaluating whether or not PW1 is a credible witness and whether or not his evidence could be relied in the sense that he is credible.

If I may refer to paragraph 109,

“En. Karpal submitted while PW1 insisted that the incident occurred without his consent PW1 never tried to escape although he had ample opportunity to do so. PW1 instead followed all the instruction given by the accused. PW1’s action of eating and drinking after the incident, did not try to get help from the occupier of unit 11-5-2, did not complain to the security guard, did not immediately lodge police report and attended PKR’s function the next day did not reflect the attitude of someone who had been sodomised by the accused. Therefore according to the counsel PW1 had lied when he said in his police report the incident occurred without his consent thus PW1’s entire evidence could not be believed and must be rejected. Learned counsel urged the court not only to reject PW1’s evidence but to also direct the Public Prosecutor to charge PW1 under S. 195 of the Penal Code. In other words what the defence was saying since PW1 testified that the sodomy performed on him was without his consent but the same time he failed to run away from the place of incident, failed to ask for help from the occupier of the unit 11-5-2, did not complain to the security guard, did not make police report immediately – it follows that PW1 not only had lied when insisting he did not consent to being sodomised but he also fabricated false evidence with intention of procuring the accused’s conviction for an offence of sodomy which never took place.”

From paragraph 104 until paragraph 125 is all discussion whether or not PW1 is a credible witness. 21 paragraphs in all, just the evaluation on his evidence.

At paragraph 114 after commenting the failure and all that, your Lordship wrote this,

“Based on those facts and circumstances, PW1’s failure to run away, to complain to people in unit 11-5-2, to lodge police report immediately is understandable. It could not be the basis to find PW1 to be an incredible witness.”

Then at paragraph 115,

“After finding that PW1’s evidence is not affected the next question is whether the evidence itself [] PW1 showing that the accused introduced his penis into Pw1’s anus could be accepted as credible and as such it is safe for the court to rely on it to call the accused to enter his defence.”

The crucial passage is at paragraph 121,

“In our case beside there was an opportunity for the offence to take place the evidence of PW1 showed the offence did in fact occurred. PW1 was subjected to lengthy cross-examination. PW1 state vastly and consistently describe in detail how the accused introduced his penis into PW1’s anus with the aid of lubricant. Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses tat could suggest what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.”

This passage itself would show that it is not conclusive because your Lordship said “I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.”

Then at paragraph 125,

“It was contended by the defence that PW1 was not a truthful witness and his evidence should be rejected outright and the court need not have look further for further evidence as I had stated earlier in the judgment. I found PW1 to be a credible witness. There is nothing improbable about his evidence. His evidence was reliable. Therefore the next question to be decided is whether there is evidence corroborative of his evidence.”

With all those paragraphs it will appear that this discussion about PW1 being truthful and all that, first it is in response to the submission suggesting that this witness is not truthful. When the defence said this witness has lied, has fabricated evidence and not a truthful witness and the judge hold otherwise so what is the judge supposed to say? What is the opposite of not truthful? But whatever it is still, it is an evaluation to arrive at whether  or not he is credible and that evidence is also credible. And that is reflected in paragraph 125.

It will appear if ever anybody to think that the phrase “beyond reasonable doubt” is there actually eventhough it is not written, it is must be in reference to beyond reasonable doubt evidence. Because your Lordship had never said beyond reasonable doubt case but you have subjected all the evidence of the witnesses, their credibility and their version to the maximum evaluation and this is something that Looi Kaw Chai and all the cases before it had said that the judge is required to do.

May I first refer to the case of Looi Kow Chai & Anor v PP [2003] 2 MLJ 65, tab 12 of the first bundle, J Gopal Sri Ram other than referring to the case my learned friend referred to, PP v Ong Cheng Heong and PP v Saare Hama & Anor also refered to this particular that can be found in the last paragraph of page 84 case of PP v Mohan Singh,

“Lastly, in Public Prosecutor v Mohan Singh [1999] 4 CLJ 620; Pendakwa Raya v Mohan Singh a/l Lachman Singh [1999] MLJU 218, Wahab Patail J expressed his view upon the approach to be taken by a court when deciding whether the prosecution had made out a case under s 180 of the CPC. He said:
I conclude then that the prosecution must be in a position to say:
(a)    at the end of the prosecution case, that on the basis of the evidence it has advanced, and tested by cross-examination, it has advanced evidence beyond reasonable doubt in respect of all the elements of the charge;” and to this Gopal Sri Ram J agreed.

And then at page 83 of the same judgment at para D, the court refered to the case of Public Prosecutor v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1,

“Augustine Paul J made the following observation which has since received approval sub silentio from the Federal Court (see [2002] 3 MLJ 193):
A prima facie case arises when the evidence in favor of a party is sufficiently strong for the opposing party to be called on to answer. The evidence adduced must be such that it can be overthrown only by rebutting evidence by the other side. Taken in its totality, the force of the evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. As this exercise cannot be postponed to the end of the trial, a maximum evaluation of the credibility of witnesses must be done at the close of the case for the prosecution before the court can rule that a prima facie case has been made out in order to call for the defence.”

and that is exactly what your Lordship had done, subjecting the evidence to maximum evaluation to determine the credibility of the witnesses. I did not see anything wrong with the use of the word “truthful”.

And my Lord, the passage that I read from the judgment of Wahab Patail J is not something new. In the Federal Court of Tan Boon Kean v PP [1995] 3 MLJ 514, Azmi J had occasion to talk about what is a prima facie case and what is prima facie evidence.

At paragraph E of page 529 this is what the judge had to say,

“As distinct from a prima facie case, Sarkar on Evidence at p 45 defines ‘prima facie evidence’ as ‘evidence which, if accepted appears to be sufficient to establish a fact, unless rebutted by acceptable evidence to the contrary. It is not conclusive’.

This is what Vincent Ng J say. It is not conclusive. Do you now why it is not conclusive? In that case it says “in the absence of any evidence to the contrary”. That means without more at this stage can you say? So the judge went on further and said,

“‘Prima facie’, means on the face of it or at first glance. So, ‘a prima facie case’ is a ‘ case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive’ (see the Oxford Companion to Law at p 987). ‘Prima facie evidence’ is evidence where ‘a party’s evidence in support of any issue is so weighty that no reasonable man could help deciding the issue in his favour in the absence of further evidence’ (see Cross on Evidence(2nd Ed) at pp 24 and 25; and also per Wee Chong Jin CJ in Gan Soo Swee & Anor v Ramoo [1969] 1 MLJ 59 at p 61). In our view, under s 180, a prima facie case is one which is established by sufficient beyond reasonable doubt evidence and can be overthrown only by rebutting evidence adduced by the other side, so as to cast a reasonable doubt on the prosecution case as to the guilt of the accused.”

Even the last sentence there it appear that at the close of the prosecution case you have beyond reasonable doubt evidence to prove the guilt which can only be rebutted by other evidence which cast doubt to that guilt. So what is wrong with that?

Saying that the facts proving all the ingredient of the charge had been proved by beyond reasonable evidence is different from saying that the case had been proved beyond reasonable doubt. And all the discussion from paragraph 104 to paragraph 125 is all to determine whether or not there is evidence that is free from doubt which if accepted will prove the facts needed to constitute all the ingredients of the charge under S.377B Penal code.

The question is if my learned friend says that “No”, it simply means the case had been proved beyond reasonable doubt. Even at this intermediate stage even if that is the case, it is my submission that it is still not wrong. I said this because the evidence that constitute a prima facie case will be the same evidence that after having heard the defence the court will rely on whether or not the court can say the case have been proved beyond reasonable doubt. It is the same evi, nothing more. The prosecution is not going to adduce anymore evidence after that. It is the same evidence.

So what the court in Looi Kaw Chai said is this, “Am I prepared to convict him if he remains silent?”. Meaning you must have beyond reasonable doubt evidence proving all the facts needed to prove all the ingredient of the charge and if he remains silent this evidence that I say amounted to a prima facie case is the same evidence that will be converted to prove beyond reasonable doubt.

The only reason the court says you have to postpone it, “Don’t say it that your case have been proved beyond reasonable doubt” is because there are 2 stages in the trial, the prosecution case and the defence case. If the defence adduce evidence then you wait until the end of the defence and then consider the prosecution case in the light of the defence evidence and see whether or not this prima facie has achieved proof beyond reasonable doubt. But in the case where the accused elected to be silent, what happen? What kind of evidence that we must have in order to convict him if he remains silent? It is that evidence, beyond reasonable doubt evidence which become proof of beyond reasonable doubt case.

If I may invite your Lordship again to Looi Kaw Chai starting from page 78 the last paragraph where Gopal Sri Ram J refers to the majority judgment in Arulpagasan , a 7-man-panel in deciding what amounts to a prima facie case. The standard of proof in a prima facie case and the minority judgment handed down by Edgar Joseph FCJ.

At page 79, paragraph C this is what the court says,

“We find that a careful reading of the majority view and the minority view respectively in Arulpagasan in reality and for all practical purposes produces the same result.”

What did the majority view says in Arulpagasan? At page 80 the judge referred to the judgment of Edgar Joseph FCJ what in Arulpagasan and referring to page 52 this is what he said,

“Furthermore, if the onus on the prosecution at the close of its case, is to establish a ‘mere prima facie case’, the test to be applied is a minimal evaluation of the prosecution’s evidence to ensure that it is not inherently incredible (see Haw Tua Tau v PP). Whereas, if the onus on the prosecution at the close of its case, is to establish a case ‘beyond all reasonable doubt’, then the test to be applied to the prosecution’s evidence is a maximum evaluation of the prosecution’s evidence, which calls for ‘a more rigorous test of credibility’ (per Lord Diplock in Haw Tua Tau at p 54G), in order to answer the question: if there is no more evidence, has the prosecution proved its case beyond all reasonable doubt? (See PP v Fong Ah Tong & Anor [1940] MLJ 240). (Emphasis added.)”

This is what Edgar Joseph FCJ said. If there is no more evidence. So at close of the prosecution case this is what your Lordship has to ask : if there is no more evidence, has the case been proved beyond reasonable doubt? Your Lordship didn’t say it but they said your Lordship says it. But if it is true you said it then what Gopal Sri Ram J said at paragraph F is this,

“It would appear that a comparison between the passage earlier quoted from the minority judgment of Mohd Azmi FCJ and that of Edgar Joseph Jr FCJ, reveals no serious difference of opinion between them as to rigour with which the prosecution’s evidence is to be examined. Hence, it is our respectful view that the difference of opinion, if any — and we hasten to add that we are unable to see any — between the majority and minority in Arulpragasan is not one of substance but of mere form.”

So he is not saying that Arulpagasan is wrong. Of course he referred to the case of Dato’ Mokhtar Hashim v PP.

With regard to the cases that my learned friend referred to i.e. PP v Ong Cheng Heong  [1998] 6 MLJ 678 and PP v Saare Rama & Anor [2001] 4 MLJ 480 this is what the judge has to say at paragraph H of page 84.

“Although we might have expressed the test in different words, we agree with the formulation of the test in Ong Cheng Heong and Saare Hama. In our judgment, these two cases accurately set out the approach that is to be adopted under ss 173(f) and 180 of the CPC at the conclusion of the prosecution’s case.”

So he didn’t say it. This is how I said it but it is formulated differently in the other two cases and both are actually the same but the standard of proof at the close of the prosecution case is further explained in the case of Balachandran v PP [2005] 2 MLJ 301 which was decided 2 years after Looi Kaw Chai & Anor v PP. May I just refer to holding no. 5 at page 303 of the judgment,

“As the accused can be convicted on the prima facie evidence it must have reached a standard which is capable of supporting a conviction beyond reasonable doubt. However it must be observed that it cannot, at that stage, be properly described as a case that has been proved beyond reasonable doubt.”

See? The court is playing with the word. This is what it actually is. But you don’t describe it that way. Why? Because,

“Proof of beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt, the other refers the evidential burden on the accused to raise a reasonable doubt. Both these burdens could only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s 182A(1) of the CPC. That would normally be the position where the accused has given evidence.

However, where the accused remains silent there will be no necessity to re-evaluate the evidence in order to determine whether there is a reasonable doubt in the absence of any further evidence for such a consideration. The prima facie evidence which was capable of supporting a conviction beyond reasonable doubt will constitute proof beyond reasonable doubt (see para 23).”

So it said the standard is that high, it’s beyond reasonable doubt but you don’t describe it as such. That’s all.

In our case, we are saying that your Lordship at no time especially state that the case has been proved beyond reasonable doubt. At the most after being subjected the witnesses and the evidence to maximum evaluation the most you can say that your Lordship had hold that there is beyond reasonable doubt evidence that the facts consisting the ingredients have been proved.

Just as a matter of completeness, YA may I then refer to two other cases? The first case is PP v Saimin & Anor [1971] MLJ 16. In PP v Saimin & Anor, the court says in order to convict the version of the prosecution must be true even if he remains silent. You must say it is true even at that stage. How can the court can say that the prosecution must be true if he holds that the witness is not truthful? If I may read at tab 3, page 17, paragraph F at the left. This is what Sharma J has to say,

“A conviction cannot be sustained even if the court is satisfied that the prosecution story “may be true” unless and until it is found that the prosecution story “must be true”.”

So this finding must be made at the close because the accused may want to remain silent. And the court can only convict if he says that this, the story is true. Would that conflict with what my learned friend is saying? The answer can be found in  Mah Kok Cheong v R [1953] 19 MLJ 46, tab no.2.

What is the burden on the defence? The burden is to raise reasonable doubt as to the truth of the prosecution story. If I may read what Spenser Wilkinson J has to say at page 47,

“There are really three classes of criminal cases to be considered:—
(a)    The ordinary case where direct or circumstantial evidence is given to prove that the accused committed the offence charged. In such     cases if the defence raises a reasonable doubt as to the truth of the prosecution case or as to the accused’s guilt there will be an acquittal, and if no such doubt is raised, a conviction.”

So that is what they have to do: to raise a reasonable doubt as to the truth or the accused’s guilt, meaning at the conclusion of the prosecution case the court must be able to say in the absence of any of the contrary he is guilty. The story must be true. Then it’s their duty to raise doubt as to the truth of that version of the prosecution or to the guilt of the accused.

At page 47 on the right hand column, the second last paragraph,

“I thought the decision in Mohamed Yatim’s case had made the position clear, but from various cases recently before me it does not appear to have done so. I must, therefore now repeat that in ordinary criminal cases such as perjury, forgery, cheating and so on where no question of unlawful possession of property arises all discussion as to what might reasonably be true or what is consistent with innocence are both irrelevant and misleading. Almost every defence put forward by an accused is consistent with innocence or it would not be put forward; nor would it be a very good defence if it could not reasonably be true.

But whatever may be the defence to a criminal charge the sole question which a Subordinate Court has to ask itself at the conclusion of the trial is — Does the defence raise a reasonable doubt as to the truth of the prosecution case or as to the accused’s guilt? I say “the sole question” advisedly because in this country the accused will not have been called on for a defence at all unless the prosecution has first proved a case. In this respect our criminal procedure differs from that in England and this difference makes it necessary to apply with caution the English decisions which almost all deal with trials by jury.”

Again I would like to say this, it is our submission that at no time anybody who read your judgment or your ruling, the whole of it in particular where you deal with the evidence of PW1 and his credibility from paragraph 104 to 125 that your Lordship says that this must be true and therefore that’s the end of it. And then at paragraph 183 all your Lordship says is that :  based on all this a prima facie case as defined under S.180(4) of CPC has been proved. That’s all.

Now, I’m coming to the 2nd part of my submission, “Bias”. The second volume. My learned friend is saying that your Lordship is bias therefore he couldn’t have a  fair trial because they are prejudged. And we are saying that you have not prejudged. Whatever your ruling is your ruling, a ruling made at the close of the prosecution case. And you know there could be evidence on behalf of the defence to raise doubt as to the truth of the prosecution case or as to the accused’s guilt.

There could be evidence adduced on behalf of the defence to raise doubt as to the truth of the prosecution’s case. In the case of Che Minah binti Ramli, the last case in our second bundle, if I may refer to page 207 first, holding number 3:
“It was an acceptable proposition to say that a judge’s impartiality is presumed and any party seeking disqualification must establish the circumstances and situations to justify the disqualification of the judge. There is a strong presumption of judicial impartiality. The standard of reasonable apprehension of bias must necessarily refer to an apprehension based on serious grounds. Each case must therefore be examined contextually and the inquiry would be based entirely on the facts. The appeal related to the question of leave and the issue on the fatwa (edict) and its ramifications had no role to play at all (para 27(a) & (b).”
Then, at page 219 of the report, para 31, the Court of Appeal’s judge referred to the case of Liteky v US [1994] 114 S Ct 114 which at p1155, Scalia J, defined the words ‘bias’ or ‘prejudice’ in this way:
“The words (bias or prejudice) connote a favourable or unfavourable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant’s prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant’s prior criminal activities that he will vote guilty regardless of the facts).”
When witness’s evidences are corroborated in every step of the way, in material particular: the witness said I was working with Anwar, then Ibrahim Yaakob said yes. He said he was asked to go to the unit of the condo on the said date and he was asked to send documents – Ibrahim Yaakob confirmed that. He said he was there in fact, in the vicinity – the CCTV confirmed that. Then he was said he was sodomised – the medical and the chemist report confirmed that.
So what is so wrong with your finding that you have been alleged to act biased and prejudge? That is the only logical conclusion. You are justified to say that this witness is truthful, because he is corroborated by independent witnesses, and one of whom is DSAI’s chief of staff.
Then, back to the report at page 224, para 47:
“There is no need to reaffirm the well-settled principle of the impartiality of the courts of justice. This principle has been a matter of common knowledge across the common law world over the past decade or so. The fundamental belief that those who adjudicate must always do so without bias or prejudice has withstood the test of time. Cory J, in R v S (RD) [1997] 3 SCR 484, at para 106 quoted R v Bertram [1989] OJ No 2123 (QL) (HC) when defining bias or prejudice: that definition reads as follows (and I quote): a leaning, inclination, bent or predisposition towards one side or another or a particular result”.
That means (in defining the word bias), in advance, from the very beginning, your Lordship is influenced to decide in favour of a certain party, irrespective of the evidence or the law. And that is not the case; you decided against us or for us. So my learned friend must show in this instance, especially in this particular application before your Lordship.
If I may, refer to the case of Hock Hua Bank. In that case, the judge had already said this, during the proceeding that, the defence is incredible at one point of time , and they apply to have him recused, and yes, he recused himself, not because he deemed himself to be bias, but because he wanted to avoid allegation against himself. And when appeal, both Gopal Sri Ram and Ian Chin J said it is wrong, there he actually said that, for deciding a mareva injunction which Gopal Sri Ram said it is okay for him to look at the merit of the case. Federal Court said that it is not bias, because something will happen in the course of the trial after hearing the actual defence, he may change his mind. And that happens all the time.
And then we have the case of Alur Janggus, there are two cases of Alur Janggus. [read facts]. At both courts, both quorums said that there was no bias.
May I just refer to Hock Hua Bank YA, page 225 of the judgment, in which they were quoting this from another case: R v Liverpool City Justice, ex p Topping [1983] a ALL ER 490:
“We conclude that the test to be applied can conveniently be expressed by slightly adapting the words of Lord Widgery CJ in a test which he laid down in R v Uxbridge Justices, ex p Burbridge ( The Times, 20 June 1972) and referred to by him in R v McLean, ex p Aikens (1974) 139 JP 261 at p 266: would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible?”
This is not the person who sitting outside the court, and who was informed, or just read the newspaper or just being confronted with just that passage. This is a reasonable person sitting in court and knowing all the relevant facts: and all the relevant facts were those paragraphs that I referred to before, not reading one paragraph in isolation.
And in this case also, they referred to few English cases, at page 227 para C onwards:
“To use the words of Darling J in R v Sharman (1930) 9 Cr App Rep 130; ‘if the appellants’ and I may add, or parties, ‘are to be allowed to select the judges who shall hear their appeals,’ and I may also add, or cases, ‘the business of the court could not be carried out’.
In R v Lovegrove [1951] 1 All ER 804, Lord Goddard CJ, giving the judgment of the court (Lord Goddard CJ, Cassels and Lynskey JJ) said, at pp 804 and 805 (since it is a short judgment I have reproduced it in full):

The applicant was convicted before Lynskey J, at Bedford Assizes, and his application for leave to appeal, which has been refused by the single judge, now comes before this court of which Lynskey J is a member. It has undoubtedly been the practice recently, if the trial judge happens to be sitting in the Court of Criminal Appeal, to adjourn the case, but the question is whether that practice need be followed in all cases in future.
This matter was considered many years ago, and it was pointed out that in civil cases before the Supreme Court of Judicature Act 1873, when there was no Court of Appeal and appeals were heard by judges of the three common law courts in banc, it was quite a common practice for the judge before whom the trial had taken place, and whose ruling, indeed, might be impugned, to sit as a member of the court, even, in some cases, where he had sealed the bill of exceptions. This matter was considered in R v Sharman (alias Sutherland) (1913) 9 Cr App R 130, where an application for an adjournment was made on behalf of the appellant on the ground that Ridley J, who tried the case, was presiding in the Court of Criminal Appeal. Darling J, giving the judgment of the court, said (9 Cr App R 130):
‘I think this application ought not to be granted. After the assizes, appeals come from all parts of the country; and if appellants are to be allowed to select the judges who shall hear their appeals, the business of the court could not be carried on. Before the days of the Judicature Act, when the Courts of Queen’s Bench, Commons Pleas and Exchequer sat in court to hear appeals (of course, not criminal appeals), it was the usual practice for the judge who tried the case to be present.’
YA:    Takpelah, you already cited the principle kan, you don’t need to go to the facts. That’s the position in England lah.
MY:    Yes, but when we are talking about bias, we are talking about []. Whether England, US, Malaysia or India. And even in that situation, the court did not say that it is bias, and need a fair hearing.
So all in all My Lord, if I may say is this, I have observed, that this application is without merit. This application’s bona fide is questionable. And I want to say this: that this application is made to delay and derail the trial. DSAI is called to enter the defence. He must seize this opportunity to give his version of the story, which he happily gives to member of the public around the country. Now, this is his chance to give your defence under oath. So that he will be subject to cross examination just like the prosecution’s witnesses. After all, cross examination is the test of truthfulness. It is our humble submission my Lord, that this application was without merit and should be dismissed. There is no prejudgment and there is no bias on the part of your Lordship, thank you.
YA:    Yes, Mr. Karpal?
KS:    The allegations by my learned friend that we are delaying the trial without any substance, is a serious matter. In fact, it is amount to contempt of court. Who is delaying the trial? Is it the defence or the prosecution? That is what your Lordship ought to ask. 25 witnesses were offered to us. The witnesses offered must be in court. You can’t offer witnesses who are not in court. We have been given an opportunity to interview these witnesses in court.

