KUALA LUMPUR: An accused is legally entitled to cross-examine a prosecution witness on previous statements to investigative authorities which relate to the charge, the sessions court was told in Lim Guan Eng’s undersea tunnel corruption trial.
Defence counsel Gobind Singh Deo said Section 145 of the Evidence Act 1950 allows him to cross-examine a key prosecution witness on statements made to the Malaysian Anti-Corruption Commission (MACC).
He also said Section 155 of the same law stipulates that the credibility of a witness may be impeached by an adverse party with the consent of the court.
“The law cannot shut us down when a witness is said to have made contradictory statements,” he said during submissions before trial judge Azura Alwi.
The defence is seeking to obtain statements made by Zarul Ahmad Zulkifli to MACC relating to the anti-graft body’s investigations in the present case and in another action brought against businessman G Gnanaraja previously.
Under cross-examination yesterday, Zarul, a director of Consortium Zenith BUCG Sdn Bhd, testified that he had arranged for RM2 million to be encashed using a Public Bank cheque. He said the money was intended as payment for Lim.
Zarul also said that another RM2 million in cash was given to Gnanaraja to be handed over to former prime minister Najib Razak. He said the payment to Najib was to facilitate the closure of MACC’s ongoing money laundering investigation into Zarul.
The defence contended that Zarul had previously given a statement in the case that took place in the Shah Alam sessions court that the RM2 million was for Najib.
However, the prosecution said that Zarul later “rectified” his statement to MACC in connection with the Shah Alam case.
The defence wants the court to direct the prosecution to hand over both statements so that it can initiate impeachment proceedings against Zarul.
Gobind further said the defence will upon receipt of the statements highlight material contradictions between Zarul’s testimony and his previous MACC statements to justify impeaching him.
“Zarul will be asked to clarify and we (defence) will have the opportunity to cross-examine him,” the lawyer said.
Gobind said the prosecution in the Shah Alam case had produced 22 witnesses and tendered 19 exhibits.
“The prosecution cannot come and say now that Zarul had ‘rectified’ his statement. When was it rectified?,” he asked.
He said it is for the court to decide whether the statement has been rectified, not the prosecution.
“We are only interested in finding justice. Zarul’s evidence is now all about his credibility,” he said.
Deputy public prosecutor Wan Shahruddin Wan Ladin replied that the defence should have made an application for discovery of documents under Section 51A of the Criminal Procedure Code.
He said the current application, made in order to impeach Zarul, was premature.
Wan Shahruddin said there is no requirement for the prosecution to supply the statements requested by the defence.
He said the defence should have continued to cross-examine Zarul when he took the witness stand yesterday.
“At this juncture, there is no basis for impeachment. The application is a ‘fishing expedition’,” he added.
Azura will deliver her ruling on Nov 2.
Lim is standing trial on charges of using his position to ask Zarul for a 10% cut of the profits from the undersea tunnel project and accepting RM3.3 million from the businessman.
He is also accused of two counts of dishonestly misappropriating RM208.7 million worth of state land from two companies.