The Court of Appeal was not even able to consider the Appeal against the earlier High Court's decision simply because the prosecution failed to file the Petition of Appeal in TIME... and, thus the BLAME lies with the Prosecution - the Public Prosecutor. The Prosecution must explain to the rakyat the reason for this failure that denied the Court of Appeal to confirm or overturn High Court judge's decision.
The Court of Appeal today said the decision to strike out the appeal was made due to the prosecution's failure to meet the deadline to submit a petition of appeal.
The three-judge panel of the Court of Appeal chaired by Judge Datuk Hadhariah Syed Ismail together with Datuk Ahmad Zaidi Ibrahim and Datuk Azmi Ariffin unanimously rejected the prosecution's request to file the appeal petition outside the time limit.
The deadline for the prosecution to file the appeal petition is on July 6, which is within 14 days after the appeal record is obtained, which is on June 26.
If one wants to appeal, one must first file a Notice of Appeal - this was done.
Then, the appellant need to file the PETITION OF APPEAL - and normally, they will wait to receive the written judgment, court notes, etc - here/ they apparently received everything on June 26 - then, they have 14 days to file in the PETITION OF APPEAL, which will set out in detail the reasons for the appeal that they want the Court of Appeal needs to consider.
If they needed more time, an application for extension of time should have been filed - it looks like no such application was filed > merely a request(possibly an oral application) on the day the Court of Appeal sat to hear the appeal.
So, at the end, the Court of Appeal did not even review the records or the High Court's ground for its decision that acquitted Najib.
That means the appeal was struck out for a mere technicality. If the Court of Appeal, conducted the Appeal - would they AGREE with the High Court Judge's decision or NOT?
The Court of Appeal could have adjourned and allowed the prosecution to file the Petition - and it could determine whether the High Court Judge's decision stands or should be overturned. Now, we still do not know whether the High Court judge made the correct decision to acquit or not/
With regard, the Petition of Appeal - it can be done fast. And after filing the Petition of Appeal, you can later apply to amend it > to insert additional points or tighten it.
Years ago, in a criminal application seeking full pre-trial disclosure of all documents/information that were in the possession/knowledge of the prosecution, when it reached the Court of Appeal(Gopal Sri Ram led that panel), the panel after discussion agreed that the Petition of Appeal be amended to include additional relevant questions/issues - and, so, an adjournment for us to do that. Later, after the amendment was done, when we returned to the Court of Appeal(a different panel), this panel decided to not hear the appeal on the merits, but dismissed it on a 'technicality' - wrong mode?
But, in this Najib's case, there apparently was not even a Petition of Appeal - if you needed more time, the formal application to extend time ought to have been filed preferably before the 14 days lapsed...but media reports suggest that no formal written application to extend time...
WHY DID THE PROSECUTION, who is usually quiet efficient, fail to file the PETITION OF APPEAL - a fact that may have denied the Court of Appeal from hearing the full appeal.
If the Court of Appeal considered the Appeal, then Najib's High Court Acquittal could have been overturned, and the case send back to the High Court for Najib to enter his Defence.
YES, the Court of Appeal could have 'avoided mere technical non-compliance' in the interest of justice, and just allowed the prosecution time to file the Petition of Appeal, and then the Appeal could have properly dealt with on the merits. I believe that some Judges would do so, but some other judges choose to use 'technicalities or procedural non-compliance to' to not hear the Appeal on the merits. In my practice, I have encountered both types - I hope that all Judges will in the interest of justice not allow technicalities prevent them from hearing cases on the merits.
Hence, this current Court of Appeal panel(Judge Datuk Hadhariah Syed Ismail together with Datuk Ahmad Zaidi Ibrahim and Datuk Azmi Ariffin) that evaded the appeal being heard on the merits and struck it off because of a failure to file the Petition of Appeal, and refusing the prosecution's request for more time MAY also be blamed for the denial of the rakyat's right to hear the outcome of the appeal on the merits. Now, we will not even know whether the High Court's decision to not call Najib and another to enter defence, and to acquit was RIGHT or WRONG - simply because the Court of Appeal did not hear the appeal on the merits. Would things have been different if the Court of Appeal panel was different?
