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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
PB: KS, SN, Ram Karpal, Datuk Param Cumaraswamy, Marissa, (Dato’ CV Prabhakaran, Radzlan tidak hadir)
WB: Zambri Idrus (for complainant)

[9.19 a.m.]
MY: Hujahan bagi 2 permohonan pendakwaan untuk mahkamah yang mulia ini menyemak semula ruling yang dibuat di akhir perbicaraan dalam perbicaraan berkaitan dengan admissibility keterangan berkaitan eksibit yang diambil di sel lokap IPK KL dan juga permohonan di bawah Seksyen 73 dan 165 Akta Keterangan untuk Mahkamah ini memerintahkan DSAI memberikan sampel untuk DNA analisis.

KS: YA, before my learned friend proceeds, there are certain matters of more than [] consent must also involved this court. This is with regard of the mischievous report, scandalous report, contentious report, of NST of

Saturday and this morning, and also in Utusan Malaysia which we have copies for it, before we proceed, may be your Lordship wants to look at it. On Saturday, the report was “Anwar [] to give DNA sample to the court.

“Demonstration”, as reported in today’s newspaper. “Prosecution files application citing from Evidence Act from judges power”.

The first time in legal history of this country this is happening. The submission of the AG in fact on the internet even before my learned friend started up just now. The entire set of the submission, [] it happened all the time, but for my learned friend to leak out his submission to the internet, for i.e in Malaysia Today, in entirety.

First, this court must of itself, there is no point we filing an application, but it must be the consent from the court in which the court must call upon those who have leak this report, those who reported it, and those who taking part in the demonstration, we want you them to be decided as contempt of court. We want that to be decided first, before my learned friend gets on to the submission which already in the public knowledge. I’m shocked that my learned friend took that role. My learned friend is in the hand of politicians now. It is normal to think YA, here, as representing the Public Prosecutor, he is being manipulated. He is allowing himself to be manipulated.

We want a ruling on that, YA. One, on how that report got leak, YA, or rather the submission and the demonstrators, YA, the manner in which the entire issue had been politically exploited. What is with the press, and what the demonstrators in demanding is in fact intermediating this court, intermediating your Lordship to make an order for DSAI to supply his DNA profile. That is contemptuous. We would wish you to make a ruling on that.

We want to see your Lordship in chambers now, before my learned friend proceeds, unless of course if my learned friend wants to show it here, now, himself which we had prepared for. Let me make it very clear to him. But we rather see you in chambers now. At the moment, that would be all.

MY: I will reply to that, My Lord. I would like to think that professionally, throughout this trial, I do my battle in court, not outside. Now, whether or not the public knows that I am making this application, I have stated this in open court last Friday, that we are going to make an application that we have take out the extraction, which upon based on the premise. Now, the causes had been distress as much as the causes [], that when the submission we prepared was published. As lead counsel, I take responsibility on that. But the issue is this, whether or not it is contemptuous.

My Lord, not long ago, in the open court before Komathy J, I complaint about an affidavit filed not referred to in court being published in the newspaper. Of course, if we were to read the Etiquette Rules, under Section 50A that you cannot have it published until that particular paragraph had been referred to in the open court.
But we have a decision by Abdul Wahab J, who said that it’s all right because the public has the right to inform. But now, what about this, it is a submission, only a submission. We are not making an allegation, it is only excerpt on Sarkar on Evidence, which anybody can have access to, and can read. It is nothing will have the effect prejudicing the trial. If the members of the public, one of the parties want to demonstrate, not because of the submission but because of the application and that has nothing to do with the prosecution.

I am a bit sad that my learned friend made accusation that I allow myself to be manipulated by the politician. I will not let myself to be used by anybody. I think as long as this concern, I answered to no one, except to this Honorable

Court. To what extent that this will prejudicing your mind, bearing in mind that this is not a jury trial. I don’t see why en. Karpal can be so emotional about it. I don’t think that it is really anything. It just that the submission go out earlier than it should be. And I pray to your Lordship not to entertain the application by my learned friend to call anybody and cite them to contempt. Thanks.

KS: We reply, Publication of an affidavit, there’s nothing wrong with that. It is a public document. But a publication of a submission, my learned friend just now not denied that it was leak out and must be leak out from him.

Let’s have…

YA: Since just now you indicate that you want to see me in chamber, so can I see both parties in chamber?

KS: Yes.
[9.29 a.m.] Stand down.

[9.32 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.42 a.m.] Pihak-pihak keluar dari Kamar Hakim.

[9.47 a.m.]
YA: With regard to the issue brought by the defence team just now, I only have this to say: the trial is ongoing therefore I remind parties not to do anything that could hinder the smooth running of this trial. Anything done is amount to contempt, those responsible will face it. That’s all.

KS: Much obliged.

MY: Much obliged.

MY: Dengan izin, YA. My Lord, the first application by the prosecution is to urge your Lordship to review your ruling at the end of the trial within a trial with regard to the admissibility of the evidence pertaining to exhibits collected in the cell and evidence of Puan Aidora, the chemist.

My Lord, authorities has held that in order to decide whether there is basis to exclude any evidence the court can look at the evidence both in the trial within a trial and later the evidence adduced during the substantive trial. And the onus is on the party seeking exclusion to prove on the balance of probabilities.

The existence of a basis, for that may I just read some passage from Hanafi b. Mat Hassan v PP [2006] 4 MLJ 134, paragraph 74 at page 170. If I may read my Lord,

“Be that as it may, the party that is seeking to have evidence excluded in the exercise of the discretion of the court has the onus of showing, on the balance of probabilities, that the discretion should be exercised in its favor.”

Two cases were cited, PP v Mohd Farid b. Mohd Sukis and [] v PP. So, if your Lordship remembers the particular page in PP v Mohd Farid b. Mohd Sukis is page 412. What they are saying is that the defence has the onus on the standard of civil case, i.e. balance of probabilities and they have to show more than likely that the basis exist. It is like 51% over 49%. [].

My Lord, as far as the cases goes whether or not the court has the power to review, we have in our bundle 6 cases.

The first case is R v Watson [1980] 2 All ER 293. The question post to the court can be found at page 294, paragraph F. It says,

“The first ground of appeal [] the judge was wrong in law in holding that he had no power to rule on the admissibility of evidence at the end of the prosecution case because he had rule on it in trial within a trial even though there were relevant matters that case in light in the trial that had not done so in the trial within a trial.”

This case concerned caution statement. If I can invite your Lordship to page 293, the headnotes where the Court of Appeal had to say,

“Because a judge retains controls over the evidence to be submitted to the jury throughout a trial, he is not precluded, by the fact that he has already ruled at a trial within a trial in the jury’s absence that a written statement by the accused is admissible in evidence as being voluntary, from reconsidering that a ruling at a later stage of the trial if further evidence emerges which is relevant to the voluntary character of the statement.”

So it says here if it can show that there are now fresh evidence which may help to show to the court that whether or not there could or could not be a basis then the court can always reconsider and then make an appropriate ruling.

