Federal Court faced with more unique questions in Najib’s SRC appeal

 

Najib Razak is appealing in the Federal Court against his conviction on seven charges of abuse of power and misappropriation of RM42 million funds belonging to SRC International.

PETALING JAYA: Former prime minister Najib Razak is asking the Federal Court to admit more “fresh evidence” in the form of a second set of documents which he alleges contain further evidence of judge Nazlan Ghazali’s participation in deliberations regarding the setting up of SRC International and the grant of an RM4.17 billion loan facility for 1MDB to acquire Tanjong Energy.

The documents include minutes of a meeting and emails, which Najib alleges show Nazlan, in his former capacity as general counsel and company secretary of Maybank, was privy to matters which went to the heart of Najib’s defence in the SRC International trial.

For that reason, Najib says Nazlan ought to have disqualified himself from presiding on account of a conflict of interests.

In an affidavit filed in court last week, Najib is also seeking permission from the court to adduce oral evidence from four named MACC officers who, he claimed, investigated Nazlan earlier this year.

Najib alleges that during that investigation, the documents were shown to Nazlan, who allegedly confirmed his “involvement” or “knowledge”.

The application comes as Najib appeals to the country’s highest court to overturn a conviction on seven charges of abuse of power and misappropriation of RM42 million funds belonging to SRC International, which the Court of Appeal upheld on Dec 8 last year.

Najib faces several challenges in his application.

As a general rule, fresh evidence will only be admitted on appeal if it satisfies several requirements, the first of which is that it must not have been available at the original hearing despite the use of reasonable diligence.

That would mean that Najib will need to explain how the documents came into his possession.

Najib’s affidavit claims this second set of documents was contained in an “anonymous package” which landed at the doorstep of his Langgak Duta residence only very recently, on July 7. Will the apex court accept that explanation?

Will the court presume that the evidence had been obtained illegally since it appears to have been used during the MACC investigations? What would the impact of such a finding be on Najib’s application?

The general rule is that illegally obtained evidence is still admissible if it is relevant to matters in issue before the court.

However, Najib’s case is, in a sense, unique. Normally, it is the accused who will object to the prosecution’s reliance on illegally obtained evidence to prove the commission of a crime.

In the present case, however, roles are reversed, and it is the defence which intends to admit evidence which the prosecution is alleging are secret, privileged and was obtained illegally.

Najib’s affidavit says that he has been “made to understand that when asked by the MACC officer of his knowledge/involvement …, Justice Nazlan initially denied having any knowledge …, but only after being confronted with email threads and documents by the MACC officers (did Nazlan admit) that he was indeed involved”.

He then goes on to challenge the prosecution to prove otherwise. Would that assertion alone be sufficient to shift the burden of proof back to the prosecution?

It is a trite legal principle that in situations such as this, the judge himself is not permitted to descend into the arena to confirm or deny allegations made against him.

In such a case, is the prosecution compelled to respond to Najib’s assertion of what Nazlan may or may not have said during MACC investigations? Can an adverse inference be drawn for its refusal or failure to do so?

There are also public policy considerations for the Federal Court to consider. For instance, will allowing such evidence encourage leaks from sources within investigating authorities?

Those matters will have to be balanced against Najib’s fundamental constitutional right to a fair trial, which he claims was denied him by Nazlan presiding over the case.

In effect, Najib contends that Nazlan, already knowing of certain facts, prejudged relevant portions of the case, including a key finding that Najib had “overarching” control over SRC.

The apex court has plenty to consider, not only in so far as it affects the case before it, but also in relation to public perception of the integrity of the judicial system, as well as that of the prosecutorial and investigating authorities. - FMT