Proposed amendment section 7 Criminal Procedure Code (Amendment) Act 2015 which provides for New sections 265a, 265b and 265c must be opposed.
Was it Najib who was the protected witness...or was it Aminah? Well, the accused person or his lawyer may not even know the gender of the witness or even the identity of the witness whose evidence send him to prison or to be hanged. And this new proposal is for ANY trial? There will certainly be no more fair and open trial in such cases where 'protected witnesses' give evidence...
One of the fundamental rights of an accused person is the right to a fair trial... and this includes the right to be able to put forward a defence effectively against the charge levied by the prosecution.
To be able to prepare a defence, it is essential that prosecution provides the accused person(or his lawyer) with the documents and list/description of other items that will be tendered as evidence. It also should tender the list of all witnesses.
The prosecution should also tender even the 'evidence' or fact that is favourable to the accused - yes, these would be evidence/fact that is not favourable to the prosecution.
YES - a fair trial is to ensure that justice be done - so that means that all the relevant facts/evidence is made available to the courts and also the accused. Prosecution's duty is really to ensure that justice be done - not 'winning' a case. It is sad that some prosecutors have purposely hidden evidence/facts from the court (and the accused) just to win - and many have languished in prisons or even been executed by reason of this attitude by police and prosecution.
Prosecution WITNESSES - well, a good defence lawyer would want to know the names - so that the Defence can do their own investigation as to the (a) the credibility of the said witness, and (b) of the evidence that he may be giving in court.
Well, if the said witness
... has an history of lying
... or really is a person who has personal animosity with the accused person so much so that he is more likely to lie to get the accused convicted...
... need to be interviewed so that what he is going to say could be determined, and investigation done by the defence to verify whether he is telling the truth as to all material witnesses.
Hence, proposed amendment section 7 Criminal Procedure Code (Amendment) Act 2015 which provides for New sections 265a, 265b and 265c must be opposed.
Special provisions relating to protected witness
265a. (1) Notwithstanding section 264, where at any time during any trial, any of the witnesses for the prosecution refuses to have his identity disclosed and wishes to give evidence in such a manner that he would not be seen or heard by both the accused and his counsel, the Public Prosecutor may make an oral application to the Court for the procedures in this section to apply.
(2) For the purpose of satisfying itself as to the need to protect the identity of the witness, the Court shall hold an inquiry in camera by questioning the witnesses concerned or any other witness in the absence of the accused and his counsel.
(3) If after such inquiry the Court is satisfied as to the need to protect the identity of the witness, the evidence of such witness shall be given in such a manner that the witness would not be visible to the accused and his counsel and further if the witness fears that his voice may be recognized, his evidence shall be given in such manner that he would not be heard by the accused and his counsel.
(4) The evidence given by the witness under subsection (3) shall be given to the accused and his counsel provided that the Court shall cause the evidence leading to the identity of the witness to be concealed.
(5) The Court shall disallow any question by the accused or his counsel to any other witness that would lead to the identification of the witness who has given his evidence under this section.
(6) Where a witness gives evidence in accordance with this section, he shall for the purposes of this Code and the Evidence Act 1950 be deemed to be giving evidence in the presence of the Court, the accused person and his counsel.
(7) The Court shall seal all records that may lead to the identification of the witness who has given evidence under this section.Identification by witness where evidence is taken in camera
265b. If in the course of taking evidence under section 265 a the accused or any other person is required to be identified by the witness who gives evidence in the manner provided in that section, such identification may be made by the witness through an interpreter or other officer of the Court.
Protection of identity of witness
265c. Notwithstanding any written law to the contrary, any report through any means on a protected witness shall not reveal or contain—
(a) the name;
(b) the address;
(c) the picture of the protected witness or any other person, place or thing which may lead to the identification of the protected witness; or
(d) any evidence or any other thing likely to lead to the identification of the protected witness.”.
Additional reasons why - because this provision is applicable during ANY trial which means it could be used even for Sedition trials, illegal assembly trials, trials whereby conviction will or may result in the Death Penalty.
