KUALA LUMPUR, Dec 6 — The prosecution’s attempt to adduce a recording of Datuk Seri Najib Razak’s conversation with a person from the United Arab Emirates royal family in his 1Malaysia Development Berhad (1MDB) trial was illegal, his lawyer claimed today.
Najib’s lead defence lawyer Tan Sri Muhammad Shafee Abdullah claimed the prosecution was also trying to use a “backdoor” for this purpose, by using a provision in an anti-corruption law to bypass legal requirements for authorised wiretaps.
Insisting that Najib has a right to privacy under the Federal Constitution, Shafee hurled this accusation against the prosecution: “How they are bringing this tape to be brought as evidence is what I would call a backdoor entry, illegal.”
The prosecution sought to bring in the audio clip using Section 41A of the Malaysian Anti-Corruption Commission Act, which allowed any document obtained by the MACC to be admitted or accepted as evidence in corruption trials, even if it violated any other written law. The prosecution had said “document” includes tape recordings, based on other court cases and written law.
The prosecution argued that this meant it need not fulfil the strict requirements under any other laws such as the Evidence Act.
But Shafee objected to the clip being used as evidence in the 1MDB trial, arguing that the prosecution should have used Section 43 of the MACC Act, which requires wiretapping or listening in of conversations to be done legally and under authorisation.
“This is an abuse of the court’s process, a backdoor mode by compelling the court to admit documentary evidence under Section 41A,” he said.
Shafee argued that the prosecution had not shown to the court why Section 43 should not apply to the audio clip featuring Najib’s voice, suggesting that this was due to the prosecution allegedly failing to comply with Section 43 and therefore resorting to using Section 41A to bring in the audio recording as evidence for the 1MDB trial.
Shafee suggested the prosecution’s approach is that it was insisting the audio clip with Najib’s voice is admissible in court as evidence regardless of how the evidence was obtained or whether it was illegally obtained, by using Section 41A.
“This is a total abuse without considering Article 5, Article 8 and Article 121 of our Federal Constitution,” he claimed, referring to the right to fair trial, right to equality and the judicial powers of the High Court judge.
“If there’s abuse, Yang Arif must correct and prevent it from happening,” he said.
Datuk Seri Najib Razak arrives at Palace of Justice Putrajaya August 19, 2022. — Picture by Shafwan Zaidon
Citing Parliament’s Hansard which recorded debates in the Dewan Rakyat when the Section 41A was being proposed as a legal amendment, Shafee argued Section 41A was only meant to apply to a limited situation to facilitate investigation during the gathering of evidence, and where the truth or authenticity of the documents involved is not in dispute and can therefore be brought as court evidence without having to fulfill the requirement to show its origins.
“Clearly Section 41A is not meant to short circuit substantive evidence where there is requirement to prove the provenance, the history and the originality — like for instance, tape recording — that is never set aside,” he said.
Shafee suggested that the prosecution is unable to comply with Section 43, as that would require those who did the wiretapping and recorded the conversation between Najib and the UAE royalty to show that it was a wiretapping authorised by the attorney-general.
“They would have to come and say we got the AG’s permission, otherwise it’s a total breach of Article 5. My client has got Article 5 rights, namely the right to have his conversation maintained in privacy. You want to breach privacy under Article 5, you got to run to the AG and ask for compliance,” Shafee said, noting that the prosecution has yet to say how the tape recording came about.
“That’s because they can’t introduce it, because it will show the entire state of affairs of certain agencies who disregard human rights, who disregard constitutional rights in this country. That is something which Yang Arif cannot sanction. Doesn’t matter whether Special Branch or not, they are not that special, they have got to comply,” he said.
Lead prosecutor Datuk Seri Gopal Sri Ram is pictured at the Kuala Lumpur High Court September 12, 2022. — Picture by Hari Anggara
Lead prosecutor Datuk Seri Gopal Sri Ram however pointed out that Section 43 is during the investigation stage, and that the prosecution is relying on Section 41A instead of Section 43 to introduce the audio clip as evidence in the 1MDB trial.
Sri Ram explained that Section 43 covers the right to intercept, listen in and record conversations, and any information obtained from such wiretapping — instead of the recording — can be admitted in court if anyone is charged under the MACC Act.
He contrasted this with Section 41A which is used during corruption trials under the MACC Act, and argued that documents — such as the audio recording with Najib’s voice — may be admitted in court via Section 41A as long as they are “relevant”.
He said both Section 43 and Section 41A are individual or standalone sections that are vastly different.
Ultimately, Sri Ram concluded by arguing that the prosecution is entitled under the law to bring in the audio clip of Najib’s voice and the transcript of the recording as court evidence, as it was necessary to counter Najib’s claim that the RM2.28 billion which entered his personal bank accounts were donations from Saudi Arabia’s royalty.
“As I’ve already said, our purpose in introducing the recording is to rebut the defence’s contention that the accused honestly believed that monies that went into his accounts were a donation from Saudi Arabia. To rebut that defence, we are entitled to do that, because of Section 8 of the Evidence Act,” he said.
Section 8 states that relevant facts include facts that show a “motive” or preparation for any relevant fact, and also covers both previous or subsequent conduct in relation to relevant facts.
Tan Sri Dr Mohd Irwan Serigar bin Abdullah leaves the Kuala Lumpur High Court during lunch break November 24,2022. — Picture by Raymond Manuel
Previously on November 15, Sri Ram had started playing an audio clip in court and showed the transcript, with 42nd prosecution witness and former 1MDB chairman Tan Sri Mohd Irwan Serigar Abdullah identifying one of the voices there as sounding like Najib’s voice.
The voice identified as sounding like Najib had addressed the other individual as “Your Highness” and spoke about the need to resolve an impasse regarding 1MDB and IPIC which was alleged to be embarrassing to both Malaysia and the UAE.
Shafee had however on that day interrupted the playing of the audio clip by objecting to the recording as allegedly being “illegal”, which has resulted in arguments being presented by both Sri Ram and Shafee to the judge since then.
Today is the fifth day of arguments or submissions being presented to the High Court on whether the audio clip can be used as court evidence in the 1MDB trial and whether Section 41A — which would enable the audio recording being brought to court — is valid and constitutional.
High Court judge Datuk Collin Lawrence Sequerah will decide on whether the audio clip can be admitted as evidence, before Irwan Serigar is called in to resume his testimony.
Najib’s 1MDB trial resumes tomorrow afternoon, with former AmBank banker Joanna Yu expected to be cross-examined by Shafee as the 41st prosecution witness.