EVIDENCIAL PRACTICES AND PROCEDURES
EVIDENCE
WITNESSES
INTRODUCING WITNESSES
EXHIBITS
INTRODUCING EXHIBITS
TAKING DOWN NOTES OF EVIDENCE
VISITING THE SCENE
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"
pronounced sap-pee-nay ]
SUBPOENA
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.
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.
There is a circular from Chief Registrar that any Medical Certificate obtained with
intention to avoid attending court must state “the witness is also not fit to attend
court” because the Medical Certificate format is “unable to carry out his work”.
There was an instance when a Sessions Judge did not believe the MC tendered
form the witness, asked the police to bring the doctor who gave the MC put him
in the witness box and question him as to the seriousness of the witness’ illness.
Since no body appealed against this procedure, there is no case law.
CAN SUBPOENA BE EXTENDED?
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
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. ere 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.
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.
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
unsubstantiated questions to
parties
questioning
witness
cannot
ask
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.
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
ORDER OF CALLING WITNESSES IN ANY CASE
[1962] MLJ 336
BEECHAM (MALAYA) LTD v YUNUS
Per Thomson CJ: “. . . . . in my view in making an order for a retrial, which in
effect required
the calling of evidence which the parties themselves had not called, the trial
Judge was going to
some extent beyond his powers. . . . . . In my opinion it is thus clear that a Judge
has no power
to dictate to the parties what witnesses they shall call.”
1949] MLJ 210
KEE SENG NEE v REX
Whether Magistrate can recall prosecution witnesses after close of defence case
Summary
In this case after counsel for the defence had addressed the Court the Magistrate
recalled
certain prosecution witnesses.
Holdings
Held, that this was in the circumstances irregular and that the conviction must be
quashed as the
Magistrate had overcome the doubts which he presumably had before by means
which were not open to
him.
[1939] MLJ 305
MOHAMED NOR v PUBLIC PROSECUTOR
Evidence — weight of — witness remaining in Court during trial — right of give
evidence.
Summary
The fact that a witness remains in Court during the progress of a trial is no
ground for refusing
to allow him to give evidence, although it may reduce the weight to be attached
to such evidence
as may be given.
Holdings
[1967] 1 MLJ 97
PUBLIC PROSECUTOR v LOH KENG KOH
Headnote
Held: there was no justification in this case for excluding the right of the
prosecution to
examine witnesses for the defence; the exclusion of such examination had
caused a miscarriage of
justice and the order for acquittal must be set aside and a retrial ordered.
[1962] MLJ 323
HASSAN v PUBLIC PROSECUTOR
Headnote
(1)
the defence should be accorded the right to recall the prosecution
witnesses unless the
application was frivolous or vexatious; otherwise it would occasion a failure of
justice. Ong
Boon Siang & Ors v R [1961] MLJ 4 followed;
(2)
the learned President misdirected himself on the burden of proof. It is for
the
prosecution to prove their case beyond reasonable doubt and not for the accused
to prove his
innocence.
[1994] 3 MLJ 457
Public Prosecutor v Abdul Majid
By virtue of s 122 of the Act however, no person who is or has been married shall
be compelled to
disclose any communication made to him during marriage unless the person who
made the
communication consents. The use of the word ‘compelled’ in s 122 shows that it
was the
legislature’s intention that a competent witness should generally also be a
compellable one.
(3)
Therefore, the accused’s wife could be compelled to give evidence with
the exception of
communications by the accused to her unless the consent of the accused had
been obtained as
required under s 122 of the Act.
1997] 4 MLJ 47
Public Prosecutor v Sim Ah Ba & Anor
The prosecution has a complete discretion as to the choice of its witnesses to be
called at a
trial, the only limitation being a duty to call all the necessary witnesses to
establish against
an accused proof beyond reasonable doubt. Where the witnesses come within
the category of
‘witnesses essential to the unfolding
||Page 50>> of the narratives on which the prosecution’s case is based’, then the
prosecution
must call such witnesses or at the very least offer them to the defence for crossexamination
(see p 63A–C); Ti Chuee Hiang v PP [1995] 2 MLJ 433 followed.