The second case is Dato’ Mokhtar Bin Hashim v PP [1983] 2 MLJ 233 at page 236, paragraph D on the left, it would appear that the defence team had applied to the court for review of the question of voluntariness of his cautioned statement.

And from paragraph F downwards to the right hand column, the judge did in fact reviewed and still maintain its ruling.

And page 245 of the report again at paragraph D on the left, the court was invited to review by the defence team of Dato’ Mokhtar Hashim the evidence of Sudin and the the evidence of Datin Norsiah in the light of another new evidence in the form of testimony of Batumallai, ASP Ibrahim and the testimony of YB Mohd Salleh and the RTM film.

Of course on the right hand column the [] paragraph, it would seem that the court after having review the ruling says that,

“In my view the so call new evidence does not alter the situation.”

Meaning, basically it maintains the ruling.

No.3 in the list is PP v Ng Lai Huat & Ors [110] 2 MLJ 427. This is with regard to the admissibility of a certain conversations which my learned friend En. Karpal and En. Shafee Abdullah submitted to be hearsay and should not be admitted. It starts from page 428 paragraph G-I on the right hand column but I would just read page 429 left column the top paragraph. If I can read my Lord,

“I heard briefing submissions made by learned defence counsel Encik Karpal Singh, Encik Shafee Abdullah and the learned DPP Encik Jalaluddin Saleh, at the end of which, after due consideration of the brief submissions made, I

ruled that the utterances in respect of the demands made were admissible as I was of the opinion at that time, that the facts contained in the utterances in respect of demands made by Jimmy Chua to PW13 in the light of the evidence adduced by the prosecution had been shown to be logically relevant under s 10 of the Evidence Act 1950.”

But later the judge reconsidered his ruling at page 430, paragraph F left column,

“I have dealt here at length with the basic principle of hearsay evidence because I am of the view that the demands made by Jimmy Chua to PW13 formed the superstructure of the prosecution’s case. I was wrong to admit the evidence of PW13 in relation to Jimmy Chua’s purported demands in the early part of the prosecution stage. I therefore reverse my earlier ruling on this point and rule that those purported demands are inadmissible for being hearsay.”

This is one case where the ruling was reconsidered by the judge own his own motion, not because there is new evidence emerges. Because he thinks that he could have erred in relying the principle of law applicable to the factual


Then we have the case of R v Allen [1992] Cri LR 297. We can see what was held there at page 298,

“Held, dismissing the appeal, the judge had a discretion whether to readmit the evidence and had exercised it correctly”

If I may invite your Lordship to the commentary there,
“Commentary: This is an unusual case. The judge took the view that the question put to the officer in cross-examination (which concerned an alleged conversation about the turning-out of the accused’s pockets) was unfair in that the officer was left in the position where he had to say “There was indeed a conversation but this was not it.” It would have left the jury with a misleading impression had the prosecution version of the conversation not been out, notwithstanding the judge’s earlier decision to exercise his discretion against admitting it because the safeguards against verballing in Code C has been broken (though this is often a relevant consideration) but the extent to which the admission of the evidence would adversely affect the fairness of the proceedings. In this case the balance of fairness shifted during the trial, and the judge was entitled to reconsider his ruling. [D.J.B.]”

And the last case is R v Hassan [1995] Crim LR 404. The same thing the judge reconsidered his ruling. The relevant page will be page 405. Whether or not the judge has a power to review his ruling is there, either because the judge thinks there are new evidence emerging which may change or alter the character of the evidence that it had before that or before the ruling was made or because the judge is of the view that he may have erred in the application of the


YA, with regard to the first basis of the review, emergence of new evidence, we are saying we have now call in the substantive trial both the IO and the arresting officer. The IO’s and this officer’s evidence would conclusively prove that Dato’ Seri Anwar Ibrahim’s arrest was legal and lawful and that he was informed of the ground of his arrest.

It was the evidence of Supt. Taufik that warrant of arrest was served and acknowledged by Dato’ Seri Anwar Ibrahim and in fact he signed it at the back there. This document, the warrant of arrest now that we have the original which we don’t have for some reason during the trial within a trial, we have it then during the substantive trial and prove it. We produced the original, we showed to the court where Dato’ Seri Anwar Ibrahim signed. And Taufik said he read what was stated in the warrant of arrest. And what was stated in the warrant of arrest was substantially the charge.

This evidence apart from suggestion by my learned friend that did not inform the ground of arrest to Dato’ Seri Anwar Ibrahim was never disputed, not challenged. My Lord, it is trite law that if you don’t challenge, you don’t dispute, you accept. And you don’t challenge it simply means you cannot dispute and you accept. Now what is accepted is that he was read the warrant of arrest and he acknowledges it. Dato’ Seri Anwar Ibrahim through his counsel did not challenge that it was his signature there at the back of the warrant.

The case is not in my bundle my Lord which says if you don’t challenge you accept is the case of Chua Beow Huat v PP [1970] 2 MLJ 29 and Wong Swee Chin v PP [1981] 1 MLJ 212.

Then we have the oral testimony of the IO. First, he said “I faxed a letter asking Dato’ Seri Anwar Ibrahim to surrender himself on 16.07.2008 at 2.00 p.m.” And in that letter it was mentioned that he had applied for the warrant of arrest. This was never disputed, P86. Then he said he has the warrant given to Taufik to be executed. And before the recording of his statement was done, again he told Dato’ Seri Anwar Ibrahim in this term – that there was a report,

Travers Report by Saiful Bukhari who had alleged that he was sodomised by Dato’ Seri Anwar Ibrahim between 3.00-4.00 p.m.at 11-5-1 Kondominium Desa Damansara. This was never disputed.

YA, we made, I mean we try to tender the statement recorded pursuant to S.112, only the first 4 pages. I’m not sure whether YA would agree to have that part of the statement marked as exhibit. I know the law says that 112 statements is no admissible except for the purpose of contradicting or impeaching but here what was being admitted is not the statement. It is just before the statement was recorded. Be that as it may, before we showed the IO the statement he had already testified with regard to what he told Dato’ Seri Anwar Ibrahim.

KS: I wish to interrupt my learned friend. But it is marked as an ID. If it is an ID, it can’t be referred to in submission. It is trite law. It is not an exhibit. []

MY: YA, I mean that is the purpose of my submission, to have it converted to exhibit because..but I’m aware of the law.

YA: Proceed.

MY: Now this positive assertion by this witnesses and if your Lordship want to compare what happened during the trial within a trial, Dato’ Seri Anwar Ibrahim did not denied. Here, he did not challenge it. During the cross-examination he did not denied that he was informed by the IO before the recording of the statement. Neither he denied he was served and signed the warrant of arrest.

Now, if we were to sit as a civil court having the defence to prove on the balance of probability that he was not informed of the ground of arrest obviously they have failed. In fact this is one instance where in the civil case the defence can submit there is no case to answer, they don’t have to adduce evidence. Whether you called the evidence rebuttal or defence, they don’t have to. Because even by their own evidence they have not been able to show to the court that they have material which the court can comfortably act upon in order for the court to “Yes, you were not informed” by their own concession during trial within a trial. Now the positive evidence unchallenged would put all doubt to rest that he was in fact informed of the warrant of arrest.

