It has been nearly a month since the Anwar Ibrahim sodomy verdict was delivered. As of Jan 25, 2012, local newspapers have reported that the grounds of judgment for the case are not ready.

In any event, the attorney-general has filed a notice of appeal against the sodomy verdict on Jan 20, 2012.

Without reading the grounds of judgment, it is natural for many of us to speculate on what possible basis the courts may have rejected the DNA evidence.

The general public, especially those in the medical field may wonder whether the courts are questioning the accuracy of the DNA itself.

NONE It was reported that Justice Mohamad Zabidin Mohd Diah said the court could not be 100 percent certain after going through the evidence that the integrity of the DNA samples had not been compromised.

If so, can the courts reject the DNA evidence?

It has to be acknowledged that in the administration of criminal justice, forensic science has been a very important tool to assist police investigations.

The recent technological advances in forensic sciences have helped speed up criminal investigations.

In this process of mutual back scratching between law and science, forensic science has developed numerous innovative methods of identification.

Such an innovation was the introduction of deoxyribonucleic acid (DNA) evidence. It must be stated at the outset, that this piece of evidence is highly sophisticated and discriminatory because of its biological nature.

This single strand of evidence could establish the presence or absence of an individual at a crime scene. It will give rise to an inference that an individual may have a link with a crime.

Naturally, the prosecution will adduce DNA evidence to strengthen their case for conviction of the accused. On the other hand, the defence will challenge the said evidence on the basis of inadmissibility or reliability.

Court entitled to reject expert’s evidence

Under the Evidence Act 1950, DNA evidence is admissible if an expert testifies and provides his opinion in relation to the DNA profiling.

Mohd Munzil bin Muhammed in “ Reliability and Conclusiveness of DNA Evidence in Criminal Trials ” states that the duty of the expert is to explain in detail not only the procedure as to how the DNA test was conducted but he must also give reasons on how he arrived at the conclusion.

He further argues that an expert cannot simply read the result of his analysis without explaining it. He has to provide the grounds for arriving at the particular result.

If the court is not convinced with the expert’s testimony, it is entitled to reject the expert’s evidence or attach a lesser weight to it.

The courts could also not accept DNA evidence if the investigating officers handling the DNA samples were incompetent whilst packing, marking, identifying or ensuring the samples’ integrity.

Dr Kasinathan Nadesan in “ Forensic Medicine and Science ” states that as a general guideline, biological evidence must be properly packed and sealed in order to avoid contamination.

This stand is supported by Jyotirmoy Adhikary in “ DNA Technology in Administration of Justice ” who points out that the ability to perform successful DNA analysis on biological evidence recovered from a crime scene depends very much on what kinds of specimens were collected and how were they preserved.

He further argues that if it is not properly collected, its biological activity may be lost.

dna testing 180708 If it is improperly packaged, cross contamination might occur. And if the DNA evidence is not properly preserved, decomposition and deterioration may well occur.

Any of these actions seriously affect the outcome on DNA typing.

Therefore, it is very clear that the importance of adopting stringent measures to safeguard the integrity of DNA evidence cannot be underestimated. It could be the cause of the accused’s acquittal if the integrity of DNA evidence has been compromised.

If DNA evidence could be viewed in more than one way creating uncertainty, the evidence must be approached with caution.

The courts in Malaysia have reiterated that irrespective of whether the court is otherwise convinced in its mind of the guilt or innocence of an accused, its decision must be based on credible and reliable evidence adduced and nothing else.

Settled principles of law

If there are so many loose ends in a particular case and the court is unconvinced that the available evidence had pointed irresistibly to the accused’s guilt, it is the duty of the courts to acquit the accused.

Based on the report of the Anwar sodomy verdict, the court possibly found gaps or “breaks in the chain of evidence” which rendered the result of the DNA analysis to be doubtful and the judge did not hesitate to exercise the right of rejection.

It is evident from the settled principles of law that DNA evidence cannot stand alone to conclude the guilt of the accused.

The prosecution must prove all the facts subsidiary to or connected with the DNA evidence. The law views DNA as supporting evidence not as the primary evidence. If there is insufficient evidence to prove the guilt of the accused beyond doubt, the case must be dismissed.

As Justice Thomson pointed out in the 1962 case of Chan Chwen Kong: “No single piece of evidence is strong enough to sustain the convictions… what has to be considered is not only the strength of each individual strand of evidence but the combined strength of these strands when twisted together to make a rope.

“The real question to be asked: is that rope strong enough to hang the prisoner?”

M SARAVANABAVAN is a lawyer from Perak.