21st Century Courts, 20th Century Mindset

― 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

  1. #1 by omeqiu on Sunday, 14 July 2013 - 5:43 pm

    Do all Justices need in-service courses in operating DVD players?

  2. #2 by sheriff singh on Sunday, 14 July 2013 - 6:22 pm

    In this country, we are often stuck in time on many issues. In fact, many prefer to be so stuck.

    Another way to look at it, first class (?) infrastructure, 4th world mentality.

    Or, just plain lazy, no initiative. Why do they want to stick their necks out?

  3. #3 by sheriff singh on Sunday, 14 July 2013 - 6:25 pm

    Your comment is awaiting moderation.

    In this country, we are often stuck in time on many issues. In fact, many prefer to be so stuck.

    Another way to look at it, first cla$s (?) infrastructure, 4th world mentality.

    Or, just plain lazy, no initiative. Why do they want to stick their necks out?

  4. #4 by Jeffrey on Sunday, 14 July 2013 - 6:52 pm

    It is not as simple (21st century courts20th century mindset) as Loyarburuk puts it. His thinking is straightforward: we have appellate courts (by definition more experienced judges) – therefore if lower trial judge (not so experienced) is wrong why defer to his conclusive determination of facts like witness credibility when appeal judges can with audio-visual aid available make judgment themselves and substitute their more experienced judgment for the trial judge’s less experienced or wrong one instead? Aren’t the ends of truth and justice served better? Things just don’t work this way. It is not just Malaysian courts –its any court elsewhere as well as the rationale lies in the legal/court system itself and its institutional norms.

  5. #5 by Jeffrey on Sunday, 14 July 2013 - 8:19 pm

    • If appellate court uses audio-visual means to review witnesses demeanor at lower level of trial it means that the way is open for them to substitute trial judge assessment of witness credibility and there may well be many reversal of judgments based on what the appellate judge’s subjective judgment overriding the trial judge’s one They don’t want to do this : trial judge has the role & should be accorded the respect to determine the facts. That’s why the appellate court adopts a “deferential standard of review “ deferring to the lower courts judgment in assessment of facts and reversing only those obvious legal errors based on law and what’s on record.

  6. #6 by Jeffrey on Sunday, 14 July 2013 - 8:30 pm

    So this whole idea of not substituting judgment of trial level on facts findings – ie adopting a “deferential standard of review “ of not simply reversing the lower level’s decision except only in obvious and clear case of error of law- is part of the norms thought useful to maintain integrity & predictability of the institution and its processes. It’s the same the Court defers to a Jury on finding of facts; they defer to Parliament in making laws (just or unjust) and confine themselves to interpreting only the law; once upon a time Privy Council in England adopting “deferential standard of review” as regards judgments submitted for review from Malaysian courts on findings of what is local usages and customs as does the European court of Justice In supra national organisation like the EU the European Court of justice will defer to national courts (from EU countries) on these areas. Audio/visual means is not resorted to because the idea of substituting one tier’s judgment of another is viewed encroachment of another level’s function. The issue is tied to tradition and norms of division of labour, respect of one level for another, order etc necessary to maintain the institution.

  7. #7 by sheriff singh on Sunday, 14 July 2013 - 11:58 pm

    I think the writer is looking at the larger picture that has caused him concern and to lament – our Judiciary has become so unpredictable, unreliable and meek.

    No point talking about local customs and usage as these has over the recent past decades been turned around that we do not know what the Judiciary’s traditions and practices are. Many cases have been ‘funnily’ decided that cause even the common man to be puzzled, amazed and frustrated and the Judiciary is seen to be upside down, where certainty and common sense is long gone.

    People now has to look higher up, to the Appeal and the Federal Courts for some order and justice, but alas, the situation there is also in disarray.

    Senior judges there can be sympathetic to a convicted person because this young person has ‘a bright future’ and should be excused but let a young rape victim suffer. When the senior level judges look for excuses not to hear and decide on cases brought to them for decisions or dismisses these cases because they do not want to interfere with lower levels, we know then our Justice system is in some kind of trouble. Once before our Judiciary was respected, but now we are Zimbabwe. Sorry, Zimbabwe, no offense, just an expression. Justice has, in many, many occasions, not been dispensed. No wonder our friend is very worried.

  8. #8 by tak tahan on Monday, 15 July 2013 - 12:43 am

    Tell our friend no need appellate court,just follow those ‘kampong jantan’ words.Then we’ll be just fine and life goes on as usual.konchikusyou no ojiitarian

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