Special Measures ’ Applications for Victims and Vulnerable a nd Intimidated Witne sses in Malaysia : New Frontiers to Right to a Fair Trial ?

Special treatment for victims and vulnerable and intimidated witnesses (VIWs) in a criminal process has developed over time in Western countries. The development of rights of victims’ and VIWs and awareness on their needs and interests in pre-trial process and court proceedings has initiated the use of special measures’ application. In England and Wales, some measures to lessen stress and trauma of such witnesses undergoing a criminal process were introduced into the legislations. Yet, as many other Asian countries, Malaysia developed her victims’ policy only in 1990s and issues relating to the protection of VIWs were raised within the criminal justice system just recently. The tendency to put the standpoint into practice in the Malaysian legal system is demonstrated in the establishment of the Evidence of Child Witness Act 2007 (ECWA 2007) and the amendment of Section 272B of the Criminal Procedure Code. On the other hand, it is also arguable that special measures’ applications for victims and VIWs will erode the right of defendants to a fair trial. This article aims at evaluating the current position of victims’ and VIWs’ rights and legal protection in the Malaysian criminal justice process. It elaborates on the rights of victims and other VIWs to special measures’ applications in pre-trial process and court proceedings. Special measures such as live TV-link, screens, removal of formal attire, intermediaries and visual aids communication are potential to accommodate victims’ and VIWs to give testimony in court. The use of video-recorded evidence is also evaluated as one of the means to facilitate traumatized victims and VIWs to give evidence and testimony. The possibility to enhance the use of special measures’ applications as one of the ways to advocate the right to a fair trial of victims and VIWs, without eroding the rights of the defendants, is also highlighted in this article.


SPECIAL MEASURES' APPLICATIONS FOR VICTIMS AND VULNERABLE AND INTIMIDATED WITNESSES IN MALAYSIA: NEW FRONTIERS TO RIGHT TO A FAIR TRIAL?
Abidah Abdul Ghafar* 1

Abstract
Special treatment for victims and vulnerable and intimidated witnesses (VIWs) in a criminal process has developed over time in Western countries.The development of rights of victims' and VIWs and awareness on their needs and interests in pre-trial process and court proceedings has initiated the use of special measures' application.In England and Wales, some measures to lessen stress and trauma of such witnesses undergoing a criminal process were introduced into the legislations.Yet, as many other Asian countries, Malaysia developed her victims' policy only in 1990s and issues relating to the protection of VIWs were raised within the criminal justice system just recently.The tendency to put the standpoint into practice in the Malaysian legal system is demonstrated in the establishment of the Evidence of Child Witness Act 2007 (ECWA  2007) and the amendment of Section 272B of the Criminal Procedure Code.On the other hand, it is also arguable that special measures' applications for victims and VIWs will erode the right of defendants to a fair trial.This article aims at evaluating the current position of victims' and VIWs' rights and legal protection in the Malaysian criminal justice process.It elaborates on the rights of victims and other VIWs to special measures' applications in pre-trial process and court proceedings.Special measures such as live TV-link, screens, removal of formal attire, intermediaries and visual aids communication are potential to accommodate victims' and VIWs to give testimony in court.The use of video-recorded evidence is also evaluated as one of the means to facilitate traumatized victims and VIWs to give evidence and testimony.The possibility to enhance the

Introduction
Special treatment for victims and vulnerable and intimidated witnesses (VIWs) in a criminal process has developed since the past 30 years in Western countries.The development of rights of victims' and VIWs and awareness on their needs and interests in pretrial process and court proceedings has initiated the use of special measures' application (SM application).In England and Wales, some measures to lessen stress and trauma of such witnesses undergoing a criminal process were introduced into the legislations.
Victims and witnesses are arguably the key persons in a criminal case but their rights and interests do not gain sufficient attention from the criminal justice players.A number of surveys and studies have researched the extent of the legislation and procedures for and the treatment of vulnerable and intimidated witnesses (VIWs) in the practice of the English criminal justice system ever since the establishment of the 1988 and 1991 Criminal Justice Acts. 2 Most of the research that aimed to evaluate the application of special measures for VIWs either from the perspective of the victims and witnesses 3 or that of the practitioners 4 seems to agree on the importance of SM application to reduce the fear and distress experienced by VIWs in court.
This article aims at evaluating the current position of victims' and VIWs' rights and legal protection in the Malaysian criminal justice process.It elaborates on the rights of victims and other VIWs to special measures' applications in pre-trial process and court proceedings.Special measures such as live TV-link, screens, removal of formal attire, intermediaries and visual aids communication are potential to accommodate victims' and VIWs to give testimony in court.The use of video-recorded evidence is also evaluated as one of the means to facilitate traumatized victims and VIWs to give evidence and testimony.

