Admissibility of audio recording violates Najib's right to a fair trial in 1MDB case - Defence

KUALA LUMPUR: The admission of an audio recording of an alleged conversation between Datuk Seri Najib Tun Razak and a leader from the Middle East could violate the former premier's fundamental rights to a fair trial, the High Court heard today.

Najib's lead defence counsel, Tan Sri Muhammad Shafee Abdullah submitted that should the audio recording be admitted as evidence in the former's trial involving the alleged misappropriation of RM2.3 billion from the 1Malaysia Development Berhad (1MDB) fund, it has also indirectly violated Najib's rights to privacy as enshrined in Article 5(1) of the Federal Constitution (FC).

Speaking on the rights of a fair trial, Muhammad Shafee contended that there are concerns over the legality of the method used by the Malaysian Anti-Corruption Commission (MACC) to obtain the audio recording.

"It is perhaps appropriate at this stage to consider the matters that must be established when introducing a recording including whether the compact disc (CD) was not tampered with or altered in any way and it should be established in whose possession the CD was at all times.

"MACC may have not complied with provisions under Section 43 of its own Act on how to legally obtain the audio recording...it must be construed as unconstitutional because it infringes the accused's rights to privacy, a right to a fair trial under Article 5(1) of the FC because the same allows the admissibility of evidence which negates the accused's right to privacy," said the lawyer.

The lawyer was responding to an application made by ad hoc prosecutor Datuk Seri Gopal Sri Ram, who sought to admit an audio recording to rebut the former prime minister's defence that the monies which went into his personal bank accounts were donations.

The said audio recording was played in court last week via a CD, during the 42nd prosecution witness examination-in-chief, former Treasury secretary-general Tan Sri Mohd Irwan Serigar Abdullah who identified one of the voices as sounding like Najib.

The voice allegedly sounded like Najib had addressed the other individual as "Your Highness" and spoke about the need to resolve an impasse regarding 1MDB and International Petroleum Investment Co (IPIC) which was said to be embarrassing to both Malaysia and the United Arab Emirates (UAE).

Sri Ram said that the recording should be admissible under Section 41(A) of the MACC Act and that it was a "special provision" which took precedence over Section 65 of the Evidence Act that dealt with documentary evidence.

"For that purpose, we also submit that a recording of this nature is a document. My Lord, even if the audio was obtained irregularly or illegally, it will still be admissible," said the prosecutor.

Muhammad Shafee countered that Section 41(A) of the MACC Act only came into force in Oct 2018 and it cannot be applied retrospectively as the charges faced by Najib stem from 2011 to 2014.

"The prosecution's argument that just because the audio recording was obtained under Section 41(A), it is ought to be admitted was "simplistic".

"Section 43 of the same act had laid out the procedures to follow in order to obtain the audio recording. Can MACC simply tap into any conversation without obeying their own law?" the lawyer asked.

The hearing of the submissions before Judge Datuk Collin Lawrence Sequerah continues tomorrow morning while the trial resumes this afternoon with The Edge Media Group chairman Tan Sri Tong Kooi Ong taking the stand.

Najib, 69, is facing four charges of using his position to obtain bribes totalling RM2.3 billion from 1MDB funds and 21 charges of money laundering involving the same amount.

-- BERNAMA