Transkrip Perbicaraan Anwar Ibrahim 28 Oktober 2010
Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP: Semua hadir
PB: KS, SN, Datuk Param Cumaraswam, (Dato’ CV Prabhakaran, Ram Singh, Marissa, Radzlan tidak hadir)
WB: Zamri Idrus (untuk SP1)
Experts for the defence: Prof. David Wells (Dr. Brian MacDonalds tidak hadir)
AI hadir
[8.58 a.m.]
MY: Kes untuk sambung pemeriksaan balas SP2. Pihak-pihak masih sama.
KS: We have my Lord, with respect we have reservation (as to the ruling yesterday) as to whether your Lordship have really thought what he had in our submission yesterday.
Your Lordship in fact did not understand what we submitted.
YA: I’ve made myself clear yesterday you are entitled to the report on 10th July, but not the notes.
KS: That is already clear. That decision was made by your Lordship previously. In fact, your Lordship has directed for that report to be produce. That is not right at all with respect to the notes.
YA: Can I see both of you in chambers, please.
KS: Yes I think you should.
[9.00 a.m.] Stand down.
[9.02 a.m.] Kedua-dua pihak masuk ke Kamar Hakim.
[9.23 a.m.] Kedua-dua pihak keluar dari Kamar Hakim.
[9.25 a.m.]
SP2 mengangkat sumpah di dlm Bahasa Inggeris.
Q: This is your first case in court, isn’t it?
A: Yes
Q: You are unsure of the evidence and all. You cannot remember, make mistakes etc.
A: It happened two years ago.
Q: The best way is to refer to the notes to refresh your memory. Because you can’t remember a lot of things.
A: I only remember the work I did. Things I did not do, I cannot remember it.
Q: Your mistake goes beyond not remembering.
A: I tend to forget. I am human being.
Q: Yes. Human beings tend to forget and normal human being would want to refer to the notes. Would you not want to refer?
A: I’ve corrected myself that it is a mistake.
Q: That is in point of a mistake. I’m talking in point of you can’t remember. Why are you so reluctant to refer to the notes?
MY: What is your question? Are we having a conversation or what?
KS: I don’t know what he said. Forget about the DPP.
YA: Apa soalan, KS?
Q: Why is you reluctant to refer to your notes?
A: Not reluctant. I think it is not necessary because I still can recall whatever things I did.
Q: Can you recall everything?
A: [witness had no chance to answer]
Q: Can you recall the history you recorded from SP1?
A: Yes.
Q: In P22, the history is in 2 liner, isn’t it?
A: Yes
Q: Can the 2 liner constitute details? Can it be accepted as details? In your view?
A: Yes.
Q: Those are the details in the notes, nothing more. Let me remind you, you are under oath. A lot of things you said which amount to perjury.
MY: It’s not for you to say that.
SN: Prosecution always interfere. Why are you interfering? You are always interfering. []
Q: You are under oath.
A: Yes.
Q: Do you bear the consequences of taking oath?
A: I’ve explained before. 7 years imprisonment.
Q: 7 years. Long time. Let’s get the truth out of you.
KS: YA, we are of the reason to believe this witness is not telling the truth. And we are making this application that we have a hunch that this witness, with regard to the
nature of the evidence given that this witness what he said in court is different from what is stated in the notes. Notes constitutes a formal statement. A formal statement can
be in writing. In this case there are notes.
YA: Enough for now. Stand down for a while.
[9.31 a.m.] Stand down.
[9.35 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.54 a.m.] Pihak-pihak keluar dari Kamar Hakim.
[10.02 a.m.]
YA: Panggil saksi. Diingatkan masih bawah sumpah.
Q: You talked about a report yesterday, dated 10th July.
A: Yes.
Q: You said it was dated.
A: As I said it was on the second page.
Q: Are you sure the date is on the second page?
A: The last part [read page 2 of the 10th July report].
Q: What was you waited for?
A: We are waiting for the full laboratory report.
Q: That was obtained? When was it obtained?
A: 11th of July
Q: The three of you make a report dated 13th July, was the laboratory result available at that time?
A: Yes.
Q: You received it on the 11th?
A: Yes.
Q: From whom did you get it.
A: It’s not me who get it directly. It’s received by the Forensic Department and I was called to see it.
Q: You have the benefit of three chemist report?
A: One report from the chemist.
Q: Who is this chemist?
A: Dr. Seah
Q: The one you received on 11th July?
A: Yes.
Q: Only one report?
A: Yes.
Q: No other report was referred? One is enough?
A: The report we received on DNA is …
Q: There’s only one chemist report adverted to in P22? No other chemist report was referred to?
A: No.
Q: You are under oath. No other chemist report was referred to?
A: No.
Q: The third time, no chemist report was referred to?
A: No.
Q: P22, page 3. There are two chemist report there isn’t it?
A: There are 2 components, but only one report. It comes together.
Q: [refer and read chemist report number]. Is that one report?
MY: He had answered it. First he said there is one reports but two components.
KS: …
Q: What are written there are 2 reports.
A: 2 components but one report.
Q: So one report, but two components. So only Dr. Seah’s report.
A: …
Q: Dr. Seah report is what number?
A: The report number one.
Q: Dr. Seah’s report, have you had a copy of that? Look at the top of the page, page 1. Please read it.
A: [read the number of the chemist report]
Q: So there are two reports?
A: I said it is two components.
Q: Look at P22. At the bottom of the page 3. Are both the same?
A: Yes.
Q: Both the same?
A: [read chemist report number]
Q: Are they the same as adverted to Dr. Seah’s report?
A: Yes.
Q: The same reports are referred to?
A: Yes.
Q: Exactly the same?
A: Yes.
Q: Read the report number in Dr. Seah’s report. Is it there in P22?
A: Yes.
Q: Looking at page 3 of P22. [read chemist report number]. They are not the same, isn’t it?
A: Which one is not the same? The number is 08-1 and 08-2.
Q: So one and two is the same? No difference between one and two?
A: Two is not included in the other one.
Q: So there is a difference.
A: Typing error.
Q: Mistake? You said it’s a typing error in P22?
A: We didn’t put the number 1 and 2.
Q: In which report there’s a typing error?
A: No.2 is missing in P22.
Q: It’s a typing error?
A: No. It’s a missing of number 2.
Q: So, there’s a third report?
A: Not a third report. Just a missing number 2.
Q: So, 1 and 2 is not together?
A: It’s missing.
Q: You said just now it’s a typing error.
A: Slip of tongue. No. 2 is missing from P22.
Q: Therefore it’s a difference report at page 3. Is one and two the same?
A: It’s different.
Q: There’s a different report at page 3. Has a different report been referred to in P22 page 3?
A: Which one?
Q: The second one?
A: …
Q: 08-1. More specific. The other one is 08-2. Would it be right? 08-2 is not in P22.
A: The report is the same.
Q: 08-1 and 08-2 is the same?
A: It’s different. The reference number is not stated in P22. But it is a full report.
Q: 08-1 is … should be 08-2.
A: 08-1 is also a report
Q: 08-1 is wrong, isn’t it?
A: It is not wrong, but it is stated at the back of the chemist report.
Q: Chemist report is 08-2, isn’t it? And in Dr. Seah report, [read report number at page 1]. 08-1 is not there?
A: 08-1 is on the last page.
Q: I’m talking about what is at page 3 of P22. There’s actually 3 reports. Wouldn’t it be right? 08-0, 08-1, and 08-2 at ID25 should also be in P22. So, there’s 3 reports
in P22.
A: They are not 3 reports.
Q: There are 3 reports?
A: There are no 3 reports.
Q: Look at the top. 08-0. Is 08-1 anywhere there?
A: Not on the first page.
Q: So what happened to 08-1?
A: It’s on the last page of Dr. Seah’s report.
Q: Where is it?
A: There. Toxicology analysis report. [read]
YA: Let me look at ID25 include.
KS: We are not supplied with that
MY: We’ve photostated 3 set for all parties. We are not making use of it.
KS: How come it’s there? We are not served with it.
MY: We talking about the specimens.
KS: We are not talking about the specimens but what was not supplied to us under S.51A Criminal Procedure Code.
