Nota: 12 perkara UTAMA yang menjadi intipati Penghakiman Mahkamah Rayuan pada 11 April 2014. 8 hujahan penting yang menyokong dan memperkukuhkan pandangan Hakim Perbicaraan yang lepas dan 3 hujahan yang memperbetulkan kekhilafan Hakim Perbicaraan ketika membebaskan Anwar pada 9 Februari 2012. 3 hujahan ini (perkara 10, 11 dan 12 dalam posting ini) menjadi asas kenapa Anwar telah dibuktikan bersalah kerana meliwat Saiful.
11 April 2014
BALIA YUSOF HJ WAHI
HAKIM MAHKAMAH RAYUAN
HAKIM MAHKAMAH RAYUAN
MOHD ZAWAWI SALLEH
HAKIM MAHKAMAH RAYUAN
Teks penuh boleh dibaca melalui pautan di bawah:-
1. Sengaja menangguhkan perbicaraan
 Based on the above facts, it would be stretching it too far to say that this appeal has been disposed of in haste. It should be noted that most of the applications to adjourn were at the instance of the respondent who had filed one application after another. It can be seen that the first hearing of the appeal was fixed on 22.7.2013 by which time both parties ought to have filed their respective written submissions. However, only the appellant filed its written submissions dated 19.7.2013 together with the bundle of authorities. The court received the respondent’s first written submissions only on 12.2.2014 and another written submissions on the first hearing day i.e. 6.3.2014.
 It is in the public interest that criminal appeals be dealt with by the courts as soon as possible. Dilatory practices bring the administration of justice into disrepute. As is often pointed out, “delay is a known defence tactic”. It is not proper for a counsel to routinely fail to expedite hearing an appeal solely for the convenience of his client. Nor will a failure to expedite be reasonable, if done for the purpose of frustrating an opposing party to obtain rightful redress. Counsel should not intentionally use procedural devices to delay proceedings without any legal basis.
2. Kredibiliti Saiful kukuh, terdapat bukti yang menyokong kenyataan Saiful, integriti dan rantaian bukti tidak terputus dan terjejas
 PW6 successfully developed DNA profiles from the tooth brush, the ‘Good Morning’ towel and the mineral water bottle, but not from the hair. These DNA profiles matched each other, indicating that the DNA identified originated from the same source. PW6 then compared the DNA profiles she obtained with that obtained by Dr Seah (PW5). PW6 found the DNA profiles developed from the tooth brush, the ‘Good Morning’ towel and the mineral water bottle matched the DNA profile of ‘Male Y’. Thus, this indicates that the DNA identified originated from a common source. PW6 prepared a report (exhibit P62).
 It is on the basis of the aforesaid oral and documentary evidence that the learned trial judge decided that the prosecution had succeeded in establishing a prima facie case against the respondent. In so doing, the learned trial judge had regard to the following:
(a) that the credibility of PW1 was intact;
(b) that there was corroboration of the testimony of PW1;
(c) that the integrity and chain of evidence in relation to the exhibits was neither broken nor compromised.
3. Nota Dr. Osman bin Abdul Hamid mengenai kemasukan objek plastik ditambah kemudian
 We have perused the evidence of DW1 and the record of his examination dated 28.6.2008 (exhibit ID D16). DW1 agreed that the notation in the report regarding assault by introducing plastic into the anus was added later. We have also perused the medical report dated 30.6.2008 (ID 16A) and find no mention was made about any assault with a plastic. But what can be determined from the testimony of DW1 is that PW1 made a complaint to him about being sodomised by a VIP.
4. Kredibiliti Saiful kukuh dan tindakan Saiful tidak membuat laporan lebih awal dapat difahami
 We have scrutinised the evidence of PW1 carefully and we are in full agreement with the learned judge when His Lordship found that it was not difficult to understand why PW1 had acted in the way that he did although he insisted that he did not consent to the respondent’s act. PW1 was a young man of 20 years old, employed by the respondent as his personal assistant who had to deal directly and personally with the respondent. PW1 idolised the respondent since young. The respondent was generous to PW1 and had presented PW1 with a suit less than two months after he started employment with the respondent. PW1 was also given preferential treatment when he was allocated a room in his office over his more senior colleagues.
