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Monday, April 11, 2011



Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

PP: Semua hadir kecuali NH
PB: KS, SN, Datuk Param Cumaraswamy, Ram Karpal, Marissa
AI hadir

[8.59 a.m.]

MY: YA, kecuali Dato’ Nordin, pihak-pihak masih sama.

YA: At the end of trial within a trial I had ruled the toothbrush, the Good Morning towel and plastic bottle and evidence related to those items especially on the evidence relating to the DNA analysis conducted on those items could not be tendered as evidence. There was no doubt even at that time those evidence were relevant and admissible but I have excluded them on the ground that they were obtained through unfair means.

The decision to exclude those evidence was based on the evidence available at that time especially the evidence tendered during trial within a trial. It was made without the benefit of the evidence from the Investigating

Officer who was not called as witness in the trial within a trial. The evidence tendered in court at that time without the investigating officer tend to support the defence assertion that the accused was illegally arrested and his subsequent detention in the cell was nothing but to deploy designed to collect the DNA samples by trick.

Now in the light of the evidence adduced from the Investigating Officer and the Arresting Officer during the main trial, it is clear that the arrest of the accused are in fact lawful. His subsequent detention in the cell was indeed lawful and for a lawful purpose. Thus, the detention of the accused in the cell could not longer said to be done for the purpose of obtaining DNA evidence from him by trick as alleged by the defence.

In those circumstances, the court has no discretion but to allow those items collected from the cell and all evidence related to those items tendered as evidence. Therefore, I now ruled that those items and all evidence related to those items are admissible and could be tendered as evidence. My earlier ruling regarding this matter are accordingly reversed.

With regard to the application to compel the accused to give DNA sample, the learned DPP relied on Section 73 and Section 165 of the Evidence Act.

Section 73(2) specifically talks about directing any person who write any words or figures for the purpose to enabling the court to compare those words or figures with any word or figures to be written by that person. Section 73 (3) extended it to include finger impression.

After reading this section again and again, I find no amount of judicial creativity to justify extending this clear provision to also include DNA sample. Therefore, the application by the learned DPP to compel the accused to give his

DNA sample has to be rejected on the simple ground that there is no legal provision empowering the court to do so. That’s all.

MY: Much obliged. YA, as a matter of confirmatory I have to recall two witnesses just to tender the exhibits marked before as ID.

YA: But the exhibits can be tendered as P, kan?

MY: Yes, but I don’t want any problem to arise later because we have tendered it but for some reason they are marked as ID. I don’t have the witnesses here, YA. Can we do it tomorrow? I just want to call Aidora and Amidon.

Just to tender. Because today seems to be everything to be okay but I cannot afford any problem to arise later because there might be some challenges to it.

YA: So you cannot proceed with the case today because you don’t have those witnesses?

MY: Yes, I want to call the witnesses. After that I think it will take me about 20 minutes for both witnesses. And then I will close the case. Tomorrow, YA.

YA: Mr. Karpal?

KS: I have to be in the Court of Appeal in the morning. But that’s alright.

YA: Just to mark as exhibit. 9.00 a.m. tomorrow.

[9.04 a.m.] Adjourned.
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