Two different parts in Bala's SD, explains PI's lawyer - Malaysiakini

The first statutory declaration signed by controversial private eye P Balasubramaniam consists of two parts - one on what was told to him and the other involves what he personally saw himself.

According to Balasubramaniam's lawyer, Americk Singh Sidhu (left), the first part involves statements that the private investigator was in a position to ascertain their truth.

"He was therefore alluding to the fact that these statements were made to him, but was not alluding to the truth of those statements."

This include where Balasubramaniam said he was told about the fact that Najib and murdered Mongolian woman Altantuya Shaariibuu had a relationship.

"The second part of Bala's first SD reflects what he experienced himself. This would be not be regarded as hearsay evidence."

Examples are the message Balasubramaniam saw on Abdul Razak Baginda's mobile phone on the day the political analyst was arrested.

The SMS message, purportedly from Najib Abdul Razak, informing Razak Baginda that the then deputy prime minister was "seeing the IGP (inspector-general of police) at 11am that day and to be cool".

Razak Baginda, known to be Najib's close confidant, was later freed from the charge of abetting the murder of his former lover Altantuya.

Americk also said that the Altantuya trial raised more questions than answers and where certain evidence was not brought to court.

"As the matter stands, we have two highly trained members of the Special Action Force killing a Mongolian national for no apparent reason. This is what was bothering Bala at the time he made his first SD."

The following is the final of a three-part interview:

Malaysiakini: When you recorded Bala's first SD, did you feel he was telling you the truth?

Americk: I have said this before. I have no reason to doubt the contents of Bala's first statutory declaration (SD). However, it must be borne in mind that there are actually two parts to Bala's first SD.

The first part involves statements that Bala says were told to him by third parties. Bala himself cannot verify the truth of these statements. That is why I said at the first press conference that these statements reflect exactly that.

All Bala was saying is that these statements were made to him and that he perceived them with his own senses. He was therefore alluding to the fact that these statements were made to him, but was not alluding to the truth of those statements.

In legal parlance these statements were hearsay and would not be admissible as evidence in a court of law until and unless they could be supported by other independent evidence and even if they were, the weight of this combined evidence is something a judge would have to consider before accepting or rejecting it.

Examples of statements under this category would include the following:

1) That Altantuya had a relationship with Najib.

2) That Razak Baginda was introduced to Altantuya by Najib at a diamond exhibition in Singapore.

3) That Altantuya was promised a commission of US$500,000 for her services in the Scorpene submarine deal.

The second part of Bala's first SD reflects what he experienced himself. This would be not be regarded as hearsay evidence. Examples of these statements include the following:

1) That he had contact with Altantuya on a number of occasions in October 2006.

2) That Razak Baginda hired him to keep Altantuya away from him.

3) That he saw Azilah (Hadri) and Sirul (Azhar Umar) bundle Altantuya into a car outside Razak Baginda's house on the night of Oct 19, 2006.

4) That Altantuya, at that time and place, had asked Bala to arrange for her to see Najib.

5) That Bala had, on Oct 21, 2006, received a call on his mobile phone from Musa (Mohd) Safri whilst he was outside the front gate of Razak Baginda's house, asking to speak to the police officer who was there attempting to persuade three of Altantuya's friends to disperse.

6) That Bala had given evidence for the prosecution in the Altantuya murder trial and had not been asked a number of very pertinent questions.

7) That Bala had himself seen a message on Razak Baginda's mobile phone (the day Razak Baginda was arrested), purportedly from Najib, informing Razak Baginda that he was "seeing the IGP at 11am that day and to be cool".

It is also pertinent to note that Razak Baginda (left) had every opportunity of denying all Bala had said in his first SD, at the press conference he called after his acquittal. However, he chose not to say anything except that he had given his statement to the police.

If there is any doubt as to the veracity of Bala's first SD, this can be tested by comparing it to two other statements recorded from him.

The first statement was recorded by the investigating officers in the Altantuya murder case. This is the statement Bala complained of in his press conference and first SD. He alleged that all 'sensitive' information he had given the police was erased from that statement.

The second statement was given to senior federal counsel Sallehuddin (Saidin) just prior to the commencement of Altantuya's murder trial. It must be remembered Sallehuddin was one of the prosecutors on the first prosecution team but dropped when the second prosecution team was mustered.

According to Bala, this second statement is 76 pages long and details everything that appeared in his first SD.

If the police are really keen in looking into this whole matter again to determine the truth, my suggestion would be to obtain copies of both these statements and compare them to the contents of his first SD. After all, they were prepared by the prosecuting authorities and should be readily available to the police.

What prompted Bala into making the first SD?

As Bala pointed out, he was a little frustrated that the police had not investigated the murder properly and that the prosecution had not conducted their case appropriately. He had been called to give evidence as a prosecution witness but was not asked a number or relevant questions.

He felt the police and the prosecution were trying to cover up the possible involvement of other parties in this murder.

There is no doubt Azilah and Sirul shot Altantuya in the head and blew her body up with C4 explosives. The court has already found them guilty.

There is also available on the Internet a full confession under s.113(1)(a)(2) of the Criminal Procedure Code, signed by Sirul and dated the 9.11.2006 (Travers report no. 7380/06) in which he has detailed the circumstances in which he and Azilah committed this murder.

There is also a mention of a promise of a reward of RM100,000 for these services. This statement was recorded by one inspector Nom Phot Prack Dit at Bukit Aman. This statement was not allowed to be tendered at the murder trial.

Azilah and Sirul did not give evidence under oath in their defence and therefore avoided any cross-examination on motive.

As the matter stands, we have two highly trained members of the Special Action Force killing a Mongolian national for no apparent reason.

This is what was bothering Bala at the time he made his first SD.

In his experience as a police officer attached to the Special Branch, he found it rather odd that two policemen would kill someone without receiving instructions to do so from their superiors.

In this case Azilah (right) and Sirul were Najib's bodyguards and were supposed to take instructions from Musa Safri, Najib's ADC (aide-de-camp).

Bala felt Musa Safri, at least, should have been called to the stand to testify.

Do you think the Altantuya murder trial was conducted in a fair manner?

Fair to who?

I think the first question that ought to be asked is why it was necessary to change all the players in this trial even before it started? No doubt this is the prerogative of the accused in their choice of counsel, and of course the Attorney General's Chambers in the appointment of prosecutors it feels more suitable. Of course a judge can be changed as well, but all three parties at once seems a little odd.

As the trial proceeded, it became obvious that there was a concerted effort by the prosecution and the defence to prevent any highly fragile evidence from being adduced. This became even more obvious during the questioning of Altantuya's cousin, Burmaa Oyunchimeg, by Karpal Singh, who was holding a watching brief for Altantuya's family.

Burmaa (left), whilst being questioned by the prosecution had mentioned a photograph shown to her by Altantuya that showed Altantuya, Razak Baginda and a senior government official at a meal. The prosecution and the defence vehemently objected to the eventual answer that Burmaa gave, ie that the senior government official was Najib.

This episode begs the question as to whose interests the defence was supposed to have been protecting? Certainly not their own clients.

It is also interesting to remember Sirul's statement from the dock at the end of the trial. He said, and I quote, "A black sheep that has to be sacrificed to protect unnamed people who have never been brought to court or faced questioning".