 The learned judge found that PW1 had previously complained about similar acts to various people and in fact his uncle, Ezam and Mumtaz, had discouraged him from lodging a police report. Some of these persons were even sceptical of PW1’s complaint.
 We further agree with the finding of the learned trial judge on the credibility of PW1 and there was nothing improbable about his evidence. His Lordship found that the evidence of PW1 was reliable.
 It is trite law that credibility of witnesses is the domain of the trial judge. We are satisfied that the learned trial judge had sufficiently considered and appreciated the evidence of PW1 and His Lordship is entitled to make a finding on his credibility.
5. Bukti yang menyokong bahawa Saiful dan Anwar berada di tempat yang sama pada waktu kejadian
 As regards the issue of corroboration of the evidence of PW1 on the factum of penetration, the learned trial judge found that the evidence of PW1 that he was at the condominium was amply corroborated by the evidence of Ibrahim bin Yaacob (PW24), who testified that on the day in question, he had directed PW1 to deliver an envelope to the respondent at the said condominium. This evidence was further corroborated by the image of PW1 arriving at the condominium at 14.47.44 which was recorded by the CCTV. The recording showed PW1 had arrived in a motor van bearing registration number WPK5925 which was registered in the name of the father of PW1’s fiancée. PW1 was recorded taking the lift and another CCTV captured the image of PW1 exiting on the fifth floor at 14.42.56. PW1 was then seen entering the lift on the fifth floor and later was seen driving the same motor van leaving the compound of the condominium at 16.35.05. The learned trial judge had carefully evaluated the evidence regarding the times of the recordings and had accepted the evidence of PW10, Mohd Zabri bin Adil, who was the head of Digital Forensic Department of Cyber Security and the evidence of Mohd Sharizuan (PW11), an analyst with Cyber Security. His Lordship was satisfied and had accepted the explanation by these two witnesses regarding the real times of the events recorded on the hard disk of the CCTV.
 The learned trial judge referred to the recording of camera number 4 which showed a car bearing registration number WMK6 arriving at the condominium at 12.19.58. According to PW22, Ahmad Humaizi bin Awang, Head of the Record Unit of the Kuala Lumpur Road Transport Department, this car belonged to the respondent. Someone resembling the respondent was seen taking the lift from level P1 to the 5th floor and exited at the said floor. The same person was seen leaving the 5th floor and took the lift to level P1 and exited at the said floor at 17.14.54. The same car bearing registration number WMK6 was recorded leaving the compound of the condominium at 17.30.23. Based on these evidence, the learned trial judge found that both PW1 and the respondent were at the said condominium at about the same time of the alleged incident.
 The learned judge had drawn the irresistible conclusion that there was opportunity for the respondent to commit the offence at the place and time as charged. Having considered the evidence ourselves, we are in agreement with the learned trial judge when His Lordship concluded at para 137 of the grounds of judgment which reads:
“ Based on the above evidence, I find the accused and PW1 were at the vicinity of the crime scene during the period mentioned in the charge. The presence of the accused at the vicinity of crime scene and the proximity of time to the commission of the offence showed there was opportunity for the offence to take place. More importantly they are corroborative evidence, lending support to the credibility of PW1’s evidence.”.
6. Penetrasi, ejakulasi dan Bagaimana DNA Anwar dipadankan dengan air mani dalam dubur Saiful
 Concerning the issue of factum of penetration, the learned trial judge found corroboration from the evidence of PW3 Dr.Siew and PW23, Dr Fazuin. Both PW3 and PW23 testified that PW1 had informed them that he was sodomised by a high profile public figure for at least two months and the last incident happened on 26 June 2008. PW1 also informed them that a lubricant was used and there was penetration as well as ejaculation. No condom was used.
 The crucial evidence which corroborated the evidence of PW1 on the factum of penetration is the evidence of the doctors Dr Khairul Nizam (PW2), Dr Siew (PW3), Dr Razali (PW4) and the chemist Dr Seah (PW5).
 PW2 and PW4 conducted the physical examination on PW1 in the presence PW3 and PW23. PW2 and PW4 conducted the anal examination. Swabs were taken from PW1 by PW2. Exhibit P6F was taken from the perianal region, exhibit P6H and P6i were taken from high rectal region and exhibit P6J was taken from low rectal region. These exhibits were placed in sealed receptacles which were in turn placed in a transparent plastic bag exhibit P27. PW3 then handed over exhibit P27 to the investigating officer (PW25) who in turn handed them over to the chemist, Dr Seah (PW5).
