The Federal Court has ruled the non-calling of Najib Abdul Razak's former aide de camp, Deputy Supt Musa Safri, as inconsequential.
The five-member bench headed by Chief Justice Arifin Zakaria said it could not see how much more details Musa could have provided for the defence of Azilah Hadri and Sirul Azhar Umar.
Justice Suriyadi Halim Omar, in his full 88-page-judgment released recently, said while the defence lawyers complained that Musa's testimony, if called upon by the prosecution, could have provided details regarding Abdul Razak Baginda's sworn affidavit, the court was satisfied that the content (of the affidavit) was merely confirmatory in nature.
“It is only useful to Abdul Razak. It merely confirmed evidence adduced from Altantuya Shaariibuu's cousin and friend that he had had a relationship with the deceased.
“We are therefore unable to see how much more details DSP Musa could produce that would contribute to the respondents' defence. The calling of DSP Musa ( left ) - let alone the tendering of the text messages - would not have affected the evidence pertaining to Abdul Razak's relationship one tiny bit.
“We also observed that DSP Musa never instructed Azilah how to assist Abdul Razak, but was merely told to meet up with him, and Azilah acted on his own discretion and sensibilities,” Justice Suriyadi wrote in the judgment that found Azilah and Sirul guilty of murdering Altantuya on Jan 13.
The court concluded that the prosecution's move not to call Musa, or the non-tendering of the alleged text messages, had not in any way caused unfairness to the duo, and failed to see how the presumption of adverse inference under Section 114 (g) of the Evidence Act could be applicable.
Sirul's lawyer Kamarul Hisham Kamaruddin said his client's conviction opened “a can of worms” as the alleged murder was done without any motive established, and that the evidence showed calls and text messages were made between Abdul Razak, Musa and Azilah three days before Altantuya's death.
This, Kamarul Hisham said, took place right up to the night of the murder in late 2006.
"Who gave, and what were, the alleged instructions? Why was DSP Musa not called to testify?" Kamarul Hisham had asked, referring to Musa, who was at the time of the murder a top aide to Najib, who then was deputy prime minister and defence minister.
The lawyer pointed out that these are questions that are being debated by the public. Despite Azilah and Sirul's conviction, the trial had raised a number of unanswered questions .
In 2013, a three-member Court of Appeal panel, in unanimously overturning their High Court conviction, had ruled that the non-calling of Musa constituted a serious misdirection by the prosecution.
Circumstantial evidence strong
Abdul Razak's affidavit during the bail proceeding had not only resulted in the political analyst's acquittal, but, as the lawyers for Sirul claimed, it had also condemned their clients to the noose.
The affidavit was never shown or made available to the press by Abdul Razak's lawyers or by the court. Only a minor portion was revealed following Abdul Razak's acquittal.
Justice Suriyadi in his judgment stressed that crimes were usually committed in secret, and where concealment was highly probable.
“If direct evidence is insisted under all circumstances, a successful prosecution of vicious criminals - who have committed heinous crimes in secret or secluded places - would be near impossible.
“In this case, not only was the heinous crime committed at a secluded place, but the deceased's body had been blasted beyond recognition. Only fragments of bones were found,” he noted.
The prosecution's case, the judge said, squares entirely on circumstantial evidence.
The discovery of the crime scene and certain items owned by the deceased, along with established call-logs showing Azilah ( right ) as having made calls from the same crime scene, had resulted in his defence of alibi being unsustainable.
“By no account could Azilah have been at Bukit Aman or Wangsa Maju (the alleged alibi) at the material time. Azilah's alibi was a non-starter as his failure to call the maker to prove the entry had left him high and dry.”
Meanwhile, Justice Suriyadi said Sirul's testimony did not carry much weight as Altantuya's jewellery and a blood stained slipper had been found.
“His (Sirul's) car that was detected at the Kota Damansara toll booth en route to Puncak Alam had totally discredited his unsworn testimony,” he added.
He further said the court was absolutely satisfied by the circumstantial evidence probided by the prosecution that there can only be one inescapable conclusion, which is that the prosecution had successfully proven its case beyond reasonable doubt, and hence, the mandatory death sentence was restored.
While Azilah appeared in court when the verdict was announced by the Federal Court on Jan 13, Sirul never turned up and he has since been arrested by the Australian immigration in Brisbane.