Witnesses in Court

Hall 20, Courts of Justice, Valletta, Malta

Witness evidence in Maltese civil procedure is governed, in core part, by Sub-title I of Title IV of the Code of Organization and Civil Procedure, Chapter 12 of the Laws of Malta (COCP). Articles 563 onwards provide a structured scheme that begins with competency and admissibility, proceeds to the mechanics of summoning and attendance, and culminates in a set of rules on examination, the form of questioning, privileges, and evidentiary exclusions. The regime reflects a pragmatic principle. As a starting point, Maltese law adopts broad admissibility, coupled with judicial control over the reliability, fairness, and propriety of the evidence elicited in court.

The general rule on competency is stated in article 563: all persons of sound mind are admissible as witnesses unless there are objections against their competency. The formulation is inclusive, and the disqualifying criterion is not status or interest, but lack of mental soundness or a legally recognised objection. In this sense, Maltese law places competency and credibility on different planes. Competency concerns whether a person may testify at all; credibility concerns what weight a court should attribute to that testimony. This separation is confirmed by article 567, which expressly provides that no objection to competency shall be admitted on the ground that the witness is interested in the issue or in the event of the suit, saving objections touching credibility. A witness may therefore be heard even where he has a clear personal stake, but the adverse party remains free to challenge the reliability of his evidence through cross-examination and impeachment mechanisms.

Age is not, of itself, a bar. Article 564 provides that whatever may be the age of a witness, he is admissible provided he understands that it is wrong to give false testimony. The legal threshold is thus functional and moral-cognitive rather than chronological. The court’s concern is whether the witness understands the obligation to tell the truth. This provision is especially relevant in disputes involving family relationships, neighbourhood issues, boundaries, or day to day facts where children may have directly perceived relevant events. In practice, it places responsibility on the court to ensure that the witness meets the minimum understanding required for testimony to be meaningful and for the oath to retain its normative force.

The parties themselves are competent to give evidence. Article 565(1) states that any party to a suit, whatever his interest, shall be competent to give evidence at his own request, at the request of any other party, or if called by the court ex officio. Article 565(2) adds that the COCP provisions respecting witnesses apply to such party. This matters because it confirms that the party-witness is subject to the same procedural discipline as any other witness, including the manner of examination, the rules limiting leading questions in examination-in-chief, and the obligations to answer questions that the court allows, subject to privileges and protections.

A further expansion of competency is found in article 566 concerning spouses, civil union partners, and cohabitants. They are competent and compellable to give evidence in the suit at the request of any party. However, two important protections apply. First, the spouse, civil union partner, or cohabitant may not be compelled to disclose communications made in confidence between them during the marriage, civil union, or cohabitation, and vice versa. Second, he or she may not be compelled to answer any question tending to incriminate the spouse, civil union partner, or cohabitant. These rules strike a balance between the truth-seeking function of the court and the protection of intimate communications and family solidarity. The competence and compellability are general; the immunities are targeted and operate as shields against specific categories of compelled disclosure.

Competency also intersects with expertise. Article 563A addresses admissibility of expert opinion and certain expressions of non-expert opinion. Where a person is called as a witness, his opinion on a relevant matter on which he is qualified to give expert evidence is admissible only if, in the opinion of the court, he is suitably qualified in the relevant matter. The gateway is therefore judicial and not merely party-driven. The court performs a suitability assessment, which operates as a quality control mechanism on expert testimony. At the same time, article 563A(2) recognises that non-expert opinion may sometimes be admissible when it is a way of conveying relevant facts personally perceived by the witness. The provision legitimises the common evidentiary reality that perception is sometimes communicated through evaluative language, provided the underlying facts are personal and relevant. In addition, article 563B specifically provides for expert evidence on foreign law by a suitably qualified person on account of knowledge or experience, regardless of whether the person has acted or is entitled to act as an advocate or in a judicial or legal capacity in that foreign state. The admissibility is thus tied to demonstrated competence, not professional title.

Once competency is established, the COCP sets out the procedural mechanisms to secure witness attendance and to regulate the giving of evidence. Witnesses are ordinarily summoned by subpoena at the request of the interested party under article 568(1). The subpoena must order appearance at a stated place and time for giving evidence, including before the court, arbitrators, referees, or authorised officers under article 569(1), and it must be in the prescribed form under article 569(2). The law further allows a subpoena duces tecum to require production of books, documents, or things belonging to the parties or under the custody of the witness, or which he is bound by law to produce, under article 570. Article 572 provides that a witness is bound to appear on the date and time prescribed in the subpoena if served four days before the date, subject to a judicial power in urgent cases to order attendance from day to day, hour to hour, or within such interval as necessary. The duty to attend is backed by contempt and compulsion: under article 575, a duly summoned witness who fails to appear is guilty of contempt of court and may be compelled by warrant of escort or arrest, subject to remission for good cause under article 576.

The examination itself is governed by a set of rules designed to safeguard immediacy, transparency, and orderly fact-finding. Article 577(1) provides that, save as otherwise provided, witnesses shall be examined in open court at the trial and viva voce. Article 577(2) prohibits witnesses from being assisted or advised by any person, a rule aimed at preserving the spontaneity and authenticity of testimony. Article 577(3) requires that witnesses be sworn previously to their examination, with the oath administered by the registrar unless the law provides otherwise. These provisions collectively frame testimony as a solemn, public act, and they reinforce the court’s ability to assess demeanour and responsiveness.

