INTRODUCTION
6.1 For witnesses with an intellectual disability, the preliminary issue is whether the court will allow them to give evidence. The law of competency is currently a complex combination of common law and statutory amendment, designed to determine who should be able to give evidence in court. As a general proposition, witnesses are assumed to be competent. However, people with an intellectual disability are one category of witness whose competence to give evidence is often disputed. It is argued that the present law may operate unfairly to exclude from evidence the reliable testimony of certain types of witness (including people with an intellectual disability). The rules of competency may also affect pre-trial decisions, as police officers and lawyers may assume that prosecuting a suspect is pointless if the alleged victim, or the only witness to the crime, will, they believe, be found to be an incompetent witness and thus unable to give evidence.
6.2 The Australian Law Reform Commission (“ALRC”) stated in its Interim Report on Evidence that a test of competence is desirable:
Without it, the courts would be faced, on occasions, with evidence of no probative value, thus adding to the cost and expense of the trial. However, the wrong balance is struck under existing law. It is most important for the fact finding exercise and for the fairness of the trial system that a person who can give relevant evidence be permitted to do so.1
6.3 A court obviously needs to decide if a witness is capable of giving accurate and reliable evidence. The issue to be discussed in this chapter is whether the present rules are the most appropriate ones. The common law of competency is first briefly discussed, followed by an overview of changes which have resulted from legislative reform. Finally, the legislative position that would result from the passing of the exposure draft of the Evidence Bill 1993 (NSW) is outlined. The Bill, if passed, should overcome some of the difficulties set out in this chapter.
6.4 Throughout the chapter, reference will often be made to cases and legislation involving children as witnesses. This is for several reasons. Many of the cases in which competency has become a contentious issue have concerned children who have been called as witnesses, and whose ability to understand the necessary concepts has been called into question. Secondly, some of the difficulties encountered by children are similar to those faced by people with an intellectual disability. It should, however, be emphasised that people with an intellectual disability do not have the same intellectual capacity and development as children, and should not be treated as such. Thirdly, all Australian jurisdictions have now enacted legislation which makes it easier for children to be able to give evidence. It has been argued that these provisions should be extended to include people with an intellectual disability.
THE REQUIREMENTS FOR COMPETENCY
6.5 According to the ALRC, the traditional test for competence is that “a person taking the oath understand its nature and consequences”.2 The existence of a mental disorder does not necessarily render the witness incompetent, for example, in the English case of R v Hill3 a witness who had delusions that spirits spoke to him (and who was otherwise rational and sane) was held to be competent. The High Court has commented: “[s]ince R v Hill an insane person is not rejected as a witness unless his form of derangement is such as to affect his testimony on the particular facts or class of matter to which he is to depose.”4 It has been stated that, while these observations were directed toward witnesses with a mental illness, they may apply to witnesses with an intellectual disability.5
6.6 At common law, a witness was required to have a religious belief before being considered competent to swear an oath before the court.6 Significant changes, however, have been brought about by legislation which removes the requirement for witnesses to possess religious beliefs. Such changes recognised that while many people were technically ineligible to be called as witnesses for this reason, there was no substantive basis for their evidence to be regarded as unreliable. The Oaths Act 1900 (NSW)7 (“the Act”) allows witnesses to make an “affirmation” (declaration) instead of an oath. The affirmation simply omits those parts of the oath which give it a religious character.
6.7 However the removal of the requirement of religious belief does not assist a witness who does not understand the meaning of the oath. In the case of Cheers v Porter8 the High Court held that s 13 of the Act is “designed to prevent possible loss of testimony by the fact of religious unbelief or religious disbelief.” It does not assist a person whose incompetence to give evidence “results from mental incapacity or defective intellect”.9 According to a later case, a witness must still be “... sufficiently intelligent to be capable of giving a rational account of what he has seen and heard, and understand the duty of telling the truth.”10 For a witness to possess an understanding of the duty to tell the truth, he or she must realise that giving evidence to the court:
... is a grave and weighty matter calling for great care to tell the truth beyond what might be necessary for matters of trivial importance in ordinary daily living.11
6.8 The test for competence therefore remains that the person taking the oath have “sufficient intelligence” to understand its nature and consequences. The case law is not clear about whether it is necessary that the witness have some awareness of the divine sanction attending a breach of an oath such that it would have some binding effect on the witness’ conscience.12 Unlike Australia,13 the English courts have recently moved away from imposing such a strict requirement. For example, in the case of R v Hayes the English Court of Appeal stated that:
[i]t is unrealistic not to recognise that, in the present state of society, amongst the adult population the divine sanction of an oath is probably not generally recognised.
