Duty not to case aspersion on witnesses without sufficient proof

Definition of cast aspersions on : An attack or criticize of repudiation of someone harshly or

unfairly

Legal Profession often berating witnesses as “hired guns” because it is well known that a
lawyer will not call a witness of an opposing view to support a claim. They are considered
unfair and a burden on the judicial process which relies upon their contribution to assist the
court. Such conduct is considered depreciated and therefore casting aspersions upon all
witnesses who are tainted by the acts of few.

A lawyer has a duty not to cast aspersions without sufficient proof. A counsel is not
supposed to reduce himself to cast aspersions on the conduct of the opposing witness and
he is at liberty to act in the best interests of the client.

Roy v Prior [1970] 2AER 729 HL

The defence counsel claimed that he had served a subpoena on a witness. He stated that
the witness was evading the court due to failure of the witness to appear in court and
subsequently sought a warrant of arrest knowing that it was untrue. The witness sued the
defence counsel for the act of arrest but the counsel raised the defence of immunity. The
House of Lord held that there are limits to the defence of immunity. If the said privilege has
been abused, the immunity will be lost. On the facts, the immunity was lost because of the
actions of defence counsel were malicious.

Recent cases
1. Malaysia’s former prime minister Najib Razak has been charged of abuse of power for
using his position as a PM, finance minister and 1MDB Board of Adviser chairman to
receive gratification worth RM 2.28 Billion. Prosecution witness Datuk Amhari Effendi
Nazaruddin, former special officer to ex-premier Datuk Seri Najib Abdul Razak and is the
eighth prosecution witness at the 1MDB trial that he had in 2010, obtained a
US$200,000 loan from Low Taek Jho (known as Jho Low) to buy a RM1.85 million
property in Kota Damansara, Selangor.
The defence counsel, Muhammad Shafee tried to cast an aspersion on the witness by
suggesting Amhari conveniently left out details on the US$200,000 loan in his witness
statement.