Describe the types of inquest practiced in Malaysia
Define summons
List the formalities in serving of summons
Describe the steps of recording evidence in the court of law
Describe the conduct of a doctor in the witness box
What is dying declaration
Describe the procedure of recording of dying declaration
Inquest
Latin origin: Inquerere
en = in
quaerere = ask / seek
Definition: Inquiry or investigation into the cause of death
Indications for Inquest
Suicide
Homicide (killed by another person, animal, machinery, or accident)
Suspicious circumstances suggesting an offense
Unidentified body where the cause of death is unknown
Types of Inquests
Police Inquest
Magistrate Inquest
Coroner’s Inquest
Medical Examiner System
Procurator-Fiscal System (Scotland)
Police Inquest
Legal Basis: Section 329 Criminal Procedure Code, Malaysia
Conducted by: Officer in charge of a police station or a police officer not below the rank of sergeant (Investigating Officer - IO)
Police Inquest - Procedure
The officer immediately proceeds to the location where the deceased's body is found.
Conducts an investigation.
Prepares a report including:
Apparent cause of death
Description of wounds
Weapon or instrument used (if any)
Identification of the person who caused the death (if known)
Manner in which the death occurred
The report is signed by the police officer who prepared it.
The officer in charge of the police district forwards the report to the Magistrate within whose jurisdiction the body was found.
If no foul play is suspected, the body is handed over to the relatives.
If foul play is suspected, the body is moved to the nearest Government hospital or another suitable place for a post-mortem examination by a Government Medical Officer.
Magistrates Inquest
Indications
Death by police firing
Death in police custody
Death in prison
Death in a mental hospital
Exhumation
Coroner’s Inquest
Considered superior to police inquest.
Coroner is a Session Court Judge.
Circumstances:
Violent or unnatural death
Death in custody
Death on Government premises
Death caused by public officers
It is a court of inquiry, not a trial.
The coroner does not have the power to punish for the crime itself.
The coroner can punish for contempt of their court.
Medical Examiner System
Prevalent in the USA and UK
A medically qualified person investigates the death.
The Medical Examiner conducts post-mortem examinations and visits the scene of the crime to gather firsthand information about the circumstances of death.
Procurator Fiscal System
Used in Scotland
The Procurator Fiscal is a public prosecutor.
The Procurator Fiscal investigates all sudden and suspicious deaths and conducts fatal accident inquiries; they also handle criminal complaints against the police.
Summons / Subpoena
Origin: Sub = under; Poena = penalty
Definition: A legal document issued by a court to notify a defendant that a case has been filed against them and to appear before the court at a specified date and time.
Essentials of Summons
Must be in writing
Must be in duplicate form
Must be signed by the presiding officer of the court
Must mention the time and place of the hearing
Must bear the seal of the court
Serving of the Summons
Usually served by a police officer
Served personally on the person summoned by showing them the original summons.
Delivering a copy to them under the seal of the Court
Receipt for the copy acknowledged by signing on the back of the original summons
If the person cannot be found, a copy may be left with an adult member of their family or with their servant residing with them or pasted on a prominent place outside the house.
Recording Evidence in the Court of Law
Oath/Solemn affirmation
Examination in chief
Cross-examination
Re-examination in chief
Re-cross-examination
Questions by Judge
Oath/Solemn Affirmation
The first step in recording evidence.
Wording: “I do (Swear in the name of God) / (Solemnly Affirm) that what I shall state shall be the truth, the whole truth, and nothing but the truth.”
If a witness does not believe in God, they must make a solemn affirmation.
After taking an oath, a witness is legally bound to speak the truth.
Giving false evidence under oath is termed Perjury.
Examination in Chief (Direct Examination)
The first examination of a witness.
Questions are asked by the lawyer for the side that summoned the witness.
In criminal cases, the burden of proof is always on the prosecution, and the accused is presumed innocent until proven guilty.
Leading questions are not allowed.
Objectives
To elicit all relevant, convincing medical facts.
To elicit the conclusion that the doctor has drawn from the facts.
Cross Examination
The witness is questioned by the lawyer for the opposing party.
The defense witness is cross-examined by the public prosecutor.
