KUALA LUMPUR (July 23): The defence in Datuk Seri Najib Razak's SRC International Sdn Bhd trial today won two rulings — the Malaysian Anti-Corruption Commission (MACC) cannot prohibit AmBank from handing documents in relation to the former premier's accounts to the account holder, and the defence is allowed to refer to prosecution witness Joanna Yu Ging Ping's draft witness statement to compare with the one tendered and signed by her yesterday.
The ruling was made by Justice Mohd Nazlan Mohd Ghazali at the resumption of this afternoon's proceedings.
On the first matter, Justice Nazlan ruled that the MACC's action of prohibiting Najib from accessing his bank account documents is not governed by any statute, including the MACC Act 2009 and the Islamic Financial Services Act 2013.
"I note that the prosecution had not shown any statutory provisions and no such provision exists in the two laws above. The MACC is not prevented from conducting its investigations [while the trial is going on].
"In view of the above and ensuring the right to a fair trial to the accused, the court would not intervene should the bank agree to grant the documents [to Najib]," he said.
The ruling on this issue will have severe repercussions on the prosecution of this and other cases as now, the authorities, namely the police or the MACC, cannot issue directives to the banks preventing the release of such information in criminal cases to the account holder.
When the issue was brought up by lead counsel Tan Sri Muhammad Shafee Abdullah, the senior lawyer highlighted that the MACC was acting beyond its powers without citing any provisions to prevent the account holder (namely Najib) from obtaining details about his accounts from AmBank to prepare his defence.
The former premier had five accounts with AmBank — one savings and four current accounts — and some of them have been closed.
The lawyer showed the letter from the MACC to AmBank instructing the financial institution not to provide documents to the accused without getting approval from the authorities.
Earlier today in the defence's submissions, Shafee told the court that the MACC should not be allowed to take away Najib's rights to gain access to documents related to his accounts.
"We [the defence] are not saying the MACC should not investigate but do not [take away] our right to get the documents.
"This is a clear abuse by MACC. This is a total abuse of power as they did not cite which provision [of the law] they acted upon [to bar access to documents requested by Najib]," he added.
It was earlier reported that the defence had complained that their client was prohibited from getting the documents in relation to his accounts, as MACC investigating officer had issued a directive that such applications must go through the commission first.
Court overruling prosecution's objection
On the second matter, Justice Nazlan overruled an objection made by the prosecution, for the defence to use Yu's draft witness statement in cross-examining the witness.
"Since the defence is not relying on the unsigned version as evidence but to use the unsigned version in comparison to the signed version. The court is allowing this matter to show the differences to Yu," the judge said.
While the appointed prosecutor Datuk V Sithambaram said the defence cannot use documents which are not used by the prosecution, Najib's counsel Harvinderjit Singh said the defence's intention was not to impeach the witness but to look at the inconsistency in the draft statement and her testimony tendered in court.
"There are some material differences between the draft witness statement and the one tendered by the prosecution," the defence co-counsel Harvinderjit said, adding that the defence should be allowed to raise the issues.
An impeachment proceeding is where a trial within trial may be held on a witness for the court to determine the consistency or inconsistency of a witness testimony while testifying under oath, as such differences or disparity may undermine the credibility of the witness.
This is especially when lying under oath in court is considered a criminal offence and may lead to jail.
Yu's contentious draft witness statement was dated January this year, and a copy of it was handed to the defence by the prosecution.
It is understood that one of the discrepancies that the defence wanted to show is that Yu had known fugitive businessman Low Taek Jho, also known as Jho Low, earlier.
In the signed witness statement, Yu said she only knew the businessman in 2009, when the Terengganu Investment Authority (TIA), which was the precursor to 1Malaysia Development Bhd, was formed.
But in the draft version, she said she knew him since 2008.
Yu's testimony is seen as very critical to the trial because she was a relationship liaison manager of AmBank who oversaw the former premier's AmBank account.
She has denied accusations by the defence that she was a "rogue banker".
The witness — the 54th called by the prosecution — had said she only acted on instructions of former SRC managing director and chief executive officer Nik Faisal Ariff Kamil.
If he was not available, she would contact Low to get in touch with him.
Nik Faisal received the mandate from Najib to manage three of the five accounts namely the account with the final three numbers 880, 898 and 906.
Yu had also testified that Najib's accounts were frequently overdrawn, and she had to alert Nik Faisal or Low to ensure funds were transferred from Najib's other accounts or deposited into these accounts to ensure that the cheques issued by the former premier would not bounce.