A DNAA Is Not An Acquittal. It Means The Charge Can Come Back.

In May 2020, the prosecution asked the High Court for a discharge not amounting to an acquittal for Riza Aziz on five money laundering charges involving 1MDB funds. The court granted it. The Malaysian Bar issued a press release on the legal issues; the Attorney-General's Chambers issued its own media release three days later.

The public reaction was that he had been let off. Legally, that is not what happened.

A DNAA leaves the charge alive. The accused walks out of court, but the prosecution retains the right to bring the same charge again. A discharge amounting to an acquittal (DAA) does the opposite — it bars further prosecution for that offence.

And this is not a footnote in Malaysian public life. It is now the subject of a constitutional case: on 7 May 2026, the Court of Appeal unanimously allowed the Malaysian Bar's appeal and granted leave to judicially review the Attorney General's 2023 decision to seek a DNAA on 47 charges against the Deputy Prime Minister. The AG applied to the Federal Court on 5 June 2026 for leave to appeal that ruling.

1. The two provisions doing the work

Article 145(3), Federal Constitution: > The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.

Section 254(1), CPC: > At any stage of any trial, before the delivery of judgment, the Public Prosecutor may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the charge and thereupon all proceedings on the charge against the accused shall be stayed and the accused shall be discharged of and from the same.

s.254(2) gives an equivalent power to the officer conducting the prosecution in the Sessions and Magistrates' Courts.

s.254(3) is where the DAA/DNAA question lives: a discharge under the section "shall not amount to an acquittal unless the Court so directs".

Two discretions, two decision-makers — and this distinction is the one people conflate. The Public Prosecutor decides whether to withdraw. The court decides whether the resulting discharge is a DAA or a DNAA. Commentary is explicit that the act of withdrawing charges does not automatically mean an acquittal should follow, and that the two discretions should not be run together.

2. DNAA vs DAA vs acquittal after trial

Note the middle column carefully. A DAA is not a finding of innocence either — it is a discharge that operates as a bar. Neither a DNAA nor a DAA involves the court deciding whether the accused did it.

3. The Federal Court split on s.254(3)

This is a genuine unresolved point and worth knowing, because it shapes which outcome is the default.

In Vigny Alfred Raj a/l Vicetor Amratha Raja v Public Prosecutor [2022] 5 MLJ 639, a three-member Federal Court panel reached the same result but differed on the interpretation of s.254(3):

• Federal Court judge Lim took the view that the court must specifically direct that the discharge does not amount to an acquittal, and that otherwise the default position is that the discharge amounts to an acquittal.
• Federal Court judge Zabariah Yusof disagreed, holding that a plain and literal reading means any discharge granted under the section is a DNAA, and that a DAA must be specifically directed by the court. Mohd Zawawi Salleh agreed with Zabariah.

So on the Federal Court's own reading, the default runs in opposite directions depending on which judgment you follow. Practitioner commentary has noted the difficulty this creates. Do not let anyone tell you the position is simple.

4. Section 254A — what happens if you are recharged

s.254A provides that where an accused has been discharged and is recharged for the same offence, the trial "shall be reinstated and be continued as if there had been" no discharge order.

The important qualification is s.254A(2): it applies only where witnesses have already been called to give evidence before the discharge.

What this means practically:

• The court does not re-hear witnesses who already testified. It picks up at the next witness on the list.
• A witness who had not finished testifying when the DNAA was granted would be asked to continue.
• Practitioners noted this being used during the Covid-19 pandemic where a trial had started but a witness was overseas and unable to enter Malaysia, so a DNAA was granted and the trial later reinstated.

If no witnesses had been called, s.254A does not apply and a fresh prosecution starts from the beginning.

5. When courts grant a DNAA — the reasons that actually appear

Reported grounds cluster around a few themes:

Incomplete investigation or missing evidence. DNAA is often invoked when investigations are incomplete. A pointed criticism follows: if investigations are still ongoing, the charges arguably should not have been filed in the first place.

Documents unavailable. In the IPIC case, official documents had not been declassified under the Official Secrets Act even though the trial had dragged on for years. In another, the AGC applied seven years after charging on the basis that material documents were being used as evidence in a parallel trial.

Inordinate delay and prosecution non-compliance. In November 2024, the High Court granted a DNAA to former prime minister Najib Razak and former Treasury secretary-general Mohd Irwan Serigar on all six charges in the RM6.6 billion IPIC matter. Justice Muhammad Jamil Hussin gave brief grounds: the prosecution failed to abide by s.51A CPC; the DNAA did not prejudice the prosecution as they could recharge; and the case had been registered in 2018 but could not proceed despite trial dates being set many times — an inordinate delay.

The balancing exercise the court is meant to perform: courts have said they must strike a balance between the public interest and the rights of the accused, who should not be left with a charge hanging over them indefinitely, and should not accept a situation where the prosecution suspends a charge intending to possibly review and recharge later without a clear indication of whether prosecution will resume in the near future.

