Most people know a defendant can be remanded. Fewer know that a witness can be too. The powers exist to secure evidence for a trial, and they come with their own release mechanisms.
The witness who refuses to testify
Where a person appears to give evidence and, without lawful excuse, refuses to be examined on oath, refuses to take the oath, refuses to answer a question concerning the matter, or refuses or neglects to produce a document, the Court may adjourn the proceedings for any period not exceeding eight days, and may in the meantime by warrant commit the person to a corrective institution, police lock-up or other place of security; and may do so again from time to time until he consents to be sworn, to give evidence or to produce the documents.
This is coercive custody, ending on compliance. Section 79 requires such a committal to be to a corrective institution or police lock-up, and section 80 allows the witness to be discharged on bail on recognizance instead. See a witness who refuses to answer.
The witness bound over to the trial
Where a witness who in the Court’s opinion gives evidence material to a case, or tending to prove the guilt or innocence of an accused, is examined before a Court, the Court may bind the witness by recognizance, oral or in writing, to appear at the Court at which the defendant is to be tried and give evidence (s 111).
If a witness refuses to enter into such a recognizance, the Court may by warrant commit him to custody, there to be safely kept until after the trial, unless in the meantime he enters into a recognizance before a Magistrate (s 113(1)).
Section 112 requires the recognizance to be acknowledged by the witness, subscribed by the magistrate, and notified to the witness in writing. Section 113(2) provides for release where the defendant is not committed or bailed for the offence, or where the duly appointed officer declines to file an information, and section 113(3) requires the Court or Clerk to notify the Public Prosecutor in writing of the name of any witness committed.
Detention for the witness’s own safety
Notwithstanding anything in this Division, if, in the opinion of the Court before which a witness is examined, it is desirable that the witness should be kept in safe custody, the Court may (a) by warrant commit the witness to a corrective institution; or (b) by written order, authorize his detention in the custody of a police officer, or officer-in-charge of a place of security, without naming the officer, to be safely kept until after the trial.
This is the Act’s witness protection provision, drafted for a time when a witness might be kept away from the trial by the accused’s relatives. It is a serious power, exercised on the Court’s own opinion, and the constitutional right to liberty under section 42 means it should be used only where the Court is genuinely satisfied that the witness’s safety or availability cannot otherwise be secured. Section 102(a)(iii) provides the alternative: a statement of a witness kept out of the way by the procurement of the accused may be read at the trial with the National Court’s consent.
The powers side by side
| Situation | Provision | Duration | Release |
|---|---|---|---|
| Refuses to be sworn, answer or produce | s 70 | Up to 8 days at a time, renewable | On compliance; or bail under s 80 |
| Refuses to enter a recognizance to attend the trial | s 113 | Until after the trial | On entering the recognizance before a magistrate; or under s 113(2) |
| Court considers safe custody desirable | s 114 | Until after the trial | By the Court; the Public Prosecutor may be asked to review the need |
| Fails to appear on a recognizance | s 83 | Until produced before the Court | Re-bail or commitment under s 86(2) |
| Disobeys a witness summons | s 68 | Warrant to bring before the Court | On giving evidence; fine up to K200 possible |
Bail for a witness
A witness or person sought to be made a witness may be discharged on bail on recognizance in accordance with this Act.
The general provisions in sections 81 to 86 then apply as they do to a defendant: with or without sureties, continuous to every adjourned date, taken out of court under section 84, and enforced by warrant on non-appearance. A witness bound over and then bailed is in exactly the position of a defendant on bail, and the same forfeiture provisions in sections 271 to 273 apply. See what is a recognizance.
Expenses and protection
A witness compelled to attend is entitled to expenses under section 260(1)(f) and section 264, and a witness bound over to a National Court trial is entitled to the expenses provided for at that level. Section 73 gives a witness examined early under section 72 all the rights of a summoned witness. A witness held under section 114 who believes the detention is no longer necessary can ask the Court that made the order to discharge it, and the Public Prosecutor, once the file has been transmitted under section 118, can be asked to confirm whether the witness is still required.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.