MY: We are not relying on it. At no time the witness is relying on it.
KS: No question of reliance.
YA: The issue is since it is not supplied under s.51A of Criminal Procedure Code, whether it can be now made available. Now it is ID..
KS: Can they check first.
YA: Let’s proceed with other question. Or you want to stand down?
KS: Yes.
YA: Check whether it was served or not. If not served, then the question is whether it is admissible.
[10.26 a.m.] Stand down
[11.07 a.m.] Kedua-dua pihak masuk ke Kamar Hakim.
[11.17 a.m.] Kedua-dua pihak keluar dari Kamar Hakim.
[11.21 a.m.]
KS: Before we adjourn, we were at the documents your Lordship referred to which is technically not admissible because we were not served.
MY: It was not served,
YA: I’ll hear the full submission tomorrow.
KS: No doubt. And we will take submission on both issues together, i.e. the ruling yesterday as to the notes and the admissibility of the toxicology report.
YA: We can proceed with some other aspect with the witness.
Q: P22. As far as P22 is concern, it’s in reference only to 3 chemist report or rather 2?
A: Only one report, but 2 components.
Q: And with regard to Dr. Seah’s report, ID 25, it’s a very crucial report. Do you agree?
A: Yes.
Q: ID25 and P22, there a complete omission of 08-1.
A: 08-1 is there. The one that is not there is 08-2.
Q: I said what is in ID25. You have 08-0. In P22, there is 08-0. In ID25, there is 08-2 but that is missing in P22.
A: Yes.
Q: Likewise 08-1 is missing in ID25.
A: No. 08-1 is there. It is available
KS: We are going back to same thing My Lords. It was not served on us.
Q: Refer to ID25
A: it was one component consisting of 2 reports.
KS: The report with 08-1 is not served. Technically it is not admissible.
KS: …
MY: Chemist report is ID25, but yang belakang itu bukan ID25.
YA: Tomorrow I’ll make my decision. [] Jangan rujuk yang belakang. Kita tak tau sama ada itu admissible atau tidak.
Q: You said DSP Jude was present throughout 3 hours.
A: Yes.
Q: Who does the specimen taking at that time?
A: Specimens collected by us is the specimens is the swabs taken from the body and the anal area, also the blood for toxicology.
Q: How many items was handed to him?
A: 12.
Q: How many items were returned after the analysis?
A: We did not receive any return or any specimen.
Q: What about the results?
A: The result was not given to us until the 11th July.
Q: How many specimens were return? You send 12 specimens for analyisis. Surely you were waiting for the analysis of the 12th specimens. were all returned?
A: I don’t have any specimens returned, only the report was given on the 11th July.
Q: You have the laboratory report which is the result of the specimens which has been tested. And that result was in relation to how many specimens?
A: All specimens that was passed to DSP Jude.
Q: Is it reflected in P22? All 12?
A: in P22, when we put the summary…
Q: On page 3, how many specimens were there?
A: All the specimens.
Q: Where is it reflected in P22?
A: No.3 where we started with the “laboratory analysis as the following”
Q: Page 3, how many specimens are referred to there?
A: All the specimens. That’s why we put the last one to “refer to chemist report”. It’s all there.
Q: Page 3, are all there? The result of the 12 taken specimens sent to the laboratory for analysis.
A: Yes.
Q: That result is in relation to how many specimens referred to In there?
A: It’s not written but we have the report.
Q: Would it be correct you have it so you can make a conclusive report?
A: Yes.
Q: So you have all the material on 13th for you to come to the conclusion on page 4?
A: Yes
Q: So the report of P22 is conclusive, from whatever you requires and have at that time?
A: All the result is conclusive.
Q: You told the court yesterday that SP1 had been examined by another doctor at Pusrawi?
A: Yes.
Q: Are you aware when SP1 was examined by Dr. Osman at Pusrawi it is stated that the patient alleged that his anus is inserted with a plastic?
A: No. I’m not aware of it.
Q: Was SP1 questioned by anyone of you?
A: Yes.
Q: But this was never reveal to you ?
A: No, it was not.
KS: That will be all for now.
MY: What do I do now, YA? Do I re-examine now?
KS: SN Nair will continue.
SN: Can I ask for a stand down for 15 minutes?
YA: I’m sure you know what to cross. Of course I’ll give you 15 minutes, but please do not repeat the cross. You have to be on different aspect. You check what KS has asked first. We cannot have different counsel asking the same question to the same witness. Whatever KS has ask, you don’t touch on it.
[11.38 a.m.] Stand down.
[11.56 a.m.]
Q: You mentioned that you have interview Saiful.
A: I was not the one interviewing. I was there when the other 2 doctors interviewed him.
Q: But you read the note
A: Yes.
Q: Evidence in chief, you mentioned about lubricant
A: Yes. And also during the interview by the 2 doctors.
Q: You heard the interview?
A: Yes. And also from the history mentioned by the 2 doctors. When there is clarification of the history by the 2 doctors, I was there in the room.
Q: P22, and ID 25. Are you familiar with the documents?
A: Yes
Q: Is lubricant a vital piece of information?
A: Yes
Q: Why is it important?
A: It plays important role eg. In case of sodomy you use lubricant it definitely will help the process of sodomy without causing injury.
Q: ID25 and P22. You just said it is very important. Can u show me where in this report that you have ask specifically for a test for lubricant?
A: It is not necessary to make a test for lubricant.
Q: How can it be?
A: Lubricant may be use to make the process easier.
Q: You just mentioned that it was so important. Therefore it is important for you to look for.
A: It is not necessary.
Q: Now you said it is not necessary.
A: It’s necessary to know whether lubrication is use or not. But it is not necessary to test the presence of lubricant.
Q: How would you know if there was or there was not?
A: My job is to check for the presence of any semen or fluid.
Q: I just ask how would you know. My question is very specific.
A: I was made aware and it was rectified by the other 2 doctors.
Q: You are not answering my question. If you have interpreted certain results, you did not or a party to the analysis. Is that correct. you didn’t analyse the sample, did you?
A: I didn’t analyse it.
Q: So, how would you know? That it was there or not? Would you know or not the lubricant was used? You have to do a test. But the test was not done by you, but the chemist. That’s why I need to ask. Did you ask for the test of lubricant? Did you take a swab?
A: We didn’t ask for the test of the lubricant.
Q: You did not? That’s all I want to ask.
A: No.
Q: Lets go into the swab. But I’m sorry My Lord, I‘ve to ask for this question first. I want to ask about the habit of his bowel behaviour.
A: The only question about his bowel was whether he passed motion. That was what was inquire by the two doctors.
Q: But how about many hours before?
A: He mentioned he did not passed motion for 2 days before he came to us.
Q: Did you ask his natural, regular bowel habits?
A: I don’t really ask on that because to me the relevance of it is not important at that time.
Q: Not important at that time? Isn’t that important to ask a man of his natural bowel behaviour?
A: If you think something related to his bowel habits, …
Q: But that is important isn’t it? And normally asked by doctors.
A: The history is not something that you have to ask at the beginning and stop. If the examination is peculiar and related bowel movements, then we ask.
Q: It’s a very common medical practice to get full medical history. Can we agree on that?
A: Yes.
Q: Can we agree on that that the full medical history is incumbent?
A: Depends on what are the complaints.
Q: You said it is a sodomy case.
A: But the important at that time is to rectify if there is a process of sodomy or not. And if there is any finding that is relevant for .e.g. there is any injury, we need to rectify whether there are other things that may cause injury.
Q: Isn’t it not good practice and isn’t it incumbent in medical case that you get the full medical history?
A: Not necessary at the beginning. The history can come at any time during the process.
Q: You said you don’t have to ask?
A: The history continues. If we need we can clarify at any time.
Q: If a patient goes to the toilet 3 days at a time, or 3 times a day, is it not relevant in a sodomy case?
A: It depends on the case.
Q: I put it to you it is relevant. If someone goes to the toilet 3 times a day, there will be nothing.
A: Depends on the examination.
YA: He disagrees. You put it masa submission whether betul or tak betul.
SN: The witness is not answering my question. It is a simple question of medical examination.
