KUALA LUMPUR – Authorities can depend entirely on secondary evidence to officially “identify” Kim Jong-nam without having to wait for DNA samples from his next of kin, to match his.
Experts say the law allows for this, provided that all the secondary evidence sourced could be supported by strong evidence to trace it back to Jong-nam, the estranged half-brother of North Korean leader Kim Jong-un.
Jong-nam was the subject of an assassination at the Kuala Lumpur International Airport 2 on Feb 13.
Dr Geshina Ayu Mat Saat, who is a psychologist and criminologist with Universiti Sains Malaysia, (USM) said Sections 63 and 65 of the Evidence Act 1950 provided that secondary evidence would be admissible as evidence in court under specific circumstances.
“Generally, the use of secondary evidence is admissible if the original (documents or information) is public and the law allows for its production.
“If the person (witness) has seen the original or a copy of the evidence furnished that had been compared with the original, it is admissible, too,” she told the New Straits Times.
The Evidence Act also permits the use of oral accounts of the contents of a document given by a person who “has himself seen” or “heard it” or “perceived it by whatever means”.
In cases where the deceased had been identified via an official document, like a passport or an assumed name, Geshina said there was still a need for the authorities to make sure that the secondary evidence was traceable to the correct name and presumed name.
Geshina was asked to comment on the possibility of using secondary evidence to identify the body of Kim Jong-nam if his next of kin failed to show up to provide DNA samples.
On Feb 17, Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi confirmed that it was Jong-nam who was killed at the departure hall of klia2 on Feb 13.
Jong-nam was, however, travelling on a North Korean diplomatic passport under the name “Kim Chol”.
Meanwhile, forensics science expert Associate Professor Dr Zafarina Zainuddin said DNA testing was not necessarily the main source for of primary identification for human remains, especially if the body of the deceased had yet to decompose.
“We don’t actually need to do DNA testing if when we can identify the deceased using physical identification methods.
“In forensics identification, there are normally three levels — the physical (identification) where the person’s face can still be recognised and matching can be done, checks on the person’s implants, and the birthmarks, which must be unique enough for the family members of the deceased to positively identify him.
“Then, there is the matching of dental records. A match in dental or fingerprint records would produce a definitive result,” Dr Zafarina, who is the head of USM’s School of Health Sciences’ Human Identification/DNA Unit, said.
She said the result of the identification process would be considered “conclusive” if several of the secondary identifiers matched the subject.
“If all methods fail, only then should the DNA option comes in… DNA testing is not the primary form of identification for the deceased, especially if their the body is still intact or recognisable.
“The credibility of the reference sample is usually the issue in DNA identification. There had been many precedents where the child of a deceased man (who provided the referral sample) turned out to be someone else’s,” she said, adding that, however, if the reference sample was well established, then the results of DNA identification would be 99.99 per cent accurate.
Dr Zafarina also said the authorities must first ensure the status of Jong-nam’s next of kin, in the event he presented himself to provide a referral DNA sample or identify his body.
“We have to be sure of this person’s credibility. This person will also have to describe certain unique features, including significant birthmarks, on the deceased.”