Sodomy medical report in spotlight again

Written by Chua Sue-Ann, The Edge

Defence and prosecution lawyers in Datuk Seri Anwar Ibrahim's sodomy trial today again battled over the strength of a Hospital Kuala Lumpur report on Anwar's accuser Mohd Saiful Bukhari Azlan as Anwar sought to strike out the sodomy charge.

In arguing for the Court of Appeal to strike out the sodomy charge, Anwar's lead counsel Karpal Singh repeatedly pointed to the Hospital Kuala Lumpur medical report, signed by three specialists, which stated there was "no conclusive clinical findings suggestive of penetration to the anus or rectum and found no defence wounds" found on Saiful's body.

"This is important, relevant and useful for the accused (Anwar) to place doubt on prosecution's case. Does it matter at what point this is brought up?

"What is the meaning of conclusive? In legal terms, it means beyond reasonable doubt. Conclusive means definite. Conclusive means that's it, none, 100%. That's what it means. It does not mean anything else however much we twist and turn," Karpal said.

Saiful underwent a medical examination immediately after lodging a police report on June 28, 2008, alleging he was sodomised by Anwar two days earlier.

Anwar was appealing Kuala Lumpur High Court Judge Datuk Mohamad Zabidin Mohd Diah's Dec 1, 2009 decision to not strike out the sodomy charge.

Mohamad Zabidin had ruled that the court cannot strike out the sodomy charge at this point based solely on the medical report because anal penetration could only be determined after the court heard testimony from witnesses during the trial.

The trial judge had also noted that penetration was a fundamental element of the sodomy charge under Section 377B of the Penal Code but maintained that it was "up to the prosecution" to decide how they intended to present its case.

Commenting on Mohamad Zabidin's judgment, Karpal said, "It does not matter how many witnesses you call if a fundamental element of the charge stands unproven".

Karpal also submitted that the court had the power to strike out the charge, which he maintained was an abuse of process, oppressive and prejudiced the accused.

"It is a persecution not a prosecution and the courts cannot sit back and let prosecution carry on. It is a court of law, a court of justice. The courts cannot abdicate from its duty, its divine duty, to intercede.

"It doesn't matter that the trial has proceeded. The trial is being rushed. Whoever is doing it has a motive... The charge ought to be struck out now. Or is it the result of some black hand behind the prosecution of Datuk Seri Anwar Ibrahim?" Karpal said.

Solicitor-General II Datuk Mohd Yusof Zainal Abiden argued that Anwar's legal team cannot look at the report and conclude that prosecution has insuffficient evidence to conduct their case against the opposition leader.

"The medical report is not substantive evidence. It only corroborates what the author (of the medical report, ie the doctor) has to say in court. It's the (doctors) that will have to come to court (to testify)... We cannot rely on report. We have to call the doctor to explain what it means," Mohd Yusof said.

Mohd Yusof added that the clinical examination was only part of the medical examination conducted on Saiful and the medical opinion was only complete with laboratory investigations.

Last week at High Court, Mohd Yusof read out prosecution's opening statement revealing that semen specimens taken from Saiful's anal region had been certified by the Chemistry Department as belonging to Anwar.

Mohd Yusof today also reminded the Court of Appeal judges to "keep out of the arena" and not appear to encroach in the public prosecutor's duties, as the lead prosecutor sought to defeat Anwar's strike-out application.

Mohd Yusof added that Anwar's strike-out application cannot be sustained because Anwar's complaint was on evidence instead of court procedure.

Court of Appeal Judge Datuk Abu Samah Nordin, who sat with Court of Appeal Judges Datuk Sulaiman Daud and Datuk Azhar @ Izhar Ma'ah, then fixed Feb 17 to decide whether to strike out the sodomy charge against Anwar.

Anwar pleaded not guilty when charged with sodomising Mohd Saiful, 24, at the Desa Damansara Condominium in Bukit Damansara on June 26, 2008.

If convicted, Anwar faces up to 20 years imprisonment.