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Tuesday, November 24, 2009


‘No sign of any penetration,’ says Anwar’s lawyer

KUALA LUMPUR: Opposition Leader Datuk Seri Anwar Ibrahim’s sodomy charge cannot stand as medical reports do not suggest that there was any penetration, the High Court heard yesterday.

Counsel R. Sivarasa, in his submissions for Anwar’s application to quash his sodomy charge, said that in Anwar’s case, penetration was the main and core ingredient of the alleged offence, and medical evidence was required beyond reasonable doubt.

He said the reports from Hospital Pusrawi had stated that, based on the medical officer’s observation, there was “no bleeding, no piles, no tear, no discharge, no abcess, no injuries” and that complainant Mohd Saiful Bukhari Azlan’s anus was “clean and normal”.

“When asked ‘Is there penetration?’, three doctors there replied that there were ‘no conclusive findings to suggest penetration to the anus’.

“In this case, medical reports from both Pusrawi and Hospital Kuala Lumpur show without a doubt that penetration was non-existent. This, in itself, is sufficient for the court to quash the charge as it is clear that no offence has been committed,” he submitted.

He said while there was no expressed provision in the Criminal Procedure Code for striking out a charge, the court had the inherent power to consider and grant such an application.

Sivarasa also submitted that the prosecution had malicious intent and was not impartial, as Attorney-General Tan Sri Abdul Gani Patail, whom Anwar alleged fabricated evidence in his 1998 “black-eye incident”, was still involved in the sodomy trial now.

Abdul Gani had signed a transfer certificate to move Anwar’s case from the Sessions Court to the High Court.

On March 10, Anwar, 62, claimed trial to sodomising his 24-year-old former personal aide at a condominium in Bukit Damansara here on June 26 last year.

Earlier this year, he filed the application to set aside his sodomy charge under Section 377B of the Penal Code, and that he be acquitted and discharged.

In his reply, Solicitor-General II Datuk Mohamed Yusof Zainal Abiden, who led the prosecution, said that according to the DNA report by the chemist, there were two male DNA specimens present from the DNA samples taken from Mohd Saiful, which supported his claim that he was sodomised by Anwar.

“The doctors said that there were ‘no conclusive findings to suggest penetration to the anus’. They didn’t say that there was no penetration,” he added.

He also submitted that while the courts had the inherent power to strike out the charge, it should be used very sparingly, and only when there was a clear miscarriage of justice.

“We submit that this is not a proper case where the court should exercise its inherent powers to quash or stay the charge,” Mohamed Yusof said.

Justice Mohamad Zabidin Mohd Diah fixed Dec 1 to rule on the application.

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