OCTOBER 4 — From a litigation perspective, particularly in a criminal justice system, a prosecution’s case depends on the evidence they have against the accused. And that evidence, in one way or another, comes from witnesses.

Witnesses, generally are people who saw the accused committing the crime or saw the accused around the time or location of the crime.

In most cases, witnesses testify to what they saw or what they think they saw, but that doesn’t mean the judge will have to believe their testimony. Not all witnesses are credible. If a witness is not credible, his or her testimony is not credible.

In assessing the credibility of a witness at the stand, the Evidence Act does not purport to lay down any rule as to the weight to be attached to the evidence of the witness when admitted.

In the case of Dato Mokhtar Bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232, it was held that as far as witnesses are concerned it is left to the judge who hears and sees the witness to attach to their ‘‘evidence the weight it deserves from their demeanour, deportment under cross-examination, motives to speak or hide the truth, means of knowledge, powers of memory, and other tests, by which the value of their statements can be ascertained, if not with absolute certainty, yet with such a reasonable amount of conviction as ought to justify a man of ordinary prudence in acting upon those statements.’’

Similarly, in the case of PP v Dato Seri Anwar Ibrahim (3) 1999 2 MLJ 1, the court stated that in "determining whether the evidence should be accepted or rejected will depend on how consistent is the story and how it stands during cross-examination, and how far it fits with the rest of the evidence and circumstances of the case.”

Hence, it can be ascertained that an assessment of witness’s credibility is a mixture of both objective and subjective in the evidence before the court.

Thus, the High Court judge Justice Radzi Hamid ruled that the prosecution had failed to prove a prima facie case against the five accused due to various inconsistencies in evidence produced, which had granted the five of the accused an acquittal.

The learned judge, in his grounds of judgment, found that the key witness in the case Previin, was found unreliable. He further states that the court finds that the facts and evidence presented for the murder charge were unclear and did not prove that the five accused had the intention to kill the victim.

He said there were serious doubts in the case against the suspect, and the police authority had failed to conduct the investigation fairly.

The prosecutor has also failed to call other corroborating witnesses to support Previin’s testimony in court and added that the key witness has presented contradictory evidence and was not credible. Due to his lack of credibility, his testimonies heard in court were rejected and could not be used.

Thus, it is trite law, for a prima facie case to be made out against the accused, the prosecution has to adduce credible evidence for it to conduct maximum evaluation. And it goes without saying, that when the evidence adduced by the prosecution does not hit the bull’s eye, (beyond reasonable doubt) then the accused will be set free.

That being so, isn’t the credibility of witnesses draws the sword here?

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.