The Anwar Conviction in n Parts — The Prosecution vs The Defence (Part II)
Part I was an introduction to this analysis and an outline of the facts of the incident (as the Federal Court lays it out).
Part II will attempt to outline the arguments by the prosecution and defence. Hopefully this piece will help readers understand the main issues of contention in the case.
Trials often see both sides introducing multiple witnesses, pieces of evidence and arguments to support their case. It’s usually possible to narrow the issue down to a few key points, however.
As we shall see, the really crucial bits of evidence here are Saiful’s testimony and the DNA evidence that purports to support this claim.
First though, it may be useful to take a look at the actual offence Anwar was charged with! Here’s the relevant part of the Penal Code:
Carnal intercourse against the order of nature
377A. Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.Punishment for committing carnal intercourse against the order
of nature
377B. Whoever voluntarily commits carnal intercourse against
the order of nature shall be punished with imprisonment for a term
which may extend to twenty years, and shall also be liable to
whipping.Committing carnal intercourse against the order of nature
without consent, etc.
377C. Whoever voluntarily commits carnal intercourse against
the order of nature on another person without the consent, or
against the will, of the other person, or by putting the other person
in fear of death or hurt to the person or any other person, shall
be punished with imprisonment for a term of not less than five
years and not more than twenty years, and shall also be liable to
whipping.Outrages on decency
377D. Any person who, in public or private, commits, or abets
the commission of, or procures or attempts to procure the commission
by any person of, any act of gross indecency with another person,
shall be punished with imprisonment for a term which may extend
to two years.
Anwar was charged under 377B. 377A defines ‘carnal intercourse against the order of nature’ and 377B prescribes the punishment for that offence. Note that 377A does not specify the need for male-male sex. What it criminalises is anal sex and oral sex, which means that heterosexual couples can be just as liable as homosexual couples if they engage in anal or oral sex.
Note also that 377A has no element of consent. In other words, it punishes you for oral and anal sex whether it was consensual or not.
We will discuss this in more detail in a later instalment, but you may have noticed some people asking why Saiful wasn’t charged under 377A as well for being a part of the sexual act.
The answer is that 377B penalises the person doing the penetrating, not the one being penetrated (see ‘person’ vs ‘other person’ in the text). If Saiful were to be charged at all, it would be under section 377D for abetting gross indecency (and there is precedent for this).
Some people have also questioned why Anwar wasn’t charged under 377C, if Saiful really was an unwilling participant of the sodomy. 377C is essentially the same as 377B, but does have consent as an ingredient of the offence.
The answer? Public prosecutors have what we call prosecutorial discretion, and they can decide what charge to proceed with — while 377C carries a higher minimum penalty (five years), it also means you have to prove lack of consent. As a matter of prosecutorial strategy, it’s not hard to see why going for a 377B charge would be the easier and likely more successful choice.
Whether Saiful consented or not, however, is a matter for another instalment.
The Prosecution’s Case
These are what the prosecution relied on:
- Saiful’s testimony on the alleged act (and previous incidents of sodomy).
- Swab samples taken from Saiful and DNA samples taken from Anwar’s time in a lock-up cell.
- A report by the three Hospital Kuala Lumpur doctors confirming the presence of semen in Saiful’s anus.
- A forensic report by the Chemistry Department matching Anwar’s DNA with DNA taken from Saiful’s swab samples.
- CCTV footage showing the arrival and departure of both Anwar and Saiful on the same day.
The prosecution’s case is simple enough: Saiful testified and remained consistent under cross-examination, the CCTV footage puts the both of them at the same location on the date in question, and the finding of sperm cells in Saiful’s anus (which contained DNA profiles matching samples taken from Anwar’s lock-up items) back up Saiful’s evidence.
The story is nowhere near so simple, unfortunately, as we shall see with the defence’s case below.
Remember that the prosecution has to prove its case ‘beyond reasonable doubt’ — and that is a standard that’s higher than just 50/50. How high it is exactly (60? 80%? 90%?) is a matter of some debate. This is especially contentious where it comes to justice systems which still employ juries. The important point however is that it is not enough to find that Anwar probably did it.
The judges rightly point out that while it is not against the law per se to convict someone accused of a sexual offence solely on the word of the accuser, it normally requires corroboration. What this means: a guilty verdict should regularly not be found simply on a he-said, she-said basis.
This will be crucial later, because as we’ll see it’s the DNA and forensic evidence that makes Saiful’s case against Anwar more than just a he-said, he-said affair.
