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PROCEDURE GUIDES

by Ahmad Kamar, Sessions Judge, Melaka

WITNESS

Witnesses are important aspect of court proceedings. They give material information about a case to the court. They give it under oath. The witness is said to have given "testimony". He is said to "testify" in the case. His testimony becomes evidence in the case. They are "summoned" as witnesses. The summons is also called a "subpoena" pronounced sa-pee-na. [Plural subponeae"]

This is a sample "summons to a witness" in a criminal case. This is a sample of "Subpoena" Attending court is a duty under the law.  The subpoena has to be personally served on a witness. It cannot be served alternatively by pasting on his front door, or on a member of his family or advertized in the newspaper.  The witness so served will have to acknowledge receipt on the counterfoil, which will become proof that it has been served.

 

WHEN DO YOU BECOME A WITNESS?

There are several instances when you can be called to attend court as a witness: in all instances you may be required to

(a) only to produce or tender specific documents or exhibits in your custody

(b) to give oral testimony under oath

(c) both (a) and (b)

 

1. Criminal Cases, summoned by the court

(a) on application by the prosecution to be their witness to support their case (in this case a statement should already have been recorded from you)

(b) on application by the defence lawyer to be their witness (the defence for example the accused person's lawyer may have interviewed you)

2. Civil Cases for the Plaintiff or Defendant or Third Party

 

Sometimes you may become supporting witness only, i.e. subponaed but not called to give evidence but called in to be identified, and offerred as a witness to the opponent.

In some cases mere failure to call a material witness can cast adverse inference for the party who ought to have called the person.

PROCEDURE GUIDES

 

WITNESS UNABLE TO ATTEND

A witness who has received a subpoena but realizes that he will be unable to attend can write early to the Court to inform the circumstances why he will not be able to attend e.g. he will be overseas, he will be attending a course, he is hospitalized etc and attach proof.

 

WHEN CASE DOES NOT GO ON

Some witnesses call up the Court to find out if a case scheduled is likely to go on or is going to be postponed. Sometimes the Court staff will know in advance the answer. Sometimes no one can tell for sure. But if you  have not been informed of the postponement and attend you will be paid your allowance by the party who subponaed you.

 

WITNESS IS NOT EXCUSED BUT FAILS TO ATTEND

In a criminal case if a witness who has been served fails to turn up, and his presence was indispensable, the party who applied for his subpoena can produce the counterfoil and a warrant of arrest will be issued for the witness. The witness also can be arrested and released on a Bond or remanded until the hearing date.  A party who obtained a subpoena for witness in a civil case who fails to attend can initiate Contempt proceedings against the witness for disobeying the subpoena.

 

UNNECESSARILY MADE A WITNESS

A witness who believes that he has no material evidence to give but is unduly harassed by being subpoenaed can file a formal written application to court to be discharged by stating the grounds for his belief. It is a tedious process you may have to spend money to hire a lawyer to do this. Some people may abuse the process of court to take revenge

 

WITNESS ALLOWANCE

You will be paid a witness allowance the amount of which depends on your occupation. The following are the minimum authorized rates for a witness in a civil case:

Order 25 rule Order 48 Subordinate Courts Rules 1980

Order rule Order High Court Rules 1980

 

The following are the minimum authorized rates for a witness in a criminal case:

The rates are lower for witnesses in criminal cases.

Criminal Procedure (Witness Allowance and Fees) Rules 19

PROCEDURE GUIDES

 

GOVERNMENT SERVANTS AS WITNESSES

You may be a government servant or a non-government servant. If you are a government servant and if you have been called to give evidence in support of the government who is a party in the suit, or in support of the prosecution, your allowance will paid into court to be credited into the "hasil" [Federal Consolidated Fund] account and a receipt number will be stated in the subpoena. If you attended the court you have carried out an official duty and at the end of the month you file your usual traveling claim using the  " Tuntutan Perjalanan" forms attaching the subpoena or summons as proof.  See Registrar's Circular No. The usual traveling claim rates, and mileage rates apply. Also when you attend the court whether or not the case went on don’t forget to get an acknowledgment from the court staff on the subpoena a remark or a chop that you attended. Some courts have this rubber stamp" saksi telah hadir pada 8.30 pagi hari ini untuk case ini".

 

NON-GOVERNMENT SERVANTS AS WITNESSES

If you are not a government servant and you were summoned by the prosecution as their witness you can ask for and fill up a "witness claim form" from the court police for payment. They will send the cheque to your address.

