THE CRIMINAL PROCEDURE AMENDMENT ACT (NO. 20) B.E. 2542 (1999) --------------------------------------------- BHUMIBOL ADULYADEJ, REX. Given on the 4th September B.E. 2542 (1999) Being the fifty fourth year of the present Reign His majesty King Bhumibol Adulyadej is graciously pleased to proclaim that:
Whereas it is expedient to revise the Criminal Procedure Code;Be it, therefore, enacted an Act by the King, by and with the advice and consent of the Parliament, as follows:
Section 1 This Act shall be called “ the Criminal Procedure Amendment Act (No. 20) B.E. 2542”.Section 2 This Act shall come into force after one year as from the day following the date of its publication in the Royal Gazette.
Section 3 This provision shall be added to be Section 12 bis. of the Criminal Procedure Code:“Section 12 bis. In lodging a complaint, in conducting an inquiry, in a preliminary hearing and in a trial, if there is a provision that a psychologist or social worker shall participate, such a psychologist or social worker shall have the qualifications specified by ministerial regulation.
A psychologist or social worker specified in the first paragraph shall receive remuneration as stipulated by regulation of the Ministry of Justice with the consent of the Ministry of Finance.” Section 4 This provision shall be added to be the fourth paragraph of Section 124 of the Criminal Procedure Code:“In recording a complaint in a case in which the injured person is a child not yet over eighteen years of age, the provision of Section 133 ter. shall apply mutatis mutandis.”
Section 5 These provisions shall be added to be Section 133 bis. and Section 133 ter. of the Criminal Procedure Code:“Section 133 bis. In a case of which the maximum imprisonment is three years or more, or in a case of which the maximum penalty is under three years imprisonment and the injured person or witness who is a child makes a request for, or in a case in which the offence is physical assault against a child not yet over eighteen years of age, the statement of the child as an injured person or a witness shall be taken in privacy in a suitable place for the child and there shall be a psychologist or social worker, a person whom the child requested to be present and a public prosecutor to participate in the inquiry.
It shall be the duty of the inquiry official to inform the psychologist or social worker, the person whom the child requested to be present and the public prosecutor to participate in the inquiry.
The injured person or witness who is a child may reject the presence of the psychologist or social worker, or the public prosecutor participating in the inquiry. In such a case, the rejected person shall be replaced.
Subject to the provision of Section 139, in taking the statement of the child in accordance with the first paragraph the inquiry official shall provide to have a video and audio recording of that statement, which can be continuously played back, to be used as evidence.
In an extremely urgent and necessary case with a reasonable cause if the inquiry official cannot wait for a psychologist or social worker, the person whom the child requested to be present and a public prosecutor to participate together at the same time, the inquiry official may take a statement of the child with the participation of any person as specified in the first paragraph but the cause of not being able to wait for the other persons shall be recorded in the inquiry dossier. The statement taken from the injured person or witness who is a child in such the case shall not be deemed illegitimate.
Section 133 ter. In case it is necessary that an inquiry official has to arrange for a child not yet over eighteen years of age, who is the injured person or witness, to identify an accused person, the inquiry official shall arrange for the identification process to be done in an appropriate place where the accused is prevented from seeing the injured person or witness. A psychologist or social worker, the person whom the child requested to be present and a public prosecutor shall be present during the process of identifying the accused and the provision of the fifth paragraph of Section 133 bis. shall apply mutatis mutandis.”
Section 6 These provisions shall be added to be Section 134 bis. and Section 134 ter. of the Criminal Procedure Code: “Section 134 bis. In a case in which the accused is not yet over eighteen years of age on the day the accused is charged of committing an offence by an inquiry official, before the inquiry begins the inquiry official shall ask whether the accused has a counsel, if the accused has none the state shall provide one for the accused.In providing a counsel in accordance with the first paragraph, the inquiry official shall perform in accordance with the rules, methods and conditions stipulated by ministerial regulation and the state provided counsel shall receive a reward and expenses as stipulated in the regulation of the Ministry of Justice with the consent of the Ministry of Finance.
Section 134 ter. In taking the statement of an accused who is a child not yet over eighteen years of age, the provision of Section 133 bis. shall apply mutatis mutandis.”
Section 7 This provision shall be added to be the second paragraph of Section 155 of the Criminal Procedure Code:
“The provision of Section 172 ter. shall apply mutatis mutandis to the
examination by the Court under Section 150 of the case in which the witness is a child
not yet over eighteen years of age.”
Section 8 This provision shall be added to be the second paragraph of Section 171 of the Criminal Procedure Code:
“The provisions in Section 133 bis. and 172 ter. shall apply mutatis
mutandis to the preliminary examination in the case of which the witness is a child
not yet over eighteen years of age, both where the charge is entered by the injured person
and where the charge is entered by the public prosecutor.”
Section 9 These provisions shall be added to be Section 172 ter. and Section 172 quarter. of the Criminal Procedure Code: “Section 172 ter. In taking testimony of a witness in a case in which the witness is a child not yet over eighteen years of age, if the court thinks fit and arranges for the witness to be in a suitable place for the child, the court may do any of the following acts:
the witness through a psychologist or social worker.
In taking the testimony of the witness as mentioned in the first paragraph, the sight and sound of the witness shall be transmitted to the trial room and it shall be the duty of the court to notify the psychologist or social worker to participate.