Leading questions are allowed.
Objectives
To elicit facts favorable to the lawyer's case.
To test the accuracy of statements made by the witness.
To modify or explain what has been said.
To develop new or odd facts.
To discredit the witness.
To remove any undue emphasis that may have been given to any of them.
Re Examination (Re-Direct examination)
Conducted by the lawyer for the side that called the witness.
Objectives:
To correct any mistake or to clarify or add details to the statement made by the witness in cross-examination.
Leading questions are not allowed.
The opposing lawyer has the right to re-cross-examination on any new points raised.
Re-Cross Examination
Resumption of cross-examination by the original cross-examiner to respond to matters that may have arisen during the re-examination in chief of a witness.
Questions by Judge
The judge may ask any question, in any form, about any fact, relevant or irrelevant, at any stage of the examination.
The judge is empowered to recall or re-examine any witness already examined.
Conduct and Duties of Doctor in the Witness Box
Dress well, modestly, and always be on time.
Do not discuss the case with anyone in the court except the lawyer by whom you were asked to testify.
Never attempt to memorize. The law allows refreshing your memory from copies of reports already submitted or from the case notes and similar records made at the time of examination.
Speak slowly, distinctly, and audibly so that the judge can record your evidence.
Look people in the eye when you speak to give the impression of honesty.
Use simple language, avoiding technical or medical terms to the best of your ability.
Speak with assurance.
Be confident but not overconfident or arrogant.
Be polite, pleasant, and courteous to the lawyers.
Don’t underestimate the medical knowledge of the lawyers.
Don’t lose your temper. An angry witness is often a poor witness.
Defense lawyers may irritate the witness with unfair questions. Remain calm and disagree firmly and repeatedly if you don’t agree.
If you believe that the question is unfair, look at your lawyer before answering. If they fail to object, turn to the Judge and ask whether you should answer the question.
Listen carefully to the questions. Do not hesitate to ask for the question to be repeated if you do not understand it.
Consider all aspects of the question before answering it.
Avoid any insulting remarks when asked to comment upon the competence of a colleague. Say no comment if you don’t wish to make any statement.
Don’t volunteer any information beyond that asked for in the question.
Dying Declaration
Definition
According to Section 32 (1) (a) of the Malaysian Evidence Act, a statement made by a person as to the cause of their death or any of the circumstances of the transaction that resulted in their death, in cases where the cause of that person’s death comes into question, is a dying declaration.
Such a statement is relevant whether the person who made it was or was not, at the time it was made, under the expectation of death.
Basis: Dying declaration is based on the maxim “Nemo moriturus praesumitur mentire,” i.e., a man will not meet his maker with a lie in his mouth.
Who Can Record a Dying Declaration?
It is preferred that the declaration be written in the language the patient understands and speaks.
It is best that it is recorded by the magistrate, but if there is no time to call the magistrate due to the deteriorating condition of the victim, it can be recorded by anybody, e.g., a public servant like a doctor, or any other person.
Form of Dying Declaration
Before recording a dying declaration, the mental fitness to give the statement must be certified by the Medical Officer.
The best form of dying declaration is in the form of questions and answers.
If it is in the form of narrations, it is still good because nothing is being prompted, and everything is coming as such from the mind of the person making it.
If a person is not capable of speaking or writing, they can make a gesture in the form of yes or no by nodding, and even such a type of declaration is valid.
Whenever it is being recorded in the form of questions and answers, precautions should be taken so that exactly what questions are asked and what answers are given by the patient are written.
Dying Declaration Validity
If the victim dies, the statement is considered a dying declaration.
If the victim survives, their statement cannot be used as a Dying Declaration; it is used as corroborative evidence.
Incomplete List of Questions
What is an inquest?
Enumerate various types of inquests.
List the indications for inquests.
Describe the types of inquest practiced in Malaysia.
Describe police inquest.
Enumerate indications for magistrate inquest.
What is a summons?
List the formalities in serving of summons.
Describe the steps of recording evidence in the court of law.
What is a dying declaration?
Describe the procedure of recording a dying declaration. These questions serves as a guide to recap the chapter.