Criminal Code (Cap. 9), article 646

646. (1) Subject to the ensuing provisions of this article, witnesses shall always b e examined i n court and viva voce. Exceptions. (2) The deposition of witnesses, whether against or in favour of the person charged or accused, if taken on oath in the course o f the inquiry according to l aw, shall be admi ssible as evidence: Provided that the witness is also produced in Court to be examined viva voce as provided in sub-article (1) unless, when assessing the circumstances of the case, it is apparent to the Court that appearing for viva voce examination may cause the witness to suffer psychological harm, or when the witness is dead, absent from Ma lta or cannot be found and saving the pr ovisions of sub-article (8): Provided further that where t h e w i t n e s s i s a m i n o r u n d e r eighteen (18) years of age and an audio and video-recording of the testimony of the minor is produ ced in evidence the minor shall not be produced to be examined viva voce . (3) Any declaration shall be adm issible as evidence whenever the same is made by any person who is about to die and who is conscious of the nearness of deat h, except where the declarant dies under a sentence of the law. (3A) An audio-visually recorded interview or statement of a minor, of any victim of a sexual offence, or of any vulnerable victim or witness made in accordance with s ub-article (4) of article 346 shall be admissible as evidence: Provided that where the person so interviewed or who makes the statement gives evidence viva voce as a witness before a court during a trial, the said evidence shall be given by video confe rence from a place other than the courtroom where the trial is being held and shall be recorded by audio-visual means. (4) Any procès-verbal may be produced as evidence in terms of article 550. (5) The deposition of any parish priest or of any other clergyman acting in his stead, or of any other witness examined in the course of the inquiry, as to the authenticity of parochial acts or registers made or kept by such parish priest or clergyman, and relating to births, marriages, or deaths, or as to the authenti city of copies of such acts or registers , or of extracts therefrom, or as to the fact that the accused is the person mentioned in such acts, reg isters, copies or extracts, may als o be produced as evidence. CRIMINAL CODE [CAP. 9. 397 (6) The deposition of any notary in Malta or of any other witness examined in the course o f the inquiry, as to the authen ticity of the acts or registers made or kept by such notary, or as to the authenticity of copies of such acts or registers or extracts therefrom, or as to the fact that the accused is the person men tioned in such acts, registers, copies or extracts, is also admissible as evidence. (7) Notwithstanding the provisions of this Code or of any other law, a certificate purporting to be issued by a registered medi cal practitioner or registered dental surgeon concerning his examination of any person, wheth er alive or dead, or concerning any bodily harm suffered by, or any physical or mental infirmit y afflicting, any person, shall be admissible as evidence and sha ll, until the contrary is proved, be evidence of its contents, prov ided the certificate bears the clearly legible stamp of the medical practitioner or registered dental surgeon issuing it showing hi s name, professional qualifications, expertise and address and provided that such certificate is confirmed by the affidavit of the medical practitioner or the denta l surgeon, as the case may be: provided further that it shall be lawful for either of the part ies to produce the said medical practitioner or the said dental surgeo n, as the case may be, for the purpose of examining him in court and viva voce , as well as for the court ex officio to require such examination. (8) The deposition of any registered medical practitioner or registered dental surgeon annexed to a procès-verbal , or of any such medical practitioner or dental surgeon examined in the cou rse of the inquiry, in relation to his examination of any person, w hether alive or dead, or in relation to any bodily harm suffered by, o r any physical or mental infirmity afflicting, any person, shall be admissible as evidence without the need of producing the said medical practitioner or dental surgeon in court as provided in the proviso to sub-article (2): provided that, unless the witness i s dead, absent from Malta or cannot be found, it shall be lawful for ei ther of the parties to demand, or for the court ex officio to require, that such witness be again e xamined in court and viva voce . (9) The validity of the said act s and their admissibility may no t be impugned on the ground that it does not appear from the acts themselves that they h ave been made or received on oath or with any other formality prescribed by law, if the taking of any suc h oath or the observance of any such formality be proved in some other manner. (10) It shall be lawful for the Attorney General, as well as fo r the accused, to demand that a rul ing be given by the court, bef ore the hearing of the case commences , as to whether the deposition of any witness is to be admitted, in terms of the provisions of su b- article (2). (11) Where it is alleged that a witness is dead, absent or cann ot be found, it shall be lawful for the court to consider the alle gation proved by the sworn report of the marshal or other executive of ficer to the effect that he has ascertained that such witness is dead or absent, or that he has made the necessary inquiries and has bee n 398 CAP . 9.] CRIMINAL CODE unable to find him. Examination of infirm or aged witness in his place of abode. Added by: XI.1900.89. Amended by: VI.1939.4; L.N. 4 of 1963; XIII.1964.26; L.N. 46 of 1965; XXXI.1966.2; XXV .1967.26; LVIII.1974.68; XXVII.1975.40; III.1976.8; VIII.1990.3; III.2002.151; XXXI.2002.205.