Karpal Singh said the items, from which DNA profiling was gained, were retrieved through improper and unfair means of deception or trickery.
The senior lawyer said Anwar had testified that three of his lawyers - Param Cumaraswamy, Sivarasa Rasiah, and Sankara Nair - were at the Malaysian Anti-Corruption Commission office on July 16, 2008, to have his statement recorded.
At that time Anwar was aware of the 2pm appointment at the IPK (police headquarters) Kuala Lumpur to give a Section 112 statement in relation to Mohd Saiful Bukhari Azlan's (sodomy) complaint.
Anwar also testified that he had requested the MACC officers to allow him to leave for Kuala Lumpur in order to give his statement to the police, he said.
On the way back, Karpal argued that Anwar's car was ambushed by several unmarked vehicles and police cars with 10 to 15 UTK commandos clad in balaclavas and armed with machine guns.
Sankara who was seated in front, had asked Supt Ahmad Taufik Abdullah for the grounds of the arrest, but the officer replied he was merely following orders to arrest Anwar. Sankara was not told the grounds and neither was Anwar when Taufik accompanied him to be seated at the back of the police car.
"Cross-examined by Solicitor-General II Mohd Yusof Zainal Abiden, Anwar denied having any knowledge as to why he was arrested.
Arrest in contravention of constitution
Karpal submitted the arrest was in contravention of Article 5 (3) namely a person who is arrested, shall be informed ! as soon as may be, on the grounds of his arrest. Also section 28A(1) of the Criminal Procedure Code states "A person arrested without a warrant shall be informed as soon as may be of the grounds of his arrest by the police officer making the arrest".
The senior lawyer said if Anwar's and Sankara's evidence is accepted, namely that no grounds of arrest were given by Taufik, the arrest should be considered illegal. "In law, a police officer arresting a person without a warrant both under Article 5(3) and section 28A(1) is required to furnish the person arrested the grounds for his arrest. Any violation would be to infringe these fundamental rights. Furthermore, the warrant of arrest was not produced.
"Surely Taufik would have known the grounds upon which he intended to arrest Anwar, before he led the police contingent to nab him. A weak attempt is made by Taufik to justify Anwar's arrest at the IPK Kuala Lumpur with the production of a copy of the warrant of arrest," he said.
Earlier the court decided not to allow the prosecution's application to admit the original copy of the warrant of arrest which solicitor-general II Mohd Yusof Zainal Abiden, claimed had been misplaced. The learned DPP attempted to justify the production of a photostat copy of the warrant of arrest relying on section 159 of the Evidence Act, 1950 to refresh Taufik's memory.
However, Karpal pointed out the provisions of section 159 (3) clearly prohibits the presentation of a copy "whenever the witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of that document, provided the court is satisfied there is sufficient reason for the non-production of the original."
"The warrant of arrest has not been proved and hence it must be disregarded. All the oral testimony on the warrant of arrest must also fall."
Sample must obtain Anwar's consent
Karpal said t! he items procured for DNA profiling by the police were obtained by improper and unfair means - by deception or trickery. "The samples retrieved must be with Anwar's consent. Anwar was also traumatised at being medically examined where his private parts and pubic hair were measured. He described it as degrading."
Karpal also submitted the prosecution's failure to call investigating officer Superintendent Jude Blacious Pereira, DSP Yahya Abdul Rahman and CID chief Bakri Zinin to rebut the sworn evidence given by Anwar, Sankara and Sivarasa in the trial-within-a-trial, is fatal.
"These personalities played a significant part in the arrest, detention, custody and procurement of the DNA samples from Anwar. Further police personnel in charge of the lock-up whose evidence would have been significant, were also not called to testify."
At the end of his submission, Karpal urged High Court judge Justice Mohamad Zabidin Mohd Diah to adopt a five member bench ruling in the Federal Court, in the Goi Ching Ang case which states:-
"There is a vested discretion in a trial judge to exclude evidence which is prejudicial to an accused even though the said evidence may be technically admissable.
"Evidence obtained in an oppressive manner by force or against the wishes of an accused person by trick or by conduct of which the police ought not to take advantage, would operate unfairly against the accused and should in the discretion of the court be rejected for admission," said Karpal.
The admissability or inadmissability of the three items the mineral water bottle, Good Morning towel and toothbrush, plays a crucial role in linking "Male Y" allegedly Saiful's perpetrator to Anwar. A decision in this matter will make or break the prosecution's case.
The hearing resumes tomorrow at 10am with Karpal replying to Yusof's submission.-Hafiz Yatim
'Karpal: Tangkapan tidak sah, bahan bukti mesti ditolak'