Part IX-Search warrants
power to issue arrest warrants
98.— (1) Where it is proved on oath to a magistrate or a justice of the peace that in fact or according to reasonable suspicion anything relevant to the commission of an offence is in any building, ship, vehicle, box, receptacle or place, the magistrate or justice of the peace may by a search warrant authorise a police officer or other person named in it to search the building, ship, carriage, box, receptacle or place named or described in the warrant.
(2) If, during the authorised search —
(a) anything searched for is found; or
(b) any other thing reasonably suspected as having been stolen or unlawfully obtained is found —
the police officer or other person authorised by the search warrant may seize it and take it to the court issuing the warrant, or some other court, to be dealt with according to law.
Execution of search warrants
99. Every search warrant may be issued on any day (including Sunday) and may be executed between the hours of sunrise and sunset, but the magistrate or justice of the peace may by the warrant, specifically authorise the police officer or other person to whom it is addressed to execute it at any hour.
Persons in charge of closed place to allow access
100.— (1) Whenever any building or other place liable to search is closed, any person residing in or being in charge of the building or place shall, on demand of the police officer or other person executing the search warrant, and on production of the warrant, allow access and free movement out of it, and afford all reasonable facilities for the search.
(2) If the access to and movement out of the building or other place cannot be obtained, the police officer or other person executing the search warrant may proceed in any lawful manner.
(3) Where any person in or about such building or place is reasonably suspected of concealing on himself or herself any article for which search should be made, the person may be searched, and the provisions of section 16 shall be observed.
Detention of property seized
101.—(1) When anything is seized and brought before a court, it may be detained until the conclusion of the case or the investigation, and reasonable care shall be taken for its preservation.
(2) If any appeal is instituted, or if any person is committed for trial, the court may order property which has been detained to be further detained for the purpose of the appeal or the trial.
(3) If no appeal is instituted, or if no person is committed for trial, the court shall direct the property to be restored to the person from whom it was taken, unless the court sees fit or is authorised or required by law to otherwise dispose of it.
Provisions applicable to search warrants
102. The provisions of sections 86 (1) and (3) and 91 shall apply to all search warrants issued under section
98.
Procedures for dealing with documents claimed to be privileged
103.— (1) No claim as to privilege or confidentiality of any documents seized or to be seized under the authority of a search warrant shall be grounds for preventing such seizure or challenging the right of any person acting on the authority of the search warrant to seize the documents.
(2) Where any documents are seized under the authority of a search warrant and any person claims that the documents are subject to a lawful claim of privilege or confidentiality the person having custody of the documents in accordance with this Part shall, immediately upon becoming aware of such a claim, place the documents in a sealed bag or other receptacle and cause the documents to be delivered to the Registrar of the High Court.
Division 1—Compelling Attendance of Witnesses
Summons to witness
110.—(1) If a court is satisfied that material evidence can be given by or is in the possession of any person, it shall be lawful for a court having jurisdiction in any criminal case to issue a summons to the person requiring —
(a) attendance of the person before the court; or
(b) the person to bring and produce to the court all documents and writings in his or her possession
or power which are specified or otherwise sufficiently described in the summons, for the purpose of evidence in the case.
(2) A summons under sub-section (1) may be issued under the signature of a judge or magistrate, or an authorised court officer acting in accordance with an order made by a judge or magistrate.
Warrant for witness who disobeys summons
111.—(1) If, without sufficient excuse, a witness does not appear in obedience to a summons, the court may issue a warrant to bring the person before the court at such time and place as is specified in the warrant.
(2) Prior to issuing a warrant under sub-section (1), the court shall determine that there has been proper service of the summons a reasonable time before the date on which the witness has been required to appear.
Warrant for witness in first instance
112. If the court is satisfied by evidence on oath that a person will not attend unless compelled to do so, it may at once issue a warrant for the arrest and production of the witness before the court at a time and place specified in the warrant.
Mode of dealing with witness arrested under warrant
113.— (1) When any witness is arrested under a warrant the court may, on the furnishing of security by recognisance to the satisfaction of the court for the appearance of the person at the hearing of the case, order the person to be released from custody.
(2) If the witness fails to furnish security under sub-section (1), the court shall order the person to be detained and to be brought to the hearing.
Power of court to order prisoner to be brought for examination
114.— (1) In any case pending before it, a court wanting to examine as a witness any person confined in any prison may issue an order to the officer in charge of the prison requiring the prisoner to be brought in proper custody, at a time to be named in the order, before the court for examination.
