― 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. Continue reading “21st Century Courts, 20th Century Mindset”