When an individual files suit against another, this is to be done by means of a writ of summons. This writ must contain in detail the claims being brought forward by the claimant, a declaration by the same claimant on oath ascertaining the facts alleged, and also a list of witnesses and documents to be brought forward in support of the claims made, identifying in the process the exact scope, bearing and actual use of bringing forward such evidence. The defendant, upon answering to the writ of summons served on him, shall also identify all the evidence that he shall bring forward in support of his position. The same Procedural Code, stipulates that should a witness not be mentioned at this stage, i.e. prior to the actual pleadings before Court, no further evidence can be brought forward, unless authorisation is given by the Court hearing the case.
A particular form needs to be used to this end (known as a subpoena), wherein the witness is to be informed, under pain of nullity, the date and time when he is to testify, before which Court, the name of the presiding Judge / Magistrate, on what he is expected to testify and what documents (1), if any, he is to exhibit during the same Court sitting. Any person being present in the court may, upon the oral demand of either of the contending parties, be called to give evidence just as if he had been summoned to attend by means of a subpoena.
In this regard one must also mention that when a person is testifying, the party who called such person to testify may not put to his witness leading or suggestive questions, without special permission of the court. The opposite party has the right to cross-examine a witness and in such cross-examination leading or suggestive questions are allowed. During the cross-examination, a witness may only be questioned on the facts deposed during his testimony, or on matters calculated to impeach his credit. When the party cross-examining desires to prove by the same witness any circumstance not connected with the facts deposed in his testimony, he must, unless the Court, for just cause shall direct otherwise, produce such witness in due time and examine him as his own witness. The Court may, upon a demand made to this effect by the latter party mentioned, order the witness not to leave the Court in order that he may be again called and questioned. This order has the effect of a subpoena.
When both the examination and cross-examination are concluded, no further questions may be put by either of the parties to this witness, but it shall be lawful for the Court, or for the party with the permission of the Court, to ask such questions as arise out of the answers given in the course of the examination or cross-examination. The Court, may, at any stage of the examination or cross-examination, put to the witness such questions as it may deem necessary or expedient.(1) It has to be noted that any documents to be exhibited are to be originals or copies of originals certified as being true copies.
The Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) identifies the following menas of proof:-
All persons of sound mind, unless there are objections against their competency, are admissible as witnesses. Furthermore, whatever may be the age of a witness to be produced, he is admissible as such, provided he understands that it is wrong to give false testimony.
Witnesses are to testify, on oath, in open court during the court hearing and viva voce, i.e. in person and in his own language (1). Witnesses are to answer all the questions put to them either during their examination-in-chief or during cross-examination, provided such questions have been approved by the Court.
Considerations to be made to this end:
The Court may appoint a judicial assistant to administer oaths, to take the testimony of any person that is produced as witness in said dispute, to take any affidavit on any matter, (including a matter connected with any proceedings taken or intended to be taken before any Court), and to receive documents produced with any testimony, affidavit or declaration.
Any party intending to produce a witness in any proceedings before any Court may, together with the writ of summons or the statement of defence, file in the registry of such Court an affidavit taken by such witness before a judicial assistant or any other person authorised by law to administer oaths, and a copy of such affidavit is served on the other party. Should the other party wish to cross-examine such witness, a note to this end is to be filed in Court, and should the Court accede to such request, then this witness is to physically turn up in Court for this cross-examination.
Declarations made in writing in any place before a magistrate or other person, (whether as dying declarations (in articulo mortis) or not, in the presence of or in the absence of the parties, with or without oath, may be brought forward as evidence (2).
Where any person whose evidence is required in a pending case, is about to leave Malta, or is so infirm or advanced in years that he might die or become unable to give his evidence before the time when such cause will come up for trial, or is unable to attend the trial, the Court appoints a judicial assistant to proceed to such place and at such time, as may be most convenient for the witness to give testimony. The questions put to the witness, together with his answers thereto, are taken down in writing, and the deposition is signed or marked by the witness himself.
When, a Court is satisfied that the evidence of a person residing abroad is indispensable for the determination of any cause pending before it, the Court makes an order to this effect, (it may also stay the proceedings until such evidence is produced before it), and orders the issuing of the letters of request (3) to this end.
It has to be noted, that apart from the utilization of letters rogatory, if a witness residing outside Malta makes an affidavit about facts within his knowledge before a competent authority empowered to administer oaths, or before a consular officer of Malta serving in the country where the witness resides, such affidavit duly authenticated may be produced in evidence before a Court in Malta.
(1) Witnesses may refresh their memory by referring to any writing made by them or by another person under their direction at the time when the fact occurred or immediately thereafter, or at any other time when the fact was fresh in their memory and they knew that the same was correctly stated in the writing; but in such case, the writing must be produced and may be seen by the opposite party.