 PW5 analysed these exhibits and found the presence of sperm cells in Exhibits P6F, P6H, P6i and P6J. PW5 further testified that semen containing spermatozoa found on swabs B7, B8 and B9 came from a single source referred to a ‘Male Y’. PW5 prepared the report exhibit P25.
 We now come to consider the identification of ‘Male Y’ as alluded to earlier. In this respect, the evidence of Aidora bt Saedon (PW6), another chemist attached to the Chemistry Department, is essential.
 PW6 developed the DNA profiles of ‘Male Y’ from exhibits P58A a white toothbrush, P59A a ‘Good Morning’ towel and exhibit P61A an empty ‘CACTUS’ mineral water plastic bottle.These exhibits were collectively recovered by PW15, PW16, PW17, PW18 and PW20 from the lock-up cell in which the respondent was the sole occupant. After having conducted her analysis, PW6 found that ‘Male Y’ is the same contributor of the DNA retrieved from the exhibits recovered from the lock-up. PW6 came to the conclusion that the contributor of the DNA and ‘Male Y’ is from the same source.
7. Dakwaan bahawa Air Mani rosak selepas 56 jam TIADA MERIT dan bertentangan dapatan saintifik
 In such circumstances, the pertinent question to be asked is whether, notwithstanding degradation, was PW5 and PW6 able to extract good DNA profiles? In one literature titled ‘Dealing with DNA evidence: A legal guide’ by Andrei Semikhodskii, it is stated as follows:
“DNA is stable and reliable data can be produced from very old and decayed biological samples. DNA is more robust than proteins when subjected to harsh environment and is capable of withstanding both natural and man-made injury. The high molecular integrity of DNA allows forensic scientists to analyse long-buried samples as well as samples that have been subjected to high temperatures and chemical treatment. Even when biological material is severely degraded, DNA evidence can still be produced using modern forensic approaches.”
 In R v Butler  QCA 385, the brief facts are that one Mrs Douty was murdered probably on 1st September 1983 when she was sunbaking on a beach at Brampton Island. Her body was discovered in some undergrowth in a place called Dinghy Bay, unclothed but covered with a red towel. The red towel was found to have both blood stains and semen stains on it. The sole evidence on which the appellant was convicted, apart from the fact that he had an opportunity to kill the deceased, was DNA evidence from his semen found on the red towel. The appellant did not give evidence. The DNA tests, which it was said to prove this, were done in February 1997. One of the grounds raised by the defence was that over 13½ years between the murder and the DNA analysis, the towel had been in a number of places and that there was no satisfactory evidence on the condition in which, at all times, it had been kept. Consequently, it was submitted, factors such as moisture, sunlight or heat could have so degraded the sample of semen from which the DNA was said to have been extracted that it was impossible to extract DNA from it.
 The court rejected the submissions. The court had this to say:
 In the first place a period of 13 ½ years is not, in DNA terms a long time. Good results have been obtained 20 or 30 years after the event and Dr Budowle even gave the example of DNA extracted from bones 60,000 years old. If the substance containing it is dry and out of sunlight it will not degrade for many years.
 Secondly, there is nothing to indicate that any of the conditions which could have caused even partial degradation, in particular moisture or heat or direct sunlight, existed in respect of the towel at any time. It was dry when Mr Freney took possession of it two days after the murder and it was always kept dry, indoors and, it seems, in a plastic bag, albeit with other things.
 Thirdly, one of the advantages of the process by which DNA is extracted, so Dr Budowle said, is that unlike earlier processes such as the ABO process referred to later, partial degradation does not prevent good results from being obtained. That is because, unlike the other processes, it focuses on very small portions of the DNA, a few hundred letters long at the most. These may be mere fragments of DNA.
 Dr. B.R. Sharma in his book ‘Forensic Science In Criminal Investigation & Trials’ 4th Edition at page 1118 states as follows:
6. The quantities of the DNA required for analysis are extremely small, in micrograms. In recent times the requirements have become even less, due to amplification of material clues through cell regeneration, technology – Polymerase Chain Reaction (PCR).
