KUALA LUMPUR, Sept 19 — The High Court cannot accept what witnesses heard from others about what Malaysian fugitive Low Taek Jho had purportedly said, as these are allegedly “hearsay” that cannot be accepted as evidence in court, former prime minister Datuk Seri Najib Razak’s lawyer argued today.
During Najib’s trial over 1Malaysia Development Berhad’s (1MDB) RM2.2 billion, his lead defence lawyer Tan Sri Muhammad Shafee Abdullah argued that the High Court should reject these as evidence: what several prosecution witnesses had claimed to have heard from Low or Najib’s late aide Datuk Azlin Alias regarding Najib or other 1MDB matters.
Shafee listed these prosecution witnesses as including Najib’s former aide Datuk Amhari Efendi Nazaruddin, former 1MDB senior officials Datuk Shahrol Azral Ibrahim Halmi, Mohd Hazem Abd Rahman, Azmi Tahir and Jasmine Loo.
Shafee claimed that the prosecution had recognised these remarks by the witnesses could amount to hearsay, as the prosecution was seeking to rely on the Evidence Act’s Section 32. Section 32 provides an exception to the hearsay rule and enables the court to accept such evidence.
“Because you don’t put up an umbrella if it’s not raining or if it’s not very bright with sunlight,” Shafee said.
Under the Section 32(1)(b) exception, written or verbal statements of relevant facts made by persons in various categories — such as those who are dead or cannot be found or whose attendance in court as witness cannot be procured without unreasonable delay or expense — would be considered relevant facts under the law, when the statement was made by such persons in the ordinary course of business.
The prosecution will be relying on the Section 32(1)(b) exception for Azlin in the category of those who are dead, and Low — better known as Jho Low — as someone who cannot be located.
In other words, if what the prosecution witnesses’ testimony about Low and Azlin fall under the Section 32(1)(b) exception, the High Court can accept these as evidence in deciding on the 1MDB case against Najib.
Shafee today argued that hearsay should not be court evidence as the original person — who allegedly spoke to witnesses — cannot be tested in court on whether they told lies and their character cannot be assessed; as repetition of hearsay distorts the truth; as there is potential for fraud, fabrication of evidence; and as the court’s function is not to listen to idle rumours.
For example, Shafee claimed that the impression from Amhari, Shahrol, Loo, Azmi and Hazem’s testimony in court as prosecution witnesses had seemed as if their witness statements were prepared when they were all together.
Shafee claimed that their similar testimony regarding the “working in silo” arrangement and “top-down approach” in 1MDB and about what Low had said and directed via talking points, as well as Low’s alleged assertion of “don’t worry, this is instruction from Datuk Seri Najib” were consistently repeated “almost like a broken record”. He suggested that their evidence could be fabricated or tailored without the presence of the individuals who have absconded such as Low.
Shafee said however that the court is unable to assess Low’s demeanour in court to see whether his face changed colour or if he stuttered for example, as he has not been brought to court.
Among other things, Shafee referred to ex-1MDB CEO Hazem’s testimony of having been introduced by Najib’s aide Azlin to Low as Najib’s adviser.
“Datuk Seri Najib has been accused of being involved in 1MDB affairs to the extent of managing it in a micro level, yet we asked every one of the witnesses, have you ever taken the decent step of asking Datuk Seri Najib directly. Not a single one of them said yes.
“But there is this clever attempt to say it must be from Datuk Seri Najib because there were no objections, some even to the extent that what was communicated to us by Jho Low was subsequently carried out,” Shafee said when urging the court to exclude what he claimed to be “hearsay” evidence from the prosecution witnesses.
Shafee also argued that the prosecution could not use the Section 32(1)(b) exception to enable witnesses’ remarks regarding Low to be accepted as court evidence, as the prosecution has allegedly not proven attempts or efforts to trace the fugitive.
“The prosecution has never given evidence through witnesses why Jho Low is not present, what attempts have been made to secure the attendance of Jho Low and whether they have made any attempt to do requisition for extradition of Jho Low from any country and so on,” he claimed, saying that the prosecution is only relying on public information that there is proof that Low cannot be traced or brought into Malaysia.
Najib’s 1MDB trial before judge Datuk Collin Lawrence Sequerah resumes this afternoon.
