PUTRAJAYA : Documentary evidences which seriously implicated Datuk Seri Najib Razak to the criminal breach of trust (CBT) offences he was charged with can no longer be ruled inadmissible since the defence “abandoned” its attempt to provide a document expert’s report or called said witness to testify, the Court of Appeal heard today (April 20).
Ad hoc prosecutor Datuk V. Sithambaram said this during the prosecution’s rebuttal in Najib’s appeal hearing against the former prime minister’s conviction and jail sentence for the misappropriation of RM42 million in SRC International Sdn Bhd funds.
Najib had previously filed a notice of motion to seek for an expert document examiner, Steven J. Strach from Australia, to be appointed to examine seven photocopied exhibits tendered in court which was subsequently allowed by the trial judge.
At the time of the filing, Najib gave reason that he was unable to confirm his signature because the original document was not produced in court.
However, he too failed to confirm his own signature even when the original document was shown, insisting for a handwriting expert to determine whether his signature were forged.
The seven exhibits concerned shareholders’ minute and fund transfers instructions signed by Najib which implicated him for the three criminal breach of trust (CBT) offence he was charged with.
“It must be remembered that the forthcoming document examiner’s report was the basis for the refusal by the appellant to confirm the authenticity of the documents.
“The appellant withheld his answers on the documents until their authenticity is confirmed by the expert.
“As the expert was not called, it follows that the documents can no longer be ruled inadmissible as the admissibility was determined at the close of the prosecution case and the defence has failed to rebut the same with their expert report,” he said.
While no adverse inference can be drawn against Najib by reason of his failure to call the handwriting expert, Sithambaram said this failure may be taken into account by the trial judge in assessing the weight of evidence.
Submitting further, Sithambaram said there was no credible reason for the defence to contend that an impasse has arisen relating to the terms of Strach’s appointment since they were resolute in the need for a document examiner to examine Najib’s signature.
This he said, was made known to the prosecution via a letter which informed the court the defence was unable to proceed with Strach since the report for the examination conducted would not be provided and Strach would not be called to testify.
“In any event, as abruptly as this application was filed, its demise was equally as quick.
“Dr Strach, an Australian expert, would not have come to Malaysia to conduct an examination of the documents and agreed to deliver the report thereafter, if there was any dispute as to his appointment.
“Since the defence relied on the forgery of the documents as vital to their case, the defence should have called another expert in place of Dr Strach, if they were serious of the forgeries,” he said.
Sithambaram said it was therefore unacceptable as to the reason given for not producing the report since the defence would have been able to find a suitable replacement to continue with the document examination as Najib was determined in wanting the expert to examine the documents before he would acknowledge any of his own signatures.
“Strangely, as resolute as the appellant was in the need for a document examiner to examine his signature, the appellant did not firmly state with conviction that his signatures were forged.
“Oddly, the appellant chose a middle path to express disbelief and doubts as to whether he signed the disputed documents,” he said.
In the RM42 million SRC International case, Najib was sentenced to 10 years’ jail on each of the three counts of CBT and each of the three counts of money laundering, and 12 years’ jail and a RM210 million fine, in default five years’ jail, in the case of abuse of position on July 28 last year.
However, Najib will only serve 12 years in jail as the judge ordered all the jail sentences to run concurrently.
The appeal hearing before Court of Appeal judge Datuk Abdul Karim Abdul Jalil who chaired a three-member panel alongside Datuk Has Zanah Mehat and Datuk Vazeer Alam Mydin Meera resumes tomorrow.
By : KENNETH TEE – MALAY MAIL