In a civil cases when a subpoena is applied for by a party the court will not issue it unless there has been tendered sufficient allowance together with the application in the form of a cheque or money order sufficient amount to cover your traveling expenses, witness allowance (according the rate in the table above) for you to attend and remain in court. See [Subordinate Court Rules Order Rule and High Court Rules 1980]. If you are from outstation the allowance may include your lodging at a hotel also. The following is widely practised in civil cases: The subpoena is applied for on an undertaking by the applicant, usually the solicitors to cover your expenses. Then when it is issued, a cheque is attached to the subpoena and served on you by the solicitors. Some solicitors just call up the witness to come to court on such and such a date and serve the subpoena in court with the allowance. If it is not enough you may accept it under protest and write to court to order the applicant to imburse you.

 

REFUSING TO ACCEPT OR EVADING SERVICE OF SUBPOENA

If you are a material witness and if you refuse to accept totally is a criminal offence you may land you in jail. There are provisions to jail evasive witnesses until the case comes up and he has given evidence. See. It is understood that witnesses are paid as much as RM 150 for attending accident cases by insurance lawyers. These expenses are then added to the cost incurred in the case and deducted from the lawyer's fees or legal fees from the settlement if the case is eventually settled.

 

DEFENCE WITNESS IN CRIMINAL CASES

In criminal cases the defence can only apply for subpoena against a person if the accused or defendant has been called to make his defence. See section Criminal Procedure Code.  The criminal subpoena is issued only when there is payment tendered.

There is no duty cast upon defence to call any witness in a criminal trial. No adverse presumption can be made by court against defence on failure to call any witness - Sandra Margaret Birch v PP (1978) 1 MLJ 72 and Roslan bin Karim & Others v PP (1975) 1 MLJ 84.

 

ACCOMPLICE

In criminal cases sometimes the prosecution has to turn an accomplice as their witnesses when there is no other choice. The law (the Evidence Act) provides special means to treat the evidence of accomplice witnesses.

 

VOLUNTARY WITNESSES

Any person can voluntarily attend at the request of parties if they so wish. The subpoena is to compel attendance of reluctant witnesses or those who cannot take leave to attend. An employer who refuses to allow his worker to attend court, can be charged for contempt.  He may deduct an absent employee because the employee can claim his lost wages as witness allowance.

PROCEDURE GUIDES

 

PERSON PRESENT IN COURT CAN BE MADE A WITNESS INSTANTLY [SEC. 425 CPC]

There have been instances when a member of public visiting the court until then not being witness or having given any statement suddenly pointed out by a witness, then called up to give evidence as witness in criminal case. This happens when a party to a case finds a person wanted as a witness but unable to trace suddenly finds him sitting in the public gallery. In criminal cases the accused can tell the prosecuting officer or his lawyer about it and section 425 can be invoked. Section 425 CPC says

 

PERILS OF BECOMING A WITNESS

Impeachment: a witness called by a party who gives evidence contrary to what he had stated in a statement earlier can be impeached, turned as a hostile witness, or charged for perjury. Knowingly giving evidence, which is false, is a criminal offence. (For “hostile witness” see PP v Leh Ah Eng (1964) MLJ 396. )

A witness need not answer, with permission of court, a question to which his answer may implicate him. He is protected under section of the Evidence Act. Some sharp judges immediately interject "you need not answer that" before the witness can answer. A spouse may not give evidence against a husband unless it is a matrimonial case between them. A lawyer may not reveal information obtained from his client unless the information relates to a crime the client had planned and has not committed yet. Information coming to the knowledge of a court interpreter is protected under section 126 of the Evidence act.

 

Witnesses who are not so protected but refuse to answer questions can be held in contempt of court and imprisoned until they are ready to answer. Section

 

Witness who have forgotten what they stated in an earlier statement to the police can have their memory re-freshened with permission of the court.

PROCEDURE GUIDES

 

It is all not that bad. All the witness has to do is tell what he knows. To tell the truth he knows. Simple. Lawyers or parties questioning witness cannot ask unsubstantiated questions to embarrass the witness. Some people find the easy way out by from the onset telling they did not see or hear. So never gave any statement and never became a witness.

 

ETIQUETTES FOR A WITNESS

If you become a witness attend the court, please locate the correct court stated in the subpoena and approach the court police to let him know that you have come. Court proceedings usually start after 9.00am and have your breakfast. There are attached toilets in the witness room. If you have to go to the canteen inform co-witness or the court police. Otherwise wait in the witness room until you are called.

