The match maker’s witness statement
No, a match-maker isn’t what you think it is. Recalling his days at the Bar, retired Federal Court Judge Datuk Prasad Abraham points to a story about the dangers of witness statements
Some say the increased – and indiscriminate – use of witness statements has sidelined the role of advocacy. The witness, testifying through a statement, reads out a statement prepared by her solicitors.
Taken too far, it could lead to a predictable end – and, as demonstrated by this anecdote – unusual consequences.
An architect owed my client, the Plaintiff, some fees. I filed a suit at the High Court in Kota Bharu, which lies some 450km north the capital, Kuala Lumpur.
In those days city lawyers did not get the very best reception in provincial courts. We were seen as merciless hacks.
Before the trial could commence, the architect had died. His widow was substituted as administrator of his estate.
She owned and operated a match factory at Kota Bharu.
She was a well-known personage. This became obvious when she came to the court gallery. The Court’s two interpreters greeted her with easy familiarity, and an amiable conversation ensued.
The judge ascended the Bench. The trial began.
After I had completed the plaintiff’s case, the defence called the widow as the defence’s first witness.
She ‘tendered’ her witness statement: this meant her lawyer had to formally ‘admit it’ as an exhibit in court. A witness could only testify to what she saw, herself heard, or personally knew. Everything else was ‘hearsay’ and had to be thrown out. So, to ‘admit’ her document he made her take an oath. He read out each question, carefully, one at a time. Then read he read out her answer. He took pains to confirm with her that every word of every line of her statement was true. Then he asked her if her statement contained only matters over which she had had ‘personal knowledge’. With, much head-bobbing and numerous ‘Ya betul’ [‘Yes: that is true’], she cheerfully agreed to his suggestions.
Did she have any questions?’ No’.
Did she wish to amend change or amend any part of her Witness Statement? ‘No, not at all. Everything is there.’
This went on mechanically. And for a considerable time.
After making a formal declaration that her Statement’s contents were all ‘true and accurate’, she signed it.
Her witness statement was significant in that it was a most comprehensive one.
It contained many architectural technical terms: ‘prime costs’, ‘variations’, ‘escalation of costs’, and so forth.
Noticing this, the trial judge urged caution upon defence counsel.
Defence counsel did not take the cue. He persisted.
Part-way through defence counsel’s monotonous exertions, the judge intervened. Appearing unsettled, the judge asked him if his witness wished to call some other witness to testify on ‘technical matters?
‘No my Lord, that won’t be necessary, thank you. Madam is quite capable of dealing with these’.
When he finished, the widow’s counsel was once again asked: Is there a need to reconsider how the evidence had been put to witness?
‘No my Lord, I’m quite sure of what I’m doing, thank you. And no doubt you will see shortly how she will acquit herself, if tested’. Defence counsel threw a casual – possibly challenging – glance in my direction.
When my turn came to cross-examine her, I asked her for the meaning of the technical words she had used. I asked her to explain the various architectural features of her written testimony.
After five questions, the standard answers became a repetition of:-
“Saya tak tahu”: [I don’t know];
“Semua suami saya yang buat” : [It was my husband who did all of this]; and
“Semua says serah kepada suami”: [I left it all to my husband].
Noticing this pattern, I decided it was time to go for the jugular.
‘How can you justify such answers’, I asked. ‘when, just a few minutes ago, you gave us all the impression you knew everything about the contents of your statement?’
She adopted the tone of an exasperated parent Instructing a dull child. And she gave the same answers as above, only in a different order.
Keeping my tone equable, I took her through each part of her testimony, asking her short, but probing, questions.
The Defendant began a series of answers.
These contained a repetition of the following responses – again -but in a different order.
(Resigned tone)- “Mana saya tahu?” [How should I know?];
(Now assertive)- “Sudah cakap, Lawyer buat, saya sign sahaja lah”: [I told you, the lawyer wrote it out, and I simply singed it’]; and
(Strident)- “Tuan, you tanya lawyer saya, dia tahu. Saya tak tahu” [Sir, could you please ask my counsel? He knows the answers. I don’t].
I pressed upon her one more question, oh-so-gently.
There was a sob, and tear rolled down her pale cheek.
The Court staff leapt to her aid.
They thrust tissues into her hands, glaring at me.
She trumpeted into the tissue.
She then tried to answer my question. I asked one more question.
Then she’d bawl again. They’d ply her with more tissue.
Another glare from both interpreters.
With a silken voice, I posed another question.
Same result. Thus began the Kleenex routine.
The Court staff must have exhausted a entire box of Kleenex tissues.
This went on for about ten minutes.
And then all hell broke -it was as if all the banshees of the nether world had descended upon Kota Bharu.
The witness descended into a sobbing fit.
Seeing her like this, Judge Raging Bull excoriated defence counsel for preparing such a ‘bad’ witness statement and ‘trying the poor witness’.
So great was his fury that defence counsel complained of ‘chest pain’. Clutching his chest, he executed a flawless collapse upon his seat.
On the other side, court staff assisted the witness’ wet trumpetings with copious Kleenex, offers of water, embrocations, and soothing words.
The judge fled to his chambers.
Rising with renewed vigour, defence counsel busied himself gathering his papers.
Gawping upon this scene, all I got was a wordless, murderous glare from both court staff – as if it was all my fault.
And thus ended the morning with ‘the match-maker’.
[Datuk Prasad Sandosham Abraham is a retired judge of the Federal Court of Malaysia. He is now an arbitrator. If you wish to comment upon his anecdote, do send an email to him at firstname.lastname@example.org or to our usual contact address]