2.1 Sworn evidence. Before a child can be sworn, it must understand the duty to speak the truth and the religious nature of an oath. The common law rule was authoritatively stated by the twelve judges in R. v. Brasier81 as follows:
“no testimony whatever can be legally received except upon oath; and ... an infant, though under the age of seven years, may be sworn in a criminal prosecution provided such infant appears, on strict examination by the Court, to possess a sufficient knowledge of the nature and consequences of an oath ..., for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court .... ”
The competence of children is then determined in the same way as that of adults. This matter was explained further in a contemporary decision:82
“an Oath is a religious asseveration, by which a person renounces the mercy, and imprecates the vengeance of heaven, if he do not speak the truth; and therefore a person who has no idea of the sanction which this appeal to heaven creates, ought not to be sworn as a witness in any Court of Justice.”
It was permissible to adjourn proceedings until children had received adequate religious instruction to understand the nature of an oath.83 But a child has been held incompetent where the necessary instruction was “recently commanded to her for the purposes of” the trial.84
2.2 Judicial examination. In judging the competence of a child it is customary for the judge to examine it to see whether it understands the nature of an oath. The question “Do you know the nature of an oath?”, as already mentioned, is not a proper question, for it “furnishes no sufficient or adequate test of t e competency of a child of tender years to give evidence.”85 The judge must decide for himself and not be bound simply by another court’s view of the child.86
Until 1977 the New South Wales practice was that the judicial examination was held in the presence of the jury.87 In that year a majority of the High Court expressed disagreement with the English case on which the practice was based.88 The issue of competency may be raised and resolved during the period of the child’s testimony,89 but not after the verdict is given.90 The examination can only be carried out by the judge; counsel has no right to test competency by questions before the witness is sworn,91 though the weight of the evidence can be attacked in cross-examination in the ordinary way. The most counsel can do is suggest to the judge that he should satisfy himself as to competency.
2.3 Relevance of age. Children as young as six92 and five have been allowed to give sworn evidence.93 But this is obviously exceptional; though children as young as three have given usworn evidence in South Africa,94 in R. v. Wallwork95 was said to be most undesirable that a child as young as five should give unsworn evidence and it is presumably even more undesirable that it should give sworn evidence. A four year old lacks the necessary belief in a future state to make a dying declaration admissible,96 and the same must be true of sworn evidence.
2.4 Unsworn evidence. At common law a child who could not give sworn evidence was not permitted to give evidence unsworn.97
The Crimes Act, 1900, s.418, provides that on the hearing of certain sexual charges, “where any child of tender years who is tendered as a witness does not in the opinion of the Court or Justices understand the nature of an oath, the evidence of such child may be received, though not given upon oath, if in the opinion of the Court, or Justices, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth”. Section 131 of the Child Welfare Act, 1939, is a like provision with respect to offences under that Act. The expression “child of tender years” is not defined in the Act, and it is “a matter for the good sense of the court”.98 Jackson C.J. has suggested that a child “up to about ten years of age” came within the phrase “of tender years” and that “secondary school children of twelve or thirteen years or above” were outside it.99
So far as giving unsworn evidence is concerned, the judge must consider “whether the child is sufficiently intelligent to be capable of giving a rational account of what he has seen and heard, and understands the duty of telling the truth”?100 Further, as we have seen, a child who cannot be sworn because he does not understand the religious nature of an oath may be permitted to make a solemn declaration by virtue of the Oaths Act, 1900, s.13.101 This applies to both civil and criminal proceedings. Apart from such specific statutory provisions, a child cannot give unsworn evidence.102
2.5 Problems of children’s evidence. Wigmore said:103 “it may be doubted whether... analysis of a child’s belief, which sometimes becomes a far from edifying proceeding, is ever of any real profit. A child’s inclination to tell the truth or the opposite is apt to be more a matter of instinct and of previous training and surroundings than of a conscious reflection upon the prospects of a future state”. The difficulty of drawing a line between children who should give evidence sworn and those who should give it unsworn certainly seem great; and the procedure has other drawbacks. Stephen104 said:
“The practice of insisting on a child’s belief in punishment in a future state for lying as a condition of the admissibility of its evidence leads to anecdotes and scenes little calculated to increase respect either for religion or for the administration of justice.”
The courts have long been unhappy with the procedure needed to test a child’s competence. In R. v. Holmes105 this dialogue occurred:
Counsel:.. “the witness must understand the nature and obligation of an oath.”
Wightman J.: “That is a complicated question, which nine out of ten children could not answer.” (to the child.) “Do you say your prayers?”