The Defence’s Case
As the defence’s job isn’t to provide evidence of innocence, but rebut the evidence of the prosecution and raise reasonable doubt, it’s not surprising that the main thrust of their strategy was to attack the evidence. Almost all of their efforts went towards two broad goals: raise doubts as to Saiful’s credibility, and raise doubts as to the credibility of the DNA evidence.
These are the major points they relied on:
- That Saiful’s testimony was inconsistent with that of someone who was a non-consensual party to the act.
- The finding of the three HKL doctors that Saiful’s anus showed no physical signs of penetration and struggle.
- That investigating officer Jude Pereira had not complied with standard operating procedures in handling and delivering evidence to the Chemistry Department, breaking the chain of custody of the samples.
- That the evidence taken from Anwar’s lock-up cell was acquired illegally, and inadmissible in trial.
- That the lapse of time between the alleged sodomy and Saiful seeking medical attention would have made retrieval of semen samples unlikely.
- That Jude Pereira’s handling of the samples (not keeping them in the conditions advised) would have further degraded them.
- That there was a political conspiracy behind the allegations.
The defence’s approach is fairly clear here. First, they’re attempting to poke holes in Saiful’s credibility and story. Among other things they threw into question the idea that the sodomy was not consensual (and then asking why Saiful was not himself charged under Section 377 of the Penal Code). They questioned why he waited before making a report, why he hung around and made conversation after the act, and why he attended a PKR function the next day.
At first glance one might be inclined to take these apparent inconsistencies as proof of a fix-up, but reality is a little more complicated. For one thing, it’s not unusual at all for victims of sexual assault to be reluctant in reporting their situation; neither is it unusual for someone in such a situation to continue a relationship with their abuser.
If we take as true the prosecution’s story that Saiful was someone who idolised Anwar and was treated specially by the man, then the story has a fair bit of consistency. Still, we’ll explore this more in a separate piece.
There are also several minor matters involving a witness who was allegedly a university mate of Saiful’s (who testified he was actually a strong BN supporter and staunchly anti-Anwar),
The second part of their strategy involved attacking the reliability (and admissibility) of the DNA evidence. The argument is that a combination of factors — the time between the act and Saiful’s medical exam, Pereira’s handling of the samples, the lack of physical evidence of penetration — made the DNA evidence unreliable. To bolster their case they also brought in two expert witnesses to testify to this.
Curiously, the defence originally argued that Anwar had an alibi for the day of the alleged incident; Anwar even named 13 witnesses who could supposedly corroborate his alibi, but none of them were called to testify in the end. File this one under ‘Unanswered Questions’ — something we’ll get back to later in the series.
Conclusion
Now that we’ve covered, in basic terms, the arguments of the prosecution and defence, what comes next is to pick apart the evidence itself.
When it comes down to it, what often decides cases isn’t the wording of so-and-so Act, but the evidence itself.
Each piece of evidence goes towards either fulfilling or chipping away at the requirements the law sets out. In this case, the prosecution has to prove that penetration happened, that Anwar committed it and that Saiful was the victim. And the defence has to do everything they can to prove that those things did not happen.
What really decides such a trial, therefore, is how much weight we give some evidence. There isn’t a mathematical approach to considering evidence, sadly. You simply look at every piece of evidence, decide how reliable it is (how much weight you give it) and let that tip the scales for you accordingly. And once you have considered all of the evidence, each with the appropriate weightage, you should (in theory) arrive at a conclusion.
The way I see it, despite the multitude of witnesses called and points made, what the case eventually boils down to is this:
- Saiful and Anwar’s credibility
- The DNA and forensic evidence
This again goes back to what we mentioned earlier about Saiful’s word, how much we trust it, and how much the other evidence supports his claims. Obviously, the less credible Saiful is, the less we trust what he says (and the same goes for Anwar, but as we’ll see, Saiful’s credibility is the more crucial issue).
So in the next instalment we will first take an in-depth look at Saiful and Anwar’s credibility, and how they impact the case.
*A few more small notes: Karpal Singh was originally headed Anwar’s defence team, before his untimely passing away last year; he was replaced by former Federal Court judge Datuk Seri Gopal Sri Ram. Likewise, then-Solicitor-General Datuk Mohd Yusof Zainal Abidin led the prosecution team until Tan Sri Shafee took over in 2013. Both appointments have had their controversies — Gopal’s for appearing before his former peers and colleagues, Shafee’s for his perceived links to UMNO — but those are discussions for another time.