(2) The officer in charge of the prison, on receipt of an order under sub-section (1), shall act in accordance with its terms, and shall provide for the safe custody of the prisoner during his or her absence from the prison.
Penalty for non-attendance of witness
115.—(1) Any person summoned to attend as a witness who —
(a) without lawful excuse, fails to attend as required by the summons; or
(b) having attended, departs without having obtained the permission of the court; or
(c) fails to attend after adjournment of the court after being ordered to attend —
shall be liable by order of the court to a fine not exceeding 10 penalty units, and to imprisonment for a term not exceeding 12 months, or both.
(2) If good cause is shown, the High Court may remit or reduce any fine imposed under this section by a Magistrates Court.
Division 2—Examination of Witnesses
Power to summon material witness or examine person present
116.— (1) At any stage of trial or other proceeding under this Decree, any court may —
(a) summon or call any person as a witness; or
(b) examine any person in attendance though not summoned as a witness; or
(c) recall and re-examine any person already examined —
and the court shall summon and examine, or recall and re-examine any such person if the evidence appears to the court to be essential to the just decision of the case.
(2) The prosecution or the defence shall have the right to cross-examine any person giving evidence in accordance with sub-section (1), and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of any such person as a witness.
Evidence to be given on oath
117.— (1) Every witness in any criminal cause or matter shall be examined upon oath or affirmation, and the court before which any witness shall appear shall have full power and authority to administer the usual oath or affirmation.
(2) The court may at any time, if it thinks it just and expedient, take without oath the evidence of any person—
(a) declaring that the taking of any oath whatsoever is according to religious belief unlawful or impermissible; or
(b) who by reason of immature age or want of religious belief ought not, in the opinion of the court, to be admitted to give evidence on oath.
(3) The court shall record the fact that evidence has been taken in accordance with sub-section (2), and the reasons for allowing the evidence to be taken without oath.
Uncooperative witnesses
118.— (1) Whenever any person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence —
(a) refuses to be sworn; or
(b) having been sworn, refuses to answer any question put to him or her; or
(c) refuses or neglects to produce any document or thing which the person is required to produce;
or
(d) refuses to sign his or her deposition
without in any such case offering any sufficient excuse for such refusal or neglect, the court may adjourn the case for any period not exceeding 8 days, and may in the meantime commit the person to prison, unless he or she sooner consents to do what is required.
(2) If such person, upon being brought before the court at or before the adjourned hearing, again refuses to do what is required, the court may again adjourn the case and commit the person for the same period, and so again from time to time until the person consents to do what is so required.
(3) Nothing in this section shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it.
Spouses may be called without the consent of the accused
119. In any trial the spouse of the accused person shall be a competent witness for the prosecution or defence without the consent of the accused person and may be compelled to give evidence in accordance with the provisions of this Decree.
Division 3—Commissions for the Examination of Witnesses
Issue of commission for examination of witness
120.—(1) Whenever in the course of any proceeding under this Decree, a judge or magistrate is satisfied that—
(a) the examination of a witness is necessary for the ends of justice; and
(b) the attendance of such witness cannot be procured without an amount of delay, expense or
inconvenience which, under the circumstances of the case, would be unreasonable—
the judge or magistrate may with the consent of the parties issue a commission to any magistrate, within the locality where such witness resides, to take the evidence of the witness.
(2) The magistrate to whom the commission is issued shall proceed to the place where the witness is or shall summon the witness before the court, and shall take down the evidence in the same manner, and may for this purpose may exercise the same powers as in the case of a trial.
Parties may examine witnesses
121. — (1) Any of the parties to any proceeding under this Decree in which a commission is issued may forward any interrogatories in writing which the judge or magistrate directing the commission may think relevant to the issue, and the magistrate to whom the commission is directed shall examine the witness upon the interrogatories.
(2) Any party may appear before such magistrate by their lawyer, or in person (if not in custody), and may examine, cross-examine and re-examine (as the case may be) the witness.
Return of commission
122.— (1) After any commission issued under this Division has been duly executed it shall be returned, together with the deposition of the witness examined, to the judge or to the magistrate (as the case may be), and all documents relating to the commission shall be open at all reasonable times to inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record.
(2) Any deposition taken under the provisions of this Division may also be received in evidence at any subsequent stage of the case before another court.
Adjournment of trial
123. In every case in which a commission is issued under this Division, the proceedings may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b)
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.