How much he was informed, may I refer again to the case of Chong Kim Loy v Timbalan Menteri Dalam Negeri, Malaysia & Anor [1989] 3 MLJ 121. I may invite your Lordship to page 122, holding no.6,

“For the purposes of the first limb of art 5(1) of the Constitution, all that an arrested person is entitled to demand for is to be informed, at the earliest possible moment, not in detail and not necessarily in strict legal terminology, but only in general terms, by virtue of what power he is being arrested and of the grounds of his arrest. But enough must be made known to him to afford him the opportunity of giving an explanation of any misunderstanding or of calling attention to other persons for whom he may have been mistaken with the result that further inquiries may save him from the consequences of a false accusation.”

In fact this is what Cristie v Leachinsky [1947] AC 573 [] is all about. It says when you arrest a person you must tell him why so that he can say, for example if you say he is involed in a murder of Ahmad on a certain date and time, he can say “Look, you are mistaken. I was somewhere else at that time.” So the whole idea telling him in general term what offence he has committed, and when and where is to enable him to explain himself, if he is accused of murder he can say “Look, I was acting in defence.” In fact, at the time of arrest it was the first time an accused is afforded with the opportunity to put up his defence, alibi, explanation and If he could not deny the fact that he did stab somebody but he did it in self-defense.

So that is as far as Chong Kim Loy is concerned, we have satisfied. The prosecution has satisfied that. So if the court is with me that the arrest is lawful then it is only right for your Lordship to reconsider your ruling and say because the arrest is lawful, the subsequent detention is lawful and whatever obtained pursuant to that has not been obtained by unfair or illegal means.

Now, the question may be post is there one or two arrest? If both lawful or one of them is lawful and if one of them is lawful which one of them?

If your Lordship remember, Supt Taufik arrested this accused, Dato’ Seri Anwar Ibrahim 200 meters from his house and he was not acting under the instruction of the IO, he was acting under the instruction of Dato’ Bakri. The instruction is, if Dato’ Seri Anwar Ibrahim did not go direct to IPK he must be arrested. It would appear from that statement that Bakri must have known about the existence of the letter faxed by Jude to En. Nair that he is required to be there by 2.00 p.m. It is the basis there. And he was arrested by virtue of S.377B of the Penal Code, a sizable offence.

He said subsequently he was given the warrant and he served it which we think is a mere formality. But supposing that it is not so, there is a second arrest at the instance of the IO and this is what we have to say, Jude testified that on 15.07.2008 not only he applied for warrant of arrest, he also faxed the letter asking Dato’ Seri Anwar Ibrahim to surrender himself by 2.00 p.m. the next day and that he had applied for a warrant of arrest. And it is in his testimony he said at the time when he applied for the warrant of arrest he has reasonable suspicion under S.23 of Criminal Procedure Code in that he had the report, he had the statement of the complainant, he had viewed the CCTV, he had the medical report, and he had the chemist report by Dr. Seah that those materials are more sufficient for him to form an opinion that he has more than reasonable suspicion to effect an arrest under S.377B against Dato’ Seri Anwar Ibrahim, in which he did.

When Dato’ Seri Anwar Ibrahim was brought to IPK whether legally or illegally he had the warrant of arrest executed. He had the warrant executed and the warrant was explained and then before the recording of the statement he was again informed Dato’ Seri Anwar Ibrahim. If this constitute the second arrest, then this second arrest is lawful and the detention of Dato’ Seri Anwar Ibrahim was made pursuant to this arrest. It is our contention both are lawful.

But in the event there was two arrests and the first one is unlawful, the second is lawful.

In the case of Ooi Ah Pua v OC Criminal Investigation, Kedah Perlis [1975] 2 MLJ 198 where the complaint there to the court is whether or not when the person is denied his right to counsel, he can have his detention to be declared null and void. Before the Federal Court, the Federal Court says there is no issue before the court. The issue is whether or not he was informed of the ground of arrest. If I may read the particular paragraph at page 201 starting from para H on the left, this is what the Federal Court has to say,

“So much therefore regarding the issue as framed by Mr. Karpal Singh. But with all due respect, I do not think that that is the real issue before the learned judge and before us. This being an application under section 365 of the

Criminal Procedure Code and under article 5(2) of the Constitution, with respect I agree with Encik Lamin for the respondent that the real issue is a simple one, namely this, whether or not Ooi was lawfully detained. If so, the court should not release him; if not, the court should release him. As to this the affidavit evidence is very clear. There was an armed robbery, a seizable offence, and there was a reasonable suspicion that Ooi was concerned in that offence, and Inspector Amiruddin not only had power to arrest him without a warrant (section 23(i)(a) of the Criminal Procedure Code), he was also under a duty to do so. By the time this application was filed on January 5, 1975, Ooi had been detained by order of a magistrate, and so there was no question of his detention being unlawful.”

So we are saying if the court says the first arrest was unlawful, by the time the ruling is obtained he was already arrested pursuant to a valid legal powers for a sizable offence for which the IO had reasonable suspicion. It is true my

Lord it was not denied by En. Judy that there was communication between him and En. Nair but that was before he decided that Dato’ Seri Anwar Ibrahim was a suspect. By 15.07.2008, he said that “Dato’ Seri Anwar Ibrahim was a suspect, I had all the materials and I applied for the warrant of arrest”.

So whatever communication or understanding between the parties has superseded by this event, hence the faxed letter, the letter faxed to En Nair. As far as s 15 is concern, it doesn’t matter how the arrest is effected, one of it when the suspect submitted himself. If Dato’ Seri Anwar Ibrahim had any intention to go to IPK that day obviously then he was submitting himself to a notification by the IO that he was going to arrest him. So it doesn’t make the communication between the IO and En. Nair did not make the arrest less than lawful.

That is the first part of the submission, emergence of new evidence.

Now I go to the second basis, the Ng Lai Huat basis. While in Ng Lai Huat the judge on his own motion reconsiders it because he thought he was wrong, here the prosecution is urging your Lordship to review because we perceived that there is a misapplication of the principle of the law when your Lordship make the ruling.

YA, it all started with Kuruma where the Privy Council held that the test of admissibility is relevancy. If evidence is relevant then it must be admissible no matter how it was obtained. Subsequently in 1980 the House of Lords in R v

Sang modified it a little bit.

If I may refer your Lordship to R v Sang [1980] AC 402 to what the House of Lords held is this at page 431 paragraph A,

““Does a trial judge have a discretion to refuse to allow evidence-being evidence other than evidence of admission-to be given in any circumstances in which such evidence is relevant and of more than minimal probative value”.

