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©The Sun (Used by permission)
by Chew Swee Yoke

“An inquisitorial environment is more suited to elicit the truth from children as the focus will be on the evidence being examined and in most inquisitorial countries, this examination will be done by a magistrate or specially trained police officers in the case of children.”

THE Child Witness Act 2007 (“the Act”) which has been tabled in Parliament is long overdue and would bring Malaysia in line with the US and Commonwealth countries such as Singapore, Canada, the UK, New Zealand and Australia in this area.

The description at the beginning of the Act does not specify that it applies only to criminal proceedings but the wording of various sections show that it is tailored for criminal proceedings because of the many references to the prosecutor, the accused person and child charged with any offence. This is unfortunate as it would be ideal if the law was clearly worded to apply to civil proceedings as well for example custody proceedings or divorce proceedings where it may be necessary to have child witnesses appear.

Under the Act, “child witness” is defined as “a person under the age of sixteen years who is called or proposed to be called to give evidence in any proceedings but does not include an accused or a child charged with any offence”. What this means is that a child witness is given special considerations but not a child charged with any offence. Is this fair and does it take into consideration the complexities that lead to a child committing an offence? Is a child deemed “fair game” just because he is charged with an offence?

Also, what if the accused person or child charged with the offence wishes to call a child witness to testify on his behalf? The provisions as worded seem to apply only to child witnesses called on behalf of the prosecution. Again, is this fair? It may be that a child witness can give crucial evidence in favour of the accused person or the child charged with the offence.

The objective of the Act is to reduce the trauma experienced by child witnesses in court appearances. It provides for a child witness to give evidence in the court-room but shielded by a screen between him and the accused person or a child charged with the offence or by live link or by video recording. As the law is silent on who chooses the mode of giving evidence, presumably the party that calls the child witness will choose the mode. When a child witness gives evidence in court, a screen may be put up to prevent the child from seeing or being seen by the accused or a child charged with any offence. The child witness may also give evidence without being in the court-room by live link or by video recording. “Live link” means a live TV link or other arrangement whereby the child while absent from the courtroom is able to see or hear or be seen and heard by a person in the court-room.

The video recording shall be admitted as evidence-in-chief. Examination of the child witness may be done through the court or an interpreter or an intermediary authorised by the court. The intermediary communicates the questions put to the child witness and communicates the child’s answers to the person putting the questions. He also explains the questions and answers to be understood by the child but shall not prompt or influence the child or disrupt the questioning.

The court may allow a child witness to be accompanied by an adult while giving evidence, presumably to give physical comfort and assurance to the child so as to lessen the trauma.

Formal court attire may be dispensed with, again probably to make the courtroom appear friendly and normal in cases where the child witness gives evidence in the court-room.

A child witness suffering from a disability such as physical, intellectual or sensory impairment, etc may give evidence in any other manner (not described in the Act) in which he can make it intelligible.

Effect of the Accusatorial System in Child Witnesses

Our system of justice is the accusatorial system like all others in the Commonwealth which were legacies from the British Empire. The accusatorial system of procedure gives rise to features which create the greatest difficulties for child witnesses: Confrontation and Cross-examination Accusatorial questioning can often be couched in language not familiar to the child and often can be threatening and intimidating in tone. Research has shown that in the vast majority of cases child witnesses suffer great trauma when testifying in an adult-centred adversarial environment.

Accusatorial cross-examination does not enable children to give evidence accurately and effectively. An inquisitorial environment is more suited to elicit the truth from children as the focus will be on the evidence being examined and in most inquisitorial countries, this examination will be done by a magistrate or specially trained police officers in the case of children.

Perhaps the Act should introduce an inquisitorial procedure for the taking of evidence from child witnesses.

Delay and Therapy

Child witnesses who have gone through traumatic experiences need therapy to help them recover from the emotional scars as soon as possible. However, it has been argued that as the aim of therapy is to help the child forget the incidents, it is not advisable for the child witness to undergo therapy until the court proceeding is over so that his evidence is not tainted or seen to be coached by the therapist. If this is true, then it is imperative that the Child Witness Act provides for the child witnesses to give their evidence within a reasonable time frame from the date when the offence is committed.

Chew Swee Yoke is a member of the Human Rights Committee (HRC), Bar Council Malaysia. For information on the work of the HRC, see www.malaysianbar.org.my/hrc. Send complaints of rights violations to rezib@malaysianbar.org.my. However, the committee makes no assurance that all cases will be adopted for action.

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