If the Prosecution, after filing the appeal, wanted to withdraw the appeal - they should have done it earlier, and the reasons. Why did the wait until the Court of Appeal sat to hear the appeal. [Why was the appeal hearing date of the Court of Appeal even set, when obviously the papers were still not in order???]
Was there government interference in this prosecution failure? Rightly, the government must never interfere. Either way, the Prosecution must explain...
Coming so soon after, prosecution's decision to discontinue the proceedings in Zahid Hamidi's case that led to a DNAA, the Malaysian people are outraged..
After the PH-PKR Home Minister gave UMNO an exemption of full compliance with the Societies Act, with, amongst others, the validity of the UMNO resolution disallowing contest for the top 2 position in UMNO, which allowed Zahid Hamidi to remain President of UMNO, we have been concerned to what lengths Prime Minister Anwar Ibrahim and Pakatan Harapan will go to allow Anwar to remain PM, and PH to be in government?
But, in the Zahid Hamidi's case - the Public Prosecutor is expected to act INDEPENDENTLY - hence Anwar or government cannot influence the Public Prosecutor's decision.
Likewise, in this failure to file the Petition of Appeal - blame lies on the prosecution on the face of it.
Can the Prime Minister or the government influence the Public Prosecutor or prosecution - this is the question. Do we need more laws to ensure the independence of the Public Prosecutor and prosecution.
NOW, will the Prosecutor APPEAL to the Federal Court - that is the question. The Federal Court on appeal can decide the Court of Appeal erred in its decision when it did not allow prosecution time to file the Petition(note Prosecution did apply). It could determine whether courts should emphasize JUSTICE - so that appeals can be heard on the merit, rather than striking out an appeal on a technicality - a failure to file a petition on time?
Will Prosecution Appeal to the Federal Court?
Acquittal stands, Court of Appeal strikes out appeal against Najib
KUALA LUMPUR : The Court of Appeal has struck out an appeal by the Attorney-General's Chambers over Datuk Seri Najib Razak's acquittal in the 1Malaysia Development Bhd (1MDB) audit report tampering case.
The Court of Appeal today said the decision to strike out the appeal was made due to the prosecution's failure to meet the deadline to submit a petition of appeal.
The three-judge panel of the Court of Appeal chaired by Judge Datuk Hadhariah Syed Ismail together with Datuk Ahmad Zaidi Ibrahim and Datuk Azmi Ariffin unanimously rejected the prosecution's request to file the appeal petition outside the time limit.
The deadline for the prosecution to file the appeal petition is on July 6, which is within 14 days after the appeal record is obtained, which is on June 26.
Deputy public prosecutor Datuk Yusaini Amer Abdul Karim, when arguing his case, said the delay in filing the case was because they needed more time to study the case, adding that the decision to file for the petition came from the new Attorney-General, Datuk Ahmad Terrirudin Salleh.
Najib's legal representation in a statement said no "petition of appeal" was made by the prosecution team who found no grounds to it.
"In alignment with Section 53 of the Courts of Judicature Act 1964 and Rule 65 of the Rules of the Court of Appeal 1994, if there's a valid ground for appeal, the appellant has 10 days from when the Records of Appeal become available to file a "petition of appeal."
"Absence of such a petition renders the appeal void and prone to dismissal.
"In this case, the prosecution evidently found no grounds for appeal, resulting in no petition being filed.
"This led to the Court of Appeal's decisive action to strike off the prosecution's appeal against Najib and Arul," the statement said.
The prosecution's decision to abstain from pursuing the appeal, they added, underscores the robustness and unimpeachable nature of the High Court's ruling.
It also reinforces that Najib and Arul are innocent.
"Given the overwhelming evidence presented in court, charges should never have been filed against our client in the first place.
"This decision alone has caused additional hardship to our client over the past five years - let alone if the appeal against the acquittal of the High Court decision had continued.
"We extend our gratitude to everyone who strived for the truth and the upholding of justice.
"We ardently hope that this definitive outcome allows both Najib and Arul to proceed with their lives, liberated from these baseless allegations," the statement said.
The High Court on March 3 had acquitted the former prime minister from his trial over the removal of key information from the auditor-general's 2016 report on 1MDB.
Najib along with former 1MDB CEO Arul Kanda Kandasamy were
charged under Section 23(1) and 24 (1) of the Malaysian Anti-Corruption
Commission Act 2009 (MACC Act 2009).- NST, 12/9/2023
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