The burden of proof is on the person making an allegation, as is clear from section 562 of the Code of Organisation and Civil Procedure: “the burden of proving a fact shall, in all cases, rest on the party alleging it”.
Yes, these rules exist and are found in section 627 et seq. of the Code of Organisation and Civil Procedure. Section 627 mentions documents requiring no proof of authenticity other than that which they bear on the face of them, including:
There are other documents that can be produced and their content is exempt from the burden of proof, however their authenticity must be proved and these include:
Evidence may be produced that runs counter to the contents of these types of documents.
Apart from these documents, there is another presumption regulated by Cap 16 of the Laws of Malta, the Civil Code, namely that a child born in wedlock is the issue of the wife’s husband. This legal presumption may be proven to be no longer valid by means of a sworn application in the Civil Court (Family Section) and the production of evidence that such a presumption is not valid.
In order to pass sentence in civil cases, a court must be satisfied that sufficient proof on a balance of probabilities has been produced.
Every party in a court case, whatever his interest might be, may testify, either at his/her own request, at the request of another party in the case, or when summoned to do so ex officio by the court. When proceedings commence by means of a sworn application, a list of witnesses must be drawn up. The same applies to the sworn reply – it must include this list of witnesses. If a party needs to produce a witness who has not been so indicated, the relevant application must be filed.
Once an application for the taking of evidence has been accepted, the witnesses are summoned to appear by means of a subpoena issued after an application by the party wishing to produce them. Requests for the issue of this subpoena in the Court of Magistrates (Malta) and in the Courts of Magistrates (Gozo) in its inferior jurisdiction may be made verbally.
A court may reject an application by a party to obtain evidence when the person summoned is a lawyer, a legal procurator or a priest. Moreover, as a rule, no person present during a sitting can be produced as a witness in the same case. However, it is left to the court’s discretion to dispense with this rule in particular cases if there are good reasons for doing so. There are also special laws which regulate official secrecy and do not permit the disclosure of secret and confidential information. Furthermore, the claim may be dismissed if the court believes that the witness is not relevant.
There are three means of proof that can be produced and these are: documents, viva voce and affidavits.
The general rule is that the examination of witnesses in the hearing of cases is made in open court and viva voce. However, the law provides for other methods of taking of evidence that can be used:
When a legal referee is engaged to take evidence, he has the same means that courts have at their disposal.
All means of proof are considered of to be equal importance.
No, but the best proof must always be produced.
Yes, the law obliges all summoned witnesses to testify. However, a witness cannot be compelled to answer questions that may result in him being the subject of criminal prosecution.
The husband or wife of any party in a court case are competent witnesses and may be compelled to testify in a case at the request of any of the parties. However, the husband cannot be compelled to reveal anything that his wife may have told him in confidence during their marriage, and vice versa, nor can one spouse be compelled to answer questions which may result in the other spouse being the subject of criminal prosecution.
Other exempt facts include those entrusted to lawyers, legal procurators or priests. However, if a lawyer or a legal procurator obtains his client’s consent, or the priest obtains the consent of the person who confessed, they may be questioned about matters that came to their knowledge (subject to consent); the lawyer and the legal procurator regarding what has been entrusted to them by the client for the purposes of the case, and the priest for those facts he becomes aware of under the seal of the confessional or through a confession.
Except by court order, accountants, doctors, social workers, psychologists and marriage counsellors cannot be asked to reveal information given to them by their clients under professional secrecy or if they became aware of such information in their professional capacity. This privilege is also extended to the interpreter engaged to convey such secret information.
A witness bound by professional secrecy cannot reveal secret and confidential information, except in certain circumstances according to the particular law applicable to the case.
If a regularly summoned witness does not appear when called, he is guilty of contempt of court and is immediately condemned and fined. The court can also, through a warrant of escort or arrest, compel him to appear and testify in a subsequent sitting. However, the court may waive the fine imposed if good reasons are provided for the failure to appear.
Any person of sound mind, if there are no exceptions regarding his competence, may be produced as a witness. A witness of any age may be produced as long as he is aware of the fact that giving false evidence is wrong.
During the examination or cross-examination, the court may ask the witness any question it deems necessary or expedient. On the other hand, each party in the case, whatever his interest, may testify at his/her own request, at the request of another party in the case, or when summoned to do so ex officio by the court.
In cases involving minors, the judge generally hears the minor in camera or a Children’s Advocate is appointed to hear the minor.
Witnesses living outside Malta may be heard in video conference.
If evidence has not been obtained by illegal means, the court has no restrictions when delivering its judgement. The only exception is that, as a rule, the court does not take cognizance of evidence regarding facts that the witness says he became aware of from others, or of facts stated by other parties who can be produced to testify accordingly.
Yes, statements made by a party to a case are admissible.
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