It is understood that the prosecution was supposed to submit the petition in the first week of July, but it has yet to do so.
PUTRAJAYA (Aug 28): There are questions over whether the prosecution intends to proceed with its appeal against the acquittal of ex-prime minister Datuk Seri Najib Razak and former 1Malaysia Development Bhd (1MDB) president and chief executive officer Arul Kanda Kandasamy over charges in relation to the now-defunct fund's audit report.
It is understood that the prosecution was supposed to submit the petition in the first week of July, but it has yet to do so.
Case management of the matter was called in the Court of Appeal on Monday (Aug 28) before senior assistant registrar Nurul Azrina Mohamed Yusof, who decided to hold another case management on Wednesday.
The case management on Wednesday is for the court to decide if the next session should be held before the appellate court's deputy registrar, or whether it should be mentioned before the Court of Appeal's bench.
This comes as no petition of appeal was filed by the prosecution despite the fact that the time of filing has elapsed. The prosecution filed their notice of appeal earlier on March 9.
Najib was represented by lead defence counsel Tan Sri Muhammad Shafee Abdullah, Muhammad Farhan Shafee and Alaistair Brandah Norman, while Datuk N Sivananthan and Jasmine Cheong appeared for Arul Kanda.
Deputy public prosecutor Mohd Fuad Abdul Aziz appeared for the prosecution.
Sivananthan confirmed the outcome when contacted by The Edge.
Normally, the petition of appeal would contain the grounds for why the losing party is appealing against the decision.
When asked whether this is a possible sign that the prosecution is not appealing against the decision, Sivananthan answered in the affirmative.
Alaistair confirmed the outcome of the case management on Monday with The Edge when contacted, adding that the defence had taken the position that the appeal is defective.
"This matter has now been fixed for another case management on Aug 30, either before the deputy registrar or the panel of the Court of Appeal, as we have taken the position that the appeal is defective," he said.
Under Section 53(1) of the Courts of Judicature Act, the appealing party has to file the petition of appeal within 10 days upon the completion of the record of appeal.
Section 53(3) of the Act stipulates that if a petition is not filed within the time prescribed by this Section, the appeal shall be deemed to have been withdrawn, but nothing in this subsection shall be deemed to limit or restrict the powers of extending time conferred upon the Court of Appeal by Section 56.
This means the Court of Appeal may decide to extend the period of the filing of the petition of appeal, which may explain the date fixed on Wednesday.
The Edge is trying to reach the Attorney General's Chambers' Appellate and Trial Division for confirmation.
It was previously reported on July 21 that Arul Kanda had also sent a letter of representation for the prosecution to drop its appeal against him.
Najib and Arul Kanda acquitted in March
On March 3, the former prime minister was acquitted of abuse of power with regard to the audit report, while Arul Kanda was also acquitted of abetting Najib, without their defence being called.
Court of Appeal judge Mohamed Zaini Mazlan, who was presiding over the trial in the High Court, ruled that there was no prima facie case against the duo.
The judge agreed with Najib’s defence team that the prosecution had failed to prove a causal link between the amendments made in the audit report to the first audit report and the purported alleged gratification.
“There is no evidence to explicitly prove that the second accused (Najib) had directed the amendments made to exonerate him from civil and criminal liability. He was merely concerned that the report would be spun politically.
“The prosecution has failed to prove how the items removed or amended could give rise to civil or criminal liability to Najib. In my opinion, the items taken out or amended from the earlier audit report would not give rise to criminal or civil liability to the accused. The amendments as stated by the auditor general are justified.”
Zaini also observed that the items amended or taken out were known to the Public Accounts Committee and openly discussed.
“Therefore, I find the presumption under Section 23 (2) of the Malaysian Anti-Corruption Commission (MACC) Act 2009 could not apply, as the prosecution had failed to prove gratification,” the judge said in his verdict.
Zaini, in granting a discharge, acquittal and a certificate of indemnity under Section 63(3) of the MACC Act to Arul Kanda, said he was satisfied that the former 1MDB president had made a "true and full discovery" of all things for which he was examined.
This is the first case in which a co-accused was offered a certificate of indemnity under this Section of the Act.