The House of Lords says there are 2 situations when the court can exercise discretion to exclude admissible evidence. No.1, where its prejudicial effect outweighs its probative value. No.2, a judge has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. Your Lordship has no choice, you cannot exclude it just because it was obtained by improper or unfair means except save with regard to admission, confession, and evidence obtained from the accused after commission of offence. This is something like R v Payne. The court is not concerned with how the evidence is obtained, meaning other than these three categories of evidence the court shouldn’t be concerned how it was obtained. So long as it its relevant, it is admissible.

Now, no.1 is the facts of our case shows that there was an admission? This is not an admission. Is it a confession? No, it’s not a confession. Is it obtained from the accused himself? No. In another part of the judgment it says if of the search from his premises but if it was obtained from the accused himself or his premises then it must be confessionary in nature. Confession is something that by itself would show the guilt of the accused without more.

What is the evidence that we collected among other thing which is relevant was toothbrush, Good Morning towel and the bottle. Was it collected from the accused? It wasn’t. Was it collected from his premises? They were not. The evidence itself would show that this is not the time where the court has a discretion to exclude. The nature of the evidence itself doesn’t fall within the category of evidence that this Honorable court has a discretion to exclude.

If I may read page 435 of the judgment, paragraph B-H. Actually it starts from the previous page but if I can just read the second paragraph of page 435,

“It is interesting in this connection to observe that the only case that has been brought to your Lordship’s attention in which an appellate court has actually excluded evidence on the ground that it had been unfairly obtained (Reg. v .

Payne [1963] 1 W.L.R. 637) would appear to fall into this category the defendant, charged with drunken driving, had been induced to submit himself to examination by a doctor to see if he was suffering from any illness or disability, upon the understanding that the doctor would not examine him for the purpose of seeing whether he were fit to drive. The doctor in fact gave evidence of the defendant’s unfitness to drive based upon the symptoms and behavior in the course of that examination. The Court of Criminal Appeal quashed the conviction on the ground that the trial judge ought to have exercised his discretion to exclude the doctor’s evidence. This again, as it seems to me, is analogous to unfairly inducing a defendant to confess to an offence, and the short judgment of the Court of Criminal Appeal is clearly based upon the maxim nemo debet prodere se ipsum.”

“In no other case to which your Lordships’ attention has been drawn has either the Court of Criminal Appeal or the Court of Appeal allowed an appeal upon the ground that either magistrates in summary proceedings or the judge in a trial upon indictment ought to have exercised a discretion to exclude admissible evidence upon the ground that it had been obtained unfairly or by trickery or in some other way that is morally reprehensible; though they cover a wide gamut of apparent improprieties from illegal searches.”

The court has never interfered when the Magistrate or the High Court admitted the evidence on the ground that it was obtained unfairly and by unlawful means. This ground is not sufficient to have the evidence excluded.

“Nevertheless it has to be recognized that there is an unbroken series of dicta in judgments of appellate courts to the effect that thre is a judicial discretion to exclude admissible evidence which has been “obtained” unfairly or trickery or oppressively, although except in R v Payne [1963] 1 W.L.R. 637, here never has been a case in which those courts have come across conduct so unfair, so tricky or so oppressive as to justify them in holding that the

discretion ought to have been exercised in favour of exclusion.”

The next following sentence is important, YA.

“In every one of the cases to which your Lordships have been referred where such dicta appear, the source from which the evidence sought to be excluded had been obtained has been the defendant himself or (in some of the search cases) premises occupied by him;…”

Either than admission and confession, the evidence must be obtained from the accused or his premises.

“…and the dicta can be traced to a common ancestor in Lord Goddard’s statement in Kuruma v The Queen [1955] A.C. 197 which I have already cited. That statement was not, in my view, ever intended to acknowledge the existence of any wider discretion than to exclude (1) admissible evidence which would probably have a prejudicial influence upon the minds of the jury that would be out of proportion to its true evidential value; and (2) evidence tantamount to a self-incriminatory admission which was obtained from the defendant, after the offence had been committed, by means which would justify a judge in excluding an actual confession which had the like self-incriminating effect.”

My lord, before I read the other part of R v Sang, may I now take your Lordship to the case Ajmer Singh v PP [1987] 2 MLJ 141, a Singapore case where R v Payne was considered. The factual of the case are the same in Ajmeer and R v Payne. Starting from 2nd paragraph of page 6 where R v Payne was reffered to and the short facts were reproduced. Then I go to the fourth paragraph,

“I come now to the submission on lack of consent on the part of the appellant in giving a specimen of his blood to PW1. In R. v. Trump, the Court of Appeal held that the appellant had not given his consent because he gave it in response to a warning to him. But the Court of Appeal also held that “Giving the blood was very close to making an admission…”

I skip that my Lord. Then in the six lines from below, this is what the Singapore court has to say

“But, even assuming that no consent had been given, the appellant would still have to overcome the hurdle as to whether the evidence amounted to an involuntary confession or admission of a nature that renders the evidence inadmissible. In Pakala Narayana Swami v Emperor (1939) 66 IA 66; AIR 1939 PC 47 Lord Atkin said that “A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence.”

Here, if there had been any confession or admission, it was merely to the fact that the appellant had an excessive amount of alcohol in his blood and not to the fact that he was unable to control his scooter whilst under the influence of drink.

So in Ajmer he was charged for driving while under the influence. Blood was taken from him without his consent and whether or not that amounted to confession the court had to say nothing, it only shows there is alcohol in his blood. That’s all, his blood.

With regard to the 3 exhibits, zero. it doesn’t come within what Lord Atkin term it to be confession or S.17 term it to be confession. It doesn’t say anything. It merely say that Dato’ Seri Anwar Ibrahim must have drink from this bottle, that Dato’ Seri Anwar Ibrahim had used this towel, that Dato’ Seri Anwar Ibrahim must have used this toothbrush. It does not relate him to the offence. We still have to have to have this hurdle to say that “Look, the DNA here matches the DNA sample found in the sperm cells in the anus.” apart from showing by oral evidence through Saiful that this offence actually took place. So at any rate my Lord, what we are saying not only the evidence collected was not collected from the accused himself or his premises is not confessionary in nature. If it is not, the your Lordship has no discretion to exclude it. Your discretion is not triggered.

If I may now invite your Lordship to the judgment of R v Sang at page 433 with regard to the probative value and the prejudicial effect,

“Recognition that there may be circumstances in which in a jury trial the judge has a discretion to prevent particular kinds of evidence that is admissible from being adduced before the jury, has grown up piecemeal. It appears first in cases arising under proviso (f) of section 1 of the Criminal Evidence Act 1898, which sets out the circumstances in which an accused may be cross-examined as to his previous convictions or bad character. The relevant cases starting in 1913 with Rex v. Watson (1913) 109 L.T. 335 are conveniently cited in the speech of Lord Hodson in Reg. v. Selvey [1970] A.C. 304, a case in which this House accepted that in such cases the trial judge had a discretion to prevent such cross-examination, notwithstanding that it was strictly admissible under the statute, if he was of opinion that its prejudicial effect upon the jury was likely to outweigh its probative value.”

