Justice Jamil Hussin said he was using his inherent powers in allowing their DNAA application at the High Court here.
Najib and Irwan were charged in 2018 with six counts of misappropriating public funds intended for payment to IPIC, an Abu Dhabi-owned corporation.
They applied for a DNAA as the prosecution had yet to supply key documents to the defence.
Jamil today said the prosecution had not followed procedure in delivering the documents as required under Section 51A of the Criminal Procedure Code.
“They were charged in 2018 and the trial dates were fixed, but the documents were not delivered. This is an inordinate delay,” he said.
Jamil also said the DNAA would not prejudice the prosecution as Najib and Irwan could be charged again once the prosecution was ready for trial.
He then ordered the return of the bail money posted for Najib and Irwan.
The issue before Jamil was whether he could use his inherent powers to give the DNAA as the application was made by the defence, not the prosecution.
Under Section 254 of the Criminal Procedure Code, the prosecution can apply for a DNAA but the final decision rests with the court.
Najib and Irwan previously made two attempts at securing a DNAA, in March 2022 and July this year.
In July, Jamil ordered the prosecution to complete the document declassification process within three months.
On Monday, deputy public prosecutor Saifuddin Hashim Musaimi said the prosecution had yet to obtain declassified documents under the Official Secrets Act (OSA) from several ministries, but were ready to proceed with the trial.
The defence objected to this, citing Section 62 of the Malaysian Anti-Corruption Commission Act 2009 which states that accused persons must disclose their defence statements to the prosecution before the beginning of trial.
Today, Najib’s lawyer Shafee Abdullah submitted that his client would suffer a miscarriage of justice as the documents had not been served despite the charge hanging over his head for the past six years.
“They have yet to provide us with valid and vital documents to prepare our defence and face trial should the prosecution begin its case,” he added.
Shafee said a DNAA would be appropriate as the current state of affairs was an abuse of process and oppressive towards Najib.
Irwan’s lawyer, K Kumaraendran, said the prosecution had only handed over 21 documents while another 59 were still pending despite being crucial to his client’s defence.
He added that Irwan was seeking the DNAA on grounds that the prosecution had yet to serve on them the entire set of documents which they intended to use in the trial.
He said then trial judge Nazlan Ghazali had fixed trial dates in 2019 but the prosecution did not disclose that it was having difficulties securing the documents.
“Only in July this year did the prosecution make the disclosure. They can charge my client again only if they surrender all the documents to us,” he added.
Saifuddin conceded that Jamil could invoke his inherent powers to grant the DNAA application, and that it was up to the judge’s discretion.
“We have handed over some declassified documents but the others could not be given as they are governed by the OSA,” he said.