Fadley Faisal

The High Court that heard submissions from both the prosecution and defence parties yesterday in the case against the judiciary couple will hand down its judgment on January 15, 2020.

The case against Ramzidah binti Pehin Datu Kesuma Diraja Colonel (Rtd) Haji Abdul Rahman and Haji Nabil Daraina bin Pehin Udana Khatib Dato Paduka Seri Setia Ustaz Haji Awang Badaruddin resumed in the High Court yesterday beginning with submissions from the prosecution.

Queen’s Counsel (QC) Jonathan Caplan, who appeared on behalf of the Public Prosecutor submitted an overview of the prosecution’s case and the evidence which have been disclosed during the hearing between September and October 2019.

Ramzidah did not give evidence on oath. Simon Farrell QC submitted that no adverse inference should be drawn against Ramzidah for not giving evidence because she had already given her defence in her interview with the authorities and statutory declaration.

Caplan QC highlighted that the law allows the prosecution to make adverse comment where a defendant chose to remain silent and invited the court to draw the inference that she had no answer to the prosecution’s case against her.

One of Ramzidah’s explanation for the large amounts of cash she had was that BND5 million was received from a Malaysian national for assisting with a confidential agreement between 2010 and 2017.

According to the defence, her explanation has not been contradicted as the Malaysian national has not given evidence. In the absence of such evidence, Farrell urged the Court to conclude that Ramzidah’s explanation should therefore be believed. The Prosecution submitted that this is incorrect because the explanation was not given by sworn evidence in court. Further, Ramzidah has the burden of proving this explanation because she wishes to rely on it.

The prosecution also reiterated the evidence adduced which have in fact disproved Ramzidah’s explanations including the fact that the 149 pieces of BND10,000 notes dispensed by Bank A to Ramzidah when she made withdrawals from the Official Receiver’s (OR) accounts under her control were traced as being deposited into her and/or her joint bank account with Haji Nabil Daraina or used to purchase new cars or exchanged for smaller denominations.

Ramzidah’s defence is also that the money withdrawn were placed in a fixed deposit account. The Prosecution submitted that there was no reason for her to open such accounts. Even if there was a reason for her to do so, she was running a high risk by withdrawing large sums of money from one bank and taking the cash to a different bank in order to open a fixed deposit account. In any case, she has not provided any such details of the allegedly opened fixed deposit accounts and the prosecution adduced evidence from local banks that those accounts never existed.

Simon Farrell QC, representing both defendants, suggested that the prosecution’s process of proving the non-existence of such accounts at the banks was flawed. There was no evidence produced from banks B and C regarding the existence or otherwise of a fixed deposit account. He further suggested that the evidence from bankers who confirmed that there were no fixed deposit accounts did not satisfy the requirement under the law for producing bankers’ records.

Caplan replied that the statements of the bankers were not for producing such records and thus, is not limited to the requirements set out by the law. The witnesses were referring to cheques or enquiries that had been made as to whether these accounts existed. The enquiries were checks against existing or past account holders.

In respect to Haji Nabil Daraina, it was submitted that the prosecution has not proven the case against him because there is no evidence to prove that he either knew or had reasonable grounds to believe or suspect that his wife was dishonestly misappropriating monies from the Official Receiver’s accounts over a period of 14 years.

The prosecution’s position is that Haji Nabil Daraina must have known that his wife’s story of being given BND5 million is untrue. As an intelligent person and as a criminal judge, he must have been aware that their standard of living was way above their emoluments. Without a credible explanation from Ramzidah as to the sources of the cash, he must have appreciated that the only logical source of such huge amounts was the OR accounts under her control.

If the court is not satisfied that Haji Nabil Daraina knew he was dealing with the proceeds of his wife’s criminal breach of trust then he, at the very least, had reasonable grounds to believe or suspect it. There were a number of factors giving rise to such grounds from the perspective of a reasonable man, for example the amount of cash involved, the complete absence of documentary evidence demonstrating a lawful source, the failure of Haji Nabil Daraina to ask Ramzidah any questions at all about the cash deposited into their joint accounts and the large amounts of cash they were spending.

Having heard the submissions of both parties, Justice Gareth John Lugar-Mawson will deliver his judgment on January 15, 2020.

Deputy Public Prosecutors Hajah Suhana binti Haji Sudin, Hajah Suriana binti Haji Radin, Dayangku Didi-Nuraza binti Pengiran Haji Abdul Latiff and Muhammad Qamarul Affyian bin Abdul Rahman also appeared for the Public Prosecutor. Lawyer Sheikh Noordin Sheikh Mohammad also appeared for the defendants.