PUTRAJAYA: The DNA profile of Male Y in the Sodomy II case belongs to none other than Datuk Seri Anwar Ibrahim, ruled the Federal Court.
Chief Justice Arifin Zakaria said there was no dispute that samples examined by chemist Nor Aidora Saedon came from items used solely by Anwar.
“It is thus indisputable that the profile of Male Y developed and analysed by both chemists belongs to none other than the appellant (Anwar),” he said.
The DNA evidence of Male Y, said Justice Arifin, was the key corroborative evidence to the element of penile penetration by Anwar.
DNA samples from a mineral water bottle Anwar brought into a lock-up as well as a toothbrush and a Good Morning towel given to him by the police for his use had been labelled as Male Y.
Justice Arifin said there was direct and strong circumstantial evidence of Anwar having used those items and that there was no dispute that the lock-up was solely occupied by him when detained overnight on July 16, 2008.
“We are of the view that the conducting of a trial within a trial by the trial judge to determine whether the DNA samples were obtained by unfair means or otherwise was a superfluous and an unnecessary exercise,” he said.
Anwar was lawfully detained at the lock-up and the gathering of evidence there by the forensic team was a legal and fair method of police investigation, he said.
Justice Arifin said the judges also agreed with the prosecution that it was incorrect and misleading to conclude that because of the degradation of DNA samples, DNA profiling had been rendered unreliable.
“It is thus our finding that the degradation has no effect whatsoever on the DNA profiling in this case,” he said.
Scientific evidence cited by the prosecution, said Justice Arifin, clearly established that Anwar’s sperm cells were found in the lower and upper rectum of Mohd Saiful Bukhari Azlan.
“The only logical explanation for this is that Mohd Saiful must have been sodomised by the appellant (Anwar),” he said, adding that they were convinced of this “beyond reasonable doubt”.
The defence, said Justice Arifin, had contended that Anwar could not have performed the act as he was labouring under intense back pain, calling an orthopaedic surgeon to support his claim.
“We say that this defence is an afterthought,” he said, adding that the surgeon only examined Anwar on Sept 8, 2011, a month before his testimony.
He said a prosecution witness, Dr Jeyaindran C. Sinnadurai, had examined Anwar just three weeks after the incident, during which he did not complain of back pain.
“According to Dr Jeyaindran, the appellant (Anwar) had informed him that he had coitus (sexual intercourse) with his wife a week after the incident,” he said, adding that the doctor observed that Anwar’s movement was also not restricted by any back pain.
Anwar, said Justice Arifin, had listed 13 witnesses in support of his alibi but chose not to call any of them, making instead an unsworn statement from the dock.
“In law, a trial judge will not give much weight to what an accused has said in his unsworn statement as he is not subject to cross examination by the prosecution nor can he be questioned by the trial judge.
“We hold that the defence of political conspiracy remains a mere allegation unsubstantiated by any credible evidence.”
Outside the courtroom, some lawyers were heard saying that they were worried that the judgment could mean that it would be very easy for someone to accuse another of sexual offences.
One was heard saying that if a man were to refuse to marry his girlfriend, she could easily frame him for sexual assault by planting degraded discarded seminal fluid.
