Analysing The Prosecution’s Reply

Today (31st October 2014) concludes day one of the highly anticipated reply by the prosecution to the many things that were brought up by Datuk Seri Anwar Ibrahim’s defence team. 

I have to be honest that as an objective person following the Sodomy II trial, I am disappointed by Tan Sri Shafee Abdullah’s performance.

I was sincerely hoping that he would bring his A game and rebut with facts every point the defence submitted. Shouldn’t he be darn good at what he does considering the Attorney General overlooked all the DPP’s under his charge?

Regarding Anwar’s alleged alibi witness, Shafee questioned why the witnesses would be scared of the police when the police only wanted to interview them. Seems like a valid question

However, years ago, in an unsworn statement from the dock, Anwar claimed that “Haji Hasanuddin bin Abd Hamid, had been harassed by the police for a total of thirty hours in the recording of his statements which were all video recorded.”

Solving this problem wouldn’t require one to be a rocket scientist. A simple review of the videos from the interrogation would allow the courts to see whether or not Anwar’s allegation about the witness being harassed is baseless

Another thing I failed to comprehend is how the defence never filed for a subpoena to compel Haji Hasanuddin to appear before the courts. Considering his ownership of the unit where the alleged sodomy took place, and the possibility that he could provide Anwar with an alibi, what he has to say is imperative

Tan Sri Shafee Abdullah failed to address the issue of the meeting between Saiful and Datuk Seri Najib, as well as two other police officers prior to the alleged sodomy. Najib admitted to meeting Saiful for about an hour at his residence

It’s legally not wrong to meet up with high ranking officials. However, it’s a bit fishy considering that Saiful was Anwar’s former aide, and Najib was on the side of the political divide.

What’s even more odd is that the meeting concerned scholarships yet was held at Najib’s private residence. The fact that Shafee did not thoroughly address this meant that the door on the likelihood of Anwar’s political conspiracy theory remained open

Moreover, Shafee in his rebuttal, questioned how investigating officer Jude Pereira would have had access to fresh semen samples if indeed the latter had tampered with the evidence. This is a well thought out point, but is still subject to Anwar’s political conspiracy theory which was not refuted

If indeed there was a conspiracy to end Anwar’s political career, it wouldn’t be surprising that Anwar’s semen was found on an underwear not worn by Saiful on the day of the alleged sodomy. Powerful people can make things appear or even make them go away

Supt. Jude Pereira placed the DNA evidence in a steel cabinet instead of in proper refrigeration facilities (fact). On top of the DNA evidence being retrieved after 36 hours of the alleged sexual assault taking place (fact), it was also left open to degradation

Just because Jude Pereira mitigated the mistake by turning on the office air conditioner to keep the samples cool, this doesn’t negate the fact that negligence has occured. Pereira’s blatant failure to perform his duty could very well have affected the credibility and admissibility of the DNA evidence

Shafee’s reply to the lack of evidence regarding the use of the K-Y Jelly is laughable. The lead prosecutor held that there was no carpet stain because the jelly could’ve been spilled on a towel instead

Why is this possibility in contradiction with Saiful’s testimony that some of the jelly spilled onto the carpet? Where is this mysterious towel Shafee speaks of? How come it wasn’t admitted as evidence to support the claim that the controversial K-Y Jelly was used during the alleged sodomy?

Moving on, Shafee brought up the possibility that Anwar and Saiful had a “relationship” as the latter was given allowances and perks during his tenure as Anwar’s aide.

Shafee’s primary justification was that Saiful was a school dropout yet was able to afford expensive suits, was given generous allowances, and was sent on overseas trips

Citing Saiful’s testimony, Shafee said the former aide to the opposition leader earned a basic salary of RM1,000 but was given US$1,000 as allowance for a trip to Singapore and HK$1,000 dollars when he was sent there

Objectively speaking, the amounts mentioned aren’t exorbitant, though it is worth taking note of. Isn’t it completely normal for employees to be given allowances when they are sent on overseas trips? Some company trips are even completely sponsored!

Does this imply that the supervisor/manager has a relationship with the particular employee? Not in most circumstances! Anwar just needs to satisfactorily justify why the allowances were given and it will no longer be an issue

Next, Shafee attempted to reconcile the inconsistency in Saiful’s testimony regarding the duration of the alleged sexual assault. During the trial, Saiful said that the alleged sodomy lasted for five minutes. However, initially, Saiful mentioned that it was for thirty minutes

Today, Shafee told the court that the 30 minutes included the time to take a shower. Am I the only one who thinks this is ludicrous? Why would anyone include the time taken to take a bathe when asked about how long he/she was sodomised?

