PREPARING WITNESS STATEMENT ​​​​‎‎                               

By R. Jayabalan

Pre-Merdeka and Post-Merdeka Laws

The Federal Constitution (FC) is the supreme law of the Federation of Malaysia and any law inconsistent with the FC is void to the extent of the inconsistency A recent case brought to light some unpleasant issues on the preparation of witness statements. Lawyers  have different practices on this. Our practice  over the years and proven effective as follows: 1. Interview the client in depth to identify potential witnesses.

2. Identify witnesses who would co- operate voluntarily and those who  would require subpoena.

3. Ask the client to arrange for the witness to attend a meeting with the lawyer in person.

4. Interview the witness, take down a detailed statement – in the presence of the client. 

5. Inform the witness why the need to call him, and the process involved – examination-in-chief, cross-examination and re-examination.

6. Agree on the witness allowance, travelling and accommodation arrangements for court attendance.

7. Prepare the draft witness statement.

8. Go through the draft with the witness – in the presence of the client.

9. Impress upon the witness that he is free to amend as he wishes and that he must be fully comfortable and confident with every sentence – if he is not certain or uncomfortable remove the sentence. 

10. Witness should not feel that he is being forced to say something beyond his wish.

11. There may be varying versions on certain facts between the witness and client – resolve it there and then.

12.  Inform that  the statement has to be filed in court and once filed it ought not be amended except  for very good reason.

13. When a witness is not comfortable to say certain facts  but if it requires to be said (e.g he is the best witness on that fact) and important to the client’s case then explain the law  on that matter and why it has to be said by him.

14. Go through the finalised statement with the witness again in the presence of the client and get the witness’ confirmation on the contents. 

15. Prepare the witness for potential cross-examination on every aspects of the statement and related aspects outside the statement.

16.  Email a copy to the witness or get acknowledgement of receipt in writing.

17. Witness statement need not be signed before filing as the statement is to be signed in open court.

18.  When filing send a copy to the witness and the client and inform that it has been filed and served.

19. Meet the witness 2 or 3  days before the hearing,  go through the statement again and the potential cross examination. Refamiliarise the witness with the bundle of documents. 

20. Caution the witness on the importance of consistency throughout his examination and the risk of perjury. 

21.  Advise the witness on the court etiquette, time to be in court, dress code and how to address the judge and lawyers.

22. Ensure that the witness allowance is paid and his travelling and accomodation is attended to. 

23. Meet the witness in court, show where he will be seated. If a case is going on, ask him to sit inside to  observe the proceedings to get a feel of what is to come. 

We trust the above would be of assistance to fellow lawyers.