7. An important advantage of DNA profiling is that the contamination of evidentiary clues by similar biomaterial may increase the difficulties but do not prevent the identification
 In the same vein, Jane Moira Taupin in ‘Introduction to Forensic DNA Evidence For Criminal Justice Professionals’, CRC Press states at page 18 that “The polymerase chain reaction (PCR) was a boon for forensic science, as it enables the analysis of minute quantities of blood and semen and is
effective for degraded samples such as those commonly encountered at crime scenes. PCR is essentially a molecular photocopier that can amplify very small samples and allow
them to be detected and analysed.”.
 In States & Others v Jyotish Prasad & Others LNIND 2009 DEL 799, the High Court of Delhi held that:
“While, as a hypothesis, it may be stated that a vaginal swab kept in an unrefrigerated condition would be subject to degradation, but that has to be established as a fact. In the present case, the DNA analysis report does not indicate that the vaginal swab Exhibit-PW-14 obtained from the deceased had deteriorated to such a condition or, at all, which did not permit them to do DNA profiling in respect thereof."
 Further literature on this subject referred to us by the learned DPP includes an article from the British Journal of Venereal Diseases (1972) 48, 141 written by AI Morrison with the heading ‘Persistence of Spermatozoa in the Vagina and Cervix’. Learned author of the said article referred to the book edited by Smith and Cook wherein it was stated that ‘spermatozoa may remain in the posterior fornix as long as 17 days, and may survive a menstrual period.’. The said author also referred to the British Medical Journal (1964a) where it was stated ‘live sperms have been found in the cervix three days after coitus.’. In the research carried out by AI Morrison involving 104 women, sperms were found in the cervix up to twelve days after coitus and in the vagina up to nine days after.
 The evidence of PW5 clearly shows that the deterioration of the samples in the instant case was not to such an extent which did not permit her to do DNA profiling. Hence, the finding by PW5 of sperm cells in the complainant’s anus 56 hours after the incident of sodomy is not unusual. In the light of the above, we have no hesitation to conclude that both PW5 and PW6 were able to obtain perfect DNA profiles which connected the respondent with the offence charged.
8. Anwar enggan membela diri
 A statement from the dock is evidence but it is not entitled to the same weight as sworn testimony. A statement from the dock must relate to the events pertaining to the charge (PP v Karim bin Othman  2 CLJ 826; R v Dunn & O’Sullivan (1922) 17 Cri App R 12).
 In our view, the trial judge in the instant appeal could quite properly wonder why the respondent had elected to make an unsworn statement; that it could not be because he had conscientious objection to taking the oath since, if he had, he could affirm. Could it be that the respondent was reluctant to put his evidence to the test of cross-examination? If so, why? He had nothing to fear from unfair questions because he would be fully protected from this by his own counsel and by the court.
 For the respondent to succeed in his defence, it is incumbent upon him to adduce evidence which can answer the allegations in the charge. In this case, the respondent did not even deny that he was at the scene of the crime at the material time and date as stated in the charge. He never disputed that his car was seen entering and leaving the condominium at the material time. He also did not dispute that he was seen entering the lift to the 5th floor of the condominium and later leaving the place. He also did not dispute that he had directed his chief of staff, PW24 to arrange for an envelope to be handed over to him at the said condominium and that PW24 had instructed PW1 to bring the envelope to him. The respondent also did not dispute the fact that PW1 had brought the envelope to him at the place of the incident. The learned judge found that the respondent’s statement from the dock is a mere denial with which we fully agree. The bare denial by the respondent does not amount to any doubt whatsoever. A credible defence is one that answers the evidence thrown at it by the prosecution. It is also imperative that the respondent explain his case.
9. Dakwaan Anwar DIHALANG dari memanggil alibi TIDAK BENAR sebaliknya Anwar yang ENGGAN memanggil 14 saksi alibi yang disenaraikannya
 The respondent had earlier given a notice of alibi pursuant s.402A of the Criminal Procedure Code and listed 14 witnesses in support of his alibi. However, when he was called upon to enter his defence, the respondent elected to give a statement from the dock and called another 7 witnesses in support of his defence case. The defence of alibi was abandoned.