Witness: “Yes.”
Wightman J.: “What becomes of a person who tells lies?”
Witness: “If he tells lies he will go to the wicked fire.”
Wightman J.: “I think her evidence admissible. I do not know that it really advances the credibility of testimony to put such questions.”
There is evidence that modern judges “feel that the inquiry which they have to make sometimes verges on farce.”106 In short, we agree with the English Criminal Law Revision Committee that:
“the investigation sometimes made by the court as to whether the child believes in divine retribution for lying is really out of place when the question is whether he understands how important it is for the proceedings that he should tell the truth to the best of his ability about the events in question - in particular that he should not say anything against the accused which he does not really believe to be true and that he should say if he did not see something or does not remember it. For similar reasons the test …whether the child understands the duty speaking the truth’ seems inadequate; for even very young children understand this duty in a general way without necessarily understanding the particular importance of telling the truth in the proceedings.”107
Further, we think that an interrogation of a child as to his religious beliefs is more likely to render him nervous and destroy his composure than to increase the reliability of his testimony.
2.6 The proposal summarised. The draft Bill adopts the view that there should be a general provision for a child below a certain age to give unsworn evidence in all proceedings. In practice this is achieved at present under the Oaths Act, 1900, s.13 by allowing a child to give evidence on affirmation, but, in view of the lack of explicit safeguards in that section, and the desirability of removing the need to question younger children about the oath, express provision should be made. Under s.213(1), all children below the age of twelve will be allowed to give evidence unsworn, provided they promise to tell the truth, provided they are sufficiently intelligent, provided they understand the importance of telling the truth in the proceeding, and provided there is sufficient reason in the interests of justice to receive the evidence. The adoption of a fixed age will terminate the need for an almost automatic inquiry as to whether the child understands the significance of the oath. Children below twelve will not be able to give evidence on oath or affirmation, but may give unsworn evidence. Children above twelve will only be able to give evidence on oath or affirmation. If they do not understand the nature of an oath they will not be able to give evidence on oath. If, though they understand the nature of an oath, they wish to affirm, they may do so. The proposal has some similarities with, and differences from, the law of Scotland. Walker and Walker summarise the position thus: “Children under twelve are not put on oath, but admonished to tell the truth, children over fourteen are usually sworn. The oath is not administered to children between these ages unless the judge is satisfied that the child understands its nature.”108 This scheme has some attractions but retains greater scope for an unsatisfactory inquiry into competence than the draft Bill proposal. The draft Bill proposal differs from the Model Code, which simply dropped unsworn evidence and made the test for giving evidence on oath or affirmation understanding the duty to tell the truth.109 The more complicated scheme of the draft Bill proposal seems preferable, because there is a significant difference between knowing the duty to tell the truth and being able realistically to promise to tell it.
In Ontario a still more complicated scheme has been proposed.110 The oath is to be abolished and replaced by affirmation. A child under seven who understands the duty to tell the truth may give unaffirmed evidence. A child between seven and fourteen may give affirmed evidence if he “is competent to know the nature and consequences of his conduct and to appreciate that it is wrong to give false evidence”, otherwise the question is whether he understands the duty to tell the truth. Children above fourteen may give affirmed evidence. This involves two possible inquiries for children under fourteen, and seems over-complicated.
The Law Reform Commission of Canada recommended abolition of the oath. All witnesses would have to promise to tell the truth and acknowledge their liability for prosecution for lying. The sole test for competence would be whether the witness understands the necessity to be truthful. The view seems to be that the statements of some children are worth putting before the court, though they could not realistically be expected to keep a promise to tell the truth.111
2.7 Draft Bill: the age of twelve. The scheme of the proposer s.213(1) is similar to that of the English Criminal Law Revision Committee, but that Committee recommended fourteen and not twelve as the age below which a child would not be able to give sworn evidence. It said that the right age was very much a matter of opinion and did not give any112 special reason for choosing fourteen. We suggest the age of twelve as that is the approximate age at which secondary education ordinarily begins. Children as young as nine have been sworn in leading cases.113 In R. v. Keightley114 a child of twelve was sworn without an examination of her having been conducted, or any objection having been raised, as to her competence, and it was held that no objection could be raised on appeal. In Brunsgard v. Jennings115 two children aged eleven and twelve years respectively, were allowed by a magistrate to give sworn evidence without any inquiry as to their competence. On appeal Jackson C.J. held that it was a matter primarily in the discretion of the court of trial and there was no ground for holding that the evidence was improperly received. He said: “Doubtless a young child up to about 10 years of age should be qualified by questioning before being allowed to be sworn. On the other hand, it is generally accepted practice, in my experience, to allow secondary school children of twelve or thirteen years and above to be sworn without questioning.”116 If, in any particular case, a child of twelve or over is thought to be incompetent to take an oath or to make an affirmation, it will be open to the court to satisfy itself by appropriate inquiry. On the other hand, if the child is under twelve, inquiries concerning the oath will be unnecessary, although inquiries regarding intelligence and understanding the importance of the truth may be required.