The COCP then addresses what questions can be asked, and how they may be asked. The principal division is between examination-in-chief and cross-examination. Article 578 provides that leading or suggestive questions may not, without special permission of the court, be put on an examination-in-chief. The default is therefore non-leading questioning, which is designed to elicit the witness’s own narrative rather than counsel’s. In cross-examination, the opposite party has the right to cross-examine, and leading or suggestive questions are allowed by article 579. This reflects the adversarial rationale that cross-examination is a testing mechanism, where counsel is permitted to confront, narrow, and challenge the witness’s account.

The scope of cross-examination is not unlimited. Article 580(1) provides that in cross-examination a witness may only be questioned on the facts deposed in examination, or on matters calculated to impeach his credit. This rule restricts cross-examination to (a) the subject-matter already opened in chief and (b) credibility issues. Article 580(2) adds a procedural safeguard where the cross-examining party wishes to prove through the same witness a circumstance not connected with the facts deposed in chief. In that case, unless the court directs otherwise for just cause, the party must produce the witness in due time and examine him as his own witness. The provision prevents a party from using cross-examination as a backdoor to introduce unrelated affirmative evidence, while preserving judicial flexibility where justice requires otherwise. Article 581 then restricts re-questioning after both examination and cross-examination conclude. No further questions may be put by either party, but the court, or a party with the court’s permission, may ask questions arising out of answers given during examination or cross-examination. Article 582 separately preserves the court’s authority, at any stage, to put such questions as it deems necessary or expedient, confirming an active judicial supervisory role over the completeness and clarity of the evidence. Article 586 is interesting; before a party can attack a witness’s credit by alleging inconsistent statements, the alleged statement and the circumstances of time, place, and persons present must be put to the witness, who must be asked whether he made it and be given the opportunity to explain. If the prior statement is in writing, it must be shown to the witness before any question is asked about it. This law avoids trial by ambush.

The form and permissibility of questions are further shaped by evidentiary privileges and protective rules. Article 587 obliges the witness to answer any question which the court may allow to be put to him, and the court can compel compliance by detention until the witness has sworn and answered. However, this compulsion is bounded by privileges. Article 588 establishes professional and confidential communication protections. An advocate or legal procurator, without the client’s consent, and a clergyman without the penitent’s consent, may not be questioned on confidential communications within professional confidence or under the seal of confession or loco confessionis. Further, unless by order of the court, accountants, medical practitioners, social workers, psychologists, and marriage counsellors may not be questioned on circumstances stated by the client in professional confidence or learned in a professional capacity. The privilege extends to interpreters involved in such communications by article 588(3). These provisions limit what questions may be asked, not merely how, and they express a policy choice that some relationships and confidences should not be compromised by compulsory testimony, subject to judicial control where the statute allows court authorisation.

Protection also exists against self-incrimination and certain degrading or public interest harms. Under article 589, a witness cannot be compelled to answer any question the answer to which may subject him to criminal prosecution. Article 590(1) gives the court discretion to determine when a witness is not bound to answer a particular question because it might tend to expose his own degradation, and likewise when a witness will not be compelled to give evidence where disclosure would be prejudicial to the public interest. Article 590(2) adds that no witness may be compelled to disclose information derived from or relating to documents to which article 637(3) applies, reinforcing a separate documentary privilege regime. The combined effect is that even relevant questions may be disallowed when the law protects higher-order interests, and the court acts as the arbiter of the boundary.

Finally, the COCP addresses specific modalities that affect questioning and witness management. Article 592(1) requires that each witness be examined separately, though the court may allow confrontation of witnesses, in which case each may be questioned in the presence of the other. Article 593 provides tailored procedures for witnesses who are deaf and dumb or otherwise unable to communicate conventionally, including written questions and answers read out publicly by the registrar, or the appointment of an interpreter, with the court directing the mode most conducive to ascertaining true testimony. Article 597 prohibits interruption of examination or cross-examination without leave of the court. Article 598 enshrines a general exclusion of hearsay, empowering the court to rule out questions tending to elicit testimony derived from third persons who can be produced, while allowing the court to require identification of the source. Article 599 then sets out circumstances where hearsay may be allowed, including where the relation itself is material or forms part of the subject-matter, or where the third persons cannot be produced and the facts cannot otherwise be fully proved, with illustrative categories such as births, deaths, boundaries, possession, usage, and matters of public interest or notoriety. These provisions demonstrate that Maltese civil evidence law is neither rigidly exclusionary nor indiscriminately permissive. It is structured around a default preference for first-hand viva voce testimony, tempered by necessity and judicial discretion.

In sum, Maltese law on witnesses under the COCP is characterised by broad competency, limited formal disqualifications, and a disciplined regime of questioning that differentiates between examination-in-chief and cross-examination while preserving judicial control. Competency is the norm: all of sound mind, regardless of age, interest, or party status, may testify, and spouses, civil union partners, and cohabitants are generally compellable, subject to defined immunities. The questioning framework then seeks to secure truthful and reliable evidence through non-leading examination-in-chief, robust leading cross-examination within defined limits, and a protective architecture of privilege, self-incrimination safeguards, discretionary exclusions, and hearsay control. The overall design is best understood as an attempt to reconcile the court’s truth-finding function with fairness to witnesses and parties, and with the protection of confidences and public interests that the legal order deems worthy of preservation.

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Dr Carlos Bugeja is Partner at PROLEGAL Advocates.

Disclaimer: This article is not to be construed as being legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja at carlos@prolegal.mt.