The failure to call Datuk Seri Najib Razak's aide-de-camp, Deputy Superintendent Musa Safri, constitutes a mistrial which led to the conviction of former police officers Sirul Azhar Umar and Azilah Hadri in the murder of Mongolian Altantuya Shaariibuu in 2006.
Counsel Kamarul Hisham Kamaruddin, who is representing Sirul, said this was because Musa was the only person who could shed light on the numerous phone transactions between himself and Abdul Razak Baginda. Razak Baginda was then the political analyst to Najib, who was then the deputy prime minister.
In his affidavit, Razak Baginda had said there were more than 30 phone calls and text messages to Musa on Oct 19, 2006, to stop his then lover, Altantuya, from harassing his family.
Razak was initially charged with abetting in the murder of Altantuya but was later acquitted by the High Court without having his defence called.
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Sirul and Azilah, who were former Special Action Squad members, were then found guilty and sentenced to death for her murder.
"In Razak Baginda's affidavit, he had also said Musa called him, the day after Altantuya went to his house, to tell him that he would be sending an officer there to help him. It was then Azilah called Razak."
But based on the phone records, it showed Azilah had called Razak Baginda first, prior to Musa's call. Hence, Kamarul said, there was no proper sequence and Musa should have been called to clarify this.
Kamarul argued that the affidavit by Razak Baginda was prejudicial to Azilah and Sirul, and Musa's testimony was pertinent to clarifying this.
Meanwhile, counsel Datuk Hazman Ahmad, who is representing Azilah, submitted his client did not have any explosives in his possession. The trial heard that Altantuya was shot before her body was blown up with C4 explosives.
Hazman said a witness in the trial at the High Court had testified that the Bukit Aman Special Action Squad, which Azilah was attached to, had no C4s in their store and that their members were not trained to handle that explosive.
"No doubt her death was tragic, but the question here is who could have had these explosives and who could have caused her death?" asked Hazman.
"There is no evidence to link Azilah to the explosive nor was there any evidence to show that he was trained to handle C4. "The trial judge had misdirected himself in delivering his decision.
"From the beginning, we have filed a notice of alibi but the judge had erred in not directing his mind to this," Hazman told a three-man bench led by Datuk Mohamed Apandi Ali.
He also said the trial judge had also erred in accepting the evidence that it was Azilah who led police to the crime scene when the accused claimed he did not give any such statement to the police.
"Police had staged a show to make it look like Azilah was the one who had led them to the crime scene," said Hazman, adding that the evidence should have been rejected as there were inconsistencies among the other police witnesses.
"The witness claimed Azilah told the police where the Mongolian woman was shot and her body blown to bits, but their sequence as to what he allegedly told them was different."
Hazman also pointed out that before Azilah allegedly showed police the crime scene, the media was already there. Apandi quipped: "Sometimes media personnel are more resourceful and more efficient than the police."
Counsel J. Kuldeep Kumar, who also represented Azilah, said the record of the call details tendered during trial had been tampered with as there was a break in the chain of evidence.
Kuldeep said the maker of the document had admitted in making a mistake in scripting the document and that the document should not have been admissible.
"There was a misdirection of the trial judge as there were inconsistencies in the documents," Kuldeep said.
He said it was clear the chain of evidence was broken as the document was not authenticated. In fact, he said, the document originated from an email.
Kuldeep also submitted that the station diary on the night of the murder had cast a reasonable doubt on the whereabouts of Azilah.
"Prosecution claimed that he was on the way to Puncak Alam at that time, but the station diary indicated he was in Bukit Aman and was going on escort duty for the deputy prime minister."
On April 9, 2009, Sirul and Azilah were convicted and sentenced to death by the High Court for the murder of Altantuya at Mukim Bukit Raja, Shah Alam, between October 19 and 20, 2006. - June 24, 2013.
