Arul Kanda 'happily agree' to testify against Najib in 1MDB audit tampering trial - Counsel

Arul Kanda's counsel Datuk N. Sivananthan told High Court Judge Mohamed Zaini Mazlan that his client who is an accused person in the same trial as Najib was prepared to stand by his previous statement to the Malaysian Anti-Corruption Commission (MACC) during investigations for this case.

Mohamed Zaini: Your client is objecting to the prosecution's application (prosecution witness)?

Sivananthan: The position my client is taking, he has given his statement to the MACC when he was investigated, his position has always been and is now he's prepared to take the position that that statement he's given the prosecution, he's prepared to stand by those statements, if that is what the prosecution wants, he would happily agree.

Mohamed Zaini: So, in English, it means yes?

As the entire court reverberated with laughter at the judge's remark, the lawyer said this is why they are lawyers and added that his client "happily agrees" with the prosecution's request.

The judge fixed June 24 to deliver his decision after having heard submissions from Senior Deputy Public Prosecutor (DPP) Datuk Seri Gopal Sri Ram and also Najib's lead defence lawyer Tan Sri Muhammad Shafee Abdullah.

At this juncture, another DPP, Ahmad Akram Gharib stood up and said Arul Kanda would be called to the stand immediately after the decision if the prosecution's application is allowed.

Otherwise, he said an investigating officer, who is the last witness, would be called to testify before the prosecution wraps up its case.

Earlier, Muhammad Shafee in opposing the application said the prosecution was acting in bad faith and it could amount to an abuse of process.

He said the prosecution should have made the said application at the commencement of the trial in 2019, so as to not allow Arul Kanda to hear the evidence of other witnesses during the trial.

"In this case, now the prosecution has no choice so they decided to call Arul Kanda to be their witness. But, Arul Kanda should have not been in court during the trial. Arul Kanda should have been in the witness room during the trial.

"Over and above that, the prosecution has indicated from the outset of the trial in their opening statement that they intended to call Arul Kanda as a prosecution witness as such, the prosecution has always known that Arul Kanda's evidence is necessary to support their case against my client," said Muhammad Shafee.

Sri Ram countered that Arul Kanda should be called as a prosecution witness as he was privy to the relevant conversations he may have had with Najib concerning the charges against the former prime minister.

He submitted that as an abettor, Arul Kanda is a relevant witness because he is in a position to testify as to the co-accused's conduct.

He said the words spoken by Najib to Arul Kanda would be highly relevant to establish corrupt intention.

"In the present case, Arul Kanda is charged with abetting Najib to commit an offence under Section 23 of the Malaysian Anti-Corruption Commission Act 2009. There is evidence to confirm that Arul Kanda attended the meeting held on Feb 24 and 25 2016. At the material time, Arul Kanda was the CEO whilst Najib was the chairman of the Board of Advisors.

"How he came to attend the meetings and any communication he had with Najib are the matters to which he is privy. He is also privy to all relevant conversations he may have had with Najib concerning the charge against the latter," said Sri Ram.

He further said the prosecution's intention to call Arul Kanda at this stage of the trial was not a relevant consideration for the court, as this had been previously decided in settled cases.

Najib, 68, is charged with using his position to order amendments to the 1MDB final audit report before it was presented to the Public Accounts Committee to avoid any action being taken against him, while Arul Kanda, 45, is charged with abetting Najib in making the amendments to the report, to protect Najib from being subjected to action.

The offence was allegedly committed at the Prime Minister's Department Complex, Federal Government Administrative Centre, Federal Territory of Putrajaya between Feb 22 and 26, 2016.

Both of them were charged under Section 23 (1) of the MACC Act 2009, which provides for a jail term of up to 20 years and a fine of no less than five times the amount of gratification or RM10,000, whichever is higher, upon conviction.