What had happened in the last few weeks? Prosecution should produce those witnesses to us for interview. DSAI cannot be compelled to give evidence, his evidence is alibi, unless and until he is given the opportunity to interview the witnesses offered to us. It is not this application which delaying the trial. On the other hand, it is the prosecution which unable to produce witnesses to be interviewed, except for 5 witnesses, who are not material. What about the Prime Minister? What about his wife? Is there any arrangement up to now My Lord for these two personalities to be present here in court to be interviewed for the purpose of getting the defence ready and DSAI to give his evidence?
Let it not be forgotten My Lord that DSAI is not afraid to be in the box, in fact in this trial, he had gone into the box. There is no question that he’s being afraid. What he wants is only a fair trial. Is there any fair trial? That is the question that your Lordship needs to consider. My learned friend made complaints about this being the third application to recuse your Lordship. It doesn’t matter if hundred applications. The point is whether the application has merit.
My learned friend had given a lecture; I think he ought to go to university for that purpose, not here. He talked about beyond reasonable doubt and prima facie case. I don’t wish to lecture your Lordship. What is important is for you to look at the point in hand. My learned friend refers to paragraph 183 of your judgment. What is forgotten are pages 43-44. Your Lordship had found that PW1 is a truthful witness. We’ve given at length in the proposition which your Lordship did not consider. Let’s look at it again, Looi Kow Chai is in tab 2 of our bundle,. What my learned friend had obviously forgotten, at page 85 itself:
“If this passage is meant to suggest that the evidence led by the prosecution must receive maximum evaluation, then we would agree with it. But if what is meant is that a court ought to go further and determine whether the prosecution at the end of its case has proved the case against the accused beyond a reasonable doubt, then we find ourselves in disagreement with the learned judge in that case. In our view, subjecting the evidence of the prosecution to maximum evaluation to determine if the defence is to be called does not mean that the prosecution has to prove its case beyond a reasonable doubt at this intermediate stage.”
My learned friend was then referred to what was in PP v DSAI, can I read the last part of it. [read] – ‘at the close of the whole case’.
I come back to the main [] of the application. Your Lordship in fact did not apply your Lordship mind to it. This is in fact was in the case of Looi Kow Chai

page 84. I read this:
‘In Public Prosecutor v Ong Cheng Heong [1998] 6 MLJ 678 at p 691, Vincent Ng J expressed his view on the amendment to section:
Thus, to me, maximum evaluation simply means evaluation, on a prima facie basis, of each and every essential ingredient of the charge as tested in cross-examination’.
My Lord, if prima facie basis, your Lordship cannot tell the truthful of a witness. In fact, what has your Lordship done is invalid.
‘Thus, to me, maximum evaluation simply means evaluation, on a prima facie basis, of each and every essential ingredient of the charge as tested in cross-examination. In other words, maximum evaluation connotes quantitative rather than qualitative evaluation of the evidence; with focus more on the evidential burden in terms of evidence led rather than the persuasive burden in terms of qualitative degree of proof.
What then constitutes a ‘prima facie case’? ‘Prima facie’ means on the face of it or at first glance. ‘
So your Lordship has acted beyond this expression.
“To me, in the light of Act A979, perhaps the most appropriate definition of a ‘prima facie case’ could be found in the Oxford Companion of Law (p 987),

which has it as:
‘A case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive.’
It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered and which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected.”
By saying that PW1 is a truthful witness, your Lordship in fact had accepted his evidence, which your Lordship ought not to do at this intermediate stage because that evidence is not conclusive. By saying that the witness is truthful, the evidence is true, completely shut up the defence. It is completely nullifies the amendment to the Criminal Procedure Code; Section 182A (1).
I will continue reading what Vincent Ng J said in Ong Cheng Heong.
YA:    I think you had quoted that before in your submission right?
KS:    (he continues reading)
“Although we might have expressed the test in different words, we agree with the formulation of the test in Ong Cheng Heong and Saare Hama”.
I did not wish to repeat it again. So it is in our submission that your Lordship had completely shut up the defence by deciding that PW1 is the witness of truth. And that is the position My Lord, the bias is obvious. We say My Lord that your Lordship had gone beyond by what had given by the law.
Para 183 does not, and cannot completely erase what is in page 43-44. Your Lordship had clearly gone to the conclusion that PW1 is the witness of truth. I did not wish to go to cases in which my learned friend had referred in question of bias. Of course, impartiality of a judge is presumed, but this is one case where that presumption can be rebutted. In fact, destruction is placed by your Lordship yourself in coming to the conclusion that PW1 is the witness of truth. And that destruct the entire case by the prosecution. We say under these circumstances, our application ought to be accepted. Much obliged.
YA:    Kita stand down for a while.
[10.34] Stand down.
[11.36] Kes dipanggil semula.
MY:    Kes untuk keputusan, YA.
YA:    Saya mendapati permohonan ini tidak mempunyai sebarang merit. Oleh itu, permohonan ini ditolak.
KS:    My Lord we wish to appeal to this decision. We are asking for stay pending appeal to the Court of Appeal. We want to give the authority of the case of Rowstead Systems Sdn Bhd. In fact, we’ve made similar application before your Lordship, and your Lordship had relied on this case.
YA:    So DPP?
MY:    YA, I’m objecting to this application, because your decision is not appealable. Rowstead is no longer [] now, and the fact can be distinguish. In the case of PP v DSAI, this is the decision of the Court of Appeal. This is the appeal to recuse your Lordship from this trial.
YA:    The second recusal?
MY:    Yes, the second recusal. There are two judgments, one by Low Hop Bing J, and the other one is by Malik J.  May I just invite your Lordship to the last page of the judgment of Malik J [read]. Then to Low Hop Bing J at page 8 para 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 the rights of the accused and is therefore not a decision within the ambit of Sec. 3 read with Sec 50(1)(a). It is only the outcome of the trial that would have the effect of finally disposing of his rights.”
And the conclusion of the decision:
“On the foregoing grounds, we unanimously sustained the preliminary objection and dismissed this appeal in limine.”
So, what we are saying is this. Your Lordship can only grant stay, if there will be appeal appropriate pending by the court.  Once the Court of Appeal said that this kind of decision is not appealable, there won’t be appeal pending properly before the court, because the court has no jurisdiction to hear.
As far as Rowstead concerns, if I may just remind this Honorable Court, of the decision of Bhalip Bagwant Singh I think in 1999, when he talked about what happen when there is a conflict of decision of concurrent courts. It was held there, the latest decision overruled the earlier decision. So Rowstead in decided in 2005, and this one is decided in 2011. So I pray for the stay not to be granted and we proceed with the defence stage.
KS:    My Lord, the case referred by my learned friend did not refer at all to Rowstead. This is application pertinent of the trial. I read what happen in Rowstead:
“The defendant was owned by the PAS-led Government of the state of Kelantan. The defendant had applied for the learned Judicial Commissioner at High Court (‘the JC’) to recuse himself from hearing the case involving the defendant. It was alleged that due to the JC’s previous dealings with the United Malay National Organisation (UMNO), there would be a possibility of bias if the learned JC were to hear the case. The learned JC ruled that there were no merits in the application and therefore decided not to recuse himself from hearing the case as he completely believed he could conduct the case free of any bias whatsoever. Against that decision, the defendant had lodged an appeal to the Court of Appeal. The defendant applied for a stay of the proceedings of the matter pending the decision of the appeal. The stay was not applied at the High Court but instead the application was made only at the Court of Appeal. The issue was whether the original application could be entertained by the Court of Appeal. Counsel for the applicant submitted that this court had the jurisdiction to hear the application by virtue of s 44 of the Courts of Judicature Act 1964. The second issue was whether the stay should be allowed.”
May I continue reading holding 3 under held:
“This case came under the category of non-automatic disqualification. Hence there was a need to prove whether the element of bias exists. It has to be objectively decided, based on all the facts and circumstances of the case. The more important question to be asked was whether it was proper for such decision to be made by the presiding judge against whom bias has been alleged. When a party alleges that a presiding judge is biased, and if the presiding judge himself decides he is not, such decision would infringe the rule of natural justice in that ‘one should not be a judge in one’s own cause’. This situation would come within the meaning of special circumstances (see para 13). Also in the event that a stay a proceedings was not granted and the learned JC be allowed to proceed with the hearing of this case, it would result in a waste of time and effort by all persons involved since if the Court of Appeal allows the appeal, the whole proceedings conducted by the learned JC would have to be completely expunged. In the circumstances it would be more expedient to allow a stay of the proceedings until the hearing of the appeal has been completed (see para 14).
So under this circumstance, we pray that your Lordship be bound by Rowstead. It is a Court of Appeal decision. Your Lordship had once before using this authority.
YA:    But before the case of DSAI’s decision came out. Their objection is now on different issue. They said that there are no appeal lies, that’s all.
KS:     That case is totally different YA. Now the issue is on bias.
YA:    That case also on bias right?
KS:    But that is not on stay. We are now considering stay.
YA:    That case, DSAI, you alleged I was bias. So I dismissed your application. Then it went to appeal to the Court of Appeal, so they said no, you cannot appeal. Is that true? You were there I think, at the court. I was not there.
KS:    My Lord, this case wasn’t referred at all in that case. Unless, the Rowstead’s decision is overruled by Federal Court, your Lordship is bound by it.
YA:    And I was also bound by the case of DSAI referred by Prosecution which said that you cannot appeal.
KS:    But it is not apply to the situation like this. We say that your Lordship is bound by Rowstead. We hope that your Lordship will grant what we are praying for.
YA:    By the way, there is no appeal as yet. Can you give the undertaking that you will file it by this afternoon?
KS:    Yes, we will file it within an hour.
MY:    YA, I think I must say something right now. In Rowstead, Section 3 was not [].
KS:    YA, your Lordship is in the stage of giving a decision.
YA:    Never mind, I give both parties same opportunity.
MY:    The recent case, my learned friend was there, and he did not even mention about Rowstead. I think the issue is simple, whether you can appeal. But the Court of Appeal said you cannot appeal. So what stay are we talking about? I did not see whether or not my learned friend will make undertaking to file appeal today, tomorrow or later, the fact still remain. The Court of Appeal had decided that they did not have jurisdiction. Section 3 has not been fulfilled. Question of stay only arises if there is an appeal, or an appeal can be properly filed pending before the court.
KS:    A repetition is said by my learned friend just now. We will file appeal by this afternoon.
YA:    Permohonan untuk tangguh perbicaraan dibenarkan dan kes akan disebut semula pada 13 Julai 2011. Jaminan dilanjutkan.
[11.50] Mahkamah ditangguhkan.

Anwar Ibrahim Sodomy II – The Recorded Truth – 16 May 2011 May 25, 2011

Posted by malaysianstory in Anwar Ibrahim, Malaysian Story, Sodomy II.
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1 comment so far

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

Pihak-pihak:
PP:    Semua hadir
PB:    KS, SN, Datuk Param Cumaraswamy, Dato’ CV Prabhakaran, Ramkarpal, Marissa, Radzlan
WB:    Zambri Idurs (for complainant), Teoh Lib Peng (for Bar Council)

[9.07 a.m.]

Keputusan di akhir kes pendakwaan.

MY:    YA, pihak-pihak masih yang sama dan En. Zambri Idrus peguam pemerhati untuk pengadu dan En. Teoh Lib Peng peguam pemerhati bagi majlis peguam dan juga penterjemah kepada pemerhati antarabangsa.

KS:    []

YA:    I’ve already made my decision before Friday so that doesn’t affect my decision.

KS:    In that case I leave it to the court.

YA:    Ini keputusan mahkamah di akhir kes pendakwaan. The accused, Dato’ Seri Anwar Ibrahim is charged under S.377B of the Penal Code for committing carnal intercourse against the order of the nature on one Mohd. Saiful Bukhari bin Alan, i.e. PW1. The charge read as follows:
“Bahawa kamu, pada 26 Jun 2008 antara jam 3.01 petang dan 4.30 petang di alamat Unit 11-5-1, Desa Damansara Condominium, No. 99, Jalan Setiakasih, Bukit Damansara, dalam Wilayah Persekutuan Kuala Lumpur telah

dengan sengaja melakukan persetubuhan yang bertentangan dengan aturan tabii dengan Mohd Saiful Bukhari bin Azlan dengan memasukkan zakar kamu ke dalam duburnya; dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 377B Kanun Keseksaan.”

The case for the Prosecution

The prosecution called 26 witnesses including the complainant, PW1. The case for the prosecution started with PW1. He testified in his examination-in-chief among other things he started working as a volunteer with the accused from early March 2008 at the invitation of his friend, Rahimi.

From end of April 2008 until his resignation on 27th June 2008 PW1 was the personal assistant to the accused. As a personal assistant to the accused PW1 was paid official salary of RM1000 by someone he called Kak Jun. Other unofficial payments like allowance was paid by the accused, the amount depending on the number of trips.

PW1’s duty includes arranging meetings for the accused and communicating with agents and Members of Parliament from the party. He also assisted the Chief of Staff in preparing the work schedule and he was also involved in filing confidential documents like bank account. He was also responsible to oversee the accused hand phone and the accused will hand over his hand phone to PW1 to check on the SMS received.

At around 10.30 a.m. on 26.6.2008 PW1 was reminded by the accused of his earlier instruction given the previous day for PW1 to be at unit 11-5-2, Desa Damansara Condominium, No. 99, Jalan Setiakasih, Bukit Damansara. Unit

11-5-2 and unit 11-5-1 i.e. the unit mentioned in the charged belong to the accused friend, En. Hasanuddin.

PW1 was directed to be at the condominium at 2.15 p.m. on the same day. He left the office at about 1.45 p.m. He took along with him some documents received by him from the Chief of Staff, en. Ibrahim Yaakob i.e. PW24 to be delivered to the accused. PW1 drove to Desa Damansara Condominium in a Fiat van bearing registration WPK 5925. He arrived at the condominium at around 2.45 p.m.

To enter the compound of the condominium he had to pass the Security Guard stationed at the entrance of the condominium. There, PW1 had to mention the word ‘Mokhtar’ before being allowed to enter. From there PW1 drove to the visitor’s parking lot at P4. From visitor’s parking lot walked to the lift at level P4 which took him to level P2. From there he walked to a door. This door leads him to the lift that took him to the unit 11-5-1. This door has automatic locking system. PW1 had to press number 11-5-2 and a male voice answered ‘Ya’. When PW1 mentioned the word ‘Mokhtar’ the door was unlocked from inside. From  there PW1 took the lift to the 5th floor and went straight to unit 11-5-1. According to PW1 although he was told to go to the unit belonging to En. Hasanuddin i.e. unit 11-5-2 he went straight to unit 11-5-1 because every time he went there he was asked by the accused to go to unit 11-5-1.

Upon arriving at unit 11-5-1, PW1 opened the door which was not locked, entered the place and put his shoes on the floor behind the door. In unit 11-5-1 PW1 noticed the accused was already seated at the dining table. PW1 sat at the table facing the accused and placed the document which he brought along with from the office on the table. After having sat down at the table the accused and PW1 discuss work schedule.

Not long after that the accused ask PW1 and I quote “Can I fuck you today?” PW1 said he refused initially and the accused asked him “Why?” PW1 responded by saying he did not wish to do that that day. He was then instructed in an angry tone by the accused to go to the master bedroom. PW1 complied and went into the master bedroom followed by the accused. In the room the accused went to the end of the room to close the curtain and proceeded to the door to switch off the light in the room. Having done so the accused then directed PW1 to clean himself in the bathroom. PW1 did not bath but merely wipe himself in the bathroom and came out covered only with towel. He saw the accused at the corner right of the bed and the accused was standing wearing a white towel and he asked PW1 to come to him. At that moment the accused hug PW1 while standing. Further evidence of PW1 was given in camera where PW1 described in detail how his anus was penetrated by the accused with the aid of lubricant known as KY Jelly. The carnal intercourse against the order of nature completed and PW1 went into the shower. He did not clean his anus but merely wipe his body with little water.

After PW1 and the accused was fully dressed the accused invited PW1 to the dining table. Ready on the table was curry puff, a thermos of hot water and 3in1 Nescafe.  PW1 ate curry puff and had a drink. After 20 minutes PW1 left the unit 11-5-1. When PW1 left the unit the accused was still in the unit.

On 27th June 2008 in the accused’s office at the Tropicana Merchant Square PW1 sent an email to the accused conveying PW1 desire to resign. The reason he gave in the email for resigning were he was indisciplined and thus always came late. He felt the pressure because he was given room in the office over those who are more qualified. According to PW1 the real reason for him resigning was because he did not wish to be sodomised again.

On 28th June 2008 PW1 accompanied by his uncle En. Tuah bin Alip went to Tawakal Hospital at Jalan Pahang but failed to see any doctor because he was told at the counter that it was half day. PW1 and En. Tuah then went to Pusrawi Hospital at Jalan Tun Razak where he mat Dr. Mohd Osman bin Abdul Hamid. PW1 informed Dr. Osman that he had stomach ache and pain in the anus. PW1 was examined by Dr. Osman.

While Dr. Osman was inserting something into PW1’s anus PW1 told Dr. Osman that he was sodomised and needed an examination. Upon hearing this Dr. Osman immediately stopped examining PW1 Dr. Osman instead told PW1 Pusrawi Hospital did not have the facility for forensic analysis. PW1 was further informed by Dr. Osman that medical report form private hospital could not be used as evidence in court. PW1 was then directed by Dr. Osman to go to a government hospital. Dr. Osman suggested PW1 to go to Hospital Kuala Lumpur as it was the nearest hospital.

PW1 went to Kuala Lumpur Hospital and registered himself as an outpatient. That was at around 3.00 p.m. He was then referred to one Dr. Daniel. PW1 informed Dr. Daniel he wanted to be examined because he was sodomised by Dato’ Seri Anwar Ibrahim. Upon hearing this Dr. Daniel issued a referral letter and directed PW1 to One Stop Crisis Center (OSCC) at the Emergency Department.  He arrived at the OSCC at around 3.30 p.m.

After about 30 minutes at the OSCC a doctor came and tool blood pressure from PW1. PW1 informed the said doctor his reason for seeking treatment especially about him being sodomised. At about 4.30 p.m. the said doctor came again and advised PW1 to lodge a police report, without which forensic examination could not be performed on PW1. After waiting for half to an hour two policemen came with form for PW1 to lodge his report. PW1 made his report as in exhibit P3  while in the OSCC.

At about 9.00 p.m. PW1 was examined by 3 doctors. They were Emergency Care Specialist, Dr. Khairul Nizam B. Hassan i.e. PW2, General Surgeon, Dr. Mohd Razali B. Ibrahim i.e. PW3, and Forensic Pathalogist, Dr. Siew Sheue Feng. Also present was Dr. Razuin Bt. Rahimi, PW23 who fill the pro forma, exhibit D28.

Thorough examination of whole PW1’s body including the anus was done. Specimens were taken from PW1. Each specimen were put in container and sealed. PW1 were asked to put his signature on each of the seal. While PW1 was being examined the investigating officer, DSP Judy Blacious a/l Pierera i.e PW25 came.

The next day PW1 handed to PW25 KY Jelly (exhibit P4), a pair of long sleeve Ralph Lauren (exhibit P11), a pair of black trouser (exhibit P12), a pair of green shirt (exhibit P13), a pair of grey underwear (exhibit P14) and a pair of dark blue underwear (exhibit P15). PW1 further informed that since the day he was sodomised until the day he was examined by PW2, PW3 and PW4, PW1 did not pass motion.

