Accept the evidence, court urged

(The Star) – The High Court should not be concerned as to how evidence is obtained – whether through unfair means or otherwise – as long as it is relevant, the prosecution in Datuk Seri Anwar Ibrahim’s sodomy trial said.

Solicitor-General II Datuk Mohd Yusof Zainal Abiden submitted that the court did not have the jurisdiction to exclude the items – a tooth brush, towel and a Cactus mineral water bottle taken from the lockup where Anwar was kept overnight – as evidence.

“Your Lordship cannot exclude it just because it was obtained via unfair means, except in cases of confession.

“The court should not be concerned as to how it was obtained. As long as it is relevant, it is admissible,” he said yesterday on his application for the court to review its decision in the trial-within-a-trial.

On March 8, Justice Mohd Zabidin Mohd Diah ruled that the items could not be tendered as evidence as they had been obtained via “unfair means.”

With the ruling, testimony from chemist Nor Aidora Saedon from the Chemistry Department had been deemed inadmissible.

The chemist had previously testified that the DNA profile taken from these items matched that of an unknown person known as ‘Male Y’, whose semen was found inside complainant Mohd Saiful Bukhari Azlan’s anus.

On Friday, Mohd Yusof had made two applications at the end of the prosecution’s case. One was for the court to compel Anwar, under the Evidence Act, to provide his DNA for profiling. “Your Lordship cannot ask him to surrender (his DNA), but what Your Lordship can do is to order someone else to obtain it from him.

“It is not only logical but absolutely sensible for an accused person, in order to exonerate himself, to voluntarily offer his DNA sample for matching with that of the crime scene sample.”

He added that it was in the interest of justice that an innocent person had to be acquitted and a guilty one held liable for his crime.

Mohd Yusof also said in his submission that DNA evidence had possibly the “highest probative value of all,” on par with fingerprints, in identifying an individual.

He argued that although an application for an order to require Anwar to provide his DNA sample might be unprecedented, it was permissible under the law when the Evidence Act empowered the court to issue such an order.

Earlier, Anwar’s lawyers wanted parties responsible for leaking and publishing the prosecution’s submissions to be cited for contempt of court.

The submissions were published in The New Straits Times and online portal Malaysia Today before they were heard in court.

The court then reminded parties that the case was ongoing and they should not do anything which could affect the trial.

Anwar, 63, who is Parti Keadilan Rakyat advisor and Permatang Pauh MP, has claimed trial to performing carnal intercourse against the order of nature on his former aide Mohd Saiful at a condominium in Bukit Damansara, Kuala Lumpur, on June 26, 2008.

Hearing continues today, with Anwar’s lawyers giving their submissions on the two applications.