(2) Provided it is shown that such declaration was made deliberately and in such circumstances as lead to the belief that there was no intention to depart from the truth, and that the party who made such declaration would have been a competent witness if he could be called to give his evidence at the trial.
(3) Also known as letters rogatory
Expert witnesses (referees) are to present a report in relation to the Court decree appointing them. The Court decree should identify the object of the reference, the day and time when the referee is to conduct a physical inspection (an inspection in faciem loci) (where necessary), any directions for the guidance of the referee in the execution of his task and generally by when the referee is to publicly present his report to this end.
Upon appointment, the Court may also order the referee to attend for the hearing of the trial and to put to the witnesses any questions he may deem necessary or relevant to enable him to complete his report. When affidavits have been filed in the registry of the Court, the referee is served with a copy of such affidavits before the hearing.
The report of the referee is to state the inquiries made and his findings together with the grounds of such findings. As annexes to this report, the referee shall attach all the documents produced by the parties and the depositions of the witnesses. If the Court so orders or the parties consent, the report may also be supplemented by any plans or models.
Before the day appointed for the publication of the report, or on the same day, but before the cause is called, the referee presents his report unsealed to the registrar for the taxation of his fees.
Generally, the law allows, that the referee is not required to publish his report until the fee taxed by the registrar has been paid to him or deposited with the registrar, and the registrar shall not disclose to any person any part of the report, until the fee has been paid or deposited as aforesaid. Upon the payment or deposit as aforesaid, the registrar inserts the report in the record of the cause and such report is from then on accessible in the same manner as other parts of the record.
On the day appointed for the publication of the report, the referee attends before the Court to publicly read out the report and confirms its contents on oath. The Court may dispense his attendance to this end.
Following such publication, referees may be examined. Contrary to the examination of witness who are examined separately, should there be more than one referee appointed for the same scope, these may be examined in the presence of each other. Referees may be examined and cross-examined on their report in the same manner as witnesses.
Yes. The cardinal rule that evidence has to be tendered viva voce is the partial reason for this answer. Hearsay evidence, i.e. evidence given by a person in relation to what he was told or acquired through a third party, is generally considered to be weaker than any evidence that is given by any person with respect to any information that such witness might have acquired personally. Nevertheless it has to be noted that should this evidence be the best evidence possible, then such evidence, irrespective of the fact that it is considered to be weak is still retained.
It all however depends of the nature of the claim: if for instance the dispute relates to paternity, the findings of a DNA test are considered as being the best possible form of evidence, irrespective of what any number of witnesses may on oath declare.
When considering documents though, one has to remember that certain documents are considered as being privileged documents (1) and no demand may be made for the production of same.
The following list demonstrates some documents that are admissible as evidence in themselves, without the necessity of any proof of their authenticity other than that which appears on the face of them until the contrary is proved:
the acts of any foreign Government, or of any department of a foreign Government, or of foreign courts of justice, or of any foreign establishment, authenticated by the diplomatic or consular representative of the Government of Malta in the country from which they emanate.
(1) Part of any correspondence of any civil, military, naval or air force department or of any report belonging to any such department.
Witnesses can refuse to give evidence with respect to privileged communications. For instance no advocate or legal procurator without the consent of the client, and no clergyman without the consent of the person making the confession, may be questioned on such circumstances as may have been stated by the client to the advocate or legal procurator in professional confidence in reference to the cause, or as may have come to the knowledge of the clergyman under the seal of confession or loco confessionis.
Also, unless by order of the Court, no accountant, medical practitioner or social worker, psychologist or marriage counsellor may be questioned on such circumstances as may have been stated by the client to the said person in professional confidence or as may have come to his knowledge in his professional capacity. This privilege extends to the interpreter who may have been employed in connection with such confidential communications.
Furthermore no witness may be compelled to disclose any information derived from or relating to any document belonging to or in possession of any civil, military, naval or air force department of the public service and which is an exempt document.
The husband or wife of a party to a suit shall be competent and compellable to give evidence in such suit at the request of any of the parties thereto provided that the husband may not be compelled to disclose any communication made to him by his wife during the marriage or the wife compelled to disclose any communication made to her by her husband during the marriage and that the husband or wife may not be compelled to answer any question tending to incriminate his wife or her husband.Finally it has to be remembered that it is in the discretion of the Court to determine, in each particular case, when a witness is not bound to answer a particular question on the ground that the answer to such question might tend to expose his own degradation, or when a witness will not be compelled to give evidence as to facts the disclosure of which will be prejudicial to the public interest.
Last update: 20-07-2006