Legislative Development of Special Measures' Application
Having been under the English rule, Malaysia practises common law tradition and an adversarial court system. 5The foundation of criminal justice system in Malaysia is based on the underlying fundamental principle that an accused person is innocent until proven guilty.Article 11(1) of the United Nation Declaration of Human Rights 1948 in which Malaysia has ratified, provides that "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence." 6In accordance with the presumption of innocence, the burden of proof in original circumstances is on the prosecution7 , who have to gather and submit sufficient compelling evidence to the satisfactory of the judge.The trial process will involve the victims and other witnesses to give evidence orally in court, which normally warrants their physical presence in the courtroom.
As many other Asian countries, Malaysia also developed victims' policy in 1990s, when the reform of the criminal justice system 5 Abdul

Special Measures' Applications for Viws
The measures that are normally being employed during the court proceedings are screens and live link.The use of screen in the courtroom will prevent the child witness from seeing or being seen by the accused, 21 but shall not hinder him/her from being able to see and to be seen by the Magistrate or Judge, the prosecutor, the defence counsel and the interpreter. 22The use of screen and livelink while giving evidence is argued to give assurance to VIWs that they are not going to be 'harassed and bullied' and instil comfort to child witnesses so that they will be able to testify more freely and frankly. 23Other measures available to child witnesses include the use of intermediary in witness examination 24 , the leave for accompanying adults 25 and the removal of formal court attire. 26e intermediary is used to communicate and explain questions put to the child witness and the answers given by the child witness in reply to those questions 27 during the examination.The intermediaries are not allowed to prompt the child witnesses to answer the questions, influence their answers or disrupt the questioning of them. 28This rule also applies on accompanying adults for the child witnesses. 29n unrepresented accused shall only question a child witness through an intermediary, but not directly by himself. 30All of the above measures are provided by the ECWA 2007 to accommodate child witnesses to deliver their testimony.The application of these measures is hoped to lessen fear and distress of the child witnesses of confronting the defendants and facing the unfamiliar courtroom environment, which are possibly daunting and difficult.
Witnesses in Need of SM Application: Who are they?
Thus far, no specific definition for 'vulnerable witness' or explanation of 'vulnerability' in any legislation in Malaysia but the fear and distress of witnesses has considerably attracted attention of the practitioners.A number of categories of witnesses may be eligible for SM applications, namely:

Child Victims/Witnesses
The The Human Rights Commission of Malaysia (SUHAKAM) has suggested that a terminology of words denoting a 'child', including 'young person', 'juvenile', 'infant' and etc. in other legislations need to be in consistent with the Child Act 2001. 35This need of standard definition is more significant in defining child witnesses, as it would determine the group who are entitled for special measures to be the same as those protected under the Child Act 2001.The discrepancies in setting the cut-off age for a child possibly influence the procedure to afford protection to them during the criminal process.

