Najib’s attempt to present new evidence in SRC appeal dismissed; verdict to be delivered on Wednesday
Malaysia former prime minister Najib Razak (second from left) arrives at the Court of Appeal in Putrajaya on April 5, 2021. (File photo: AFP/MOHD RASFAN)
PUTRAJAYA: Malaysia’s Court of Appeal has dismissed the application by former prime minister Najib Razak to adduce new evidence in his appeal against the High Court decision last year, which found him guilty of misappropriating RM42 million (US$9.9 million) from a former 1Malaysia Development Berhad (1MDB) subsidiary.
Justice Abdul Karim Abdul Jalil made the dismissal after hearing submissions by both parties on Tuesday (Dec 7), local media reported.
The court will deliver its decision on Najib’s appeal on Wednesday as scheduled, he added.
Justice Abdul Karim, who is leading the three-member panel, said Najib has failed to prove the four elements required for new evidence to be allowed, the Star reported.
The four elements are: evidence was not available during the trial, relevance, credibility, and evidence that would have created a reasonable doubt in the minds of the jury, if the evidence were given together with other evidence during the trial.
"Having considered and further having heard lengthy submissions, the appellant has failed to successfully prove the four elements as adopted by our courts.
"In the circumstances, we acquired that the additional evidence was not necessary," he was quoted as saying by the Star.
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On Jul 28 last year, the High Court sentenced Najib to 12 years in jail and fined him RM210 million, following a guilty verdict in his first corruption trial involving millions of ringgit from former 1MDB subsidiary SRC International Sdn Bhd.
He was charged with three counts of criminal breach of trust, three counts of money laundering and one count of abuse of power.
For each count of criminal breach of trust, Najib was sentenced to 10 years' jail; for each count of money laundering, 10 years.
For abuse of power, the judge handed out a sentence of 12 years' jail and a RM210 million fine. If Najib fails to pay the fine, a five-year jail sentence will be served in lieu. All prison sentences would run concurrently.
Judges at the appellate court had concluded the hearing on Najib’s appeal on May 18.
However, On Dec 1, Najib applied to the Court of Appeal to allow and to direct for viva voce (oral) evidence to be taken from Malaysian Anti-Corruption Commission (MACC) chief commissioner Azam Baki and MACC investigating officer Rosli Hussein.
He also asked the court to allow evidence from any other witness in relation to the case, according to Bernama.
According to an affidavit in support of the application made available to the media, the former prime minister explained that he sought the adducing of the new evidence following the revelation by MACC that Singapore had repatriated to Malaysia US$15.4 million in 1MDB-linked funds that involved a company co-owned by Tawfiq Ayman, the husband of former Bank Negara (BNM) governor Zeti Akhtar Aziz.
Najib claimed that the evidence was not available during the SRC criminal trial before the Kuala Lumpur High Court and that the new evidence is "materially relevant" to the issues linked to the case.
In its reply to the affidavit, the prosecution said on Monday that they objected to Najib’s application to adduce new evidence, contending that it was only done to delay the appeal decision scheduled on Wednesday.
Bernama quoted deputy public prosecutor Budiman Lutfi Mohamed as saying that all the evidence in the case had been made available to the Kuala Lumpur High Court and the Court of Appeal for the determination of Najib’s appeal.
Hence, there was no relevant additional evidence that was required for the fair disposal of the case, said Mr Budiman.
He categorically denied that the prosecution has concealed any fact relevant to the charges during the trial or appeal process before the Court of Appeal.
The prosecutor also said that Najib could have made the application in January this year, as the issue of the statutory declarations made by Zeti's husband and his two sons was known by December 2020.
But he said that Najib took 11 months, and filed his application a few days before the appellate court was scheduled to deliver its decision on his appeal.
“This is a deliberate delay, and the irrelevance of the so-called fresh evidence to the charges demonstrates that this is a mala fide application,” he said.
“THIS IS NOT A COFFEE SHOP”
Tuesday’s hearing was moved online after Najib’s no-show at the court in the morning.
Najib’s lawyers had applied for the court proceedings on Tuesday and Wednesday to be postponed. According to Malay Mail, Najib’s lead counsel Muhammad Shafee Abdullah sought to vacate the hearing on the reason that his son, Muhammad Farhan, had tested positive for COVID-19 on Dec 6.
In a letter to the Court of Appeal’s registrar and sighted by Malay Mail, Muhammad Shafee said Najib was present at the legal firm’s office on Monday to affirm several legal documents for filing.
Justice Abdul Karim said the court had two options for Najib’s team, Bernama reported.
The court could cancel the bail, seize the bail money and issue a warrant of arrest for Najib, or hold the proceedings online, he said.
Justice Abdul Karim then decided to continue the proceedings as scheduled.
He warned Najib that it was a court of law and not a coffee shop when told by lawyer Harvinder Singh Sidhu that the former prime minister and his bailors were not present, according to Bernama.
Justice Abdul Karim asked: “Where is Najib? Where is his bailor?”
Mr Harvinder replied: “The appellant (Najib) is not present because he is a casual contact to Tan Sri Muhammad Shafee Abdullah's son, Muhammad Farhan, who tested positive for COVID-19. The bailors are also not present.”
Justice Abdul Karim said the court needed proof.
“There are two categories of close contact. The most important thing is to attend court. Everybody has been exposed. This is a court of law, not saliva (that you can spew at your whim). We want proof. Even the bailors are not present!” he was quoted as saying.
When one of Najib’s bailors, Mr Faizal Shamsuddin, entered the court later, he was queried about the former prime minister’s whereabouts.
He told the court that Najib was at Pavilion. Back in May 2018, cash and assets were seized from a condominium unit at Pavilion Residences linked to Najib.
“Pavilion? His house? Did you phone him or are you just guessing? Don’t play guessing games. This is a court, not a coffee shop,” Justice Abdul Karim said.
