KUALA LUMPUR (Feb 18): The High Court has now allowed the infamous recording “Can I advise you something” of Datin Seri Rosmah Mansor's conversation with her husband Datuk Seri Najib Razak, reversing its decision from last December.
Justice Mohamed Zaini Mazlan in his decision today said after perusing the amended Section 41A of the Malaysian Anti-Corruption Commission (MACC) Act, he arrived at a decision to admit the recording and its transcript.
“Section 41A of the MACC Act 2009 is a non-obstante clause, which prevails over the documentary evidence provisions in the Evidence Act 1950. Section 41A of the MACC Act is a special provision which excludes the general law.
“The wording of Section 41A is plain and obvious. It clearly entitles any documents or copies of them that were obtained by the commission (MACC) to be admissible in any proceedings,” the judge said.
Section 41A reads: "Where any document or a copy of any document is obtained by the commission under this act, such document shall be admissible in evidence in any proceedings under this act, notwithstanding anything to the contrary in any other written law.”
Justice Zaini said while the defence had argued that the section cannot be applied retrospectively, the answer lies in former Lord President Raja Azlan Shah's judgement in the public prosecutor vs Datuk Seri Harun Idris case.
He added that Section 41A is clearly procedural in nature as it pertains to the admissibility of documents during proceedings.
“In any event, the prosecution's attempt to have these two items (the recording and transcript) admitted was made during the current proceedings, long after Section 41A was incorporated ...the words in Section 41A as I mentioned earlier are clear and unambiguous. Parliament does not legislate in vain,” he said.
“I have therefore come to the conclusion that the audio recording and the transcript 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.
He then ordered Rosmah to enter into her defence.
The prosecution wanted to admit the intercepted audio recording as evidence to show her overbearing nature and influence.
Senior Deputy Public Prosecutor (DPP) Datuk Seri Gopal Sri Ram said in his opening statement in the trial that Rosmah "wielded considerable influence [in the government] by reason of her overbearing nature".
"She placed herself in a position where she was able to influence decisions in the public sector. The prosecution will lead direct and circumstantial evidence to show that the accused solicited bribe and received gratification as alleged in the charges brought against her," the former Federal Court judge said.
The MACC had intercepted several recordings, which were released by then MACC chief commissioner Latheefa Koya.