Victims/Witnesses of Sexual Offences and Abuse
Research shows that victims of incest and sexual abuse suffered from psychological trauma that would affect them for a long time or forever, as the perpetrators are the family members or individuals close to the victims. 36Victims react emotionally in three categories: first, sadness and crying, secondly, stable condition and thirdly, absence of grief accompanied by shame and frustration over the incident. 37Sometimes victims tend to hide their emotional distress in court 38 but their aftermath behaviour reflects the trauma. of the victims was translated from their emotions, physiology and behaviours, for example the victims were 'sad, ashamed, fearful, anger and hateful towards the abusers', 39 and some were suicidal. 40lthough the reaction and trauma are different between one victim and another, either of the emotional reaction categories would result in the victims' lack of cooperation, refusal and reluctance of sharing their stories with outsiders. 41ving evidence against one's own family member or someone trusted or known to oneself in rape or incest cases is stressful, painful and distressing.Relating the incident of being raped to others would further be embarrassing, upsetting and confusing for victims and could lead to 'a repetition of victims' trauma' 42 .Child victims shall subsequently become witnesses when the cases are heard in court.
Facing traumatic and awful experience when they have to relive the worst episode in their lives in front of outsiders, in unfamiliar courtrooms, would render them vulnerable.Adult victims and witnesses can be vulnerable in court due to intimidation from the defendants or others such as the defendants' family members.
Rape victims will be eligible for special measures if the court thinks that 'it is expedient in the interest of justice to do so' under the Criminal Procedure Code (Amendment) Act 2006.The legislation is yet silent in describing the circumstances that would render 'expedient' to do so.Shaikh Daud J (as he then was) however recognized the existence of trauma and re-victimization of rape victims in the trial where "rape victims especially young victims, go through traumatic experience at the time of the offence and later, and also at the trial more often than not they become the accused rather than the accuser".to recognise and raise issues of under-identification, as noted by other authors. 48 consequence to protecting VIWs and facilitating them with SM applications, issues relating to its effect against the right to a fair trial of the accused persons or defendants were raised within the criminal justice system just recently.

Do SM Applications Erode a Fair Trial of Defendants?
On the other hand, it is also arguable that SM applications for victims and VIWs will erode the right of defendants to a fair trial.
The possibility to enhance the use of special measures' applications as one of the ways to advocate the right to a fair trial of victims and VIWs, without eroding the rights of the defendants, is also highlighted in this article.
An argument that SM applications go too far and prejudice the rights of defendants has raised an issue of whether defendants could also be vulnerable and were perhaps entitled to some protection. 49pecial measures were afforded to child victims and witnesses whilst child defendants were excluded from similar protection.In the framework of adversarial trials, where the rights of the defendants are dominant, providing special measures for witnesses will counter this defendant-centred justice principle in some ways, balancing is deemed necessary.

The Experience of England and Wales
In England and Wales, the argument that young defendants could not benefit from the Act has also attracted a degree of sympathy from the judges in R v Camberwell Green Youth Court. 50While the procedure as it stood might not be appropriate for child defendants, depriving the child witnesses and victims of special measures were also not a right and proper way to treat the problem.Lord Rodger has pointed out on similar treatment of child defendants and child witnesses under the Vulnerable Witness (Scotland) Act 2004 that "there are no insuperable difficulties in the way of taking some such step" 51 and this model may thus far provide some useful insights into how that might be achieved in Scotland.
Improving victims' rights has led to arguments about balancing the rights of child victims. 52It was argued in R v Camberwell Green Youth Court that the mandatory presumption of Section 21(3) of the Youth Justice Criminal Evidence Act 1999 (YJCEA 1999) requiring that, except in the most exceptional circumstances, witnesses under 18 years 53 in cases involving sexual or violence offences must be examined-in-chief through video recordings and cross-examined through live link, was conflicting with the European Convention of Human Rights (ECHR)'s Article 6 of defendants' right to a fair trial. 54owever, the appeal was dismissed.Their Lordships unanimously held that the defendants' right to a fair trial is not infringed instead the legislation upholds "sufficient safeguards to prevent any unfairness arising consistent with the principles laid down in European Court of Human Rights". 55ether the police and Crown Prosecution Service (CPS) opt to facilitate special measures to obtain the best evidence from child witnesses is another issue.Burton et al. discovered that, in practice, the rebuttal on recorded interview took place against child witnesses in violent cases when the defendant is also a child. 56This happens because at that time these statutory measures were not similarly 50 Ibid, paras 39, 56-57 51 Ibid, para 16 52 applicable to child defendants, even though the witnesses were actually considered vulnerable and eligible for special measures under the YJCEA 1999. 57Therefore, the evidence-in-chief in cases involving defendants and witnesses below 17 (at that time) was rarely pre-recorded, as it is discretionary. 58The tendency to exclude child witnesses from the application of special measures was, inter alia, due to "the 'parity principle' application among older children, human rights issue of 'fairness' perception, (and) avoidance of more favourable treatment on child witness but the child defendant is similarly vulnerable". 59e absence of SM applications for defendants has initially invited various criticisms. 60It was observed that the statutory denial of special measures for child defendants in Section 19(1) (a) of the YJCEA was countered by the needs of Article 6(3) (d) of the ECHR on the right of defendants to examine witnesses "under the same conditions as witnesses against him" and Article 40(iv) of the UNCRC. 61It was additionally in dispute with the judicial requirements 62 , as in T & V v United Kingdom 63 , to make the courtroom procedure for child defendants less intimidating.Statutory protection measures for child and other vulnerable and intimidated defendants were impliedly favourable rather than depending on the common law judicial discretion. 64Legislative measures were suggested as to preserve a fair trial statutorily and uphold more justifiable conduct of the trial for all participants including the defendants, besides eliminating doubts in and contention with the YJCEA's provisions.