Then it refers to similar facts. If I may read 434,

“…but in Harris v. Director of Public Prosecutions [1952] a.c. 694, 707, Viscount Simon, with whose speech the other members of this House agreed, said that the discretion to exclude “similar facts” evidence should be exercised where the “probable effect” (sc. prejudicial to the accused) “would be out of proportion to its true evidential value.

That phrase was borrowed from the speech of Lord Moulton in R v Christie. That was neither a ‘previous conviction’ nor a ‘similar facts’ case, but was one involving evidence of an accusation made in the presence of the accused by the child victim of an alleged indecent assault and the accused’s failure to answer it, from which the prosecution sought to infer an admission by the accused that it was true. Lord Moulton’s statement was not confined to evidence of inferential confessions but was general in its scope and has frequently been cited as applicable in cases of cross-examination as to bad character or previous convictions under the Criminal Evidence Act 1898 and in ‘similar facts’ cases. So I would hold that there has now developed a general rule of practice whereby in a trial by jury the judge has a discretion to exclude evidence which, though technically admissible, would probably have a prejudicial influence on the minds of the jury, which would be out of proportion to its true evidential value.”

KS: I wish to interrupt. My learned friend has gone through it earlier.

YA: He has the right.

KS: He has gone into it earlier.

YA: Those are last time. This is now. Let him submit.

KS: Waste of judicial time and taxpayers money.

MY: “Up to the sentence that I have emphasised there is nothing in this passage to suggest that when Lord Goddard CJ spoke of admissible evidence operating ‘unfairly’ against the accused he intended to refer to any wider aspect of unfairness than the probable prejudicial effect of the evidence on the minds of the jury outweighing its true evidential value…”

With regard to that holding no. 1 what they are saying is this there may evidence which will not prove the charge, similar facts and all other evidence. While technically admissible, the court has to consider whether or not prejudicial effect outweighs the probative value. But that kind of evidence is not the evidence we seek to admit. It doesn’t belong to the same class of bad character, previous convictions or similar facts. It is direct evidence, almost.

It is corroborative in the sense that it confirms. It helps to confirm identity of the perpetrator of the crime not by directly relevant.

So, if I may then just refer to two cases Hanafi b. Mat Hassan v PP [2006] 4 MLJ 134 and Wan Mohd Azman bin Hassan v PP [2010] 4 MLJ 141. But before that YA, in submission we refer to O’Brien [2005] 2 AC 534 at page 16 of that report where it says when you talk about the probative value that the probative value outweigh the prejudicial effect, the evidence we adduced must be so probative, it is so supportive of the fact that we are supposed to prove. In that sense then the discretion does not apply.

The case of Hanafi b. Mat Hassan v PP [2006] 4 MLJ 134, holding no 6. This is where blood specimen was taken from the accused while he was handcuffed. The Court of Appeal in that case at page 136 of the report, holding no. 6 says,

“(6) The court has no discretion to refuse to admit evidence on the ground that it was illegally obtained if it is relevant. Therefore, the evidence relating to the blood sample taken from the accused was admissible as it was relevant even if it was taken without his consent (see para 68).”

The judgment proper is at page 168 paragraph 64.

“(e) The use of the blood sample taken from the accused
[64] It was the stand of the defence that the blood samples taken from the accused for the purpose of conducting the DNA tests were not taken voluntarily. It was argued that even though no evidence was adduced by the accused on this issue the evidence relating to the blood sample must be excluded in the exercise of the discretion of the court as the available evidence shows that he was handcuffed at the time thereby rendering the taking of the blood sample involuntary.”

And it says on what case the objection was anchored. And at page 169, paragraph 68 the judge says,

“It is therefore clear that the court has no discretion to refuse to admit evidence on the ground that it was illegally obtained if it is relevant. This rule applies, inter alia, to cases involving illegal searches, evidence obtained by secret listening devices or by undercover police operations. It also applies to evidence obtained by unfair procedures. Thus in R v Apicella (1986) 82 Cr App R 295, the English Court of Appeal upheld a rape conviction based upon the results of tests carried out on a specimen of body fluid obtained from the accused for medical reasons whilst he was on remand. In AG for Quebec v Begin (1955) SCR 593, it was held that even if a blood sample was obtained from the accused without his consent it is admissible to prove intoxication. It follows that the evidence relating to the blood sample taken from the accused is admissible as it is relevant even if it was taken without his consent.”

The next paragraph where they refer to R v Sang still exclude that if it operates unfairly which phrase same from the judgment to make only this, when the prejudicial effect outweighs the probative value.

The case of Wan Mohd Azman bin Hassan v PP [2010] 4 MLJ 141is also in point, it is a Federal Court decision at page 150, paragraph 16,

“[16] Also the propriety of obtaining the evidence with the use of an agent provocateur would not impair the fairness of the trial itself as this passage from Lord Diplock’s judgment in R v Sang [1980] AC 402 suggests. His

Lordship said:

For the fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused’s guilt it is no part of his judicial function to exclude it for the reasons.

[17] And Lord Salmon, in the same case stated the same proposition in a more forceful manner when he said:

A man who intends to commit a crime and actually commits it is guilty of the offence whether or not he was persuaded or induced to commit it, no matter by whom. This being the law, it is inconceivable that, in such circumstances, the judge could have a discretion to prevent the Crown from adducing evidence of the accused’s guilt — for this would amount to giving the judge the power of changing or disregarding the law. It would moreover be seriously detrimental to public safety and to law and order, if in such circumstances, the law immunised an accused from conviction.”

And at page 153 under the heading of Similar Facts Evidence, Discovery And The Agent Provocateur’s Evidence, the court was urged to conduct a balancing exercise. So the court says it may apply to similar facts, it may apply to S.27 but it doesn’t apply to agent provocateur. So my submission is that it doesn’t apply to our case.

My learned friend had on occasion cited the case of Goi Ching Ang which is not the authority of our case. Goi Ching Ang is a case of S.27 at the most it may amount to a confession which even R v Sang agreed if that confession is obtained by inducement, threat or promise or by trick the court has the discretion, which is not the case here. []. Goi Ching Ang merely restates the law, nothing more.

Applying the law into the facts, we are saying the arrest was lawful and justified in law. Therefore all evidence was properly and lawfully obtained. In the event the arrest of the Respondent deemed to be illegal and evidence improperly obtained, it does not trigger the exercise of the court’s discretion for the following reasons:
(i) The evidence is not in the categories envisaged by R v Sang. It is not admission, confession or obtained after commission offence, from the accused himself or his premises. The evidence is not confessionary in nature.
(ii) Its prejudicial effect if any does not outweigh its probative value. It shows very strongly probative of the Respondent guilt.
(iii) Its not even a sample taken from accused himself which under normal circumstances can be taken without his consent.

For this, we are referring to s.5 of the Criminal Procedure Code. There was in evidence that Dato’ Seri Anwar Ibrahim was taken to the hospital to have blood specimens taken. Under the law, we can take hair sample. S.5 of Criminal Procedure Code read together with S.63 of PACE because S.5 says if there is no procedure in Malaysia then we apply the law of England.