YA: Dia tidak setuju.
SN: He said something else.
MY: He said depends on the situation. You are making a general statement.
Q: “Rectal flora”. Can you explain what it is? How many types and the quantity.
YA: In this particular case or generally?
SN: Generally
A: Organism available in normal person where it considers where organ, the house that they live ….
Q: I’m asking what types and what numbers do you find of a rectal flora in human bodies. Not the function of it.
A: There are various types. The one I can remember is echolie, repsolie, enrobics, protious and many more which I can’t remember all. The quantity can be millions, cannot be easily quantified.
Q: And any material that gets in can be taken out immediately, e.g. bacteria.
A: It may works immediately, but I’m not sure. It may take effect immediately what goes in, but how fast it can be acted upon I’m not sure.
Q: What you heard about what he told Dr. Osman he discuss about pain. Did he ever discuss about pain in the anus?
A: It’s a further clarification that was asked to the victim. The reason why he went to Pusrawi, he complaints was pain in the anus.
Q: That was mentioned to you by SP1?
A: When I went through the notes, that’s what I get.
Q: And you never ask him. Of course, you examined him. Did you ask him as well?
A: No. I did not go further on his history.
Q: Did he say the pain was still there?
A: I didn’t ask.
Q: But he never told? He never told you. Did he told anyone of you that he is still in pain?
A: I cannot remember.
Q: IDD16-Pusrawi Report shown. Refer to the first page. Can you read it.
A: [read medical history]
Q: You mentioned that he went to Pusrawi…
A: It’s stated pain initially but cancelled of.
Q: I don’t think it was cancelled of.
A: Oh, the third line.
Q: Let me read it to you….”Pain when passing motion”
A: [doctor reiterated]
Q: You mentioned earlier that he went to Pusrawi and did an examination there.
A: Yes.
Q: If you are aware that there was pain, would you or would you not ask him again before you proceed?
A: Before I start, I will definitely ask the patient whether I can proceed or not.
Q: If the patient complaints about the pain, would you ask him. If there is pain, would you then proceed?
A: If before I start my examination, I’ll explain to the patient I’ll insert something into the bottom part, and if there’s pain I will definitely not proceed.
Q: Are you suggesting that he was not in pain?
A: Yes. I ask whether I can proceed.
Q: Is it not a good practice to ask the question in the first place?
A: Definitely we have to ask.
Q: Did you ask him?
A: Not directly whether he has pain or not. It is the way I explained to him the procedure about discomfort and pain and the patient said it’s okay.
Q: Did you ask him directly?
A: Because during the process or before the procedure we need to ask.
Q: Before you did the procedure, you need to ask, don’t you?
A: I can’t remember. Whether or not I ask him directly I can’t remember. But I did explain. I can’t remember specifically whether I ask or not.
Q: Do you agree it is a proper practice to ask?
A: Yes.
Q: And you explained to him?
A: Yes.
Q: What did you do next? Step by step.
A: I explained the procedure that I want to do, I started of with the ….
Q: I want more specific. His position.
A: I position him in the left lateral on the examination bed and ask… the patient has to face against me, facing the wall so that I would be on the back. The right side of the hand and the body will be on the upper part.
Q: [witnessed referred to an article with a diagram] would it be in that position? Is that a lateral position?
A: Yes. This is a lateral position. The knee needs to go further on the chest. That’s the position I can do the examination easily. It gives good exposure and that is the position the patient will be comfortable during the procedure.
Q: Is there any guidelines you have as a medical officer as to the positioning?
A: There is no guidelines as to the position during the proctoscopy examination. The standard practice usually people will put in a lateral position.
Q: And where did you get this standard practice from?
A: In the process of studying from student to medical doctor. It’s a common practice in hospitals.
Q: Is there any international guidelines?
A: I’m not really aware of it.
Q: Agree that if you do according to your own standard there is a high risk of contamination?
A: I disagree.
Q: This is according to your style and not on the international guidelines.
A: It is something that we practice so many many years.
Q: And there is no guidelines at all?
A: I’m not aware of it. There is no specific positioning when you do proctoscopy examination.
Q: You did this on daily basis, don’t you? And you can’t refer to me any guidelines?
MY: What are you asking?
YA: He already answered that he is not aware.
MY: He already answered.
SN: There must be a guideline somewhere. But he doesn’t know.
MY: There could be.
YA: Kalau you kata ada guideline, then you tunjuk.
Q: Now swabs. How do you go about taking the swabs?
A: As I explained just now, after putting him in the position of left lateral position, and the knee upper to the chest to give us good exposure to do the work. Subsequently, I use the equipment called proctoscope. In this case, plastic proctoscope. Before I put the proctoscope in, I use saline. To my experience if I put the proctoscope without saline or any lubrication it can cause discomfort or any other injury at the anal. And I can’t push it in of the splinter. I’m worried I’m the one who would cause the injury. So I decided to use a Lignocaine gel as a lubricant for my insertion of the proctoscope to the victim. I successfully put the proctoscope in him and I visualize the rectum and with me also there was a sterile swab. It was passed to me and I use that swab to take the sample to the highest place which it can reach in the rectum as the first specimen. And then I swab in circular the highest part and take out the swab and put in the container which is already made available by Dr. Siew. I take 2 samples from the upper part that the most reachable part of the rectum and passed it back to Dr. Siew and he labelled it. And the same goes to the third specimen when I bring the proctoscope out from the patient’s rectum.
Q: How about peri anal swab?
A: Peri anal swab was taken before I proceed with the proctoscopy examination.
Q: Refer P22, page 3, item 1-12. Is this swabs taken in this sequence?
A: Yes.
Q: Who did the swabbing first?
A: Dr. Khairul.
Q: And you when? Second?
A: Yes.
Q: This is exactly the sequence?
A: Yes.
Q: Did you then photographed the swabs?
A: I can’t remember. Photographs were taken but the swabs I can’t remember.
Q: What do you mean?
A: Photographs were taken when I did the examination. The swabs I was not aware. As far as I remember, I passed the swabs to Dr. Siew immediately.
Q: What was the states of the swabs? Were they clean swabs?
A: Definitely. I follow the sterility method that’s supposed to be followed. And it is supposed to be a clean process of taking the swabs.
Q: What was the condition of the swabs after taking?
A: I saw some staining on the swabs in the process of taking out the swabs. I can visualized it.
Q: Are you referring to mucosa?
A: It should not be. Mucosa is the wall of the rectum. We swab material on the mucosa.
Q: You’ve got to swab the wall.
A: Mucosa is the wall. We swab the wall. But what comes out is not mucosa, but the material on the mucosa.
Q: Is photographing swabs a standard procedure? Is it a good thing to do?
A: The swabs are taken for analysis, it is meant for analysis and it will be sent to the laboratory and ought to be ratify.
Q: Are you trained forensic?
A: No.
Q: You said that photographs were taken. What photographs were taken?
A: It is for the findings during examination. Findings on body like scars. The one I remember was at the body. When you have a positive finding, you photographs it.
Q: Positive findings only? Or generally you’ll take the photographs? Other you did not? There would be other scars, e.g. appendicitis.
A: If there is positive findings.
Q: Did you take any photographs?
A: I did not.
Q: Did you know any photographs were taken?
A: Yes.
Q: Were you aware there were earlier proctoscopic examination before you proceed?
A: Yes. On the further clarification on the Pusrawi story. According to the victim, he said he was examined, but whether using proctoscope or not, he did not know.
Q: You did not ask him?
A: I did not ask him directly, but he said some instrument were used.
Q: So, there was some instrument used. Was it instument used to enter his anus?
A: We do not know the details.
Q: What else if not proctoscope?
A: I’m not aware of that.
MY: He doesn’t know that this thing is called proctoscope. If he said it is instrument, it is instrument.
YA: Ask him whether the instrument is proctoscope.
Q: Did he say anything was inserted?
A: He did not say inserted but used.
Q: Did you ask him?
A: I did not ask further.
Q: Is it not logical to ask? If there is something used, surely there should be lubricant introduced inside?
A: Yes.
Q: When you use the proctoscope, that would be a second one, is it? There will be contamination.