PW1 was cross-examined at length. During cross-examination Pw1 denied meeting Dato’ Seri Najib who was then the Deputy Prime Minister ether on 27th or 28th June 2008. However PW1 admitted he had gone to the house of

Tuan Haji Khairul Anas who was then the Special Officer to Dato’ Seri Najib on 24th June 2008. From there he was brought by Khairul Anas to Dato’ Seri Najib’s residence where he met YAB Dato’ Seri Najib at about 8.00 p.m. The meeting with Dato’ Seri Najib took place for about 20 minutes where PW1 told his problem to Dato’ Seri Najib. Dato’ Seri Najib did not advise PW1 to lodge a police report. PW1 denied he was brought to see Dato’ Seri Najib by Dato’ Mumtaz.

PW1 then said on the way back from YAB Dato’ Seri Najib’s residence PW1 received a call from ASP Rodwan requesting PW1 to meet at Milia Hotel. PW1 met ASP Rodwan at Milia Hotel where he told ASP Rodwan the problem he faced. ASP Rodwan did not offer any advice. He also did not advise PW1 to lodge a police report but he did ask PW1 to meet him at Concorde Hotel on the next day, i.e. 25th June 2008. PW1 went to Concorde Hotel on 25th

June 2008 but ASP Rodwan did not turn up. After that there was no further communication between ASP Rodwan and PW1.

PW1 also denied Inspector General of Police, Tan Sri Musa Hassan had contacted him. However PW1 admited he did telephoned Tan Sri Musa Hassan to inform Tan Sri Musa about the problem faced by PW1 but Tan Sri Musa

Hassan angrily put down the telephone and warned PW1 not to telephone him again.

PW1 admitted meeting En. Mohd Ezam Mohd  Nor at Rawang. He was taken to see En. Mohd Ezam at 12.00 midnight 27.6.2008 until 1.00 a.m. 28.6.2008 by En. Rahimi and En. Tuah who was PW1’s uncle. During the meeting

PW1 informed Ezam that he was sodomised by the accused. En. Tuah was the first person PW1 told about thye incident occurred on 26.6.2008, the next person was Mohd Ezam and other than that was also informed was Dato’ Mumtaz.

PW1 was then cross-examined where in the middle of August 2008 PW1 had ‘mengangkat sumpah laknat’ at a mosque. PW1 agreed that the date that PW1 ‘angkat sumpah laknat’ was near the date the accused was to be named as a candidate in a by-election for Permatang Pauh province but stressed that it was only a coincidence that the two dates were near to each other.

The prosecution then call Dr. Khairul Nizam B. Hassan as PW2, Forensic Pathalogist Dr. Siew Sheue Feng as PW3 an Dr. Mohd Razali B. Ibrahim as PW4. All three of them had attended PW1 together at OSCC at around 9.00 p.m. 28.6.2008.

PW2 testified that on 28.6.2008 at 7.00 p.m. he was the Surgeon on-call. He received a phone call from a medical officer. He was informed that he is required to be present at a special room at OSCC, Emergency Unit of Kuala Lumpur Hospital at 9.00 p.m. because there was a sodomy case and he was informed the patient was already brought to the said room. PW2 testified he arrived at the said room at 9.00 p.m. upon arrival he saw Dr. Siew and Dr.

Khairul was already there. They were then briefed about the case by a police officer. After the briefing PW2, PW3 and PW4 proceeded to attend PW1.

PW2 examined the bottom part of PW1’s body which involves the anal and the rectum. He started with the external part of the anus followed by internal part. PW2 used protoscope to examine the internal part. PW2 found the area around the anal opening to be a bit moist compared to other areas. He did not find any evidence showing injury, trauma or fissure. PW2 then conducted protoscopic examination to see whether there was any accumulation of fluid inside or was there any injury or fissure that suggest trauma to the inner part to which he found none.

Initially PW2 tried to insert the protoscope without lubricant to see whether it could enter easily but because of the normal process of the closing of the anal canal PW2 found difficulty in inserting the protoscope into the anus. With the aid of lubricant PW2 managed to put the protoscope into PW1 and found there was no accumulation of fluid, injury or fissure suggesting trauma to the inner part.

PW2 took sample for DNA analysis. He took peri anal swab, high rectal swab and low rectal swab for seminal analysis. All these samples were handed to Dr. Siew Sheue Feng, PW3 to be put into the respective container, labeled and sealed.

Dr. Siew give evidence that he attended PW1 together with PW2 and PW4 at about 9.00 p.m. 28.6.2008 at OSCC, Emergency Unit of Kuala Lumpur Hospital. His main duties were to handle the forensic specimens collected in this case.
PW3 testified that he was informed by PW1 that PW1 had been sodomised by a high profile public figure. The last incident happened on 26.6.2008. PW3 specifically asked whether condom or lubricant was used to which PW1 said no condom was used, only lubricant was used. PW1 also informed PW3 that PW1 had gone to Pusrawi Hospital before coming to Kuala Lumpur Hospital. PW1 did not said plastic was inserted into his anus. PW3 asked PW1 whether there was ejaculation to which PW1 replied there was ejaculation. PW1 asked whether force was used to which he said no force was used.

PW3 further testified that he was present with Dr. Razali and Dr. Khairul (PW4) when PW1 was being examined. PW3 confirmed that Dr. Razali took swab from peri anal region, low rectal swab and high rectal swabs from PW1 while Dr. Khairul (PW4) took swabs from oral cavity at the left peritonsilar recess, below the tongue, from the left nipple and areola. Also taken by Dr. Khairul was penile swab from meatus and coronal sulcus of PW1’s penis. All specimens were put into containers, labeled and sealed by PW3, handed to PW25 to be sent to the Chemistry Department for analysis.

Dr. Khairul testified as PW4. He confirmed that he had examined PW1 together with PW2 and PW3. He took swabs from oral cavity at the left peritonsilar recess, below the tongue, from the left nipple and areola. Also taken by PW4 was the swab from meatus and coronal sulcus from PW1’s penis. All specimens were put into containers, labeled and sealed by PW3.

On 11 July 2008, Clinical Forensic Department of Kuala Lumpur Hospital received a chemist report (exhibit P25) regarding the result of the analysis conducted on the specimens collected. PW2, PW3 and PW4 then prepared

Laporan Forensik Klinikal i.e. exhibit P22 dated 22nd July 2008 signed by all three of them where they give conclusion or summary as follows:
1.     No conclusive clinical findings suggestive of penetration to the anus/rectum and     no significant defensive wound on the body of the patient; and
2.     The presence of male DNA types from swabs “B5”, “B7”, “B8” and “B9” are     best interpreted with the identification of the sites of sampling.

PW2, PW3 and PW4 were examined on their conclusion as stated in the exhibit P22. PW2 explained that the first conclusion was merely based on clinical examination conducted on PW1. When it was mentioned ‘no conclusive clinical findings suggestive of penetration’ does not mean there was no penetration. This is because sodomy can happened without causing any injury. To enable him to conclusively conclude whether there is penetration or otherwise he need to have both results, .i.e. clinical result and laboratory result on analysis on the specimens. At the time P22 was prepared they did not know the exact spot where specimens marked B5, B7, B8 and B9 were taken. That was the reason why they decided to put in exhibit P22 the second conclusion which reads: the presence of male DNA types from swabs B5, B7, B8 and B9 are best interpreted with the identification of the sites of sampling.

PW2 further testified after knowing specimen B5 contain swab from peri anal region of PW1, B7 and B8 contain high rectal swab from PW1, B9 low rectal swab from PW1, he was of the opinion there was penile penetration.

PW3 were also asked with the conclusion in exhibit P22. PW3 explained at the time P22 was prepared PW2, PW4 and himself did not know the exact location where the specimen B5, B7, B8 and B9 were taken. Without knowing where those specimens were taken they were unable to interpret the result obtained by the chemist. Thus in P22 they stated ‘the presence of male DNA types from swabs B5, B7, B8 and B9 are best interpreted with the identification of the sites of sampling’. Now that he know that B5, B7, B8 and B9 were respectively taken from peri anal region of PW1, high and low rectal swab of PW1, PW3 concluded there was anal penetration and it was consistent with penile penetration.

Likewise PW4 was asked about the conclusion in exhibit P22. He also gave the same explanation as that of PW3.

PW2, PW3 and PW4 were cross-examined. PW2 testified that PW1’s bowel was empty at the time he conducted the examination but agreed to the suggestion of the counsel that this was not consistent with PW1’s evidence who testified he had not passed motion since the day of the incident. PW2 explained this was because the lower part of the rectum was not a reservoir of feces. Feces were stored in the colon until the sigmoid area. All the digested food would be kept there. When mass-movement which was a psychological process that happened in which the body tried to expel whatever digested thing after it had been processed and absorbed happened there would be a sensation that you want to defecate but this did not mean the feces will move to the rectum. And if the place one was in socially in common pain one could basically prevent the feces to moving from the sigmoid to the rectum.

PW2 further explained that the specimen of high rectal swab was tekan in the rectum, 9 cm from the anus. Counsel suggested that it was impossible to find specimen high up the rectum because any specimen would have laid down due to mass-movement, peristalsis, gas and gravity. PW2 did not agree with this suggestion because human bowel is not a straight line like a pipe, it was a folded area, folded mucosa so material sits there, not necessarily all will come out immediately. Some would still be left at the area he took the high rectal swab.

PW3 was cross-examined extensively on medical history taken from PW1. PW3 said he took medical history of PW1 where PW1 said he was sodomised by a public figure. The incident took place early March 2008. At that time PW1 was the personal assistant to the said public figure. PW3 further explained that what question to ask regarding medical history depended on what the complaint was. If patient complain of tenesmus like in ID16 the question to be asked under medical history would be along the line whether there is bleeding, any pain when passing motion and any blood in the stool. But in this case PW1 complained that he was being sodomised therefore the question asked for the purpose of the medical history would be more towards the complaint in which whether PW1 had pass motion and had seen other doctors before coming to Kuala Lumpur Hospital.

PW3 denied he knew where sample B-B9 were collected when he together with PW2 and PW4 prepared the exhibit P22. PW3 further testified the marking B-B9 were not made by him. He only came to know B5, B7, B8 and B9 were respectively taken from peri anal region of PW1, high and low rectal swab o PW1 while giving evidence in court.

PW4 was also cross-examined. He testified that PW1 was calm while being interviewed. PW4 did not take sample from the back of PW1 although he was aware that in cases where there is contact in sodomy, contact DNA may be obtained from the contact area. PW4 did not do so after taking into account the incident happened 2 days before PW1 was examined.

PW4 was also asked whether he was briefed by DSP Judy regarding the complaint made by PW1. PW4 said he was told PW1 was sodomised by a well known figures. PW4 came to know of oral sex while interviewing PW1 when PW1 told PW4 he was asked to perform oral sex. PW4 was then referred to “Borang Pemeriksaan Kesihatan”, exhibit D28 which was filled up by Dr. Razuin, PW23. PW4 agreed that may of the columns in the form was not filled up and in D28 it was stated attempted sodomy and attempted oral sex.

Dr. Razuin bt. Rahimi was called as PW23. She was the one who prepared D28. She was the medical officer at the Medical Forensic, Kuala Lumpur Hospital at that time. At 7.30 p.m. on 28 June 2008 she was directed by Dr. Siew to be present at OSCC. PW23 arrived at the OSCC at 8.30 p.m. There she met DSP Judy Blacious. DSP Judy Blacious told PW23 that there was a sodomy case involving Mohd Saiful Bukhari as the complainant and Dato’ Seri Anwar Ibrahim. DSP Judy then introduced PW1 to PW23. PW23 interviewed PW1. PW1 told PW23 he has been sodomised and the last incident happened on 26 June 2008 at about 3.15 p.m. PW23 asked PW1 whether there was penetration, ejaculation occurred and lubricant used. PW1 replied there was penetration, ejaculation occurred and lubricant was used.

Subsequently PW2, PW3 and PW4 came to examined PW1. PW23 remain with PW2, PW3 and PW4 while examining PW1. PW23’s function was to interview PW1 and taking notes while PW1 was being examined by PW2, PW3 and PW4. D28 was prepared by PW23.

The prosecution then called Dr. Seah Lay Hong, PW5. She was attached at the Chemistry Department Petaling Jaya as a government chemist. She testified that at 7.55 p.m. on 30.6.2008 she received from DSP Jude Blacious 12 envelopes respectively marked B, B1, B2, B3, B4, B5, B7, B8, B9, B10 and B11, that is exhibit P31-P42. All were sealed with PDRM 330 seal. PW5 issued acknowledgment receipt, P30. PW5 then handed envelope marked B11 to

Mr. Mohan a/l K.P. Gangadharan for toxicology analysis. Envelope marked B, B1, B2, B3, B4, B5, B7, B8, B9, B10 and B11 were registered with laboratory number (PJ) FOR 6334/08-0.

At 4.45 p.m. on 01.07.2008 PW5 received from PW25 another 8 exhibit as follows :
1.     Six envelopes respectively marked “A”, “A3”, “A4”, “A5”, “A6”, and “A6” and sealed “Polis Di-Raja Malaysia 330” i.e. exhibit P43, P44, P45, P46,     P47 and P48;
2.    One package marked “A1” sealed “Polis Di-Raja Malaysia 330” and     “Forensic Polis Di-Raja Malaysia” i.e. exhibit P49; and
3.    One package marked “A2” and sealed “Polis Di-Raja Malaysia 330” and “Forensic Polis Di-Raja Malaysia” i.e exhibit P50.

PW5 issued exhibit P51 i.e. the acknowledgment receipt for all 8 exhibit above. These exhibits were registered with laboratory number (PJ) FOR 6334/08-2.

Upon examining envelope B, B1. B2, B3, B4, B5, B6, B7, B8, B9, and B10, PW5 found inside:
a)    B –   a plastic packet i.e. exhibit P31A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6A;
b)    B1 – a plastic packet i.e. exhibit P32A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6B;
c)    B2 – a plastic packet i.e. exhibit P33A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6C;
d)    B3 – a plastic packet i.e. exhibit P34A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6D;
e)    B4 – a plastic packet i.e. exhibit P35A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6E;
f)    B5 – a plastic packet i.e. exhibit P36A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6F;
g)    B6 – a plastic packet i.e. exhibit P37A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6G;
h)    B7 – a plastic packet i.e. exhibit P38A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6H;
i)    B8 – a plastic packet i.e. exhibit P39A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6I;
j)    B9 – a plastic packet i.e. exhibit P40A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6J; and
k)    B10 – a plastic packet i.e. exhibit P41A inside which was a FTA card labeled Mohd Saiful Bukhari bin Azlan bearing blood stain specimen i.e. exhibit P6K.

The plastic receptacle P6A-P6J and P6K were respectively sealed with “KEMENTERIAN KESIHATAN MALAYSIA, JABATAN PERUBATAN FORENSIK HOSPITAL KUALA LUMPUR” security labels  and similarly labeled “Mohd Saiful Bukhari bin Azlan”. PW5 found the presence of semen on swab B5, B7, B8 and B9. No semen was detected from swab B, B1, B2, B3, B4, and B6.

Examination on package marked A, and A1-A7, PW5 found inside:
a)    A –   an envelope (sealed “FORENSIK POLIS DI-RAJA MALAYSIA”) i.e. exhibit P43A containing a strand of pubic hair taped on a paper i.e. exhibit P43B;
b)    A1 –  a carpet i.e. exhibit P49A bearing no seminal stains;
c)    A2 –  a duvet i.e. exhibit P50A bearing no seminal stains
d)    A3 –  a pair of black trousers i.e. exhibit P12 bearing seminal stains at two spots which PW5 marked as A3(a) and A3(b) i.e. exhibit P12A and P12B;
e)    A4 – a long-sleeved blue and white striped shirt (‘Ralph Lauren’ label) bearing no detectable seminal stains i.e. exhibit P11;
f)    A5 – a dark blue underwear (‘Levi’s’ label) bearing no detectable seminal stains i.e. exhibit P15;
g)    A6 – a grey underwear (‘Levi’s’ label) i.e. exhibit P14 bearing seminal stains at two spots which PW5 marked as A6(a) and A6(b) i.e. exhibit P14A and P14B; and
h)    A7 – a long-sleeved green shirt (‘G2000’ label) bearing no detectable seminal stains i.e. P13.

PW5 carried out DNA testing using Multiplex Polymerase Chain Reaction technique on:
a)    swabs P6A – P6J;
b)    blood specimen P6K;
c)    hair P43B; and
d)    seminal stains on P12 and P14.

The DNA typing results indicated the following:
a)    The DNA profiles derived from the seminal stains (spots A3(a) and A3(b) of trousers A3 distinguishes one common male contributor having a DNA profile matching the profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari bin Azlan”).
b)    The DNA profiles derived from the seminal stains of underwear A6 distinguished:
i)    one male contributor from semen spot A6(a) with a DNA profile matching the profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”);
ii)    two male contributors from semen spot A6(b), one contributor with a DNA profile matching the profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”) and one other unknown male contributor whom PW5 named as “Male Y”.
c)    No foreign source DNA was derived from swab B, B1, B2, B3, B4 and B6 (all labeled “Mohd Saiful Bukhari Bin Azlan). Swabs B, B1, B3, B4 and B6 indicated a common male-origin DNA profile concordant with the profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”). Swab B2 indicated no DNA profile.
d)    The DNA profile derived from swab B5 (labeled “Mohd Saiful Bukhari Bin Azlan”) consisted of a mixture of male DNA types concordant with being contributed by the donor of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”), “Male Y” and one other male contributor.
e)    The DNA profiles derived from swab B7 (labeled “Mohd Saiful Bukhari Bin Azlan”) consisted of ale DNA types from two individuals, one having DNA profile matching that of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”) and one matching the DNA profile of “Male Y”.
f)    The DNA profiles derived from swab B8 (labeled “Mohd Saiful Bukhari Bin Azlan”) indicated one dominant male contributor concordant with the DNA profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”) and “Male Y” as a minor contributor.
g)    The DNA profiles derived from swab B9 (labeled “Mohd Saiful Bukhari Bin Azlan”) consisted of ale DNA types from two individuals concordant with being contributed by the donor of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”) and “Male Y”.
h)    Hair A indicated no DNA profile.

Prosecution’s 6th witness was Pn. Nor Aidora Binti Saedon. She was also a chemist attached at Jabatan Kimia Malaysia Petaling Jaya. PW6 testified that on 17th July 2008 at 6.56 p.m. she received from investigating officer DSP Jude Blacious a/l Pereira :
a)    an envelope marked “D” i.e. exhibit P57 containing a stand of hair taped onto a piece of white paper i.e. exhibit P57A;
b)    an envelope marked “D1” i.e. exhibit P58 containing a white toothbrush i.e. P58A;
c)    an envelope marked “D2” i.e. exhibit P59 containing a ‘Good Morning’ towel i.e.P59A bearing one strand of hair which PW6 collected and marked as D2(a) i.e. exhibit P60; and
d)    an envelope marked “D3” i.e. exhibit P61 containing an empty ‘CACTUS’ mineral water plastic bottle i.e. P61A,

Using the PCR technique, PW6 carried out DNA profiling analysis on swab from the toothbrush (exhibit P58A), swab from the towel (exhibit P59A), swab from the bottle (exhibit P61A), the hair (exhibit P57A) and also the hair D2(a) found on the towel (exhibit P60A).

DNA profiles were successfully developed from the swabs from toothbrush, towel and the bottle but not from the hairs. These DNA profiles matched each other indicating that the DNA identified originated from the same source. PW6 then compared the DNA profiles she obtained with that obtained and reported by Dr. Seah Lay Hong in her chemist report, exhibit P25. PW6 found DNA profile developed from the swabs of toothbrush, towel and bottle to match with the DNA profiles of “Male Y” reported by Dr. Seah Lay Hong in her report, exhibit P25 thus indicating that the DNA identified originated from the same source.

En. Amidon Bin Anan, PW15 was the Head of the Crime Scene Investigation at Polis Di-Raja Malaysia Forensic laboratory. He testified to the effect that on 30th June 2008 he was asked by investigating officer DSP Jude Blacious to go to unit 11-5-1 and unit 11-5-2 of the condominium. From unit 11-5-1 PW15 collected a strand of hair (exhibit P43C) and placed it in envelope (exhibit P43). At unit 11-5-2 PW15 seized a carpet (exhibit P49A) and duvet (exhibit P50A). Carpet (exhibit P49A) was wrapped with brown paper (exhibit P49). Duvet (exhibit P50A) was wrapped with exhibit P50. All the exhibit were then handed to the investigating officer DSP Jude Blacious.

At 11.40 a.m. 17th July 2008 PW15 went to lock-up cell of D9, IPK Kuala Lumpur. He found on the floor a strand of hair (exhibit P57A) which he put tag number “4”, a white toothbrush (exhibit P58A) which he put tag number “5”, and a white ‘Good Morning’ towel (exhibit P59A) which he put tag number “6”. On the wall near the toilet of the lock-up cell was a mineral water bottle (exhibit P61A) which he put tag number “7”.

PW15 then without touching or removing the items found in the lock-up cell instructed L/Kpl Hazri, PW14 to take photographs of those items. PW14 took 12 photograph i.e. P78A-L of those items.

PW15 then instructed Insp. Nurayuni, PW16 to prepare 4 envelopes i.e. P57, P58, P59 and P60 and to write the particulars of the items in front of the said envelopes. The envelopes were marked “4”, “5”, “6” and “7” respectively.

