KUALA LUMPUR – An audio recording and transcript containing the phrase “Can I advise you something?” have been accepted as admissible evidence in Datin Seri Rosmah Mansor’s trial relating to the RM1.25 billion solar hybrid project for 369 rural schools in Sarawak.
The audio recording, previously released by the Malaysian Anti-Corruption Commission and believed to be part of a conversation between Rosmah and her husband former prime minister Datuk Seri Najib 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.
Zaini said the defence, in objecting to the application, contended that the court was functus officio (expired mandate) in having made its ruling and that the issue was res judicata, in that a decision made could not be revisited.
He 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.
Zaini said as for the argument of res judicata, a concept 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 cannot 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 clearly entitle 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 December 11 last year, submitted on the admissibility of these items.
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, 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 opt to remain silent if the defence is called. – Bernama, February 18, 2021
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