A: Without using the proctoscope there will be no way I will know there is penetration towards the anus.
Q: You could’ve asked this question.
A: I did not ask on that part. I was not involved in the history taking.
Q: But he was there.
A: I was made aware something was done to him but to what extent I did not ask.
Q: Why did you not ask?
A: Because at that time I just want to do the examination on the patient. I don’t clarify further. I know in my mind something might have been done onto the patient.
Q: Surely here if something was done, were you aware when you swab there would be contamination or cross-contamination?
A: Yes.
Q: Surely here if something was done, don’t you think it is a good practice to ask first to prevent contamination or cross-contamination?
A: It’s a good practice to ask.
Q: You said pictures were taken. Where in P22 stated that pictures were taken?
A: Of course it was already written on the report so it was not necessary.
Q: Can you produce the photographs?
A: It’s not with me. It’s with the Forensic Department.
Q: Is it available?
A: I need to check it first.
Q: Can it be made available?
A: Yes.
SN: I would like to look at the photograph.
YA: Are you entitled to it? I made a ruling which went up to the Federal Court.
SN: This is in the course of proceeding. What was in the Federal Court is the pre-trial stage. So it may not apply.
MY: As of now, what has been establish is the photographs of the scars. If you want other photographs, what is the relevancy?
SN: Relevant for my expert.
MY: You’ve not establish which part.
Q: Which photographs of the part taken?
A: Example, pigmentation of the scars.
Q: Were there photographs as to the genital area and the anus?
A: No. Just for the scars.
Q: About the high rectal swabs. How high were the swabs taken?
A: The equipment, i.e. the proctoscope’s length is about 6.5 cm. If you can enter completely it in, you can reach the rectal part. Specimens can be taken, after you take out the introducer, you can go as high as 2.5 cm.
Q: How long is a male adult rectum?
A: The rectum is about 12-15 cm.
Q: And the anal canal?
A: 3-4 cm.
Q: In this particular case?
A: If I put the proctoscope of 6.5 cm, I already reached the lower part of the rectum. And I have the swab with a length of 15 cm, and if I take a length of a 15cm swab, I can go 2.5 cm further.
Q: [witness is shown with a proctoscope from the defence] Are they of a standard size?
A: We have the smallest one for kids.
Q: This one, is it the same size you use?
A: Mine was 6.5 cm.
YA: Anybody has a ruler?
[witness is given a ruler and measured.]
A: Yours is longer.
YA: Berapa panjang?
A: This one is about 8 cm. I used 6.5 cm.
Q: You said you went 2.5 cm further up.
A: Yes. From the end of the proctoscope.
Q: What was the condition of the anal? The rectum?
A: The rectum was empty.
Q: Did you record that down?
A: I did not.
Q: Would it not be important to record it down?
A: Not for this case.
Q: Why?
A: Because if it is full, it will be significant because faeces will come down. But no faeces came down from the rectum. So I have opportunity to take without the disturbance of the faeces.
Q: So you got a swab from an empty rectum?
A: Yes.
Q: We go back on the pain. If someone complaints of severe pain and come to you for examination, would you be able to touch him at the anus?
A: I will need to elicit where the pain is and I need to localize the pain.
Q: They can’t even sit down, is it correct? How are you going to examined him?
A: External examination only. We will find the pain and gives us the idea of …
Q: What about the peri anal region? Something you cannot see?
A: Normally we will not put the proctoscope in without a proper anaesthesia.
Q: So, if you have anal pain, you can still do anal examination after giving anaesthesia?
A: Yes.
Q: In this case, there is an element of pain. Yet you put the proctoscope in easily.
A: Like I explained just now, I ask the patient and explained the procedure. I explained to him that he might experience discomfort and pain. But he said okay. And I continue with the examination.
Q: Did you use saline?
A: I use saline to lubricate the proctoscope before I insert it during my first attempt.
Q: If you use saline, will there be any effect of anymic?
A: The amount is small.
Q: You think small amount will not case anymic?
A: Yes.
Q: Are you sure?
A: It is a normal mechanism to prevent us from causing injury. If there is resistance, I will not put it in because I might cause injury.
Q: How many attempt?
A: Only once.
Q: SP1 mentioned of a non-consensual act. Did he mentioned it to you?
A: Yes.
Q: If that is so, usually the anal area will be constricted and therefore it will be difficult to enter?
A: Yes, difficult normally.
Q: Even if you were to do it using gel, it will still be very difficult to do it.
A: Initially we have problems to enter, but in human being there is a physiology process called physiological reflects at the anal canal where the constricting anal will relax.
Q: But that’s a very long process. We are talking about an instance, a very instance constrict reaction. It will not only cause some level of trauma, but also tear and seizure.
A: It may.
Q: Normally if person have pain in the anus, what will be the cause?
A: Can be caused by Lots of factors. One, must consider whether he has infection. That’s a common thing. There can be infection at the peri anal and also the inside. The second one is where you have like disease at the anal rectum where you can have active faeces which can cause a lot of pain. third one is if you have any injury inside, problem with your motion, you have like a fissure that can cause pain also.
Q: Tenesmus?
A: Yes.
Q: What is a tenesmus?
A: It is a feeling or the sensation that you have when you want to defecate. The feeling that you cannot completely defecate.
Q: How long would this pain subside?
A: Depends on the disease.
Q: What about tenesmus? How long will it take?
A: It is very individual. I can’t really say.
Q: 3 days?
A: For example if the injury is very small, it is faster. Less than 24 hours.
Q: Is the rectum sensitive to pain? Generally.
A: No.
Q: Which part of the anal rectum region can cause pain?
A: [recording not clear]
Q: Do you agree that the rectum is where a lot of absorption takes place?
A: It’s not only rectum but it is the entire large area of the colon.
Q: Large bowel?
A: Yes. Not so much of the anal area but the upper rectum.
Q: Because of the absorption of the water, it can cause constipation. It may become dry?
A: The absorption can depend on the body. If you need to conserve fluid your body can retain water. So if your body doesn’t really need much of absorption, it will not absorb so much.
Q: What about constant absorption in terms of organic fluid at the anal?
A: If anything physiology is coming up downwards it absorb. But if it is coming down upwards I’m not sure. It is a process that is already happened in the intestine that has already started before it enters the rectum.
Q: Are you suggesting that the rectum is discriminating here?
A: No. It is a continuous process. It is fully there and the absorption can happen there only.
Q: In some patient, you have to administer certain medication to the rectal area. What are the general pain relief?
A: Paracetamol, voltaren.
Q: What about voltaren? That is one of it? What is the purpose of using that analgesic?
A: It gives you a faster action.
Q: What happened in there is absorption, isn’t it?
A: Yes.
Q: It doesn’t matter isn’t it? As long as it is organic, it will absorb?
A: Like I said, I can’t commit that everything can be absorb.
Q: But, it is organic fluid, not medication. It’s not oil. So can be absorb?
A: It can be absorbed.
Q: Did you do that examination on SP1. Is it not a good practice to do?
A: No.
Q: Why not?
A: Putting my finger in the anus may cause contamination. And second is injury.
Q: Are you using a sterile glove? And you need to know the anus laxity.
A: I can assess the laxity of the anus by putting the proctoscope. We will know whether it is a good tone of the anus laxity.
Q: Is it the best method? It is what I’ve been told.
A: One of the way, but not the best. If you want to assess, the best is using … manufacture That is the best instrument.
Q: This is not the best.
A: Yes.
Q: Assuming that SP1 was in a lot of pain would you be able to examine him with proctoscope?
A: I don’t think I can assess if he was in a lot of pain. The pasm and the splinter may prevent it from entering.
Q: So sensitive that you can’t even touch it?
A: The patient won’t allow you to []
SN: That’s all my question for today. Subject to recall.
YA: You have finish?
SN: Subject to the notes.
YA: Can we start with the re-examination this afternoon?
SN: YB Karpal and accused has some matter in the Parliament. No. YB Karpal has some other matters.
YA: If you want to stop early, we can stop now until 2.00 p.m. Stand down.
[1.20 p.m.] Stand down.
Kedua-dua pihak masuk ke Kamar Hakim dan prosiding ditangguhkan ke hari esok.
Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
PP: Semua hadir
PB: KS, SN, Datuk Param Cumaraswam, (Dato’ CV Prabhakaran, Ram Singh, Marissa, Radzlan tidak hadir)
WB: Zamri Idrus (untuk SP1)
Experts for the defence: Prof. David Wells (Dr. Brian MacDonalds tidak hadir)
AI hadir
[8.58 a.m.]
MY: Kes untuk sambung pemeriksaan balas SP2. Pihak-pihak masih sama.
KS: We have my Lord, with respect we have reservation (as to the ruling yesterday) as to whether your Lordship have really thought what he had in our submission yesterday.
Your Lordship in fact did not understand what we submitted.
YA: I’ve made myself clear yesterday you are entitled to the report on 10th July, but not the notes.
KS: That is already clear. That decision was made by your Lordship previously. In fact, your Lordship has directed for that report to be produce. That is not right at all with respect to the notes.
YA: Can I see both of you in chambers, please.
KS: Yes I think you should.
[9.00 a.m.] Stand down.
[9.02 a.m.] Kedua-dua pihak masuk ke Kamar Hakim.
[9.23 a.m.] Kedua-dua pihak keluar dari Kamar Hakim.
[9.25 a.m.]
SP2 mengangkat sumpah di dlm Bahasa Inggeris.
Q: This is your first case in court, isn’t it?
A: Yes
Q: You are unsure of the evidence and all. You cannot remember, make mistakes etc.
A: It happened two years ago.
Q: The best way is to refer to the notes to refresh your memory. Because you can’t remember a lot of things.
A: I only remember the work I did. Things I did not do, I cannot remember it.
Q: Your mistake goes beyond not remembering.
A: I tend to forget. I am human being.
Q: Yes. Human beings tend to forget and normal human being would want to refer to the notes. Would you not want to refer?
A: I’ve corrected myself that it is a mistake.
Q: That is in point of a mistake. I’m talking in point of you can’t remember. Why are you so reluctant to refer to the notes?
MY: What is your question? Are we having a conversation or what?
KS: I don’t know what he said. Forget about the DPP.
YA: Apa soalan, KS?
Q: Why is you reluctant to refer to your notes?
A: Not reluctant. I think it is not necessary because I still can recall whatever things I did.
Q: Can you recall everything?
A: [witness had no chance to answer]
Q: Can you recall the history you recorded from SP1?
A: Yes.
Q: In P22, the history is in 2 liner, isn’t it?
A: Yes
Q: Can the 2 liner constitute details? Can it be accepted as details? In your view?
A: Yes.
Q: Those are the details in the notes, nothing more. Let me remind you, you are under oath. A lot of things you said which amount to perjury.
MY: It’s not for you to say that.
SN: Prosecution always interfere. Why are you interfering? You are always interfering. []
Q: You are under oath.
A: Yes.
Q: Do you bear the consequences of taking oath?
A: I’ve explained before. 7 years imprisonment.
Q: 7 years. Long time. Let’s get the truth out of you.
KS: YA, we are of the reason to believe this witness is not telling the truth. And we are making this application that we have a hunch that this witness, with regard to the
nature of the evidence given that this witness what he said in court is different from what is stated in the notes. Notes constitutes a formal statement. A formal statement can
be in writing. In this case there are notes.
YA: Enough for now. Stand down for a while.
[9.31 a.m.] Stand down.
[9.35 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.54 a.m.] Pihak-pihak keluar dari Kamar Hakim.
[10.02 a.m.]
YA: Panggil saksi. Diingatkan masih bawah sumpah.
Q: You talked about a report yesterday, dated 10th July.
A: Yes.
Q: You said it was dated.
A: As I said it was on the second page.
Q: Are you sure the date is on the second page?
A: The last part [read page 2 of the 10th July report].
Q: What was you waited for?
A: We are waiting for the full laboratory report.
Q: That was obtained? When was it obtained?
A: 11th of July
Q: The three of you make a report dated 13th July, was the laboratory result available at that time?
A: Yes.
Q: You received it on the 11th?
A: Yes.
Q: From whom did you get it.
A: It’s not me who get it directly. It’s received by the Forensic Department and I was called to see it.
Q: You have the benefit of three chemist report?
A: One report from the chemist.
Q: Who is this chemist?
A: Dr. Seah
Q: The one you received on 11th July?
A: Yes.
Q: Only one report?
A: Yes.
Q: No other report was referred? One is enough?
A: The report we received on DNA is …
Q: There’s only one chemist report adverted to in P22? No other chemist report was referred to?
A: No.
Q: You are under oath. No other chemist report was referred to?
A: No.
Q: The third time, no chemist report was referred to?
A: No.
Q: P22, page 3. There are two chemist report there isn’t it?
A: There are 2 components, but only one report. It comes together.
Q: [refer and read chemist report number]. Is that one report?
MY: He had answered it. First he said there is one reports but two components.
KS: …
Q: What are written there are 2 reports.
A: 2 components but one report.
Q: So one report, but two components. So only Dr. Seah’s report.
A: …
Q: Dr. Seah report is what number?
A: The report number one.
Q: Dr. Seah’s report, have you had a copy of that? Look at the top of the page, page 1. Please read it.
A: [read the number of the chemist report]
Q: So there are two reports?
A: I said it is two components.
Q: Look at P22. At the bottom of the page 3. Are both the same?
A: Yes.
Q: Both the same?
A: [read chemist report number]
Q: Are they the same as adverted to Dr. Seah’s report?
A: Yes.
Q: The same reports are referred to?
A: Yes.
Q: Exactly the same?
A: Yes.
Q: Read the report number in Dr. Seah’s report. Is it there in P22?
A: Yes.
Q: Looking at page 3 of P22. [read chemist report number]. They are not the same, isn’t it?
A: Which one is not the same? The number is 08-1 and 08-2.
Q: So one and two is the same? No difference between one and two?
A: Two is not included in the other one.
Q: So there is a difference.
A: Typing error.
Q: Mistake? You said it’s a typing error in P22?
A: We didn’t put the number 1 and 2.
Q: In which report there’s a typing error?
A: No.2 is missing in P22.
Q: It’s a typing error?
A: No. It’s a missing of number 2.
Q: So, there’s a third report?
A: Not a third report. Just a missing number 2.
Q: So, 1 and 2 is not together?
A: It’s missing.
Q: You said just now it’s a typing error.
A: Slip of tongue. No. 2 is missing from P22.
Q: Therefore it’s a difference report at page 3. Is one and two the same?
A: It’s different.
Q: There’s a different report at page 3. Has a different report been referred to in P22 page 3?
A: Which one?
Q: The second one?
A: …
Q: 08-1. More specific. The other one is 08-2. Would it be right? 08-2 is not in P22.
A: The report is the same.
Q: 08-1 and 08-2 is the same?
A: It’s different. The reference number is not stated in P22. But it is a full report.
Q: 08-1 is … should be 08-2.
A: 08-1 is also a report
Q: 08-1 is wrong, isn’t it?
A: It is not wrong, but it is stated at the back of the chemist report.
Q: Chemist report is 08-2, isn’t it? And in Dr. Seah report, [read report number at page 1]. 08-1 is not there?
A: 08-1 is on the last page.
Q: I’m talking about what is at page 3 of P22. There’s actually 3 reports. Wouldn’t it be right? 08-0, 08-1, and 08-2 at ID25 should also be in P22. So, there’s 3 reports
in P22.
A: They are not 3 reports.
Q: There are 3 reports?
A: There are no 3 reports.
Q: Look at the top. 08-0. Is 08-1 anywhere there?
A: Not on the first page.
Q: So what happened to 08-1?
A: It’s on the last page of Dr. Seah’s report.
Q: Where is it?
A: There. Toxicology analysis report. [read]
YA: Let me look at ID25 include.
KS: We are not supplied with that
MY: We’ve photostated 3 set for all parties. We are not making use of it.
KS: How come it’s there? We are not served with it.
MY: We talking about the specimens.
KS: We are not talking about the specimens but what was not supplied to us under S.51A Criminal Procedure Code.
