KUALA LUMPUR (June 14): Former 1Malaysia Development Bhd (1MDB) president and CEO Arul Kanda Kandasamy’s lawyer told the High Court on Tuesday that he will stand by his MACC witness testimony if he is called as a prosecution witness in the 1MDB audit report tampering trial.
Arul Kanda’s lawyer Datuk N Sivananthan, who was addressing Justice Mohamed Zaini Mazlan during the submissions of the application to call Arul Kanda as a witness, said his client is ready to take the stand and will stand by the statements he gave to the Malaysian Anti-Corruption Commission (MACC) when they were investigating 1MDB in 2018.
This came after Justice Zaini had asked the lawyer about Arul Kanda’s stand on the matter and whether he has any objections.
“My client has given his testimony to the MACC. His position has always been that he will stand by those statements. If that is what the prosecution is asking him to do, then he will do it,” the lawyer said.
To this, Justice Zaini responded in jest to laughter in the court: “In English, he says yes (to taking the stand).”
Arul Kanda and former prime minister Datuk Seri Najib Abdul Razak are the two accused in this trial.
On May 20, the prosecution made a formal application to call Arul Kanda as a witness to testify against Najib. Lead public prosecutor Datuk Seri Gopal Sri Ram said the application, which was made under Section 63 of the Malaysian Anti-Corruption Commission (MACC) Act 2009, was sanctioned by Attorney General Tan Sri Idrus Harun.
Sivananthan: What will Arul Kanda's status be?
During submissions on Tuesday, Sivananthan also raised some practical considerations for the court to consider primarily revolving around Arul Kanda's status after he delivers his evidence regardless of whether the indemnity is given or not.
He points out that after his client is no longer in the dock, they would no longer have the right to cross-examine the witnesses.
"At the end of the prosecution's case assuming that is when the decision would be made without me having the benefit of cross-examining the witnesses," he said.
If Arul Kanda is set to testify, the prosecution has another witness lined up after him, namely the investigating officer in the matter.
The lawyer asked where Arul Kanda would go upon completing his evidence as he will no longer be an accused person in this trial.
"I think [the prosecution] has said that he can no longer be an accused. So once he completes his evidence, where does he go?... He can no longer be an accused whether the indemnity is given or not.
"Is he given a discharge not amounting to acquittal? He cannot leave the dock without an order from the court," he said, adding that these were questions that were not clear in the Section and would be something for all to ponder.
He also added that should the application proceed and Arul Kanda is not impeached or is not hesitant to answer any questions, then indemnity should be given regardless of whether his answers favour the defence or the prosecution.
"Lots of precedents would be set if my lord allows the application," Sivananthan said, and Justice Zaini concurred.
Once Arul Kanda takes the stand, the judge has the option of granting him indemnity from the charges against him.
Shafee raises preliminary objection to manner in which application was filed
Shafee raised a preliminary objection to the manner in which the application was made, as he claimed it was bereft of any specific details.
"It is almost like a certificate. A certificate just tells you (the court) what to do," he said.
Shafee argued that it should contain more specific details and be done through a notice of motion supported by an affidavit.
"I don't know how Arul would assist them... [we] need details... in precision, this is what Arul has said vis-a-vis my client. You are converting an accused person to be a witness against my client," he said.
In his written submissions he also said the prosecution ought to have made the application at the onset of the trial so as to not allow Arul Kanda to hear the evidence of other witnesses and to fashion his evidence in such a way that would absolve him from any liability to the detriment of Najib.
Shafee also said there is no guarantee that the witness would be telling the "real" truth and not the truth purely to please the prosecution. This, he argued, will deprive the other accused of his right to a fair trial.
He also questioned whether the witness would be testifying favourably for the prosecution and would feel compelled to support the prosecution's version of events to get a certificate of indemnity.
"What would an ordinary witness do? [He] would try to please the prosecution. Is that a fair trial?" Shafee asked.
Sri Ram: Arul Kanda has relevant evidence.
Sri Ram in his rebuttal reiterated that the application was made in order, as the requirements of Section 63, which states that the application has to be made in writing — as the prosecution has done in this case — and does not say that the application has to be supported by an affidavit, have been fulfilled.
He said Arul Kanda has relevant evidence in this matter and as long as the co-accused can give relevant evidence, the application should be granted as per the law.
He can give relevant evidence because there is evidence that Arul Kanda attended the meetings on Feb 24 and 25, 2016, and as such he is among others privy to all relevant conversations he may have had with Najib concerning the charge against the latter.
He stated that like all other witnesses, Arul Kanda would have to satisfy the requirement that his evidence must be credible and corroborated.
"He is naturally inclined [to play down his role in the matter], your lordship must be even more careful [when assessing his testimony]," he said.
Justice Zaini has set June 24 to deliver his decision.