Even during the stage whether the witness were to be accorded 'protected witness' status, the law is going to exclude the accused person and his/her lawyer.
Not only does the law provide the possibility for the witness not to be seen - but also allows for situation where the witnesses will not be heard. Hence, what the accused will be getting is just 'written transcripts of what the witness allegedly said' - this is not right.
To determine credibility, judges need also observe the demeanor of witnesses and how would this be possible. Lawyers for the accused person also need to observe witnesses - for sometimes the eyes or facial expressions can indicate a lot... whether one is lying ...and even whether further questions may be needed.
Why the deeming provision, 'deemed to be giving evidence in the presence of the Court, the accused person and his counsel.' - WHY? Should his evidence just be the evidence given by a 'protected witness' - who identity was concealed but could be heard OR that could not even be heard. Remove the deeming provision - because it promotes a lie... this was certainly not a normal witness, whose identity is known, who there was no inhibition with regard for cross examination, etc... where we cannot even call some other witness to challenge the credibility of the 'protected witness'. etc...so let the records reflect the truth > We would not even be able to bring contempt proceedings against such unidentified 'protected witness', can we? FAIR and OPEN trial - certainly not when we have such witnesses?
What is weight to be given to evidence of such 'protected witness'? Surely in such a situation, the weight to be given must be less than that of a normal witness - and the law may/must require corroboration evidence...
Well for that, we looked at the proposed amendment of the Evidence Act - Evedence Act (Amendment) 2015 which brings in a new section 32A
Admissibility of evidence given under section 265a of the Criminal Procedure Code
32a. Notwithstanding any other provision in this Act, evidence taken in accordance with section 265a of the Criminal Procedure Code shall be admissible in any criminal proceedings.”.
Well, nothing there except that it will be admissible - nothing there about the weight that the court should given to the evidence of such witnesses...is there?
WITNESS PROTECTION - would that not be sufficient to protect any such witnesses after they have given evidence normally if there is any possibility of serious repercussions or risk to life and limb? Relocation is a possibility...there are other options - we do not need these 'Protected Witnesses'...
Special provisions relating to protected witness
265a. (1) Notwithstanding section 264, where at any time during any trial, any of the witnesses for the prosecution refuses to have his identity disclosed and wishes to give evidence in such a manner that he would not be seen or heard by both the accused and his counsel, the Public Prosecutor may make an oral application to the Court for the procedures in this section to apply.
(2) For the purpose of satisfying itself as to the need to protect the identity of the witness, the Court shall hold an inquiry in camera by questioning the witnesses concerned or any other witness in the absence of the accused and his counsel.
(3) If after such inquiry the Court is satisfied as to the need to protect the identity of the witness, the evidence of such witness shall be given in such a manner that the witness would not be visible to the accused and his counsel and further if the witness fears that his voice may be recognized, his evidence shall be given in such manner that he would not be heard by the accused and his counsel.
(4) The evidence given by the witness under subsection (3) shall be given to the accused and his counsel provided that the Court shall cause the evidence leading to the identity of the witness to be concealed.
(5) The Court shall disallow any question by the accused or his counsel to any other witness that would lead to the identification of the witness who has given his evidence under this section.
(6) Where a witness gives evidence in accordance with this section, he shall for the purposes of this Code and the Evidence Act 1950 be deemed to be giving evidence in the presence of the Court, the accused person and his counsel.
(7) The Court shall seal all records that may lead to the identification of the witness who has given evidence under this section.Identification by witness where evidence is taken in camera
265b. If in the course of taking evidence under section 265 a the accused or any other person is required to be identified by the witness who gives evidence in the manner provided in that section, such identification may be made by the witness through an interpreter or other officer of the Court.
Protection of identity of witness
265c. Notwithstanding any written law to the contrary, any report through any means on a protected witness shall not reveal or contain—
(a) the name;
(b) the address;
(c) the picture of the protected witness or any other person, place or thing which may lead to the identification of the protected witness; or
(d) any evidence or any other thing likely to lead to the identification of the protected witness.”.
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