MY: We are not relying on it. At no time the witness is relying on it.
KS: No question of reliance.
YA: The issue is since it is not supplied under s.51A of Criminal Procedure Code, whether it can be now made available. Now it is ID..
KS: Can they check first.
YA: Let’s proceed with other question. Or you want to stand down?
KS: Yes.
YA: Check whether it was served or not. If not served, then the question is whether it is admissible.
[10.26 a.m.] Stand down
[11.07 a.m.] Kedua-dua pihak masuk ke Kamar Hakim.
[11.17 a.m.] Kedua-dua pihak keluar dari Kamar Hakim.
[11.21 a.m.]
KS: Before we adjourn, we were at the documents your Lordship referred to which is technically not admissible because we were not served.
MY: It was not served,
YA: I’ll hear the full submission tomorrow.
KS: No doubt. And we will take submission on both issues together, i.e. the ruling yesterday as to the notes and the admissibility of the toxicology report.
YA: We can proceed with some other aspect with the witness.
Q: P22. As far as P22 is concern, it’s in reference only to 3 chemist report or rather 2?
A: Only one report, but 2 components.
Q: And with regard to Dr. Seah’s report, ID 25, it’s a very crucial report. Do you agree?
A: Yes.
Q: ID25 and P22, there a complete omission of 08-1.
A: 08-1 is there. The one that is not there is 08-2.
Q: I said what is in ID25. You have 08-0. In P22, there is 08-0. In ID25, there is 08-2 but that is missing in P22.
A: Yes.
Q: Likewise 08-1 is missing in ID25.
A: No. 08-1 is there. It is available
KS: We are going back to same thing My Lords. It was not served on us.
Q: Refer to ID25
A: it was one component consisting of 2 reports.
KS: The report with 08-1 is not served. Technically it is not admissible.
KS: …
MY: Chemist report is ID25, but yang belakang itu bukan ID25.
YA: Tomorrow I’ll make my decision. [] Jangan rujuk yang belakang. Kita tak tau sama ada itu admissible atau tidak.
Q: You said DSP Jude was present throughout 3 hours.
A: Yes.
Q: Who does the specimen taking at that time?
A: Specimens collected by us is the specimens is the swabs taken from the body and the anal area, also the blood for toxicology.
Q: How many items was handed to him?
A: 12.
Q: How many items were returned after the analysis?
A: We did not receive any return or any specimen.
Q: What about the results?
A: The result was not given to us until the 11th July.
Q: How many specimens were return? You send 12 specimens for analyisis. Surely you were waiting for the analysis of the 12th specimens. were all returned?
A: I don’t have any specimens returned, only the report was given on the 11th July.
Q: You have the laboratory report which is the result of the specimens which has been tested. And that result was in relation to how many specimens?
A: All specimens that was passed to DSP Jude.
Q: Is it reflected in P22? All 12?
A: in P22, when we put the summary…
Q: On page 3, how many specimens were there?
A: All the specimens.
Q: Where is it reflected in P22?
A: No.3 where we started with the “laboratory analysis as the following”
Q: Page 3, how many specimens are referred to there?
A: All the specimens. That’s why we put the last one to “refer to chemist report”. It’s all there.
Q: Page 3, are all there? The result of the 12 taken specimens sent to the laboratory for analysis.
A: Yes.
Q: That result is in relation to how many specimens referred to In there?
A: It’s not written but we have the report.
Q: Would it be correct you have it so you can make a conclusive report?
A: Yes.
Q: So you have all the material on 13th for you to come to the conclusion on page 4?
A: Yes
Q: So the report of P22 is conclusive, from whatever you requires and have at that time?
A: All the result is conclusive.
Q: You told the court yesterday that SP1 had been examined by another doctor at Pusrawi?
A: Yes.
Q: Are you aware when SP1 was examined by Dr. Osman at Pusrawi it is stated that the patient alleged that his anus is inserted with a plastic?
A: No. I’m not aware of it.
Q: Was SP1 questioned by anyone of you?
A: Yes.
Q: But this was never reveal to you ?
A: No, it was not.
KS: That will be all for now.
MY: What do I do now, YA? Do I re-examine now?
KS: SN Nair will continue.
SN: Can I ask for a stand down for 15 minutes?
YA: I’m sure you know what to cross. Of course I’ll give you 15 minutes, but please do not repeat the cross. You have to be on different aspect. You check what KS has asked first. We cannot have different counsel asking the same question to the same witness. Whatever KS has ask, you don’t touch on it.
[11.38 a.m.] Stand down.
[11.56 a.m.]
Q: You mentioned that you have interview Saiful.
A: I was not the one interviewing. I was there when the other 2 doctors interviewed him.
Q: But you read the note
A: Yes.
Q: Evidence in chief, you mentioned about lubricant
A: Yes. And also during the interview by the 2 doctors.
Q: You heard the interview?
A: Yes. And also from the history mentioned by the 2 doctors. When there is clarification of the history by the 2 doctors, I was there in the room.
Q: P22, and ID 25. Are you familiar with the documents?
A: Yes
Q: Is lubricant a vital piece of information?
A: Yes
Q: Why is it important?
A: It plays important role eg. In case of sodomy you use lubricant it definitely will help the process of sodomy without causing injury.
Q: ID25 and P22. You just said it is very important. Can u show me where in this report that you have ask specifically for a test for lubricant?
A: It is not necessary to make a test for lubricant.
Q: How can it be?
A: Lubricant may be use to make the process easier.
Q: You just mentioned that it was so important. Therefore it is important for you to look for.
A: It is not necessary.
Q: Now you said it is not necessary.
A: It’s necessary to know whether lubrication is use or not. But it is not necessary to test the presence of lubricant.
Q: How would you know if there was or there was not?
A: My job is to check for the presence of any semen or fluid.
Q: I just ask how would you know. My question is very specific.
A: I was made aware and it was rectified by the other 2 doctors.
Q: You are not answering my question. If you have interpreted certain results, you did not or a party to the analysis. Is that correct. you didn’t analyse the sample, did you?
A: I didn’t analyse it.
Q: So, how would you know? That it was there or not? Would you know or not the lubricant was used? You have to do a test. But the test was not done by you, but the chemist. That’s why I need to ask. Did you ask for the test of lubricant? Did you take a swab?
A: We didn’t ask for the test of the lubricant.
Q: You did not? That’s all I want to ask.
A: No.
Q: Lets go into the swab. But I’m sorry My Lord, I‘ve to ask for this question first. I want to ask about the habit of his bowel behaviour.
A: The only question about his bowel was whether he passed motion. That was what was inquire by the two doctors.
Q: But how about many hours before?
A: He mentioned he did not passed motion for 2 days before he came to us.
Q: Did you ask his natural, regular bowel habits?
A: I don’t really ask on that because to me the relevance of it is not important at that time.
Q: Not important at that time? Isn’t that important to ask a man of his natural bowel behaviour?
A: If you think something related to his bowel habits, …
Q: But that is important isn’t it? And normally asked by doctors.
A: The history is not something that you have to ask at the beginning and stop. If the examination is peculiar and related bowel movements, then we ask.
Q: It’s a very common medical practice to get full medical history. Can we agree on that?
A: Yes.
Q: Can we agree on that that the full medical history is incumbent?
A: Depends on what are the complaints.
Q: You said it is a sodomy case.
A: But the important at that time is to rectify if there is a process of sodomy or not. And if there is any finding that is relevant for .e.g. there is any injury, we need to rectify whether there are other things that may cause injury.
Q: Isn’t it not good practice and isn’t it incumbent in medical case that you get the full medical history?
A: Not necessary at the beginning. The history can come at any time during the process.
Q: You said you don’t have to ask?
A: The history continues. If we need we can clarify at any time.
Q: If a patient goes to the toilet 3 days at a time, or 3 times a day, is it not relevant in a sodomy case?
A: It depends on the case.
Q: I put it to you it is relevant. If someone goes to the toilet 3 times a day, there will be nothing.
A: Depends on the examination.
YA: He disagrees. You put it masa submission whether betul or tak betul.
SN: The witness is not answering my question. It is a simple question of medical examination.
YA: Dia tidak setuju.
