'Saiful a credible, truthful witness'

Mohd Saiful Bukhari Azlan, who has complained that he was sodomised by his former employer Anwar Ibrahim, has been adjudged to be a “credible and truthful witness”.
   
The Kuala Lumpur High Court cited this among other grounds today, in ordering Anwar to enter his defence.

Justice Mohamad Zabidin Mohd Diah, who came out of his chambers at 9.07am, read out the grounds of his decision for almost two hours, ruling that a prima facie case had been made against Anwar.

He said the evidence of expert witnesses like doctors and chemists had corroborated Saiful's (left) testimony.

“Saiful (left) is a credible witness and (it was not) improbable (for the sodomy to have taken place),” he said.

Anwar is charged with sodomising Saiful at the Desa Damansara condominium between 3.01pm and 4.30pm on June 26, 2008. This is his second sodomy trial since 1998, although he was acquitted of the earlier charge on appeal.

Justice Zabidin first read out what Saiful has related in his testimony, also covering the medical examination at the Pusrawi Hospital and Hospital Kuala Lumpur (HKL), by three doctors.

Saiful was initially a volunteer hired by Anwar in early March 2008, with a wage of RM1,000 and other allowances. He served as personal assistant, arranging meetings, assisting the chief of staff in preparing the work schedule, and overseeing and handling calls on Anwar’s handphone.  

Relating the events of June 26, 2008, based on testimony, the judge said the court has taken note of points raised by defence lawyer Karpal Singh in his submission.

Karpal (right) had said Saiful's behaviour in drinking coffee and eating curry puffs after the alleged incident and going to the PKR office and Anwar's house the next day was proof that he had lied. The lawyer had described this as inconsistent with the behaviour of a person who had not consented to sex.

Zabidin said the defence has tried to paint a picture of Saiful as someone with zero credibility and thus argued that his testimony should not be accepted.

"(Saiful) was subject to lengthy cross-examination that sometimes bordered on harassment. It was put to him that he is not a good Muslim, that he comes from a broken family, and his sister had eloped (to get married). He was labelled a traitor as he was a BN supporter but had voted for PKR in the last general election.

“With greatest respect to the defence, I find this to be irrelevant and (are claims that) merit no further consideration in determining Saiful's credibility. The defence (also) alleged Saiful had lied as the incident happened without his consent.”

‘Defence submission untenable’

The judge said Saiful had claimed that the sodomy was non-consensual, while Karpal argued that the complainant had fabricated his testimony. This is because Saiful had various opportunities to escape, and he further did not complain to the security guard or shout for help.

"However, I find this submission untenable. Failure to escape, failure to seek help, or failure to complaint to security does not show that the offence did not take place. Under normal circumstances, such failure would result in such an incident being construed as not having occurred and that it was consensual. This is not relevant to our case,” said the judge (left).

“In any event, Saiful was never asked why he did not run, why he did not lodge police report immediately or complain to the security guard. However, from the established facts it was not difficult to understand why Saiful had acted the way he did, though he insisted he had not consented to being sodomised.”

Justice Zabidin noted that Saiful was then only 22 and in the employment of the accused, who he had idolised as a child and found to be charismatic.

“(Saiful) was given preferential treatment by the accused in that he was given a room, although he had worked less than two months. The interview with Dr Razuin Rahimi (who had examined Saiful) and Saiful's testimony showed the incident was not totally unexpected.

“(Saiful) had approached various people (to relate his complaint) and some were sceptical. In fact, people like Ezam (Md Nor) and Mumtaz (Jaafar) and his uncle discouraged him from lodging a police report as they were concerned about his future. The people in condo 11-5-2 were friends of the accused.

“Based on the facts and circumstances, Saiful’s failure to run away from the condo unit or to lodge the police report immediately is understandable. It cannot be a basis to find him to be an witness who is not credible.”

Justice Zabidin said the fact that Saiful was at the condominium with the accused had afforded  the opportunity for the offence to occur. He said the presence of the two at the condo unit was not disputed.

“Saiful's testimony showed it did in fact occur. He was subjected to lengthy cross-examination, but was steadfast and remained consistent in describing in detail how the accused had (penetrated him) with the aid of a lubricant.”

“Nothing came out in the lengthy cross-examination of (Saiful). No evidence by other prosecution witnesses suggested that (Saiful’s testimony) was improbable. I find his testimony to be intact.

"He had truthfully and without embellishment and exaggeration narrated in minute detail how he was sodomised by the accused that day. I find him to be a truthful witness and his evidence reliable. It has established all the facts to prove the charge against the accused.”

The judge also found that CCTV evidence and the testimony of the chemists and doctors had corroborated Saiful’s testimony.

Medical evidence ‘reliable’

The judge went on to explain why he accepted the evidence by the HKL doctors and chemists.

He said based on chemist Dr Seah Lay Hong's (right) testimony, semen was present in the high rectal swab.

Justice Zabidin said the lubricant used could have prevented scarring or fissures or injury to Saiful's anus and he ruled that the testimony of three doctors-  Dr Mohd Razali Ibrahim, Dr Siew Sheue Fend and Dr Khairul Nizam Hassan - was credible.

“The (findings from the) high rectal swab (on which semen was present) as stated by Razali is acceptable as the victim said there was ejaculation and the accused was not wearing a condom,” he said.

He dismiss arguments about degradation of DNA retrieved from the sample, since this was only given to the chemist four days or 97 hours after the alleged incident.

The judge said Seah had taken steps to ensure a finding.

"It was clear and unambiguous, and if there was degradation, it was not substantial," Zabidin said, in ruling that the possibility of contamination and degradation was remote.

On the issue of possibility of tampering of evidence, he said the DNA profile in the cell was contact DNA.

"All this corroborates the evidence against the accused. I find a prima facie case made against the accused and call for his defence," he said.

The court has fixed June 6-30 for the defence to present its case.

Anwar has three options open to him - to answer under oath from the witness stand; to read a statement from the dock where he cannot be cross-examined; or to keep silent.

Scores of Anwar’s supporters had gathered at the KL court court in Jalan Duta as early as 4.30am, and the Muslims among them attended qiamulail and solat hajat (a special prayer session) at a nearby mosque.

About 6.30am, unidentified motorcyclists were spotted strewing papers about, believed to be from the sex tape said to implicate Anwar, along the road leading to the court complex and outside the compound.

The prosecution team, led Solicitor-General II Mohd Yusof Zainal Abiden, comprised deputy heads of the prosecution division Nordin Hassan and Mohd Hanafiah Zakaria, and DPPs CK Wong and Noorin Badaruddin.

Senior counsel Karpal Singh led Anwar's defence team, which included Param Cumaraswamy, Sankara Nair, CV Prabhakaran, Marissa Christopher Fernando and Ram Karpal Singh.

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