Prima Facie Journey

       Oral evidence can be define as all statements which the court permits or requires to be made it by witnesses in relation to matters of fact under inquiry. Under Section 61 of the Evidence Act 1950, it is mentions that the contents of documents may be proved either by primary or by secondary evidence. Oral evidence could be consider as secondary evidence as description given in Section 65. Stipulations always arise regarding credibility and admissibilty of oral evidence given by witness.

        The weight and value of oral evidence depends on its credibility as found by the court in each cases. There is certain manner regarding assessing the credibility of oral evidence. As an example, when it comes to making a finding on credibility the demeanour of the witness has to be balanced against the rest of the evidence. It is quite hard to find out the demeanour of the witness in the certain probabilities. The Judges itself have the difficulty to discern from a witness's demeanour, whether the witness is telling the truth. Justice MacKenna in his book 'The Judge' (1969), stated that;

'Is the empahatic witness putting on an act to deceive me or is he speaking from the fullness of his heart, knowing that he is right? is he likely to be more truthful if he looks me straight in the face than he casts his eyes on the ground perhaps from shyness or a nature timidty? For my part I rely on these considerations as little as I can help' .

 

          Problems also arise when there are discrepancies and contradictions in the evidence of a witness. Discrepancies and contradictions will always be in any case. In considering it, what the court has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole the evidence worthless and untrustworthy. Because there is a discrepancies in testimony it does not straightaway make the witness become unreliable witness and make the whole of his evidence unacceptable. It is up to court to observed the statement of discrepancies and carefully consider to to accept the part of the witness's evidence if its considers them to be true.

            The credibility of oral evidence could also arise in a situation when a witness demonstrably tell lies. If a witness keep telling lies on one or two points then it is clear that he is not a reliable witness and as a matter of prudence the rest of his evidence must be scrutinized with care and indeed suspicion. However to fully reject the witness statement because of proven lie in one or two points is something wrong and unacceptable as mention in the case of Khoon Chye Hin v Public Prosecutor [1961] MLJ 105. But it is the duty of the court to sieve the evidence and to ascertain what are the parts of the evidence tending to incriminate the accused which could be accepted.

              By mean of Section 145 and 155 of Evidence Act 1950, the credit of a witness can be impeached if his evidence given in court is incosistent with a previous satement made by the person. Meanwhile by Section 146, a witness may be cross-examined to test his accuracy, veracity or credibility. In certain cases the oral evidence of a witness must be corroborated before it can be accepted. This is covered by section 114(b) and 133 of the Act.

           There are certain tests for determining the credibility of a witness which can be seen in decided cases. In the case of Bhojraj v Sitaram AIR 1936, The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is witself, how it stands the test of cross examination how far it fits in with the rest of the evidence and the circumstances of the case. But however if it being unshaken in crossexamination doen't mean its all sufficient to prove the credibility. The inherent probability or improbability of  a fact in issue must be the prime consideration as mention in the case of Muniandy v Public Prosecutor [1966] 1 MLJ 257. The Indian Supreme Court in the case of Ugar v State of Bihar AIR 1965, has pointed out that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. Then, in the absence of any contradiction or inherent improbability, the evidence of any witness who give evidence on affirmation, should normally be accepted.

Raja Azlan Shah FJ in the case of PP v Datuk Haji Harun bin Haji Idris [1977] 1 MLJ 15, said:

'...in my opinion, discrepancies there will always be, because in the circumatances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened...The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other.' 

           All this relevant steps have been considered and carried out in the case of PP v Dato' Seri Anwar bin Ibrahim [1999] 2 MLJ 1 by Justice Augustine Paul in pointing out the relevancy and credibility of the witnesses in the case.

   

            From my point of view, when it comes to determine the credibility, the Court face a mammoth task since it is a subjective matter. At certain cases the Court tend to be flexible when dealing with discrepancies before deciding on the full issueas mention by Raja Azlan Shah FJ above. But in a case where the oral evidence becomes unreliable the safest policy would be to rely on the documentary evidence. Since oral evidence is sufficient to prove a fact in the absence of documentary evidence to support it, there must be assurance in certain terms by accepting oral evidence as discussed above. At last it is always up to the court  discretion to assessing the credibility of oral evidence.