SN: He said something else.
MY: He said depends on the situation. You are making a general statement.
Q: “Rectal flora”. Can you explain what it is? How many types and the quantity.
YA: In this particular case or generally?
SN: Generally
A: Organism available in normal person where it considers where organ, the house that they live ….
Q: I’m asking what types and what numbers do you find of a rectal flora in human bodies. Not the function of it.
A: There are various types. The one I can remember is echolie, repsolie, enrobics, protious and many more which I can’t remember all. The quantity can be millions, cannot be easily quantified.
Q: And any material that gets in can be taken out immediately, e.g. bacteria.
A: It may works immediately, but I’m not sure. It may take effect immediately what goes in, but how fast it can be acted upon I’m not sure.
Q: What you heard about what he told Dr. Osman he discuss about pain. Did he ever discuss about pain in the anus?
A: It’s a further clarification that was asked to the victim. The reason why he went to Pusrawi, he complaints was pain in the anus.
Q: That was mentioned to you by SP1?
A: When I went through the notes, that’s what I get.
Q: And you never ask him. Of course, you examined him. Did you ask him as well?
A: No. I did not go further on his history.
Q: Did he say the pain was still there?
A: I didn’t ask.
Q: But he never told? He never told you. Did he told anyone of you that he is still in pain?
A: I cannot remember.
Q: IDD16-Pusrawi Report shown. Refer to the first page. Can you read it.
A: [read medical history]
Q: You mentioned that he went to Pusrawi…
A: It’s stated pain initially but cancelled of.
Q: I don’t think it was cancelled of.
A: Oh, the third line.
Q: Let me read it to you….”Pain when passing motion”
A: [doctor reiterated]
Q: You mentioned earlier that he went to Pusrawi and did an examination there.
A: Yes.
Q: If you are aware that there was pain, would you or would you not ask him again before you proceed?
A: Before I start, I will definitely ask the patient whether I can proceed or not.
Q: If the patient complaints about the pain, would you ask him. If there is pain, would you then proceed?
A: If before I start my examination, I’ll explain to the patient I’ll insert something into the bottom part, and if there’s pain I will definitely not proceed.
Q: Are you suggesting that he was not in pain?
A: Yes. I ask whether I can proceed.
Q: Is it not a good practice to ask the question in the first place?
A: Definitely we have to ask.
Q: Did you ask him?
A: Not directly whether he has pain or not. It is the way I explained to him the procedure about discomfort and pain and the patient said it’s okay.
Q: Did you ask him directly?
A: Because during the process or before the procedure we need to ask.
Q: Before you did the procedure, you need to ask, don’t you?
A: I can’t remember. Whether or not I ask him directly I can’t remember. But I did explain. I can’t remember specifically whether I ask or not.
Q: Do you agree it is a proper practice to ask?
A: Yes.
Q: And you explained to him?
A: Yes.
Q: What did you do next? Step by step.
A: I explained the procedure that I want to do, I started of with the ….
Q: I want more specific. His position.
A: I position him in the left lateral on the examination bed and ask… the patient has to face against me, facing the wall so that I would be on the back. The right side of the hand and the body will be on the upper part.
Q: [witnessed referred to an article with a diagram] would it be in that position? Is that a lateral position?
A: Yes. This is a lateral position. The knee needs to go further on the chest. That’s the position I can do the examination easily. It gives good exposure and that is the position the patient will be comfortable during the procedure.
Q: Is there any guidelines you have as a medical officer as to the positioning?
A: There is no guidelines as to the position during the proctoscopy examination. The standard practice usually people will put in a lateral position.
Q: And where did you get this standard practice from?
A: In the process of studying from student to medical doctor. It’s a common practice in hospitals.
Q: Is there any international guidelines?
A: I’m not really aware of it.
Q: Agree that if you do according to your own standard there is a high risk of contamination?
A: I disagree.
Q: This is according to your style and not on the international guidelines.
A: It is something that we practice so many many years.
Q: And there is no guidelines at all?
A: I’m not aware of it. There is no specific positioning when you do proctoscopy examination.
Q: You did this on daily basis, don’t you? And you can’t refer to me any guidelines?
MY: What are you asking?
YA: He already answered that he is not aware.
MY: He already answered.
SN: There must be a guideline somewhere. But he doesn’t know.
MY: There could be.
YA: Kalau you kata ada guideline, then you tunjuk.
Q: Now swabs. How do you go about taking the swabs?
A: As I explained just now, after putting him in the position of left lateral position, and the knee upper to the chest to give us good exposure to do the work. Subsequently, I use the equipment called proctoscope. In this case, plastic proctoscope. Before I put the proctoscope in, I use saline. To my experience if I put the proctoscope without saline or any lubrication it can cause discomfort or any other injury at the anal. And I can’t push it in of the splinter. I’m worried I’m the one who would cause the injury. So I decided to use a Lignocaine gel as a lubricant for my insertion of the proctoscope to the victim. I successfully put the proctoscope in him and I visualize the rectum and with me also there was a sterile swab. It was passed to me and I use that swab to take the sample to the highest place which it can reach in the rectum as the first specimen. And then I swab in circular the highest part and take out the swab and put in the container which is already made available by Dr. Siew. I take 2 samples from the upper part that the most reachable part of the rectum and passed it back to Dr. Siew and he labelled it. And the same goes to the third specimen when I bring the proctoscope out from the patient’s rectum.
Q: How about peri anal swab?
A: Peri anal swab was taken before I proceed with the proctoscopy examination.
Q: Refer P22, page 3, item 1-12. Is this swabs taken in this sequence?
A: Yes.
Q: Who did the swabbing first?
A: Dr. Khairul.
Q: And you when? Second?
A: Yes.
Q: This is exactly the sequence?
A: Yes.
Q: Did you then photographed the swabs?
A: I can’t remember. Photographs were taken but the swabs I can’t remember.
Q: What do you mean?
A: Photographs were taken when I did the examination. The swabs I was not aware. As far as I remember, I passed the swabs to Dr. Siew immediately.
Q: What was the states of the swabs? Were they clean swabs?
A: Definitely. I follow the sterility method that’s supposed to be followed. And it is supposed to be a clean process of taking the swabs.
Q: What was the condition of the swabs after taking?
A: I saw some staining on the swabs in the process of taking out the swabs. I can visualized it.
Q: Are you referring to mucosa?
A: It should not be. Mucosa is the wall of the rectum. We swab material on the mucosa.
Q: You’ve got to swab the wall.
A: Mucosa is the wall. We swab the wall. But what comes out is not mucosa, but the material on the mucosa.
Q: Is photographing swabs a standard procedure? Is it a good thing to do?
A: The swabs are taken for analysis, it is meant for analysis and it will be sent to the laboratory and ought to be ratify.
Q: Are you trained forensic?
A: No.
Q: You said that photographs were taken. What photographs were taken?
A: It is for the findings during examination. Findings on body like scars. The one I remember was at the body. When you have a positive finding, you photographs it.
Q: Positive findings only? Or generally you’ll take the photographs? Other you did not? There would be other scars, e.g. appendicitis.
A: If there is positive findings.
Q: Did you take any photographs?
A: I did not.
Q: Did you know any photographs were taken?
A: Yes.
Q: Were you aware there were earlier proctoscopic examination before you proceed?
A: Yes. On the further clarification on the Pusrawi story. According to the victim, he said he was examined, but whether using proctoscope or not, he did not know.
Q: You did not ask him?
A: I did not ask him directly, but he said some instrument were used.
Q: So, there was some instrument used. Was it instument used to enter his anus?
A: We do not know the details.
Q: What else if not proctoscope?
A: I’m not aware of that.
MY: He doesn’t know that this thing is called proctoscope. If he said it is instrument, it is instrument.
YA: Ask him whether the instrument is proctoscope.
Q: Did he say anything was inserted?
A: He did not say inserted but used.
Q: Did you ask him?
A: I did not ask further.
Q: Is it not logical to ask? If there is something used, surely there should be lubricant introduced inside?
A: Yes.
Q: When you use the proctoscope, that would be a second one, is it? There will be contamination.
A: Without using the proctoscope there will be no way I will know there is penetration towards the anus.
