Prosecution jeopardised if Najib’s lawyers given wider access to documents, court told

Lawyer Datuk V. Sithambaram arrives at the Kuala Lumpur High Court February 11, 2019. — Picture by Ahmad Zamzahuri
Lawyer Datuk V. Sithambaram arrives at the Kuala Lumpur High Court February 11, 2019. — Picture by Ahmad Zamzahuri

PUTRAJAYA, March 12 — The prosecution process may be severely jeopardised and affected if Datuk Seri Najib Razak’s defence in the RM42 million SRC International Sdn Bhd corruption case is granted wider access to documents including witness statements, the Court of Appeal was told today.

Lawyer Datuk V. Sithambaram, who is also the ad hoc prosecutor under the Attorney General’s Chambers, said that the granting order sought by the appellant will effectively mean all Investigation Papers (IP) have to delivered and disclosed to the defence.

“In short, if they succeed they will change the entire landscape on the production of documents at the pre-trial stage. Not for this case, but all MACC...AMLA cases, we have to hand over the entire IP.”

“I am not exaggerating and I understand the implications as I come from a criminal law background,” he said.

Appellate Judge Datuk Zabariah Mohd Yusof, who led a three-member bench including Datuk Lau Bee Lan and Datuk Rhodzariah Bujang, presided over today’s hearing.

Today is the second day of hearing on the four appeals linked to Najib’s SRC International Sdn Bhd corruption trial that was meant to start on February 12, following the stay granted by Court of Appeal on February 11.

Sithambaram pointed out that the appellant’s submission has ‘far-reaching’ consequences as it opened the floodgates on how prosecutions are conducted in the country.

“In future cases, nobody will come forward as it will put theprosecution witnesses at risk,” he claimed.

He also said the prosecution was not legally bound to supply evidential documents as requested by the defence since it was not provided under Section 51A of the Criminal Procedure Code (CPC).

“The appeal is about the delivery of documents by the prosecution to the defence at the pre-trial stage. This appeal is not about admissibility of documents at the trial stage, as contended by the appellant in this appeal.

“The rational for this argument by the appellant is premise on the appellant’s contention that these documents are automatically admissible at the trial and thus must be delivered to the defence at the pre-trial stage,” he said.

Prosecutors also revealed in court today that it has already delivered 31 volumes of documents amounting to approximately 6,500 pages inclusive of 26 witness statements, which they intend to use as part of the evidence for the prosecution.

Yesterday, the Court of Appeal heard Najib’s appeal against a ruling by High Court Judge Mohd Nazlan Mohd Ghazali, who had barred the defence from obtaining further documents from the prosecution with regard to the SRC International case.

Lawyer Harvinderjit Singh, in representing Najib, argued that such circumstances should be accepted if there was tremendous change of law as claimed by the prosecution.

“So be it. If my learned friend claims it will go haywire, so be it!

“It would be better to protect all innocent or accused persons presumed innocent than to even consider the added obligations to the prosecution.

“It’s not even going to prejudice them...it’s just inconveniencing but it does not compared to the accused person’s prejudiced of admissible evidence being kept by prosecution which may or may not be relevant to the defence and are being kept out,” he said.

In response to prosecution witnesses being put at risk, Harvinderjit clarified the defence was merely requesting witnesses’ statements and not the entire IP before citing laws like the Witness Protection Act 2009 and the Whistleblower Protection Act 2010 that offered protection to concerned witnesses.

“I fail to see any sort of prejudice to the prosecution and how giving us the document will impede their power or ability to prosecute,” he said.

He also argued that statements and documents collected during investigations under Section 30(9) of the Malaysian Anti-Corruption Commission (MACC) Act 2009 and Section 40 of the Anti-Money Laundering, Anti Terrorism Financing and Proceeds from Unlawful Activities Act 2001 (AMLATFPUA) must be supplied or delivered to them.

This is despite the fact that it is not provided under Section 51A of the CPC.

To which Sithambaram responded that the submission has no statutory basis on a reading of Section 51A of the CPC.

“The admissibility of documents is a matter to be determined at the trial and not at the pre-trial stage,” Sithambaram said.

Hearing resumes on Friday after Najib’s lead counsel Tan Sri Muhammad Shafee Abdullah told the Court of Appeal earlier he was unable to continue with his argument for today after his pet dog broke his wrist.

The Court of Appeal had previously granted Najib’s request to stay or temporarily pause the trial on February 11, until the court decides the outcome of his appeal on the withdrawal of the transfer certificate.

Since being charged in July last year until now, Najib’s lawyers have also filed three applications, namely for a gag order to prevent public discussion of the trial (filed July 18), discovery of documents from the prosecution (filed on October 2) and also for the prosecution to produce Datuk Sulaiman Abdullah’s letter of appointment (filed on November 26).