Hybrid hearing put us at disadvantage, says Najib's lawyer

Najib Abdul Razak's defence team claimed that the hybrid court session held on Dec 7 had created an uneven playing field during the hearing of his application to adduce new evidence in the SRC case.

Lead counsel Muhammad Shafee Abdullah said the proceeding saw deputy public prosecutors present physically in court, while Najib's lawyers had to attend via Zoom application.

This, he said, had given the prosecution some advantages over his team, especially when presenting their case to the court.

"My learned friends from the prosecution, they were present in court, where they had the full advantage. They could hear the judges clearly, while we were only present via Zoom.

"They had advantages, while we were at disadvantages," Shafee told reporters during an online press conference earlier today.

The Dec 7 session was held before a panel of three Court of Appeal judges, who heard Najib's application to enter new evidence in the SRC International trial, which he believed could help his case but was allegedly suppressed by the authorities.

However, Najib and Shafee, among others, were not able to attend the proceeding as they were identified as close contacts of a Covid-19 patient.

They had put in a request to postpone the hearing, but the court had rejected it and ordered them to attend via virtual video conference.

The appellate court later decided to dismiss Najib's application. The same court on the next day announced its judgement in Najib's main appeal case, where it upheld an earlier decision by the Kuala Lumpur High Court to convict Najib of seven criminal charges and sentenced him to 12 years jail and fine of RM210 million.

Difficult to hear judges

Shafee claimed that his team faced difficulties to hear the voice of some of the judges and the prosecution, and had to make do with whatever they could get when arguing the case.

On top of this, the prosecution also had the full advantage to utilise other human elements when the defence could not, he added.

Shafee said they are appealing the decision on adducing new evidence to the Federal Court, and would include the alleged unfair circumstance as part of their argument.

"We certainly will take this up to the Federal Court as part of the argument. Forcing us to do hybrid (hearing) is unfair, among other reasons.

"Basically, what I'm saying is, when we do hybrid (session), we are restrained from capitalising the human elements, while our opponent has full advantage.

"Where is the interest of justice when you compel a hybrid hearing?"

No legal provisions allow hybrid hearing

According to the lawyer, hybrid court sessions were also something that does not exist in the Court Judicature Act.

He said that a new provision that took effect from Oct 22, 2020 had only added that courts may conduct any proceeding through a remote communications technology.

"There is no mention anywhere that you can mix and match, meaning hybrid.

"That is an interesting issue whether a remote communication technology can include hybrid proceeding," Shafee added.

Meanwhile, on another issue, Shafee also claimed that the Health Ministry's MySejahtera application has a flaw that might affect court proceedings.

The lawyer said he had gone into self-quarantine for seven days after coming into close contact with a Covid-19 patient earlier this month.

However, after having completed the quarantine period, he said, the application had asked him to answer a set of questions including one on whether he had been in close contact with a confirmed case within the last 14 days.

According to Shafee, the application did not have any option to state the exact date of contact, and thus when given the answer “yes” the application started his quarantine period again.

"I am still having the orange (status) and I'm still having what they call the monitoring, home surveillance, whereas it should have ended at the latest yesterday." - Mkini