PW15 then received all envelopes from PW16 and PW15 personally placed the hair in envelope marked “4”, toothbrush in envelope marked “5”, ‘Good Morning’ towel in envelope marked “6” and the mineral water bottle in envelope marked “7”. PW15 then signed at the back of the four envelopes and sealed all the said envelopes. PW15 confirmed that the four envelopes which contained the items found in the lock-up cell were as shown in photograph no. 13 and 14 of exhibit P78.

On the same day, 17th July 2008 at 12.40 p.m. PW15 handed all exhibit to DSP Judy Blacious at IPK Kuala Lumpur. PW15 and PW25 then signed a handing over form i.e. exhibit P80.

PW17, DSP Yahya Bin Abdul Rahman was the officer in-charge of the lock-up D9, IPK Kuala Lumpur. He testified that there was only one cell at D9, IPK Kuala Lumpur. On 16th July 2008 at 11.05 p.m. the accused was brought in the cell. He was taken out on 17th July 2008 at 8.00 a.m. PW17 testified that the accused brought along a mineral water bottle and two towels when he was brought into the cell. The accused was the only occupier of the cell during that period.

Being the officer in-charge PW17 visited the lock-up from time to time. The [] of the visit he gave to L/Kpl Nik Rosmady Bin Nik Ismail, PW18 who was on duty guarding the lock-up a package of ‘Good Morning’ towel, a toothbrush, toothpaste and a bar of soap to be handed to the accused.

On 17th July 208 after the accused was brought out of the cell PW17 saw ‘Good Morning’ towel and toothbrush on the cell’s floor while the mineral water bottle was on the toilet wall as shown in photograph P78. PW17 then instructed the policemen on duty to lock up the cell and not to allow anybody to touch any of the things in the cell.

L/Kpl Nik Rosmady, PW18 testified to the effect that he was on duty to guard the lock-up at D9 on 16th July 2008. He reported for duty on 16th July 2008 at 1.00 a.m. when he reported for duty there was no detainee in the lock-up.

At 11.05 p.m. 16th July 2008 the accused was brought into the cell. PW18 then received from PW17 a plastic packet containing a towel, a toothbrush, toothpaste and a bar of soap. He handed this package to the accused. The accused took the package and put on the cell floor. PW18 finished his duty at 1.30 a.m. on 17th July 2008. His duty was taken over by Konstabel Mohd Azry Bin Mohd Toyib, PW19. Before ending his duty PW18 check the lock-up and saw the accused was still inside the cell.

PW19 was on duty until 7.25 a.m. 17th July 2008. His duty was taken over by L/Kpl Mohd Jasni Bin Jaafar, PW20.

PW20 testified that he reported for duty at 7.26 a.m. 17th July 2008. He saw the accused was in the cell. He saw the accused went to the toilet and brushed his teeth. At 8.10 a.m. the accused was brought out from the cell. PW20 then lock the cell.

Other than the witnesses mentioned above the prosecution also called PW8, PW9, PW10, PW11, PW12 and PW13. Their evidence was in relation to installation, seizure and handling of CCTV recording at the guardhouse and also at the management office of the condominium. From the recording it was shown vehicle including that driven by PW1 were seen entering and leaving the condominium. From the recording of the CCTV around the lift area it was shown individual including PW1 used the said lift.

Ahmad Humaizi Bin Awang, PW22 an officer from Road Transport Department gave evidence relating to the registered owner of vehicle recorded in the CCTV entering and leaving the condominium. One of the car bearing registration number WMK6 was registered in the name of Anwar Bin Ibrahim, no. kad pengenalan 470810-07-5095.

Jude Blacious a/l Pereira, PW25 was the investigating officer of this case. He testified inter alia he was on duty 28th June 2008 who was present at OSCC when the three doctors examined PW1. At 12.45 a.m. on 29.6.2008 he received from PW3 plastic package i.e. exhibit P27 containing exhibit P6A-P6L while in the same room. He brought back exhibit P27 containing exhibit P6A-P6L to his office and kept it in the cabinet in his office at IPK Kuala Lumpur. He then locked the cabinet.

At 7.30 p.m. on 29.6.2008 at his office he received from PW1 KY Cream (exhibit P4) as stated in search list (exhibit P10). He also received a long-sleeved shirt (exhibit P11), a pair of black trousers (exhibit P12), a long-sleeved shirt (exhibit P13), a grey underwear (exhibit P14) and a dark blue underwear (exhibit P15) from PW1. This seizure was recorded in the search list (exhibit P7, P8 and P9). These entire exhibit were kept in his cabinet at his office.

On 30.6.2008 at about 9.00 a.m. PW25 took out exhibit P27 containing exhibit P6A-P6L from his cabinet. He opened exhibit P27 and put all the containers (exhibit P6A-P6L) in envelope as follows:
a)     P6A – in envelope which he marked “B”
b)    P6B – in envelope which he marked “B1”
c)    P6C – in envelope which he marked “B2”
d)    P6D – in envelope which he marked “B3”
e)    P6E – in envelope which he marked “B4”
f)    P6F – in envelope which he marked “B5”
g)    P6G – in envelope which he marked “B6”
h)    P6H – in envelope which he marked “B7”
i)     P6I – in envelope which he marked “B8”
j)    P6J – in envelope which he marked “B9”
k)    P6K – in envelope which he marked “B10”
l)    P6L – in envelope which he marked “B11”.

On the same day at 7.55 p.m. PW25 handed over all the envelopes with the content to Dr. Seah at the Chemistry Department for analysis. Together with the envelope was form POL 31, exhibit P24. PW25 was given receipt, exhibit P30 by Dr. Seah acknowledging receiving those exhibit.

PW25 further testified that on 30 June 2008 at around 3.05 p.m. he was at unit 11-5-1 and unit 11-5-2 with En. Amidon Bin Anan, the Head of Crime Scene Investigation at the Polis Di-Raja Malaysia Forensic  laboratory. PW25 received from PW15 envelopes (exhibit P4) containing a strand of hair (exhibit P43B) at unit 11-5-1, a paper package (exhibit P49) containing carpet (exhibit P49A) and package (exhibit P50) containing duvet (exhibit P50A) which were collected from En. Amidon at unit 11-5-2.

On 1.07.2008 PW25 marked the envelopes containing a strand of hair as “A”, package containing carpet as “A1”, package containing duvet as “A2”, envelope containing black trousers as “A3”, envelope containing a long-sleeved shirt as “A4”, envelope containing dark blue underwear as “A5”, envelope containing grey underwear as “A6” and envelope containing green long-sleeved shirt as “A7”.

On the same day at 4.45 pm, PW25 handed this exhibits to Dr. Seah. Accompanying the exhibits was POL 31, exhibit P29. He was given receipt, exhibit P51 as the acknowledgment. All those exhibits that were handed over to

PW5 were return, this time were chemist seal to P25 on 7th July 2008 at 11.30 am together with chemist report, exhibit P25.

PW25 received 2 hard disk, exhibits P76 and P77 on 30.6.2008 from residence manager; Encik Haris bin Mohamad, PW12. He marked Hard disk 1 and Hard disk 2. These two hard disks were then handed over to Chief Inspector Fauziah, PW8 at Forensic Laboratory at IPD Cheras on 3.7.2008 at 10.15 am. These 2 hard disks were subsequently returned to PW25 on 24.9.2008.

PW25 also testified at 12.40 noon, 17 July 2008, at the lock up of D9 IPK Kuala Lumpur, he received from PW15 exhibit P57A: a hair strand, a white toothbrush: exhibit P58A, a white Good Morning towel: exhibit P59A, and a mineral water bottle: exhibit P61A. All these exhibits were in the envelopes exhibit P57, P58, P59 and P61 respectively which were sealed with PDRM Forensic seal. PW25 put his marking on those exhibits as “D”, “D1”, “D2” and

“D3” respectively. On the same day, at 6.56 pm, PW25 handed these exhibits to Puan Nor Aidora Saedon for analysis. On 22.7.2008 received that from PW6 these exhibits which were sealed with chemist seal together with chemist report (P52).

Now, it is time for the decision at the end of the case for the prosecution. At the close of the prosecution’s case, what was needed to be proved is a prima facie case. Under Sec 180(4) of Criminal Procedure Code, a prima facie case is said to be made out when the prosecution had adduce credible evidence proving each ingredient for the offence which if unrebutted or unexplained would warrant a conviction. As being held in the case of Looi Kow Chai & Ors v PP [2003] 1 CLJ 734, in determining whether the prosecution had successfully establish a prima facie case or not, the court must subject the prosecution’s evidences to maximum evaluation. It was held in that case, and I quote:
“The correct test to be applied in determining whether a prima facie had made out under Section 180 of Criminal Procedure Code was that as encapsulate in the judgment of Hashim Yeop Sani J (as he then was) in Datuk Mokhtar

Hashim & Anor v PP. Therefore a judge sitting alone under Section 180 of Criminal Procedure Code must subject the prosecution’s evidences to maximum evaluation and ask himself a question: if I decided to call upon the accused to enter defence, and he elects to remain silent, am I prepared to convict him on the totality of evidence contained in the prosecution’s case? If the answer is in the negative, then no prima facie case had been made out, and the accused would be entitled to an acquittal.”

Subjecting the evidence of the prosecution to the maximum evaluation to determine if the defence was to be called did not mean that the prosecution had to prove the case beyond reasonable doubt at this intermediate stage.

In our case, the accused is charge committing on PW1 carnal intercourse against the order of nature. To prove a prima facie case, the prosecution needs to prove that on 26th June 2008, between 3.01 pm and 4.30 pm at Unit 11-5-1 Desa Damansara Condominium, the accused voluntarily introduced his penis into PW1’s anus. The prosecution relied on PW1’s evidence to prove its case where PW1 clearly testified that he was at the place mentioned in the charge. While PW1 was there, the accused introduced his penis into PW1’s anus until the accused ejaculated. This evidence from PW1 if accepted clearly established a prima facie case for an offence of carnal intercourse against the order of the nature as stated in the charge. So the question here is whether PW1 was a credible and truthful witness and whether his evidence as to what transpired between him and the accused at the Unit 11-5-1 was true and could safely be relied upon.

If the court finds that PW1 not to be a credible witness, then the accused has to be acquitted without have to look at the corroborative evidence to support PW1’s evidence. In the case of Director of Public Prosecutor v Killbourne

[1973] 1 ALL ER, Lord Hillsome said at page 425:

“Corroboration is only required and afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness’s testimony should be rejected and the accused acquitted. Even if it could be found that evidence of capable of being corroboration in other’s testimony, corroboration can only be afforded to or by a witness which is otherwise to be belief. If a witness’s testimony falls or insufficient, the question his needing or capable of corroboration does not arise.”

Realizing the fact that the charge against the accused is whether the evidence of PW1 could be accepted or not, it was not surprised defence had either in cross examination of PW1 or in the submission tried to play a picture of PW1 as someone who had zero credibility, and thus his evidence could not be belief and must be rejected. PW1 was subjected to lengthy cross examination which sometimes bothering to a harassment. It was put to him by the defence counsel that he was not a good muslim, he came from a broken family, he was even labeled a traitor when he admitted for being a Barisan Nasional’s supporters but voted for PKR’s candidate on the last general election.

With greatest respect to the defence I found that all these are irrelevant and merit no further consideration in determining PW1’s credibility. However upon raised by Mr. Karpal in his submission with regard to PW1’s credibility merit careful consideration. Encik Karpal submitted while PW1 submitted that the evidence occurred without his consent PW1 had never try to escape although he had ample opportunity to do so. PW1 instead follow all the instruction given by the accused. PW1’s act of eating and drinking after the incidents, did not try to get help from the occupier at 11-5-2, or to the security guard, did not immediately lodge a police report, and attended PKR’s function on the next day, did not reflect on the attitude of someone who had been sodomised  by the accused. Therefore, according to the learned counsel, PW1 had lied when he said in his police report the incident occurred without his consent.

Thus, the entire evidence of PW1 could not be believed and must be rejected.

Learned counsel urged the court not just reject PW1’s evidence, but also to charge PW1 under Section 196 of Penal Code. In other words, what the defence was saying is that since PW1 testified that the incident performed on him was without his consent, but at the same time he failed to run away from the place of incident, failed to ask for help from the occupier of unit 11-5-2, did not tell it to the security guard, and did not lodge a police report immediately, it follows that PW1 would not only lying on insisting that he had not consented to be sodomised, but he also fabricated false evidence with intention to procuring the accused’s conviction for an offence of sodomy which never took place. I find it is not tenable to use PW1’s failure to escape when he had the opportunity, failure to seek help or failure to complaint to the security guard as indicative that the offence did not take place.

Under normal circumstances, such failure would be construed to mean that the incident was indeed took place, but it was consensual which was not relevant in our case. And in any event, PW1 was never asked to explain why he did not run or seek help from the occupier of Unit 11-5-2 or complaint to security guard or make police report immediately. However from the established facts, borne out by the evidence of PW1 it was not difficult to understand why PW1 had acted the way he did though he insisted that he did not consented to be sodomised.

PW1 was a young man aged 22 years old under the employment of the accused. He was not just any employee, but the accused’s personal assistant who had to deal directly with the accused. PW1 idolized the accused since he was a child. He like working with the accused and found him to be charismatic. The accused was generous with PW1 and PW1 was given a special treatment by the accused like presented him with a suit even he was working there less than 2 months. He also was given preferential treatment when he was allocated a room in the office amongst senior colleague.

The interview with the doctors, in particular, Dr. Razuin and from PW1’s own evidence suggested on the incident of 28th June was not something unaccepted. PW1 had reported to various people before but no one advise him to lodge a police report and some were even skeptical. In fact the people like Encik Ezam, Mumtaz and his uncle himself, even discourage PW1 from lodging a police report because they were concerned about PW1’s future. The people in Unit 11-5-2 were all accused’s friends.

Based on those facts and circumstances, PW’s failure to run away to complaint to people in Unit 11-5-2 or to lodge a police report is understandable. It could not be a basis to find that PW1 is not a credible witness. After finding PW1 credible was not affected by his failure to run away, seek help from the occupier of Unit 11-5-2 or to lodge a police report immediately, the next question is whether the evidence itself given by PW1 showing that the accused had introduced his penis into PW1’s anus could be accepted as credible, and is it safe for the court to rely on it to ask the accused to enter his defence. In determining this issue, it is imperative to determine from our side whether there was an opportunity for such act to take place. This is because, without the opportunity, this incident would not occur. (See Sarkar’s Law Evidence page 218). Evidence affording the opportunity for the offence to take place can be established firstly from the relationship between PW1 and the accused. It was not in dispute PW1 was the accused’s personal assistant. In that capacity, he had to manage the accused work’s schedule and he had to accompany the accused in meeting. It was the accused on 25th June 2008 directed PW1 to be present at Desa Damansara Kondominium on 26th June 2008.
On 26th June 2008, 10.30 am, the accused reminded PW1 to go there to discuss work schedule. In between 12.15 to 12.30 on 26th June, the accused called his Chief of Staff Ibrahim Yaakob, PW23 that he had left a document in an envelope required in the meeting behind, in the office. PW1 was then asked by Ibrahim Yaacob to send the envelope to the accused who was then having a meeting at 11-5-2 of the said condominium. The CCTV showed that PW1 were in fact went to the said condominium. This fact which was not disputed showed that the accused and PW1 were in the same vicinity during the time period mentioned in the charge. Thus, affording an opportunity for the offence mentioned in the charge to occur. Presence of opportunity however did not necessarily mean that the incident took place.

In Sarkar’s Law Evidence 16TH Edition page 218 stated, the judge must be on his gut, against dumping hastily from opportunity for to commission of a crime. There can be no crime without opportunity but that was a [] between an opportunity and commission.

In our case, besides there was an opportunity for the offence to take place, the evidence of PW1 showed the offence did in fact occurred. PW1 was subjected to lengthy cross examination. PW1 said fastly and consistently in detail on how the accused had introduced his penis into PW1’s anus with the aid of the lubricant. Nothing came out from the lengthy cross examination on PW1 or from the evidence of other prosecution’s witnesses that could suggest what PW1 had told the court that his evidence was something which is not probable. I find PW1’s evidence remains intact. He had truthfully and without embarrassment or exaggeration in his evidence narrated in [] detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted, would establish all the ingredients that are required to prove a charge against the accused.

In PP v Mohd Ali at page 528, in the absence of contradiction, however, and in the absence of any elements of inherent probability, the evidence of any witness, whether police witness or not  to give evidence of affirmation should be normally be accepted. However for cases involving sexual offences like in our case it is desirable though not technically essential to look for corroborative evidence to support the complainant’s evidence.

In PP v DSAI [2001] 3 MLJ, Ariffin J had occasion to see at page 267, nevertheless in a case of this nature which is a sexual offence, corroboration of Azizah’s evidence which desirable though not technically essential and the court to give sufficient attention to the matter. In the same case, Ariffin J after referring to [] All ER 1962 375 which stated “a charge in 377 is one very easy to bring and very difficult to refute, and in the evidence in support of those charge must be very convincing. The evidence of such charge must also be corroborated. It is said that it is unsafe to convict on the uncorroborated testimony of whom the said complaint is said to be committed on, unless for any reason that testimony is of special way (see []).”. “It is trite law that complainant evidence on the said offence required corroboration, although a conviction founded upon an uncorroborated evidence of the complainant is not illegal provided that the presiding judge must warned himself of the danger of convicting uncorroborated evidence. ”(see Chiu Nang Hong v PP).

The object of corroboration as explained by Raja Azlan Shah (as Royal Highness then was) in PP v Datuk Haji Harun bin Idrin  [1977] 1 MLJ 15 at page 19, I quote,

“The object of corroboration is not of doubt to satisfy the court that the witnesses are telling the truth and it is safe to act upon them. It is not necessary that the corroboration could be of the actual commission of the crime, for then that would be an independent commission of the offence. It would be enough corroboration for the offence of relevant circumstances connecting the accused with the crime.”

It was contended by the defence that PW1 was not a truthful witness and his evidence must be rejected and the court need not have to look for the corroborative evidence. As I had stated earlier in this judgement, I found PW1 to be a credible witness, there is nothing improbable about his evidence. His evidence was reliable; therefore the next question to be decided is whether there is evidence to corroborate PW1’s evidence. There was no dispute that the accused had directed PW1 to go to said Condo on 26th June 2008 at about 2.15pm to discuss his work schedule. PW1 testified he did go the condo as directed.

Encik Ibrahim Yaakob (PW24) testified that the accused called him about 12.15pm to deliver the envelope to him at the condo. PW1 was then directed by PW24 to deliver the said envelope to the accused. PW1’s evidence was shown that he delivered the said envelope at about 2.45 pm on 26.6.2008 and he was there between 3.01 pm and 4.30 pm at unit 11-5-1 that day. I find PW24 corroborated PW1’s evidence that PW1 and the accused were at the condominium affording not only opportunity but also confirming the vicinity of time.

PW1 arrived at the condo and take a lift to 5th floor recorded on CCTV further provided independent corroborative evidence supporting the presence of PW1 at the said condo. PW1 driving a Fiat van bearing registration WPK 5925 which according to the Head Unit Record of Kuala Lumpur, Transport Department, Encik Ahmad Humaizi bin Awang, belonging to the father of PW1’s fiancée at that time was seen entering the compound of Desa Damansara Condominium, at 14.47.44 on 26th June 2008 as recorded by Camera 1 on Hard Disk 1 (P68C).

According to PW11, Mohd Sharizuan an analyst at Cyber Security, the time shown on the said harddisk was late by 9 minutes 15 second compared to Malaysian Standard time. To determine the real time, 9 minutes and 15 second must be added to the time shown on the hard disk. This make the time PW1 entered the compound of the said condominium at 2.56.59 pm.

PW1 was then seen taking a lift to 5th floor at 14.42.56. The same thing happened, according to PW1 Mohd Zabiril Adil the time shown at Hard Disk 2 (exhibit P67C) located at management office was late by 19 minutes when

compared to Malaysian Standard Time. The time PW1 came out from the lift was at 3.01.56 pm. PW1 was then seen entering the lift at 5th floor to leave the building at 15.11.38 as recorded by Camera 7 on Hard Disk 2. The actual time PW1 leave the building was 4.30.38pm.

The car bearing registration WPK 5925 drove by PW1 was seen leaving the compound of condo at 16.35.05 as recorded by Camera 5 on the same day. The actual time PW1 seen leaving the condominium is 4.44.20. From recording of Camera 4 on Hard Disk 1, the car bearing the registration number of WMK 6, which according to PW22 belong to the accused was seen arriving at the said condo at 12.19.58 which was 12.29.30 for the actual time.

Someone resembling the accused was seen taking the lift from level P1 to 5th floor and exited the 5th floor at 12.15.11 as recorded by CCTV which was 12.24.11pm (the actual time). The same person was seen leaving the 5th floor and took the lift to P1 at 17.14.54 as recorded by CCTV which was 5.32.54 pm (the actual time). The car bearing registration number WMK 6 left the compound of condominium at 17.13.23 as recorded by CCTV which was 5.13.23 pm. The actual time was 5.39.44pm.

