Wednesday, 9 March 2011

Sodomy 2: DNA from lock up excluded by Judge, set back to Prosecution Team?

This to me is a rather shocking decision which will reverberate in the corridors of justice for a long time to come.

Sodomy II: Items cannot be tendered as evidence, court rules

KUALA LUMPUR: A High Court has allowed Datuk Seri Anwar Ibrahim's application to exclude three items - a toothbrush, a Good Morning towel and a Cactus mineral water bottle - from being tendered as exhibits in his sodomy trial.

High Court judge Justice Mohamad Zabidin Mohd Diah ruled here in a trial-within-a-trial Tuesday that the items could not be used as evidence in court.

"I find that the DNA sample from the items were obtained by unfair means and (therefore they) are excluded from being part of the evidence," he said. The items, along with a strand of hair, were retrieved from Anwar's lock-up following his arrest and detention in July 2008.

The decision effectively means the testimony from chemist Nor Aidora Saedon from the Chemistry Department is inadmissible.

The chemist had previously testified that the DNA profile taken from the white toothbrush, towel and bottle matched the DNA profile of an unknown person known as 'Male Y', whose semen was found inside the anus of complainant Mohd Saiful Bukhari Azlan.

However, Anwar's lawyer objected the inclusion of the items as evidence, on grounds that his arrest and the means by which these items were obtained by the police, were illegal, hence the trial-within-a-trial.

Anwar, 63, has claimed trial to performing carnal intercourse against the order of nature on Mohd Saiful at a condominium unit in Bukit Damansara, Kuala Lumpur, between 3.15pm and 4pm on June 26, 2008.

Great advances in forensic DNA technology should be accompanied by laws which would allow criminals to be caught and found guilty based on DNA taken from sample given with their consent or taken by ANY fair or unfair means necessary for comparison of DNA samples found at the scene of the crime, to ensure that justice is served and crime does not pay. 

Suspected Criminals cannot and should not get away just because his consent must by law be had legally for his bodily sample to be taken for DNA testing and compared with DNA sample found at the scene of the crime, be it in some poor sex victims brutalised vagina or anus.

In the current sodomy trial the DNA of Male Y found in Saiful's anus matches the DNA samples taken from the towel, tooth brush and water bottle used by the accused in the lockup which the learned judge ruled to be inadmissible as those samples were obtained by unfair means. So we have here a case where the DNA samples from the scene of the crime(Saiful's anus) match with the accused, but this evidence is excluded because it was obtained unfairly. 

Lets see what happens tomorrow, the Public Prosecutors may have something up their sleeve as I understand that they would not appeal the learned judge's decision to exclude the samples. Whatever it is I still have faith in the Malaysian Judiciary, I believe that justice will prevail, I am confident that there would be  other evidences that can be adduced to proof guilt. However, if the defense is convinced that Anwar is innocent, they could just shorten the trial by advising Anwar to submit his bodily sample voluntarily for DNA testing to proof that he is not Male Y. 

The sodomy trial is getting more and more interesting indeed.

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