How To Produce an Accused Witness Under Criminal Proceedings?

When a person is called for a defence, a potential witness could be from alibi witness, witness offered by the prosecution and the accused potential witness.

Alibi Witness

An alibi witness is a witness that a criminal defendant calls upon to establish that they were somewhere other than at the scene of the crime at the time it occurred. In order to put forward a defense of alibi, he shall put forward a notice of his alibi either during case management or he may adduce evidence in support of an alibi at any time during the trial subject to the following conditions:

  1. the accused has given a written notice of the alibi to the public prosecutor; and
  2. the public prosecutor is given a reasonable time to investigate the alibi before such evidence can be adduced.

The notice required under this section shall include particulars of the place where the accused claims to have been at the time of the commission of the offence with which he is charged, together with the names and addresses of any witnesses whom he intends to call for the purpose of establishing his alibi

Witness offered by the prosecution

Witness offered by the prosecution may only happened when all the witness from whom statements has been taken should be brought to the court by the prosecution except those whose evidence will clearly and obviously throw no light on the case: any witness not so brought to court must be made available to the accused should he desire to call him – Teh Lee Tong v Rex [1956] MLJ 194

The accused potential witness

How to secure the attendance of potential witness? Here are some of the available steps and procedures that can be invoked in order to secure the attendance of a potential witness are as follows:

  1. issuing a summons under s. 34(2) of the criminal procedure code (cpc) or requesting one to be issued by the court.
  2. invoking the inherent powers of the police as stipulated in s. 111(1) of the cpc to request the said witness to report to the nearest police station on a daily or weekly basis.
  3. requesting from the courts whilst investigations were still ongoing, the imposition of restrictions under s. 111(2) of the cpc.
  4. issuing a summons under s. 35 of the cpc to important witnesses well before any suspects were charged in court.
  5. applying under s. 36 of the cpc to leave summonses at the last known address of the witness.
  6. having exhausted the above steps, to then issue a warrant of arrest under s. 47 of the cpc.
  7. if having failed to effect arrest on the witness after issuing the warrant of arrest, to request the court to issue a warrant of arrest under s. 49 of the cpc.
  8. requiring the person to execute a bond pursuant to s. 118 cpc.
  9. should any of the above steps be still unsuccessful, to then place an advertisement in the local newspapers.
  10. utilising the provisions of s. 404 of the cpc which allows for a bond to be executed against the witness with a guarantor to ensure attendance at court.