Apex Court rejects Najib's bid to adduce new evidence

This was after a five-member panel chaired by Chief Justice Tun Tengku Maimun Tuan Mat unanimously dismissed the former premier's application after hearing the submissions by Najib's lead counsel, Hisyam Teh Poh Teik, and ad hoc prosecutor Datuk V. Sithambaram.

The additional evidence Najib is seeking to adduce relates to the recent discovery that the trial judge Datuk Mohd Nazlan Mohd Ghazali in 2006 was the general counsel and company secretary for Maybank Group, who had the ultimate overall responsibility for the management and administration of all legal departments within the entire group.

In delivering the court's decision, Justice Tengku Maimun said there was no nexus between justice Mohd Nazlan's previous bank job and Najib's charges, thus she ordered to proceed with the main appeal.

The other judges on the bench are Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim and Federal Court judges Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan and Datuk Mohamad Zabidin Mohd Diah.

Justice Tengku Maimun said the court ruled that Najib has failed to cross the high threshold of Section 93 of the Courts of Judicature Act 1964 which contains the law on fresh evidence.

"The entirety of the additional evidence sought to be adduced fails to meet the requirement. The application fails to disclose any nexus to the decision by Justice Mohd Nazlan. Some of the evidence would be available at the trial or would have been available with reasonable diligence.

"Preliminarily, we agree with the prosecution that availability of evidence was not subject to service under Section 51A of the Criminal Procedure Code but rather whether the evidence was available to the applicant during the trial.

"Since the counsel for both SRC and 1MDB was the same, the documents are available and therefore could have been raised before Justice Mohd Nazlan on the issue of his alleged conflict," she said.

Justice Tengku Maimun further said that Justice Mohd Nazlan's previous role in Maybank was known to the public and would be open to the applicant to make any request for the disclosure of the documents by further acts of diligence.

"The applicant was not ignorant and unrepresented. It cannot be said that he could not have obtained the evidence without due diligence on his part. In the course of the investigation by the Malaysian-Anti Corruption Commission, statements were recorded from Maybank employees and also from Justice Mohd Nazlan, with respect, we fail to see how their potential evidence was related to the charges against the applicant.

"We do not see how Justice Mohd Nazlan's previous role in Maybank may impact his findings in the SRC trial and the establishment of SRC by the acts of the applicant himself.

"Thus, we hereby dismissed the application for additional evidence," Justice Tengku Maimun said.

After the judgement was read out, Hisyam requested the main appeal to be postponed for at least three to four months as his appointment (as lead counsel) was made recently.

"I'm also unwell. I humbly requested for an adjournment," he said.

To this, Sithambaram countered that the prosecution would leave the matter to the court's discretion.

"This court already rejected their application twice, therefore, now the court must decide on the matter," said the senior prosecutor.

The court stood down the proceedings temporarily to decide the matter.

Najib is appealing against his conviction and sentence for misappropriation of RM42 million in the SRC case.

It is Najib's final appeal after a three-man bench of the Court of Appeal on Dec 8 last year upheld the Pekan MP's conviction and sentence of 12-year jail and the RM210 million fine imposed on him by the High Court Judge Datuk Mohd Nazlan Mohd Ghazali on July 28, 2020.