1MDB-Tanore: Prosecution argues recording of Najib and Middle Eastern leader admissible as evidence based on MACC Act, which takes precedence over any contrary laws

Senior public prosecutor Datuk Seri Gopal Sri Ram (Photo by Zahid Izzani Mohd Said/The Edge)

Senior public prosecutor Datuk Seri Gopal Sri Ram (Photo by Zahid Izzani Mohd Said/The Edge)

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KUALA LUMPUR (Dec 5): The prosecution in the 1Malaysia Development Bhd (1MDB)-Tanore trial, which is seeking to admit as evidence an audio recording of an alleged conversation between Datuk Seri Najib Razak and a Middle Eastern leader, said the Malaysian Anti-Corruption Commission (MACC) Act 2009 has provided for any evidence obtained to prove graft be admitted as evidence in any proceedings under the Act, regardless of any contrary laws.

Senior public prosecutor Datuk Seri Gopal Sri Ram told the Kuala Lumpur High Court this during submissions on the admissibility of the audio recording as evidence on Monday (Dec 5), in response to the defence's objection to the recording being admitted as evidence, and their allusion that it might have been illegally obtained.

Sri Ram argued that the objective of Section 41A of the MACC Act 2009 is to prevent those accused of graft to escape punishment when provenance (the origin) could not be established.

The prosecution has claimed that the audio recording would be able to counter Najib's defence that monies at the heart of the charges the former prime minister faces in the trial were only donations.

Section 41A of the MACC Act states that where any document or a copy of any document is obtained by the MACC under this Act, such a document shall be admissible in evidence in any proceedings under this Act, notwithstanding anything to the contrary in any other written law.

"Bringing corrupt individuals to justice in accordance with the strict rules governing the prerequisites to admissibility under the Evidence Act may prove to be an insurmountable hurdle, especially when in these days where transactions in millions can be carried out electronically in the flash of an eye or where, as here, millions in cash were surreptitiously handed over.

"Requiring the prosecution to prove each and every document in accordance with the strict requirements of the 1950 [Evidence] Act could lead to the escape of many a corrupt criminal. The policy behind the introduction of Section 41A is to avoid this consequence," the prosecution argued.

Last month, the prosecution wanted former Treasury secretary general Tan Sri Dr Mohd Irwan Serigar Abdullah to identify the voices in the audio.

The recording, which is yet to be played in court, is believed to be part of recordings revealed by former MACC chief Latheefa Koya at a press conference in 2020, allegedly linked to SRC International Sdn Bhd and 1MDB.

SRC is a former subsidiary of 1MDB.

During submissions last month, Sri Ram argued that Section 41A is a "special provision" that takes precedence over Section 65 of the Evidence Act, which deals with documentary evidence. Even if the audio was obtained "irregularly or illegally", it would still be admissible, he said.

In the defence's objection, lead defence counsel Tan Sri Muhammad Shafee Abdullah contended that the prosecution's reliance on Section 41A is too "simplistic" and "demolishes all the safeguards" in the Evidence Act, thus impacting Najib's right to a fair trial.

On Monday, Sri Ram argued that the aforementioned Section 41A does not deny Najib a fair trial.

He also said while the prosecution agrees that Section 41A is discriminatory law, it is "perfectly proper" for Parliament to pass discriminatory law to counter graft.

"It discriminates between persons charged for corruption under the Act and persons who are not charged under corruption in the charge. It doesn't apply to those charged for corruption under the Penal Code," he said.

The former apex court judge also said that Section 41A has specified that any document obtained by the MACC under this Act "dictates" that it should be admissible as evidence.

"But the weight to be given to the evidence is left to the court. Even the Evidence Act does not dictate the weight to be given to the evidence," he added.

Shafee unwell, proceedings to resume on Tuesday

The defence will reply to the prosecution's submissions on another day, as lead counsel Shafee has taken ill, according to fellow defence counsel Tania Scivetti, who informed the court of the matter that they will produce a medical certificate for his absence.

The prosecution had former AmBank relationship manager Joanna Yu lined up as a witness on Monday, and Shafee was slated to cross-examine her. Yu is now expected to take the stand on Tuesday, when the trial before High Court judge Datuk Collin Lawrence Sequerah resumes.

Najib, who was reportedly hospitalised last week, was dressed in a dark-coloured suit as he attended the court proceedings on Monday. Also presen was his wife Datin Seri Rosmah Mansor.

In this trial, Najib is facing four counts of abuse of power and 21 counts of money laundering involving RM2.28 billion of 1MDB's monies.

The Edge is covering the trial live here.

Users of The Edge Markets app may tap here to access the live report.

Read also:
1MDB-Tanore: Defence says admitting audio recording infringes on Najib's right to fair trial
Prosecution in 1MDB-Tanore trial seeks to admit audio recording of alleged conversation between Najib and Middle Eastern leader

Tan Choe Choe