Malaysian Scenario
Similar occasion in Malaysia is where some would argue that providing special measures for VIWs of the prosecution will affect the rights of the defendants.It has been discussed earlier that providing measures that prohibit face to face confrontation may affect the defendants' ability to confront the witnesses in a way which they perceive to be advantageous to their interests.In this regard, the defendants' interests may be compromised, but their rights are not as rights need to be distinguished from interests.This is an issue which had been presented to the practitioners in a study 70 to get their perspectives.
Most of the practitioners from 25 respondents in the study, including some defence counsels 71 , were of the views that SM applications for VIWs do not affect the rights of the defendant in general.Prosecutor-AG5 considered that live link will not affect the defendant's rights in a trial, because the witness is within sight of the defendant through the monitor screen.
In my opinion it does not [affect the right of the defendant]; …they also can see and hear how the witness responds; because we have one screen for the prosecution, the counsel has one screen on his own, and the judge also has his or her own screen.So there is no issue of tampering with the evidence whatsoever; because the things are in the court itself.It is just the separate room.(Prosecutor-AG5) The concern of Prosecutor-AG5 is not so much with the right to confrontation but rather with the issue of tampering with the witnesses' evidence.Prosecutor-AG6 argued that, although a face-toface confrontation is absent in a live-link trial, it does not depreciate other procedures for examining the witness.Examination-in-chief, cross-examination and, on certain occasions, re-examination, are performed as usual on that particular witness by means of live camera and monitor screen.It is possible to relate the notion of Prosecutor-AG6 on live link to remote link and screens, as the normal examination procedure of witnesses can be carried out, but further evaluation needs to be made of the application of video-recorded evidence.However, none of the practitioners in the study 72 discussed this, as this measure has yet to achieve stand in practice.
It is further presumed by Prosecutor-AG6 that the defendants cannot justifiably object to SM applications as witnesses afforded with these measures are usually known to the defendants, and defendants are already aware of the grounds of application: Now, if the defendant would want to object then let him object and we'll hear the grounds of objection, why are you objecting to this application you see?It's a twoway thing.We can make the application.You can file yours… You can put your objection; and if you were to object… You tell us why you are objecting to this; because you'll be in court.You'll be listening to this particular witness testifying; and you know this witness. (Prosecutor-AG6) To assume that SM applications are usually given to those witness who are known to the defendants, reflects an exclusionary approach, which will inadvertently circumscribe the identification of VIWs and the application of special measures, especially amongst adult witnesses.Many adult witnesses are potentially vulnerable and the failure of the criminal justice system to identify them has been proved in many studies. 73wever, Prosecutor-AG6 agreed that the SM applications could still have an impact on the defendants in the sense that their use can influence the court's impression of the defendants.That, which can be inferred by the court from the acts and reactions of the witness in the identification of accused/defendant procedure within a trial 72 Abidah Abdul Ghafar, Legal Protection (2011)   73 Bull (1995); Milne and Bull (1999)  with live link or screen, will favour the prosecution evidence.The inference would be that the witness's demeanour of avoiding a face to face confrontation with the defendant is evidence in itself against the defendant.Prosecutor-AG6 explained that the possible inference made by the court could create a negative impression of the defendant: The court observes now that this particular witness is adamant, that she doesn't want to see.What does that show?That shows that this guy is really the perpetrator.He really did it to the daughter or else the daughter would not be refusing to even look at him.That will be the impact on the defendant.The impression of the court is that; 'you' must have done it, mustn't you; or else why would your own daughter not even want to see your face on TV?; on the screen she would not even see!She's so scared even to that extent.We have convinced her "no, your daddy is not here.He will just be appearing on the screen; your TV screen".Still she refused.(Prosecutor-AG6) If this kind of impact occurs in trials with SM applications, it is likely to affect the right of the defendants to a fair trial and, in this regard, to the presumption of innocence, whereas the objective of applying special measures is merely to assist witnesses in court without compromising the rights of the defendants.The possibility of negative inferences about the defendants is more apparent if the justification submitted by the prosecutors to the court in support of their application is based on witnesses' fear of seeing the defendants, or the existence of intimidation.Prosecutor-AG6's viewed that the defendants should not object as they already know what the witnesses are afraid of.
The defence perspective shows that, for various reasons, not all SM applications are challenged.SM applications will not be objected to by the defence counsels if they do not prejudice the rights of the defendants; i.e. when they feel unthreatened.In this regard, Counsel-DC3 stated that objections by the defence in a proceeding in general are made on two grounds: first, on any breach of law of procedure; and second, on the practitioner's approach and style in examining the witness: Objection or not from the defence counsel is related to two aspects: firstly, whether the measure transgresses any legal aspects or procedures; and secondly, in terms of the style of the prosecutor.If the conduct or the questions forwarded contravene the legal aspects and evidence, for example in terms of relevancy, in terms of guiding the witness, leading and so on, I will usually object.But if it involves tolerable matters and the prosecution also informs us in a gentlemanly manner from the beginning, my stand is that there is no need to object.(Counsel-DC3) SM applications are also viewed as not contravening the rules and laws of evidence, unlike coaching the witnesses, which is expressly prohibited by the laws of evidence. 74Counsel-DC3's response indicates this: However, let the witness relate.So long as the narration is not coached or scripted by the prosecution, let her/ him describe.We will have opportunity to crossexamine her/him.(Counsel-DC3) This implies that the defence counsels are unlikely to object if the application does not affect the rights of the defendants.Prosecutor-AG2, Prosecutor-AG4, Prosecutor-AG5 and Prosecutor-AG6 stated that they have never experienced an objection by the defence counsel to SM applications.Although Prosecutor-AG7 has experienced objections from the defence, thus far the court has not upheld the objections; therefore her applications for special measures have so far always been granted by the court.The lack of objection from the defence reflects that the interests of defendants are safe and unthreatened despite the SM applications.This coincides with the notion that SM applications do not affect the interests of defendants; hence do not contravene to the right of fair trial.
The discretionary provision of Section 272B of the CPC has left the decision to afford SM applications for adult witnesses to the court.In this regard, Counsel-DC1 does not consider that SM 74 Evidence Act 1950, (Act 56) ss.141, 142 and 143 applications will affect the right of the defendant as the matter is left to the discretion of the court, which takes a neutral stance in the adversarial proceedings: So, whether protecting the right of the witness has an impact on the right of the defence, actually you have to keep in mind that, at the end of the day, the goal of doing this is to uphold justice; just in the administration of criminal law.So, the court will be very careful not to violate any rights available to the defendant.(Counsel-DC1) The defence does not feel affected, as leaving the matter to the discretion of the court might in a way safeguard the right of the defendants to a fair trial.This is also supported by Counsel-DC3, who believed that the court should play a significant role in balancing the rights of both sides to a fair trial and should not be 'excessive' in giving protection to prosecution witnesses.This is consistent with the opinion of Prosecutor-AG6 on the impact of special measures on the neutrality and impartiality of the court.
The mandatory SM applications for child witnesses under the ECWA 2007 is nonetheless acceptable to the defence counsels since the strict requirement on the need for corroboration 75 of the admissibility of children's evidence is understood. 76To the contrary, mandatory requirement for corroboration of unsworn evidence of child witness, which is still operative in Malaysia, albeit the abolishment in other jurisdictions, 77 may deteriorate the enhancement of victims'/ VIWs' rights, and become anti-climax to the development of SM applications.
On the other hand, a viewpoint from the defence on SM applications indicates that "confrontation" should not only be significant for defendants, but also for the victims/VIWs, with respect to the strength of the case and potency to win.The counsels raise the issue of confidence and ability to confront the defendant in the courtroom defendants.Counsel-DC5 reacted to the need to have a fair trial, not only for the defendants, but for all parties to the proceeding, stating that 'everybody should be given an opportunity to voice their views, to defend themselves… likewise a fair trial must be, fair to everybody'. 79Allowing SM applications to facilitate witnesses in giving testimony in the proceedings, establishes a fair trial for victims/VIWs by embedding their rights and interest in the account of criminal justice system, but will still not secure the same right and status quo to them as similar to that of the defendants.