Child witness
Evidence — - Child witness - Taking of evidence - Failure to follow procedure Court held
inquiry as to whether swarn testimony is to be given - Whether court must
examine whether child
had sufficient appreciation of the responsibility of telling the truth - Evidence Act
1950 s 133A
Yusaini bin Mat Adam v Public Prosecutor [1999] 3 MLJ 582
Held, allowing the appeal:
The court when accepting the evidence of a child of tender years ought to have
examined whether
the child had sufficient appreciation of the responsibility of telling the truth over
the
ordinary duty to tell the truth upon pain of punishment for perjury. On the failure
of the
session court judge to follow the procedure in s 133A of the Act, the conviction
should be set
aside (see p 586B–C, E).
Visiting the scene.
Procedure:
Application by Prosecution, or Defence, or by Court on its own volution.
If by either prosecution or Defence, Court must ask the other party any objection,
and why.
Must here submissions , get authorities, and decideL Can visit or can not visit.
If can not visit, rule so, and proceed with the case.
If can:
Court must give directions as follows:
Date and time of visit.
Who should follow, and be present.
Must warn parties, no one to talk enquire, or without courts permission at the
scene.
Must direct prosecution or police to secure the place when the Magistrate arrives.
There should not be onlookers very near where they are going to convene.
It shall be the duty of the police to inform magistrate if the palce to visit is not
safe for visit.
Magistrate must bring own car or travel in court staff's car.
Can not go with prosecution or defence car.
Magistrate must bring sufficient interpreters, minute sheet, pen etc to write down
questions at the scene.
Upon arrival at the scene,
the magistrate shall record, who is present.
The accused MUST BE PRESENT.
Then question time can be allowed.
Witness during whose testimoney the application was made,
can be asked questions to describe again what he was saying in court that lead
to this visit.
The visit should be mainlyto clarify or prove a point eg distance, visibility of
things, to note
the geography of land marks etc.
Question when asked shall be recorded and after finish recording can allow
witness to answer.
Answer shallbe recorded.
No one shall discuss among themselves or ask witnessquesitons.
Accused may be allowed to cross examine the witness then and there for the
matters the witness
pointed out at the place.
Then when there are no more things to be clarified, Magistrate shall announce
court adjourned,
sitting in court house again at what time.
The notes taken down shall form continuous part of notes of evidence.
Any person disobeyed the larang bercakap order, can be called up when back in
court, and told,
you disobeyed my order not to speak without my permission. I hold you in
contempt. Before I
punish you, do you want to explain. If you dont have any explanation I will punish
you now.
Punishment Third schedule Sub Ct Act
If you want to explain, get into the witness box, take oath and give your
explanation.
If you are not ready today, I adjourn your explanation to another date. You may
employ a lawyer
to defend you.
The person can be prosecuting officer, interpreter, accused, witness, escorts who
have been
recorded as present. If on lookers speak or shout the police looking after public
order can
silence or control them.
[1954] MLJ 158
HARBAN SINGH v REGINA
The learned Magistrate after the conclusion of the evidence visited the scene of
the incident in
the company of the prosecuting officer but without the presence of the accused
or his counsel,
and without having informed either of them of the time when he proposed to view
the scene. As a
result of his visit he formed certain opinions on which his judgment was largely
based. No
evidence was produced as to the importance of the “lay out”.
Holdings
Held: if the lay out was of importance evidence should have been produced on
the subject. Retrial
ordered.
ADVOCATE INTRODUCING A WITNESS
I would like to call Mr Soh Chin Lay, the Plaintiff as my first witness.
The witness come into the Witness Dock.
The Interpreter gets his Identity Card passes it to the Magistrate.
When not obvious, the interpreter enquires the witness in what language he
wants to give evidence. The witness answers “ in English”
The