Najib's 1MDB trial ends early today as defence counsel Shafee unwell

KUALA LUMPUR, Dec 5 — Former prime minister Datuk Seri Najib Razak's trial over the misappropriation of RM2.28 billion of 1Malaysia Development Berhad (1MDB) funds ended earlier today, as his lead defence lawyer Tan Sri Muhammad Shafee Abdullah is unwell.

Hearing began this morning with lead prosecutor Datuk Seri Gopal Sri Ram presenting his arguments before High Court judge Datuk Collin Lawrence on why the prosecution should be allowed to play an audio clip featuring Najib's voice as evidence in this trial.

After Sri Ram completed his submissions, defence lawyer Tania Scivetti asked the High Court if Shafee could rebut tomorrow.

“We request Tan Sri Shafee continue the reply tomorrow, is that OK?” she asked.

Shafee had been absent from the courtroom the whole morning.

When asked by the judge, Scivetti confirmed that Shafee was not available today as “he is not feeling well”.

She said a medical certificate will be provided to court later.

Shafee was expected to cross-examine AmBank's former relationship manager Joanna Yu as the 41st prosecution witness this week.

Yu was sighted at the court complex today, but was not called into the courtroom to testify.

Since Shafee was unavailable, Sequerah said the trial will resume tomorrow morning.

Earlier before presenting his arguments, Sri Ram also informed the High Court that Shafee was unwell and unable to attend court proceedings today.

Sri Ram argued that the audio clip featuring Najib's voice should be admitted or accepted court as evidence in court for the 1MDB trial, based on Section 41A of the Malaysian Anti-Corruption Commission Act.

Under Section 41A, any document obtained by the MACC can be admissible in any court cases under the MACC Act, “notwithstanding” or even if it goes against any other written law. Sri Ram argued that the audio clip can be considered as a "document" under Section 41A.

Section 41A is important as it allows the prosecution to bring evidence obtained by the MACC into corruption trials, without having to first fulfill the strict requirements under the Evidence Act.

While Shafee had previously argued that Section 41A is allegedly inconsistent with Najib's right to a fair trial under Article 5 and right to equality under Article 8 of the Federal Constitution, Sri Ram argued Section 41A actually does not breach the accused person's constitutional rights.

Sri Ram highlighted previous court judgments which provided that there may be fair and justified limits on the right to a fair trial, pointing out that Section 41A actually still fulfills the need for equality, as it applies equally to everyone who is charged with corruption offences under the MACC Act.

"So in this case, Section 41A is housed in a statute that is directed to stamp out corruption, so it discriminates between persons charged with corruption under the (MACC) Act and persons who are not charged for corruption under the Act.

"It only applies to persons charged with corruption under this Act, for example, it doesn't apply to a case of a person tried under the Penal Code for bribery, so in that aspect, it meets the equality clause," he said when arguing that Section 41A is a fair law.

In this trial, Najib is facing 25 charges, including four charges for the misappropriation of 1MDB's RM2.28 billion under Section 23 of the MACC Act, which covers the offence of public officers using their office or position for any gratification.

Sri Ram pointed out the MACC Act is specifically directed at preventing and eradicating corruption and that Section 41A was introduced due to the difficulties sometimes in bringing corruption cases to the court if the Evidence Act is applied strictly, noting: "Corruption is not always easy to prove even through witnesses."

"The upshot is in our submission, that Section 41A was introduced and as can be seen from the long title of the Act, to facilitate proof of a document whose provenance may not be capable of being established to the perfection required by the Evidence Act.

"The other way of looking at the problem is to say that no person has a vested interest in the course of procedure, and if there is no vested interest in which evidence is to be led, if there is no vested interested in which a document is to be proved in a given case — then Article 5(1) is not infringed, because the trial is a fair trial, because all persons who are charged under the Act face the same consequence of having a document proved in a way Section 41A describes," he said.

Sri Ram said it would be "difficult, if not impossible" to prove charges if the strict rule of "provenance" or origin of documents — as specified in the Evidence Act — were to be maintained for corruption cases under the MACC Act, noting that Section 41A was introduced by Parliament to overcome this hurdle.

Ultimately, Sri Ram argued that Section 41A does not go against the Federal Constitution and urged the High Court to uphold its constitutionality.

Sri Ram also argued Section 41A can be applied retrospectively and said the prosecution is seeking to rely on it in a trial long after it had been introduced as an amendment to the law.

Among other things, Sri Ram also said the High Court judge's judicial powers would not be affected, as Section 41A only makes evidence such as the audio clip to be admissible in court, but does not dictate what weight the judge should give to such evidence.

Sri Ram said the judge still retains the right and power to give such evidence zero weight or minimal weight after it has been accepted as evidence in the trial.

"So on that basis to put our case in its proper perspective, we say we should be entitled to question the 42nd prosecution witness to identify the voices on the tape recording, then it is up to Your Lordship to decide whether what weight it is to be given," he concluded, arguing that the audio clip of a conversation between Najib and another individual is relevant as evidence to rebut Najib's defence in the 1MDB trial.

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 fourth 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.