 As we have noted earlier, the respondent’s line of defence was an alibi of which he had given notice before the commencement of the trial. But at the trial, it appears that this defence was never pursued for reasons best known him. It is pertinent to note that an alibi represents a complete defence to exculpate the respondent from the offence charged.
 Likewise, we share the sentiments that the court may draw an inference that the evidence of the alibi witnesses could not have assisted the defence. It is of interest to note that among the witnesses named in the notice of alibi was the respondent’s own wife and also his Chief of Staff. These witnesses in particular, would have been available and were at the respondent’s disposal had his alibi been genuine.
10. Kredibiliti Saksi Pakar Anwar Ibrahim dipersoalkan
 In accepting the evidence of the expert witnesses, the learned trial judge had failed to consider that in terms of the probative value of the evidence, the evidence of PW5 ought to have been held to be more credible in the sense that PW5 had herself carried out the various tests and analysis of the samples as opposed to both DW2 and DW4 who did not have the benefit of doing the analysis themselves. The evidence of both DW2 and DW4 are mere opinion as opposed to the evidence of both PW5 and PW6 which were factual and based on their own analysis of the samples. Both DW2 and DW4 are mere “arm chair experts”. In terms of qualifications, the learned trial judge had found PW5 to have impeccable credential, holding a PhD in Forensic DNA and is the head of the Serious Crime Unit, Chemistry Department Malaysia. So too PW6, whom the learned trial judge had found to be without doubt an expert in DNA analysis and competent in terms of her academic and professional qualifications and experience.
 On the method of analysis, His Lordship had also found and accepted that PW5 had conducted the DNA analysis using the latest technique. DW4 on the other hand last did DNA analysis in the lab in 2004 and his expertise seem to be limited to the interpretation of results of DNA analysis only. This was by way of his own admission. In giving his evidence, DW4 imparted his knowledge not gained from personally having conducted the test and analysis (page 2541 appeal record), but only by reading a manual on DNA extraction protocol issued by AB1 (see page 2543 appeal record). That being the case, it is understandable why DW4 could not appreciate the evidence of PW5’s explanation in respect of the method of extraction she carried out because DW4 had never personally conducted the procedure before.
 It is trite that an expert witness must give reasons for his conclusions (see PP v Loo Seng Yip  8 CLJ 496). Both PW5 and PW6 had testified in detail on the analysis done and the reasons for their conclusions reached. We are not sure whether DW2 and DW4 were able to match up with that since their conclusions were derived mainly from textbooks and journals in forming their opinions. How much weight ought to be given to such evidence? This was not considered by the learned trial judge.
 The learned Deputy was also very critical of the manner in which DW4 gave his evidence. Strong words were used by the learned Deputy. DW4 was alleged to have made wild comments and insinuations on the processes carried out by PW5 in her analysis to be merely jobs done by robots in his country. This was highly questionable and deceitful according the learned Deputy. DW4 had also insinuated that the Chemistry Department is not accredited and that the accreditation had expired in 2005.
 We find merits in the criticisms of the learned Deputy against DW4. The evidence of Mr Lim Kong Boon (DW5) showed that the Chemistry Department was and is fully accredited as evident from exhibits D90 and D92. We find that the insinuation by DW4 was mischievous, to say the least.
 It was further submitted before us that the credibility, expertise, credential and objectivity of DW4 had been called into question. The learned Deputy referred to Ms Robert Charles Bropho v. The State of Western Australia  WAOC 77 where the credibility and credential of DW4 was called into question. In the said case, Goetze DCJ had remarked:
“Dr. McDonald was cross-examined as to whether he was actually a Fellow of the Australian Academy of Forensic Sciences. It was suggested, that, the Academy does not provide for fellowship. Whether that is so or not has not been proved. Dr. McDonald accepted fellowship of such Academy
is not an academic qualification, but rather, an affiliation, which should have not been listed in a separate section relating to affiliations. Further in cross-examination, Dr. McDonald conceded that he is not a Fellow of the Australian College of Legal Medicine, but, he had claimed such fellowship as an affiliation in his curriculum vitae because both that college and the Australian College of Bio-Medical Sciences of which he is a Fellow, now run concurrent meetings (T226). He did not see that this misrepresented his affiliations within his curriculum vitae. These concessions by Dr. Mc. Donald impact upon his credibility."
