SRC appeal: Misdirection by High Court judge during prima facie ruling deprived Najib of a proper defence for an acquittal, lawyer argues

Kenneth Tee
·4-min read
Lawyer Tan Sri Muhammad Shafee Abdullah speaks during a news conference at the Court of Appeal, Putrajaya April 5, 2021. — Picture by Miera Zulyana
Lawyer Tan Sri Muhammad Shafee Abdullah speaks during a news conference at the Court of Appeal, Putrajaya April 5, 2021. — Picture by Miera Zulyana

PUTRAJAYA, April 5 — A “misdirection” made by the High Court judge in his ruling during the close of the prosecution stage in Datuk Seri Najib Razak’s SRC International Sdn Bhd corruption trial deprived Najib of a proper defence for an acquittal, his lead defence lawyer argued at the Appellate Court today.

In appealing against Najib’s conviction and jail sentence for misappropriation of RM42 million SRC International Sdn Bhd funds, Najib’s lawyer Tan Sri Muhammad Shafee Abdullah argued that the trial judge had incorrectly found a prima facie case to be made out against Najib’s charges.

Shafee argued this was evident of material additions to the contents of the full written Grounds of Judgment (GOJ) and the trial judge’s orally pronounced prima facie findings and ruling on November 11, 2019.

Noting the process, effect and legislative intent behind a finding of a prima facie case and the subsequent burden on an accused to rebut said findings, Shafee said alterations, supplications or improvements allowed was in breach of commonly known law principles.

“There has been serious misdirections by the trial judge during the prima facie ruling. It is highly improper and prejudicial to the accused.

“The prima facie case found by the trial judge in the prima facie ruling made up the findings, inferences and presumptions on which Najib’s defence was called.

“These prima facie findings were therefore the only findings which Najib was required to explain, negate or rebut in his defence case to earn an acquittal.

“The additions in the GOJ by which the trial court makes additional findings to justify a prima facie case were not made known to Najib at the close of the prosecution’s case and could not therefore had been addressed in the defence case,” he said.

Shafee said, ultimately, the defence case was conducted specifically to address the findings of facts, inferences and presumptions outlined in the prima facie ruling.

He had earlier explained how the added findings directly co-related to the evidence and issues raised by the defence filed at the end of the defence stage, with the findings in the GOJ not the same as those made during the close of the prosecution case.

He also pointed out how the additions to the GOJ were only made after the case had been concluded when it first appeared in the Malayan Law Journal in early September 2020.

This is some three months after trial judge, Mohd Nazlan Mohd Ghazali, delivered his verdict convicting Najib on all the charges arraigned against him on July 28, 2020.

Therefore, Shafee argued that the aforementioned GOJ additions cannot be considered as being part of the determination which formed the basis on which the High Court had found a prima facie case to have been made against Najib.

He cited the comprehensiveness of the prima facie findings in which Nazlan had outlined only a number of specific pieces of evidence adduced during the prosecution’s case which were deemed by the defence to have been “filtered” through a maximum evaluation process the High Court was duty bound to conduct.

“All other evidence not cited in the prima facie ruling could not have formed the subject of determination of a ‘prima facie’ case.

“Resultantly, any alteration, addition or supplication of the findings in the prima facie ruling would be contrary to the maximum evaluation doctrine,” he added.

Inexperienced High Court judge brought in to hear ‘case of the century’

Arguing further that Najib’s SRC International case was the “case of the century”, Shafee highlighted how a High Court judge lacking experience in conducting criminal cases was instead brought in to preside over the trial.

He contended that a judge with necessary criminal case experience was required to hear Najib’s criminal trial since Nazlan previously presided over civil matters, stressing that it should be the case to avoid any “mistakes” made.

“At the last minute, they appointed a judge who had no experience in criminal trial,” Shafee exclaimed, referring to Nazlan’s transfer from the commercial court to the criminal court in August 2018.

Prior to the commencement of Najib’s trial, Nazlan replaced fellow High Court judge Datuk Mohd Sofian Abd Razak as the presiding trial judge in a routine transfer signed by then Chief Judge of Malaya Tan Sri Zaharah Ibrahim.

Shafee then proceeded to describe his 40 years experience as a former deputy public prosecutor and private lawyer, stating that complex criminal cases were usually heard by “experienced judges”.

Shafee cited the cases of the former Selangor menteri besar, the late Datuk Seri Harun Idris, who faced corruption charges in 1977, and former deputy prime minister Datuk Seri Anwar Ibrahim, who was prosecuted for abuse of power in 1999.

“In both cases, experienced judges in criminal cases heard the cases,” he said, adding that Nazlan had made “error after error” in the SRC International case.

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 rsumes tomorrow.

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