KUALA LUMPUR, Sept 22 — The High Court today allowed the prosecution to start proceedings in its bid to impeach a defence witness who was testifying in Datuk Seri Ahmad Zahid Hamidi’s favour.
In other words, the prosecution was allowed to start court proceedings to challenge the credibility of this witness over inconsistencies in what he had told the Malaysian Anti-Corruption Commission (MACC) previously and over what he had told the court today.
After hearing arguments from both the prosecution and Zahid’s lawyer, High Court judge Datuk Collin Lawrence Sequerah decided that the prosecution could start impeachment proceedings against Zahid’s third defence witness Jefri Jamil.
“The ruling of this court is that Section 155 of the Evidence Act allows impeachment under circumstances set out in this Act, and these sections do not allude to whether the documents are classified as OSA (Official Secrets Act) or otherwise. So the ruling of this court is I will allow impeachment proceedings to commence,” the judge said.
Under Section 155, a witness may be impeached through the showing of proof that the witness’s former statements are inconsistent with any part of his evidence. Section 155 did not specify the nature of such statements.
Earlier, the 38-year-old Jefri who is the director of construction contractor Teknik Sempurna (M) Sdn Bhd read his witness statement in court and also answered questions from Zahid’s lawyer Aiman Abdul Rahman during examination-in-chief and answered questions from the prosecution during cross-examination.
Jefri was testifying as the third defence witness for Zahid in the latter’s trial involving 47 charges revolving around alleged corruption by allegedly receiving bribes, alleged criminal breach of trust of Yayasan Akalbudi’s funds and alleged money laundering.
After Jefri said he did not recall what he had told the Malaysian Anti-Corruption Commission (MACC) in the past when his statement was recorded, lead prosecutor Datuk Raja Rozela Raja Toran informed the High Court that the prosecution wishes to initiate impeachment proceedings against this witness.
The prosecution’s bid to impeach Jefri is based on contradictions between what he had told the MACC during investigations and what he had told the court today during Zahid’s trial.
Zahid’s lawyer Datuk Hisyam Teh Poh Teik then objected to the prosecution’s application to start impeachment proceedings against Jefri, noting that Zahid’s legal team had previously asked for Jefri’s statement to the MACC to be provided and that the prosecution had classified such documents under the Official Secrets Act.
“So under these circumstances, I think the application by my learned friend cannot stand. These papers have now been classified under OSA, official secrets,” he argued.
Arguing that the prosecution cannot be “blowing hot and cold”, Hisyam said it would be unfair for the prosecution to object to and deny Zahid’s lawyers access to the MACC statements by citing OSA, and for the prosecution to be able to rely on the MACC statements when it suits the prosecution.
Raja Rozela pointed out that Section 155 allows a witness to be impeached if his court testimony is inconsistent with a former or previous statement, and argued that Zahid’s lawyers’ previous bid to gain access to the MACC statements is a different matter from the impeachment bid.
“It is wrong to say we are blowing hot and cold, because the action we are taking is governed by two separate provisions of the law, we are entitled to initiate the impeachment proceedings, if Your Lordship would allow us to do so, upon finding that there is a material discrepancy in the statements,” she said.
Hisyam argued the prosecution would not be able to refer to the classified MACC statements to impeach Jefri unless they declassify those documents first, noting: “I’ve been saying under the Evidence Act, impeachment can commence, but because of the unique nature of stance taken by the prosecution in making the classification, they are caught by their own act.”
Raja Rozela however argued that whether the documents are declassified is irrelevant and is a separate matter to the impeachment bid.
After hearing both sides, the judge then allowed the prosecution to start the proceedings to impeach Jefri.
This does not mean that Jefri has already been impeached or has become a witness who is not truthful or not credible.
For situations such as Jefri’s case, impeachment proceedings typically involve the determining of whether there were material contradictions in what he had previously said and what he was telling the court, and could result in the witness then being given a chance to explain the contradictions before the court decides if the explanations are satisfactory or if the witness is impeached.
In this trial, Zahid is facing 47 charges, namely 12 counts of criminal breach of trust in relation to RM31 million of charitable foundation Yayasan Akalbudi’s funds, 27 counts of money-laundering, and eight counts of bribery charges over the receiving of RM21.25 million in alleged bribes.
The trial will resume this afternoon.
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