Should Malaysia update its appeal process for witness credibility?

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Malaysia Should Update Its Appeal Process for Witness Credibility

Malaysia's appellate courts should update their approach to assessing witness credibility during appeals, given the advent of modern technology that now captures audio-visual records of trial proceedings. The current practice, which heavily defers to the trial judge's assessment, stems from a rationale established in 1936 that appellate courts lack the necessary audio-visual advantage to evaluate witness demeanor. However, the introduction of the Court Recording and Transcription (CRT) service around 2010 provides appellate courts with the means to review visual and auditory cues, alongside witness conduct.
Deference to Trial Judge's Assessment

Appellate courts in Malaysia have historically placed significant trust in the trial judge's evaluation of a witness's credibility. This practice dictates that appellate courts will only overturn a trial judge's finding on credibility in rare, exceptional circumstances where the trial judge's decision is demonstrably and fundamentally flawed. This deference is rooted in the principle that the trial court possesses a unique advantage in observing witnesses directly.
Historical Rationale for Appellate Restraint

The reasoning behind this appellate restraint was articulated in a 1936 Privy Council decision, which held that appellate courts are not equipped to make their own findings of fact. The primary justification cited was the appellate court's lack of the audio-visual advantage that the trial court enjoys, an advantage deemed essential for accurately assessing a witness's demeanor and reliability. This created a significant hurdle for appellants seeking to challenge credibility findings on appeal.
Technological Advancements and the CRT System

The widespread availability of affordable and ubiquitous audio-visual recording technology, particularly since the implementation of Malaysia's Court Recording and Transcription (CRT) service in approximately 2010, fundamentally alters this historical rationale. The CRT system captures not only the spoken word but also the visual proceedings, allowing for the observation of witness demeanor and conduct. As highlighted by a former Chief Justice, this system provides appellate courts with the comprehensive data necessary to independently assess witness credibility.
Incongruity of Outdated Practices

The continued adherence to a 1936 rationale for appellate courts' inability to assess witness credibility appears incongruous in the 21st century, especially with the capabilities offered by the CRT system. While the system was implemented to enhance court performance and provide detailed records, its potential to facilitate a more robust review of witness credibility on appeal has not been fully realised in practice. This situation raises questions about why legal frameworks and judicial practices have not evolved to leverage these technological advancements in the appellate review process.

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Should Malaysia update its appeal process for witness credibility?

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