EVIDENCE ACT AMENDMENTS*

DIVISION - Sworn and Unsworn Testimony

Interpretation.		210. In this Division “affirmation” means a declaration or affirmation under Part III of the Oaths Act, 1900. “disable person” means - (a) a person under the age of 12 years; or (b) a person who, by reason of - (i) mental illness; or (ii) handicap of body or mind, by way of coma, paralysis or otherwise, whether or not induced by alcohol or any drug, or medical or other treatment - does not understand the nature of an oath as a witness and does not understand the nature and effect of an affirmation as a witness.
Oath and affirmation generally.		211. (1) Subject to any enactment, the testimony of a person as a witness is not receivable by a court unless - (a) the testimony is given by him on oath or affirmation; and (b) he is competent to take the oath or make the affirmation. (2) Subsection (1) applies to testimony offered orally or by affidavit or deposition or by any other means. (3) A natural person is competent to take an oath as a witness if, but only if, he is aged 12 years or upwards and he understands the nature of the oath and regards it as binding on him. (4) A natural person is competent to make an affirmation as a witness if, but only if, he is aged 12 years or upwards and he understands the nature and effect of the affirmation. (5) It is to be presumed that a natural person is competent to take an oath and to make an affirmation as a witness. (6) For the purpose of deciding a question arising under subsection (3) or (4), the court may be informed in such manner as the court thinks fit.
Apparent disability		212. (1) Subject to any enactment but notwithstanding section 211(5), where - (a) a person is called before a court to testify or it is intended to call a person before a court to testify; and (b) it appears to the court that he is or may be a disable person - the court - (c) may; and (d) on application by a party shall - unless it is proved that the person is not a disable person, direct that he shall not take an oath or make an affirmation as a witness. (2) Subject to any enactment but notwithstanding section 211(S), where - (a) a person makes an affidavit or makes a deposition on oath or affirmation for use as testimony before a court; and (b) it appears to the court that at the time when he made the affidavit or deposition the deponent was or may have been a disable person - the court - (c) may; and (d) on application by a party shall - unless it is proved that the deponent was not at that time a disable person, direct that the affidavit or deposition be not received as an affidavit or as a deposition made on oath or affirmation by the deponent.
Disable person: testimony not on oast or affirmation.		213. (1) Where - (a) a disable person is called before a court to testify, or it is intended to call a disable person before a court to testify; (b) he promises to tell the truth when testifying; (c) it appears to the court that - (i) he understands the importance of telling the truth when testifying; and (ii) he has sufficient intelligence to justify reception of his testimony; and (d) it appears to the court that there is sufficient reason why in the interests of justice his testimony ought to be received - the court may direct that his testimony be received notwithstanding that the testimony is not given by him on oath or affirmation, but subject to any other ground of objection. (2) Where - (a) a disable person makes a declaration in writing (whether in the form of an affidavit or a deposition or in any other form) for use as testimony before a court; (b) he affirms that he tells the truth in the declaration; (c) it appears to the court that at the time when he made the declaration - (i) he understood the importance of telling the truth in the declaration; and (ii) he had sufficient intelligence to justify reception of his testimony; (d) it appears to the court that there is sufficient reason why in the interests of justice his testimony ought to be received; and (e) the case is such that, had he not been a disable person at that time, an affidavit or a deposition on oath or affirmation made by him at that time for use as testimony before the court might have been so used - the court may direct that the declaration be received as testimony notwithstanding that the testimony is not given by him on oath or affirmation, but subject to any other ground of objection (3) Where the court directs as mentioned in subsection (2) the declaration shall, subject to rules of court, be treated as nearly as may be as if it were an affidavit or a deposition, as the case requires. (4) For the purpose of deciding a question under subsection (1)(c) or (d) or subsection (2)(c) or (d), the court may be informed in such manner as the court thinks fit.

 

OATHS ACT AMENDMENTS

Delete s.11A(2) and (3); substitute -

11A. (2) Where an oath is administered otherwise than in judicial proceedings -

(a) the officer administering the oath may repeat the appropriate form of adjuration, and the person taking the oath shall thereupon, while holding in his hand a copy of the Bible, New Testament, or Old Testament, indicate his assent to the oath so administered by uttering the words “So help me, God”; or

(b) the person taking the oath may, while holding in his hand a copy of the Bible, New Testament, or Old Testament, repeat the words of the oath as prescribed or allowed by law.

(3) In all judicial proceedings the person taking the oath shall, immediately after taking the oath, state orally, and sign or make his mark on a piece of paper containing, the following words -

“I acknowledge that I may be liable to prosecution if I now wilfully make any false statement.”

In (4) delete “subsection (2)”, substitute “subsections (2)(a) and (3)”.

In s.13 insert -

(1A) Whenever any person -

(a) is called as a witness in any court or before any justice or other person authorised to administer an oath, whether in a civil or criminal proceeding;

(b) has to make a statement in any information, complaint, or proceeding in any court or before any justice; or

(c) is required or desired to make an affidavit or deposition; and

has a religious belief which does not prohibit the taking of oaths, but does not state what form of oath binds him, or it is not desirable or reasonably practicable to administer that form of oath, because of inconvenience, delay or any other reason, he shall in lieu of taking that form of oath -

(d) when so called as a witness make a declaration in the form in the Sixth Schedule; or

(e) in any other case make a solemn affirmation in the form in the Seventh Schedule.

(1B) Subsections (1) and (1A) have effect subject to sections 210 to 213 inclusive of the Evidence Act, 1898.

(3) Section 11A(3) shall apply to declarations and affirmations under this section as it applies to oaths.

AMENDMENTS TO CRIMES ACT, 1900

Delete s.333; substitute -

333. (1) Whosoever, being a disable person within the meaning of the Evidence Act, 1898, giving evidence under that Act, wilfully gives any false evidence shall be guilty of a misdemeanour:

Provided that no prosecution shall be instituted under, or by virtue of, this section without the leave of the court before which such evidence was given.

(2) Whosoever persuades, or induces, or endeavours to persuade or induce, any disable person within the meaning of the Evidence Act, 1898, to give false evidence in a legal proceeding shall be liable to penal servitude for five years.

Delete s.418.

AMENDMENTS TO CHILD WELFARE ACT, 1939, s.131

Delete subsections (1) and (3).

In subsection (2) delete “such child”; substitute “a child received under section 213(1) of the Evidence Act, 1898”.

In subsection (6) delete “subsections one, two, three and four”; substitute “section 213(1) of the Evidence Act, 1898, and subsections (2) and (4)”.

AMENDMENTS TO JUSTICES ACT, 1902.

Delete section 36(1).

Footnote

* Note: The section numbers here used, and at times referred to in the text, are artificial, serving only to distinguish the draft from existing legislation.