By David Bentley QC
Doughty Street International was approached last year to look into possible appeal grounds in this case arising out of DNA evidence used at Malaysian politician Anwar Ibrahim’s notorious 2010 trial, and which formed a vital element in the prosecution case.
The Sodomy allegations against Anwar had been widely viewed as “trumped up” charges – and as politically motivated. The US authorities had denounced the proceedings as a “show trial”.
The particular difficulty we faced as his UK lawyers was that the case had been all the way to the top of the court system in Malaysia, and on the face of it (short of a pardon) there was no-where else to go.
A brief (potted) history of the proceedings
- 2010 Anwar’s Sodomy trial begins in High Court in Kuala Lumpa
- Jan 2012 – trial ends with an acquittal. The Judge ruling that issues over the handling of a vital exhibit bag containing DNA samples meant “confidence in the integrity of the samples was gone, and that he couldn’t rule out the possibility that the integrity of the samples had been compromised.”
- April 2014 – a prosecution appeal to the Court of Appeal leads to acquittal being set aside, and guilty verdicts substituted. Along with the imposition of a 5 year sentence of imprisonment.
- February 2015. Defence appeal to highest court in Malaysia (Federal Court) which upholds the Court of Appeal decision. Anwar begins serving his sentence.
- December 2016. Further defence application to Federal Court to review its earlier decision rejected.
Assisted by Yusmadi Yusoff in Malaysia, Jen Robinson and Nicola Peart (then a pupil here), we reconstructed the evidence given at the original trial. This initially involved sifting through 22 volumes of transcripts and exhibits (fortunately mostly in English).
We looked at how the DNA arguments had been advanced at various stages of the Malaysian proceedings, examined critically what the appeal courts had said, and looked at authorities and best practice in this area of evidence within our own jurisdiction - to see whether the prosecution expert evidence at trial was sufficiently robust to underpin the conviction.
Two Australian DNA experts called at trial by the defence had been comprehensively rubbished on appeal - described by Court of Appeal as “mere armchair experts” whose evidence had “overwhelmed” the judge at first instance. That judge was said to have made a “serious error” in accepting their evidence.
The defence experts fared no better in the Federal Court – their expert evidence had “not raised any reasonable doubt”
There were real concerns as to the safety of the conviction. We identified issues of integrity flowing from unorthodox handling of key exhibits. Additionally there were worrying contamination issues. We found a failure by government scientists properly to follow their own laboratory protocols, and failing to employ sufficiently robust laboratory procedures.
Viewed from UK perspective, we found clear shortcomings in the DNA evidence presented at trial, and I advised that a fresh review of the science be conducted.
Events gather pace
April 2018, with an election looming, a Free Anwar campaign press conference in Malaysia was addressed by Nurul Izzah (MP and daughter of Anwar Ibrahim) and Yusmadi Yusoff - with my opinion on the DNA being made public, alongside a call by the campaign for the government to carry out a full review of the DNA evidence.
Then, in May 2018, the incumbent government lost the election.
There followed the immediate release of Anwar, through the issuing of a Royal Pardon. Based not on any technicality, but on basis of there having been a miscarriage of justice. The King told Anwar that this was the reversal of "a clear miscarriage of justice”, and that “I cannot tolerate this and therefore your pardon is to be immediate and unconditional”.
It is concerning that a man had to be imprisoned for so long on such poor evidence, and that the courts repeatedly brushed aside real concerns over the safety of the conviction. But the eventual overturning of this notorious conviction is surely a ground for optimism in relation to the future health of the rule of law in Malaysia.
The above article is a precis of the oral presentation made by David Bentley QC at the seminar “The future of the rule of law in Malaysia: in conversation with Anwar Ibrahim”, held at Doughty Street Chambers, London on 13th June 2018, moderated by Jennifer Robinson, and at which Anwar Ibrahim himself was the guest speaker.