Speaking to the Federal Court bench here today, Shafee cited the corruption trial involving former minister Kasitah Gaddam, which was shortened as the prosecution and defence exchanged documents before the start of the trial.

“Kasitah’s trial took only three weeks to be completed although it was scheduled for four months. Both parties knew what documents were in their possession,” he said in his submission to appeal against the Court of Appeal ruling refusing the former prime minister access to additional documents.

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 trial.

Kasitah, who was also represented by Shafee, was acquitted by the High Court in 2009 of corrupt practices and cheating in 1996.

As Najib’s lawyer, Shafee said, he must be allowed to inspect all statements and documents to prepare his client’s proposed defence in case the former prime minister is asked to answer the charges.

Najib faces six charges of money laundering and criminal breach of trust in the transfer of RM42 million to his account from SRC International, a former unit of 1MDB.

He is also accused of abusing his power as prime minister by giving government guarantees on SRC International’s RM4 billion loan from Retirement Fund Inc.

The trial began on Wednesday before judge Mohd Nazlan Mohd Gfhazali.

Under the law, Shafee said, defence of the accused starts the moment the prosecution begins its case.

“It would be regarded as an afterthought if the accused started his defence after he is called to answer the charges,” he told the seven-member bench chaired by Chief Justice Richard Malanjum.

He also referred to the case of former Selangor menteri besar Muhammad Muhammad Taib who was charged with failing to declare that he was carrying more than A$5,000 to Australian immigration authorities.

He said the prosecution then had handed over the investigation papers in their entirety to the defence.

Muhammad, better known as Mat Taib, was arrested at the Brisbane airport in 1997, carrying US$1 million in bank notes from Singapore, Malaysia and New Zealand. He was later acquitted.

Co-counsel Harvinderjit Singh said the prosecution’s fear of witness tampering did not arise as Malaysia has the Witness Protection Act and Whistleblowers Act.

Ad hoc prosecutor V Sithambaram, meanwhile, said the prosecution had handed the documents to the defence as listed under Section 51A of the Criminal Procedure Code.

These include 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, that is, Najib.

He said the defence was confusing the issue of getting documents before and during the course of the trial.

“They can amend their defence statement as the trial unfolds. We will supply other documents if the need arises. The claim that the accused will be prejudiced is an unfounded imagination,” he said.

He claimed the motive of the defence in obtaining witness statements and documents was to get the prosecution to surrender the investigation papers in their entirety.

“If this is done, the conduct of the prosecution’s case will be severely affected which will have wide implications,” he added.

Sithambaram said it is dangerous as a matter of public policy to surrender these statements to the defence as it could result in witness tampering.

“Such statements are recorded in confidence,” he said. “In the future, witnesses might not come to court to give evidence.”

Malanjum fixed April 10 to deliver judgments on three appeals by Najib and one by the prosecution.

Yesterday, the apex court heard the prosecution’s appeal against the Court of Appeal ruling which ordered that ad hoc prosecutor Sulaiman Abdullah’s appointment letter be produced to the defence for inspection.

The court also heard the appeal by the defence which wanted a gag order imposed to prevent the media and the public from discussing the SRC International case, and to challenge the attorney-general’s withdrawal of his certificate to transfer the case from the Sessions Court to the High Court.