We then refer your Lordship to the case of PP v Sanassi [1970] 2 MLJ 198. In Sanassi, the three elections does not originates from here. The three elections was found in the laws of England. By virtue of S.5 of the then Ordinance the court said we applied that law here, the three alternatives so the same thing.

What s.63, we have it in our bundle when it comes to non-intimate samples we can take it without the consent provided that he is in the custody for a sizable offence. Here Dato’ Seri Anwar Ibrahim was in custody for that kind of offence.

If I may, tab 12 of my bundle page 1689, the bottom part of the page.

“Other samples
63. (1) Except as provided by this section, a non-intimate sample may not be taken from a person without the appropriate consent.”
(2) consent to the taking of a non-intimate sample must be given in writing.
(2A) A non-intimate sample may be taken from a person without the appropriate consent if two conditions are satisfied.
(2B) The first is that the person is in police detention in consequence of his arrest for a recordable offence.
(2C) The second is that –
(a) He has not had a non-intimate sample of the same type and from the same part of the body taken in the course of the investigation of the offence by the police, or
(b) He has had such a sample taken but it provided insufficient.”

So as far as the prosecution is concerned when he was taken to the hospital that night both the conditions have been satisfied for only non-intimate sample. For intimate sample, that is a different matter. We will leave it for submission. But in this particular case we didn’t take anything from him. Zero. No sample was taken from this person. If the law can recognized that we can take it without his consent, what more this obtaining of contact DNA or traced DNA from the bottle, from the towel, and from the toothbrush.

It was our submission that the evidence pertaining to the collection of the exhibit in the lock-up cell and the result of the DNA test should be admitted. It is the right and lawful thing to do. I rest my submission.

YA: The second application?

MY: Can we stand down for 10-15 minutes before I start with my second application?

YA: So we proceed sekali?

MY: Yes, I’ll make application and my learned friend will respond to both applications.

YA: Stand down for a while.

[10.52 a.m.] Stand down.

[11.28 a.m.]
SN: YA, Mr. Karpal is now going to the other court, but we have no problem with the submission to proceed.

MY: Dengan izin, YA. This is an application by the Public Prosecutor for an order that this Honorable Court direct the respondent, who is the accused in case to give a non-intimate or intimate sample of himself (the accused), as this Honorable Court deems fit, with a view for this court to compare the DNA of the accused with the DNA sourced from semen found in high rectal swab and low rectal swab obtained from the anus of SP1 and given the nomenclature ‘male Y’ by the chemist (SP5).

We make this application based on Section 73 and Section 165 either individually or read together.
Section 73, if I may read in our bundle, tab 2:
“(1) In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction of the court to have been written or made by that person, may be compared by a witness or by the court with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any purpose.
(2) The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by that

(3) This section applies also, with any necessary modifications, to finger impressions.”

Before we proceed on why Section 73 may be used for that purpose, YA, may I just say that Section 73 is a provision that enable the court to direct any person, and any person as we go to the authorities later, includes the accused present in the court to give specimens, handwriting or finger impression. Section 73 does not give the power to the court to compel the accused to give the specimen or the finger impression. The powers under Section 73 is invoked only when the court feels it is necessary in the interest of justice to make such comparison for the purpose of coming to a conclusion of fact along with other evidences.

In this case, we have the evidence of Saiful and few other evidences which may point to the accused but the presence of the semens of the anus if which compared may have the court for the purpose of coming to a conclusion of fact along with other evidence. Whenever the accused is directed to either give [], he may decline because of the principle that an accused cannot be a witness against himself but it can be taken or seized from him.

But for this purpose YA, may I invite you to tab 14 page 1316 onwards, Sarkar’s Commentaries on Evidence:
“In another group of cases it was held that the words “to be a witness against himself” should be given a liberal interpretation and that under a search warrant or any other kindred process of law, documents or articles or any other incriminating evidence can be seized from the custody of the person of the accused by force against his will, such as stolen articles, blood-stained clothes etc, but he cannot be compelled to produce them himself. For the same reason, an accused person can be taken to a doctor for the examination of injuries on his body so as to ascertain whether he could not have participated in an occurrence. He can also be taken to an identification parade to enable the prosecution witnesses to observe his physical features with a view to identify him. The taking of thumb impression or signature of the accused does not stand on a different footing from the seizure of documents or articles or other facts of evidence from the person of the accused. Though he cannot be compelled to produce such evidence, it can be taken or seized from him.

In the same way, it has been held that taking the finger impression of the accused under the magistrate’s order under the Identification of Prisoners Act is not violation of Article 20(3). The principle of such decisions is that the constitutional inhibition prohibits compulsion or force in obtaining oral or written testimony. But truth is not endangered where the compulsion is used for the exhibition of the body or of any identifying marks on it, for purposes of comparisons with evidence produced in the trial. Similarly, the finger prints, foot prints, palm prints, photographs of the accused, for purpose of comparison with those found at the scene of the crime do not lose their probative character whether they have been obtained voluntarily or involuntarily. In principle resort to compulsion requiring the accused to exhibit his body for purposes of establishing the identity is not objectionable, because by doing so he is not being bound to give false testimony. In fact he does not testify at all and the physical facts which are notice speak for themselves. The permissibility of identification by finger, palm and foot prints and the taking of the accused’s pictures after arrest, blood and urine test, use of emetic stomach pump or similar device for extracting ornaments swallowed etc. requiring suspect or accused to wear or trying on particular apparel or requiring defendant in a criminal case to exhibit himself or perform physical acts during trial and in the presence of the jury are not hit by the immunity conferred by Art 20(3). Even if it is assumed that the accused’s thumb impression was taken by the police for comparison by compulsion or use of force.”

Page 1317:-

“ It was thought that the exhaustive judgment in Sharma’s case as to the meaning of the words “to be a witness against himself” will settle the law as to the limits of the protection under art 20(3) but that hope was soon dispelled as on the question whether a direction on the accused to give his finger impression or specimen writing, or to compel him to give such impression or writing, infringed art 20(3), the different High Courts interpreted Sharma’s case in different ways and in a few case two benches of the same High Court came to different conclusion. There was therefore a confusion of law as to what the expression to be a witness against himself meant or what constituted violation of art 20(3).”

Page 1318:-

“The Supreme Court by a majority held that:-
3. Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of body by way of identification are not included in the expression ‘to be a witness’ in art 20(3). It must be assumed that the constitution makers were aware of section 73 Evidence Act or ss 5 and 6 of the Identification of Prisoners Axr, 33.
5. The majority of eight judges held that to be a witness means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. But mere production of some material evidence whether documentary or otherwise which is not his statement conveying his personal knowledge relating to the charge against him does not come within the expression ‘to be a witness.”

