It is undisputed that COVID cases are at scary levels and the likelihood of increased lockdowns has resulted in our justice system facing a challenge in ensuring trials continue without increasing the risk of infection. With the announcement of MCO 3.0, the Chief Registrar of the Federal Court has issued a statement that witnesses are not to attend court for Civil cases [1]. Similarly, the Inspector General of Police Secretariat (Legal) Chief, SAC Tuan Ahmad Dzaffir bin Mohd Yussof, has informed the Bar Council that witnesses for Court would need a police permit to travel inter-district or interstate but would need to provide supporting court documents like a subpoena [2].
Is there a solution?
This issue is not a new one to the Courts. Following the MCO and CMCO last year, the Chief Justice’s department alongside the Bar Council lobbied our Government to pass the Rules of Court (Amendment) 2020 [3]. Among the changes was the introduction of the new Order 33A of the Rules of Court 2012 [4]. For ease of reference, we reproduce the same here:
"Order 33A - PROCEEDINGS THROUGH REMOTE COMMUNICATION TECHNOLOGY
Application (O. 33A, r. 1)
1. Notwithstanding anything in these rules, this Order shall apply to any proceeding conducted through a remote communication technology.
Direction by the court or Registrar (O. 33A, r. 2)
2. (1) The court or Registrar may, subject to the practice direction issued in relation to such purpose, direct that any cause or matter under these rules is to be heard or any proceeding is to be conducted through a remote communication technology as approved by the court.
(2) The power conferred on the court or Registrar in paragraph (1) may be exercised on its own motion or upon application made by any party to a proceeding.
(3) Where an application is made under paragraph (2), the court or Registrar may give directions as to the further conduct of the proceedings in relation to the cause or matter.
Attendance of person, witness or prisoner as witness or party by way of remote communication technology (0. 33A, r. 3)
3. (1) In relation to the attendance of any person, witness or prisoner as witness or party, in any proceedings or the evidence to be given in person, the court or Registrar may, on being satisfied that all the conditions specified in paragraph (2) are fulfilled, direct the person, witness or prisoner as witness or party:
(a) to attend (other than to give evidence) in those proceedings, by means of a remote communication technology; or
(b) to give evidence through a remote communication technology.
(2) The conditions referred to in paragraph (1) are as follows:
(a) in the case of a person, to attend during the specified period and from a place specified by the court or Registrar using the remote communication technology;
(b) in the case of a witness, to give evidence during the specified period and from a place specified by the court or Registrar using the remote communication technology;
(c) in the case of a prisoner as a witness or a party, to attend or give evidence during the specified period and from a place specified by the court or Registrar using the remote communication technology, provided that:
(i) he is a witness or a party; and
(ii) the parties and the Officer in Charge referred to under the Prison Act 1995 [Act 537] consent to the use of the remote communication technology; and
(d) the court or Registrar is satisfied that sufficient administrative and technical facilities and arrangements are made at the place where the person, witness or prisoner as a witness or party is to make an appearance or to give evidence.
(3) Appearance and evidence given through the remote communication technology in any proceedings in accordance with a court's or Registrar's direction under paragraph (1) are taken to be appearance and evidence given in person in those proceedings and form part of the record of the proceedings of that court or before the Registrar.
What is clear is that the Court, in line with a practice direction or order from the Chief Justice, could on its own motion order that proceedings be done online. In light of the Media Statement by the Chief Registrar, it would seem that the Court is administratively empowered and encouraged to conduct proceedings online. This combined with the new Order 33A Rule 2(1) would indicate the Courts allowing for witnesses to attend virtually.
What about witnesses?
Order 33A, Rule 3(1) of the Rules of Court is clear that the Court can order for a witness to attend a hearing virtually or, give evidence virtually. Now this provision has drawn criticism from certain areas of the legal profession, most importantly on the issue of witness conduct and the advocates ability to cross-examine.
As any advocate will tell you, cross-examination is an art. The ability to undermine a witness’ testimony or to prove your own case through your opponent’s witness is crucial, especially in civil cases where the decision is made on a balance of probabilities. Therefore, imagine the advocate’s immense frustration when in the middle of a serious line of interrogation, the internet connection cuts out. That would remove all the momentum in the advocates train of questioning.
Similarly, a Judge in trial would be expected to watch out for a witness’ demeanor. This would include their speech pattern and their body language when giving testimony in court. Subtle body language cues help enable a sitting Judge decide if the witness’ testimony is credible or not. With a screen separating the Judge from the Witness, it provides opportunity for a witness to hide their nervous fidgets and create an impression of credibility. Remember, the purpose of witnesses giving testimony is because when it comes to oral evidence, it can be tested by demeanor and challenged by cross-examination. Virtual provision of evidence could potentially undermine the traditional safeguards and vouching set in place to ensure oral evidence is substantiated. Moreover, appeal courts are reluctant to overturn a trial judge’s finding of credibility[5]. So, if the judge cannot adequately determine credibility, it may cause issues in the long run at appeal stage.
These issues are provided for within the new Rules. Order 33A, Rule 3(2)(b) and (d) allows for the Court or Registrar to order that a Witness give evidence from a specified place and time and to be satisfied that the location and technical facilities in which a witness is to give testimony is sufficient for trial.
One option currently in practice is arranging for witnesses to attend at a local solicitor’s office which has equipment for remote hearing capabilities. For example, if a witness in Ipoh wishes to give testimony in a court proceeding in Malacca, he/she would have to attend to a solicitor’s office in Ipoh. At that office, he/she is to be placed in a separate room in the presence of an independent solicitor and connected to a stable internet connection.
This option provides multiple benefits such as an impartial observer, the third party solicitor, who as an officer of the Court, owes their primary duty to the Court. This way, the Court and opposing counsel can be satisfied that the witness is not being prepared and is unaided in their provision of evidence. Similarly, with a stable internet connection, it reduces the risk of the feed cutting away. Finally, in some solicitors’ office, the camera can be placed at a wider angle giving the Judge the ability to see the witness’ full body and therefore allow for the Judge to determine demeanor.
Conclusion
The use of virtual technology for witnesses to give evidence should be lauded and encouraged. Not only does this allow for trials to continue during the pandemic, reducing judicial backlog, it also allows for people to practice social distancing and adapt to the digital age. There is also the added benefit of saving paper seeing as witnesses need not print and apply for police permits to travel to court. Thus, witnesses can still attend and give evidence in civil suit proceedings.
References:
[1] Kenyataan Media Bertarikh 23.5.2021 [2] Circular 178/2021 - Application for Police Permits for Interdistrict or Interstate Travel by Witnesses to Attend Court Proceedings [3] PU(A) 351/2020 [4] Section 4 Rules of Court (Amendment) 2020 [5] William Jacks & Co (M) Sdn Bhd v S Balasingam [1996] 2 MLRA 678
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