PETALING JAYA: Former prime minister Najib Razak can still change his mind about the manner of defence he offers when the RM42 million SRC International corruption case begins next month, a lawyer says.
Muhammad Rafique Rashid Ali said just as an accused person can change a plea of guilty and ask to stand trial, Najib could decide to exercise any of his three options before his defence begins.
“This is his fundamental right as the offences carry jail terms of up to 20 years and heavy fines upon conviction,” he told FMT.
Najib, who was ordered on Monday to enter his defence for the seven charges against him over the transfer of money to his account from the former 1MDB unit, said he would give evidence under oath.
His other options are to provide an unsworn statement from the dock or to remain silent.
Unlike an unsworn statement, a sworn statement would enable the prosecution to cross-examine him with his lawyer then conducting a re-examination.
Najib’s lawyer, Muhammad Shafee Abdullah, said Najib’s choice of defence would be subject to the former prime minister obtaining the witness statements of everyone interviewed by the police and Malaysian Anti-Corruption Commission in relation to the case.
Rafique said trial judge Mohd Nazlan Mohd Ghazali would likely repeat the three options as provided for under the Criminal Procedure Code.
He said the Federal Court and Court of Appeal had in the past acquitted people based on the trial court’s failure to explain these options, which was a miscarriage of justice.
But lawyer Salim Bashir said more weight would be given to testimonies provided under oath as the accused could be cross-examined by the prosecution and re-examined by his lawyer.
If the accused chooses to give an unsworn statement from the dock, he added, the prosecution cannot conduct a cross-examination.
However, other defence witnesses must give their testimonies from the witness box, and they will be questioned by the defence and re-examined by the accused’s lawyer.
Salim said less weight would be attached to such statements as there would be no cross-examination to determine their veracity.
“If this option is utilised, the trial judge still has to decide whether the defence, on the balance of probabilities, has created doubt about the prosecution’s case,” he said.
He added that the prosecution must prove its case on a higher burden of proof – beyond reasonable doubt – at the close of the defence case.
He gave the example of former Dewan Rakyat deputy speaker DP Vijandran who had utilised this option with his conviction overturned by the Court of Appeal in 1998.
He also said an accused has the right to remain silent, but that legal precedents state that the court will have no choice but to order a conviction.
He cited the case of former aircraft cabin cleaner Ahmad Najib Aris, the accused in the Canny Ong rape and murder trial, who had chosen to remain silent at the start of the defence case.
Ahmad Najib was found guilty, a conviction affirmed by the Federal Court.