Page 1319:-

“Under the Supreme Court decision, however giving thumb impressions or impressions of foot or palm or specimen writings or showing parts of the body by way of identification are not included in the expression to be a witness in art 20(3). In other words, when an accused who is asked to give his finger impression does not voluntarily obey the order he may be compelled to do so and it would not be an infringement of art 20(3). Further, s 5 and 6 of the Identification of Prisoners Act authorizes a magistrate to allow measurements or photographs to be taken if he is satisfied that it is expedient for the purpose of any investigation or proceeding under Criminal Procedure Court to do so. The principle of Supreme Court decision appears to be that finger or palm expressions or any mark on scar on the body is a fact of evidence which the accused carries on his body and to force him to display such evidence for purpose of identification is not included in the expression ‘to be a witness’ and does not therefore infringe art 20(3). As observed by the Supreme Court: “When an accused person is called upon by the court or any other authorities holding an investigation to give his finger impression or signature or a specimen of his handwriting, h is not giving any testimony of the nature of a personal testimony. The statement or refuse to make any statement but his finger impression or handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character”.

As already observed, para 2 of sec 73 unquestionably authorizes the court to direct the accused to give specimen writing or finger impression but it appears that directing an accused to give his finger impression under sec 73 has been equated by the Supreme Court in S v Kathi Kalu, with calling up on him to give specimen writing. There is however a clear distinction between the two. If a direction to give finger impression is met with refusal, it is permissible under the law to compel the accused to give it. In this operation the accused remains passive and it is the person taking the impression who does an act. But when the accused refuses to give specimen writing, it is not possible to get it from him as to write is to do “a positive volitional evidentiary act” and unless he is willing to co-operate, he can never be made to write”.

Page 1320:-

“The following observations of that most eminent American Judge Mr. Justice Holmes in Holt v US are pertinent and shed much light:-
“Another observation is based upon an extravagant extension of the 5th amendment of the American constitution. A question arose as to whether the blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him. It is objected that he did this under the same duress that made his statement inadmissible and that it should be excluded for the same reasons.

But the prohibitions of compelling a man in a criminal court to be witness against himself is a prohibitions of the use of physical or moral compulsion to extort communication from him, not an exclusion of his body as evidence when

it may be material. The objecting in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. Moreover, we need not consider how far a court would go in compelling a man in exhibiting himself. For when he is exhibited whether voluntarily or by order, and even if the order goes too far, the evidence if material is competent.”

In several other American cases, it has been held that the prohibition against compelling an accused person to be witness against himself is a prohibition of the use of coercion or physical or moral compulsion to extort oral or written communications and not of exposure of his body or the taking of finger impression or photograph for the purpose of identification.”

Now, YA, from the reading of this commentary it is obvious that your Lordship to not do is to ask him to surrender the sample but the court can order someone else to take the sample from him because the provision with regard to a person not to be a witness only applies to oral communication and anything in writing from him and not otherwise.

The question is why are we relying on sec 73? From specimens of finger impressions, expert can determine the author of a particular writing or the person who handled any particular object thus [] the perpetrator of a crime.

Similarly, DNA profile helps to identify the perpetrator of a crime, but if I may invite you to para 26 at page 12 of our submission, page 12:-

[26] In the first chapter of his book under the heading – Introduction to criminal DNA, Andrei Semikhodskii wrote:
“Solving a crime is a difficult task. The challenge faced by criminal investigator, though simple, is not trivial – correctly to identify the perpetrator and bring him/her to justice. This can be achieved in a number of ways, by examining eyewitness accounts and physical evidence, DNA evidence has possibly the highest probative value of all, on par with fingerprints evidence in identifying an individual.”

At para 20, page 11:-

[20] “In legal practice, examination of DNA has two major applications – non criminal and forensic applications. The main difference between forensic and non-criminal DNA analysis is the purpose of testing. The purpose of forensic DNA testing is to identify whether a crime scene sample matches a DNA from the suspect.”

My Lord, it would appear then, that a body sample taken from suspect or accused from which DNA profile can be obtain come from the same class of evidence of specimens of handwriting, finger prints impression or urine.

So section 73 should then be construed to extent and to exclude bodily sample whether intimate or non intimate.

We also relying on sec 165, tab 3 of our bundle. Section 165, YA [] invoked by this Honorable Court with the object to discover, to obtain proper fruit of relevant facts. So what are relevant facts in this case? Whether or not the sperm cells, the DNA had been obtained to match DNA of the accused? Court must invoke his power to give truth to both parties and justice is to be done. Now, if I may invite you to our written submission at page 8:-

[11] It was commented at page 2488 in Sarkar’s Law of evidence on the principle and scope of sec 165 of the Evidence Act that “this is a very important section. The judge may exercise all the privileges and powers which he has under the Act or any statute of interrogating witnesses and requiring the production of evidence and yet they may be insufficient to elicit the truth or to get all the facts necessary for a proper decision. The chief function of a judge is to see that justice is done between parties, and a too rigid adherence to set rules may sometimes embarrass the judge in performance of his duties and defeat the ends of justice.

At page 9:-

[12] It was also said at p 2489 that “The position of a judge is not that of a moderator between contestants in a game with no inclination to interfere till the violation of its rules. He has a much higher duty to perform. He has to see not only the proceedings are conducted strictly according to law, but to administer justice and to find out the truth. He must therefore according play an active part and it is not only his right but it is his duty to ask the witness any question in any manner, the answer to which in his opinion would aid in the discovery of truth”.

[13] It had also been said that “Counsel seek only for their client’s success; but the judge must watch that justice triumphs”. The object of the exercise of this power of interrogation must be to discover or to obtain proper proof of relevant facts”. With this object, the judge may also direct the production of any document or thing.”

Page 10:-

[15] In this case we have the evidence of the complainant, SP1 that he was sodomised by the accused. It was in evidence that ejaculation took place. SP1 had informed various persons immediately after the incident. SP1 gave a clear and vivid description as to how he was sodomised to Dr. Razuin who took down his history at HKL. All these facts have not been seriously challenged by the defence.

[16] As a result of the medical examination of SP1, the swabs taken from the anus of the complainant. Both the swabs were analyzed by the chemist, SP5 and it was found to contain semen of a person known as ‘Male Y’.

[18] In fact, the prosecution had submitted earlier before this Honorable Court in one of the numerous interlocutory applications filed by the accused that the existence of semen in the anus of a complainant would show conclusively that anal penetration had taken place.

[19] In the course of the investigation, the police managed to secure 3 exhibits left behind by the accused in a cell where he was detained overnight and the sole DNA profile of these exhibits conclusively matched the DNA profile of

Male Y but this Honorable Court had refused to admit these 3 crucial exhibits tendered by the prosecution for purpose of matching.

At page 11:-

[21] In the present case, apart from the oral evidence of the complainant, SP1, we have a DNA profile sourced from semen of a person known as Male Y found in the swabs taken from the anus of the complainant. This is a crime scene sample.

[22] It is not only logical but absolutely sensible for an accused person facing a charge of carnal intercourse against the order of nature, in order to exonerate himself, to voluntary offer his DNA sample for matching with that of the crime scene sample.

