Thailand Civil Procedure Code-Section-106-121

CHAPTER II
ATTENDANCE AND EXAMINATION OF WITNESSES

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Section 106.69 In the case where it is not possible for any party to bring his or her witness to the court, such party may, prior to the date of taking evidence, request the court to issue a subpoena for such witness to attend the court. The court may require such party to state the witness’s relation with the facts of the case which necessitates the issuance of such subpoena and such subpoena shall be served together with a copy of the statement of the applicant on the witness at least three days in advance.

A subpoena shall contain the following particulars:

1. The name and address of the witness, the names of the parties, the court and the counsel of the applicant;
2. The place, date and time at which the witness is to attend;
3. The penalty to be inflicted in the case of non-attendance or giving false evidence. If the court views that the witness would not be able to give testimony without preparation, the court may note down in the subpoena the facts about which the witness may be questioned.

Section 106/1.70 No subpoena may be issued to:

1. the King, Queen, Heir Apparent or Regents in any case;
2. Buddhist priests and novices in any case;
3. Persons entitled to privileges or immunities under law.

In the case of (2) and (3), the court or assigned judge or appointed court shall issue a notice specifying a place, date and time of examination of such witness in lieu of the issuance of a subpoena. In the case of (2), such notice shall be submitted to the witness and in the case of (3), to the Office of the Court of Justice for proceeding according to the provisions of such law or the principle of international law.

Section 107.  If the court views that, in the investigation into the truth, it is necessary to examine a witness at the place where the fact to which the witness is required to testify occurs, the court or the judge assigned or the court appointed for such purpose shall serve a subpoena on the witness, specifying the place, date and time at which examination will take place and shall examine the witness accordingly.

Section 108.71 A witness on whom the subpoena has been duly served as provided in section 106 and section 107 shall be bound to appear at the place, date and time prescribed, unless there is illness or any other excuse of necessity, provided that such incident has been notified to the court and the court views that such justification or excuse is admissible.

Section 109. When any witness has already given his or her testimony, irrespective of whether he or she has been served with a subpoena or brought by a party, such witness shall be discharged from his or her duty of remaining in the court unless the court orders such witness to remain for a period of time to be prescribed by the court.

Section 110. If any witness whose testimony wished to be relied upon as duly notified by the party fails to appear before the court on the date scheduled for examination of such witness, the court may continue to proceed with the trial and adjudicate the case without examining such witness, subject to the provisions of the following sections.

Section 111.72 When the court views that the testimony of a witness failing to appear in the court is material in deciding the case:

1. but the court views that the allegation that the witness is unable to appear before the court due to illness or any other excuse of necessity is admissible, the court may adjourn the hearing for the witness to appear or for examining such witness at the place and time suitable to the circumstances; or
2. when the court views that the witness has been duly served with a subpoena and willfully failed to appear in the court or at the place and on the time prescribed or willfully absconded after receiving an order of the court to stay on, the court may adjourn the hearing and issue a warrant of arrest and detain the witness until he or she will give testimony on the date as the court sees fit, without prejudice to the penalty provided in the Penal Code.

Section 112.73 Before giving testimony, all witnesses must swear according to each witness’s religious belief or national custom or take a vow that he or she will give true testimony, with the exception of the following persons:

1. the King, Queen, Heir Apparent or Regents;
2. Persons under fifteen years of age or persons found by the court to be incapable to understand right and wrong;
3. Buddhist priests and novices;
4. Persons not required to swear or vow as agreed by both parties.

Section 113. All witnesses shall give testimony orally and may not read the contents he or she wrote unless permission has been granted by the court or he or she is an expert witness.

Section 114. No witness may give testimony in the presence of other witnesses who will later give testimony, and the court shall have the power to direct other witnesses in the courtroom to leave the courtroom.

However, if any witness has given testimony after hearing a preceding witness’s testimony in his or her presence and the opposing  party alleges that the court should not admit such testimony due to irregularity, if the court views that such testimony is reliable or has not been affected by the testimony of the preceding witness having been heard or cannot modify the decision of the court, the court may refuse to admit that such testimony is irregular.

Section 115.74 Even though the King, the Queen, an Heir Apparent, a Regent or a Buddhist priest or novice appears as a witness, he or she may refuse to give testimony or answer any question. A person entitled to privileges or immunities under law may refuse to give testimony or answer any question subject to the conditions prescribed by such law.

Section 116. Preliminary, a witness shall answer the questions regarding the name, age, position or occupation, domicile and relationship with the party.

The court may then perform any of the following acts:

1. The court may ask the witness by himself or herself by informing the witness of the issues and facts to be examined and requiring him or her to give testimony concerning such issues, either by way of making a narrative of his or her own or by way of answering the questions of the court; or
2. Allowing the parties to examine and cross-examine the witness at once as provided by the following sections.

Section 117.75 A party calling a witness shall be entitled to examine the witness immediately once the witness has sworn and identified himself or herself under section 112 and 116, or if the court will first examine the witness, the party shall examine him or her after examination by the court has been completed.

When the party calling the witness has completed the examination-in-chief of the witness, the opposing party shall then be entitled to cross-examine the witness.

When the cross-examination is completed, the party calling the witness shall  be entitled to re-examine the witness.

When the re-examination is completed, no party may further examine the witness unless permission has been granted by the court. If any party is permitted to put questions to the  witness, the opposing  party  may  cross-examine the  witness on  points  relating to  such questions.

A party who has specified any witness may opt not to examine such witness as long as such witness has not yet given testimony in the examination by the court or in the examination-in-chief by the said party. However, if the witness has begun to give testimony, such witness may be cross-examined or re-examined.