Based on the said evidence the learned counsel for the defence submitted that the evidence did not show PW1 did in fact go to 5th floor. According to the learned counsel, during the period PW1 was seen arriving then leaving the said condominium, PW1 was in fact hiding at one of the floors. I find it is hard to accept this submission in the light of PW1’s clear evidence that he went to the 5th floor and CCTV showed the same. I find the submission by the counsel is nothing but mere speculation without any basis to support it.

Based on the above evidence, I find that the accused and PW1 were at the vicinity of the crime scene within the period mentioned in the charge. The presence of the accused at the vicinity of the crime scene and the proximity of the time to the commission of the offence should goes to the opportunity for the offence to take place. More importantly there are corroborative evidence, that means support to the credibility to PW1’s evidence.

Corroborative evidence as to what transpired between the accused and PW1 at Unit 11-5-1 could be found in the medical history of PW1 as evidence by Dr. Razuin who interviewed PW1 and Dr. Siew. She had been informed by PW1 that he had been sodomised by the accused. Lubricant was used and the accused fondled PW1’s breasts. PW1 informed PW23 that there was penetration and ejaculation as well. These are noted and reflected in the pro forma report, ID28.
Likewise Dr. Siew, PW3 also testified that he was informed by PW1 that he was sodomised by a high profile public figure for at least two months and the last incident happen was on 26th June 2008. When asked by PW3 if the condom used, PW1 said no condom was used. PW1 affirmed that lubricant was used and there was penetration. He also confirmed that ejaculation was happen.

The history given by PW1 was also noted in the medical report (P22) which was prepared by the 3 doctors, PW2, PW3 and PW4. It is stated under the heading ‘History’ [read]. This medical history narrated by PW1 and noted by medical doctors PW2, PW3 and PW4 is corroborated evidence.

The more crucial evidence which corroborated evidence of PW1 on the factum of penetration by the accused’s penis into PW1’s anus was the evidence of the medical doctors PW2, PW3, PW4 and chemist, PW5. PW2, PW3, PW4’s evidence showed swabs were taken from PW1. Among the swabs is P6F taken from peri anal region, P6H and P6I taken from high rectal region and P6J taken from low rectal region. These swabs were put in the containers sealed and handed to IO (PW25) to be handed to PW5 for analysis.

From these swabs, PW5 confirmed the presence of semens. PW3 testified according to forensic principle, every contact leaves traces and in this case swabs P6F, P6H and P6I and P6J were taken from the rectal of PWI in which the semens were found. It means, there had been a male organ contacting the rectal region leaving sperms in that area. This was a clear evidence of penetration.

All 3 doctors further testified that based on the history of PW1, and the sites where the swabs of B5 contained swab of peri anal region of PW1, in B7 and B8 which contained high rectal swab from PW1, and B9 which contain low rectal swab from PW1 that could positively conclude there was a penal penetration on PW1’s anus. PW2, 3 and 4 were subjected to lengthy cross examination including on their finding which showed no scaring, fissures or any signed of recent injury to the exterior of PW1’s anus. And also to the conclusion of the summary of the exhibit P22 which stated “No Conclusive Clinical Finding Suggestive of Penetration to the Anus of Rectum, and No Significant

Defensive Wound on the Body”. As to the summary in P22 which stated “No Conclusive Clinical Finding Suggestive of Penetration to the Anus of Rectum and No Significant Defensive Wound on the Body”, PW2, PW3 and PW4

explained did not mean that there was no penetration. Penetration could take place without causing any injury. PW3 and PW4 explained the absence of any injury to the anus could happen due to 1) the duration to see the doctors,

2) no undue force used, and 3) the used of lubricants.

In Chapter 41 under Clinical Forensic Evidence, the author explains that ‘non consenting intercourse need not produce any objective signs of injury to genital [] or anus. In the same chapter but dealing with the penetration to the anus, the author explains that penetration to the anus; either as consenting or non consenting act rarely produces injuries in adults. However, forceful unlubricated penetration may produce signs of blunt trauma. Injuries at that sign may include fissure, heamiathorma, and lacerations.

In this case, PW1’s evidence which was recorded in the medical history, noted by PW23 showed lubricants was in fact used. Based on PW1’s testimony, and what he told doctors during the history taking, no undue force was used by the accused and this was reflected in pro forma D28. Hence I find, nothing inconsistent in the doctor’s finding that there was no scarring, fissure or any signs of injury to that external area of PW1’s anus.

The defence also submitted that the evidence of PW2, PW3 and PW4 should be rejected because they were not experts. On the issue of expert witness, Hashim Yeop J in Dato Mokhtar bin Hashim v PP explain to qualify to you, to give such evidence, the witness must certify the court that he is indeed an expert, that he is specially skilled of enquiry carried out by him. An expert is one who is particularly trained in any art, trade, profession being possessed or particular knowledge concerning the same. The witness must have made a special study of the subject or have acquired special experiences on the subject.

In Junaidi bin Abdullah v PP, Mohd Azmi Supreme Court J said,

“In our view, the test to be applied for the purpose of Section 45 of the Evidence Act is this. First, does the nature of the evidence require special skill? Second, if so, has the witness acquire special skill either by academic qualification or by experience so that he has adequate knowledge to express opinion on the matter.”

Suffian LP in PP v Sulaiman said,

“As to whether or not Mr. Lam is an expert, it is true that this is a preliminary skill to determine, but it is the question upon which in practice [] prevails. This is because, for the expert must be skilled, he may not do so by special study. He may be so by experience and the fact that he did not acquire knowledge professionally goes merely to the weight and not to the credibility.”

In our case, the evidence showed that PW2, is a General Surgeon attested to Hospital Kuala Lumpur. He obtained his MBBS in 1998 and Masters of Surgery in 2007. He started as medical doctors in 1998 and as specialist by

2007. Up to the time he testified to court he conducted examination of anus in about 100 cases, 2 of which are sodomy cases.

PW3, is a professional forensic medical specialist at HKL. He obtained a Bachelor Degree of Medicine and a Bachelor of Surgery from Manipal [] Education, India in 1997. He also holding a [] in Medical Pathologist specialize in

Forensic in 2004. He also undergone training and courses in Human Anatomy [] at University of Tennessee of USA and a special training in sexual assault cases in [] Greece. PW3 conducted between 200 and 300 examination so far and approximately 20 of those cases were sodomy cases. He had also done collection of samples more than hundred times and had given evidence in court before. He had handled about 50 cases of sexual assault.

As for Dr. Khairul Nizam (PW3) he is currently attached to Hospital Putrajaya. Before this, he was attached to HKL. He obtained his Bachelor of [] from Bangalore University India in 1996. He obtained his Master in Medicine specializing in Emergency Medicine in 2006 from the USM. He joined the Emergency and Trauma Department HKL since 2004 until 2008 until he was transferred to Putrajaya Hospital. He had attended over 20 sodomy cases.

Based on the academic qualification and the experience of PW2, PW3 and PW4 and on the authorities I cited above, I find no difficulties in accepting PW2, PW3 and PW4 as expert witness they are qualified and competent not only to conduct examination, take samples of PW1 but also to give interpretation based on their observation during examination of PW1.

Encik Nair, one of the learned counsels to the defence submitted further to the effect that PW2’s evidence as to taking the examination was not reliable. This was because PW2 was not asked and record the bowel habit of PW1 although PW2 admitted and it was crucial to ask it. Thus the counsel urged the court to assume that PW1 to have normal bowel habit of defecating once a day. It was further submitted that PW1 had defecated before he was examined on 28th June 2008 and even if there was at all any traces of semens, seminal fluid as alleged therefore a lot had been all passed out leaving us absolutely nothing even if PW1 managed to hold back defecation, his rectum is said to be []. This according to the counsel contradict PW2’s evidence that he testified on the PW1’s rectum to be empty.

With regard to this issue, it is important to study PW1’s evidence together of that PW2. PW1 clearly testified that he did not pass motion because he wanted to preserve evidence. It was clear that it was a conscious effort of PW1 not to pass motion. PW2’s evidence showed in short that a man could have conscious effort in delay motion. PW2 evidence that he found PW1’s anus is empty when PW1 was examined, he explained that this was because that the lower part of the rectum not a reservoir of feaces. This is restored in the colon until the sigmoid area. All the restored food would be kept there when a mass movement which was a psychological process that happen in which a body tries to expel what [] after it had been processed and [] defecate. But this doesn’t mean that feaces move to the rectum. And if the feaces [], could prevent the feaces from moving from sigmoid to the rectum.

PW2 further explained that specimen labeled high rectal swab was taken in the rectum 9cm from the anus. Counsel suggested that it was impossible that specimen in high rectum because any specimen will lead to mass movement [] and gravity. PW2 did not agree to this suggestion because human bowel was not [] but [] afforded mucosa, so material could still stick there. Not necessary all will come out immediately. Some could be left in the area [] high rectal swab.

I find PW2’s evidence as stated above, given in the cross examination adequately explained the issue raised by Mr. Nair. I found his explanation to be possible. I accept his evidence that he collected P6F from peri anal region, P6H and P6I from high rectal region and P6J from low rectal region of PWI which was subsequently confirmed by PW4 that it contained semens. Hence I find the evidence of PW3 and PW4 who testified based on the location exhibits were collected, there was penal penetration as corroborative evidence at the factum of penetration.

The other crucial evidence to be accepted was further corroboration evidence from DNA evidence from Dr. Seah and Puan Aidora. Dr. Seah testified that she carried out the differential extraction of B7 which was the exhibit P6H the high rectal swab from PW1. The non sperm extract was the single source blood profile which matches the blood sample taken from PW1. The sperm extract was a mixed profile in which the dominant contributor which PW5 had called Male Y. this sperm extract of Male Y was also found in P6I which was another high rectal swab and P6J which was low rectal swab collected from PW1.

Puan Nor Aidora binti Saedon testified that she was given a white toothbrush, Good Morning towel, an empty mineral water bottle, and a strand of hair for analysis. Except for the strands of hair, the DNA profile were derived from the other 3 exhibits, matches each other and from the same origin. PW6 then made a comparison of DNA profile on those items with the DNA profile of Male Y derived by Dr. Seah from the swabs taken from PW1’s anus. PW6 found the DNA profile developed by her matched the DNA profile of Male Y developed by PW5 thus proving that the DNA came from the same source.

The evidence of PW15, PW16, PW17, PW18, PW19 and PW20 collectively showed that the said toothbrush, Good Morning towel, an empty mineral water bottle, and a strand of hair were collected at the cell occupied by the accused. The accused was the last and the only occupant of the cell before the exhibits were collected. When the accused was entering the cell, he brought along a mineral bottle. He was also issued a Good Morning towel, a white toothbrush, a tube of toothpaste and soap. This evidence if accepted that the unknown contributor of semen Male Y found in PW1’s anus came from the accused.

The defence submitted that the evidence from both PW5 and PW6 should be rejected because the evidence given was real with doubt and unexplained scientific details thus make them unreliable. The learned counsel for the defence submitted in short that the reliability of PW5’s evidence was highly questionable for the following reasons:

•    She had departed from the standard guidelines to determine drop out. She was selective on what she considered as stutter.
•    She failed to make available the record of the DNA’s volume used during the PCR process.
•    The samples were contaminated as evidence DNA of Male Y was detected.
•    There was element of degradation in the samples.

It was further submitted that the evidence of PW5 should be rejected on the ground that it is unreliable, then Male Y will be as good as non existence, thus make the PW1’s evidence remain uncorroborated.

In dealing with chemist evidence, the Supreme Court in PP v Lam San had said, with regard to the evidence of the chemist, unless the evidence would be so inherently incredible that no reasonable person can belief that it would be true, it should be accepted as prima facie evidence. As long as the evidence is credible, there is no necessity for the chemist to show what he/she did in his laboratory.

Therefore the issue now is whether the evidence of SP5 and SP6 were not credible. It could not be denied that Dr. Seah Lay Hong appeared in court with impeccable credentials. She is a forensic scientist attest to the Chemist

Department of Malaysia. She is 52 years old and currently heading the Serious Crime Unit. She first obtained the Bachelor of Science (Hons) majoring in Chemistry. She went on to obtain Master of Medical Science and she has a

PHD in Forensic DNA. Her main function at her unit is to undertake and supervise the analysis of serious cases like murder, sexual assault and drug trafficking that require a thorough examination. Her curriculum vitae [] to be extensive. Beside that, she also a member of [] Genetic Society and also a member of Malaysian Forensic Science Society. On average, she received 5-20 cases per month and 10-20 exhibits. She was given evidence in the court about 10 times a year and her evidence to the best of her knowledge had been accepted by the court. She had given a lengthy and detail reasons for the examination and analysis that she had conducted as to the conclusion she had arrived. She had conducted the DNA analysis within the latest techniques. With regard to the issue of allele drop out and how she had treated stutter, she was asked in length in cross examination. She answered every question convincingly. She said that all interpretation of mixture is based on their validation study and experience. With regard to T-value, and when drop out was considered, she said it is of no significant in this case [] mathematical approach and not interpretation. She further explains that Jabatan Kimia

Malaysia had adopted the 50RFU equated to T-Value. PW1’s treatment to stutter range by the defence and also PW6 was also explained that JKM has its own guidelines to determine a stutter. The range of stutter established through a validation studies is 15% to 20% of the real []. The threshold to consider a peak is 50 RFU and stutter not be reported at PCR summary, PW5 also explained that peak height doesn’t affect any conclusion and pull out which occurs in electropherogram due to overloading does not affect the reading of the electropherogram as the pull out does not create the falls of [] of peak. The result will still be accurate. Going through the detail explanation of the analysis and examination conducted by PW5 and her impeccable credential as forensic scientist and she also has PHD in Forensic DNA, PW5 is without doubt an expert especially in the area of DNA analysis. There is no reason for this court to exclude her evidence in this court regarding this case.

Same with Puan NorAidora. She is competent in term of her academic and professional qualification and experience. There is no reason to doubt her finding and opinion. With regard to the possibility of contamination and degradation of the samples examined by PW5 as raised by the defence, the testimony of PW5 showed that she had taken into her consideration the possibility of degradation and contamination. She explained that degradation will always happen in DNA examination and analysis but what is important is whether the degradation is so severe which resulted in the entire DNA had been destroyed and therefore no profile could be obtained or developed.

In this case, where the DNA profile could be developed, it means though there might be some slight degradation but it was not substantial enough to destroy the DNA. In this case, PW5 confirmed that despite the possibility of degradation and contamination, the profile obtained from swabs taken from PW1’s anus was clear and unambiguous. This means the degradation if any was not substantial and of no effect to the quality to the profile of the samples.

With regard to the contamination, the evidence of 3 medical doctors who examined and took swabs, clearly shown that all samples collected from PW1 were immediately placed and sterile in air tight container, labeled, dated and signed by both PW3 and PW1. They were sealed and placed in plastic bag before handed over to PW25 to be handed over PW5 for examination, with the sealed still intact. In the absence of the evidence to show otherwise, I found the possibility of contamination of those samples after they were collected from PW1 to be too remote.

As regard to those samples examined and analyze by PW6, a good profile was obtained. This means that even if there was contamination and degradation, it was insufficient to affect the quality of DNA profile. With regard to contamination, PW6 explained that if there was a contamination, one was unable to see all the 18 alleles at the loci D3S158 and all the traces samples which she was analyze. The reagent blank is still blank thus no contamination to the samples.

Another issue raised by the defence was tempering the evidence by IO, when he opened the plastic packet containing samples collected from PW1. Counsels submitted that this was done with sole purpose to temper the swab taken from PW1’s rectum. Regarding this issue, it is important to remember that DNA profile which was collected, Male Y was sperm extract. This profile was found to match the profile of DNA found of items collected from the cell occupied by the accused.

Most importantly, the items collected from the cells handed to the IO on the 17th July 2008. By that time, the samples taken from PW1 was already with PW5 at the Chemistry Department. The said samples were handed to PW5  on 30th June 2008. Therefore there is no way for the IO to used the DNA samples obtained from the cells to temper with the samples collected from PW1, if that what the defence was suggesting. In any event, the DNA profile found from the items in the cells was contact DNA whereas found in the high and low rectal swab was from seminal extract.

As submitted by learned Senior DPP, where was the IO going to get the seminal sample which was subsequently found to match the DNA profile found in the items used by the accused in the cells.

Based on all the above reasons, I found the prosecution through the evidence of PW1 which had been corroborated in material particularly had proved all the facts required to prove all the ingredients of the charge. I find the prima facie case as defined under Section 180 of Criminal Procedure Code had been made out against the accused. Therefore, the accused is called to enter his defence.

MY:    Much obliged.

YA:    So when can I hear the defence?

(Accused):    Tomorrow.

YA:    Tomorrow holiday.

KS:    We need time My Lord.

MY:    Errr..YA….

YA:    Can I see both of you inside? Now?

MY:    Yes.

[10.47 a.m.] Mahkamah ditangguhkan.

[10.52 a.m.] Kedua-dua pihak masuk ke kamar hakim.
[11.10 a.m.] Kedua-dua pihak keluar dari kamar hakim.

*Kes pembelaan telah ditetapkan pada 6/6/2011 sehingga 30/6/2011*

Anwar Ibrahim Sodomy II – The Recorded Truth – 16 Februari 2011 February 18, 2011

Posted by malaysianstory in Anwar Ibrahim, Malaysian Story, 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 (Datuk Param Cumaraswamy, Dato’ CV Prabhakaran, Marissa, Radzlan tidak hadir)
WB    : Zamri Idrus (for Complainant)
Expert for defence: Prof. David Wells, Dr. Brian McDonalds
AI hadir

Sambung bicara 45-09-2009

[8.44 a.m.]

MY:    Kes ditetapkan untuk sambung pemeriksaan balas SP4, Dr. Khairul.

SP4 mengangkat sumpah dalam Bahasa Inggeris.

Q:    I refer you to P22. This is a joint report, isn’t it?
A:    Yes.

Q:    The report was put up by you, together with Dr. Siew and Dr. Razali?
A:    Yes.

Q:    So all three of you are responsible for the report?
A:    Yes.

Q:    Was there any other person involved in the preparation of the report?
A:    Only the three of us prepare the final report.

Q:    Before the examination of SP1, wouldn’t the three of you plan on how to go about it?
A:    Yes.

Q:    And there is a procedure in the examination of a witness, especially someone who alleged sodomy.
A:    Yes.

Q:    You have in the past done many cases, examined persons alleged being sodomised. How many?
A:    Yes. About 20 cases.

Q:    What is the procedure?
A:    Based on the standard operating procedure and the management of OSCC, it should be attended by medical officer from Emergency Department. After that

only referred to OSCC.

Q:    In this case is Dr. Suresh, isn’t it? Who started it?
A:    Yes.

Q:    And from him three of you were called?
A:    Yes.

Q:    Wouldn’t it normally in the examination like SP1 in this case, the police will not be involved at all, isn’t it?
A:     Normally the police will be there all the time, unless the patient came to us first in OSCC.

Q:    Are you saying that the police would be there during examination?
A:    Will be there.

Q:    Has to be there?
A:    Once a police report is made, the police has to be there.

Q:    Do they have to be there during examination?
A:    During examination, we still keep privacy of the patient when it comes to examination.

Q:    During the interview of the person?
A:    Yes.

Q:    In this case who was there?
A:    DSP Jude.

Q:    Any other police personel?
A:    I only remember him.

Q:    What was his role?
A:    He has the police report,  he has to make sure the handling of the specimens and [].

Q:    In this case it was DSP Jude?
A:    Yes.

Q:    He handed you the report made by Saiful?
A:    No. I didn’t see it.

Q:    But normally a police report will be considered, isn’t it?
A:    Yes.

Q:    It is important, isn’t it?
A:    Yes.

Q:    Was the police report referred to three of you?
A:    I didn’t refer to it.

Q:    Did the others look at it?
A:    I don’t know.

Q:    You didn’t go through it?
A:    No.

Q:    How about the others?
A:    I’m not sure.

Q:    You said it is important, isn’t it? Is it important?
A:    Yes.

Q:    But in this case it was not adverted to by any of you?
A:    Not by me. I’m don’t know about the others.

Q:    Was there any discussion about the alleged incident among the three of you?
A:    Yes.

Q:    There was discussion, isn’t it?
A:    Yes.

Q:    And the police officer was there?
A:    Yes. He briefed us.

Q:    He briefed you based on the report made?
A:    Yes. Based on the complaint.

Q:    And also the content of the report, isn’t it?
A:    Yes.

Q:    What did the report show? What offence?
A:    SP1 alleged that he was sodomised by a well known public figure.

Q:    Without his consent?
A:    Yes.

Q:    The report would be referred to by DSP Jude, isn’t it?
A:    Yes.

Q:    Was the three of you informed of any allegation of oral sex?
A:    Yes.

Q:    And it is based on the report?
A:    Yes.

Q:    You read up the report, don’t you?
A:    We were briefed.

Q:    You were briefed based on the report, isn’t it?
A:    Yes.

Q:    And there was specific mention of oral sex.
A:    That part I discovered from my …

Q:    Not discovered, but specific mentioned by DSP Jude.
A:    I can’t remember. But what I remember is the patient alleged sodomised by a public figure.

Q:    What is sodomy?
A:    Sexual penetration of the anus.

Q:    Anal sex, isn’t it?
A:    Yes.

Q:    Oral sex is not anal sex. It can’t be isn’t it?
A:    Yes.