The important consideration, we think, when a judge has to decide whether a child should properly be sworn, is whether the child has a sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct.14 [emphasis added]
Following this case the English Court of Appeal upheld a decision to admit the testimony of a rape complainant with “low mental ability” (said to have a mental age of about 10 years). The trial judge had decided that the victim was competent though without sufficient belief in the existence of God. The Court of Appeal confirmed that it was no longer necessary that a witness should have an awareness of the divine sanction of the oath to be properly sworn.15
Special provisions for children
6.9 In New South Wales changes to the Act substantially alter the relevant test for the “sufficient intelligence” of witnesses under the age of 12 years,16 by relaxing some of the strict requirements that previously have excluded their testimony. Section 33 of the Act was inserted in 1985 so that children unable to take an oath could make a declaration and give evidence.17 The interpretation of this section meant that significant restrictions on the ability of children to give evidence remained in place.18 In 1990 the section was therefore again amended19 to allow a child to give evidence even where he or she does not understand the duty of telling the truth before the court. The Attorney General, in his Second Reading Speech, referred to expert opinion that a child under the age of six does have the capacity to tell the truth, yet could not be expected to understand the duty to tell the truth before the court.20 Inquiries into the (child) witness’ possession of “sufficient intelligence” are no longer directed toward an appreciation of the solemnity of the court’s processes and of its importance, but simply to whether or not the witness can tell the truth or not.
6.10 The position in New South Wales now is that “when the court, justice or [authorised] person is satisfied, having regard to the child’s age and any other matters thought relevant, that the child is not competent to take an oath,” the child’s evidence is to be received as if it were given on oath, provided that the court tells the child the importance of telling the truth; and that the child makes the declaration “I will not tell any lies in court”.21 There are two presumptions: that the child understands the difference between the truth and a lie; and that the child can respond rationally to questions.22 If either of these presumptions is rebutted to the satisfaction of the court, the evidence is inadmissible.23 It has been commented that the Act is deficient in not specifying when, how and by whom these presumptions are to be rebutted, and in not clarifying the role of the court. The same author suggests that “[w]hile it looks as though it has removed a competency test, it is clear it has only rephrased it in part and included a new criteria ‘to respond rationally to questions’.”24
Difficulties faced by the witness with an intellectual disability
6.11 There are no such special provisions for the witness with an intellectual disability who is over the age of 12 years, although such people could fall into the category of persons who have the capacity to tell the truth, but who may have difficulties under the current competency test. The difficulties faced by such a witness have been set out in a case study prepared for the Commission about a person with an intellectual disability [“X”] who was the alleged victim of a sexual assault and whose competency was challenged at trial:
The committal Voir Dire was of about 2 hours duration and concluded with Magistrate [Y] finding [X] competent to give evidence.
The trial commenced with a Voir Dire lasting about three days. In the defence submission they requested that [X] give ... evidence about the alleged assault as part of the Voir Dire, then if found competent, give the evidence again in front of the jury.
Fortunately, Judge [Z] would not permit this to happen and hence [X’s] evidence during the Voir Dire was regarding [X’s] ability to tell the truth and [X’s] ability to take an oath or make an affirmation. However, some of the issues dealt with went way beyond that.
As part of the Voir Dire, evidence was given by [X, X’s mother, X’s teacher, the Crown psychologist and the Defence psychologist].
[X] was found competent to give evidence and made an affirmation prior to giving evidence. ...
