PUTRAJAYA: The prosecution in Najib Razak’s SRC International Case says his demand that it hand over all documents in its possession would be akin to surrendering the investigation papers in their entirety to the defence.
Ad hoc prosecutor V Sithambaram told the Court of Appeal today that if the defence succeeded in its appeal, it would change the legal landscape in the country.
“The floodgates would be opened as we would have to surrender the entire investigation papers to the defence.
“The conduct of the prosecution’s case would be severely affected,” he said.
Sithambaram said all documents investigated under the Malaysian Anti-Corruption Commission (MACC) Act and the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds from Unlawful Activities Act must be handed over to the defence before the start of the trial.
In this case, however, the defence was actually demanding that the prosecution hand over all witness statements recorded by MACC investigators, he said.
As a matter of public policy, he added, it is dangerous to surrender these statements to the defence as it could result in witness tampering.
“Such statements are recorded in confidence. In the future, witnesses will not come to court to give evidence,” he said, adding that MACC investigators had been unable to trace two key persons who could assist in the probe.
He added that the prosecution had handed the defence the documents as listed under Section 51A of the Criminal Procedure Code.
These comprise the police report, any document that would be tendered as part of the prosecution evidence, and a written statement of fact favourable to the defence (Najib).
Asking the court to dismiss the appeal, Sithambaram said the prosecution was not bound to supply any documents not provided for under Section 51A.
He added that the defence was submitting case laws from foreign jurisdictions to persuade the court to depart from current practice as approved by Parliament.
“The law has been codified as provided for under Section 51A of the Criminal Procedure Code.
“The country will go haywire if investigation papers are handed over to the accused,” he said.
Najib is seeking for more documents, including witness statements, to be delivered to his lawyers as he is required to submit his proposed defence before the start of the SRC International trial.
Last year, his appeal to compel the prosecution to supply all documents before the start of the trial was dismissed by High Court judge Mohd Nazlan Mohd Ghazali.
The current appeal is being heard before a three-member panel led by Zabariah Mohd Yusof. The others on the panel are Rhodzariah Bujang and Lau Bee Lan.
Najib’s lawyer, Havinderjit Singh, said the defence was asking for the witness statements out of necessity.
“There is no prejudice to the prosecution if the documents we are asking for are handed over,” he added.
Najib is also appealing against the dismissal of a gag order on the media and public to prevent them from discussing the merits of his case. In addition, he is seeking to compel the government to produce the appointment letter of another ad hoc prosecutor, Sulaiman Abdullah.
The former prime minister is facing charges of money laundering and criminal breach of trust in the transfer of RM42 million into his account from SRC International.
He is also accused of abusing his power as prime minister by giving government guarantees on the former 1MDB unit’s RM4 billion loan from Retirement Fund Inc.
The court today adjourned the appeal hearing of the certificate transfer for the case to Friday, after Najib’s lead counsel Muhammad Shafee Abdullah told the judges that he had fractured his wrist.
“My pet dog jumped on me,” he said, adding that he was in pain and needed to see a doctor for an X-ray.
However, Attorney-General Tommy Thomas opposed the application, saying there is public pressure that the delayed trial begin as soon as possible.
“There is enormous pressure on the prosecution team, in fact global pressure on us for the trial to start,” he said.
“I understand the counsel has a problem, but we are also under scrutiny as to why the trial has yet to begin.”
He also said he would not be available to respond to the certificate transfer appeal as he would be in Johor Bahru on Thursday to attend a meeting of the Pardons Board.
The four appeals were initially scheduled to be heard and completed today.
However, the bench fixed Friday following a proposal by Shafee.