PUTRAJAYA, Aug 16 — Datuk Seri Najib Razak has failed to convince the Federal Court to allow him to adduce additional evidence in his final appeal against his conviction of misappropriating funds from SRC International Sdn Bhd.
The five-judge panel led by Chief Justice Tun Tengku Maimun Tuan Mat unanimously dismissed Najib’s attempt to introduce evidence related to recent discoveries concerning trial judge Datuk Mohd Nazlan Mohd Ghazali’s alleged conflict of interest.
Tengku Maimun ruled that Najib’s application lacked merit as the evidence his defence team claimed to be fresh has no relevance to the former prime minister’s knowledge of the RM42 million, which is the main issue in the SRC International case.
“For all the reasons we have stated, we find that the applicant has failed to cross the threshold under Section 93 of the Court of Judicature Act.
“The motion is hereby dismissed. We shall now proceed with the main appeal,” she said.
The other four judges on the bench were Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim, Federal Court judges Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan and Datuk Mohamad Zabidin Mohd Diah.
The additional evidence comprises documentary and viva voce (oral) evidence of certain witnesses that seeks to establish the fact of conflict or bias on the part of Justice Nazlan's role in Maybank Group of Companies circa the time material to the seven charges against Najib.
Application of law to the facts
Noting that admission of evidence is a matter of judicial discretion, Tengku Maimun said judicial discretion is in turn exercised by reference to decided judicial precedent — in this regard the landmark decision of the English Court of Appeal in Regina v. Parks — that was applied in the court's recent decision on March 16 into dismissing Najib’s first bid to introduce new evidence.
Accordingly, Tengku Maimun said the four cumulative elements in Parks meant that if any one element is unfulfilled, the application for fresh or additional evidence will thus fail.
The four elements can be summarised as evidence that was not available during the trial, relevant to the issues, credible evidence well capable of belief, and reasonable doubt as to the guilt of the appellant.
As for evidence that Najib claimed was not available to him, Tengku Maimun said it was not as if Justice Nazlan’s previous employment with the Maybank Group of Companies was a secret to any party such that his subsequent involvement with them came as a surprise.
She also said one piece of the documentary evidence sought to be adduced — namely DSN-16 — was available to Najib for use in the SRC International case after the prosecution served the defence in November 2019.
“Thus, in relation to DSN-14 and DSN-16, it is our finding that the first element of Parks has not been satisfied,” she said.
DSN-14 and DSN-16 refer to copies of a letter from Maybank Investment Berhad(MIB) to 1Malaysia Development Berhad (1MDB) and a 1MDB Board of Directors’ Minutes of Meeting respectively.
As for relevancy, Tengku Maimun said the crucial question is whether Justice Nazlan’s employment with the Maybank Group of Companies and his role therein is in any way relevant to the seven charges to the point that there may be a real danger of bias.
In the present verdict, she said the entirety of the additional evidence sought to be introduced is irrelevant to the charges preferred against Najib and failed to disclose any conflict of interest on the part of Justice Nazlan.
“Thus, it is our view, that all the additional evidence sought to be adduced, both oral and documentary, fails to meet the second requirement of Parks in that it is not relevant to the charges levied against the applicant,” she added.
Tengku Maimun later said the proposed additional evidence was wholly irrelevant to the charges preferred against the applicant and stated the court's inability to agree with the defence that the dismissal would occasion a miscarriage of justice.
“There is, to our minds, no miscarriage of justice because the concurrent judgments of the Courts below are still liable to attack in the main appeals that are pending,” she said.
She also added that the court does not consider it necessary to deal with the aspect of hearsay, privilege and related issues since the court has found Najib’s non-compliance with Section 93 of the Court of Judicature Act.
Leading the prosecution is ad hoc prosecutor V. Sithambaram, who was assisted by deputy public prosecutors Donald Joseph Franklin, Sulaiman Kho Kheng Fuei, Mohd Ashrof Adrin Kamarul and Manjira Vasudevan.
Lawyers Hisyam Teh Poh Teik, Liew Teck Huat and Rueben Mathiavaranam appeared for Najib.
Last December, the Court of Appeal upheld the High Court’s July 2020 verdict and sentence of 12 years in prison and a fine of RM210 million.
The case is now at the Federal Court and it is Najib’s last chance to convince the judges his conviction and punishment should be overturned.
Hearing in the country’s supreme court is scheduled to take place over nine days from August 15 till August 19 and resume after the weekend on August 23 until August 26.
