Sunday Times 2
Importance of witness to crime
View(s):Witness to crime plays the most important role in the criminal justice process. Without witnesses, there can be no case, and crime will thrive. The prevailing criminal justice system, however, in effect, accords a witness to crime a degrading position in courts of law which spreads among the community too.
Witness to crime has not been a separate subject for discussion in the history of criminal justice adjudication in this country for over two centuries since inception of the system. This topic had never been an issue to merit separate consideration during those long years. Witnesses to crime, for long, have held their place in courts in as much they were accorded the recognition and the acceptance of all others in courts. Cross examination of witnesses to crime had been relatively fair, compared to the practice today of a tortured process. It can be presumed that the courts then had held a balance.
A witness to crime requires support in pursuit of law and order, in courts as well as in the community. The media too should pay attention to this aspect with a view to promoting law and order.
Under the prevailing circumstances, tracing witnesses to crime and eliciting evidence is no easy task for the police. The nature of crimes differs as much as the attitude of witnesses differs. Each case differs from the other, and there is no way to categorise cases from a practical perspective. Yet, the importance of a witness to crime must be emphasised to the community as well.
The offender knows the importance of a witness to his crime. He can and will influence the witness in a myriad ways.
Police investigations, nevertheless, have to contend with these difficulties and collect evidence from witnesses to the crimes. This hard work is not known to others, as it is only the statements so recorded that come into reckoning.
The law that governs evidence in courts today follows a path that is not in harmony with the basic standing of witnesses to crime, as described above.
Prior to 1973, statements of witnesses made to police could not be signed. No oath or caution could be administered by the police to witnesses before recording their statements. And according to the law that prevailed then, those statements could only be used to contradict the witnesses but not to corroborate.
The Administration of Justice Law (AJL) of 1973 changed this practice. Since then caution is required to be administered by the police when recording statements of witnesses to crime and the statements are required to be signed by the witnesses. Even after the change of law, law courts permit these statements to be used only to contradict but not to corroborate. That prohibition applies only to summary cases. However, these same statements recorded by the same police officers, of the same witnesses, can now be used to corroborate in non-summary cases and indictments filed on the basis of these statements! Courts and the law continue blithely with this irregularity ignoring the need to set the course of law aright.
Lawyers take the cue set by the law courts to cross examine witnesses to infinitesimal extent in search of contradictions. The result is the devaluation of the standing of witnesses in the criminal justice system, whilst promoting the interests of others in the legal process. These aspects combine to the daunting problem of maintaining law and order in the police task.
Witnesses to crime taking a stand against bullying by eminent lawyers are extremely few and far between.
I had the privilege to witness one such incident in early nineteen sixties. The Nagoda circuit court was packed to capacity and a large crowd had gathered outside as well. I remember vividly how the Gramasevaka (GS), who was a former village headman, of Nagoda in the Galle District, reacted to Dr Colvin R. de Silva’s (CRdeS) harsh cross examination in a case against Neale de Alwis MP, for committing mischief to property in the Nagoda Police.
The GS answered in the same tone as the questioning of CR de S, and when CRdeS tried to caution him for being rude, the GS retorted that if he would ask his questions in a civilised (seelachara) manner, he would reciprocate accordingly. CRdeS did not try his antics any further with the witness whom he then onwards addressed as ‘grama niladhari mahattayo’. The magistrate too was fair by the GS. That was then.
The focal point of this article at best may be served if the matter of witness to crime in relation to law and order be brought to the attention of the public domain with a view to set the course of law aright.
(The writer is a Retired Senior Superintendent of Police. He can be
contacted at seneviratnetz@gmail.com)