Q:    Couldn’t it before you proceed there was a pro forma?
A:    Yes.

Q:    Who fill it up?
A:    Dr. Siew.

Q:    I refer you to that pro forma. Wouldn’t this be your pro forma?
A:    Yes.

Q:    The one filled by Dr Siew?
A:    Yes.

Q:    You are familiar with the pro forma?
A:     Yes.

Q:    And the requirement to fill it up?
A:    Yes.

Q:    I go to page 1 of the pro forma. On medical examination, item 6. Medical examination is carried out using the guidelines on pages 6-15. Would that be

right?
A:    Yes.

Q:    Page 3. Bottom of the page. There are 4 doctors referred to. Who are the doctors referred to it?
A:    Myslef, Dr. Razali, Dr. Siew Sheue Feng and Dr. Razuin.

Q:    There were 3 or 4 doctors?
A:    Examination was done by the three of us.

Q:    There were 4 doctors?
A:    Yes.

Q:    4 of you examined him?
A:    Only three of us.

Q:    What is Dr. Razuin’s role?
A:    She jot down all the information we verbally said. She took down notes.

Q:    She took down everything?
A:    Yes.

Q:    And she went there as to the protocol of the examination?
A:    Yes.

Q:    She would have taken done everything?
A:    Yes.

Q:    Those notes available?
A:    Yes.

Q:    Page 5. What is the importance of the examination of the complaint by SP1? To take down the history?
A:    Yes.

Q:    That is prerequisite of the examination?
A:    Yes.

Q:    A very important one?
A:    Yes.

Q:    Page 5. On top of the page. Would it be right certain details are not included at all? For example circumstances that lead to the incident. Very

important to record circumstances adverted to by the complainant when he is being examined, isn’t it?
A:    Yes.

Q:    And also the place of incident and so forth. Important to record all that?
A:    Yes.

Q:    1.2, site of incident, 1.3 place. Is required to be specified?
A:    Yes.

Q:    Was it specified here?
A:    No.

Q:    Have to fill up?
A:    Yes. But it is just a guideline.

Q:    Circumstances that lead to the incident? Very important, isn’t it?
A:    Yes.

Q:    In fact, a prerequisite?
A:    Yes.

Q:    []
A:    Yes.

Q:    Circumstances of incident? Did not fill in?
A:    No.

Q:    Important to fill in?
A:    Yes.

Q:    1.5. Force/violent used. What are the answer?
A.    No.

Q:    No force use? Answer by SP1?
A:    Yes.

Q:    That is why he fill in. Did SP1 put up resistance?
A:    Yes.

Q:    [] in what circumstances resistance was used?
A:    It was not specified.

Q:    It was supposed to be specified, but not specified.
A:    Yes.

Q:    1.6, the details are important?
A:    Yes.

Q:    Type of sexual act. What is written there?
A:    Oral attempted.

Q:    Oral attempted / perform ejaculation?
A:    Yes.

Q:    Oral sex was attempted?
A:    Yes.

Q:    Not fulfilled?
A:    Attempted.

Q:    No perform ejaculation. Attempted?
A:    Yes.

Q:    Not perform?
A:    Yes.

Q:    [] would that be there?
A:    Yes.

Q:    That is what SP1 told you and therefore was included in here.
A:    No. He didn’t say that.

Q:     Here it wrote whether rectal attempted and the answer is yes. Would it be right? It is there?
A:    It is written there.

Q:    Estimated duration of caitus. How many minutes?
A:    30 minutes.

Q:    Page 6. Item 1.8. at the top of the page. Under history of events after the incident. Did he wash his mouth after that?
A:    No answer.

Q:    That he wiped/ wash his body? No answer?
A:    Yes.

Q:    Did he has a bath since the incident?
A:    No answer.

Q:    Did he defecate?
A:    No answer.

Q:    Was he seen by a doctor before coming to the hospital? No answer?
A:    Yes.

Q:    Did the doctor give him treatment? No answer?
A:    Yes.

Q:    Item 1.12 – Sexual history. Previous masturbation. No answer?
A:    Yes.

Q:    Previous coitus. No answer?
A:     Yes.

Q:    Date of last coitus? No answer?
A:    Yes.

Q:    It is a very important aspect here. And it required to be fill in as prerequisite in this case but was not done.
A:    Yes.

Q:    Page 7. Medical history. Important to be filled isn’t it? Not fill in at all.
A:    Yes.

Q:    Physical examination. Not fill in?
A:    Yes.

Q:    All very important requirement. Important prerequisite. But not fill up.
A:    Yes.

Q:    Page 10. Item 2.6.3 – Rectal examination. In this particular case is it important?
A:    Yes.

Q:    Rectal examination.
A:    Yes.

Q:    Very important requirement?
A:    Yes.

Q:    Not fill in at all.
A:    Yes.

Q:    Important aspect, anus/anal canal . No examination done as far as the pro forma is concerned.?
A:    It is not fill up.

Q:    Important to fill up?
A:    Yes.

Q:    Sketches not fill up?
A:    Yes.

Q:     Important to fill up?
A:    Yes.

Q:    Muscle tear.
A:    Yes.

Q:    Important?
A:    Yes.

Q:    Ought done so?
A:    Yes.

Q:    Faecal staining?
A:    Yes.

Q:    Important? Not fill in at all.
A:    Yes.

Q:    Swelling?
A:    Yes.

Q:    Important?
A:    Yes.

Q:    Not fill up?
A:    Yes.

Q:    Anal sphincter?
A:    Yes.

Q:    Important?
A:    Yes.

Q:    But not fill up?
A:    Yes.

Q:    P22. Done by 3 of you on 13th July 2008.  Very important document?
A:    Yes.

Q:    History. Sodomised by a well known public figure, isn’t it?
A:    Yes.

Q:    Nothing about oral sex?
A:    Yes.

Q:    Not mentioned at all?
A:    Not mentioned in this.

Q:    But important to have been mentioned?
A:    Yes.

Q:    Last page of P22. Summary/conclusion. [read conclusion 1]. Is that correct?
A:    Yes

Q:    Clinical finding. What is the meaning of it?
A:    What we can see from our clinical examination

Q:    But is based on other documents also such as police report?
A:    No.

Q:    Chemist report?
A:    No.

Q:    No chemist report at that time?
A:    No.

Q:    Page 3. “Please refer to chemist report…for full details”. It is all before you when you made the conclusion?
A:    Yes.

Q:    So the chemist report were there before the 3 of you?
A:    Yes.

Q:    Based on the chemist report, final conclusion were made?
A:    Yes.

Q:    So you have it that time? Including chemist report. Everything was there?
A:    Yes.

Q:    Based upon all that, you made the conclusion?
A:    Yes.
Q:    And that was “No clinical finding suggestive of penetration”.
A:    Yes.

Q:    There is no clinical findings suggestive of penetration?
A:    Yes.

Q:    The complaint by SP1 it is attempted sodomy, based on the pro forma. Would that be right?
A:    Yes.

Q:    Attempted sodomy, would that be right?
A:    Yes.

Q:    Attempted oral sex.
A:    Yes.

Q:    That is what SP1 said. The pro forma was filled based on what SP1 said.
A:    Yes.

Q:    No indication of sodomy at all. Only attempted. That is what SP1 says to three of you.
A:    No.

Q:    Based on the pro forma it was attempted sodomy?
A:    Yes.

Q:    Based on the pro forma it was attempted oral sex?
A:    Yes.

Q:    And the pro forma is based on what SP1 said?
A:    Yes.

Q:    So far as P22 is concerned, everything is before you including chemist report.
A:    Yes.

Q:    It is important for purpose of ultimate finding of no clinical finding suggestive of penetration?
A:    Yes.

Q:    And the ultimate finding is no clinical finding suggestive of penetration. There was no penetration because it was attempted as said by SP1 based on

the pro forma.
A:    Yes. The history is based on what he said. But this is just a pro forma.

Q:    []
A:    It is just a pro forma.

Q:    In the pro forma it was attempted sodomy?
A:    Yes.

Q:    Attempted oral sex?
A:    Yes.

Q:    What is fill up in the pro forma is based on what he said.
A:    Yes

YA:    Let him answer that.
KS:    []
MY:    []
KS:    The pro forma was based on SP1 said.
MY:    But SP4 did not fill it.

Q:    The pro forma is based on what SP1 said?
A:    It was a guide.

Q:    But pro forma show it was attempted sodomy?
A:    Yes. Based on the pro forma.

Q:    But the pro forma is based on what he said.
A:    Whatever he complaints. It is not rigidly has to be fill. He did not say it was attempted.

MY:    Can we leave it for submission? He clearly didn’t tell the doctor [].
KS :     What he recorded is based on what SP1 said.

Q:    Based on what SP1 said, the pro forma reflect it was attempted sodomy.
A:    Pro forma, yes. He didn’t say it was attempted, that’s the only thing.

MY:    YA, we have to move on.
KS:    []
MY:    You are repeating the same thing. Of course witness will not agree with it. []. We accept that.
KS:    You re-examine him. []

A:    Based on pro forma yes, but…

Q:    But the pro forma is based on what SP1 said. Can’t be anything else.
A:    It is just a guideline. He didn’t says attempted sodomy.

Q:    He said attempted sodomy?
A:    Based on the pro forma.

Q:    But recorded as attempted sodomy.
A:    Based on the pro forma.

Q:    But the pro forma is based on what SP1 said. It is something which is so obvious. [].
A:    Yes.

KS:    SN will continue.
YA:    Jangan repeat apa yang KS soal.

Cross-examination by SN.

Q:    You fill up the pro forma as guideline?
A:    Yes.

Q:    And you fill it up?
A:    Yes.

Q:    You have to fill it up?
A:    Yes.

Q:    When three of you interviewed SP1, DSP Jude was there all through?
A:    Yes.

Q:    When was he not there?
A:    He just come there and go.

Q:    Was he there during the interview?
A:    Yes.

Q:    I refer you to P6(J) (container). There are 2 signatures on top.
A:    Yes.

Q:    Are they intact?
A:    Yes.

Q:    Do you agree that all sample must be put in tampered proof containers?
A:    Yes.

Q:    And it means iy will show if it is tempered, right?
A:    Yes.

Q:    If you look at the container, are the signature intact? Whose signature is on the top?
A:    Dr Siew.

Q:    Is it intact?
A:    Yes.

Q:    Do you know if it has been opened for chemical testing? Obviously there has been a tear of the seal. Are the seal intact?
A:    Someone have opened it.

Q:    But signatures are intact?
A:    Yes.

Q:    Is it not good practice to prevent tampering of evidence signature has to be below the opening so that when somebody open it, the signature will

defaces,
A:    Yes.

Q:    But signature is intact?
A:    Yes.

Q:    But the seal is broken?
A:    Yes.

Q:    I refer you to a literature by referred to yesterday  where at page 1 there was sexual offences swab, 65 hours. I refer to page 139, para 2. [read]

Only two were recorded. And further down it says [read]. And this is a 1981 literature where there was no DNA profiling. Is it correct?
A:    I do not know whether DNA profiling was there at that time.

Q:    Para 2. [read]
A:    Yes.

Q:    [read] Do you agree with this statement?
A:    It is a scientific studies.

Q:    []
A:    I agree because I’m not the man in this expertise.

SN:    I’m done subject to recall. Just one more. I don’t intend to recall SP2. But I would like to put []. [].
MY:    []
SN:    In that case that’s all.

Re-examination by NH.
Q:    Who prepare this pro forma?
A;    By Forensic Department.

Q:    Who fill up the details in the pro forma?
A:    Dr. Siew.

Q:    Page 3, 5 and 6. Bottom portion of the pages. Do you see the signature at the bottom?
A:    Yes.

Q:    Can you tell the court whose signature was that?
A:    Probably Dr. Razuin.

Q:    So you are not sure?
A:    Yes.

Q:    Do you recognize the signature of Dr. Siew?
A:    Yes.

Q:    Is this his signature?
A:    No.

Q:    If a person signed the bottom of the document, what does it mean?
A:    Probably he is the one who fill up the pro forma.

Q:    Just now you mentioned Dr. Siew is the one who fill up the pro forma, after looking at your signature and after your answer just now was it Dr. Siew

who fill up the pro forma? Can you be sure?
A:    No. I’m not sure.

YA:     So you are not sure the pro forma was filled up by Dr. Siew?
A:    Yes.

Q:    Did you personally interview SP1 before you examined him on 28th June?
A:    Yes.

Q:    Who was were with you?
A:    Dr. Siew and Dr. Razali. But I’m the leading person taking the history.

Q:    Only 3 of you involved?
A:    Yes.

Q:    You were asked about oral sex. Did SP1 informed during the interview about oral sex?
A:    Yes.
Q:    What did he told you exactly?
A:    He said he is asked to perform oral sex.

Q:    Is that the reason why you take samples from the mouth of SP1?
A:    Yes.

Q:    What is his main complaint when you interviewed him?
A:    He was sodomised.

Q:    Did he mentioned by who?
A:    He told he was sodomised by a well known public figure.

Q:    You did mentioned SP1 informed you before examination. When did he told you?
A:    During history taking process.

Q:    Did SP1 at any time informed you that there was an attempted sodomy?
A:    No.

Q:    Did he at any time informed you there was attempted oral sex?
A:    No.

Q:    With regard to the pro forma, did the person who wrote this pro forma cross-refer the content of the pro forma with you?
A:    Yes.

Q:    Did the person who wrote this cross-refer the content to you?
A:    What do you mean cross-refer?

Q:    Being shown to you.
A:    No.

Q:    Do you agree that this pro forma that was shown to you is for medical examination of a rape victim?
A:    Yes.

Q:    With regards to history taking, you said you personally took the history of SP1 before examination.
A:    Yes.

Q:    And you reflect it in your P22? The gist of it?
A:    Yes.

Q:    Can you read the history in P22?
A:    [read]

Q:    Based on that history taken before examination, is it sufficient for you and the two doctors to proceed with the examination based on it?
A:    Yes.

Q:    At that particular time on 28th June 2008, do you have a pro forma for medical examination for suspected sodomy case?
A:    No.

Q:    So this pro forma is just a guide for medical examination for sodomy cases?
A:    Yes.

Q:    You mentioned about a doctor by the name of Dr. Suresh who alerted you. Did Dr. Suresh  himself examined SP1?
A:    No.

Q:    What about Dr. Daniel? Did Dr. Daniel examined SP1?
A:    No.

Q:    Look at the pro forma again. Page 1. All suspected rape cases must be treated as emergencies in view of evidence collection. They are classified as

follow: fresh case for any case less than 72 hours after the incident and cold case for any case more than 72 hours after the incident. So, this is a

guideline for sodomy when you examined SP1?
A:    Yes.

Q:    Do you also consider at that particular time that fresh case as less than 72 hours?
A:    Yes.

Q:    Can you explain?
A:    One of the textbook of the medical examination says that specimens or evidence can still be traced up to 3 days and this decision to come up with the

[] is based on discussion and studies.

Q:    You were shown your report, P22. And you were asked pertaining your conclusion no.1 [read-no conclusive clinical finding suggestive of

penetration..]. And you were asked about the chemist report. Have a look at ID25. Page 2 of the report. [read..I found the presence of semen]. My question is

do you know the sight of B5, B7, B8 and  B9 when you read the report on 13th July 2008?
A:    No.

Q:    Who prepare the marking of B5, B7, B8 and B9?
A:    I do not know.

Q:    ID24. Page 2. When were you shown the document? If you can remember. Is it in court or before?
A:    Before…

Q:    When you prepare P22, do you have ID24 with you?
A:    No.

Q:    So when you testify in open court that there was anal penetration, do you also refer to ID24 to come to the conclusion in court?
A:    Yes.

Q:    You were also asked regarding the presence of Jude during examination of SP1 and also the report. Did Jude read that report to you?
A:    No.

NH:     YA, itu sahaja. May the witness be released?
KS:    Just one question through court. With regard to pro forma.

Questions through court.

Q:    Page 5 of the pro forma. On the top of the page. [read – the following should be noted regarding the alleged sodomy].
A:    Yes.

Q:    So it was in respect of sodomy that this pro forma was done?
A:    This is…

Q:    Top page. It was converted to sodomy.
A:    Yes.

KS:    YA, can we have this pro forma tendered as exhibit. It is an important document.
MY:    In fact throughout my observation I was thinking about this. It is supposed to be produced out of refreshing memory and this is supposed to be

referred to by counsel with regard to [] of this pro forma which was referred to in answering their question. And it end up like this. And today they want to

tender this.
KS:    Then make it the prosecution exhibit.
YA:    You are the one asking for the document. All this while the witness is giving oral testimony.
KS:    But it is important now, YA.
MY:    I don’t have problem.[]
YA:    We mark it as D 28.

Pro forma by Forensic Department filled up by Dr. Siew is tendered and marked as D28.

YA:     That’s all? Re?
NH:     Tiada.
YA:     Doktor boleh balik.

MY:     Saksi kami seterusnya ialah Dr. Seah. Kami mohon short break.
[10.03 a.m.] Stand down.

[10.54 a.m.]
MY: Saksi kelima adalah Dr. Seah Lai Kong. Pn. Noorin akan menyoal saksi ini.

EIC by NB.

SP5 mengangkat sumpah di dalam Bahasa Inggeris.

SP5    : Dr. Seah Lei Hong, Forensic scientist in the Chemist Department in Petaling Jaya.

SN:    May I apply for Dr. Brian McDonald to sit together with us?
YA:     []

Q:     Please inform the court since when you are attached with the Chemist Department  in Petaling Jaya.
A:     Since 1991.

Q:     Please inform your current designation at the department.
A:    Head of Serious Crime Unit.

Q:     And what do you do as the head of the [] crime unit in your department?
A:    …

[10.57 a.m.] Stand down (because no electricity).

[2.25 p.m.] Pihak-pihak masuk ke dalam Kamar Hakim.
[2.29 p.m.] Pihak-pihak keluar dari Kamar Hakim.

Kes disambung esok kerana CRT tidak berfungsi.

[2.30 p.m.] Adjourned.

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.

Anwar Ibrahim Sodomy II – The Recorded Truth –14 Oktober 2010 October 14, 2010

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

Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak:
PP:    Semua hadir
PB:     KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Radzlan, Marissa
AI hadir

[9.16 a.m.] Kedua-dua pihak masuk ke Kamar Hakim.
[9.38 a.m.] Kedua-dua pihak keluar dari Kamar Hakim.

[9.41 a.m.]
MY:     Hari ini ditetapkan untuk pemeriksaan utama saksi pendakwaan ketiga, Dr. Siew.
KS:     We have this matter where a report made by one person who could be a witness. In fact, we were made to understand that 112 statements were taken from him, but it is not the end of the matter. There is another one recently who made another report. We would want to make a necessary application to hold them for contempt.
YA:    MY ada apa nak cakap?
MY:     I’m concern about the report. We do not know until it has been published. []
YA:     As stated by KS, he intends to file a proper application. I think the law is clear on this that they need to do that so that all facts could be properly laid down before the court At this stage the court cannot do anything. Any formal application, KS?
KS:     Yes. We will file it.
YA:     So, proceed with SP3.
MY:     Pemeriksaan akan dijalankan oleh Dato’ Nordin Hassan.

NH:     YA, mohon dipanggil saksi ketiga, Dr Siew Shue Feng.

SP3 mengangkat sumpah di dalam Bahasa Inggeris.

YA:     I think we should record why we reserve cross for SP2. Can we record why we jump later.
KS:     Because we want to reserve cross-examination until all the three doctors testified.
YA:     Otherwise the report will show why we proceed to SP3 without cross-examine SP2.
Q:     You are now attached to the Forensic Department of HKL, is that right?
A:     Yes.

Q:     Since 2004?
A:     Yes.

Q:     Your position is as Forensic Medical Pathologist, is it true?
A:     Yes.

Q:     What are your qualifications to be Forensic Medical Pathologist?
A:     A bachelor degree in medicine and surgery from Madipa Academy of Higher     Education, India, since 1997. I’m holding a Master Degree in Medical Pathology specialise in Forensic Medical Department from 2004 from UKM.

Q:     Can you tell the court the work scope as Forensic Medical Pathology.
A:     My work involves medico-legal autopsies requested by police officer; also examine living person involving medico-legal case.

Q:     Do you also conduct forensic examination?
A:     Yes.

Q:     Please tell the court your working experience?
A:     House officer experience in HKL 1998, subsequently as a medical officer in Hospital Sibu 1998-2000, 2000-2004 I’m working under the pathology unit as a medical officer while pursuing my master. Since 2004 , I work as a specialist at HKL until today.

Q:     Since 1997 to 2004, you have conducted many cases involving forensic examination?
A:     Yes.

Q:     Can you tell the court how many forensic examination have you conducted so far?
A:     200-300 cases approximately.

Q:     Since 1998 how many sodomy cases have you conducted?
A :    Grossly about 20.

Q:     In general, what are the general procedures in taking specimens?
A:     First, wear surgical glove, use sterile swab stick to take the specimen, after that put the specimen in the already labelled bottle and seal the bottle.

Q:     Are this procedure recognised by the international standard?
A:     Yes.

Q:     Specifically what are the equipments used in sodomy cases?
A:     Sterile swab, sterile swab stick and sterile proctoscope and also lubricant.

