Lawyer A Srimurugan said High Court judge Mohd Nazlan Mohd Ghazali has to critically evaluate the evidence of the witnesses in the light of the cross-examination by the defence.
“It is up to the judge to decide how much weight is to be assigned to the witnesses and the documents tendered. He then, on the totality of the evidence, has to decide whether the prosecution has made out a prima facie case,” Srimurugan told FMT.
He said there were three likely scenarios: Najib ordered to enter defence on all the charges, the court gives him a total acquittal, or Najib is acquitted of the abuse of power and criminal breach of trust (CBT) charges but asked to answer the money laundering charges.
Najib is accused of abusing his power as prime minister by giving government guarantees on SRC International’s RM4 billion loan from Retirement Fund Inc (KWAP).
He faces three charges of money laundering and three for CBT in the transfer of RM42 million to his account from SRC International, a former unit of 1MDB.
He is charged with committing the offences at AmIslamic Bank Bhd on Jalan Raja Chulan and the Prime Minister’s Office in Putrajaya between Aug 17, 2011, and Feb 10, 2015.
During submissions, Attorney-General Tommy Thomas said Najib abused his power when he sat in the cabinet meetings when dealing with SRC International.
Thomas said Najib, among others, approved government guarantees for SRC to obtain a total of RM4 billion in loans from KWAP in 2011 and 2012.
He said Najib benefited as RM42 million of SRC money, which was part of the RM4 billion loans obtained from KWAP, went into his private accounts.
Thomas said Najib amended the SRC constitution to wield absolute power and caused the company to borrow money where the government had to issue guarantee letters.
He said senior lawyer Ranjit Singh had also testified that Najib admitted in a defamation suit that RM42 million from SRC International went into his personal bank accounts.
Ad hoc prosecutor V Sithambaram, who was given a licence to feature in the prosecution team, said the siphoning of RM42 million of public funds was done with the direction and knowledge of the former prime minister.
“The CBT was well planned and pre-meditated over a few years by the accused,” Sithambaram had said.
He said evidence indicated a layered process, with money deposited into Najib’s private bank accounts and then withdrawn, among others, through the issuance of cheques.
Sithambaram also panned the defence’s position that the RM42 million was a donation from an Arab royalty, saying the money was almost entirely utilised, with only a balance of RM763 in one of his accounts as of Sept 9, 2014.
Lawyer Muhammad Shafee Abdullah said there was no case of abuse of power as his client had no interest in SRC, which was a government-linked company.
“This is because Section 23 (4) of the Malaysian Anti-Corruption Commission Act provided immunity to him as the then prime minister and finance minister when he represented another public body like SRC,” he said.
Shafee said Najib could not have misappropriated RM42 million as that money was not from SRC but was part of a donation from an Arab prince.
He said Najib’s money laundering charges also crumbled when the prosecution failed to prove the predicate offences of abuse of power and CBT.
Counsel Harvinderjit Singh, who is assisting Shafee, had also urged Nazlan to ignore some 70 documents tendered as evidence by the prosecution as they were not original documents and their “makers” were not called to testify.
The prosecution had sought to prove its case by way of oral, circumstantial and documentary evidence. However, it has been unable to locate several witnesses despite attempts by the police and MACC.
In response, Sithambaram said the MACC Act and the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (Amlatfa) allowed the prosecution to tender copies of documents.
“The legal position is that the Evidence Act, which is a general law, should give way to the specific legislation under which the accused is charged,” he said, adding that it is up to the court to determine how much weight should be given to them.