High Court rejects Najib’s ‘fishing expedition’ in SRC trial, refuses delay of Dec 3 hearing

Ida Lim

Former prime minister Datuk Seri Najib Razak at the Kuala Lumpur High Court Complex November 13, 2019. — Picture by Yusof Mat Isa

KUALA LUMPUR, Nov 15 — The High Court today dismissed Datuk Seri Najib Razak’s bid to get statements recorded from witnesses by investigators for his corruption trial over SRC International Sdn Bhd’s RM42 million.

High Court judge Mohd Nazlan Mohd Ghazali described the former prime minister’s attempt to obtain such information as a “fishing expedition”, and also rejected Najib’s request to have the SRC trial delayed from the next scheduled hearing date of December 3.

The judge said it was clear that the Federal Court’s past decisions including in Datuk Seri Anwar Ibrahim’s case and Najib’s case showed that statements recorded by investigators under the MACC Act 2009 are “privileged” and “not subject to disclosure at any stage of the trial”.

“It is privileged because of public policy considerations and risk of witness tampering,” the judge said after hearing arguments from both the prosecution and Najib’s lawyers.

The judge noted that the High Court must follow the decision of the highest court in the country based on the legal doctrine of stare decisis or being bound by legal precedent.

The judge also decided that Najib had not shown why it was necessary for the full list of witnesses investigated and their statements during investigation to be produced for their defence, as Najib had not identified things such as which statements were required.

“In this context, the application appears to be a fishing expedition,” the judge said.

The judge also alluded to his August 27 notification to Najib’s lawyers that the decision on whether Najib would have to enter defence would be delivered on November 11, as well as his August 27 scheduling of continued trial dates from December 3-4, 9-12 and 16-19, noting that Najib’s lawyers would have sufficient time to make the necessary arrangements for preparations.

“I find more than ample notice and reasonable time has been given to the applicant to prepare and re-strategise the relevant arrangement.

“The request for adjournment in my view cannot be sustained. Accordingly, I dismiss the entire application of the applicant. The trial will resume on December 3,” the judge said.

Datuk Seri Najib Razak’s lawyer, Harvinderjit Singh, is seen at the Kuala Lumpur Court Complex November 15, 2019. — Picture by Hari Anggara

Najib’s lawyer Harvinderjit Singh then said his client would be appealing today’s decision and asked for a stay of the trial pending the appeal.

Nazlan refused to grant a stay, as he cited a Federal Court ruling that stay of criminal proceedings can only be granted in the rarest of circumstances and even the risk of the trial becoming null would not be sufficient justification. 

Najib’s application

Najib had filed the application on November 13, where he asked for several court orders including an order for the prosecution to provide within 24 hours a list with the full details of everyone who had their statements recorded by the Malaysian Anti-Corruption Commission (MACC) and other investigators for the SRC case.

The information sought by Najib are their names, details, designations and their contact information.

Najib also wanted the court to order the prosecution to choose and explain whether those in this list would be offered for cross-examination by Najib’s lawyers or would be offered for Najib to call as defence witnesses, except for those who had already testified during the trial or are dead or untraceable.

For those who are now dead or untraceable or cannot be found, Najib wanted the court to order the prosecution to deliver within 24 hours the statements that had previously been recorded by the MACC or other investigators.

Najib also wanted a court order for the prosecution to deliver the statements recorded by investigators from witnesses that his lawyers decide to call in his defence, within 24 hours of them notifying the prosecution.

In the same application, Najib had asked for the SRC trial to be deferred from the scheduled trial date of December 3 to review the witnesses’ statements and to make effective preparations for Najib’s defence.

Lead prosecutor Datuk V. Sithambaram arrives at the Kuala Lumpur Court Complex November 15, 2019. — Picture by Hari Anggara

Before the High Court delivered its decision on Najib’s application for the witness statements, ad-hoc prosecutor Datuk V. Sithambaram noted that the prosecution had already offered a list of 66 witnesses for Najib to call for his defence.

Sithambaram suggested that Najib’s lawyers were allegedly mounting a fishing expedition with the hopes of finding their defence through the witness statements.

He also highlighted the risk of witness tampering where witnesses could feel threatened face intimidation, bribery, coaching or being asked to change their testimonies, adding that potential witnesses may in the future be reluctant to come forward and give statements to the MACC if the assurance of confidentiality is compromised.

Harvinderjit had argued however that the Witness Protection Act and a provision in the MACC Act which protects informers could be used.

Datuk Seri Najib Razak’s lawyer, Tan Sri Muhammad Shafee Abdullah, is seen at the Kuala Lumpur Court Complex November 15, 2019. — Picture by Hari Anggara

Najib’s lawyer Tan Sri Muhammad Shafee Abdullah argued that there is no real fear of witnesses being harmed or intimidated as he said such incidents rarely happen in Malaysia, adding that the prosecution could tell witnesses beforehand to lodge police reports if they were under threat or forced to change their statements when interviewed by the defence.

“So where is this theory that witnesses are going to be intimidated by the time they come to the trial in High Court, none of that has ever happened,” Shafee said, having argued that no defence lawyer “worth his salt” would attempt witness tampering.

Attorney General Tan Sri Tommy Thomas at the Kuala Lumpur Court Complex November 15, 2019. — Picture by Hari Anggara

Among other things, Attorney-General Tommy Thomas had objected Najib’s request to defer the trial and highlighted the Legal Profession (Practice and Etiquette) Rules 1978 where no lawyer should take up a client’s case if they are not free to do so. 

While noting that Najib currently has three ongoing trials including one that is scheduled to start next Monday, Thomas said: “The prosecution prepared three separate teams to prosecute the case. If the defence chooses the same defence team, they have to pay to price...If you are not free, you shouldn’t accept.”

Shafee is leading the defence team for the three trials, as well as in two other cases of Najib that have yet to go on trial.

Related Articles Convicting Najib of graft will take time, Kepong MP reminds public The measure of a finance minister not with his race, Pakatan tells Najib Despite Najib’s final bid to delay 1MDB tampering trial, Arul Kanda wants it to start Monday