Q:     I show P19 and P20, swab stick and sterile proctoscope. Are these the equipment used in extracting specimen in sodomy cases?
A:     Yes. Sterile swab stick and sterile proctoscope.

Q:     Have you ever undergone any training and courses?
A:     In 2007, I underwent short courses on Forensic Anatomy and Human Identification at the Anthropological Centre, University of Tennessee in US. From 2009 until January 2010, I undergone my special training of [] at the University Herakal General Hospital, Greece.

Q:     Are you a member of Malaysia Medical Council?
A:     Yes. Ordinary member.

Q:     Member of medico-legal society?
A:     Ordinary member.

Q:     Have you ever testify in court?
A:     Yes. Approximately 100 cases.

Q:     To the best of your knowledge, has your testimony been accepted in court?
A:    Yes.

Q:     On 28th June 2008, were you on-call?
A:     Yes, I was on-call.

Q:     On that date, did you meet a patient by the name Mohd Saiful Bukhari bin Azlan?
A:     Yes.

Q:     Can you identify him?
A:     Yes. This is Mohd Saiful Bukhari bin Azlan.

SP1 dicamkan oleh SP3.

Q:     On 28th June 2008, where did you meet him?
A:     At the One Stop Crisis Centre (OSCC) at the Emergency Department HKL.

Q:    How did you meet him?
A:     I was called by one Dr.[],  After I discuss  with her, I decided to attend this case at 9.00 p.m. at the OSCC at the Emergency Department together with a specialist medical officer from the Surgical and Emergency Department.

Q:     Who are these specialists?
A:     Dr. Khairul from the Emergency Department, and Dr. Razali from the Surgical Department.

SP3 identify Dr. Khairul Nizam bin Hassan, and Dr. Mohd Razali bin Ibrahim.

Q:     Upon meeting them, did the three of you discuss on the sodomy case?
A:     Yes, at the beginning we met the police, we received briefing from the police officer in charge of this case. Subsequently we discuss among ourselves our role in this     case.

Q:     What was the result of the discussion?
A:    The 3 of us will attend the case together. Dr. Khairul Nizam is conduct examination on the bodily injury, Dr. Razali on the anal examination and my major role is conducting forensic specimen.

Q:     Approximately at what time in the OSCC room to meet SP1?
A:     We met SP1 approximately at 9.30 p.m. on 28th June 2008.

Q:     Just for clarification, is this OSCC room also Bilik Mawar?
A:     Yes.

Q:     Did you meet an officer by the name Judy Blacious?
A:     Yes. Inside and outside the room.

SP3 identify ASP Jude Blacious.

Q:     Upon entering the OSCC room, what did you do with SP1?
A:     Upon meeting SP1, I recorded the history and get his consent before we proceed with the examination.

Q:     Why did you need to get consent from him?
A:     The consent involve examination of bodily part and the private part, consent for taking photograph of the body and private part and also to take specimen from the body and private part.

Q:     You said you get the history, can you tell the court what did Saiful told you?
A:     He informs what happened to him that he is being sodomized by a high profile public figure for 8 times for at least the last 2 months and the last incident was on 26th June 2008]. I asked whether any condom was used and he said no, but lubricant was used. I asked whether there is any penetration and he said yes. I asked whether ejaculation occurred and he said yes. I asked whether there is any force used and he said no. SP1 also inform he has undergone an examination at a private hospital, i.e Hospital Pusrawi on 28th June 2008 before attended by us.

KS:     I would like to ask for the word “8 times” to be expunged.
NH:     We are not trying to add evidence through this witness. We just wanted to say what this witness is inform, nit the truth about it. We cannot stop this witness from     telling what was informed to him. The fact remain we are not going to prove the     truth made but a statement was made.
KS:     The purpose was the truth. In any event, that part was removed from the police report.
YA :    It is not part of the charge, not part of the incident in the charge. The word “8     times” is expunged.

Q:     In the same interview with Saiful, did Saiful mentioned about plastic inserted into him?
A:     No. Not the word plastic.

Q:     After the said interview, what happen next?
A:     After the interview, we conducted the whole examination at around 9.45 p.m. on 28th June 2008.

Q:     With regard to it, did you fill a form of “Borang Permohonan bagi Pemeriksaan Forensik/Toksikologi”
A:     Yes. It was filled at the end of the examinantion.

Q:     Mohon rujuk Borang Permohonan bagi Pemeriksaan Forensik/Toksikologi kepada saksi. Is this the form?
A:     Yes. This is a copy of the form filled by me. It is my handwriting and there is my signature and sealed with HKL seal before I send it to the police officer to be sent to the Chemist Department.

Q:     Do you recognised your signature?
A:     Yes. At page 4.

Borang Permohonan bagi Pemeriksaan Forensik/Toksikologi dicamkan dan dikemukakan sebagai P26.

Q:     At page 1, Para B, what was written there in your handwriting?
A:     Alleged sodomy.

Q:     At the same page, para B, you mentioned that the alleged sodomy the last episode on 26th June 2008. From where did you get the info?
A:     From the patient, SP1.

Q:     Whose handwriting is it?
A:     My handwriting.

Q:     What does the handwriting refer to?
A:     The specimen I collected and sent to the Chemistry Department for analysis.

Q:     The examination by Dr. Khairul and Dr. Razali, was it done simultaneously or one after another?
A:     One after another, but for certain part it was conducted simultaneously.

Q:     Were you there during the examination conducted by Dr. Khairul and Dr. Razali?
A:     Yes.

Q:     Did you see the samples specimen taken by Dr. Khairul and Dr. Razali?
A:    Yes.

Q:     Please explain what was your role in sample collection?
A:     I collect the specimen from Dr. Khairul and Dr. Razali, label and seal it, fill the form and hand it over to the police.

Q:     What were the samples extracted by Dr. Khairul?
A:     Dr. Khairul collected swab from the left peritonsilar recess for seminal analysis, below the tongue for seminal analysis, left nipple and areola for saliva analysis, right nipple and areola for saliva analysis, body swab for saliva analysis.

Q:     Did the samples collected by Dr. Khairul was handed over to you?
A:     Yes.

Q:     Where did you place the samples handed by Dr. Khairul?
A:    I put it in sterile containers and label it.

Q:     Where did you get the containers?
A:     I brought it together from my department, Forensic Medicine Department.

Q:     Were the containers sterile?
A:    Yes.

Q:     Were the labelling done before you?
A:     I labelled the container myself.

Q:    Did you write anything on the label?
A:    Yes. Briefly including the clinical examination number, the name of the patient, the nature of the specimen, the police report, the name of the doctor.

Q:    What were samples taken by Dr. Razali?
A:     Samples from peri anal region, low rectal swab, and high rectal swab.

Q:     High rectal swab, one or two times taken?
A:    Two times.

Q:     Was it handed over to you?
A:     Yes.

Q:    Where did you place them?
A:     In containers, sterile bottles, same with what I did with samples from Dr. Khairul.

Q:     What did you do with the containers?
A:     I label it and sealed the bottle, and asked SP1 to sign the bottle and completed the request form and subsequently handed over to the police officer, Jude Blacious.

Q:     Where did you label and seal the container?
A:     At the OSCC, in the same room.

Q:     How did you label the bottle?
A:    I use sticker.

Q:     Can you be more specific and describe about the sticker?
A:     Sticker bears the logo of Government of Malaysia with the tag Kementerian Kesihatan Malaysia, Jabatan Forensik HKL.

Q:     Did you sign the sticker?
A:     Yes, I did.

Q:     Who else were present in the room when you label it?
A:     Dr. Khairul, Dr. Razali, SP1 and Jude Blacious.

Q:     What did you do after that?
A:     I fill in the form, put the bottle in the plastic bag and handed it over to ASP Jude Blacious on the next day, 29th June 2008 at 12.25 a.m.

Q:     Where did you passed it to Jude?
A:     In the same room.

Q:    Did you sign any form when you hand over the bottle to Jude Blacious?
A:     Yes.

Q:     Mohon rujuk ID 23,
A:     This is the copy of the form handling the specimen to the police officer. The form includes the list of the specimen, and my signature and acknowledgment from the police officer.

Q:     Your signature?
A:     Right lower half of the document and the police officer on the left lower half of the document.
ID23 dicamkan dan dikemukakan sebagai P23.

Q:     Refer para B, no.2 – “Specimen taken from Dr. Khairul and Dr. razali”.
A:     Yes.

Q:     From whom the specimens were taken?
A:     From Mohd Saiful Bukhari, SP1.

Q:     You hand over the specimen to Jude Blacious at 12.25 a.m.?
A:     Yes.

Q:     Did ou make the marking B-B10 on the envelope consisting the specimen?
A:     No.

Q:     Mohon merujuk saksi dengan ID6(A)-ID6(L). Check one by one, are there your signature and label done by you on the containers?
A:     Yes. There are the swab specimens with my handwriting, labelled by me, my signature on the top of the specimen, and SP1’s signature on the side of the    specimens.

NH:     Pohon ID6(A)-ID6(L) ditanda sebai P6(A)-P6(L).

ID6(A)- ID6(L) ditanda sebagai P6(A)-P6(L).

Q:     Mohon rujuk saksi dengan P6(K)-P6(L). This is the container containing “blood from FTA card”.
A:     I put my signature on the specimen and at the side is by SP1.

Q:     Is the seal intact?
A:     No. It has been opened by the Chemist.

Q:     At the time you hand it over, is it sealed properly?
A:     Yes, the seal was still intact at the time I hand it over to Jude Blacious.

Q:     Is the seal by the Chemist intact?
A:    Yes. This is not my seal, but the others are mine.

Q:     Can you tell the court the procedure by Dr. Razali when he take the sample from SP1.
A:     He swabs the peri anal region and put in the bottle labelled by me. He use a sterile swab stick.

Q:     What about Dr. Khairul? Did he do the same thing?
A:     Yes.

Q:     With regard to the examination of SP1, were you with Dr. Razali and Dr. Khairul prepared the report?
A:     Yes.

Q:     Mohon rujuk P22. Can you tell the court the finding of your examination on SP1?
A:     No significant injury on the body and the peri anal area.

Q:     Did you put all your findings in the report?
A:     Yes.

Q:     Can you show your signature on the report?
A:    On every page.

Q:     What about the last page?
A:     Above the name of Dr. Siew Shue Feng.

Q:     Can you tell the name of the patient?
A:     Mohd Saiful Bukhari bin Azlan.

Q:     There is a history mentioned there. Can you read?
A:     23 year old Malay gentleman who alleged sodomized by a well known public figure for the past 2 months. The latest incident took place in the afternoon of 26th June 2008.

Q:     Refer page 3, tell the court what are the specimen taken at number 6, 8, 9 and 10.
A:     Item 6 – peri anal swab for seminal analysis, Item 8 – high rectal swab for seminal analysis, Item 9 – high rectal swab for seminal analysis and Item 10 – low rectal swab for seminal analysis.

Q:     What are the other specimen taken for seminal analysis as stated in no.1 and no.2?
A:     No.1 – swab from left peritonsilar recess for seminal analysis, and no.2 – swab from the below of tongue for seminal analysis.

Q:     On the same page 3, para 3, stated the report of the chemistry investigation were received by the Department of Forensic Medicine. Have you personally read the Chemist Report?
A:     Yes.

Q:     May the witness being shown ID25. Is this the Chemist Report that you mentioned just now?
A:     Yes. This is the copy of the Chemist Report I read.

Q:     Refer page 1, para 1 of ID25 and please read.
A:     [read].

Q:     Refer page 2, middle para. Start with the word “plastic”. Please read.
A:    [read]

Q:     Refer back P22, page 3. Below the word “laboratory”. Please read it.
A:    [read]

Q:     Did you made the said marking B5, B7, B8 and B9?
A:     No.

Q:     Did you take sight of where B5, B7, B8 and B9 were taken?
A:     No.

Q:     Do you know the result of the sampling of B5, B7, B8 and B9 when you made the report?
A:     No.

Q:     Refer P22, page 4, read the conclusion.
A:     [read]

Q:     Explain what you mean by the statement.
A:     We are not able to interpret without knowing the site of the samples.

Q:     May the witness being shown ID24. Having identified the sampling and the presence of semen from the high rectal swab what is your conclusion?
A:     There’s evidence of penetration, sexual penetration.

Q:     Can you conclude there was anal penetration?
A:     Yes.

Q:     Having identified the presence of semen and the history taken fromSP1, is it     consistent with penile penetration?
A:     Yes.

Q:     Refer P23, conclusion no.1, please read.
A:     [read]

Q:     Can you explain this statement?
A:     There is no conclusive clinical finding suggestive of penetration to the anus/rectum and no significant defensive wound on the body of the patient.

Q:     Does this mean there is no penetration at all?
A:     No.

Q:     Can penetration happen without any sign of injuries?
A:     Yes.

Q:     Under what circumstances can it happen?
A:     It include the delay attended by doctors, use of lubricant, when doing the act there is no undue force, no undue resistance; all this were result to no clinical finding of injury.

Q:     Do you agree your conclusion no.1 is based on clinical and physical examination only?
A:     Yes. Based on clinical and physical examination only.

Q:     On conclusion no.2, you say that you did not know the site of B5, B7, B8 and B9, correct?
A:     Yes.

Q:     To know the site of B5, B7, B8 and B9, do you agree it is important for a comprehensive complete report?
A:    Yes.

Q:     Do you agree that the report made by you is a comprehensive and complete     report?
A:     No. We still have to identify the location.

NH:     YA, itu sahaja soalan untuk saksi ini.
KS:     We reserve cross.
YA:     DPP?
MY:     No objection.
NH:     Minta tangguh 10 minit.

[10.54 a.m.] Stand down.

[11.13 a.m.] Kes dipanggil semula.

NH: Pohon panggil saksi seterusnya (SP4), Dr. Khairul.

SP4 mengangkat sumpah di dalam Bahasa Inggeris.

Q:     You are now attached at the Putrajaya Hospital?
A:     Yes.

Q:     Since July 2008?
A:     Yes.

Q:    Before that in the HKL, in Emergency and Trauma Department?
A:     Yes.

Q:     For how long?
A:     I join since 2004 until June 2008.

Q:     What was your position?
A:     I’m a Emergency Care Specialist at the Emergency and Trauma (ET) Department at the time of the incident until I’m transferred out.

Q:    So you are an Emergency and Trauma clinical specialist?
A:     Yes. At the same time also responsible for the running of OSCC Department for cases such as domestic violence.

Q:     Involve in forensic examination?
A:     Yes.

Q:     Please tell the court your academic qualification.
A:     I obtain my first degree from University of Bangalore, India. In 2006, I obtain my Masters from USM.

Q:     Please tell the court your working experience.
A:     Houseman ship at Hospital Teluk Intan, 2001 at Chemor Health Clinic in Perak, 2002 at Emergency Department, Ipoh Hospital, then transferred  to HUSM for my Master, during that process I was attached at ET Department HKL until I was qualified in 2006.

Q:     From 1998 until 2008 you have conducted forensic examination?
A:     20 cases on sodomy.

Q:     Did you undergo any training?
A:     In-house training by our society, many courses on my specialty such as trauma cases and managing OSCC.

Q:     Are you a member of Malaysian Medical Counsel?
A:    Yes.

Q:     Any member for other society?
A:     []

Q:     Have you ever testify the court?
A:     Yes.

Q:     To the best of your knowledge, did the court accept your testimony?
A:     Yes.

Q:     On 28th June 2008, were you on-call?
A:     Yes.

Q:     Did you examine Mohd Saiful, SP1?
A:     Yes.

SP4 identifed SP1.

Q:     Please tell the court how did you meet SP1.
A:     I was called upon by my junior colleague to assist him in examining SP1.

Q:     Later did you meet two more specialists in HKL?
A:    Yes. Dr. Razali Ibrahim and Dr. Siew Shue Feng..

Q:     When the three of you met, did you discuss the case?
A:     Yes. We discuss how to approach and how to proceed with the case.
Q:     What was the result of the discussion?
A:     We agreed that I’ll be the first to examine SP1, then Dr. Razali.

Q:     Who did the physical examination?
A:     I did it, Dr. Razali on the anal examination.

Q:     What was the role of Dr. Siew?
A:     Dr. Siew is responsible to handle the sample, do the sampling and give expert opinions on the finding.

Q:     After the discussion, what time did you enter the OSCC room to examine SP1?
A:     Around 9.25 p.m.

Q:     What happen in the room?
A:     I started introducing myself and the rest of the team to SP1, and making sure we understand what was the complain, and explain to him the entire process of the examination.

Q:     Did SP1 give his consent in regards for taking sample from him?
A:     Yes.

Q:     During sample taking, did SP1 said anything about plastic being inserted into his anus?
A:     No.

Q:     After obtaining the information, did you examine him?
A:     Yes.

Q:     How did you conduct the examination on SP1?
A:    I examine him from head to toe. During the process SP1 consented the  examination process and I did external examination and leaving the anal     examination to Dr. Razali and any finding would be done by the three of us.

Q:     What was the finding after examining the external part of SP1?
A:     YA, may I refer my notes. [read]

Q:     Apart from physical examination, did you take any specimen from SP1?
A:     Yes.

Q:     What are the specimens taken from SP1?
A:     [read notes] I collected samples from the left peritonsilar recess for seminal analysis, below the tongue for seminal analysis, left nipple and areolar for saliva analysis, right nipple and areolar for saliva analysis, body swab for saliva analyis.

Q:     Did you take any blood samples?
A:     Yes. Blood for FTA card, blood for HIV, HepatitisC and blood for alcohol and     toxicology.

Q:    Refer the witness with P6A,B,C,D,E,G,L,K. Are these all the samples taken from SP1?
A:     Yes.

Q:     Who seal all the containers?
A:     All specimens were labelled and sealed by Dr. Siew.

Q:     How did Dr. Siew assist in collecting the samples taken by you from SP1?
A:     During the examination, if there is any finding I will alert the other two specialists, including the measurement, and the remaining work done by Dr. Siew and all clinical procedures were followed.

Q:    Is this the container you said just now?
A:     Yes.

Q:     What are the equipments you used to take sample from SP1?
A:     A swab look like a cotton swab, sterilize and placed in plastic cover.

Q:     Refer P19, are this the swab stick?
A:     Yes.

Q:     Are the samples collected from SP1 handed to Dr. Siew?
A:     Yes.

Q:     Where did you hand it?
A:     In the examination room, in the OSCC.

Q:    Through out the taking of samples, were the two doctors in the room?
A:     Yes.

Q:     Did you see Dr. Razali examine SP1?
A:    Yes.

Q:     Did you see Dr. Razali took samples from SP1?
A:     Yes.

Q:     After the examination, did the three of you prepare a report?
A:     Yes.

Q:     Refer P22, is this the report?
A:     Yes.

Q:     Is your signature there?
A:     Yes.

Q:    Please tell the court the name of the patient as stated there.
A:     Mohd Saiful Bukhari bin Azlan.

Q:     At page 3, what are specimens collected at item 6, 8, 9, and 10.
A:     [read report] Item 6 – perinanal swab for seminal analysis, Item 8- high rectal swab for seminal analysis, Item 9 – high rectal swab rectal swab for seminal analysis and Item 10 – low rectal swab for seminal analysis.

Q:     Apart from the four specimens what are the other specimen taken for seminal analysis?
A:    [read report] swab from left peritonsilar and swab from the below tongue

Q:     Refer page 3, para 3. Have you personally read the chemist report?
A:     Yes.

Q:     Refer ID25, is this the chemist report mentioned in P22?
A:     Yes.

Q:     Refer page 2 of ID25 (chemist report), from the word “plastic []”.
A:    [read Chemist Report].

Q:     Did you make the said marking B5, B7, B8 and B9?
A:     No.

Q:     Refer to your report (P22), page 3, bullet 2. Please read.
A:     Presence of semen on swab B5, B7, B8 and B9.

Q:     Do you know the site of the samples B5, B7, B8 and B9 when you prepare the report?
A:     No.

Q:     Refer page 4 of P22, the conclusion of the report. Can you explain the statement?
A:    This is based on our clinical finding. We need to find anything to support the     allegation made by the patient. Based on the physical examination, we find no symptoms of penetration.

Q:     When you prepare this report, did you know the site of the sampling taken?
A:     No.

Q:     Refer ID24, page 2. Can you identify the siteof sampling of B5, B7, B8 and B9.
A:     [read].

Q:     Having known the site of samplings and the presence of semen, can you conclude there was anal penetration on SP1?
A:     Yes.

Q:     Having identified the semen from the high rectal swab taken from SP1 and     recording of history, can you conclude there is penile penetration?
A:     Yes.

Q:     Refer to Conclusion 1 of P22. Please explain.
A:      Based on the physical finding, we find no physical injury and we have come out with the conclusion which is based only on the physical examination.

Q:     Does this statement mean there is no penetration at all?
A:     No. That’s why we put the second statement.

Q:     Can anal penetration happened without any sign of injury?
A:     Yes. The possibilities are the duration of time taken by the victim from the incident present to the doctor, secondly from the allegation from victim there is no resistance, thirdly the use of lubricant.

Q:     You did not know the site of sampling of B5,B7, B8 and B9 when making the     report. Do you agree knowing the sight will help in making a complete and comprehensive report?
A:     Yes.

