Lawyer Datuk Seri Gopal Sri Ram, a former Federal Court judge, argued that according to the evidence from the complainant Mohd Saiful at the High Court, the act was vigorous and fast and he suffered pain in his anus and stomach.
Submitting before a five-member panel of the Federal Court chaired by Chief Justice Tun Arifin Zakaria, Sri Ram said if that was correct, then a lubricant called KY Jelly could not have been used because it was to facilitate penetration and avoid pain.
He pointed out that the medical evidence had confirmed that no trauma or injury was found in Mohd Saiful’s anus.
Sri Ram further said the lubricant was not mentioned in the list of exhibits recovered by the prosecution from Mohd Saiful, who was the prosecution’s first witness in the sodomy trial.
“The absence of lubricant from the list casts serious doubt on the credibility of Mohd Saiful, and lack of credibility in the prosecution’s case and the entire investigation,” he said, adding that Mohd Saiful had also not mentioned in his police report on the usage of KY Jelly.
At this juncture, Justice Arifin asked Sri Ram why he said lack of credibility, to which he replied if the gel was used Mohd Saiful would not have suffered pain.
Sri Ram submitted that the learned trial judge did not address his mind to this part of the case at all despite strenuous cross-examination on the point (KY Jelly) by lawyer Karpal Singh.
Sri Ram said Mohd Saiful in his testimony said that the semen stayed in his anus for several days but in his evidence when cross-examined by Karpal, said he did not take a bath after the incident and only rinsed his body and he had taken a bath in the morning prior to the incident.
“It shows inconsistency in Mohd Saiful’s testimony,” he said.
Sri Ram said the KY gel was an important exhibit but had only appeared during the examination-in-chief by the prosecution on Mohd Saiful and furthermore Mohd Saiful had told the court he himself bought the gel before proceeding to the condominium.
Sri Ram said when asked by Karpal the first time whether the KY Jelly was an afterthought, Mohd Saiful agreed, however, he changed to disagree after he asked Karpal to repeat the question.
At today’s proceeding, KY Jelly was being focused by the defence but when the appeal was heard in the Court of Appeal on March 6 and 7, this year, it had been not been emphasised on.
In his final appeal, Anwar is seeking the Federal Court to set aside his five-year jail sentence for sodomising Mohd Saiful, 27, while the prosecution had filed a cross appeal to enhance the jail sentence imposed on Anwar, 67.
The defence had cited 46 grounds to persuade the court to acquit Anwar from the charge, saying that the conviction imposed by the Court of Appeal on March 7 was not safe.
On other grounds, Sri Ram also doubted on why Mohd Saiful had only lodged a police report two days after the alleged incident on the reason that he feared for his safety.
He said, if that was true, Mohd Saiful would have lodged the police report or had himself physically examined at the earliest opportunity, but Mohd Saiful had awaited two days to go to the hospital which led him to make the police report on June 28, 2008.
In attacking Mohd Saiful’s credibility as a key witness, Sri Ram said the conduct of Mohd Saiful at the material time of the alleged sodomy incident was inconsistent with his evidence.
Sri Ram argued that Mohd Saiful went to meet Anwar the following day after the incident for a discussion and later he attended a tea session with Anwar at Anwar’s house.
“His conduct on June 27, 2008, one day after the incident is particularly telling. He identified himself in the photograph taken at the tea session.
Looking at the picture, the demeanour of the first witness (Mohd Saiful) is significant,” he said.
Sri Ram said Mohd Saiful hardly looked like a person who was under a threat or a person acting out of fear and this part of the case was missed by the High Court and Court of Appeal.
On the next point, Sri Ram argued on two pieces of Mohd Saiful’s underwear that he wore during the incident and when he made the police report, which had not been highlighted during the appeal in the Court of Appeal.
He said Mohd Saiful had worn underwear on the day that he was allegedly sodomised but forensically useless because when the investigation officer seized it, it had been washed by the mother of Mohd Saiful’s fiancee.
However, the chemist found semen stains on another underwear which Mohd Saiful wore on the day when he made the police report on June 28, 2008.
“According to the prosecution, the stains came from the appellant, but the underwear was not the one worn by Mohd Saiful at the material time. Therefore, Mohd Saiful’s evidence is rendered unreliable.
“All these matters were completely overlooked by the High Court. The Court of Appeal found no mention of the underwear in the (High Court) judgement at first instance. Neither did it find this in the judgement convicting the appellant (Anwar),” he said.
Sri Ram said if it was true that Mohd Saiful had been sodomised, why did he wash the evidence which would prove his case, and in this case there were only two persons who witnessed the incident, and they were Mohd Saiful and Anwar.
The lawyer also said that the High Court had erred when there was no specific finding that Mohd Saiful was an accomplice with Anwar, and that seriously prejudiced his client.
He said the trial judge had completely overlooked the rule that an accomplice could not corroborate himself in doing such an act.
Earlier, before the hearing started, Anwar told reporters that he was mentally prepared to face any decision from the court.
When asked why Datuk Sulaiman Abdullah was not representing him, Anwar said Sulaiman was still unwell after surgery on his leg two months ago.
Anwar said he had appointed Sri Ram to replace Sulaiman last week.
Sri Ram, 70, who was with the Federal Court from 2009 until he retired in February 2010, had been a Court of Appeal judge for 15 years.
He was the first lawyer in private practice to be appointed straight to the Court of Appeal when it was first set up in the Sultan Abdul Samad Building in Jalan Raja, Kuala Lumpur.