This follows the emergence of a medical report that was done before the supposed second one which investigators have based their charge against Anwar on.
Malaysia’s Director-General of Health says the medical record that has been leaked should have been kept confidential.
And Home Minister Syed Hamid Albar is also calling for action to be taken against the person or persons who leaked the report.
Yvonne Gomez speaks to lawyer Sankara Nair, who is one of the members of Anwar’s legal team to find out if patient confidentiality rules apply when it comes to important evidence that can be used in a legal trial.
SN: The issue of the legality of the report or any information that comes to trial matters not because the Court, in the English system, unlike America, whatever that comes, even if it’s illegally obtained, can be admitted, if it is true.
How does this leaked medical examination record complicate the sodomy case against Anwar?
SN: It doesn’t complicate out case. It complicates the case for the possible prosecutors, because there is this evidence that has been available then itself, from the beginning, and it was not acted upon then, and then the investigation should’ve stopped because if at the first instance there is no evidence of sodomy, then why, in the first place, probe further, unless you are considering persecution, rather then prosecution.
The Health Ministry, however, has said that it stands by the findings of the other medical examination conducted by doctors from the Kuala Lumpur hospital. What happens in legal cases when two conflicting reports like this emerge?
SN: Clearly then, the benefit of the doubt must go to the accused, because that is, again, our system of English law that we practice in Malaysia. Whenever there is, even in a trial in a court of law in Malaysia, and in Commonwealth countries, evidence that is favouring the accused, then the benefit must be given to the accused. The benefit here, as I said, must go to the accused. So if there are conflicting reports which would then suggest that it would be unsafe, then the second report that’s going to be coming out, providing they are going to start prosecuting, will be rather suspect isn’t it? The result of which is that the court will always go in favour of the accused, you see?
As lawyers for Anwar, how would you and your team try to downplay the other report and call it that into question, if this goes to trial?
SN: We will obviously have to submit that there is, in the first instance, the police are investigating and then they come across a report which suggests that there’s no sodomy, and then comes a subsequent report. So we have to shoot holes into that report because why would the second report be then used for prosecution? It’s the motive that counts for a lot, doesn’t it? So that would be the main thrust of the argument. Secondly, we’ll obviously have to cross-examine very, very deeply into the fact of how the doctor submitted something new when it was not there in the first place. So there is a conflict and this is crucial evidence, you know?
Anwar has mentioned something about the authorities wanting to collect new DNA samples from him. Where does that fall into this investigation?
SN: Right now, from what we hear from the media, they are going to use the old samples. We’ve stated very clearly why we will not give it this time around because they already have the old samples. This has happened before in the earlier trial where we went through the whole process and we were going to debunk the DNA story and as soon as it was going to be evident, they withdrew the whole evidence and expunged it from the record. I was involved in the first trial itself and this being the trend, clearly we’ve advised out client not to give it.
What does the failure of the police to disclose this other medical report suggest for the bigger picture?
SN: This is where the conspiracy theory comes in. the police’s job is to investigate independently and neutrally and not to go in for prosecution. That should not be the attitude. If they see something that is in favour of the person they are investigating, they should then immediately call in the parties and say look, I think we can’t go further because this is in favour of the accused the A-G will then have to make a complete withdrawal of the whole matter.
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