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Reluctant witness
06/06/2006 The Star Articles of Law: By BHAG SINGH
A PERSON may be called to go to court as a witness to give evidence. There
are different consequences and implications that arise.
A witness may be required to give evidence on a matter which he/she has
personal knowledge of or just to produce a document which is in his/her
possession.
The person who is called as a witness may feel unwilling to turn up because
the subject matter may not directly or personally involve him.
However, the need for a person to be a witness is dictated by circumstances.
The witness may have documents or facts which are relevant in deciding
issues at a trial.
It therefore becomes necessary for such a person to be called as a witness.
If he/she is willing to come forward then there would be little difficulty
in having such evidence adduced.
Otherwise, the law provides for such a person to be compelled by an order of
court to give evidence.
The document issued is called a subpoena and it orders the person to attend
court during the trial.
In most cases, the court will release the witness from further attendance
after the person has given evidence. In some cases, the release may be
conditional in that if the need arises, the witness may be subject to
recall.
When a person is himself interested in the outcome and feels that his
evidence will help to obtain a favourable outcome, he may in fact only be
too keen to attend himself. In other cases, he may be involved only as an
employee. In such a case, it would be part of his obligation to testify at
the appropriate time.
If such a person is still an employee, he will usually have little reason
not to attend as he would be doing so in the course of his work. But what if
he is no longer with the employer? Must he or need he still attend?
When such a situation arises, many former employees tend to feel that it is
not their responsibility to be involved in court proceedings anymore. The
person may no longer be an employee, but the obligation to give evidence on
matters within his personal knowledge is not imposed upon employees alone.
Whilst an employee may be familiar with has happened, not everyone who is
familiar with what has happened need be an employee. Thus, the obligation to
give evidence can be said to be a social or community obligation which
extends beyond the employment relationship.
If a person is a former employee and the events within his knowledge took
place in the course of his employment, the obligation to attend court
assumes even greater relevance. Having left the company does not mean that
he does not have to or cannot give evidence.
However, before a court issues a subpoena, it will require adequate
financial provisions to be made to cover the expenses of the person who is
to be called as a witness. This will include accommodation, travelling
expenses and subsistence costs on a reasonable basis. Thus, a person will be
reimbursed for the expenses he will incur.
A witness, however, does not usually get paid for giving evidence. This is
because it is considered a duty of every person to give evidence in order to
assist in establishing the truth. This is especially so where there exists a
dispute, so that a correct decision can be made for ensuring that justice is
done.
However, getting the court to issue a subpoena is only part of establishing
the evidence. Unless it is merely producing a document whose content is
earlier well known, a person intending to subpoena another should be aware
as to the evidence that it is intended to be adduced.
So one should not just subpoena a person because the procedure allows this
to be done. Subpoenaing a witness without being aware of what the witness
knows may destroy a person’s case. After all, the purpose of calling a
witness is always to strengthen one’s own case.
Then there are situations where a person asked to come as a witness may
demand payment beyond what the court rates provide. In such a case, the
person will still have to come if a subpoena is issued and the
court-approved payment is enclosed. However, he may be uncooperative by
claiming not to remember certain matters which are relevant .
To make such demand would actually be improper. However, it is a reality of
life that sometimes people do take advantage of other’s needs to benefit
themselves.
When this happens, the person needing the help of the witness may feel
exploited. At this stage, a decision has to be made whether to stand on high
moral ground or succumb to such demands.
This is not to say that making the payment is to ask the witness to give
false testimony. Rather, it may be regarded as giving in to the demand to
secure the witness’ cooperation.
Of course, the majority of people are honest and will assist so long as they
are reimbursed. |