A mind-bloggling question I struggled with since the beginning is why Anwar never testified from the witness stand where he can be cross examined? If he was truly innocent, it wouldn’t be an issue to testify under oath right?

After all, this trial is a matter of life and death (metaphorically speaking) for Anwar. Being sent to jail would signal the end of his political career and possibly the demise of Pakatan Rakyat

So many unanswered questions remain. It is no surprise that the Sodomy II trial is a highly controversial one! I look forward to round two of the prosecution’s submissions.

*Read this amazing article at The Malaysian Insider

Proving Beyond Reasonable Doubt

In light of the ongoing Sodomy II trial, the following are some basics of the criminal justice system that we should be informed or even reminded of

(i) It is the job of prosecution to prove that the accused committed the offence. This is in line with the legal maxim semper necessitas probandi incumbit ei qui agit (translated: “the necessity of proof always lies with the person who lays charges”)

(ii) The defence merely needs to raise certain discrepancies regarding the case, and the accused would be acquitted, provided the court is satisfied that otherwise, the conviction would be an unsafe one

(iii) The prosecution needs to prove beyond reasonable doubt that the accused committed the offence. It is a higher burden of proof than that of civil law (i.e. on the balance of probabilities) because the liberty of the accused is at stake (in Anwar’s case, five years imprisonment or more)

Datuk Seri Anwar Ibrahim’s defence team led by former Federal Court judge, Datuk Seri Gopal Sri Ram started off well. They raised a myriad of questionable issues, thus casting a lot of doubt in the prosecution’s case

The first concerned Anwar’s alleged alibi. Sri Ram said that the defence did not pursue the alibi because the police had intimidated the main alibi witness, who is the owner of the condominium.

If indeed the accusation is true, it would further mar the already damaged reputation of our police force as such scare tactics would prevent Anwar from getting a fair trial (contrary to Article 10 of the Universal Declaration of Human Rights of which Malaysia is a signatory but has yet to ratify)

Secondly, there was no evidence of sexual penetration. This claim by Sri Ram was based on medical reports. If it can be conclusively proven that there was an absence of sexual penetration in the anus, there can be no sodomy.

However, the testimonies of expert witnesses tend to contradict one other, thus the difficulty in reach an absolute conclusion whether or not there was in fact sexual penetration

Next is regarding the lubricant. It was not mentioned in the police report made by Saiful and popped up for the first time during the trial. Perhaps Saiful forgot to mention it because he was traumatized?

Oddly enough, the lubricant was not on list of exhibits during trial and was even mishandled by the investigating officer who gave it back to Saiful instead of keeping it as evidence. Considering the controversy surrounding the lubricant, I am of the opinion that the lubricant shouldn’t be taken into account

Saiful’s credibility is undoubtedly questionable. He insisted that during the ordeal, some K-Y Jelly spilled onto the carpet. However, the police investigation revealed that no stain was found on the carpet. There’s clearly an inconsistency in his testimony

Besides that, Sri Ram pointed out the ridiculousness in which the underwear Saiful wore was washed but the latter’s anus was left untouched, hence preserving the DNA evidence. On top of that, Anwar’s semen was found on underwear not worn on the day of the alleged sodomy. I’m no conspiracy theorist but the possibility of the evidence being planted exists

Moreover, it was alleged that Saiful met with Najib and other police officials two days prior to the sodomy complaint. If indeed such a thing happened, even a reasonable man would wonder if something fishy is going on.

Moving on, let us consider the photograph of Saiful at Anwar’s house. The picture was taken a day after the alleged sodomy whereby Saiful and Anwar met up for a discussion and tea session. Which mad person would hang out the next day with the very person who unconsentually sodomised him?

Since Saiful admitted to being there, there is no question that the photograph was doctored or anything of that sort. Ergo, it is material evidence which should be admitted as it could very well affect the outcome of the case

It is interesting to see what prosecutor Datuk Seri Muhd Shafee Abdullah has up his sleeve. He will have to bring his A-game if he doesn’t want Anwar to walk out a free man at the end of this trial

The Federal Court needs to be constantly reminded that it is a court of law, and NOT a court of politics. Therefore, any political influence should be tossed aside. The courts are to decide without fear or favour!

According to Lord Hewart in R v Sussex Justices, ex parte McCarthy, “it [… ] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Therefore, the highest court of our land should only uphold conviction if and only if the prosecution successfully proves beyond reasonable doubt that Anwar sodomised his former aide, Mohd Saiful

* This awesome article also appeared at The Malaysian Insider, Malaysia-Today, and Malaysiakini