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Court grants one of Najib’s four appeals

The Edge logo The Edge 22/3/2019 Hafiz Yatim
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PUTRAJAYA: The Court of Appeal has dismissed three of four appeals by former premier Datuk Seri Najib Razak in relation to charges of criminal breach of trust and abuse of power involving RM42 million of SRC International Sdn Bhd funds.

SRC International is a former subsidiary of 1Malaysia Development Bhd.

A three-member bench led by Justice Zabariah Mohd Yusof, however, allowed Najib’s appeal against senior lawyer Datuk Sulaiman Abdullah’s appointment as the prosecutor.

Justice Zabariah ordered Attorney-General Tommy Thomas to produce within three days the certificate of appointment for Sulaiman’s appointment as the prosecutor.

Najib appealed on four matters, namely, that a gag order be issued on the media to stop discussions of his case, to challenge the appointment of Sulaiman as a prosecutor, that more documents on the case be provided to him, and to question the transfer of his case from the Sessions Court to the High Court following the withdrawal of the Section 418 Criminal Procedure Code certificate.

The other judges were Justices Rhodzariah Bujang and Lau Bee Lan.

Justice Zabariah read her brief grounds regarding the gag order and the request for more documents from the prosecutors, while Justice Rhodzariah allowed Najib’s appeal regarding Sulaiman.

Justice Lau read her grounds with regard to the transfer of the case following the withdrawal of the Section 418 Criminal Procedure Code certificate.

The bench ruled that High Court judge Justice Mohd Nazlan Mohd Ghazali was right in his decision not to allow the gag order, not to order further documents to be provided to the defence and also his decision on the transfer.

“There is no error in the judge’s decision with regard to these matters which warrants the appellate court’s intervention,” Justice Zabariah and the other Justices ruled.

However, what was important in all four matters was that with regard to providing more documents, the court ruled that the prosecution had fulfilled the Section 51A requirement of the Criminal Procedure Code concerning the handover of pretrial documents to the defence.

Justice Zabariah said that the prosecution was right in not giving witness statements which it recorded under Section 30 of the Malaysian Anti-Corruption Commission Act 2009 and under Section 40 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds from Unlawful Activities 2001 for fear of witness tampering.

She cited a Federal Court case in which the court ruled against disclosure of such documents.

“There is no legal basis or no foundation that could support the right to inspect the documents [by the defence] at the pretrial stage. On pretrial, the prosecution has met the requirements under Section 51A and the appellant (Najib) is not entitled to any disclosure at this stage as the documents were obtained during the course of the investigations.

“Documents obtained during the course of investigations are considered privileged documents as there is a fear of the likelihood of witness tampering.

“The threat of witness tampering is real and relevant to public policy, as the court should protect against witness tampering,” she said, noting that the prosecution also need not provide a list of witnesses at the pretrial stage.

On the gag order, the judge said the finding by the High Court judge that the plaintiff failed to meet the threshold for a prior restraint gag order is correct.

“Such relief sought is found to be unfounded and we do not want to interfere with the High Court judge’s findings,” she said.

Justice Lau ruled that the transfer of the case back to the judge himself was in order as he was exercising his power on his own initiative as a High Court judge.

“His order that the cases be tried before the same High Court is not an usurpation of the Chief Judge of Malaya’s powers. The usurpation does not exist as the High Court judge was acting on his own initiative,” Lau said.

Justice Rhodzariah, in granting the only appeal by Najib, said they are unanimous in granting the appeal as the court rules the privilege of confidentiality does not extend to the letter of appointment to Sulaiman.

Following the decision, both parties then submitted on the issue of a stay of proceedings of the trial where Havinderjit Singh and lead counsel Tan Sri Muhammad Shafee Abdullah said if the trial proceeded it might lead to an annulity should the Federal Court reverse the Court of Appeal’s decision.

Thomas said if possible the prosecution is prepared to have the case start next week as case management for this case is fixed for today.

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