In [X’s] case a lengthy debate occurred about whether [X] understood the “duty to tell the truth” as opposed to knowing what the truth is.
The Crown examined the Defence Psychologist as to his understanding of the concept ... and with his level of intelligence he had difficulty expressing his understanding of “duty to tell the truth”, yet he expects [X], who he has assessed as a four year old to understand.25
To overcome such difficulties the Redfern Legal Centre Intellectual Disability Rights Service suggested that amendments similar to those enacted for children be considered for adults with an intellectual disability.26 The New South Wales Sexual Assault Committee suggested that changes to the Act should be made to enable evidence to be received if an undertaking, rather than an oath, was given.27
6.12 Similar problems arise under the Justices (Committal Statements) Amendment Act 1990 (NSW) which allows written statements to be tendered at committal hearings instead of oral evidence in certain circumstances. Section 48C provides two forms of endorsement for the statements, one for children under 12 years (“I have not told any lies in this statement”) and a more complicated one for people over 12 years (“This statement made by me accurately sets out the evidence which I would be prepared, if necessary to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.”) The latter statement would have obvious difficulties for many people with an intellectual disability over the age of 12 years.28
THE EVIDENCE BILL
6.13 Following the recommendations of the Australian and New South Wales Law Reform Commissions29 a new test for competency to give evidence is now contained in the exposure draft of the New South Wales Evidence Bill 1993, which, if passed by Parliament, will replace the present Evidence Act 1898 (NSW). The Commonwealth has already introduced into Parliament its Evidence Bill 1993 (Cth), which is in almost identical terms to the New South Wales Bill to ensure uniformity between the treatment of federal and state offences. The Evidence Bill 1993 (NSW) contains a simple and comprehensive approach to the determination of competency. All persons are to be presumed competent to give evidence, unless the contrary is established to the court’s satisfaction.30 Instead of a test based upon the person’s understanding of the nature and consequences of the oath, the requirement is that the witness understand the obligation to give truthful answers and be able to understand and respond rationally to questions.31 Clause 12 therefore provides that a person who is incapable of understanding the obligation to give truthful evidence is not competent to give sworn evidence. Such persons, however, are competent to give unsworn evidence if:
(a) the court is satisfied that the person understands the difference between the truth and a lie; and
(b) the court tells the person that it is important to tell the truth; and
(c) the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding.32
The clause also provides that persons incapable of giving a rational reply to questions about a particular fact are not competent to give either sworn or unsworn evidence on that fact, but may be competent to give sworn or unsworn evidence on other facts. Furthermore, a person is only incompetent to give either sworn or unsworn evidence if the person is incapable of hearing or understanding questions, or replying to them, and this incapacity cannot be overcome, (presumably by the use of interpreters etc, see Chapter 7).33 Clause 13 of the Commonwealth Bill is in identical terms. The proposed changes are contained in general provisions applicable to all witnesses, not only to specific groups such as children. For the time being, however, the issue of competency of the witness with an intellectual disability largely remains to be determined at common law.
Unsworn evidence
6.14 The Evidence Bill 1993 (NSW) is significant in introducing the concept of unsworn evidence by a witness into New South Wales. It is important to note the difference between evidence given by way of an affirmation (instead of an oath) or evidence given by children by declaration under s 33 of the Oaths Act (which is to be treated as if it were on oath) and unsworn evidence. In New South Wales currently there is no provision for unsworn evidence. In other States there is provision for unsworn evidence, though the groups of people which can give such evidence and the way it is to be treated (for example, whether there are corroboration requirements or not) varies from state to state. It remains to be seen how the New South Wales courts will treat such unsworn evidence.
PROVISIONAL PROPOSALS FOR REFORM
26. The Commission does not make a new proposal in relation to competence but rather supports cl 11 and cl 12 of the Evidence Bill 1993 (NSW).
