― Fahri Azzat (Loyarburok.com)
The Malay Mail Online
July 14, 2013

JULY 14 ― You lost your case. The judge decided against you because he found the other side’s witnesses more credible compared to yours and so preferred their testimony to your witnesses’. You complain loudly to any who care to listen, ‘How the hell can the judge prefer their witnesses over mine?’ You angrily tell your lawyer to appeal.

But if your lawyer was honest with you, he will tell you not to bother. Don’t waste your time, money and effort, he should tell you. If you ask why, he will tell you that the appellate court almost always trusts the trial judge’s assessment of a witness’ credibility. They will only depart from it in exceptional cases when the trial judge got it so perversely wrong.

The reason for this was alluded to in the recent Federal Court decision of Isidro Leonardo Quito Cruz v PP [2013] 2 CLJ 1025. It arose when Abdull Hamid Embong FCJ explained why appellate courts did not make finding of facts. He referred to the Privy Council decision of Antonio Dias Caldeira v Frederick Augustus Gray [1936] MLJ 137 (decided on 14 February 1934) which held as follows:

“Now, it settled law that it is no part of the function of an appellate court in a criminal case or indeed any case to make its own findings of fact. That is a function exclusively reserved by the law to the trial court. The reason is obvious. An appellate court is necessarily fettered because it lacks the audio-visual advantage enjoyed by the trial court.” So the appellate court’s reason for not reviewing the credibility of the witnesses during the trial and accepting the trial judge’s opinion on them is because it lacks the audio-visual advantage of the trial court.

Although that may be an acceptable reason in 1936, it is seems incongruous, if not perverse in 2013. After all, audio-visual equipment is now cheap, mobile and ubiquitous. And to lay on the irony, trials in Malaysia now use the Court Recording and Transcription (CRT) service, which I leave to the former Chief Justice Tun Zaki bin Azmi to extol its benefits (see his speech ‘Using Technology to Improve Court Performance: Malaysia’s Experience’ delivered at the Asia Pacific Judicial Reform Forum 2010, Beijing):

“The CRT system records not only the voice but also visually the proceedings in courts. It keeps track of the date and time and enables the judge to record what he wants without the other parties in the proceedings knowing them. The system allows the appellate court or anybody else viewing the recording to even see the demeanour of the witnesses as well as the conduct of the lawyers in the proceedings, not forgetting the judge himself. A true and detailed record of what were said could be reviewed at any time. Because the audio-visual system can be connected to the internet, I as the CJ, can peek into any court using the computer in my chambers. “For civil cases the recording is burned on a CD-ROM and supplied to the parties to transcribe the notes but in criminal cases, most of which are conducted in Malay, are transcribed by the Department’s typists. Because the typists are able to identify the speaker, this avoids the mistakes of the identity of the speaker.”

So there you have it. A former Chief Justice explains that since 2010 the appellate courts have had audio-visual records of the trial proceedings so accurate and complete that it allows them to appreciate the voice, visual and demeanour of a witness, which are all it needs to decide on the credibility of a witness for itself. They no longer have to rely on the trial judge’s assessment of a witness’ credibility.

Now that we know this, it begs these questions:

Why didn’t the former Chief Justice change the law on this issue when he was implementing the CRT service? And even if his Lordship forgot about it, why don’t our appellate courts now review the trial judge’s decision on a witness’ credibility since they have full access to audio-visual recording of the trial? ― www.loyarburok.com