Amended law on children’s testimony may compromise fair trial, says lawyer

 

The Evidence of Child Witness Act 2007 was amended last year to prohibit “improper” questions to witnesses below the age of 18 years. (File pic)

PETALING JAYA: An amendment to the law has put accused persons in a disadvantageous position when cross-examining child witnesses in criminal cases, a lawyer said.

Salim Bashir said cross-examination is a hallmark of the adversarial system and a tool designed to expose testimonial infirmities.

“Lawyers must ensure their clients’ cases are presented fully and fearlessly, and with vigour,” he told FMT.

Salim was commenting on an amendment passed by Parliament last year to the Evidence of Child Witness Act 2007 which gives a trial court power to prohibit “improper” questions posed to witnesses below the age of 18 years.

The amendment introduced a new Section Clause 6B(1), which reads:

“The Court shall prohibit any improper question to the child witness which appears to the Court to be — misleading or confusing; insulting, intimidating, humiliating, harassing, annoying, offensive, oppressive or needlessly repetitive; belittling in its manner or tone or otherwise inappropriate; or of no basis other than a stereotype based on the child witness’ sex, race, culture or ethnicity, age or disability.

It cannot be denied that giving evidence in court is undoubtedly a challenge for children, said Salim.

“However, there is a strong need to balance the scale of the criminal justice system.

“The focus should not be only on placing emphasis on a child victim’s comfort but also on the right of the accused for a fair trial,” he said.

Lawyer K A Ramu said judges in the past would caution counsel against going overboard when cross-examining children who are victims of crime or eyewitnesses.

“I do not see the rationale for a written law to put in pre-conditions when judges in the past would guide parties to put questions to witnesses in a comfortable manner,” he added.

Ramu said this issue could be a ground for appeal. Convicted persons could argue that they were denied a fair trial, he added.

However, lawyer A Srimurugan said children are vulnerable witnesses, especially if they are victims of violent crimes.

“They would have been traumatised and the law was enacted to protect them. It was not intended to give any unfair advantage to the prosecution,” he added.

Srimurugan said the court will look into the totality of the facts of the case before deciding whether to acquit or convict an accused person. FMT on WhatsApp, Google news and Telegram

He said studies have also shown that children were unlikely to concoct a story in favour of a party. - FMT