Najib, Rosmah cannot give material evidence...

The Kuala Lumpur High Court is to hear applications today by premier Najib Abdul Razak and his wife Rosmah Mansor against being called as defence witnesses in the Sodomy II trial.

Lawyers representing Najib and Rosmah, led by Ghazi Ishak, Hisyam Teh Poh Teik, Salehuddin Saidin and M Athimulan will submit before Justice Mohamad Zabidin Mohd Diah. This is expected to take an hour.

Anwar Ibrahim's lead counsel Karpal Singh and the prosecution team led by Solicitor-General II Mohd Yusof Zainal Abiden will then make their arguments. Lawyers for Najib and Rosmah will be allowed to reply.

It is not known whether a ruling will be made today. However, Justice Zabidin has at times ruled immediately on an application.

Najib and Rosmah, in separate affidavits, have denied involvement in any conspiracy to frame the charge against Anwar. They have therefore claimed that their presence and testimony will be of little use to the court.

Anwar, however, has said they are required to assist in the case because Najib's former aide had taken complainant Mohd Saiful Bukhari Azlan to meet Najib who was then the deputy premier. Rosmah, meanwhile, had met Saiful's friend Rahimi Osman.

2.49pm: Court in session with Justice Zabidin presiding.

2.50pm: After introductions is done by Ghazi Ishak, Hisyam Teh Poh Teik submits.

2.51pm: Hisyam says the main ground for Najib and Rosmah's applications is that both cannot give material evidence in the trial.

2.53pm: Hisyam concedes that Anwar has a right to ask for the subpoenae, but those issued teh subpoenae also have the right to set it aside.

2.55pm: Hisyam, who is also the solicitor for Najib and Rosmah, says the court has inherent jurisdiction to set-aside a subpoenae if there is a basis for that.

It is an abuse of court process and the persons (subpoenaed) are unable to give further evidence.

2.57pm: He cites various principles and court cases.

"Anwar must prove that Najib and Rosmah is relevant and material."

"The onus is on them (Anwar's defence team) to show they are relevant."

3pm: Hisyam says the onus is on the party who issued the subpoenae to show that the evidence is not only relevant but material.

3.02pm: Hisyam says it will rely on Section 136 of the Evidence Act, that the court has the power to question the relevance of the witnesses being called.

3.06pm: Hisyam says where the subpoenae is oppressive, it is the duty of the court to strike out the application.

3.09pm: Hisyam says the purpose of his clients being subpoenaed is not for justice.

3.10pm: Hisyam cites Najib's affidavit to argue that the premier made the application because he cannot give any relevant evidence to the case.

3.12pm: Hisyam says that Najib said the incident happened two days after the alleged sodomy incident.

"What was related is the incident before June 26, 2008. Hence, I cannot assist the first respondent (Anwar) as I do not know and was not informed of the said sodomy incident on June 26."

3.14pm: Hisyam says Najib also denies that he gave orders or had conspired with others to make up the evidence resulting in Anwar being accused.

3.16pm: Hisyam cites Anwar's affidavit-in-reply where the defendant claimed Khairil Annas, Najib's former aide, had arranged a meeting with Saiful.

"Anwar said Najib claimed his meeting was to hear Saiful get a scholarship."

"However, we would like to argue that the meeting on June 24 has no nexus to the incident on June 26, 2008."

Hisyam says that Anwar's application to seek clarification is to fish for information.

3.21pm: Hisyam recounts that the previous incidences (of alleged sodomy) were expunged by the court, and quotes Anwar's lawyer CV Prabhakaran.

3.26pm: Hisyam says Najib and Rosmah do not have any relevance or materials to assist the court. "The court should ensure that material witnesses are called."

3.30pm: The lawyer claims that the purpose for Najib's subpoenae is to interview the witness.

"This cannot be the reason."

3.32pm: Hisyam focuses on Rosmah's application, wherein Anwar is cited as saying her meeting with Rahimi Osman is relevant.

"Our reply to this - the first respondent had not shown any nexus or connection in the meeting between Rosmah and Rahimi and the charge on June 26, 2008."

"Rahimi was not called as a defence witness. The 112 Statement taken from Rosmah does not make her a material witness," submits the lawyer from Johor.

Hisyam says this is not the test of law. The test of law is relevancy and (whether it is) material to the charge.

"They have not shown any nexus to call my clients. This is an abuse of the court process."

3.38pm: Karpal is replying.

He describes Hisyam's submission as a lot of thunder, but amounts to nothing.

Karpal says the right of the party to the attendance of a witness is a crucial part in the trial.

"No minister can come to court to deny they are not relevant."

3.42pm: Karpal says what was related by Saiful was before June 26, 2008.

"The subpoenae was to seek an explanation on the meeting on June 24, 2008, following an arranged interview by Najib's former aide Khairil Annas."

3.43pm: Karpal says the premier must have discussed other matters within the half-hour or one hour during the meeting.

3.44pm: Karpal says it is mind boggling that Saiful did not report the incidents of alleged sodomy to the police but chose to meet Najib.

"His (Najib) assistance was sought. His evidence would be material as being a devout Muslim when he went to Permatang Pauh in August 2008, he denied anything to do with the death of (Mongolian national) Altantuya (Shaariibuu)."

3.47pm: Karpal says that there was a meeting between Rosmah and Rahimi would be material in the defence of Anwar.

3.48pm: Karpal cites DSP Jude Blacious Pereira as having said he had taken a statement from Rosmah.

"This was not denied by Rosmah."

3.51pm: Karpal says the 112 statement is a privileged document with no access.

"Hence, Rosmah should come. Under these circumstances, Rosmah should come to court as this is the only remedy left to Anwar."

3.53pm: Karpal says there is no other remedy for Anwar, and Rosmah is bound to assist the court.

"We pray your lordship dismisses the application made by Najib and his wife."

He says the prime minister had brought in other evidence of alleged sodomy, and that took place within a meeting of one hour.

3.55pm: Yusof now submits, saying he supports Najib and Rosmah"s application.

Karpal interrupts asking whether the prosecution has submitted any affidavit. Yusof says no.

3.56pm: Yusof says relevant and material evidence are those which can assist the court.

4pm: Yusof says Anwar must show evidence that would influence the court.

"... the respondent had failed to do so."

4.01pm: Yusof says if Anwar shows evidence of alibi, that is relevant.

"With regards to the meeting with Rahimi, there is no date mentioned there."

"At the end of the day, we are left guessing what transpired on the meeting two days before the incident."

4.05pm: Yusof submits that the application should have their application allowed.

4.05pm: Hisyam replies. He submits that Anwar is involved in a fishing expedition.

"Whatever was discussed before June 26 has nothing to do with the charge. There is no nexus."

4.07pm: Hisyam says the rightful witnesses to be called are the alibi witnesses.

"They are the ones whom should be called. Not the premier and Rosmah."

4.08pm: Justice Zabidin says he will deliver the decision on the application on Thursday.

Tomorrow chemist Lim Kong Boon will be in attendance. Trial will start at 9am. Court adjourns.

source:malaysiakini

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