KUALA LUMPUR: Evidence, even if obtained through unfair means, can be admitted in a trial in the interest of justice.
This was the submission of senior deputy public prosecutor Datuk Mohd Yusof Zainal Abiden who is applying to review the ruling of a trial-within-a-trial last week where a toothbrush, a towel and mineral water bottle, were excluded as evidence in the sodomy trial of Datuk Seri Anwar Ibrahim.
Yusof said the High Court should not be duly concerned how samples of Anwar were collected for DNA profiling as long as it was "relevant and admissible."
"Justice cannot be sacrificed due to technical reasons," said Yusof, adding that it was evidence as long as it was relevant.
Yusof was making his submission yesterday in two separate applications:
- to review the ruling in a trial within-a-trial that the three items collected from a cell at the police headquarters here where Anwar was held overnight as admissible; and
- to compel Anwar to provide his specimen for DNA profiling as provided under the Evidence Act.
Yusof further submitted that the court should seriously consider the application to compel Anwar to provide his specimen so that "the truth could be discovered and more importantly that justice is administered according to the law."
He said judge Datuk Mohamad Zabidin Mohd Diah could not force Anwar to surrender his specimen but the judge could order someone else to obtain them from him.
He said the relevant consideration was whether the DNA obtained from Mohd Saiful Bukhari Azlan could be matched to the accused (Anwar).
"The chief function of a judge is to see that justice is done and a too rigid adherence to set rules may sometimes embarrass the judge in the performance of his duties and defeat the ends of justice," he said.
Yusof said Saiful had given evidence that Anwar sodomised him and ejaculation had taken place.
"As result of medical examination on Saiful, a high rectal swab was taken from the anus of the complainant and analysis by a chemist found the semen of a person known as 'Male Y'," he said.
Yusof said police in the course of investigation secured the three exhibits left behind by Anwar and the DNA profile of these exhibits conclusively matched the DNA profile of 'Male Y'.
He said the DNA profile from 'Male Y' was a crime scene sample.
"It is absolutely sensible for an accused person facing a sodomy charge to exonerate himself and voluntarily offer his DNA sample."
Yusof said the application to compel Anwar to give his specimen on the premise that an innocent person must be acquitted, and a guilty party be held liable for his crime.
On Anwar's arrest outside his home in Segambut on July 16, 2008, Yusof said it was lawful as the accused had made a detour while police were waiting for him at the headquarters as agreed upon earlier.
"CID director (Datuk Seri) Bakri Zinin knew Anwar was supposed to surrender, but the arrest was effected when Anwar detoured and went back home."
Anwar was scheduled to go to the police headquarters immediately after his appointment with a Malaysian Anti-Corruption Commission officer in Putrajaya.
Yusof said no warrant of arrest was required since Anwar's arrest for alleged sodomy then was a seizable offence under the Penal Code.
The defence will make its submission today.
At the outset of the proceedings yesterday, Anwar's lead counsel Karpal Singh complained that certain newspapers had published contents of the prosecution's submission on the application to compel Anwar to give his specimen.
He said these mischievous and scandalous reports amounted to contempt of court.
Yusof replied that there was a case law which allowed for such publication in the interest of the public.
Zabidin then adjourned proceedings to meet the prosecution and defence in chambers.
Later in open court, the judge said he hoped parties would not hinder the ongoing trial or else "they may have to face the music".