1MDB-Tanore: Defense says admission of audio recording violates Najib’s right to a fair trial

KUALA LUMPUR (November 22): Datuk Seri Najib Razak’s defense in the ongoing 1Malaysia Development Bhd-Tanore (1MDB-Tanore) trial argued on Tuesday November 22 that the admission of an audio recording of an alleged conversation between Najib and a Middle Eastern leader would undermine the former prime minister’s right to a fair trial.

Lead Defense Counsel Tan Sri Muhammad Shafee Abdullah said so during his submissions on the admissibility of the audio the prosecution is seeking to admit to counter Najib’s defense that money at heart of the charges he faces in this trial were donations.

Muhammad Shafee argued that the prosecution’s reliance on Section 41A of the Malaysian Anti-Corruption Commission (MACC) Act for the admission of the audio was too “simplistic” and “demolishes all Guarantees” of the Evidence Act 1950, thus affecting Najib’s right to a fair trial.

He also added that there was no evidence of how the audio was made and argued that Article 43 of the same law defined the procedures for obtaining recordings.

“He is [a] question [of] not just the criminal investigation process. It also touches a lot on the constitutional right of the person.

“Can MACC just type [a] conversation without obeying their own law [which is] Article 43?” he said.

Last Monday (November 14), the prosecution introduced the recording during the hearing. They wanted former Treasury Secretary Tan Sri Mohd Irwan Serigar Abdullah to identify the voices in the audio.

However, Muhammad Shafee had objected to the admission of the audio and suggested that the recording may have been obtained illegally.

During submissions last week, Senior Prosecutor Datuk Seri Gopal Sri Ram had argued that the recording should be admissible under MACC Section 41(A) and that it is a “special provision” which takes precedence over Section 65 of the Evidence Act which deals with documentary evidence.

He also said that even if the audio was obtained “irregularly or unlawfully”, it would still be admissible.

A specific section of the MACC law cannot be applied retrospectively in the case of Najib

Earlier, Muhammad Shafee pointed out, among other things, that Section 41A the prosecution relied on came into force in October 2018, but the charges against Najib in this trial were from 2011 to 2013. He said that it cannot be applied retrospectively in his client’s case.

“The first accusation [was] Related [to alleged offences] 2011, second [alleged offence was in] 2012, third [alleged offence was in] 2013, fourth [alleged offence was in] 2014, and [for the] MLA fees, [all were alleged offences in] 2013.

“The point I want to make is that the amendment to this MACC [Act] came on October 1, 2018. Our assertion is that it cannot be applied retrospectively.

“You can’t just call it procedural or probationary and apply it retrospectively,” the defense attorney explained.

The trial before High Court Judge Datuk Collin Lawrence Sequerah continues.

The Edge covers the trial live here.

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

Read also:
Prosecution in 1MDB-Tanore trial seeks to admit audio recording of alleged conversation between Najib and Middle East leader

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