BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART III OF MATTERS APPLICABLE TO ALL CRIMINAL TRIALS
Title I Of Witnesses and Experts
Sub-title I Of Witnesses
629. (2) The court shall explain to the witness the obligation of the oath if, on account of his age or for other reasons, it appears doubtful whether he understands such obligation; and if, notwithstanding such explanation, the court shall deem it necessary that the witness, before giving evidence, be further instructed as to the consequences of false testimony, the court may, if it considers the deposition of such witness to be important for the ends of justice, adjourn the trial to another day, and, should the case be before the Criminal Court, discharge the jury.
630. No person shall be excluded from giving testimony for want of any particular age; it shall be sufficient that the court be satisfied that the witness, though not of age, understands that it is wrong to give false testimony.
631. (1) A witness professing the Roman Catholic faith shall be sworn according to the custom of those who belong to that faith; and a witness not professing that faith shall be sworn in the manner which he considers most binding on his conscience.
(2) The provisions of this article shall apply in all cases in which an oath is administered.
632. The form of oath to be administered to witnesses shall be the following:
You A. B. do swear (or do solemnly affirm) that the evidence which you shall give, shall be the truth, the whole truth, and nothing but the truth. So help you God.
633. (1) No objection to the competency of any witness shall be admitted on the ground that he was the party who laid the information or made the complaint, or that he was the party who made the report or the application in consequence of which proceedings were instituted, or that he is, by consanguinity or affinity, or by reason of any contract, employment or otherwise, in any manner related to or connected with the party above referred to, or with the person charged or accused; but in every such case, the witness shall be heard, and those who have to judge of the facts, being fully persuaded and convinced of the veracity of the testimony, shall act upon such testimony in the same full and ample manner, as if such facts had been proved by an extraneous person not related or connected as aforesaid.
(2) Nevertheless, it shall lie in the discretion of the court, regard being had to the degree of consanguinity, the reluctance to give evidence against the husband or wife, against an ascendant or a descendant, or against a brother, sister, uncle, or nephew, and to other particular circumstances of the case, not to compel a witness to give evidence if he be unwilling to depose against a person related to him in any of the said degrees.
634. (1) The party charged or accused shall, at his own request, be admitted to give evidence on oath immediately after the close of the prosecution, saving the case where the necessity of his evidence shall arise also at a subsequent stage, or the court sees fit to vary the order of the evidence; and such party may be cross-examined by the prosecution, notwithstanding that such cross-examination would tend to incriminate him as to the offence charged:
Provided that the failure of the party charged or accused to give evidence shall not be made the subject of adverse comment by the prosecution.
(2) The provisions of the law relating to witnesses shall apply to the accused who gives evidence on oath.
Exception. (3) The provisions of subarticle (1) shall not apply to cases on appeal.
635. (1) Notwithstanding the provisions of article 633, the wife or husband of the party charged or accused cannot be admitted to give evidence either in favour of or against such party, except -
(a) in the case of offences committed against the witness, or against his or her ascendants or descendants;
(b) in the case of offences against the provisions of the White Slave Traffic (Suppression) Ordinance, where the spouse of the party charged or accused is a person on whom or in respect of whom the offence is committed or is a person on the earnings of whose prostitution the party charged or accused has lived;
(c) at the request of the party charged or accused for the evidence of his wife or her husband, if such party is himself or herself admitted to give evidence on oath according to the provisions of the last preceding article.
(2) The provisions of this article shall also apply where the husband or wife of the party charged or accused is a witness for or against any other person who is tried jointly with such party.
636. No objection to the competence of any witness shall be admitted on the ground -
(a) that from his own confession or otherwise it appears that he has been guilty of an offence or that he has been in any manner convicted, sentenced, censured or punished by any court or other authority; or
(b) that he was charged with the same offence in respect of which his deposition is required, when impunity was promised or granted to him by the Government for the purpose of such deposition; or
(c) that he is interested either in the issue in regard to which his deposition is required or in the event of the suit.
637. Any objection from any of the causes referred to in articles 630, 633 and 636, shall affect only the credibility of the witness, as to which the decision shall lie in the discretion of those who have to judge of the facts, regard being had to the demeanour, conduct, and character of the witness, to the probability, consistency, and other features of his statement, to the corroboration which may be forthcoming from other testimony, and to all the circumstances of the case.
638. (1) In general, care must be taken to produce the fullest and most satisfactory proof available, and not to omit the production of any important witness.
(2) Nevertheless, in all cases, the testimony of one witness if believed by those who have to judge of the fact shall be sufficient to constitute proof thereof, in as full and ample a manner as if the fact had been proved by two or more witnesses.
