KUALA LUMPUR — Following the High Court’s decision to grant a dismissal not amounting to an acquittal (DNAA) to Datuk Seri Najib Razak and Tan Sri Mohd Irwan Serigar Abdullah, lawyers suggest prosecutors may have jumped the gun and initiated criminal proceedings against the duo without completing investigations first.
The former prime minister and ex-treasury secretary-general were granted a DNAA yesterday over criminal breach of trust charges involving RM6.6 billion of government funds after a six-year delay by prosecutors to provide the defence with crucial documents as required under Section 51A of the Criminal Procedure Code (CPC).
According to former deputy public prosecutor Farhan Read, based on the circumstances, it would not be unreasonable to infer that authorities decided to do a “prosecute first, investigate later” on Najib and Irwan.
“Section 51A was inserted into the CPC within the last 10 to 15 years to facilitate and enable the defence to answer the prosecution’s case.
“Previously, the practice was the prosecution would charge the accused and hold back the evidence until trial,” Farhan told Scoop.
As such, he said this failure to deliver crucial documents may have led the court to conclude that the prosecution was not ready to proceed with the trial.
He also said this gives the court power to grant the DNAA via the court’s own “inherent jurisdiction” on the notion that the prosecution must be ready once they institute criminal proceedings.
Prosecution in good faith?
Additionally, Farhan pointed to the prosecution’s argument that they faced difficulties obtaining cabinet documents covered under the Official Secrets Act 1972 (OSA) and questioned how they could initiate criminal proceedings against both accused if they had problems acquiring the evidence.
“It begs the question if they have yet to obtain these OSA documents, did they have the evidence in the first place?
“Then if you ask further, was (the prosecution) initiated in good faith?
“Personally, I have never seen a case where they didn’t deliver documents in six years,” Farhan said.
Lawyer Srimurugan Alagan similarly explained that Section 51A was introduced to impose a legal duty upon prosecutors to give the defence documents they intend to rely on during trial.
These could include police reports, bank statements and other evidence intended to prove guilt.
However, he opined that in the event the prosecution delays or fails to adduce the documents, the CPC does not provide the option to grant a DNAA.
“If the documents are delivered after the trial has commenced, section 51A (4) and (5) states that the court can exclude the documents if it is shown that the delivery of that evidence was deliberately done in bad faith.
“The court can also give a reasonable time to the defence to examine the document or recall or re-summon and examine any witness in relation to the document.
“If there’s no delivery of documents, what the judge can and should do is reprimand the prosecutor, grant an adjournment and compel the supply of documents,” Srimurugan said when contacted.
In 2018, both Najib and Irwan were prosecuted with six counts of criminal breach of trust of over RM6.6 billion of government funds The funds were allegedly misappropriated and diverted to International Petroleum Investment Co (IPIC) in order to repay 1Malaysia Development Bhd (1MDB) debt.
However, they were discharged yesterday by High Court judge Datuk Muhammad Jamil Hussin who said the prosecution had failed to comply with Section 51A of the CPC.
It was reported on Monday that deputy public prosecutor (DPP) Muhammad Saifuddin Hashim Musaimi told the court that there were approximately 40 documents pertinent to the trial which have yet to be declassified under the Official Secrets Act.
This failure to deliver crucial prosecution documents prompted the defence to apply for a DNAA twice, with Najib’s and Irwan’s lawyers informing the court that these continued delays amounted to an abuse of court process.
In his grounds of judgment, Jamil said the decision to grant a DNAA does not prejudice the prosecution as they are able to recharge both accused. – November 28, 2024