With the prosecution's final appeal against the acquittal of two police special action unit members in the Altantuya Shaariibuu murder trial scheduled for June 23, the prosecution has argued that not calling DSP Musa Safri as a witness was not fatal to the trial.
This is because he was not involved in giving instructions to the two accused.
Musa, who was then Najib Abdul Razak's aide de camp when Najib was deputy prime minister in 2006, was not called as a witness, resulting in the Court of Appeal ruling under Section 114 (g) of the Evidence Act that the evidence not produced could be unfavourable to the person or party withholding it, if produced.
The prosecution in appealing the acquittal of Chief Inspector Azilah Hadri and Corporal Sirul Azhar Umar, stated in the petition of appeal that the role played by Musa was insignificant, as he only introduced the then Brickfields district police chief to political analyst Abdul Razak Baginda, the first accused who was acquitted without his defence being called.
"This was stated in the affidavit of Abdul Razak ( left ) and Musa's testimony was not needed as there is nothing significant and relevant," the prosecution said in submitting 24 grounds of appeal sighted by Malaysiakini .
It added that Azilah had testified during his defence that Musa did not give any instructions on how to assist Abdul Razak.
"Musa merely asked Azilah to meet Abdul Razak and that was all," the prosecution said.
Azilah also testified that the action taken was based on his own discretion and 'kewarasan' (sanity).
Azilah further gave evidence in court that Sirul did not receive any information from others over the assistance to be rendered (to Abdul Razak), it pointed out.
Musa offered to defence
Sirul, the prosecution added, in his unsworn testimony from the dock, did not say anything about performing any role or receiving instructions from Musa.
Furthermore, Musa was offered as a defence witness - whom they decided not to call - for their case, argued the prosecution.
The appeal will be heard at the Federal Court in 10 days' time, in a case that has captured international attention
Azilah and Sirul were acquitted last August when Court of Appeal judge Tengku Maimun Tuan Mat who wrote the unanimous judgment that Musa's testimony was essential to unfold the narrative upon which the prosecution's case is based on.
"The failure of the prosecution to call or offer Musa for cross-examination in the circumstances of the evidence as a whole would have triggered adverse inference under section 114 (g) of the Evidence Act 1950 against the prosecution," she said.
The Shah Alam High Court found both of them guilty and sentenced them to death in 2009.
The defence had argued at the Court of Appeal that the non-calling of Musa to the witness stand constituted a mistrial as it was only he who could verify the veracity of Abdul Razak's affidavit.
Had control over explosives
The prosecution also stated that the two police officers did have control over the explosives used, based on testimonies showing that they had the opportunity to keep the unused explosives during training.
The judges also made a mistake in classifying that C4 was used, when two police officers testified that such explosives are not kept in the police arsenal.
"The appellate court failed to appreciate that the scene of the crime had seen explosives been used and Altantuya's death was classified as due to 'probable blast-related injury'.
"Hence, the Court of Appeal had made the mistake in not linking the two respondents (Azilah and Sirul) in this context," the prosecution said.
Furthermore, the prosecution said the judges in the Court of Appeal were too focused on the inconsistencies in the telephone call logs data where else if they had scrutinised cell phone operator witnesses' testimonies, explanations would have been found.
The judges ruled a misdirection in the accuracy of the call logs.
The prosecution further said the judges made an error in law and facts in ruling the police station diary depicting the two accused record of alibi as accurate and correct, where else the witness did not say this and that the diary is only correct in its extract.
No theatrical show
They further argued that the appellate court was wrong to consider that the police 'made a theatrical show' in bringing the accused to the crime scene, when evidence showed police did not know where the scene was and were only led to the scene by Azilah.
The prosecution further stated that Altantuya's jewellery and DNA were found in Sirul's jacket ( right ) and this evidence was not challenged by the corporal.
While the Court of Appeal ruled there was no nexus over the discovery of the bloodstained slipper in Sirul's car, the prosecution said the blood on the slipper must be Altantuya's as her parents sample was only taken long after the police visited the scene of the crime and her cousin only arrived in Malaysia much later.
"The judges acted unreasonably and were too focused on the slippers, where else during the trial, a case had been made against both respondents without taking into consideration the footwear," the prosecution said.
On the issue of joint intention, the prosecution said the judges arrived at a wrong conclusion that the trial judge did not consider this, where else on the whole, the testimonies of the witnesses revealed this.
"The trial judge had evaluated the evidence and benefitted from the audio visual presentation without the need to evaluate each piece of evidence, observation and finding in his judgment," it added.
On the totality of the evidence, the prosecution said it had successfully cast beyond reasonable doubt over the case against the two, so the appeal should be allowed.