PUTRAJAYA - The defence has contended that the "Male Y" DNA profile found in an evidence sample taken from Mohd Saiful Bukhari Azlan's rectum did not belong to Datuk Seri Anwar Ibrahim.
Anwar's co-counsel Sangeet Kaur Deo submitted that there was no evidence adduced in the sodomy trial on the identity of Male Y.
She also said police had obtained Anwar's DNA profile from three items, namely a toothbrush, a towel and a bottle of mineral water, which were obtained when he was detained overnight at the city police headquarters lockup on July 16, 2008.
Sangeet said it was the prosecution's case that the DNA found on these items matched the DNA found in Mohd Saiful's rectum.
"But there is no evidence of whose DNA it is. So, they called it Male Y. The question is, who is Male Y?" she said on the second day of the appeal hearing.
Sangeet argued that it was impossible to link Male Y to Anwar.
Questioned by Chief Justice Arifin Zakaria, who chaired a five-man panel, Sangeet said that Male Y could have been anyone.
Others in the quorum are Federal Court judges Justices Abdull Hamid Embong, Suriyadi Halim Omar and Ramly Ali.
Sangeet argued that the prosecution's evidence with regard to the items was circumstantial as nobody saw Anwar use them.
She said the prosecution called three officers on duty at the lockup that day who recorded Anwar's every move in detail.
"In the lockup diary submitted as evidence, every moment of the accused appeared to have been recorded, such as him leaning on the cell's bars and sleeping. Yet none of these witnesses mentioned having seen the accused use these items," she said.
She said that without the items from the lock-up, there was a major gap in the prosecution's case as the prosecution failed to link the DNA of Male Y to Anwar.
Sangeet also contended that the police obtained the items by unfair means and methods.
She said Anwar was called to the city police headquarters on July 16, 2008 to record his statement, but later taken to Hospital Kuala Lumpur to obtain his DNA sample, which he refused to provide.
"The police realised there was no way to legally compel him to give samples (for DNA profiling). They resorted to obtain it by tricks and deception," she said.
She said Anwar was brought back to the city police headquarters and given the items by a certain DSP Yahya.
She also said that the High Court judge had erred when he reversed his earlier decision excluding those items as evidence.
"All available evidence has to be investigated and decided at a voir dire (trial within a trial). It is only in very rare and unusual cases when further evidence emerges later, that allows a judge to review his earlier ruling," she said.
Sangeet further argued that the police abused their power in detaining Anwar and that his arrest was unlawful as it was made without any grounds.
Among others, Sangeet argued that there had been non-compliance with Rule 20 of the Lock-up Rules 1953.
Anwar, 67, is appealing against his conviction and five-year jail term imposed by the Court of Appeal on March 7. The PKR leader was acquitted by the High Court on Jan 9, 2012 for allegedly sodomising Mohd Saiful, then 23, at a condominium unit in Bukit Damansara on June 26, 2008. The prosecution is appealing for a longer jail term.