SHAH ALAM (July 23, 2008): By Maria J.Dass
The Shah Alam High Court today rejected an application to stay all proceedings of the Altantuya Shaariibuu murder trial to recall prosecution witness P. Balasubramaniam and Deputy Prime Minister Datuk Seri Najib Abdul Razak following a statutory declaration filed by the former on July 1.
The application filed by Karpal Singh, who is holding a watching brief for Altantuya's family and the Mongolian government, was rejected on the grounds that those represented by Karpal were not a party to the trial.
"In my mind, they are excluded as they have no locus standi on the matter," said Judge Datuk Mohd Zaki Md Yasin.
In making the decision, he said: "Section 425 of Criminal Procedure Code is divided into two limbs.
"The first limb is discretionary and can be made upon application, while the second is imperative when the court feels it is essential to the justice of the case."
In rejecting the application, he said under the first limb, it must be made by the parties of the trial; the victim, he added, is excluded.
The statutory declaration filed by Balasubramaniam on July 1, which was announced on July 3 and retracted on July 4, implied that Najib had known Altantuya and that it was he who introduced the Mongolian woman to Abdul Razak Baginda, who is charged with abetting her murder.
In his application, Karpal also asked that the court summon Najib’s aide-de-camp DSP Musa Safri whose name was mentioned several times during the trial, DSP Idris Abd Karim from the Brickfields Criminal Investigations Division and lawyer Dhiren Rene Norendra who had apparently been advising Abdul Razak during the time he was being harassed by Altantuya.
Earlier, Mohd Zaki questioned the validity of the two statutory declarations and said they were still under investigation, hence it was yet to be determined if the first declaration was true or false or if both were false.
"For certain these did not crop up during the trial," he said.
Karpal argued that this was still relevant to Balasubramaniam’s testimony and that the private investigator had to be recalled.
Mohd Zaki: But it is not in the interest of your client to delay trial.
Karpal: But justice must be done. Delay is not a consideration. What happens if the court makes a decision now and police investigations (into the two declarations) reveal otherwise? Then it will be an embarrassment to the court.
DPP Tun Abdul Majid Tun Hamzah, meanwhile, said: "We should proceed with the trial because we don’t see anything that will affect the findings of the court."
Tun Abdul Majid dismissed the declarations as hearsay, saying the persons affirmed in the statutory declarations should be making an affidavit in support – in this case, Balasubramaniam.
Karpal said it was in the interest of the DPP to support his application.
Mohd Zaki had earlier said that Karpal appeared to be usurping the functions of the prosecution.
"I understand the need to produce evidence substantial to the case but do you have locus standi to file the application?" Mohd Zaki asked.
Karpal then replied that the prosecution should support his application in the interest of justice for Altantuya’s family.
Abdul Razak’s counsel Wong Kian Keong, however, said that Balasubramaniam was out of the country, going by press reports.
"How long must our client wait for justice?" he asked.
"The court should not play the romantic role of adventure. The court should uphold justice and nothing else," Wong said.
He said the role of a criminal trial was to find if the charged were guilty or not.
He said: "Allowing this application will open the floodgates to turn DPPs into private prosecutors, when this should only be used in cases with urgency."
Counsel for second accused Cpl Sirul Azhar Umar, Kamarul Hisham Kamaruddin, said it is up to the DPP to decide who to call and what part of evidence needs to be adduced.
"But they (DPPs) do not support this here for whatever reason they have," he said.
First accused C/Insp Azilah Hadri’s lawyer Datuk Hazman Ahmad, meanwhile, said: "I adopt the prosecution's submissions, we have the same stand."
Azilah, 32 and Sirul Azhar, 37 are charged with murdering Altantuya at a jungle clearing in Mukim Bukit Raja between 10pm on Oct 19 and 1am on Oct 20, 2006. Political Analyst Abdul Razak, 49 is charged with abetting them.
After Karpal’s application was rejected the trial continued with submissions from Azilah’s counsel Hazman Ahmad on the impeachment of the prosecution’s seventh witness L/Cpl Rohaniza Roslan.
Hazman said Rohaniza should not be impeached as she had testified that she was under police custody and under pressure during the time she had given her statement.
"The prosecution is under the duty to call the recording officer to determine if the statement was made voluntarily or involuntarily," he said.
"Not calling the recording officer infers that calling in the officer would have been infavourable to the prosecution," he added.
Hazman also said that the contradictions were reconcilable and therefore Rohaniza should not be impeached.
Submitting on the trial within a trial to determine if the alleged disclosure of the place where Altantuya was shot and blown up is to be adduced as evidence, Azilah’s counsel J.Kuldeep Kumar said there were several areas in the testimonies by witnesses that showed that the police had prior knowledge of the crime scene.
Among this was the presence of the media at the crime of the scene during the time the accused had allegedly disclosed it and contradicting statements by police officers involved in the discovery of the crime scene shows that the police had prior knowledge of scene before taking the accused there.
"This shows that they had probably heard of it from their sources- likely from the police, and if not this goes to show that the police could have obtained the same information from elsewhere," said Kuldeep.
He also raised several contradicting statements by police officers who testified including differing sequence of orders and timelines pertaining the disclosure which infers that the police had actually known of the location of the crime scene in Puncak Alam.
Kuldeep also submitted the absence of records stating the actual words the accused had used during the purported disclosure.
Officer C/Insp Koh Fei Cheow and DSP Zainudin Abdul Samad who were involved in the interrogation and transporting Azilah to the crime scene did not have proper records of the statements made by the accused in their investigation diaries, he said.
"The inconsistencies of Zainudin’s statements in court further proves that it is unsafe to rely on the information," Kuldeep said adding that the inaccuracies that make the statements doubtful, unreliable and unsafe should be inadmissible and excluded.
Hearing continues tomorrow.