No sign of penetration, court told

(New Straits Times) – Three Kuala Lumpur Hospital doctors had conclusively held there was no penetration into the anus of Mohd Saiful Bukhari Azlan, who claims Datuk Seri Anwar Ibrahim sodomised him, the Court of Appeal heard yesterday.

Lawyer Karpal Singh submitted that a joint clinical forensic report by doctors Khairul Nizam Hassan, Mohd Razali Ibrahim and Siew Sheue Seng also revealed that there were no signs of Saiful being inflicted with any defensive wounds on his body.

The doctors examined Saiful on June 28, 2008, two days after the alleged incident at a Bukit Damansara condominium in Kuala Lumpur.

However, Solicitor-General ll Datuk Mohd Yusof Zainal Abiden, who appeared for the public prosecutor, said the prosecution would prove its case and the doctors’ report was only part of the evidence it would rely on.

He said doctors had taken swabs from Saiful’s anus and if it contained the semen of Anwar, then the prosecution would have proved penetration.

Karpal, in submitting before the Court of Appeal to reverse a High Court ruling to quash the sodomy charge against Anwar, 62, said the doctors’ findings were “conclusive findings contained in a report dated July 13, 2008, signed by the doctors”.

On Dec 1, High Court judge Datuk Mohamad Zabidin Mohd Diah dismissed Anwar’s application to strike out the charge.

The appeal yesterday was heard before judges Datuk Abu Samah Nordin, Datuk Sulaiman Daud and Datuk Azhar Ma’ah.

Karpal said there was conclusive finding that there was no penetration, a primary ingredient to prove sodomy. “The onus is on the prosecution to prove its case. However you turn and twist, the fact is there was no penetration.”

He said the prosecution could “bring a million witnesses” and it would not make a difference if penetration was not first shown.

“This is a court of law (the Court of Appeal) and it should not abdicate from its divine duty.”

Karpal went on to claim that there was a “black hand” to prosecute his client.

He said an affidavit affirmed by deputy public prosecutor Mohamad Hanafiah Zakaria that the doctors’ report was not substantial was misplaced.

“Anyway, who is Hanafiah to say that the doctors’ findings are only partially true?” he asked.

In his reply, Yusof said there was no abuse of the court process and the prosecution would prove its case.

He said this court could only interfere if there was a miscarriage of justice. He said the doctors’ medical report was only for the purpose of corroboration and it was not substantive.

“The authors of the report will be called to testify,” he said, adding that it was not for him or Karpal to state that the report was solid evidence.

“We will also put forward other clinical and laboratory findings to support our case.”

He said Hanafiah’s affidavit only stated that the doctors’ report was confined to oral and forensic findings and their evidence was not substantive.

Yusof said the defence should not prevent the prosecution from tendering evidence just because they believed that a conviction was unlikely.

Abu Samah reserved judgment to Feb 17 as the court needed time to consider lengthy submissions.