KUALA LUMPUR, June 29 — The prosecution is asking the Federal Court to throw out Datuk Seri Najib Razak’s application to nullify or cancel the entire trial where he was found guilty of the misappropriation of RM42 million of SRC International Sdn Bhd’s funds.
In an affidavit filed today by the SRC prosecution team’s deputy public prosecutor Mohd Ashrof Adrin Kamarul, the prosecution said judge Datuk Mohd Nazlan Mohd Ghazali — who had heard the SRC trial and found Najib guilty — did not have any conflict of interest.
Najib had claimed that the judge’s previous roles in Maybank had resulted in a conflict of interest and that the SRC trial should be nullified or even ordered to go for a retrial.
But the prosecution today said that Najib’s allegations of conflict of interest by the judge is “baseless”, stressing that Najib had “not shown any real or imagined conflict of interest on the part of Justice Nazlan when he heard the SRC trial”.
“The applicant knew of Justice Nazlan’s position in Maybank at all material times during the trial and took no objection to him presiding over the SRC trial,” Ashrof said in his affidavit, referring to Najib as the applicant.
While Nazlan had heard Najib’s SRC trial at the High Court and found him guilty in July 2020 and while Najib had in December 2021 lost his appeal and filed his final appeal in the Federal Court the same month, it was only on June 7 this year that Najib had filed this application to add on purported new evidence in relation to Nazlan with the ultimate goal of seeking to nullify the trial.
The Federal Court had as early as April 29 notified both Najib’s lawyers and the prosecution that it will be hearing his SRC appeal over 10 days from August 15 to August 19, and from August 22 to August 26.
Najib’s SRC appeal at the Federal Court will be his final appeal against his conviction and sentencing to RM210 million fine and 12 years’ jail.
Although Najib claimed to have recently discovered Nazlan’s past positions in Maybank before the latter became a judge, Ashrof pointed out that these were actually public knowledge and argued that it was actually known by Najib since the start of the trial in 2019.
Ashrof pointed out that Maybank's annual reports from 2006 to 2014 are available in the public domain and had shown Nazlan to have been Maybank's group general counsel and company secretary and group head of corporate and legal services, and that news reports on August 2, 2018 regarding Nazlan being the SRC trial judge had mentioned these past Maybank roles and these news reports were publicly available even before the trial began in April 2019.
"Justice Nazlan's role in Maybank Group is public knowledge and was known to the applicant at all material times including during the commencement and continuance of the SRC trial as shown by public documents and documents in the possession of the applicant," he said.
Among other things, Ashrof said there has been undue delay in Najib's filing of this application for purported additional evidence, saying that these alleged new evidence are actually not new and not relevant to the SRC appeal at the Federal Court.
"I state that the present application is nothing but a fishing expedition for evidence and totally irrelevant to the charges against the applicant," he also said.
Among his explanations on why Najib's complaint regarding Nazlan's past Maybank roles were totally irrelevant to the SRC case, Ashrof pointed out that both Nazlan and Maybank never had any role in establishing SRC and that Najib was raising issues that were linked to the 1Malaysia Development Berhad (1MDB) trial instead of the SRC trial.
Noting that Nazlan is not the judge hearing the 1MDB trial, Ashrof pointed out that the prosecution teams for SRC and 1MDB are also different teams.
"It was 1MDB and not Maybank Investment Bank Berhad that set up SRC. The role of Maybank Investment Bank Berhad to act as strategic adviser never materialised," he said.
Ashrof said that any purported knowledge that Nazlan may have had on any past Maybank loans to 1MDB have no connection to the SRC trial heard by the judge and that he does not have any conflict of interest, noting: "1MDB and SRC were distinct legal entities. SRC operated separately and independently from 1MDB at all material times."
Disagreeing with Najib's claim that there was a conflict of interest by Nazlan which allegedly led to a real danger of bias due to his purported involvement in SRC's formation, Ashrof said: "There is absolutely no evidence that Justice Nazlan was involved in the setting up of SRC nor of any conflict of interest on his part relating to the SRC trial. These are dubious and an afterthought allegations against Justice Nazlan, who is unable to personally defend himself from these spurious allegations."
Judges typically do not engage in public responses to allegations made against them, which leaves them vulnerable to attacks and which recently resulted in the Malaysian Bar's recent Walk for Judicial Independence to voice out in defence of the judiciary.
While Najib had claimed that the trial judge would have recused or removed himself from hearing the case and he may have "received a judgment different and favourable" to him if the purported new evidence were available during the trial, Ashrof said none of the purported new evidence in Najib's application would have led to the trial judge's recusal for conflict of interest.
Ashrof said it is merely Najib's speculation that he would have received a favourable judgment if Nazlan was recused from the SRC trial, saying that there was "overwhelming evidence" produced at the SRC trial which proved the prosecution's case against Najib beyond any reasonable doubt.
Saying that all relevant evidence had already been disclosed fairly and made available to Najib during the trial, Ashrof said there was no suppression of evidence as alleged by Najib and that Najib was not denied a fair trial.
"This application is filed to prolong the SRC proceedings for collateral purpose," he said, ultimately concluding his arguments by saying that there are no merits to Najib's application and urged the Federal Court to dismiss the application.
Najib's application is scheduled for case management tomorrow at the Federal Court.