2.8 Children below twelve. Under s.213(1), the test for determining whether a child under twelve should be allowed to give evidence without oath or affirmation would turn on:
(a) whether it is sufficiently intelligent,
(b) whether it understands the importance of telling the truth in the proceedings,
(c) whether it promises to tell the truth, and
(d) whether there is sufficient reason in the interests of justice that the evidence be received.
Requirement (a) would add nothing to the present law. Requirement (b) would meet the point, which may not be a substantial one, that a child may understand a general duty to tell the truth without realising the particular importance of his duty to tell the truth in the proceedings. Requirement (d) seems necessary for this reason. Parliament. when it dealt specifically with the reception of unsworn evidence of children only permitted it in narrow and clearly delimited circumstances. These circumstances comprise, principally, sexual cases and cases where a crime is committed against the child, or the child witnessed a crime against another child. Furthermore, Parliament provided that an accused was not to be convicted when such evidence was used, unless it was corroborated. The circumstances specified may be the most pressing cases where a child’s unsworn evidence is needed; but in others it will be needed too. In England Parliament specifically permits the unsworn evidence of children in all criminal cases.117 Section 213 proceeds on the view that it ought to be possible for a child’s evidence without oath or affirmation to be given in all cases criminal and civil; but that the court should have power to restrict the possibility of such evidence being tendered where in the court’s view it is not necessary. Evidence without oath or affirmation is anomalous, and creates complication for the jury. It seems desirable to have it admitted where it is necessary and excluded where it is unnecessary. Requirement (c) of the draft is inserted largely to ensure that the child realises there is a duty to tell the truth. Under the Oaths Act, 1900, s.13, a child must make a declaration, but under the Crimes Act, 1900, s.418, a child does not, but merely gives evidence without any promise; and this seems wrong.
The question of corroboration is dealt with in the Commission’s Paper on that subject.
2.9 Repeals. The draft Bill proposes the consequential repeal of the Crimes Act, 1900, s.418 and the Child Welfare Act, 1939, s.131(1). These provide for unsworn children’s evidence at present and are rendered superfluous by the general rule of competence we propose.
2.10 Punishment for untruthful evidence. The draft Bill permits children under twelve, and the kind of incapable persons mentioned in paragraph 1.34 as being incompetent at common law to take an oath, to give evidence upon promise to tell the truth without oath or affirmation. The Bill covers both groups by the use in s.213 of the term “disable person” which is defined in s.210. The Bill makes provision for dealing with disable persons who knowingly give false evidence, by amending the Crimes Act, 1900, s.333, to read:
“(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.”
Some provision should also be made to deal with persons who persuade or induce, or endeavour to persuade or induce, any disable person to give false evidence. The Crimes Act, 1900, s.336 may cover the case; it applies to a person who “persuades, or induces, or endeavours to persuade, or induce, any person to abstain from giving evidence, or attending as a witness ....” But it is probable that giving false evidence may not be held to be comprised within “abstain from giving evidence”. A new s.333(2) is proposed: “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.” The Crimes Act, 1900, Part VII, which concerns the making of false statements in legal proceedings, is in an untidy and confused condition, and would benefit from review. Any anomaly as between the proposed s.333(2) and the rest of the Part could then be considered.
2.11 Depositions. The draft Bill would repeal the Child Welfare Act 1939, s.131(1) and (3). It is necessary to amend s.131(2) to make it plain that the unsworn evidence of a person under twelve may be received as a deposition under the statutes which provide for the admission of depositions. The Bill also repeals the Justices Act, 1902, s.36(1), which provides that every witness should have the usual oath administered to him before he is examined. Neither provision is necessary; the earlier parts of s.211 do the necessary work.
