Anwar's lawyer, Sangeet Kaur, argued that although the semen matched the (DNA of the) three items – a toothbrush, a towel and mineral water bottle – submitted as circumstantial evidence, there is "no link" to the appellant.
Anwar is in his final attempt to appeal his sodomy conviction which carries a five-year imprisonment term.
The five-member Federal Court panel noted that the DNA of the semen could be of any male person.
"The DNA of the sperm found in Saiful's rectum and the three items matched, but (there's) no link to the appellant. (It) could be anyone's," said judge Tan Sri Suriyadi Halim Omar.
He is one of the five-member panel chaired by Chief Justice Tun Arifin Zakaria.
The other judges are Tan Sri Raus Sharif, Tan Sri Abdul Hamid Embong, Datuk Ramly Ali and Tan Sri Ahmad Maarop.
Anwar's other lawyers include Ramkarpal Singh, Gobind Singh Deo, Tommy Thomas, Sangeet Kaur, Zaleha Al-Hayat, Latheefa Koya and N. Surendran.
Sangeet also argued that the High Court should not have relied on circumstantial evidence when there was direct evidence, pointing out that the circumstantial evidence contradicted the direct evidence.
She said the direct evidence are the three police personnel and the lock-up diary, in which every one of Anwar's movements in the cell was recorded in detail up to fact that he was "standing" and "leaning".
However, Sangeet pointed out that despite the diary being so detailed, there was no record of Anwar using any of the three items submitted as circumstantial evidence.
"The three witnesses were watching him ... the diary was so detailed to the point that he was leaning ... but none of these records have alluded to the fact that they saw him use these three items," she said.
She also said during the sodomy trial, the police officer on duty had never alluded to the fact of having "seen the appellant brushing his teeth".
Questioning the arrest procedure and the method of obtaining Anwar's DNA sample, she claimed that he was unlawfully arrested and "trickery" was used to obtain DNA samples. She stressed that legally Anwar has the right to refuse giving DNA samples.
"(However), police bulldozed this right and obtained samples by trickery by detaining him further, which is against lock-up rules.
"An accused person is not to be taken out of a lock-up (during detention)," she added.
In 2008, Anwar was held overnight from July 16 to 17, from 11.05pm to 12.30pm, when he was arrested for allegedly sodomising Saiful, his former aide.
She also noted that prior to his overnight detention, the police had first tried to obtain the DNA sample from Anwar by taking him to Hospital Kuala Lumpur for a check-up.
Continuing the submission, Ramkarpal said the DNA samples collected, which were likely degraded, cannot be taken as reliable evidence against Anwar.
He said DNA evidence is mainly corroborative and should be taken in light of other evidence.
"There is too much reliance on DNA evidence. Even if there is DNA evidence, it would be of little or no value," he said.
Ramkarpal said there is a list of information that was withheld from the defence team, including notes, guidelines or documents from the government's DNA expert.
When DNA samples are submitted as evidence, he said the standard documents that should be disclosed include the chemist's actual report, summary of the findings and a technical report.
However, he stressed the defence was not provided with this information, making it a serious disadvantage.
Ramkarpal will continue his submission tomorrow.
- The Sun Daily
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