In trial, assessing a witness’s credibility is a thankless task, thrust upon Judges.
How then, do they do it?
Case analysis
In RDS v The Queen [1997] 3 SCR 484, a 9-member bench of the Supreme Court of Canada provided a general framework:
[94]… Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.
128 It is, of course, true that the assessment of the credibility of a witness is more of an "art than a science". The task of assessing credibility can be particularly daunting where a judge must assess the credibility of two witnesses whose testimony is diametrically opposed. It has been held that "[t]he issue of credibility is one of fact and cannot be determined by following a set of rules . . .": White v. The King, [1947] S.C.R. 268, at p. 272. It is the highly individualistic nature of a determination of credibility, and its dependence on intangibles such as demeanour and the manner of testifying, that leads to the well-established principle that appellate courts will generally defer to the trial judge's factual findings, particularly those pertaining to credibility. See, for example, W. (R.), supra.
129 However, it is also the individualistic nature of a determination of credibility that requires the judge, as trier of fact, to be particularly careful to be and to appear to be neutral. This obligation requires the judge to walk a delicate line. On one hand, the judge is obviously permitted to use common sense and wisdom gained from personal experience in observing and judging the trustworthiness of a particular witness on the basis of factors such as testimony and demeanour. On the other hand, the judge must avoid judging the credibility of the witness on the basis of generalizations or upon matters that were not in evidence.
From the above, it may be discerned that an assessment of a witness’s credibility is a heady mix of both an objective and subjective appreciation of the evidence.
Notwithstanding this, a Judge must remain steadfastly neutral and assess only evidence that is before him. RDS was considered and applied by our Federal Court in Metramac Corp v Fawziah Holdings [2007] 5 MLJ 501.
A 21st-century approach
Closer to contemporaneous times, HHJ Simon Brown QC in Mainline Digital v Deepak Chaddah [2015] EWHC 1580 (QB) considered the cases of Onassis v Vergottis [1968] 2 Lloyds Rep 403 and Wetton (as Liquidator of Mumtaz Properties) v. Ahmed and others [2011] EWCA Civ 61. His Lordship then concluded as follows:
There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge and he or she has to decide whose evidence, and how much evidence, to accept. This task is not to be carried out merely by reference to the impression that a witness made giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the 'demeanour' of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant seeks or is given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.
In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence'.
This is almost identical to the manner in which Malaysian Judges deal with such a situation. In Hong Chee Meng v Fang Chee Peng [2021] MLJU 405, Anand Ponnudurai JC stated as follows:
f)Looking at the pertinent part of the transcription above from the cross-examination of PW4 and to the overall evidence of PW4, there were certainly several times when PW4 claimed that he could not remember incidents. It is indeed quite surprising how he consistently replied "I cannot remember "to many questions, yet could "remember" matters from 2014 despite there being no contemporaneous documents on the same. There is clearly merit in the defendant's submission that PW4 is guilty of having selective memory and should be regarded as not credible. In my considered view, he is not a reliable witness for the observations made earlier;
g)In this regard, the Court in assessing the credibility of a witness, is entitled to observe the demeanour to conclude whether a witness had told the truth. In Bulau Bekenu Plantation Sdn Bhd & Anor v Amin bin Antin & Ors [2017] MLJU 140 at page 20, the court held that:
"From the demeanour and manner of the witnesses for the Defendants whilst testifying in court, this Court finds that they are not credible witnesses and that they have selective memories and make up answers while being cross examined and caught in a difficult situation"
Refer also:
Bulau Bekenu v Amin [2017] MLJU 140
Bank Pertanian v Nora’rifah Darus [2014] MLJU 490 (COA)
Chiu Wai Ling v Chan Yau Chi [2002] 2 HKC 154 (HK)
Chandra Segar v Ape Electrical [2019] MLJU 216
Key takeaways
From an assessment of the above, it is clear that assessing the credibility of a witness is no easy task. It is undoubted that Judges, being humans and not automatons (contrary to popular belief), will be subject to the usual biases and discriminatory thought. To err is human.
Notwithstanding this, a Judge would be obligated to set-aside preconceived notions. He must determine a case rationally and assess a witness’s credibility impartially. A Judge must utilise an evidence-based approach and make his determinations objectively and fairly, a large part of which is contributed-to by contemporaneous documents.
Truly an art, more than a science.
GAVIN JAYAPAL
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