Defence was clearly driven by a false notion that the prosecution had relied on Zahid’s statements to charge him in court.
The prosecution pointed out that the defence had never said anything about immunity when Ahmad Zahid was charged in October 2018 in the Sessions Court and when the case was transferred to the High Court in March 2019.
The prosecution in Datuk Seri Dr Ahmad Zahid Hamidi’s graft case said neither it nor the Malaysian Anti-Corruption Commission (MACC) had led him to believe he would enjoy immunity for disclosing certain information.
The information was apparently in relation to the Yayasan Akalbudi funds.
Deputy public prosecutor Datuk Raja Rozela Raja Toran told the Kuala Lumpur High Court that they could not do such a thing without hearing all the evidence from witnesses.
“The defence is raising the immunity issue to challenge the decision of the prosecution to file charges against the accused.
“The defence could have filed a judicial review before a civil court to state the accused enjoyed immunity but did not do so,” Raja Rozela said in her submission at the close of the prosecution’s case.
“But they did not do that, My Lord, instead they waited until the end of the case to do so. And this is why we say it is odd for them to wait until the last minute to raise the immunity,” she said.
“What we are saying, it should be raised at the beginning, at the earliest possible stage, and the best opportunity to do so was when the charges were first read out at the Sessions Court,” she said, adding that Ahmad Zahid’s lawyers had never said anything about immunity when he was charged in October 2018 in the Sessions Court and when the case was transferred to the High Court in March 2019.
“Instead, he sat quietly throughout the rough and tough of the trial of 53 days, 99 witnesses, 745 exhibits, and while our trial is going on, the country saw two prime ministers come and go, we underwent Emergency proclamation, MCO and Covid-19 and nothing from them about immunity.
She said the court also cannot question the public prosecutor’s discretion under the Federal Constitution to charge the accused.
“The former deputy prime minister is not entitled to immunity simply by virtue of having provided information to the anti-graft agency,” she said.
Earlier this month, Ahmad Zahid’s lead defence lawyer Hisyam Teh Poh Teik argued in court that his client should have immunity as he had been truthful when providing information to the MACC when his statement was recorded twice in July 2018 and as Section 30(7) was only repealed on October 1, 2018.
The provision, which was repealed on Oct 1, 2018, had stated that anyone who disclosed information or produced any document to the authorities would not be incriminated.
The lead prosecutor said the literal interpretation the defence gave to Section 30(7) to give exemption from prosecution to anyone who disclosed any information regardless of the outcome of the investigation would make the law an absurdity.
Raja Rozela said the defence was clearly driven by a false notion that the prosecution had relied on Zahid’s statements to charge him in court.
She cited the Federal Court decision in Datuk N Sundra Rajoo’s judicial review case, where the court had decided that immunity from prosecution cannot be raised as a defence in a trial as it would defeat the purpose of the immunity, and that it cannot be raised at the end of the trial and that the proper place to challenge the AG’s discretionary powers would be at the civil courts through a judicial review lawsuit.
“The defence was incorrect in suggesting that the prosecution had relied on those statements.
“The accused was not tried based on his statements. We relied on the statements of 99 witnesses (10 of which were investigating officers), majority of them were civilians whom had their statements recorded by the MACC accordingly.
“The defence is giving a literal reading of the provision and, if accepted, this would lead to an absurdity and run contrary to the intentions of Parliament in passing laws,” she said.
She added that the prosecution and MACC had also not done anything to encourage the accused to believe that he will be given immunity based on the statements he provided.
Raja Rozela said the MACC investigating officer had taken into account all information and statements provided by witnesses before proposing charges against the accused.
“The accused here cannot be exempted from prosecution just because he gave information. Others have given statements that incriminated him (Zahid),” she said.
Raja Rozela added that if the provision were to be used merely to collect information, then the MACC would be made impotent in its role to fight corruption.
“The anti-graft agency will be rendered useless and incompetent, and limited to collecting informaton about corrupt practices but do nothing beyond that,” she said.
In this trial, Zahid ― who is a former home minister and currently the Umno president ― is facing 47 charges, namely 12 counts of criminal breach of trust in relation to charitable foundation Yayasan Akalbudi’s funds, 27 counts of money laundering, and eight counts of bribery charges.
The trial before High Court judge Datuk Collin Lawrence Sequerah resumes on October 4.
The trial has reached the end of prosecution’s case with 99 prosecution witnesses having already testified.
The judge is now hearing oral submissions or the final verbal arguments from both the prosecution and Ahmad Zahid’s lawyers, before deciding on whether the prosecution has proved a prima facie case that would require Ahmad Zahid to enter a defence or if he would be freed from the charges.
Related report: Sept 20, Zahid’s trial: Defence says RM6m not reward or bribe, but political donation and for charity