KUALA LUMPUR (Nov 27): The High Court has granted former prime minister Datuk Seri Najib Razak and former Treasury secretary general Tan Sri Mohd Irwan Serigar Abdullah a discharge not amounting to an acquittal (DNAA) in their criminal trial regarding International Petroleum Investment Co (IPIC).

High Court judge Datuk Muhammad Jamil Hussin on Wednesday discharged the two of all six charges. Both men, however, can be recharged in the future.

Muhammad Jamil said that there was an extreme delay in the case, due to the prosecution's failure to provide the defence with crucial documents, even when the two men were charged in 2018.

"After listening to submissions from all parties, based on the facts and circumstances of this case, I use the inherent power to grant a discharge not amounting to acquittal (DNAA) to both on all six charges.

"These are my brief grounds. First, the prosecution did not adhere to Section 51A of the Criminal Procedure Code (CPC).

"Second, the DNAA does not prejudice the prosecution, as they can recharge the accused.

"Third, this case was registered in 2018, but the trial cannot proceed even when trial dates have been set many times. This is an inordinate delay," he ruled.

The judge allowed the defence's application seeking the DNAA for their clients.

Section 51A of the CPC requires the prosecution to provide the accused with certain documents before the commencement of a trial.

The two men are charged with six counts of criminal breach of trust of over RM6.6 billion of government funds meant for development projects, but the funds were misappropriated and diverted to IPIC in order to repay 1Malaysia Development Bhd (1MDB) debt.

However, it has to be noted that both men do not walk scot-free, as the DNAA simply means that Najib and Irwan can be charged again on similar grounds at a later date.

Meanwhile, Bernama quoted Irwan as saying he was grateful that after six years and two months, the case against him was finally over.

"Alhamdulillah, the court made the right decision. I am confident there will be no case against me, because everything was done according to government procedures. Hopefully, I will be able to go perform umrah after this," Irwan reportedly told the media following the decision.

The entire debate on DNAA came about after prolonged delays in the trial, due to the prosecution's delay in handing over hundreds of documents to the defence to mount its case against the charges.  

This has aggravated the defence, which had made an application for a DNAA twice previously.

Najib and Irwan were charged in 2018, but the trial has yet to begin, six years on. This year alone, proceedings have been postponed three times since June, to provide time for the prosecution to get the documents in order, some of which are classified.

The defence has argued that the documents, which include memos from the Finance Ministry to the Minister of Finance Inc (MOF Inc), Cabinet meeting memos, and letters and emails, are crucial in mounting a successful defence.

The defence claims that 156 documents mentioned in statements by witnesses were not handed over and an additional 59 documents Irwan mentioned in his statement to the Malaysian Anti-Corruption Commission were not handed over, despite numerous requests.

Deputy public prosecutor (DPP) Muhammad Saifuddin Hashim Musaimi during Monday's proceedings informed the court that there were about 40 documents which have yet to be declassified and that the prosecution had no control over the declassification of documents under the Official Secrets Act.

On Wednesday, parties continued their submissions on whether the court could independently grant the order to the two men.  

Muhammad Jamil highlighted that there are three circumstances in law where a DNAA can be granted: when there is a summary trial, when the applicant is absent, and when the prosecution makes such an application.

None of these scenarios in accordance with the law applies in this case, as the prosecution had made it clear that it did not intend to initiate any such application.

Najib's counsel Tan Sri Muhammad Shafee Abdullah and Irwan's lawyer Datuk K Kumaraendran impressed upon the court that the prolonged delays were an abuse of court process. In such cases, the court has the inherent power to stop such behaviour.

Muhammad Saifuddin also did not disagree, saying that according to case law, the court does have some inherent powers.

He added that the prosecution had passed bundles of voluminous documents to the defence, so it was not as if no documents were passed to the defence.

The DPP also said that he would leave it to the court to decide on the matter.  

With Wednesday's decision, Najib has one court case left on his plate, for now. He still has to enter his defence in the 1MDB-Tanore trial, where he is accused of four abuse of power and 21 money-laundering charges. The trial is slated to resume on Dec 2.

Najib also has the RM27 million money-laundering trial involving SRC International Sdn Bhd which is set to start in April 2025. He faces three charges in that trial.

The 71-year-old also faces a bevy of civil cases related to SRC and 1MDB.

Irwan, 67, still has a pending civil case related to 1MDB.

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