FOOTNOTES
1. Australia. Law Reform Commission Evidence (Interim Report 26, 1985) Vol 1 at para 521.
2. R v Brasier (1779) 1 Leach 199: 168 ER 202; Cheers v Porter (1931) 46 CLR 521; R v Hill (1851) 2 Den 254: 169 ER 495, cited in ALRC Interim Report 26, 1985, Vol 2, Appendix C at para 1.
3. R v Hill (1851) 2 Den 254, 169 ER 495.
4. Sinclair v R (1946) 73 CLR 316, per Dixon J at 333.
5. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 103.
6. See, for example, R v Brasier (1779) 1 Leach 199; 168 ER 202. For subsequent Australian cases see R v Brown [1977] Qd R 220; R v Schlaefer (1992) 57 SASR 423.
7. Oaths Act 1900 (NSW) s 12, 13.
8. Cheers v Porter (1931) 46 CLR 521. The leading judgment was given by Evatt J (Gavan Duffy CJ and Starke J agreeing).
9. Per Evatt J at 536. See also R v Hunter (1941) 59 WN (NSW) 8 at 10, per Jordan CJ, Davidson and Halse Rogers JJ agreeing; R v Johnston [1982] 2 NSWLR 897; and Passlow v O’Bourne (unreported) Supreme Court, NSW, 4 September 1987, Allen J, CLD 15693/87.
10. R v Hunter (1941) 59 WN (NSW) 8 at 10 per Jordan CJ, Davidson and Halse Rogers JJ agreeing. See also R v Johnston [1982] 2 NSWLR 897 at 900 per Street CJ.
11. Passlow v O’Bourne (unreported) Supreme Court, NSW, 4 September 1987, Allen J, 15693/87 at 3.
12. ALRC Interim Report 26, 1985, Vol 2, Appendix C at para 1.
13. R v Brown [1977] Qd R 220.
14. R v Hayes [1977] 2 All ER 288 at 291, per Bridge L J, delivering the judgment of the court. Note, however, that the Criminal Justice Act 1991 (UK) s 52(1), now provides that all children under the age of 14 are to give their evidence unsworn in criminal proceedings, thus eliminating difficulties in understanding the oath.
15. R v Bellamy (1986) 82 Cr App R 222. See also [1986] Criminal Law Review 54. R v Hayes was also applied by the Court of Appeal in R v X (1989) 91 Cr App R 36.
16. For the purposes of the Oaths Act 1900 (NSW), “child” means a person under the age of twelve years: s 32.
17. Oaths (Children) Amendment Act 1985 (NSW). To give evidence the child had to demonstrate the ability to understand the duty to tell the truth before the court.
18. In R v Vincent (1990) 50 A Crim R 25, the New South Wales Court of Criminal Appeal held that, in order to allow a child to give evidence in this fashion, the trial judge “must be satisfied not only that the child tells the truth but also that the child understands the duty of telling the truth”, per Meagher JA at 27, Campbell and Newman JJ agreeing.
19. Oaths (Children) Amendment Act 1990 (NSW).
20. New South Wales. Parliamentary Debates (Hansard) Legislative Assembly, 14 November 1990 at 9667.
21. Oaths Act 1900 (NSW) s 33, Tenth Schedule.
22. Section 33(4).
23. Section 33(3).
24. L Rogers “New rules on evidence for the under 12s” (April 1991) 29 (3) Law Society Journal 48 at 49.
25. Confidential Submission (4 September 1992) at 26-28.
26. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 6.
27. New South Wales Sexual Assault Committee Submission (August 1992) at 4.
28. Rogers at 49.
29. Australia. Law Reform Commission Evidence (Report 38, 1987) and New South Wales. Law Reform Commission Evidence (Report 56, 1988).
30. Evidence Bill 1993 (NSW), cl 11, 12(5).
31. ALRC Report 38 at para 64-65. This test was also supported by the New South Wales Law Reform Commission.
32. Evidence Bill 1993 (NSW) cl 12(2). This subsection was not contained in the original Australian Law Reform Commission and New South Wales Law Reform Commission Bills.
33. Evidence Bill 1993 (NSW) cl 12(4).