Q: You could’ve asked this question.
A: I did not ask on that part. I was not involved in the history taking.
Q: But he was there.
A: I was made aware something was done to him but to what extent I did not ask.
Q: Why did you not ask?
A: Because at that time I just want to do the examination on the patient. I don’t clarify further. I know in my mind something might have been done onto the patient.
Q: Surely here if something was done, were you aware when you swab there would be contamination or cross-contamination?
A: Yes.
Q: Surely here if something was done, don’t you think it is a good practice to ask first to prevent contamination or cross-contamination?
A: It’s a good practice to ask.
Q: You said pictures were taken. Where in P22 stated that pictures were taken?
A: Of course it was already written on the report so it was not necessary.
Q: Can you produce the photographs?
A: It’s not with me. It’s with the Forensic Department.
Q: Is it available?
A: I need to check it first.
Q: Can it be made available?
A: Yes.
SN: I would like to look at the photograph.
YA: Are you entitled to it? I made a ruling which went up to the Federal Court.
SN: This is in the course of proceeding. What was in the Federal Court is the pre-trial stage. So it may not apply.
MY: As of now, what has been establish is the photographs of the scars. If you want other photographs, what is the relevancy?
SN: Relevant for my expert.
MY: You’ve not establish which part.
Q: Which photographs of the part taken?
A: Example, pigmentation of the scars.
Q: Were there photographs as to the genital area and the anus?
A: No. Just for the scars.
Q: About the high rectal swabs. How high were the swabs taken?
A: The equipment, i.e. the proctoscope’s length is about 6.5 cm. If you can enter completely it in, you can reach the rectal part. Specimens can be taken, after you take out the introducer, you can go as high as 2.5 cm.
Q: How long is a male adult rectum?
A: The rectum is about 12-15 cm.
Q: And the anal canal?
A: 3-4 cm.
Q: In this particular case?
A: If I put the proctoscope of 6.5 cm, I already reached the lower part of the rectum. And I have the swab with a length of 15 cm, and if I take a length of a 15cm swab, I can go 2.5 cm further.
Q: [witness is shown with a proctoscope from the defence] Are they of a standard size?
A: We have the smallest one for kids.
Q: This one, is it the same size you use?
A: Mine was 6.5 cm.
YA: Anybody has a ruler?
[witness is given a ruler and measured.]
A: Yours is longer.
YA: Berapa panjang?
A: This one is about 8 cm. I used 6.5 cm.
Q: You said you went 2.5 cm further up.
A: Yes. From the end of the proctoscope.
Q: What was the condition of the anal? The rectum?
A: The rectum was empty.
Q: Did you record that down?
A: I did not.
Q: Would it not be important to record it down?
A: Not for this case.
Q: Why?
A: Because if it is full, it will be significant because faeces will come down. But no faeces came down from the rectum. So I have opportunity to take without the disturbance of the faeces.
Q: So you got a swab from an empty rectum?
A: Yes.
Q: We go back on the pain. If someone complaints of severe pain and come to you for examination, would you be able to touch him at the anus?
A: I will need to elicit where the pain is and I need to localize the pain.
Q: They can’t even sit down, is it correct? How are you going to examined him?
A: External examination only. We will find the pain and gives us the idea of …
Q: What about the peri anal region? Something you cannot see?
A: Normally we will not put the proctoscope in without a proper anaesthesia.
Q: So, if you have anal pain, you can still do anal examination after giving anaesthesia?
A: Yes.
Q: In this case, there is an element of pain. Yet you put the proctoscope in easily.
A: Like I explained just now, I ask the patient and explained the procedure. I explained to him that he might experience discomfort and pain. But he said okay. And I continue with the examination.
Q: Did you use saline?
A: I use saline to lubricate the proctoscope before I insert it during my first attempt.
Q: If you use saline, will there be any effect of anymic?
A: The amount is small.
Q: You think small amount will not case anymic?
A: Yes.
Q: Are you sure?
A: It is a normal mechanism to prevent us from causing injury. If there is resistance, I will not put it in because I might cause injury.
Q: How many attempt?
A: Only once.
Q: SP1 mentioned of a non-consensual act. Did he mentioned it to you?
A: Yes.
Q: If that is so, usually the anal area will be constricted and therefore it will be difficult to enter?
A: Yes, difficult normally.
Q: Even if you were to do it using gel, it will still be very difficult to do it.
A: Initially we have problems to enter, but in human being there is a physiology process called physiological reflects at the anal canal where the constricting anal will relax.
Q: But that’s a very long process. We are talking about an instance, a very instance constrict reaction. It will not only cause some level of trauma, but also tear and seizure.
A: It may.
Q: Normally if person have pain in the anus, what will be the cause?
A: Can be caused by Lots of factors. One, must consider whether he has infection. That’s a common thing. There can be infection at the peri anal and also the inside. The second one is where you have like disease at the anal rectum where you can have active faeces which can cause a lot of pain. third one is if you have any injury inside, problem with your motion, you have like a fissure that can cause pain also.
Q: Tenesmus?
A: Yes.
Q: What is a tenesmus?
A: It is a feeling or the sensation that you have when you want to defecate. The feeling that you cannot completely defecate.
Q: How long would this pain subside?
A: Depends on the disease.
Q: What about tenesmus? How long will it take?
A: It is very individual. I can’t really say.
Q: 3 days?
A: For example if the injury is very small, it is faster. Less than 24 hours.
Q: Is the rectum sensitive to pain? Generally.
A: No.
Q: Which part of the anal rectum region can cause pain?
A: [recording not clear]
Q: Do you agree that the rectum is where a lot of absorption takes place?
A: It’s not only rectum but it is the entire large area of the colon.
Q: Large bowel?
A: Yes. Not so much of the anal area but the upper rectum.
Q: Because of the absorption of the water, it can cause constipation. It may become dry?
A: The absorption can depend on the body. If you need to conserve fluid your body can retain water. So if your body doesn’t really need much of absorption, it will not absorb so much.
Q: What about constant absorption in terms of organic fluid at the anal?
A: If anything physiology is coming up downwards it absorb. But if it is coming down upwards I’m not sure. It is a process that is already happened in the intestine that has already started before it enters the rectum.
Q: Are you suggesting that the rectum is discriminating here?
A: No. It is a continuous process. It is fully there and the absorption can happen there only.
Q: In some patient, you have to administer certain medication to the rectal area. What are the general pain relief?
A: Paracetamol, voltaren.
Q: What about voltaren? That is one of it? What is the purpose of using that analgesic?
A: It gives you a faster action.
Q: What happened in there is absorption, isn’t it?
A: Yes.
Q: It doesn’t matter isn’t it? As long as it is organic, it will absorb?
A: Like I said, I can’t commit that everything can be absorb.
Q: But, it is organic fluid, not medication. It’s not oil. So can be absorb?
A: It can be absorbed.
Q: Did you do that examination on SP1. Is it not a good practice to do?
A: No.
Q: Why not?
A: Putting my finger in the anus may cause contamination. And second is injury.
Q: Are you using a sterile glove? And you need to know the anus laxity.
A: I can assess the laxity of the anus by putting the proctoscope. We will know whether it is a good tone of the anus laxity.
Q: Is it the best method? It is what I’ve been told.
A: One of the way, but not the best. If you want to assess, the best is using … manufacture That is the best instrument.
Q: This is not the best.
A: Yes.
Q: Assuming that SP1 was in a lot of pain would you be able to examine him with proctoscope?
A: I don’t think I can assess if he was in a lot of pain. The pasm and the splinter may prevent it from entering.
Q: So sensitive that you can’t even touch it?
A: The patient won’t allow you to []
SN: That’s all my question for today. Subject to recall.
YA: You have finish?
SN: Subject to the notes.
YA: Can we start with the re-examination this afternoon?
SN: YB Karpal and accused has some matter in the Parliament. No. YB Karpal has some other matters.
YA: If you want to stop early, we can stop now until 2.00 p.m. Stand down.
[1.20 p.m.] Stand down.
Kedua-dua pihak masuk ke Kamar Hakim dan prosiding ditangguhkan ke hari esok.
