I was reading the decision of GS Gill Sdn Bhd v Descente, Ltd and another appeal [2008] 6 MLJ 181 recently where the Court of Appeal had yet another instance to reaffirm the principle (which really needs no further affirmation or re-affirmation, but perhaps things are the way they are because some judges still need regular reminders every now and again) that an appellate court would not interfere with an actual finding of fact by a trial court. What they would interfere with is only the inference of fact drawn from a finding of fact. Gopal Sri Ram JCA wrote the lead judgment and referred to the decision of Clarke v Edinburgh Tramways [1919] SC 35 and the dicta of Lord Shaw of Dunfermline which bears reproduction so that the thoughts it provoked from me can be better appreciated:

When a judge hears and sees witnesses and makes a conclusion or inference with regard to what on balance is the weight of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the judge makes any observations with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a court of justice. In courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate court? In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question, Am I – who sit here without those advantages, sometimes broad and sometimes subtle, which are the privileges of the judge who heard and tried the case – in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.

So the rationale for this principle is actually found in the practical realities of record keeping of the early 20th century i.e. before the ubiquity of the video (both in terms of recording and reproduction) and the computer age. That we have entered the age where anybody can take a video from their cameraphones or PDA’s or even just our cameras; and where we live in an age of such lense making precision and accuracy of camera control so as to capture ‘their demeanour, … their manner, … their hesitation, … the nuance of their expressions, … even the turns of the eyelid’ I think it rather strange that we should still apply this principle fashioned from an age without video and computers.

I would have thought that the appellate courts would have wanted to implement videotaping trial proceedings with the camera trained on the witnesses face and body the entire time (or whoever else since cameras are so cheap and plentiful these days) so that they would not just have the documentary record but could now judge the performance of the witness with their own eyes and make their own finding as to their demeanour and manners. So clearly video recording would eradicate such inaccurate record keeping where the witnesses’ performance is concerned and improve the accurace of the record of appeal. If section 3 of the Evidence Act defines a document as ‘any visual recording (whether of still or moving images)’ then clearly the video performance of the witness can be included in the record of appeal as well. In that sense, there’s actually no need to change make any major change in substantive law since a video recording of the witness can be included in the record of appeal (although it is envisaged that there would be some amendment on the procedural aspect).

I find it even more puzzling that the legal systems in the commonwealth have been so slow to take this up especially when one of the principal modes of thoughts in our Commonwealth judicial system is concerned with the objective ascertainment of facts (I’m applying one of Lord Justice Laws’s many superb thoughts in his excellent meditation titled ‘What is Virtue?’ [2004] 4 CLJ i). Facts are the basis of laws. Facts are the basis of a claim. Someone’s credibility is a question of fact. That credibility is surmised from their performance in court. Since we now have equipment that can ensure an accurate record of the witnesses performance, surely the important issue of fact findings should not be left open to the possibility of being incorrect when there is an avenue to reduce error.

This line of thought has also got me thinking: How many of our legal principles were fashioned or influenced heavily due to the lack of or only availability of inferior technology when the principle was declared? The other observation I draw from this is that the legal communities in general are not good at implementing technology into legal and judicial practise.

Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it...

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