European Commission > EJN > Taking of evidence and mode of proof > Malta

Last update: 20-07-2006
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Taking of evidence and mode of proof - Malta

 

TABLE OF CONTENTS

I. The burden of proof I.
1.
a) What are the rules concerning the burden of proof? a)
b) Are there rules which exempt certain facts from the burden of proof ? In which cases ? Is it possible to rebut these presumptions by producing evidence? b)
2. To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact? 2.
II. The taking of evidence II.
3. Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his own motion? 3.
4.
a) If the application of a party concerning the taking of evidence is approved, what steps follow? a)
b) In which cases can the court reject an application of a party to obtain evidence? b)
5.
a) What different means of proof are there? a)
b) What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions? b)
c) Are certain methods of proof stronger than others? c)
d) In order to prove certain facts, are certain methods of proof obligatory? d)
6.
a) Are witnesses obliged by law to testify? a)
b) In which cases can they refuse to give evidence? b)
c) Can a person who refuses to testify be sanctionedor forced to give evidence? c)
d) Are there persons from whom evidence cannot be obtained? d)
7. What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via new technology such as television or videoconferencing? 7.
III. The evaluation of the evidence III.
8. Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment? 8.
9. As a party to the case, will my own statement count as evidence? 9.

 

I. The burden of proof

1.

a) What are the rules concerning the burden of proof?

Burden of Proof under Maltese Law is regulated by The Code of Organisation & Civil Procedure (Chapter 12 of the Laws of Malta).  As a general principal, the onus of proof i.e. the burden of proving a fact, rests on the party alleging it.  This applies to both plaintiff and defendant.  The parties involved in the case are required to substantiate their claims and/or defences by means of evidence.  The evidence produced must be the best evidence possible.  In the eventuality that the Court believes that the evidence brought in support of any claim / defence, is irrelevant / superfluous / or is not considered as being the best evidence that can be brought forward, the Court, may disallow such evidence.

b) Are there rules which exempt certain facts from the burden of proof ? In which cases ? Is it possible to rebut these presumptions by producing evidence?

Under Maltese Procedural Law, an admission, in writing or otherwise, done before the court or some place else, is admissible as evidence against the person making such admission. An admission made upon a reference to the oath of one of the parties may be received in evidence of a fact even against the other parties to the suit. In all cases, only such part of an admission as the court may deem worthy of credit shall constitute evidence.

2. To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

Civil and criminal cases have a different measure of proof, whereby in civil cases, the Courts shall determine the proving of a fact on the balance of probabilities.  In civil cases, the Courts examine the evidence produced, with a view to determine which fact occurred according to the claim/defence brought forward. In criminal cases, the Courts need to ascertain whether the proof brought forward, beyond reasonable doubt attributes guilt to the person charged or accused.

II. The taking of evidence

3. Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his own motion?

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.

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In the interest of the best administration of justice, the Court may of its own motion, upon for instance, identifying a need to appoint an expert witness to determine a technical issue, appoint a referee to this end.  Upon such an appointment, the Court in its decree to this effect, shall state the object of the reference, fix the day and time when the referee is to conduct a physical inspection (where necessary) and give directions for the guidance of the referee in the execution of his task.  Although no definite criteria exist as to what can be done and what should be done in the best administration of justice, the Court has a wide discretionary power to call before it any person to testify in the case in dispute and/or to request the production of any document.

4.

a) If the application of a party concerning the taking of evidence is approved, what steps follow?

A particular form Malti 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.

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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.

b) In which cases can the court reject an application of a party to obtain evidence?

The Court in the exercise of its authority and function has to consider and apply correctly principles such as: “justice needs not only to be done in a swift and efficient manner but also needs to be seen being done”, and thus must be certain that the evidence is relevant to the case in question and that it is admissible. Furthermore should the Court believe that the evidence in question either is frivolous, or vexatious, or has no link with the dispute before it, or that it is not the best evidence possible or is just being requested purely as a delaying tactic may reject such an application.

5.

a) What different means of proof are there?

The Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) identifies the following menas of proof:-

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  1. Witnesses;
  2. Documents ;
  3. Referees;
  4. The carrying out of an inspection of the place (inspection in faciem loci);
  5. By admission or by reference to the oath of the other party.

b) What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

Methods of obtaining evidence from Witnesses

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:

  1. If a witness is deaf and dumb but able to write, the questions are put to him in writing; and in such case the questions and the answers are publicly read out by the registrar, and afterwards kept in the record of the cause.
  2. If the witness is deaf and dumb and unable to write, the Court appoints a suitably qualified interpreter to this end.
  3. If the witness is dumb but not deaf, or vice versa, the Court orders his examination to be conducted in such manner as may appear to it most conducive to ascertain the true testimony of the witness.
  4. If the Court does not understand the language in which the evidence is given, it appoints a qualified interpreter at the provisional expense of the party producing the witness.

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.

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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.

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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

Methods of obtaining evidence from Expert Witnesses (Referees)

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.

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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.

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c) Are certain methods of proof stronger than others?

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:

  1. the acts of the Government of Malta, signed by the Minister or by the head of the department from which they emanate;
  2. the registers of any department of the Government of Malta;
  3. all public acts signed by the competent authorities, and contained in the Government Gazette; the acts of the Government of Malta printed under the authority of the Government and duly published;
  4. the acts and registers of the courts of justice and of the ecclesiastical courts, in Malta;
  5. the certificates issued from the Public Registry Office and the Land Registry;

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.

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(1) Part of any correspondence of any civil, military, naval or air force department or of any report belonging to any such department.

d) In order to prove certain facts, are certain methods of proof obligatory?

The answer to these matters has to be seen on a case by case basis.  If for instance, the subject matter of the dispute deals with a claim over an immovable, the primary piece of documentary evidence is the public deed demonstrating the ownership or otherwise leading to such claim / defence.

6.

a) Are witnesses obliged by law to testify?

Yes.  The subpoena is a Court order issued upon the request of a party to a dispute, thus failure to testify leads to contempt of Court.  Upon failure to turn up to testify, the Court, in the light of the provisions dealing with contempt of Court, fines the witness and may also order the issuing of a warrant of escort or arrest, to compel such witness to attend for the purpose of giving evidence before it.  Nevertheless, the witness has the right to request the Court to revoke the fine imposed after giving sound reasons that lead to his failed appearance.

b) In which cases can they refuse to give evidence?

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.

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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.

c) Can a person who refuses to testify be sanctionedor forced to give evidence?

Please see answer to 6.a above.

d) Are there persons from whom evidence cannot be obtained?

Please see answer to 6.b above.

7. What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via new technology such as television or videoconferencing?

Please see answer to 5.b above.

III. The evaluation of the evidence

8. Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

The Court is obliged to ensure that the best evidence possible is brought before it by either party, couple this with the fact that the Court has the widest discretion possible in the interest for the best administration of justice and no clear cut and straight forward answer may be given to this question.  One might opine that the Court will have to weigh each and every piece of evidence on a case by case basis.

9. As a party to the case, will my own statement count as evidence?

Yes. Any of the parties to a suit, whatever his interest therein, provided the party is competent to testify according to the rules governing evidence (please see 5.a. above), the same party may give evidence, either at his own request, or at the request of any of the other parties to the suit, or even if called by the court ex officio.

Further information

  • Court services Malti - Ministry for Justice and Home Affairs

« Taking of evidence and mode of proof - General information | Malta - General information »

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Last update: 20-07-2006

 
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