6. What a DNAA means for the person practically

This is the section most coverage leaves out.

You are free. You are released from custody, bail conditions attached to that charge fall away, and you are not serving any sentence.

But the matter is not closed. You can be recharged for the same offence. There is no statutory time limit on that in most cases, which is precisely the concern courts have expressed about charges hanging over people indefinitely.

Travel. Bail conditions such as passport surrender relate to the proceedings; when proceedings are discharged, the basis for those conditions generally falls away. But if you are recharged, fresh conditions can be imposed. If your passport was impounded, you will need to apply for its return through the court that ordered it — it is not automatic.

Employment and background checks. A DNAA is not a conviction, and Malaysia's certificate of good conduct system records convictions rather than discharges. But the charge and the DNAA are matters of public record, especially in reported cases, and employers, regulators and licensing bodies conduct their own checks. Professional bodies with fit-and-proper requirements may take their own view of an outstanding matter.

Reputationally, a DNAA is the worst of both worlds for the accused — no vindication, no finality, and a public record that the prosecution reserved the right to come back.

If you have been given a DNAA and want finality, take advice on whether to apply for the discharge to be converted to a DAA, or to make representations to the AGC seeking a decision of no further action.

7. The current controversy — and what it might change

The judicial review case. On 7 May 2026, in Bar Malaysia v Peguam Negara Malaysia & Ahmad Zahid Bin Hamidi (W-01(IM)-488-07/2024), the Court of Appeal unanimously allowed the Malaysian Bar's appeal and granted leave to commence judicial review of the AG's decision of 4 September 2023 seeking a DNAA on all 47 charges.

The Court of Appeal held that the "two-step threshold" from Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri [2021] 5 MLJ 209 was obiter and not binding on the leave question, reaffirming a single leave threshold under Order 53 of the Rules of Court 2012 — whether the application is arguable and not frivolous — while stressing that where the review concerns prosecutorial discretion under Article 145(3), that test must be applied "with particular discipline, caution, and restraint".

On 5 June 2026, Attorney General Tan Sri Mohd Dusuki Mokhtar filed a notice of motion seeking leave to appeal to the Federal Court, raising whether the AG's Article 145(3) discretion may be subjected to judicial review at all, and arguing that the Court of Appeal's decision created uncertainty about the Sundra Rajoo two-stage test. The outcome is expected to have implications well beyond that case, potentially shaping the relationship between prosecutorial independence and judicial oversight.

Separately, on 8 January 2026, the AGC announced that the 47 Yayasan Akalbudi charges — which had been the subject of the DNAA — were classified NFA (no further action), citing insufficient evidence.

Presenting both sides fairly, because this is contested political and legal territory:

The case for the current position: prosecutorial discretion under Article 145(3) is a constitutional power vested in the AG. Prosecutors face genuine evidential problems — witnesses unavailable, documents classified, parallel trials — and a DNAA is the mechanism that lets a case be paused rather than lost. Courts do refuse DNAAs and grant DAAs where delay is inordinate.

The case for reform: critics argue the discretion becomes problematic when decisions appear to shield the powerful, and that public frustration is amplified when ordinary citizens face the full weight of the law while high-profile accused leave court without a verdict either way. Tracking projects have noted that most DAAs and DNAAs in high-profile cases resulted not from judicial determination on the merits but from prosecution conduct — withdrawal, delay, postponement, abandoned appeals or non-compliance with court rules. There is a broader institutional reform in motion to separate the roles of Attorney General and Public Prosecutor.

This article does not take a position on that debate. It is a live constitutional question before the courts and a contested political one.

What to actually do

If you have received a DNAA:

• Understand you can be recharged. Do not treat it as a conclusion.
• Ask your lawyer whether an application to convert the discharge to a DAA is realistic on your facts.
• Deal with practical loose ends: impounded passport, bail money, any conditions. These do not resolve themselves.
• Keep the court documents. You may need to evidence the outcome to employers or regulators.
• Consider whether representations to the AGC seeking an NFA decision are appropriate.

If you are following a case in the news:

• "DNAA" is not "acquitted", and reporting that treats them as equivalent is wrong.
• Neither a DNAA nor a DAA is a finding of innocence — neither involves the court deciding guilt.
• Whether a DNAA was appropriate is a question about the exercise of a constitutional discretion, not about whether the person did it.

If you are researching this:

• The relevant provisions are Article 145(3) FC, ss.254, 254A CPC, and s.51A CPC on disclosure.
• The key authorities include Vigny Alfred Raj [2022] 5 MLJ 639 (FC), PP v Ambika a/p MA Shanmugam [2021] 2 MLJ 723 (COA), PP v Lee Chan Sang [1989] 1 MLJ 224 (SC), and the Court of Appeal's 2026 decision in Bar Malaysia v Peguam Negara Malaysia.
• Malaysiakini's Prosecutorial Accountability Watch tracks DNAA and related outcomes in high-profile cases.