Before taking the testimony under the first paragraph, the court may arrange for the visual and audio recorded statement of the witness taken in the inquiry under Section 133 bis. or taken in the preliminary examination under the second paragraph of Section 171 to be played back in front of the parties, and if the court thinks fit the court may consider such visual and audio statement of the witness to be part of the testimony of the witness in the trial.
In case the witness cannot be brought to testify as mentioned in the first paragraph due to an extremely necessary cause, the court may consider the visual and audio records of the statement of the witness taken in the inquiry under Section 133 bis. or taken in the preliminary examination under the second paragraph of Section 171 as if it were the testimony of the witness in the trial of the court, and the Court shall admit it as evidence and take it into consideration in corroboration with other evidence in making the judgment of the case.
Section 172 quarter. The provision of Section 172 ter. shall apply mutatis mutandis to a trial which is arranged to be done outside a courtroom and the witness in the case is a child not yet over eighteen years of age.”
Section 10 The provisions in Section 237 bis. of the Criminal Procedure Code as amended by the Criminal Procedure Amendment Act (No. 15) B.E. 2527 shall be repealed and the following provisions shall be replaced:“Section 237 bis. Before an accused is prosecuted before a court, when there is a reasonable ground to believe that a witness will travel out of the Kingdom, or has no fixed residence, or lives far away from the trial court, or there is reasonable ground to believe that the witness will be directly or indirectly tampered with, or there is any other reason arising from necessity which will cause difficulty in bringing the witness to testify in the future, the public prosecutor, by his/her own initiation or by receiving an application from the injured person or the inquiry official, may file an application to the court, specifying all the acts of offence alleging that the accused had committed and request the court to issue an order for the examination of such witness forthwith. If the offender is known and is detained under the authority of the inquiry official or the public prosecutor, the public prosecutor shall arrange for that person to be in court. If the offender is detained under the authority of the court, the court shall issue an order for that person to be brought to court for the examination.
When the court receives such an application, the court shall immediately examine the witness. In the examination process, the accused may cross-examine or appoint a counsel to cross-examine the witness.
In the case mentioned in the second paragraph, if the accused is alleged to have committed a criminal offence which the court has to appoint a counsel for the accused or the accused has the rights to request the court to appoint a counsel when he is prosecuted in accordance with Section 173, then before the beginning of the examination the court shall ask the accused whether the accused has a counsel. In case that the court has to appoint a counsel for the accused, if the court can appoint a counsel in due time, the court shall appoint a counsel for the accused and shall proceed immediately with the examination of the witness. If the court cannot appoint a counsel for the accused in due time or the accused cannot appoint a counsel in due time, the court shall examine the witness on behalf of the accused
The court shall read the recorded testimony of the said witness to the witness. If the accused is present in court, the court shall read the recorded testimony in front of the accused.
If the accused is prosecuted later on for committing the said offence, the deposited testimony shall be admitted as evidence in the trial of the case.
In case the accused is of the opinion that if the accused is prosecuted in court, a person who is needed by the accused to be a witness will travel out of the Kingdom, or has no fixed residence, or lives far away from the trial court, or there is a reasonable ground to believe that the witness will be directly or indirectly tampered with, or there is any other reason arising from necessity which will cause difficulty in bringing the witness to testify in the future, the accused may file an application to the court specifying the reason arising from necessity and request the court to issue an order for the examination of such witness forthwith.
If the court thinks fit, the court shall give permission for such examination of the witness and shall inform the inquiry official and public prosecutor involved in the case. The public prosecutor has the rights to cross-examine the witness in the examination and the provisions in paragraph three, four and five shall apply mutatis mutandis.
In the examination of a child witness not yet over eighteen years of age, the provision of Section 172 ter. shall apply mutatis mutandis.”Counter-signature
Chuan Leekpai
Prime Minister
Note :- The rationale for enacting this Act is that at present the Criminal Procedure Code provides that the procedure used to take statement from a child under eighteen years of age as an injured person or a witness during an inquiry or the procedure to take a testimony from a child during a trials in court shall be the same procedure as those applied to an adult. In the inquiry process the inquiry official has inadequate expertise in child psychology and he do not give enough consideration to the physical and mental weakness of the child. The language used with the children is also not appropriate. These factors cause the statement-taken process to have severe impact on the mental state of the child and the result is the incorrect statement in the inquiry. In taking testimony of a child witness in a trial, the child has to confront with the defendant in the trial room and has to answer the same questions as being asked in the inquiring process which is the second victimization for the child. The questions used may be the questions that further hurt the already traumatic mind of the child and the result is also the incorrect testimony. Moreover, the procedure used in recording a complaint, in a post mortem inquest, in a preliminary examination, and in a trial where the child is involved may cause the same results. Therefore, it is expedient to amend relevant provisions in the Criminal Procedure Code to establish special processes of taking statements and testimony of children to be more appropriate. These special procedure is amended to be in accordance with Article 12 of the Convention on the Rights of the Child 1989 and the provisions in Sections 4 and 53 paragraph one of the Constitution of the Kingdom of Thailand. Furthermore, it is also expedient to use the special testimony-taken procedure for children under eighteen years of age with the process of taking testimony of children for deposition. Thus, this Act has to be enacted.