Q:     P22 that you prepared on 13th July 2008, do you agree that without knowing the site of sampling of B5, B7, B8 and B9, is it a complete and comprehensive report?
A:     No.

NH:     Itu sahaja soalan.
KS:     Reserve cross.
YA:     You want to continue with cross-examine of SP3 & SP4 or later baru cross SP2?
KS:     No. I want to reserve cross for all the three doctors.
YA:     All three has given evidence. I was under the impression to finish SP3 & SP4     examination-in-chief then only you will cross-examination them.
KS:     No. I’m not ready to cross-examine them today.
MY:    I have to agree with KS. They want to wait for the expert and what we agree is for the doctors to be finished first. They may not be able to call the expert today.
YA:     So reserve cross until 25th Oct.

[11.53 a.m.] Adjourned.

Anwar Ibrahim Sodomy II – The Recorded Truth – 2 August 2010 August 2, 2010

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

Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak:
PP:    Semua hadir
PB:     KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Marissa, Ram Singh
WB:    Zamri Idrus (for SP1), Andy Yong (Bar Council)
AI hadir

[9.13 a.m.]
MY:    Kes ditetapkan untuk sambung bicara. Untuk pemeriksaan balas SP2.
YA:     Kita ada application baru. We should hear that first. KS you are the one who     made the application, so you must start it.
KS:     In our application, stay of proceeding does not arise. Cross-examination of the last witness does not arise. Both do not arise in the application this morning. It has been overtaken by events. The event is that we have file an application for the charge against DSAI being strike out which is under inherent power of court. The reasons are stated in the affidavit. In short, there is an assertion that there is an affair between DPP Farah Azlina Latif and SP1, Mohd Saiful Bukhari, the complainant of the case. As a result, that charge should be strike out because  the DPP is part of the prosecution team. She would have access to the investigation paper, etc. [] that the sp1 [] aware of []
YA:      I think you are going to the merit, KS.
KS:    I’m not. There is an affair between DPP Farah Azlina Latif and SP1. This affect the entire trial my Lord. There is an offence under the OSA by SP1 and FA. The integrity of the DPP has been compromised. In fact, the entire pro team is being [] impartiality, [] when we submit on this application [] There’s an affair between the DPP and the complainant, the star witness of this case. The entire prosecution team should step down. My learned friend MY should take the blame. [] the application of stay is taking by events [].
YA:     So you said you want me to hear the application first?
KS:     Yes. This is not only for SP2, but also any other witness. This is a very serious matter, my Lord. My learned friend may need time to reply to the affidavit. [] affidavit of DSAI filed together with the motion this morning, in support of the application.
MY:     YA, the application to dismiss the case is not in this court. We must proceed with the cross-examination or with the application of stay. Just because somebody assert something does not mean [] bare allegation [] instruct the defence to proceed with application of stay of proceeding or continue with the cross-examination.
KS:     We only get the reply on Friday. For this reason, it is only filed this morning, it will be sent to your Lordship afterwards. This is for your Lordship to go through the application and the substance of it. [] it’s a sworn affidavit. My learned friend has no other option to reply to the affidavit, also the DPP and SP1. This might ensure the truth prevails. [] So that from there we should proceed.
YA:     Is that all?
[9.21 a.m.] Stand down.

[9.47 a.m.]
MY:     Pihak2 masih seperti dulu.
YA:     Memang tidak dapat dinafikan terdapat permohonan untuk mengenepikan pertuduhan dan oleh itu sekiranya pemeriksaan balas SP2 diteruskan, ianya akan menjadi satu tindakan yang sia2.  Oleh itu adalah lebih baik sekiranya permohonan membatalkan pertuduhan didengar terlebih dahulu sebelum permohonan pergantungan prosiding dan keterangan SP2 diteruskan. So, are the parties ready for the application? Stand down for a while.
[9.48 a.m.] Stand down

Pihak-pihak berjumpa dengan Hakim dalam Kamar pada jam 9.50 pagi. Pihak-pihak keluar dari Kamar Hakim jam 10.03 pagi.

[10.06 a.m.]
Permohonan 44-125-2010 : Permohonan mengenepikan pertuduhan.
MY:     Notis usul baru diserahkan kepada saya pagi ini. Permohonan untuk [] afidavit DSAI. Saya memohon masa untuk mengkaji dan memfailkan affidavit jawapan dan jika perlu, membuat research untuk digunapakai dalam menentang permohonan ini. KS juga perlu masa untuk membuat apa-apa afidavit balasan jika ada terhadap afidavit kami. Saya memohon satu tempoh yang cukup untuk kedua-dua pihak bersedia.
KS:     Kami mencadangkan 9 hb Ogos ini untuk tujuan pendengaran permohonan kini.
MY:     Saya tiada bantahan kerana hari Jumaat ini ada pendengaran rayuan di Mahkamah Rayuan.
YA:     9 hb Ogos 2010, Monday. Kes bicara proper ditetapkan untuk sebutan pada     tarikh tersebut. Begitu juga  permohonan penangguhan prosiding.
[10.09 a.m.] Stand down.

++++++++++++ English Version +++++++++++++

Criminal High Court 3

Before Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Parties :

PP  :                All present

Defence  :      KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Marissa, Ram Singh

WB  :               Zamri Idrus (for SP1), Andy Yong (Bar Council)

AI hadir

[9.13 a.m.]

MY:     Resumption of case. Cross-examination of SP2.

YA:      We have a new application. We should hear that first.We should hear that first. KS you are the one who made the application, so you must start it.

KS:      In our application, stay of proceeding does not arise. Cross-examination of the    last witness does not arise. Both does not arise in the application this morning. It has been overtaken by events. The event is that we have file an application for the charge against DSAI being strike out which is under inherent power of court.     The reasons are stated in the affidavit. In short, there is an assertion that there is an affair between DPP Farah Azlina Latif and SP1, Mohd Saiful Bukhari, the complainant of the case. As a result, that charge should be strike out because     the DPP is part of the prosecution team. She would have access to the investigation paper, etc. that the sp1 aware of

YA:      I think you are going to the merit, KS.

KS:      I’m not. There is an affair between DPP Farah Azlina Latif and SP1. This affect the entire trial my Lord. There is an offence under the OSA by SP1 and FA. The integrity of the DPP has been compromised. In fact, the entire pro team is being impartiality, [] when we submit on this application [] There’s an affair between the DPP and the complainant, the star witness of this case. The entire prosecution team should step down. My learned friend MY should take the blame. The application of stay is taking by events [].

YA:      So you said you want me to hear the application first?

KS:      Yes. This is not only for SP2, but also any other witness. This is a very serious matter, my Lord. My learned friend may need time to reply to the affidavit. [] affidavit of DSAI filed together with the motion this morning, in support of the application.

MY:     YA, the application to dismiss the case is not in this court. We must proceed with the cross-examination or with the application of stay. Just because somebody assert something does not mean [] bare allegation [] instruct the defence to proceed with application of stay of proceeding or continue with the cross-examination.

KS:      We only get the reply on Friday. For this reason, it is only filed this morning, it will           be sent to your Lordship afterward. This is for your Lordship to go through the application and the substance of it. [] it’s a sworn affidavit. My learned friend has no other option to reply to the affidavit, also the DPP and SP1. This might ensure the truth prevails. [] So that from there we should proceed.

YA:      Is that all?

[9.21 a.m.] Stand down.

[9.47 a.m.]

MY:     Parties as before.

YA:      There is an application to set aside the charges, as such, if the cross-examination of SP2 is continued at this stage, it will be a waste of time. As such, it would be better to hear the application to set aside charges before the application for stay of proceedings and SP2’s testimony is continued.

So, are the parties ready for the application? Stand down for a while.

[9.48 a.m.] Stand down

Parties meet with the judge in chambers at 9.50am. Parties leave judges’ chambers at 10.03am.

[10.06 a.m.]

Application 44-125-2010 : Motion to set aside charge.

MY:     Notice of the application has only just been given to me this morning.

Application for affidavit of DSAI. I request for time to study and file an affidavit response, and if necessary, to carry out research for justify why to set aside the application.

KS too needs time to prepare whatever affidavit in response, if any, towards our affidavit. I request for a period of time that is adequate for both parties to prepare.

KS:      We propose 9 August to hear our application

MY:     We do not object as this Friday, the appeal will be heard in the Court of Appeals

YA:      9 August 2010, Monday. Proper proccedings to hear the case on said date.

As well as the application for stay of proceedings.

[10.09 a.m.]  Stand down.

Anwar Ibrahim Sodomy II – The Recorded Truth – 19 July 2010 July 19, 2010

Posted by malaysianstory in Anwar Ibrahim, Malaysian Story, Sodomy II.
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******* The Full English Version (In Blue) After +++++++++++

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

Pihak-pihak:
PP:    Semua hadir
PB:     SN, Datuk Param Cumaraswam, Ram Singh
WB:    Zamri Idrus (for SP1), Leong (Bar Council)
AI hadir

Pihak-pihak berjumpa dengan Hakim dalam Kamar pada jam 8.58 pagi. Pihak-pihak keluar dari Kamar Hakim jam 9.24 pagi.

[9.26 a.m.]
MY:    Kes untuk sambung bicara. Pemeriksaan balas SP2.

PC:     We would like to seek for an adjournment since KS is warded. We had in fact serve the letter to your L on Friday afternoon. This case was fixed for continued hearing from today to 23rd July, and for the whole month of August. We apply for     this week to be vacated. We should be able to go on with the trial on 2nd August     onwards and complete the trial in August if everything goes well. We believe that there is no objection from PP. We also give some assurance that in the event KS is not able to be in court in August, we will continue the trial and hopefully we could complete the trial in August.

MY:     Under normal circumstances we would like to go on with the trial. But due to the leading counsel being sick, we will not object for certain issue. First, the assurance to continue the trial in August. 2nd  the assurance that there will be no postponement in August.

YA:     Oleh kerana KS sedang sakit sekarang, mahkamah tiada pilihan melainkan menagguhkan perbicaraan hingga 2 Ogos. Dengan assurance dari PB,     sekiranya KS masih tidak sihat, mereka akan meneruskan kes ini pada bulan Ogos dan berharap kes ini dapat diselesaikan dalam bulan Ogos. Mahkamah     setuju untuk membenarkan penangguhan ini ke 2 Ogos.

[9.31 a.m.] Court adjourned

++++++++++ English Version +++++++++++


Before YA Dato’ Mohamad Zabidin Mohd Diah

Parties :

PP:      All present

PB:      SN, Datuk Param Cumaraswam, Ram Singh

WB:     Zamri Idrus (for SP1), Leong (Bar Council)

AI present

Parties meet with the Judge in chambers at 8.58am. Parties leave chambers at 9.24pm

[9.26 a.m.]

MY:     Continuance of case. Cross examination of SP2.

PC:     We would like to seek for an adjournment since KS is warded. We had in fact serve the letter to your L on Friday afternoon. This case was fixed for continued hearing from today to 23rd July, and for the whole month of August. We apply for this week to be vacated. We should be able to go on with the trial on 2nd August onwards and complete the trial in August if everything goes well. We believe that there is no objection from PP. We also give some assurance that in the event KS is not able to be in court in August, we will continue the trial and hopefully we could complete the trial in August.

MY:     Under normal circumstances we would like to go on with the trial. But due to the leading counsel being sick, we will not object for certain issue. First, with the assurance to continue the trial on August 2 and second, with the assurance that there will be no further postponement in August.

YA:      As KS is unwell, the court has no alternative but to adjourn hearing until 2 August. This is with the assurance from the Defence that should KS still be unwell, the Defence agrees to the continuance of hearing with the hope that all may be completed in August. This court agrees to an adjournment until 2 August.

[9.31 a.m.] Court adjourned

Anwar Ibrahim Sodomy II – The Recorded Truth – 25 June 2010 June 26, 2010

Posted by malaysianstory in Anwar Ibrahim, Malaysian Story, Sodomy II.
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Rayuan Isu 112 CPC
Mahkamah Rayuan 2
Di hadapan Y.A. Datuk Sulong Bin Matjeraie, HMR
Y.A. Datuk Ramly Bin Hj Ali, HMR
Y.A. Datuk Zaharah Binti Ibrahim, HMR

[9.55 a.m.]
Pihak-pihak:
PP: MYZA, NH, MHZ, WCK, NB, NAA, MM
PB: KS, SN, Datuk Param Cumaraswam, Sangeet Kaur, AI tidak hadir

KS: This is an appeal against the decision of the judge in the High Court. It is in relation to something new, something which does not arise before. [] Ours is a noble point.

The appeal sought is for the purpose of impeaching SP1. The order applied for in relation to the documents requested in the appellant’s application is a final order, and therefore, appealable to the Court of Appeal.

[refer and read s. 50 and S.3 of CJA.

The authorities on the point have been discussed in detail at pages 257-278 at tab 4 of our bundle.

[refer and read submission]

What’s important is that judgment/ruling clearly relates to non-consensual carnal intercourse and the charge is under s.377B and that shows consensual sexual activity whereas statement recorded and any other statement is in support with non-consensual sexual intercourse. []

YA: There are authorities/laws which said that the AG has the discretion to charge to charge any charges.

KS: But when he charges someone and the evidence led is the other way around, the discretionary power of AG does not arise. We are not challenging his prerogative, but the evidence led contradicts the charge.

YA: So, that’s your main point?

KS: In fact, that’s the only point. It is so simple, straight forward and so logical.

MY: My learned friend, we’ve prepared our written submission. []. If I may just refer your Lordship to S.50 of CJA that can be found at page 11 of our submission and S. 3 at page 12. What my learned friend emphasis that the ruling made by the learned trial judge is a final order which finally dispose the right of the parties. S.3 of CJA does not include any ruling made in the course of the trial. This phrase must not be read disjunctively but read together with S. 50. My learned friend referred to the case of DSAI v PP (tab 4 of their bundle), then they talk about S.50, and they talk about the right of the appellant to the documents. Here, we don’t want to talk about the rights. There is no right to begin with because what happened was my learned friend should show whether there is a hunch or not as explained in the case of Mokhtar Hashim. Only then if the court finds that there is a basis for a hunch, then the court would ask the prosecution to hand over the document. []

YA: What you are saying is that the application must be made to the court first?

MY: About the hunch, SP1’s statement in the police report and his evidence in court during the chief-examination was said to contradict with the charge. In Husdi, it talks about S.145 and 155 of EA on impeachment proceeding. [refer and read     both Section.

My learned friend says it is something noble, something new. But what is new is not something that the law provides. It is different. Here we have the explanatory statement of the amendment of S.3 of CJA [refer page 13, read para 21].

So we have that phrase judgment and orders, but it does not include rulings made in the course of the trial. [refer to page 14, case Saad bin Abas, read para 23] []

YA: The appellant ask for S.112 statement and the judge says no. And thus not appealable?

MY: Yes. It is a ruling because the appellant said whether or not there is a hunch, but not right. When the court is satisfied that there is a hunch, then the issue of rights arises. [Refer to Mokhtar Hashim [tab 10], where they ask for the S.112 statement of Atun for purpose of impeachment [refer page 259, para E to the right]. And so is our case. The complainant tells to the court what he already told the police in his FIR and they are the same thing. [Refer page 276, para E to the left]. So here, what my learned friend is saying is this ‘in your report, you said there is no consent, in the court also you said there is no consent, but why did AG charge the AI under S. 377B and not S. 377 C of Penal Code even though SP1 had repeated under oath there is no consent.

In the lower court, this is what happens. The report said that there are many     incidents happened, but the AG only charge for one offence. And if he says that and if the AG decides to charge for the letter charge, then it is his discretion.

And in the case of Johnson Tan Han Seng, what happen was in the case the evidence reflected grievous hurt, but the charge is only for hurt. This was also referred in the case of Long bin Samat [refer and read page 21, para 36].

Coming back to the charge, at page 3 of our submission, and page 4, we    reproduce S.377B and S.377C. What the accused is charged is carnal intercourse against the order of the nature. S.377A states the definition of carnal intercourse. Consent or no consent is inconsequences, not an ingredient. But if the evidence shows that there is no consent, then it attracts different penalties. S.377C only imposes a minimum sentence for the offence unlike S.377B.

I would like to draw your Lordship attention to the offence of robbery. Roberry is defined under S. 390 but the offence is under S.392. And after that we refer to S.394 – robbery with hurt, but we still have to prove robbery and after that hurt. And if the robbery is with arm, it attracts the penalty in S.397. [] the offence does not talk about the mens rea on the part of the offender; it only talks about the actus reus of the offender.

And all we need to prove is that he committed the offence, with or without consent is secondary and it is not part of the ingredient []And to come back whether it is appealable or not, I check the word decision in S. 3 of CJA, the word cost or matter only applies in civil proceeding. In the case of DSAI, page 329 refers refer to Halsbury page 240, para 506. This part of the literature is reproduce in the judgment.

YA: Where in the case of DSAI that talks about Halsbury?

MY: At page 329, para H and I refer to Halsbury. [Refer tab 18, para 501, 4th line]. In the case of DSAI refer to case of Malik bin Su which also referred to Mohd Amin     case in India which is also a civil case.

[Refer pg 15 of submission, and tab 15 of bundle]. [read para 24, 25 and 26] As in England, the law does not provide for the decision in criminal court [] ie. appeal of the ruling in the trial.

If my learned friend succeeded to convince the court that there is a hunch, then the prosecution will be asked to hand over the S.112 statement, and the court will then decide whether the witness should be impeached or not. The question that I post is this, at the end of the day, if the court rules that this witness is able to explain the     contradiction if any, and he is not impeached, then will my learned friend appeal it or not?. []

If the court rule that day that there is a hunch, the court will ask us to hand over it. I refer to the case of Hoo Chang Chewn [tab 14, para D to the right] which talks about 2 grounds, supply and admissibility. In that case, the defence asked for statement made in the course of the investigation. The court said yes, and the document should be supplied. But the crown appeal. []

The issue before this court is that whether there is a basis of a hunch. If the court rules that there is basis, then it will order us to supply it to the defence. But since the court decide there is no basis, then there is no right for the defence to get the  S 112 statement.

1st. They have no right. There is no right to begin with.
2nd. This is a ruling and thus not appealable. [][]
3rd. The question of this right being finally dispose of, arising not during the trial,  but at the end of the trial.

And if I may again restate our stand my Lord, after read Halsbury, for criminal appeal, for criminal interlocutory appeal the law must provide for that. In England the law does not provide that and so in Malaysia.

To sum up, No.1-this is not appealable, No.2, even if this is appealable, then the judge was right in his ruling that there is no basis of that hunch.

Before i rest my case, I refer to page 23 of our submission, para 38 , [read].

So we are saying that yes, it is something new, something noble that never before has been brought up. Whatever it is, this honourable court does not have jurisdiction to hear this matter.

I pray for this appeal to be dismissed. Much obliged.

KS: At first, we didn’t discuss in detail in the case of DSAI [tab 4]. What is important is that the explanatory statement of the amendment of S. 3 of CJA- page 236     [read], para 14 of pg 236.[Refer para 16].

Before the amendment S.3 stop at this ‘decision made any, judgment, sentence or order’. After the amendment, it includes ‘but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally     dispose the right of the party’

What we are saying is that the ruling made by the judge is a final order. It is also referred to in the case of DSAI.[] because his statement would have reflected consensual carnal intercourse. Refer to tab 9 of bundle – S.377A, S.377B, and S.377 C. There is difference, S.377B, it is with consent, but in S. 377C there is no consent. The punishment also differs. Surely there must be a purpose for AG to charge him under that particular section. It must be there, it could have been something. [] otherwise it is like charging someone charging someone for the theft of a chicken for a theft of the duck. [] even that there is more than a hunch.[]

YA: So, you are saying there is nothing to do with Article145 (3)?

KS: Yes. We have a hunch. The statement is defamatory that lead to consent to the carnal intercourse. If we’ve been supplied of SP1’s S.112 statement, all his     evidence will fall and []. We refer to Augustine Paul on the issue of impeachment. Tab 5 of bundle [read].

SP1 is no longer the witness of the prosecution. []  if it is so, then it will be a final order. And the appellant could be entitled to acquittal. [] We pray under those circumstances for this appeal to be allowed. Much obliged.

YA: We will adjourn to deliberate the matter. We hope we’ll be able to deliver the judgment by 11.30.

[10.57 a.m.] Stand down

[11.40 a.m.]

YA: It took us longer than ½ hour. This is our judgment. It is a broad reason for our judgment. You can use the broad reason to appeal at the Federal Court if any.

We have anxiously considered the submission of both parties. After careful deliberation, we are of the view that the ruling made by the trial judge is correct where the right of the parties is not finally disposed.  []

Our jurisdiction is to hear and govern the appeal. The term decision is clearly define in S. 3 [read].

We are fortify in our decision that the explanatory statement []. The reason the amendment was done is [read].

It could not be gainsaid that the appeal filed by the appellant herein is actually is an interlocutory appeal as it was an appeal that occurs before the trial courts final     ruling on the entire case. Such being the case, the definition of the word decision in Section 3 of CJA would clearly preclude the appellant from pursuing with this appeal. [ ]

See also Hoo Chang Chwen, Saad bin Abas and the decision of England court in Regina v Collin.

And therefore we dismissed the appeal.

[11.45 a.m.] Rayuan selesai