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A day of judicial discretions exercised judiciously — Hafiz Hassan

Publish date: Wed, 17 Aug 2022, 09:26 AM

AUG 16 —The Federal Court has unanimously dismissed Datuk Seri Najib Razak’s application by way of a motion to adduce additional evidence in his final appeal against his conviction of misappropriating funds from SRC International Sdn Bhd.

The five-judge panel led by Chief Justice Tun Tengku Maimun Tuan Mat ruled that Najib’s application lacked merit as the evidence his defence team claimed to be fresh has no relevance to the former prime minister’s knowledge of the RM42 million, which is the main issue in the SRC International case.

In all honesty, the decision is not unexpected. The law on the matter is settled. It is entirely the discretion of the appellate court.

A judicial discretion must be exercised judiciously. This simply means that the discretion must be exercised based on established legal principles.

The principles have been summarised in the judgement of Lord Parker CJ in the English case of R v Parks [1961]:

(i) the evidence sought to be called must be evidence which was not available at the trial;

(ii) the evidence must be relevant to the issues;

(iii) it must be credible evidence in the sense of being well capable of belief; and

(iv) the Court will, after considering the evidence, go on to consider whether there might have been reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial. The four conditions or requirements above are cumulative. Based on the Federal Court ruling as reported, Najib has failed the relevancy requirement.

The Federal Court has duly exercised its discretion judiciously.

The Federal Court has also unanimously dismissed the request by Najib’s legal team to postpone the hearing of his appeal before the Court. Now, it is also settled law that it is in the absolute discretion of the court to decide whether to allow or not an application for the postponement or adjournment of a case which has been set down for hearing.

In the exercise of a discretion to refuse or grant an adjournment, the court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties.

It has long been recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. Adjournments delay final adjudication of cases. Costs are incurred. Delay and costs are undesirable, and delays have deleterious effects. As the Chief Justice puts it succinctly, justice delayed in the SRC International case is also justice denied to other accused persons.

It has been a day of judicial discretions exercised judiciously.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.

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