 The judge in that case also took issue with Dr. McDonald’s expertise as an expert at p.17 of the judgment as follows:
“At the end of Dr. McDonald’s evidence-in-chief, I did not know from whom or from where Dr. McDonald obtained his claimed expertise in DNA and molecular genetics. I did not know what it is that Dr. McDonald knows or does not know about DNA and genetics, and importantly, about population statistics, which he regarded as a “rather esoteric little classification”(T203)”
 Further down the pages of the judgment, the same judge made further comments on Dr. McDonald’s expertise and the manner he presented his expert opinion. At page 26, the judge concluded:
“This explain why Dr. McDonald is not an expert. He does not have the expertise to derive and validate a subpopulation model. He cannot follow the derivations in such model. He has not attempted to follow the derivation of the subpopulation model used by Dr.Buckleton in this case (T237). However, when he looks at the observed profiles, he says that the model prepared by Dr.Buckleton is “flawed”(T237)”.
11. Hakim Perbicaraan melepaskan Anwar kerana berpendapat bahawa sampel telah tercemar. Bagaimanapun Mahkamah Rayuan berpendapat Hakim Perbicaraan telah melakukan kekhilafan yang besar. Kekhilafan Hakim Perbicaraan mengenai Integriti Sampel
 Faced by the above evidence, the learned trial judge concluded that the result of analysis done by PW5 could not be reconciled with the expert evidence of these two witnesses and asked himself the question which expert was right?
 In trying to answer the question, the learned trial judge had re-examined the evidence of PW3 who collected the samples at the Kuala Lumpur General Hospital and put them individually in plastic containers labelled and sealed with the Kuala Lumpur Hospital seal and placed them in the plastic bag P27. This plastic bag P27 was then handed over to PW25 who then subsequently cut open P27 to re label the containers. With this, the learned trial judge concluded at paragraph 205 of his judgment:
“By cutting open P27, the confidence in the integrity of the samples was gone”.
 His Lordship had come to this conclusion after having accepted the evidence of DW2 who stated that the containers were not tamper proof. DW2 came to this view merely by looking at the containers in court and gave his opinion solely from the manner in which these containers were sealed and the type of material used as seals. That was merely his opinion pure and simple.
 It is crystal clear that the learned trial judge was simply overwhelmed by the evidence of these two expert witnesses called by the defence. We find that His Lordship had overlooked the testimony of DW2 under cross examination regarding the issue of tampering of the containers where DW2 admitted that he could not say that there had been tampering of the containers (see page 2234 appeal record). In cross examination, DW2 answered as follows:
S: Would you say that the containers were tampered?
J: No, I can’t. All I was saying yesterday is that this is the container that if any tampering occurred, it would be evident to others....
 In the light of the above, we find that the testimony of PW5 that there was no tampering of the containers remained intact. We also find that it was never the prosecution’s case that the samples were in pristine condition.
12. Kekhilafan Penghakiman Hakim Perbicaraan Kes Liwat 2
 We are of the view that had the learned trial judge undertaken a critical analysis of the evidence of these two expert witnesses, His Lordship would in all certainty have not mistaken plausibility for veracity. Our perusal of the learned trial judge’s grounds of judgment fail to find any evidence where His Lordship had even considered the credibility of the defence witnesses in particular the evidence of DW2 and DW4. The learned trial judge turned an indulgent eye upon the evidence of DW2 and DW4 when he should have treated them with caution. There was a total failure of any observation with regard to credibility. Narrating the evidence of the witnesses will not suffice and it does not amount to evaluation or appreciation of the evidence, let alone critical analysis.
 Of no less serious error on the part of the learned trial judge, was the failure to reason out the basis for his acceptance and preference for these two defence experts which is an integral part of the analysis and evaluation of evidence by a presiding judge.
 In our considered view, the learned trial judge fell into serious error when he doubted the integrity of the samples based on the evidence of the two expert witnesses called by
 The finding of the learned trial judge is seriously flawed and merits our intervention. In our view, the reception by the learned trial judge of the defence expert witnesses’ evidence is not objective and is one sided. This is a serious error and falls far short of the proper approach that a judge should take when judicially appreciating evidence.
 For the aforesaid reasons, we allowed the appeal by the PP and set aside the decision of the learned judge. We find the respondent guilty as charged. Accordingly, we convicted him of the offence.