Examining the motives of a witness in giving evidence

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Examining a witness’s motives in giving evidence is a crucial tool in a litigator’s toolkit.

Black’s Law Dictionary defines motive as “Cause or reason that moves the will and induces action.”

The statutory basis

One commonly knows and understands motive in the context of criminal law. However, the Evidence Act 1950 also provides for instances and examples as to when motive will be relevant in the context of civil law.

Section 8 of the Evidence Act 1950 provides as follows (NB: Only those explanations that are relevant to the context of civil law have been reproduced):

Motive, preparation and previous or subsequent conduct

8. (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. 

Explanation 1—The word “conduct” in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2—When the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant.

ILLUSTRATIONS

(b) A sues B upon a bond for the payment of money. B denies the making of the bond. The fact that at the time when the bond was alleged to be made B required money for a particular purpose is relevant.

(d) The question is whether a certain document is the will of A. The facts that not long before the date of the alleged will A made inquiry into matters to which the provisions of the alleged will relate, that he consulted lawyers in reference to making the will, and that he caused drafts of other wills to be prepared of which he did not approve are relevant.

The common law position

The starting point for this discussion would be the CA decision of Mackt Logistics v Malaysian Airlines Berhad [2014] 2 MLJ 518. In allowing an appeal, the CA (speaking through Abdul Malik Ishak JCA) observed:

[76]  Appellate intervention is exercised in cases where there has been zero or insufficient judicial appreciation of the evidence adduced by the witnesses. The trial judge as the trier of fact must assess, weigh and set out the reasons for accepting or rejecting the whole or any part of the evidence led by the parties. In deciding to accept or to reject the evidence of a witness, the trial judge must apply the correct criteria, namely:

(a)take into account the motive that a witness may harbour while giving evidence;

(b)consider the contemporaneous documents and test it against the oral evidence of a witness;

(c)view the evidence of a witness against the probabilities of the case; and

(d)conduct a critical analysis of the witness evidence.

(see also Fearns (trading as Autopaint International) v Anglo-Dutch Paint and Chemical Co Ltd [2007] All ER (D) 40 (May), para. 105)

If a witness harbours feelings of ill-will or malice towards the P or D in a particular matter, a circumspect examiner would want to probe and discover this. Failing to do so would allow his evidence to go in unopposed.

A good illustration of this may be seen in Techcrew v Nurhamizah binti Othman [2020] MLJU 784. Here, a witness was called (PW2). He was an Advocate and Solicitor and was also instructed as Counsel in a previous matter (which was the root to the current proceedings).

Evrol JC (presiding JCA) first noted that his evidence was inadmissible, it not being expert evidence (paras. 24-34).

Her Ladyship then observed that PW2’s evidence was indecorous:

[35]  An expert, therefore, should not be asked to give his conclusions on matters which are eminently matters for the court to decide, as otherwise he would tend to arrogate to himself the functions of the court. In the present case, PW2 was overzealous in his answers and had no qualms in concluding with absolute conviction that the Defendants were indeed negligent. In my opinion, the Plaintiff’s questions to PW2 and the latter’s responses were indecorous. 

 [39]  As witness of both opinion and fact, PW2’s role in the MAB Suit rendered his presence in this case, as a witness for the Plaintiff (who was the opponent or adversary of his client), highly irregular. PW2 was the Counsel who had acted for and advised MAB on the approach and strategy to be adopted against the Plaintiff in the MAB Suit, and was successful in the application to strike out the Plaintiff’s defence, which resulted in judgment being entered against it for MYR5.85 million. 

[40]  However, in a remarkable twist to the tale, PW2, in this Claim, had voluntarily, and without being subpoenaed, given evidence on behalf of the Plaintiff, and even attempted to demonstrate how to set aside the very judgment that he himself had obtained. PW2 proceeded to explain that defences raised against MAB in a different suit (“the ES HVAC Suit”) by another defendant, were in the same fashion, available and open to the Plaintiff. I found the involvement of PW2 in this Claim, highly improper. 

[41]  I had also considered the fact that prior to filing of this Suit, PW3 had met PW2 for help and advice, and that PW2 had proceeded to advise that the Defendants were negligent. This, in my view, was contrary to Rule 42 of the Legal Profession (Practice and Etiquette Rules) 1978 (“Practice and Etiquette Rules”), which reads: 

Rule 42 – Advocate and solicitor not to communicate with a person represented by another advocate and solicitor

An advocate and solicitor shall not communicate with a person upon any matter in respect of which to his knowledge that person is represented by another advocate and solicitor except with the other’s express consent. 

[42]  To demonstrate further how invested PW2 was in this case, his partner, Mr Param had appeared as Counsel for the Plaintiff in the pre-trial proceedings of this Claim, including the First Defendant’s application to strike out the same. Counsel for the Plaintiff claimed that Mr Param was providing assistance merely a friend. Although it is the prerogative of Counsel for the Plaintiff to choose his friends and associates, the fact remains that Mr Param represented the Plaintiff in this Claim (albeit pre-trial proceedings), despite the fact that his partner, PW2, was involved in the MAB Suit against the Plaintiff. 

Examining motive

Her Ladyship then went on to consider:

[43]  At this juncture, on the credibility of PW2, I find instructive the following words of Lord Goff in Grace Shipping v Sharp & Co [1987] 1 Lloyd’s Law Rep 207: 

…when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. [Emphasis added.]

[45]  Applying these principles to the facts of the present case, PW2’s presence in court as a witness for Plaintiff compromised his partiality. As such, from whichever angle that I viewed the factual matrix of the present case, the irresistible inference was that there was a concerted, combined and coordinated effort by both PW2 and PW3 to ensure the Plaintiff’s success in this Claim. In view of these findings, I am unable to accept the evidence of PW2.

In not so many words (and in what is demonstrably a butchery of the learned Judge’s elegant prose), PW2’s evidence was a “put-up” job. He was giving evidence tailored to meet the needs of the Plaintiff. This was engineering evidence for the purposes of trial.

The Courts are no stranger to examining a witness’s motives:

• Mohd Zaki v Shahadat [2019] MLJU 991 (para. 16)

• Perkasa Jauhari v YS Chong Enterprise [2020] MLJU 1540 (paras. 66-71)

Conclusion

In concluding, an examiner must be aware that he needs to examine a witness’s motives. Many are innocent and it would be unwise to utilise a surgical tool (motive) as a sledgehammer.

Trying to tease the motives of a subpoenaed formal witness would be a fool’s errand.

GAVIN JAYAPAL

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