639. (1) Notwithstanding the provisions of the last preceding article, a person may not be convicted of calumnious accusation, perjury or false swearing, solely upon the evidence of one witness contradicting the fact previously stated on oath by the person charged or accused; but such person charged or accused may be convicted on the evidence of a single witness, when such evidence is corroborated in some circumstance which is material to establish the alleged crime by any other proof duly adduced.
(2) Nor may a person be convicted of a crime against the safety of the Government, other than a crime under article 55, solely upon the evidence of one witness; but in such case it shall be sufficient if one witness proves one fact and another witness proves another fact, both such facts being material to establish the crime.
(3) Where the only witness against the accused for any offence in any trial by jury is an accomplice, the Court shall give a direction to the jury to approach the evidence of the witness with caution before relying on it in order to convict the accused.
640. In the examination of a witness who is deaf and dumb, or deaf only, or dumb only, the rules established in article 451 as to the manner of communicating with an accused person who is deaf and dumb, or dumb only, or deaf only, shall be observed.
641. In general, no person who has been present in court during the hearing of a cause may be produced as a witness in such cause:
Provided the court may in its discretion dispense with this rule in particular cases, if it sees sufficient reason for so doing.
642. (1) Advocates and legal procurators may not be
compelled to depose with regard to circumstances knowledge whereof is derived from the professional confidence which the parties themselves shall have placed in their assistance or advice.
(2) The same rule shall apply in regard to those persons who are by law bound to secrecy respecting circumstances on which evidence is required.
643. No witness may be compelled to answer any question which tends to expose him to any criminal prosecution:
Exception. Provided that, in the case of a prosecution under article 338(h), on a charge of providing the place for the playing of games of chance for money or money’s worth, or of abetting such games, any person who had taken part in or had been a partner of any player at any such game, whose evidence is required in support of such charge as aforesaid, shall be compellable to answer any question respecting that charge, notwithstanding that the answer thereto will expose him to criminal prosecution; but in any such event, any person who shall have given evidence in respect of such charge, and who shall have made a true and faithful statement touching such charge, to the best of his knowledge, shall thereupon obtain from the court a certificate to that effect, and he shall, in consequence, be exempted from all punishments in respect of his participation in the games forming the subject-matter of the charge upon which he gave evidence as witness.
644. It is left to the discretion of the court to determine, in each particular case, whether a witness is bound or not to answer some particular question, on the ground that the answer to such question might tend to expose his own degradation.
645. The provisions of articles 570, 574, 578, 579, 580, 583, 584, 585, 586, 590, 592, 598, 599, article 602(1) and article 605 of the Code of Organization and Civil Procedure shall also apply to the courts of criminal justice and the said articles 570, 574, 583, 590, and 592 shall moreover apply to any proceedings under Title II of Part II of Book Second of this Code.
646. (1) Subject to the ensuing provisions of this article, witnesses shall always be examined in court and viva voce.
(2) The deposition of witnesses, whether against or in favour of the person charged or accused, if taken on oath in the course of the inquiry according to law, shall be admissible as evidence:
Provided that the witness is also produced in Court to be examined viva voce as provided in subarticle (1) unless the witness is dead, absent from Malta or cannot be found and saving the provisions of subarticle (8):
Provided further that where the witness is a minor under sixteen years of age and an audio and video-recording of the testimony of the minor is produced in evidence the minor shall not be produced to be examined viva voce unless the Court otherwise directs for a reason which arises after the date of the said testimony of the minor and considered by the Court to be in the interest of the administration of justice and the discovery of the truth.
(3) Any declaration shall be admissible as evidence whenever the same is made by any person who is about to die and who is conscious of the nearness of death, except where the declarant dies under a sentence of the law.
(4) Any procès-verbal may be produced as evidence in terms of article 550.
(5) The deposition of any parish priest or of any other clergyman acting in his stead, or of any other witness examined in the course of the inquiry, as to the authenticity of parochial acts or registers made or kept by such parish priest or clergyman, and relating to births, marriages, or deaths, or as to the authenticity of copies of such acts or registers, or of extracts therefrom, or as to the fact that the accused is the person mentioned in such acts, registers, copies or extracts, may also be produced as evidence.
(6) The deposition of any notary in Malta or of any other witness examined in the course of the inquiry, as to the authenticity of the acts or registers made or kept by such notary, or as to the authenticity of copies of such acts or registers or extracts therefrom, or as to the fact that the accused is the person mentioned in such acts, registers, copies or extracts, is also admissible as evidence.
