PUTRAJAYA, Feb 12 — Datuk Seri Najib Razak failed today to get the written statements of what potential defence witnesses in his 1Malaysia Development Berhad (1MDB) trial had told the police and Malaysian Anti-Corruption Commission (MACC) investigators in the 1MDB case.
The High Court in Kuala Lumpur today dismissed Najib’s Monday application to be given the statements of those he planned to call to testify as his defence witnesses in the 1MDB trial.
Trial judge Datuk Collin Lawrence Sequerah this morning pointed out that Najib’s application was made under Section 51 of the Criminal Procedure Code, which requires that the giving of these documents — which were recorded during investigations — to be both necessary and desirable.
But he said Najib had failed to show it would be necessary and desirable for the prosecution to give him the recorded statements of these potential defence witnesses.
Saying that he is bound by Federal Court decisions in multiple past court cases, the judge said he found that the documents that Najib had tried to get were “privileged” documents and that the prosecution has not waived this privilege.
The judge also pointed to the risk of an accused person interfering with what witnesses would say in court if an accused person is given access to such documents recorded during investigations.
“I also find that the real danger of witness tampering, however slight it may be, is still a relevant public policy consideration.
“If such application is allowed, there exists the possibility in the future — I’m not talking about this case — exists the possibility that unscrupulous accused or agents of the accused may prevail upon a witness to alter his evidence, notwithstanding the risk of impeachment,” the judge said.
The judge noted the Federal Court’s warning in a previous case that allowing the disclosure of investigation statements of witnesses to an accused person “may deter ordinary citizens from coming to court to assist the authorities in the detection of a criminal offence”, and said such a warning “cannot be dismissed as belonging to a bygone era”.
In that previous case, the Federal Court had said ordinary citizens would be reluctant to come forward to help the authorities if the prosecution directly provides statements from police investigations to an accused person’s lawyers without the court ordering so.
The Federal Court in that case also said the defence can only get such statements when seeking to impeach witnesses.
The High Court today said the “absolute privilege” applies to both statements recorded during investigations by the police and during investigations by the MACC, under the CPC’s Section 112 and the MACC Act’s Section 30(8) respectively.
In other words, the judge was saying that such documents which are covered by “absolute privilege” cannot be given to Najib.
“I find further that the defence has not satisfied the twin requirements of the disclosure being necessary or desirable as stated in Section 51 of the CPC. I found instead that the net has been cast too far and wide.”
The judge also said Najib had failed to show how being given access to these witnesses’ statements from investigation records would be relevant to his defence or the preparation of his defence in the 1MDB trial.
The judge said there are sufficient provisions in the law to counter the possibility of any court witness whose memory fails them, or of witnesses who deliberately testify differently from their statements recorded during investigations.
On Monday, Najib’s lawyers applied to get those statements recorded during investigations for a list of potential defence witnesses, saying they would not call witnesses if their statements do not help his case.
Najib’s lawyers had listed the names of these potential defence witnesses as including 16 individuals, such as law firm Wong and Partners’ former and past lawyers, former 1MDB directors, former 1MDB senior officials, former Terengganu menteri besar Datuk Seri Ahmad Said, former minister Tan Sri Nor Mohamed Yakcop, police and MACC officers.
After Najib failed his bid, his 1MDB trial then continued with the sixth defence witness Terengganu royalty Tengku Datuk Rahimah Sultan Mahmud and the seventh defence witness Datuk Seri Jamil Khir Baharom testifying.
Najib’s 1MDB trial resumes tomorrow.
