Monday, November 11, 2019

SRC Trial - Judge decide Najib not acquitted but have to enter defnce - what it means?

NOVEMBER 11 - this was the day when the Court decided on the first of several Najib trials..see also earlier post -11 November - Day the High Court May Decide To Acquit Najib? SRC Case?

The prosecution had presented all its evidence - and the court had to decide whether Najib was to be acquitted(without having to call Defence) because the prosecution has failed to convince the court that Najib is guilty and ought to be convicted.... OR NOT.

If the court decided that the prosecution has convinced the court that Najib ought to be convicted - and will be convicted if Najib fails to adduce evidence sufficient to raise a reasonable doubt, the the court will decide that Najib will have to present his evidence to try to change the mind of the court. 

beyond reasonable doubt that Najib is guilty?

It is a well-established principle of Malaysian criminal law that the general burden of proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence with which he is charged. There is no similar burden placed on the accused to prove his innocence. He is presumed innocence until proven guilty. To earn an acquittal, his duty is merely to cast a reasonable doubt in the prosecution case...To earn an acquittal at the close of the case for the prosecution under s. 173(f) or s. 180 of the Criminal Procedure Code, the court must be satisfied that no case against the accused has been made out which if unrebutted would warrant his conviction (Munusamy v. PP ). If defence is called, the duty of the accused is only to cast a reasonable doubt in the prosecution case. He is not required to prove his innocence beyond reasonable doubt. - kes Mohamad Radhi bin Yaakob v. Public Prosecutor
It therefore follows that there is only one exercise that a judge sitting alone under s. 180 of the Code has to undertake at the close of the prosecution case. He must subject the prosecution evidence to maximum evaluation and ask himself the question: If I decide to call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution case? If the answer is in the negative then no prima facie case has been made out and the accused would be entitled to an acquittal. - Gopal Sri Ram HMR (pada ketika itu) menyentuh isu yang sama dalam kes Looi Kow Chai & Anor v. Public Prosecutor [2003]

So, we shall see what the Judge decides on November 11? - 11 November - Day the High Court May Decide To Acquit Najib? SRC Case?

TODAY, November 11 2019, Court decided that Najib must enter his Defence...

What can happen after this? Few possibilities..

1 - Najib will proceed to call his witnesses and the trial the end...OR

2 -   Najib may try to appeal against this November 11 High Court decision...

Now, if the trial continues, Najib will have to call his witnesses to give evidence 

Will Najib be a witness?

Well, an accused person has 3 choices 

1- Remain silent...
2- Take the stand as a WITNESS, which also means that he will be subject to cross-examination by the prosecution
3 - OR simply give a statement from the dock (here no cross-examination) - Anwar in his past trials chose this 3rd option? 

We have to wait and see what Najib will do... 

One media report seems to say that Najib will not appeal but will proceed with trial - and Najib will also take the stand as a witness(the 2nd option listed above)... 

Now after the Defence has called its witnesses, adduced evidence and closed their case, the JUDGE will decide again whether the prosecution has managed to prove beyond a REASONABLE DOUBT that Najib is guilty...and if so, then  Najib will be convicted and sentenced.

However, after Najib presents his witnesses/evidence, Najib manages to raise A REASONABLE DOUBT, he will be acquitted - found not guilty..

The legal standards for a criminal trial is very high ...many a guilty can easily escape simply because judge/s find that prosecution failed to prove BEYOND REASONABLE DOUBT...

Najib to enter defence in SRC International trial

Bede Hong Timothy Achariam
Former prime minister Najib Razak has been slapped with three counts of CBT, three counts of money-laundering and one count of power abuse in his SRC International trial. – The Malaysian Insight pic by Seth Akmal, November 11, 2019.
NAJIB Razak has been ordered to enter his defence in the SRC International Sdn Bhd trial on charges of misappropriating RM42 million from the former 1Malaysia Development Bhd subsidiary.

Kuala Lumpur High Court judge Mohd Nazlan Mohd Ghazali made the ruling this morning after finding that the prosecution has successfully established a prima facie case against the former prime minister.

Najib has chosen to give sworn testimony from the witness stand, after which he will be cross-examined by prosecutors.

The hearing dates have been fixed from December 3 to 19.

The 66-year-old Najib’s seven criminal charges – three counts of criminal breach of trust, three counts of money-laundering and one count of power abuse – are linked to RM4 billion in loans issued to SRC International in 2011 and 2012, for which he is accused of receiving RM42 million in his personal accounts in 2014 and 2015.

“Because of his position as (the then) prime minister and finance minister, the accused was able to cause the arrangement of SRC International… to be a vehicle to be utilised by him for his private advantage,” said Nazlan when delivering his oral judgment, which took nearly an hour.

He said the prosecution has established a prima facie case for the power abuse charge under Section 23 of the Malaysian Anti-Corruption Commission Act 2009, CBT charges under Section 409 of the Penal Code, and money-laundering charges under Section 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism Financing Act 2001.

Evidence submitted by the prosecution showed that Najib abused his office for the purpose of obtaining gratification, he said.

He said the evidence showed that Najib, in cabinet meetings in 2011 and 2012, used his position to set in motion the approval of up to RM4 billion in loans from Retirement Fund Inc to SRC International. It is from these loans that the RM42 million eventually made its way into Najib’s AmBank accounts.

Nazlan added that SRC International was “no ordinary” company, as Najib was named its adviser.

He said the entity was deprived of RM42 million, and that the evidence pointed to the money being a “wrongful gain” as Najib had issued cheques for the amount.

Despite Najib saying he was shocked at discovering the money in his accounts, he did not order anyone to lodge a police report or file a suit against the bank for irregularities, said the judge.

He said the crime of misappropriation occurred when the funds left SRC International and before entering Najib’s accounts, as the former prime minister had been placed in charge of the firm.
The prosecution's case in Najib Razak's SRC International trial saw 57 witnesses testifying over 57 days between April 3 and August 27. – The Malaysian Insight pic by Seth Akmal, November 11, 2019.
“In light of the summary at the end of the prosecution stage… in my judgment, the prosecution has established credible evidence (on the use of the accused’s) position for self-gratification, three CBT charges and three money-laundering charges. If not properly rebutted, these would result in a conviction.”

Najib, dressed in a dark grey suit and an orange tie, remained expressionless, while his supporters stayed silent when Nazlan made the ruling.

Present in the public gallery were Najib’s daughter Nooryana Najwa, opposition leader Ismail Sabri Yaakob, former Jerai MP Jamil Khir Baharom and about a dozen backers.

The prosecution’s case in the SRC International trial saw 57 witnesses testifying over 57 days between April 3 and August 27. The prosecution tendered more than 750 exhibits, including bank documents relating to Najib’s accounts, cash transactions, meeting minutes and Blackberry Messenger chats on his transactions.

In all, Najib faces 42 charges, spread out over five criminal trials.

The ongoing 1MDB proceedings involve the biggest sum – RM2.282 billion that he allegedly received between 2011 and 2014.

For his yet-to-be-heard trials, Najib faces six counts of CBT involving RM6.6 billion in government money paid out to settle debts with Abu Dhabi sovereign wealth fund International Petroleum Investment Company, one count of power abuse for tampering with the 1MDB audit report and three counts of money-laundering involving RM27 million in SRC International funds.

The trials will proceed one at a time, as Najib’s right as an accused requires that he be present for all trial hearings, as well as those on interlocutory matters, to ensure fair proceedings.

The burden of proof is on prosecutors, who must prove that Najib is guilty beyond reasonable doubt. Till then, he is presumed innocent. – November 11, 2019. - Malaysian Insight

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