(7) Notwithstanding the provisions of this Code or of any other law, a certificate purporting to be issued by a registered medical practitioner or registered dental surgeon concerning his examination of any person, whether alive or dead, or concerning any bodily harm suffered by, or any physical or mental infirmity afflicting, any person, shall be admissible as evidence and shall, until the contrary is proved, be evidence of its contents, provided the certificate bears the clearly legible stamp of the medical practitioner or registered dental surgeon issuing it showing his name, professional qualifications, expertise and address and provided that such certificate is confirmed by the affidavit of the medical practitioner or the dental surgeon, as the case may be: provided further that it shall be lawful for either of the parties to produce the said medical practitioner or the said dental surgeon, as the case may be, for the purpose of examining him in court and viva voce, as well as for the court ex officio to require such examination.
(8) The deposition of any registered medical practitioner or registered dental surgeon annexed to a proces-verbal, or of any such medical practitioner or dental surgeon examined in the course of the inquiry, in relation to his examination of any person, whether alive or dead, or in relation to any bodily harm suffered by, or any physical or mental infirmity afflicting, any person, shall be admissible as evidence without the need of producing the said medical practitioner or dental surgeon in court as provided in the proviso to subarticle (2): provided that, unless the witness is dead, absent from Malta or cannot be found, it shall be lawful for either of the parties to demand, or for the court ex officio to require, that such witness be again examined in court and viva voce.
(9) The validity of the said acts and their admissibility may not be impugned on the ground that it does not appear from the acts themselves that they have been made or received on oath or with any other formality prescribed by law, if the taking of any such oath or the observance of any such formality be proved in some other manner.
(10) It shall be lawful for the Attorney General, as well as for the accused, to demand that a ruling be given by the court, before the hearing of the case commences, as to whether the deposition of any witness is to be admitted, in terms of the provisions of subarticle (2).
(11) Where it is alleged that a witness is dead, absent or cannot be found, it shall be lawful for the court to consider the allegation proved by the sworn report of the marshal or other executive officer to the effect that he has ascertained that such witness is dead or absent, or that he has made the necessary inquiries and has been unable to find him.
647. (1) If it shall be necessary to examine any person who either through infirmity or old age is unable to appear in court, such person shall be examined by the court, or, if the court so orders, by a member of the court, in the place of his or her abode:
Provided that the court may delegate the taking of the evidence of any such witness to one of the magistrates for the Island in which the witness resides, or to a judicial assistant.
(2) When the evidence required is that of a person who does not reside in the Island in which the proceedings are taking place and it is represented to the court that such person is about to leave Malta, the court may delegate the taking of the evidence to one of the persons to whom the taking of evidence may be delegated under subarticle (1); and in the case of a witness who is to be examined in Gozo or Comino, the court may also, if the circumstances so warrant and the Attorney General does not object, authorise the registrar to take such evidence and administer the necessary oath.
(3) The party charged or accused is entitled to be present at the examination.
(4) The evidence taken in accordance with the provisions of this article shall be read out in court, and a note to that effect shall be entered in the record.
647A. Without prejudice to the provisions of articles 646 and 647, the court may, if it deems it proper so to act, allow for the audio-recording or for the video-recording of any evidence required from a witness as aforesaid, in accordance with such codes of practice as the Minister responsible for justice may, by regulations, prescribe.
647B. Pursuant to and in accordance with any treaty, convention, agreement or understanding between Malta and another country or which applies to both such countries or to which both such countries are a party, procedural documents or any act of the proceeding may be sent directly by post to a person who is in the territory of the foreign country in a language which that person understands:
Provided that procedural documents shall be accompanied by a report indicating to the said person the remedies available and that information about his rights and obligations concerning the document may be obtained from the issuing authority or from another competent authority in Malta.
648. In order to identify any person whose identity is required to be proved, or in order to identify any object to be produced in evidence, it shall not, as a rule, be necessary that the witness should recognize such person from among other persons, or pick out such object from among other similar objects, unless the court, in some particular case, shall deem it expedient to adopt such course for the ends of justice.
649. (1) Where the Attorney General communicates to a magistrate a request made by a judicial, prosecuting or administrative authority of any place outside Malta or by an international court for the examination of any witness present in Malta, or for any investigation, search or/and seizure, the magistrate shall examine on oath the said witness on the interrogatories forwarded by the said authority or court or otherwise, and shall take down the testimony in writing, or shall conduct the requested investigation, or order the search or/and seizure as requested, as the case may be. The order for search or/ and seizure shall be executed by the Police. The magistrate shall comply with the formalities and procedures indicated in the request of the foreign authority unless these are contrary to the public policy or the internal public law of Malta.
