Court accepts audio recording "Can I advise you something" as evidence in Rosmah's graft trial

The audio recording, previously released by the Malaysian Anti-Corruption Commission (MACC) which was believed to be part of a conversation between Rosmah and her husband, former prime minister Datuk Seri Najib Tun Razak, was played by the prosecution in the trial when former Education Minister Datuk Seri Mahdzir Khalid testified.

High Court Judge Mohamed Zaini Mazlan made the ruling on the audio recording before ordering Rosmah, 69, to enter her defence on all her three corruption charges related to the project, today.

The judge allowed the audio recording, marked as IDP36, and its transcription, marked as IDP 163, to be admitted as evidence after the prosecution in its submission urged the court to revisit its application and to review the court’s earlier ruling (on the prosecution’s request to admit these two items as its exhibits).

The judge said the defence, in objecting to the application, contended that the court was functus officio in having made its ruling and that the issue was res judicata, in that a decision made could not be revisited.

The judge said he was disinclined to accept the defence's argument that the court is functus officio as it will only be functus officio once it has completed its task.

“To put it into perspective, this court can only be deemed to be functus officio once it has officially completed the trial. As it stands now, the trial has not been concluded. The court is still in session,” he said.

Justice Mohamed Zaini said as for the argument of res judicata, a concept which is perhaps more common in civil matters, it refers to a decision that has reached its finality and should not be litigated again.

He further said his ruling on the admissibility of these two items was merely a ruling as it was made during the course of a trial.

“It was not a decision within the context of Section 3 of the Courts of Judicature Act 1964, namely, a judgment, sentence or order. It is trite law that a ruling made during the course of a trial could not be connoted as a decision, as the latter has the element of finality.

“On that score, I would like to add that the concept of res judicata in criminal proceedings is more relevant in raising the argument of double jeopardy, in that a person cannot be tried for the same offence more than once,” he said.

In regard to Section 41A of the MACC Act 2009, the judge said the section is a non-obstante clause, which prevails over the documentary evidence provisions in the Evidence Act 1950.

He said the wordings in Section 41A are plain and obvious and it clearly entitles any documents or copies of them that were obtained by the Commission to be admissible in any proceedings.

“I have therefore come to the conclusion that the audio recording (IDP 36) and its transcription (IDP 163) are admissible in evidence, and convert them to P36 and P163 respectively. I must, however, add that the weight to be attached to them is a different consideration altogether,” the judge said.

Previously, the prosecution had attempted to admit these two items as its exhibits during the course of the trial and both parties had, on 11 Dec last year, submitted on the admissibility of these items.

Justice Mohamed Zaini said he had made a ruling on the same day, which was not in favour of the prosecution’s application.

“I then proceeded to give directions for both parties to submit their written submissions at the end of the prosecution's case, and subsequently heard oral arguments,” he said.

On his findings on the prosecution's case, Justice Mohamed Zaini said it was the court's inherent duty to conclude whether or not the prosecution has made out a prima facie case against the accused at the end of the prosecution's case.

He explained that the accused will only be called to enter her defence if a prima facie case has been proven against her.

“The fundamental task of a trial judge at the end of the prosecution's case is to ask himself, whether he is prepared to convict the accused, should the accused opts to remain silent if the defence is called.

“If the answer is negative, then no prima facie case has been made out against the accused, and she should then be acquitted. I do not propose to give a summary of my findings at this stage. I had, after giving the prosecution's case the maximum evaluation, found that the prosecution had succeeded in proving a prima facie case against the accused to all three charges,” he said.

Justice Mohamed Zaini said he had also considered the evidence by the prosecution also and found that the presumption under Section 50 of MACC Act 2009 has arisen against Rosmah.

“It is my findings that the prosecution has adduced credible evidence to prove every element of the offences under all three charges, which if unrebutted or unexplained, would warrant a conviction. I, therefore, call upon the accused to enter her defence,” the judge said.

After Justice Mohamed Zaini delivered his judgment, Rosmah was also told that she has three options - either to keep silent and not answer to the charges, to give an unsworn statement from the dock without being cross-examined by the prosecution, or to testify under oath on the witness stand with the prosecution given the opportunity to question her during cross-examination.

Rosmah then chose to testify under oath from the witness stand.

Deputy public prosecutor Ahmad Akram Gharib told the court that the prosecution offered 10 potential witnesses to the defence including Najib, MACC's officers and three Maybank officers to be called to testify as the MACC had previously recorded their statements during investigations of the case.

When asked by Justice Mohamed Zaini on the number of defence witnesses to be called, Rosmah's counsel Datuk Jagjit Singh said they will probably call five or six witnesses.

The court fixed nine days, namely on June 9,10,15,16,17,22, 23 and July 12 and 15, to hear the evidence from Rosmah and other defence witnesses.

-- BERNAMA