Najib asks Federal Court to annul SRC trial conviction

The nation’s highest court will have to address the most fundamental principle of law in its most important case ever when it hears Najib Razak’s final appeal from his conviction for abuse of power and misappropriation of RM42 million of SRC International’s funds.

(FMT) – On June 7, the former prime minister’s solicitors signed off on a notice of motion asking the Federal Court to declare the entire High Court trial in which he was convicted and sentenced null and void and for the case to be retried.

Najib’s legal team contends that he suffered a failure of natural justice, believing trial judge Mohd Nazlan Ghazali should have recused himself due to a conflict of interests.

In an affidavit affirmed to support the application, Najib claims that Nazlan, who was Maybank’s general counsel and company secretary between July 2006 and April 2015, ought at least to have had “constructive knowledge” of what the defence argues was the true source of SRC’s funds, which they say was central to issues in the case.

The law imputes “constructive knowledge” of a matter to a person even if he does not have actual knowledge if the matter could have become known to him through the exercise of reasonable care.

According to Najib, the documents at the heart of the application only came to light in May this year, and as such, he was not in a position to raise this issue either at the High Court or the Court of Appeal previously.

Ultimately, the apex court will have to consider whether Nazlan had knowledge of the matters as claimed by Najib and whether such knowledge made him a potential witness in the case.

The Federal Court will also have to consider whether there was, as a result, a real danger of bias in Nazlan presiding over the trial.

Najib did express reservations about Nazlan’s appointment at the start of the case, but this was in relation to his lack of experience in the criminal division of the High Court.

Despite this, in a letter written to then Chief Judge of Malaya Zaharah Ibrahim on Aug 7, 2018, his solicitors, Shafee & Co, expressed their confidence in Nazlan’s impartiality.

That letter was written to express concern about the optics surrounding the sudden transfer by which Nazlan replaced Justice Sofian Razak in the criminal court where Najib was produced and charged.

In a written reply dated Aug 8, 2018, Zaharah assured Najib’s defence team that the transfer was merely part of a routine reshuffling of judges which takes place from time to time.