(2) The provisions of subarticle (1) shall only apply where the request by the foreign judicial, prosecuting or administrative authority or by the international court is made pursuant to, and in accordance with, any treaty, convention, agreement or understanding between Malta and the country, or between Malta and the court, from which the request emanates or which applies to both such countries or to which both such countries are a party or which applies to Malta and the said court or to which both Malta and the said court are a party. A declaration made by or under the authority of the Attorney General confirming that the request is made pursuant to, and in accordance with, such treaty, convention, agreement or understanding which makes provision for mutual assistance in criminal matters shall be conclusive evidence of the matters contained in that certificate. In the absence of such treaty, convention, agreement or understanding the provisions of subarticle (3) shall be applicable.
(3) Where the Minister responsible for justice communicates to a magistrate a request made by the judicial authority of any place outside Malta for the examination of any witness present in Malta, touching an offence cognizable by the courts of that place, the magistrate shall examine on oath the said witness on the interrogatories forwarded by the said authority or otherwise, notwithstanding that the accused be not present, and shall take down such testimony in writing.
(4) The magistrate shall transmit the deposition so taken, or the result of the investigation conducted, or the documents or things found or seized in execution of any order for search or/and seizure, to the Attorney General.
(5) For the purposes of subarticles (1) and (3) the magistrate shall, as nearly as may be, conduct the proceedings as if they were an inquiry relating to the in genere but shall comply with the formalities and procedures indicated by the requesting foreign authority unless they are contrary to the fundamental principles of Maltese law and shall have the same powers, or as nearly as may be, as are by law vested in the Court of Magistrates as court of criminal inquiry, as well as the powers, or as nearly as may be, as are by law conferred upon him in connection with an inquiry relating to the "in genere": provided that a magistrate may not arrest any person, for the purpose of giving effect to an order made or given under article 554(2), or upon reasonable suspicion that such person has committed an offence, unless the facts amounting to the offence which such person is accused or suspected to have committed amount also to an offence which may be prosecuted in Malta.
(5A) If the request cannot, or cannot fully, be executed in accordance with the formalities, procedures or deadlines indicated by the requesting foreign authority, the requesting authority shall be informed indicating the estimated time within which or the conditions under which execution of the request may be possible.
(6) Where the request of the foreign authority is for the hearing of a witness or expert by videoconference, the provisions of subarticles (7) to (12), both inclusive, shall apply.
(7) The magistrate shall summon the person to be heard to appear at the time and place equipped with videoconference facilities appointed for the purpose by the magistrate. The magistrate shall give effect to any measures for the protection of the person to be heard which the Attorney General may declare to have been agreed upon with the requesting foreign authority.
(8) The magistrate shall conduct the hearing and where necessary the magistrate shall appoint an interpreter to assist during the hearing. The magistrate present shall ensure that the person to be heard is identified and that the proceedings take place and continue at all times in conformity with the fundamental principles of the law of Malta.
(9) The person to be heard may claim the right not to testify which would accrue to him or her under the law of Malta or under the law of the country of the requesting foreign authority.
(10) Subject to any measures for the protection of the person to be heard referred to in subarticle (7), the magistrate shall on the conclusion of the hearing draw up minutes indicating the date and place of the hearing, the identity of the person heard, the identities and functions of all other persons participating in the hearing, any oaths taken and the technical conditions under which the hearing took place. The document containing the record of the minutes shall be transmitted to the Attorney General to be forwarded to the requesting foreign authority.
(11) The following shall mutatis mutandis apply to the person to be heard under the provisions of subarticle (6):
(a) the provisions of article 522, where the person to be heard refuses to testify when required to do so by the magistrate;
(b) the provisions of articles 104, 105, 107, 108 and 109, as the case may be, where the person to be heard does not testify to the truth, for this purpose the proceedings before the foreign authority shall be deemed to be proceedings taking place in Malta and the person to be heard shall be deemed to be a person testifying in those proceedings. For the purpose of determining the applicable punishment as may be necessary in proceedings for perjury under this subarticle the criminal fact being inquired into or adjudicated by the requesting foreign authority shall be deemed to be liable to the punishment to which it would have been liable had the same fact taken place in Malta or within the jurisdiction of the same Maltese criminal courts.
(12) The provisions of subarticles (6) to (11), both inclusive, shall apply where the person to be heard is a person accused in the country of the requesting foreign authority provided that the hearing shall only take place with the consent of the person to be heard and that all the rules of evidence and procedure which would apply to the testimony of a person accused in criminal proceedings in Malta would also apply to the testimony of the person accused to be heard under this article.
(13) The provisions of this article shall also apply mutatis mutandis where the request of the foreign authority is for the hearing of a witness or expert by telephone conference: provided that the witness or expert consents to the hearing.
(14) Where the Attorney General has made a declaration as provided in subarticle (2), foreign officials designated by the foreign authority or international court which made the request shall be entitled to be present for the examination of witnesses or when investigative measures are being taken.
Procedure for witness testimony - national proceedings
EDIT.