1MDB trial: A bad case from the get-go?

 

Losing a trial is definitely a painful and agonising experience for any litigation lawyer. But, like it or not, the lawyer badly needs to subdue his or her disappointment.

Being a former trial lawyer myself, it is not difficult for me to empathise with the frustration felt by Najib Abdul Razak's lawyer - Shafee Abdullah - when the trial judge dismissed almost all his client's defences yesterday.

Unfortunately, he seemed to be unable to rein in his bitterness, so much so that his reaction yesterday made him look more like a sore loser.

For whatever reason, his statement, "In fact, although I’m sad for my client, in many ways, I’m happy because the more blunders I think a judge makes, the better our chances," is, with due respect, highly unprofessional and absolutely unwarranted.

Needless to say, such a sore-loser rhetoric is well out of line, to begin with.

With due respect, there was no justification at all for Shafee (above) to cast aspersion on the judge by employing unnecessarily strong words such as “more blunders“ despite the fact that he may be so confident his client would stand a good chance in the appeal.

‘Open-and-shut’ case

Contrary to some people’s belief, I am convinced that Shafee is a good and competent lawyer. Unfortunately, on certain occasions, he has to defend a relatively lousy case.

Many top-notch trial lawyers believe all the evidence implicating Najib in 1MDB was iron-clad and overwhelming.

Hence, it was relatively an "open-and-shut” case for prosecution from the get-go.

Be that as it may, the likelihood for Shafee’s client to secure an acquittal in the trial was almost nil.

Shafee may want to remember that when his client was charged for several criminal offences, including corruption, abuse of powers and money laundering involving SRC International Sdn Bhd (SRC), there was not even a single judge - out of nine judges - who harboured doubts about Najib’s guilt.

Under such circumstances, was it fair to attribute Najib’s convictions in SRC’s trial to Shafee’s incompetence in that he failed to convince even a single judge to agree with him?

Business of a judge is evidence

Perhaps the same fate was inflicted on him again yesterday when the trial judge could not agree with Shafee on any single point advanced by him.

Unfortunately, he seemed to shift the blame onto the judge.

It goes without saying that the business of a judge is evidence.

Take, for instance, the issue of Arab donation. Did Shafee manage to adduce sufficient and admissible evidence on the existence of such a donation?

Judge Collin Lawrence Sequerah

The trial judge who had the super advantage of watching and listening to the evidence on the very issue categorically held that “there is no credible, contemporaneous or reliable documentary evidence that directly connects the large sums deposited into the accused’s personal accounts to King Abdullah or any member of the Saudi royal family”.

Worse, the judge also ruled that “the subsequent donation letters tendered as evidence were forged.”

Of hearsays and double hearsays

As a general rule, the appellate forum is very slow in disturbing any finding of fact by any trial judge.

Shafee also grumbled about the ruling by the trial judge in admitting “hearsays” and “double hearsays” throughout the trial.

Yes, as a general rule, hearsay evidence ought to be rejected, but it is equally a trite law that such an exclusionary rule is also subject to certain recognised exemptions. This is too elementary.

While Shafee is entitled to mount an appellate challenge on the issue of admission of “hearsays” and “double hearsays” by the trial judge but I must say, having perused the judgment, it was clear the judge did fortify his ruling based on the established legal authorities such as Section 32 of the Evidence Act 1950 which deals with the issue of exemptions to hearsay evidence.

The decision by the judge - having conducted the trial that stretched over seven years, with prosecutors calling 50 witnesses across 235 days, while the defence presented 26 witnesses, including Najib himself - seem to conclude that Najib was not an unwitting bystander, misled by aides or financiers but was truly the key decision-maker at 1MDB who firmly controlled its affairs and in turn handsomely benefited from its funds. - Mkini

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MOHAMED HANIPA MAIDIN is former deputy law minister.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.