KUALA LUMPUR: There is nothing to show that former Federal Court judge Datuk Seri Gopal Sri Ram had displayed prosecutorial misconduct for him to be disqualified from leading the prosecution team in Datuk Seri Najib Razak's trial.
Deputy public prosecutor Ahmad Akram Gharib said Najib had failed to show a single prosecutorial misconduct done by Sri Ram in the cases involving former prime minister.
He said this during the hearing of Najib's application to recuse Sri Ram from leading the prosecution team in the 1Malaysia Development Bhd (1MDB) audit tampering trial.
"That should be the threshold in the application right now.
"The issue is whether or not Sri Ram had committed prosecutorial misconduct... my answer is, he has not," he said.
He added that the evidence presented by SrI Ram in the trials the senior deputy public prosecutor (DPP) handled as a representative of the prosecution was relevant and admissible.
On the point that Sri Ram was involved in investigations involving 1MDB-related cases, Akram said the issues raised in regards to the matter had been adjudicated upon at all levels of the judicial process.
He said the higher courts had held that that there were no material facts to support the contention that Sri Ram was in fact involved in the investigations.
"The applicant claimed that Sri Ram was involved in 1MDB-related investigations that caused him to pre-judge the culpability of the applicant.
"His (Sri Ram) power to supervise investigations conducted by the investigating officer in his capacity as a senior deputy public prosecutor cannot be construed as having taken over the investigation,"Akram added.
Akram said the point of bias raised in the application, had also been adjudicated, thus makes it Res judicata (a matter decided).
He said a WhatsApp conversation between Sri Ram and then Attorney-General (AG) Tan Sri Mohamed Apandi Ali in 2018 does not indicate bias by Sri Ram in seeking the former AG to charge Najib.
"It was a conversation between two buddies. We can see from the tone of the whole conversation.
"He (Apandi) started his message to Sri Ram with 'bro'. There, the conversation goes on," he said.
Like other deputy public prosecutors, Sri Ram is only carrying out his duty based on the investigation papers, Akram added.
Meanwhile, Najib's lead counsel Tan Sri Muhammad Shafee Abdullah argued that the disqualification bid was not a punishment to anyone or Sri Ram but to protect from biasness.
He said the disqualification sought by the defence is to meet substantive fear of bias on the matter of predetermination of guilt of Najib by Sri Ram.
"It is for the protection for parties, the public and for wider interest of justice," Shafee said in his submissions.
Shafee also said the current application for the disqualification was not for the nullification of the ongoing 1MDB audit report trial, instead it was merely to see the prosecution against his client conducted without bias.
"We are very reasonable because this is a public interest case. I don't think in my lifetime a better case because it is so clear that there is a breach not only on the substantive aspect but also the visibility to the public.
"Justice must not only be done but must be seen to be done," he said.
High Court judge Mohamed Zaini Mazlan after hearing submissions by both parties fixed Feb 15 to deliver his decision on Najib's application.
On June 12, last year, Najib filed an application to recuse Sri Ram, supported by two affidavits, one filed by Najib and the other by Apandi.
This is the fourth attempt by Najib to recuse Sri Ram from leading the prosecution team in his cases after three failed bids at the High Court and Court of Appeal.
Najib, 68, and former 1MDB chief executive officer, Arul Kanda Kandasamy, 44, are on trial over 1MDB audit tampering charges.
The Pekan Member of Parliament is charged with using his position to order amendments to the 1MDB final audit report before it was presented to the Public Accounts Committee (PAC) to avoid any action being taken against him, while Arul Kanda is charged with abetting Najib in making the amendments to the report to protect Najib from being subjected to action.