Defence’s ‘goalpost shifting’ claim a ‘desperate’ move with ‘no legal basis’, Najib’s SRC appeal hears

PUTRAJAYA, April 22 — The claim by Datuk Seri Najib Razak’s defence that the prosecution had “shifted goalposts” throughout the SRC International Sdn Bhd corruption trial is nothing more than an “ingenious” attempt to exclude relevant and admissible evidence unfavourable to the former prime minister’s ongoing appeal, the Court of Appeal heard today.

Ad hoc prosecutor Datuk V. Sithambaram said this during the prosecution’s rebuttal in Najib’s appeal hearing against the former prime minister’s conviction and jail sentence for the misappropriation of RM42 million in SRC International funds.

Sithambaram earlier voiced his disagreement with the defence’s contention that the prosecution had diverted from its case in the course of cross-examining Najib and his witnesses, as noted by the constant harping on the prosecution’s conduct which was contrary to the prima facie case established at the close of the prosecution case.

Instead, Sithambaram said the defence only made the “unfounded” submission so as to exclude all damning evidence against them that was elicited in cross-examination of the defence witnesses and in particular Najib’s evidence, which did not support the latter’s defence case.

He said the allegations that the prosecution introduced new facts or circumstances through cross-examination of Najib to fill “gaps” in the prosecution’s case was unfounded, since the object of witness cross-examination is to elicit answers in favour of the prosecution and to weaken the evidentiary value of the defence.

“To illustrate the aforesaid, during the prosecution case, the defence inter alia, put that Jho Low manipulated the appellant’s account without his knowledge but during the defence case, the appellant said he tasked Jho Low to ensure that there were sufficient funds in the appellant’s accounts to issue his numerous cheques.

“The defence submission is desperate and one that has no legal basis.

“In conclusion, the learned judge rightly decided that there is no gap in the prosecution case and the prosecution had not departed from its case even with the admissions of the appellant in his cross-examination.

“The prosecution case was corroborated by the appellant’s evidence. The case of the prosecution narrative remains intact throughout the whole trial,” he said.

Among the cross-examination evidence sought to be excluded are those that showed Najib had knowledge of his bank account and bank balances; the credit and debit of the RM42 million in his account; Najib treating SRC International monies as his own; evidence showing Najib had personal interest in SRC International; the so-called Arab donation being a sham and Najib tasking Jho Low, Nik Faisal Ariff Kamil and Datuk Azlin Alias to top up his bank account to ensure all cheques issued were honoured.

“In short, all damaging evidence against the appellant elicited in the cross-examination of the appellant must be excluded as they are inadmissible, the defence submits tongue in cheek.

“This argument by the appellant is nothing but a desperate attempt to divert the case established by the prosecution.

“This is the first time the respondent has heard arguments that the case for the prosecution is confined to the ruling by the learned Judge at the prima facie case level,” Sithambaram added.

Sithambaram further submitted that the argument of the defence, in that the case of the prosecution was limited to the prima facie findings of the learned trial judge, was legally incorrect.

He added this is because the trial judge has to weigh the evidence adduced by the defence against the totality of the evidence adduced by the prosecution and then determine whether Najib had raised a reasonable doubt on the prosecution case at the end of the defence case.

On top of that, Sithambaram submitted that the prosecution was entitled by virtue of Section 146 Evidence Act to field questions in order to test the accuracy, veracity and credibility of a witness.

“Once the defence case commences, the prosecution will be cross-examining the defence witnesses including the appellant.

“Depending on the evidence brought forward by the defence, suggestions will be made in the course of cross-examination.

“What must be emphasized is that the prosecution has never diverted from its case and the evidence adduced for it.

“The defence evidence, if anything, was complimentary of the prosecution case,” he said.

In the RM42 million SRC International case, Najib was sentenced by the High Court to 10 years’ jail on each of the three counts of CBT and each of the three counts of money laundering, and 12 years’ jail and a RM210 million fine, in default five years’ jail, in the case of abuse of position on July 28 last year.

However, Najib will only serve 12 years in jail as the judge ordered all the jail sentences to run concurrently which he is now appealing against.

The appeal hearing before Court of Appeal judge Datuk Abdul Karim Abdul Jalil who chaired a three-member panel alongside Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera continues.