At page 12:-

[23] Be that as it may, this Honorable Court is clothed with the power and duty under sections 73 and 165 of the Evidence Act to direct the accused in this case to give either a non-intimate or intimate sample of himself for purpose of matching with the crime scene in order that the truth may be discovered and more importantly that justice is administered according to law.

[25] It is in the interest justice that this application is premised upon that an innocent person must be acquitted and a guilty one be held liable for his crime.

At page 13:-

[27] Pursuant to the above explanation, it is incumbent upon this Honorable Court to direct the accused herein under Section 73 of the Evidence Act read together with Section 165 of the same act to provide a non-intimate or intimate sample of himself for purpose of comparing with the sample taken from the crime scene.

[28] We could do no better than to hearken to the explanation of author Andrei Semikhodsii that:
“The criminal justice system now relies heavily on DNA-based evidence. All over the world, thousands of people have been convicted of various crimes with the help of DNA evidence, and hundreds of wrongfully convicted people have exonerated. DNA analysis has become an indispensable police tool, as it allows unambiguous identification of the criminal by traces of biological material left at the crime scene and the acquittal of innocent suspects, based on DNA evidence. The importance of this silence but faithful witness in fighting crime cannot be underestimated.”

At page 14:-

[29] It is exactly with this purpose in mind i.e. in discovering the truth that an innocent accused be acquitted and a guilty one be convicted which render the application of section 73 of the Evidence Act to be so cogent and crucial in the circumstances of this case.

YA, Section 73 say you exercise your power when there is dispute. Here, clearly there is dispute of DNA profile in Saiful’s anus, so now we asked to compare. We asked the court to invoke your power under Section 73. My Lord, it is true that there had been no application like this before. But just because no application made before, it doesn’t mean that it cannot be done, or else, sec 73 and 165 would be just a [] of the law. Both the sections are there to serve the purpose. And the purpose is exactly what we [] today.

Conclusion of page 14.

[30] With justice paramount in this case, we respectfully urged this Honorable Court to direct the accused, DSAI to provide a non-intimate or intimate sample of himself, as this Honorable Court deems fit, for the purpose of comparing with the DNA profile of the semen sample found at the crime scene, in this case from high rectal and low rectal swab that taken from the complainant.

Either individually, or read together Sec 73 and 165, give this court such power [] to make order that we pray for.

I’m supposed to take you to certain authorities but the authorities here are those mentioned in the commentaries, but if I may quickly run through, the first case is the case of Nga Tun Hlaing, tab 4 page 115. If I may just read the headnotes:-

“Section 73 specifically directs that any person present in court may be directed to make a finger impression for the purpose of comparing it with any finger impression alleged to have been his. There is no exception made in favor of an accused person. Sec 342 Criminal Procedure Court does not prohibit the taking of the finger impressions from an accused.”

The second case, Emperor v Ramrao Mangesh Burde and Others, tab 5 page 313, the court held:-

“I should only like to add in conclusion that although there is nothing illegal in the accused having been made to write by the police officers of the rank I have referred to, especially when the charge against the accused is one of forgery, as there is nothing either in the Criminal Procedure Court or in the City of Bombay Police Act which prohibits it, it would be generally desirable in the interests of the administration of justice in a criminal trial that for the purposes of comparison the accused should be made to write or to give his finger impression in court under the direction of a Magistrate or a Judge. If the accused refuses to write or to give his finger impression in court, an adverse inference may even be drawn against him in respect of the charge on which he is brought to trial.”

Case number 6, Golam Rahman and others v The King is same with case number 1.

Case number 7, Ram Swarup, if he refuses to comply, whatever condition that invoke should be invoke.

Case number 8, Prakhar Singh & Anor says that to do all this is not something that is objectionable.

Case number 9, Subayya Gounder v Bhoopala Subramaniam, page 002/007:-

“The permissibility of identifications by finger palm and footprints and the taking of accused’s pictures after arrest, blood and urine tests, use of the emetic stomach pump or similar device for extracting ornaments swallowed etc requiring suspect or accused to wear or trying on particular apparel or requiring defendant in criminal case to exhibiting himself or perform physical acts during trial and in presence of jury are not hit by the Immunity conferred by Art 20(3) and do not offend that due process clause”.

Case number 11, Ranjit Ram v State page 456:-

“An order directing an accused person to furnish his fingerprints or specimens does not amount to testimonial compulsion and does not contravene the provisions of art 20(3) of the constitution.”

Case number 12, Pali Ram first page 2nd para:-

“In addition to section 73, there are two other provisions resting on the same principle, namely section 165 of Evidence Act and section 540 Criminal Procedure Court (equivalent to sec 256 of our Criminal Procedure Court). What between them invest the court with wide discretion to call and examine and one as a witness, if it is bona fide of the opinion that his examination is necessary for a just decision of the case.”

Also [read] page 16 of the report:-

“It was argues on behalf of Pali Ram accused…that the power of the court is limited to the extent only where the court itself is of the view that it is necessary for its own purpose to take such writing in order to compare the words or figure alleged to have been written by such person and that this power does not extend to permitting one or the other party before the court to take such writing for the purpose of its evidence or its own use. It was further argued that Section 73, Indian Evidence Act did not entitle the court to assist a party to the proceedings. It entitled the court only to assist itself for a proper conclusion in the interest of justice. I have applied this test to the present case before me. It is true that here it is the prosecution which has made this request. But the observation contained in this ruling cannot be stretched to the extent, the defence wants me to do it. Ex, PW-21/F was stated by Tekchand to be in

Pali Ram’s handwriting when he made statement before the police. In his statement during the committal proceedings he resiled from it. This document is undoubtedly a vital link. It has an important bearing on the case as Pali Ram himself happens to be an accused. In this peculiar situation it becomes necessary to take recourse to the court’s power under sec 73 in the interest of justice and to ask Pali Ram to give specimen handwriting (to have it examined by handwriting expert) and then to decide about it. Under these circumstances, I think it fit to allow the request of the prosecution in this regard”.

So YA, the same applies here. There is dispute that on the allegation, even we have the semen in the anus, and the other party it was not happened that way. So we have obtained the necessary evidence but it was ruled not to be admissible. We have the situation where the evidence was there but for technical reason it was ruled not to be admissible. To satisfy the court to do justice to the witness and the accused; that we made this application. And we would seriously urge the court to consider this application. The principle of section 73 which includes and should extent to DNA evidence to allow us to direct the accused to take necessary sample for the purpose of comparison so that the truth could be discovered. Thanks.

KS: My Lord, second application made by my learned friend, as conceded by him that it is unprecedented.

YA: We cannot hear you from behind. You must come here in front because the microphone is here.

KS: As I stated earlier, the second application is unprecedented, it is considered by my learned friend. My learned friend is going on the presumption that the DNA evidence here is conclusive. What we need is time, to reply in detail to my learned friend’s submission, so that your Lordship would not be in a position []. So could we have until tomorrow, YA?

YA: Datuk Yusof?

MY: I have no objection.

YA: Ok, we start at 9 am tomorrow.
[12.09 p.m.] Adjourn.
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