FOOTNOTES
79. Halsbury, Evidence (1976), para. 236, n.5. See generally Megarry (1973).93-4.
80. Nokes (1967), p.382; Kempshall v. Holland (1895, unrep.: see (1895) 2 Ch. 641) ; Hickman.v Berens [ 1895] 2 Ch. 638; Wilding v. Sanderson[1897] 534, at p.539. See generally Megarry (1973), pp.91-3. Counsel “should not act as counsel and witness in the same case”: R. v. Secretary of the State for India in Council, ex p.Ezekiel[1941] 2 K.B. 169, at p.175, per Humphreys J.
81. (1770) 1 Leach 199, at p.200: 168 E.R. 202, at pp.202-3. See Young v. Slaughterford (1709) 11 Mod. 228: 88 E.R 1007; R. v. Dent (1907)71 J.P. 511. See also R. v. Braddon(1684) 9 St.Tr. 1127, at pp.1148-9; R. . Cox (1898) 62 J.P. 89; R. v. Moscovitch (1924) 18 Cr.App.Rep. 37;R. v. Wilson (1924) 18 Cr. App. Rep.108; Attorney-General v. O’Sullivan [1930] I.R. 552; R. v. Brown (1977) Qd .R. 220. See, however, R. v. Hayes (1977) 2 All E.R. 288, where the English Court of Appeal held that it was sufficient if a child appreciated the solemnity of the occasion and the duty when on oath to tell the truth, even though he had not heard of God.
82. R. v. White (1786) 1 Leach 430, at pp.430-1; 168 E-.R. 317.
83.R. v. Anon. (n. d. ) 1 Leach 430 n. 168 E.R. 317; R. Murphy (1795) 1 Leach 430 n: 168 E.R. 317; R. v Milton (1841) Ir.Cir.Rep. 16; R. v. Baylis (1849) 4 Cox 23; R. v. Nicholas (1846) 2 C. & K. 246; 175 E.R. 102
84.R. v. Williams (1836) 7 C. & P. 320, at p.321: 173 E.R. 142, at p.143; R. v. Wade (1825) 1 Moo.C.C. 86: 168 E.R. 1196.
85. R. v. Lyons (1889) 15 V.L.R. 15, at p.17: see above, para.1.
86. R. v. Surgenor [1940] 2 A11 E.R. 249.
87. R. v. Dunne (1929) 21 Cr.App.Rep. 176; R. v. Southern (193O) 22 Cr.App.Rep. 6; R. v. Reynolds [1950] 1 K.B.606.
88. Demirok v. The Queen (1977) 137 C.L.R. 20; see above, para.1.35.
89. R. v. Whitehead (1897) 3 A.L.R. 140.
90. R. v. Keightley (1893) 14 L.R. (N.S.W.) 45.
91. R. v. Lyons (1889) 15 V.L.R. 15.
92. R. v. Brasier (1779) 1 Leach 199: 168 E.R. 202; R. v Holmes (1861) 2 F. & F. 788: 175 E.R. 1286; R. v. Perkins (1840) 2 Moo.C.C. 135, at p.139: 169 E.R.-54, at p.55.
93. Strachan v. McGinn 1936 1 W.W.R. 412.
94. See Hoffman (1970), p.265, n.16.
95. (1958) 42 Cr.App.Rep. 153.
96. R. v. Pike (1829) 3 C. & P. 598: 172 E.R. 562.
97. R. v. Powell (1775) 1 Leach 110: 168 E.R. I57
98. R. v. Campbell [1956] 2 Q.B. 432, at p.436.
99. Brunsgard v. Jennings [1974] W.A.R. 36.
100. R. v. Hunter (1941)59 W.N. (N.S.W.) 8, at p.10.
101. See Corroboration; Cheers v. Porter (1931) 46 C.L.R. 521; R. v. Hunter (1941) 59 W.N (N.S.W.) 8. Cf. R. v. Paul(1890)25 Q.B.D. 202.
102. See R. v. Lyons (1921) 15 Cr.App.Rep. 144; R. v. Hampton (1966) 55 W.W.R. 432.
103. Para.1821. See also para.509.
104. Stephen (1893), p.181.
105. (1861) 2 F. & F. 788, at p.789: 175 E.R. 1286
106. 11th Report (1972), para.205.
107. Para.205
108. Walker and Walker (1964), para.349.
109. Model Code (1942), pp.91-100, and 340.
110. Ontario Report (1976), ch.8.
111. Draft Canada Code (1975), s.50.
112. 11th Report (1972), para.206.
113. E.g. Director of Public Prosecutions v. Kilbourne [1973] 2 W.L.R. 254.
114. (1893) 14 N.S.W.L.R. 45.
115. [1974] W.A.R. 36.
116. At p.38
117. Children and Young Persons Act 1933, s.38 (U.K.).