Conclusion
SM applications in Malaysia are acknowledged by most of the practitioners in the above study as capable of enhancing victims' and VIWs' rights without eroding the rights of the defendants.The lack of objections from the defence counsels demonstrates that SM applications do not affect the strength of their cases and, to a certain extent, possibly work in favour of the defence.Some of the evidence rules in the adversarial system might be against the defendants' interests but they do not necessarily encroach, erode or affect the defendants' rights; this applies similarly to the SM applications for VIWs.However, the existence of a 'balancing approach' is shown in the above study through the notion of allowing SM applications as a 'trade-off' for certain procedures in favour of the interests of the defendants, such as disclosure procedure. 80In short, some defence counsels do see SM applications as a 'bargaining tool' to secure and to show that it is detrimental to their interests.
On the other hand, this research has shed light on the insight of some criminal justice practitioners on SM application for VIWs.Those practitioners, particularly the prosecutors, have acknowledged the notion that SM applications should only be provided for witnesses, not defendants, despite the potential needs and interests of the latter. 81However,this is not yet the case in current Malaysian practice.Given the scenario, it is hoped that the objective of SM applications in securing facilities for VIWs in courts proceeding will earn better achievement of justice through understanding and commitment of criminal justice practitioners.
They are still subjected to the normal examination by all the parties concerned.So, there's nothing wrong with having the special measures being afforded to this kind of witnesses.(Prosecutor-AG6) 70 Abidah Abdul Ghafar, 2011, Legal Protection for Vulnerable and Intimidated Witnesses (VIWs) from the Perspective of Human Rights: An Analysis in the Malaysian Criminal justice System, PhD Thesis, Leicester, United Kingdom and (2003);Hamlyn et al. (2004) Mandy Burton, Evans R and Sanders A, 'Implementing Special Measures for Vulnerable and Intimidated Witnesses: The Problem of Identification' [2006c] Crim LR 229; Burton et al. (2006a)  and (2007).