If the witness gives testimony against the party calling him or her, such party may request permission from the court to examine such witness as if he or she were a witness called by the opposing party.

An examination-in-chief, cross-examination or re-examination of a witness shall be carried out by one counsel in the case where the party has appointed several counsels, unless the court views otherwise.

Section 118. In the case where the party calling a witness will examine or re-examine the witness, such party shall not put any leading question, unless consented to by the opposing party or permitted by the court.

In the re-examination by the party calling the witness, such party shall not put any other questions than those relating to the testimony given by the witness in the cross- examination.

In any case, no party shall put to the witness:

1. a question which is irrelevant to the issues of the case;
2. a question which may expose the witness or the opposing party or any third party to any criminal charge or a question which defames the witness, unless such  question  is material in deciding a dispute.

If any party puts a question to a witness in violation of the provision of this section, the court, when it sees fit or upon objection by the opposing party, shall have the power to decide if such question is allowed. In this case, if the party concerned raises an objection to the decision of the court, the court, before it continues to proceed with the case, shall make a report specifying such question and objection. With regard to the reason based on which the objecting party has raised his or her objection, the court, in its discretion, shall note down the reason on the report or require such party to file a written statement for inclusion in the file.

Section 119. At any time while a witness is giving testimony or after he or she has given testimony but before judgement, the court shall have the power to put to the witness any question it thinks necessary to make the witness’s testimony complete or clearer or to inquire into the circumstances that led the witness to give such testimony.

If two or more witnesses give contradictory testimony on any material issue, the court, when it sees fit or upon the request of either party, shall have the power to call for such witnesses to be inquired simultaneously.

Section 120. If any party alleges that the testimony of any witness called by the opposing party or summoned by the court should not be believed for a reason found to be founded by the court, the court may allow such party to produce evidence to support his or her allegation as it sees fit.

Section 120/1.76 A court, upon the motion by any party and when the opposing party raises no objection, may, if it sees fit, permit the party filing the motion to submit a record of statement, in whole or in part, of the person intended to be called by such party to be a witness to confirm facts or opinions of the statement provider before the court in lieu of an examination-in-chief of the statement provider as a witness before the court.

The party who wishes to submit a record of statement in lieu of an examination-in- chief of a witness under paragraph one shall file a motion stating his or her wish together with the reasons with the court before the date of settlement of issues or before the date of taking evidence in the case where there is no settlement of issues, and the court shall consider determining a period of time for the party to file such record of statement with the court and serve a copy of such record of statement on the opposing party not less than seven days before the date on which such witness will be examined. After the record of statement has been filed with the court, the party filing it may not withdraw it. Such record of statement shall, after being certified by the witness’s testimony, be deemed an integral part of the testimony given in reply to the examination-in-chief.

The statement provider shall attend the court to give testimony in reply to any additional examination, cross-examination and re-examination questions of the parties. If the statement provider fails to appear, the court shall refuse to admit the record of statement of such person as evidence in the case. However, if the court finds that the statement provider is unable to appear in the court due to necessity or force majeure and for the purpose of justice, the court may admit the record of statement of the statement provider who did not appear in the court in support of other evidence.

In the case where the parties agree that the statement provider is not required to attend the court or the opposing party consents to such non-attendance or does not wish to cross-examine such person, the court shall admit the record of statement as evidence in the case.

Section 120/2.77 The court, upon the mutual motion by the parties and when it sees fit, may permit the submission of a record of statement of facts or opinions of the statement provider whose residence is in a foreign country to the court in lieu of bringing the oral evidence to give testimony before the court; provided, however, that the right of the statement provider to appear before the court for giving additional statement shall not be precluded.

Section 47, paragraph three shall apply, mutatis mutandis, to the signature of the statement provider.

Section 120/3.78 A record of statement under section 120/1 and section 120/2 shall contain  the  following particulars:

1. The name of the court and case number;
2. The day, month, year and place where the record is made;
3. The names and surnames of the parties;
4. The name, surname, age, address and occupation of the statement provider and his or her relationship with the party;
5. The factual details or opinions of the statement provider;
6. The signatures of the statement provider and of the party who submits the record of statement.

No amendment may be made to a record of statement which has already been filed with a court other than for the purpose of correction of errors or minor mistakes.

Section 120/4.79 Either party may request the court to examine oral evidence outside the court through a video conference system and the expense of which shall be borne by the party calling the oral evidence. For the purpose of justice, the court may grant such motion and the court shall conduct the proceedings in accordance with the Regulations in relation to the guidelines on taking of evidence of the President of the Supreme Court with the approval of the general assembly of the Supreme Court issued under section 103/3, and shall specify the method of examination, place and witnesses of such examination in accordance with such Regulations. Such expense shall not be deemed to be a proceeding cost.

The testimony under paragraph one shall be regarded as testimony given by a witness in a courtroom.

Section 121. At each hearing, after any witness has already given testimony, the court shall read to the witness such testimony and ask the witness to affix his or her signature thereon as provided in sections 49 and 50.

The provision of paragraph one shall not apply to the case where a record of statement is used in lieu of the testimony of a witness under section 120/1 or section 120/2 or where the examination of a witness is conducted through a video conference system under section 120/4 or where a witness testimony is recorded on the material capable of visually or audibly broadcasting or by any other means whereby the recording is verifiable by the parties and witness. If any party or a witness requests to inspect such recording, the court shall arrange for the inspection.80

Unofficial Translation,  Chaninat and Leeds,  Thailand Child Custody Lawyers

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