 

Bow if a judge is presiding as a mark of respect when you enter or leave a court in session. Do not make noise or speak or whisper to the extend you distract the proceedings. It is contempt.

See also visiting the court.

 

You may be called just for identification by a witness currently giving evidence. When you are finally called to give evidence, you will be ushered into the witness box usually facing the judge,

 

The interpreter will ask you what language you are want to comfortably give evidence in. Even if you are a Chinese but very conversant in Malay you may choose to give evidence in Malay. No one can force you speak in Malay or English even though your may be a master in Bahasa if you don’t want to. and would like ask to raise your hands and read aloud the words on a card that says:

“I (your name), do solemnly sincerely and truly state that the evidence which I shall give in this case shall be the truth, the whole truth, and nothing but the truth" .

 

All eyes will be on you and you may become nervous. Be brave. You are there to tell the truth that you know. In Shariah courts Muslims take oath upon the Al-quran. These words are found in Oaths and Affirmations Act, 1960.

Pay attention to the proceedings, do not get distracted, listen carefully to questions put to you, answer in clear audible voice in a polite manner. Answer the questions, do not be evasive. Your demeanor can be noted down. Your credibility depends on what and how you answer. Some witnesses answer “why” when the question asks “what”. For example

Question: “Did you cook that day?” .

Answer : “I did not go to the market that day”. 

 

They didn’t ask you why you didn’t cook. You should answer “No” first, and let them ask why, then you can tell that it was because you didn’t go to the market. Don’t be rude even if a lawyer asks rudely and irritates you and tests your patience.  If the lawyer is too rude the Judge will control him. A lawyer too can not ask unsubstantiated questions.

Witnesses are normally separated after having given evidence from those who haven't. Witnesses are also not allowed hear or discuss what an earlier witness told the court. There is no law prohibiting witness who haven’t given evidence from watching or hearing the goings on. But they are separated to add to their credibility, to give origininal testimony. See circular

and the case Mohd Nor v PP (1939) MLJ 305).

If there is break in the proceedings halfway, you may be warned in some courts not to discuss your evidence with any other witness. But some witnesses read from papers what earlier witness told the court.

 

DEAF AND DUMB WITNESSES AND WITNESSES OF FOREIGN LANGUAGE

Whoever has taken statement from a deaf and dumb witness or a witness of foreign language may have arranged with the Court and Training Schools for Special people or with the respective embassies to provide a sign-language interpreter or a foreign language interpreter.

PROCEDURE GUIDES

CHILD WITNESSES

Children when become witnesses need not take the oath. the current provision section 133A of the Evidence Act 1950 says that a voire dire (trial within a trial) must be held first before a child witness can be recorded.

 

Where, in any proceedings against any person for any offence, any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth; and his evidence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 269 of the Criminal Procedure Code of the Federated Malay States shall be deemed to be a deposition within the meaning of that section:

Provided that, where evidence admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material in evidence in support thereof implicating him.

The important consideration we think, when a judge has to decide whether a child should properly be sworn, is whether the child has a sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal, social conduct.

 

Yusaini bin Mat Adam v Public Prosecutor[1999] 3 MLJ 582

 

In this preliminary examination of an unsworn child, the judge will test the child  to find out whether the child knows what is meant by truth, what is imagination, what is meant by a lie, whether he knows the duty to speak the truth. He wont be tested for his religious believes. When a court finds that the witness is immature or young the judge will have to explain in plain words the importance of telling the truth, what is the difference between truth and lie, and so on.

 

EMBARRASSING EVIDENCE IN CAMERA

There is no camera used. The word camera comes from Sanskrit Kamr (or Kamar in Malay meaning a room). The public are expelled temporarily. Sometimes like cases involving public taboo subjects such as rape and outrage of modesty, or in cases involving national security, some parts of the evidence cannot be comfortably given by the witness especially if it involves very personal and private matters. So the court on its own motion, or by the advocate who has subpoenaed you or upon your own request can have members of the public and other people unnecessarily present for the case can be asked to leave the court room. You now become comfortable. Judges have known to clear the court in matrimonial cases also.

 

Identities of witness also can be withheld from publication in security cases and in cases where victims are children and any clue as to witnesses can lead to the identification of the child are usually ordered by the court for the press not to disclose. If you have become a witness, and very nervous about it is suggested that you take leave and visit the court beforehand to accustomize yourself in the courtroom and the people who work there. You may become braver if you see how the proceedings are conducted and how witnesses in other cases give evidence.

PROCEDURE GUIDES