Online Reporter
Trust Maanda
Legal Position
WITNESSES are those people who have evidence that is required to prove an issue before a court of law.
Their evidence must be admissible evidence, which is not excluded by any basis that disqualifies some evidence from being admitted.
In a trial, the prosecutor calls his or her witnesses, who testify to prove the allegations that the State wants to prove against the accused. An accused is entitled to call his or her witnesses as well.
Either party desiring to compel the attendance of any person to give evidence or to produce any books, papers or documents in any criminal case may obtain from the Clerk of Court the process of the court for that purpose.
When the accused desires to have any witnesses subpoenaed and satisfies the Clerk of Court that he or she is unable to pay the necessary costs and fees; and that such witnesses are necessary and material for his or her defence, the Clerk ofCcourt shall subpoena such witnesses.
In any case where the Clerk of Court is not so satisfied, he or she shall, upon the request of the accused, refer the application to the magistrate who may grant or refuse such application for the witness to be subpoenaed.
Where the witness is to be brought to court, service of subpoenas shall be effected in the manner provided by the rules of the court.
Once subpoenaed, every witness is duty bound to attend and give evidence at any criminal trial and to remain in attendance throughout the trial, unless excused by the court. A witness must remain in attendance and can only be absent when the court has excused the witness.
The court may also, on its own accord at any stage of the trial, subpoena any person as a witness or examine any person in attendance though not subpoenaed as a witness, or may recall and re-examine any person already examined. The court may subpoena and examine or recall and re-examine any person if his or her evidence appears to it essential to the just decision of the case.
This witness is one that neither of the parties have called.
It is a witness called by the court, which wishes to ascertain certain facts.
It is an offence not to give evidence when called upon to do so.
When any witness required by the court to give evidence, refuses to be sworn or, having been sworn, refuses to answer such questions as are put to him or her or refuses or fails to produce any document or thing which he or she is required to produce, without any just excuse for such refusal or failure, the court may adjourn the proceedings for any period not exceeding eight days, and may in the meantime, by warrant, commit the person so refusing or failing to a prison, unless he or she sooner consents to do what is required of him or her.
If such a person has been committed upon being brought up at the adjourned hearing again refuses or fails to do what is so required of him or her, the court, if it sees fit, may again adjourn the proceedings and commit him or her for another period of eight days, and so again from time to time until such person consents to do what is required of him or her.
A court may lawfully require witness, to enter into recognisance under condition that the witness shall at any time within 12 months from the date thereof appear and give evidence at the trial upon being served with a subpoena.
The court may, in exercising its powers give conditions which it thinks necessary or desirable in the interests of justice, such as the surrender by the witness of his or her passport, the times and places at which, and the persons to whom, the witness shall personally present himself or herself; the places where the witness is forbidden to go, the prohibition of communication by the witness with the accused or any other witness or any other matter relating to the conduct of the witness.
Any recognisance entered into shall be liable to be forfeited in the court before which the trial was bound to be held, if the conditions are breached by the witness.
A court on information that a witness is about to abscond, may issue a warrant for the arrest of such person, if he or she is likely to give material evidence before any court in respect of any offence.
A person who is about to abscond without giving evidence may be arrested without a warrant if it occurs to the peace officer the the ends of justice will otherwise be defeated, and will be kept until the time at which he is required to give evidence.
Being a witness is a duty and failure to perform that duty will make you liable to punishment.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646 or [email protected].