Public
Prosecutor v Gurdial Singh Pretum Singh & Ors [2003] 1 CLJ 37 77 This requirement has been abolished in English, Canadian, Australian, New Zealand and American laws.SeeHoyano and Keenan (2010) 690-698 in Asian region.8Theemergenceforvictimpolicy and victim support was influenced by the 4 th International Symposium on Victimology in Japan in 1982 and the United Nations' (UN) Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power in 1985. 9sequently, Malaysian criminal justice system embarked on protection of VIWs, particularly child witnesses.The first legislation to reform the criminal process in Malaysia since 20 years is the Criminal Procedure Code (Amendment) Act 2006.The use of video conferencing and live television link in the examination of witnesses is introduced in Section 272B of this Act, which was gazetted and passed into law on 5 October 2006.Under this provision, "a person, other than the accused, may, with leave of the court, give video or live evidence through a live video or live television link in any trial or inquiry, if it is expedient in the interest of justice to do so".10Thetendency to put the standpoint into practice in the Malaysian legal system is further demonstrated in the establishment of the Evidence of Child Witness Act 2007 (ECWA 2007) 11 .
International Covenant on Civil and Political Rights that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law," although Malaysia is not a signatory to the Convention and Covenant respectively.spread United Nations Convention on the Rights of the Child (UNCRC), which Malaysia have signed and acceded to.33Notwithstanding the definition of 'child' in this Act, other words such as 'juvenile' and 'youthful offender', still exist in other legislations addressing minor or young offender in the criminal justice.In the ECWA 2007, 'child witness' is "a person under the age of sixteen years who is called or proposed to be called to give evidence in any proceedings…".34 Malaysian Child Act 2001 31 defines a 'child' as any person below the age of 18. 32 This definition acquiesces to the provision of 23 Nithiyanantham Murugesu, 'The Role of the Law and the Courts in Preventing the Abuse of Children -The Malaysian Perspective' [2010] 5 MLJ cxxv; [2010] 5 MLJA 125 30 Ibid, s. 8 (4) 31 Malaysia, Child Act 2001 (Act 611) 32 Child Act, (Act 611) s. 2 the

