Datuk Seri Anwar Ibrahim should have been acquitted of sodomy without his defence being called as the case investigating officer failed to follow the directive of a Kuala Lumpur hospital forensic pathologist in the handling of samples retrieved from Mohd Saiful Bukhari Azlan, the Court of Appeal was told today.
Lawyer Karpal Singh (pic) said Dr Siew Shue Feng had instructed Superintendent Judy Blacious Pereira to store 12 samples in a freezer before passing them over to a chemist.
"The integrity of the samples was compromised as Pereira kept them in a filing cabinet in his office, instead of a freezer," he said in his submission.
Dr Siew had handed over the samples, including rectal swabs, collected from Saiful for DNA tests.
The appellate caourt was hearing Putrajaya's appeal against Anwar's acquittal on a charge of sodomising Saiful, his former aide, at a condominium unit in Bukit Damansara in 2008.
Karpal said the Inspector General of Police's standing order did not state that an invetigating officer could remove samples from a bag and put them in separate envelopes before labelling them.
He said the samples were collected at the hospital some 56 hours after the alleged incident, and the police officer only handed them another 40 hours later to government
chemist Dr Seah Lay Hong about 7.30pm on June 30, 2008.
Karpal said the defence had challenged Dr Seah, as the integrity of the samples were compromised and the prosecution had failed to establish a prime facie case.
He said the trial judge believed the testimony of two defence expert witnesses over the two local chemists, including Dr Seah.
"That is the reason the judge decided to acquit Anwar after hearing the testimony of the two foreign experts," he added.
On January 9, 2012, Anwar, now 66, was acquitted for sodomising his former aide Mohd Saiful Bukhari Azlan at a condominium unit in Bukit Damansara in 2008.
Putrajaya is appealing against that decision.
He also said the court must disregard the evidence of Saiful, as his conduct after the alleged incident showed he could have left the apartment as the door was not latched.
"But he had curry puff and coffee with Anwar and remained in the apartment for 20 minutes before leaving," he said.
The lawyer told the court even in the first sodomy case, the Federal Court acquitted Anwar after discarding the evidence of complainant Azizan Abu Bakar due to lack of credibility.
Ram Karpal Singh, who is assisting Karpal, said Dr Seah's DNA analysis showed there there was a third contributor found in the lower, upper and perianal region of samples collected from Saiful.
The other were that of Anwar and Saiful.
"Perhaps, Saiful was penetrated by a third party," Ram Karpal said.
He said since the samples were handed to Dr Seah 96 hours later, there was a high possibility of them being in a state of degradation.
However, he said the defence had shown the samples were surprisingly pristine.
"Now is it doubtful whether the sample that was collected from Saiful was the one that was sent for analysis," he added.
Hearing was adjourned till tomorrow.
Earlier, Karpal went on a tirade against ad-hoc deputy public prosecutor Tan Sri Muhammad Shafee Abdullah for character assassination of Anwar.
Karpal, who is also DAP national chairman, said the Umno lawyer had been making remarks against the opposition leader for his statement in the dock at the High Court.
Shafee, during submission early today, said Anwar's defence in the High Court was bare denial when the PKR de facto chief only gave a statement from the dock.
"He attacked a judge, the prosecution and the government when he gave the unsworn statement," Shafee said.
He said it was elementary law that an accused person had the option to testify and be cross-examined, remain silent or give an unsworn statement.
Karpal said he had been patient and did not want to disrupt Shafee for more than two and half hours when the lawyer laced his submission with political statements.
Training his comments at the Court of Appeal judges, the veteran lawyer said this court must decide this case based on evidence.
"Any submission must be within the parameters of the law," he said in the packed court room, mostly consisting of PKR supporters.
He said Shafee was misleading the court when he said that the standard of proof in criminal cases was on the balance of probability, lower than the beyond reasonable doubt test.
Shafee nor the three-men bench chaired by Datuk Balia Yusof Wahi interrupted Karpal when the 73-year-old wheelchair-bound politician-cum-lawyer made the remarks, at times in a loud and stern voice.
He said in a criminal trial it was the prosecution who had the responsibility to prove every ingredient of the charge.
"An accused person need not prove his innocence," Karpal said in apparent reference to Shafee's submission that the prosecution could not cross examine Anwar in the High Court because he gave a statement from the dock. -- March 6, 2014