The prosecution in the Anwar Ibrahim sodomy II trial is making an application to order the accused to provide his DNA sample and for the court to supervise the entire procedure.

NONE Solicitor-general II Mohd Yusof Zainal Abiden ( right ) told Malaysiakini today they made the application to the court last Friday.

“This is to ensure the court can supervise the taking of the sample, and the court can also direct to which accredited laboratory (it is to be) sent for analysis.

“That way the integrity of the evidence cannot be questioned,” he told Malaysiakini .

It is learnt that this would form the basis of the prosecution's submission, to have the court order Anwar to give his sample.

He said they made a second applications to the court that Friday, for it to review its trial-within-a-trial ruling made on Tuesday, that barred the admission of three items retrieved from Anwar's cell on July 17, 2008.

NONE The applications, Yusof said, should be read together, or alternatively if the review is not successful, then the court will hear the second application.

On Friday, in making the application for Anwar's DNA at the conclusion of the last prosecution witness Supt Ahmad Taufik Abdullah’s testimony, Yusof said the requests were necessary in order to “determine justice” and ascertain “the truth”.

"The court needs to obtain proper proof of the facts, especially where the facts are in dispute, whether the the DNA from the sperm cell found in Saiful's anus belongs to Anwar Ibrahim. We need to determine justice and the truth in this case."

Prosecution riding on review

Last Tuesday, presiding judge Justice Mohamad Zabidin Mohd Diah ruled that the three items were not admisable because the items were obtained by unfair means.

“These three items and any evidence related to the DNA analysis are to be excluded as part of the evidence,” Mohamad said in court.

The ruling that day was a big blow to the prosecution's case, and as a counter measure they made the two applications that Anwar's lawyers said was unprecedented.

Technically, a review over a judge's decision is not equivalent to an appeal. An appeal can only be made in the upper courts namely the Court of Appeal.

A review is where the prosecution asks the judge to use its jurisdiction to re-look the ruling made in light of new evidence, in this case the original copy of Anwar's warrant of arrest, that somehow went missing during the trial-within-a-trial.

If the judge allows a review of the trial-within-a-trial, then the three items - the ‘Good Morning’ towel, the toothbrush and mineral water bottle - that has the DNA of ‘male Y’ will be admitted as evidence.

If the review application is unsuccessful, the prosecution still has recourse in the application for Anwar’s DNA sample.

Defence fears abuse

The prosecution is making the application under Section 73 and Section 165 of the Evidence Act.

Section 73 of the Act concerns comparison of signatures and fingerprints to ascertain the identity of an accused and the admissability of documents. Section 165 gives the judge the power to order discovery and to obtain proper proof or relevant facts. However the judge cannot compel an accused to do comply.

gaps protest at pkr hq 130311 walk Anwar’s lead counsel Karpal Singh has objected to both applications such provisions are not within the law.

Some members of the public, for example commentators on Malaysiakini ’s reports, have suggested that Anwar should come forward with his DNA sample to resolve the issue definitively.

However, Anwar is reluctant to oblige out of concerns regarding possible abuse of the sample, for example should it be illegally used to incriminate him, as was allegedly the case in 1998 during his first sodomy case.

Certain parties have picked up on the call and capitalised on it.

                    

Today two pro-Umno NGOs Perkasa and Gerakan Anti Penyelewengan Selangor (Gaps) organised a protest ( above ) outside PKR headquarters demanding for Anwar to give his sample.

It was reported that some 1,000 Batu Gajah Umno Wanita in Perak, and Kedah Kesejahteraan Insan Tanah Air (Kita) chairperson Zamil Ibrahim, have made similar calls.

Last week's highlights

The sodomy trial raised some eyebrows last week when Karpal grilled investigating officer Supt Jude Blacious Pereira ( below ) on Friday, and the witness testified he had taken statements from prime minister Najib Abdul Razak and his wife Rosmah Mansor. Najib was the deputy prime minister at the time.

NONE This testimony is crucial because complainant Mohd Saiful Bukhari Azlan had denied ever meeting Rosmah but said he had instead met her close confidante, Mumtaz Jaafar. Saiful however had testified he had met Najib.

Lead counsel Karpal Singh pointed out that since their statements had been recorded by the police, the defence should be allowed to call them as witnesses should defence be called.

“If their statement was not recorded, we cannot call them as witness and this is important," he said.

Karpal from day one had indicated that they will call Rosmah and Najib as possible defence witnesses to prove their theory of political motives behind the case.

Anwar, when met outside court on Friday said Pereira’s revelation proves that the case agasint him was a high level conspiracy by the country's leaders, as Saiful had earlier avoided mentioning Rosmah.

“He was told not to mention Rosmah, so he actually lied in court," Anwar charged.

Friday also saw Saiful being recalled to testify on the evidence of the DNA of three persons found in his peri-anal region.

Thursday also saw Pereira testifying on the identities of the other five people at the Desa Damansara condominium.

Meanwhile another former Hospital Kuala Lumpur doctor testified on Wednesday that Saiful had told her there was full penetration and ejaculation..

Tomorrow's hearing will start with both the prosecution and defence submitting over the two applications.