K-Y Jelly evidence mishandled, court hears in Anwar appeal

Malaysian opposition leader Datuk Seri Anwar Ibrahim (left) and his wife Datuk Seri Dr Wan Azizah Wan Ismail at the Federal Court in Putrajaya, outside Kuala Lumpur, today. – The Malaysian Insider by Najjua Zulkefli, October 28, 2014.The Federal Court has begun hearing the final appeal by Datuk Seri Anwar Ibrahim against his sodomy conviction.

Anwar's defence team, led by retired federal court judge Datuk Seri Gopal Sri Ram, has begun submissions by outlining the prosecution's case against the opposition leader.

Anwar is appealing the Court of Appeal's conviction that he sodomised his former aide, Mohd Saiful Bukhari Azlan, in 2008.

Among the points highlighted by Sri Ram were that medical reports showed no evidence of sexual penetration and that semen found on a pair of the complainant's underwear were not worn on the day of the alleged incident.

Sri Ram added that Saiful had met then deputy prime minister Datuk Seri Najib Razak and some police officials prior to the alleged sodomy.

Sri Ram told the court that Saiful had claimed he was "afraid" to lodge a police report, yet had met the inspector-general of police.

This was "inconsistent with probabilities" that he was afraid, Sri Ram said.

The defence then outlined problems with the list of exhibits tendered during the trial, noting that the K-Y Jelly allegedly used during penetration was not among them.

The police report by Saiful also did not mention the lubricant and Saiful only mentioned it for the first time during his testimony.

Sri Ram said it was "incredible" that Saiful would have deliberately bought K-Y Jelly and then allege that he was "forcefully sodomised".

The trial judge then, Datuk Mohd Zabidin Mohd Diah, had erred when dealing with the lubricant as evidence, Sri Ram said, and this "casts doubts" on the integrity of the evidence.

Sri Ram was building up a case that Saiful was not a credible witness.

"If the gel had been used, it would have been mention in exhibit."

If lubricant had been used, Saiful would also not have complained of pain, Sri Ram added.

The defence continued to poke holes in the police's handling of evidence, noting that Investigating Officer Jude Pereira only took the gel from Saiful on June 29, three days after the alleged sodomy on June 26.

Saiful had testified that he first handed the lubricant as evidence to Pereira on June 28 but it was returned to him.

Saiful's toilet habits also came into question, as Sri Ram asked whether it was possible for the complainant not to have gone to the toilet for two days in order to preserve the semen as evidence.

A supporter of Saiful Bukhari, the former aide of Datuk Seri Anwar Ibrahim, outside the Palace of Justice in Putrajaya, today. – The Malaysian Insider pic by Afif Abd Halim, October 28, 2014.Sri Ram also noted that Saiful was seen in Anwar's house the day after the alleged incident, and submitted a photograph showing Saiful at the house.

But, the court said the photograph had not been tendered as evidence and asked Sri Ram to submit whether it could be accepted as evidence or not.

The five-man panel of judges is led by Chief Justice Tun Arifin Zakaria.

Others on the bench are Tan Sri Raus Sharif, Tan Sri Abdul Hamid Embong, Tan Sri Suriyadi Halim Omar and Datuk Ramly Ali.

Anwar, 67, was sentenced to five years' jail by the appellate court but has obtained stay of execution pending the outcome of his appeal in the Federal Court, which will be heard today and tomorrow.

In January 2012, the High Court, following a lengthy trial, acquitted Anwar of the charge after calling for his defence.

The prosecution also filed a cross-appeal to enhance the jail term which could be extended up to 20 years.

The opposition leader is alleged to have performed carnal intercourse on his former aide, Mohamad Saiful Bukhari Azlan, at an apartment in Damansara on June 26, 2008.

This is the second sodomy charge against him. The first was in 1998, after he was sacked from government. He was then accused of sodomising his former driver and acquitted by the Federal Court in 2004.

This time, Anwar's political career could come to an end if the apex court upholds the Court of Appeal's conviction and sustains the sentence.

There are 14 lawyers representing Anwar. Among them are Ramkarpal Singh, Sangeet Kaur Deo, Zaleha Al-Hayat, Latheefa Koya, N. Surendran, R. Sivarasa and Eric Paulsen.

Gobind Singh Deo and prominent lawyer Tommy Thomas are also observing the case today.

The prosecution team is led by Tan Sri Muhammad Shafee Abdullah and deputy public prosecutor Datuk Mohamad Hanafiah Zakaria.

Anwar told reporters, when he stopped to talk briefly at the court, that the defence team was previously led by senior lawyer Datuk Sulaiman Abdullah, who is still unwell and uses a wheelchair.

Anwar arrived earlier to a crowd of cheering supporters outside the Palace of Justice in Putrajaya. Supporters gathered as early as 7am.

Security was tight, with police screening and vetting members of the media who came to cover the hearing.

This was the first time the police, instead of court officials, were deciding which press organisation could cover the proceedings. It caused tension this morning as some reporters tried to negotiate with the police, but to no avail.

Only 18 media organisations secured places inside the courtroom, for one reporter each. The room was packed with observers and supporters.

Anwar, who was seen chatting with PKR deputy president and Selangor Menteri Besar Azmin Ali, was overheard saying in jest that if there were not enough seats in the courtroom, people could join him in the dock. – October 28, 2014.

* Reporting contributed by Tarani Palani, The Edge Financial Daily.