Sodomy II: Dent in prosecution case

Lead defence counsel Karpal Singh managed to put a major dent into the prosecution's case in Anwar Ibrahim’s sodomy trial in the Kuala Lumpur High Court.

The veteran lawyer pointed out this morning that the pro forma form filled by a Hospital Kuala Lumpur doctor has the words ‘attempted sodomy’ and ‘attempted oral sex’.

The form was filled by doctors - mainly forensic pathologist Dr Siew Shueu Feng - who had interviewed and examined complainant Mohd Saiful Bukhari Azlan on June 28, 2008.

Former HKL Accident and Emergency Unit head Dr Khairul Nizam Hassan (left) told the court that Saiful had told the medical team that he had been sodomised and forced to perform oral sex.

"He (Saiful) did not mention ‘attempted’ but ‘sodomy’ and ‘oral sex’," he said.

When shown the pro forma form, however, Khairul Nizam agreed the form states ‘attempted sodomy’ and ‘attempted oral sex’.

Despite this, he maintained that the medical examination was conducted to check for sodomy and oral sex.

Karpal pursued the matter, asking Khairul Nizam many times if the pro forma form was based on interviewing Saiful.

The witness agreed, but stressed that the form is just as a guideline.

"How can you say it is sodomy or oral sex when the report states ‘attempted’?" asked Karpal.

He persisted with this line of questioning until Solicitor-General II Mohd Yusof Zainal Abiden - who is leading the prosecution team - objected to the repetition of the questions.

Missing information

Karpal also pointed out that vital information which should have been indicated in the pro forma form had not been filled by the doctors.

The ‘vital information’ included the circumstances that led to the alleged incident; on the complainant’s medical history; and on past rectal examination as to whether or not the victim had defecated.

Other parts of the form that were left blank were on the rectal examination and the place of the alleged incident.

Khairul Nizam's testimony acknowledged that no force was used but that there was resistance.

The pro forma form states that the alleged incident lasted 30 minutes and that Saiful had complained of pain and bleeding during full penile penetration.

Karpal pointed out that there was no clinical finding to suggest penetration had taken place.

"There could not be penetration, as SP1 (Saiful) says it was ‘attempted’."

On re-examination by DPP Nordin Hassan, Khairul Nizam agreed that Saiful’s main complaint was that he had been sodomised.

He disagreed that Saiful (right) had claimed there was ‘attempted’ sodomy or oral sex.

Khairul Nizam clarified that, prior to June 28, 2008, HKL did not have a pro forma form for sodomy.

"This is (now) used as a guideline if an incident has taken place within (the past) 24 hours," he said.

Khairul said that, after checking against the Chemist Department report obtained on July 11, 2008, the doctors determined that sodomy had occurred.

“We did not know where the semen was found, but on comparing with ID24 (the documented location), it was discovered (that sodomy had occurred).”

He said the doctors had compared four items on which there was semen obtained from the peri annal and lower and high rectum. This led them to the conclusion that there was penetration.

Karpal wants charge dropped

Outside court, Karpal and Anwar Ibrahim urged the attorney-general (AG) to drop the charge.

"The doctors have contradicted their report and Saiful's complaint. The pro forma form states ‘attempted sodomy’,” said Karpal.

"I called on the AG to step in immediately and drop the charge, (or it will) result in further embarrassment for the country."

Karpal noted there is provision in lower courts for a charge to be dropped if there is conflict of evidence.

Since there is no such provision in the High Court, he wants the AG to step in.

Anwar reiterated that the charge is frivolous and politically motivated.

“The AG should not act in the interests of his political masters," he added.

Lawyer Param Cumaraswamy, who is also in the defence team, echoed similar sentiments.

"The revelation today made over the pro forma reinforces our claim as to why such documents should have been made available to the defence to ensure the smooth running of the trial," he said.

"It is proper now for the prosecution to honourably withdraw the charge in light of this latest development."

Param, a former UN special rapporteur, noted that what the public wants is for the prosecution to abide by standards set up in the UN Standard Rule on Prosecution. 

See part of Saiful's pro forma form
[Not included are a number of pages which were not filled out by the doctor]

Power failure disrupts trial, hearing postponed