JUDGES have done “no better than chance in assessing if people were lying”, noted Singapore’s apex court, as it issued a warning against relying too much on, say the demeanour of a witness, to decide if he or she is a liar.
The court also called on judges not to be swayed too much by “faulty recollections” in deciding whether a witness is truthful, especially when memory gaps occur after a long time between the event and the trial.
The Court of Appeal issued the rare advice in judgment grounds released last week, when it overruled a High Court decision that had granted an investment firm’s claim to S$1mil (RM2.5mil) in dividends.
“We think it would be helpful to make some observations on these problematic issues which judges have to address in almost every trial,” said Judges of Appeal Chao Hick Tin, Andrew Phang and V.K. Rajah.
The court cited various expert materials, including a book titled Telling Lies, to warn against reading too much into instances such as when a person on the witness box scratches his nose, grabs his knees or digs into his palms.
“The witness is under the intense scrutiny of the judge and is also under intense pressure to answer counsel’s questions; even truthful witnesses may wilt and display discomfort in such circumstances,” wrote Rajah.
Other aspects of demeanour that judges look at can include the way in which a witness responds or hesitates or whether his gaze is steady or shifting.
The apex court urged caution by the trial judge when placing reliance on these factors alone to find a witness untruthful.
Ditto the reliance on the “uncorroborated recollections” of a witness. A judge should be slow to label a witness as “untruthful” where memory gaps exist, it said.
The court’s advice was sparked by its concerns about the High Court’s labelling of two principal witnesses in the investment case as “evasive and/or vacillating witnesses”.
The court said that although the judge was correct in being unsatisfied with their testimony, the events took place almost five years before the trial.
“A trial should not be a test or contest of memories,” said the court, adding that it was better to rely on objective documentary evidence and the actual conduct of the parties.
In the case, Strategic Worldwide Assets, a British Virgin Islands company, had won a S$1mil payout in the High Court last year from Sandz Solutions (Singapore). — The Straits Times / Asia News Network