43 Victims/Witnesses of Domestic Violence
, psychological, emotional and verbal abuse, social abuse (enforced isolation), economic abuse (total control of finances) and sexual abuse (rape and coercion into sexual acts)". 44stic violence issues in Malaysia became the centre of discussion as early as in the 1980s.45Anationalsurveyconducted by the Women's Aid Organisation (WAO) estimated that, in 1989, 1.8 million or 39 per cent of women aged above 15 had been physically abused by their partners, but only 909 cases were reported in that year.46Reform of law and procedures have been significant in the success of SM applications for victims of domestic violence.The establishment of the WAO and the setting-up of the first centre for protection and shelter of abused women in Malaysia in 1982 pioneered the development of the reform process on domestic violence issues.It took an eleven-year effort through various workshops, campaigns and negotiations before the implementation of the Domestic Violence Act 1994 (DVA 1994) 47 on the 1st of June 1996.

Witnesses with Mental Impairment and/Or Physical Disability
There are adults who can become vulnerable witnesses due to mental incapacity or physical disability.In this category, victims/ witnesses suffering from physical or mental incapacity, including mental disorder, significant learning disability, physical disorder and physical disability may need SM application to accommodate their appearance in court.Depending on the disability of victim/witness, an intermediary may need to be appointed for such witnesses in order to facilitate them to testify in court.Unlike physical deficiency, mental disabilities that can render the witnesses vulnerable are hard 44 Ian Marsh, John Cochrane and Gaynor Melville, Criminal Justice: An Introduction to Philosophies, Theories and Practice, (London: Routledge 2004) 98.
Child and  Family Law Quarterly 562The disparity in protection has obviously occurred in cases of child and juvenile defendants whereas SM applications for child witnesses were arguably compatible with the right to a fair trial under Article 6 of the ECHR and consistent with the jurisprudence of the European Court of Human Rights. 66erefore, depriving child victims and witnesses of special measures based on the parity principle was a questionable practice 67 especially when the House of Lords in R v Camberwell Green Youth Court ruled that protection for child victims should not be denied even if the same protection was previously not available to the defendants.The issue of how such difficulties might be resolved has been addressed by the legislature, with the introduction of provisions under the Coroners and Justice Act 2009 (CJA 2009), allowing SM applications for child and vulnerable defendants.The conditions of eligibility 68 are nonetheless quite different from that of VIWs under the YJCEA 1999 as it is not merely by virtue of age but other impairments beyond the fact of age alone must be exhibited.The recent development of the CJA 2009 has established the eligibility of using live-link and assistance of intermediaries for adult defendants suffering from significant mental disabilities.This CJA 2009 has also recognized witnesses to violent offences against person involving the use of firearms and knives as intimidated and automatically entitled for SM applications.These legislative measures are arguably potential to raise debates on receptive arguments under Article 6 ECHR and inconsistency in the treatment of VIWs.69 64Rhonda Powell, 'R (D) v Camberwell Green Youth Court -child witnesses deemed to be in "need of special protection" and the European Convention' (2006) 18(4) and has already been introduced inThe ECtHR suggested that it may be appropriate to appoint intermediaries for defendants with communication needs in SC v United Kingdom (2005) 40 E.H.R.R. 10; [2005] 1 F.C.R. 347 (European Court of Human Rights).See alsoBurton et al. (2006b) 402-404;  Powell R (2006) 562; Hoyano [2001]948;Birch [2000]241-242