Child witnesses

Section 12 of the Evidence Act requires that, unless otherwise provided by the Act, every witness is to be considered competent. Subsection 13(3) set out that a witness is not competent to give sworn evidence “if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.”

It is a natural consequence of the criminal justice system that children are required to give evidence. The obvious example is where the child is the alleged victim of the offence in question, but it is also not uncommon for children to be witnesses to criminal conduct that has nothing to do with them.

The question of whether the child can (or should) be sworn is then of importance. This is partially because a jury will naturally consider evidence given on oath or affirmation to be more likely to be reliable, but also because a witness who has been sworn or affirmed is, at least in theory, exposed to the threat of prosecution for perjury if the evidence is shown to be untrue.

Section 12 of the Evidence Act requires that, unless otherwise provided by the Act, every witness is to be considered competent. Subsection 13(3) set out that a witness is not competent to give sworn evidence “if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.” In that case, per ss13(5), the person is competent to given unsworn evidence if the witness has been told the things set out in that subsection.

 

Brooks

R V Brooks (1998) 44 NSWLR 121

“Whilst the questioning of C forcefully established that she understood the difference between the truth and a lie there was no material from which it could be concluded that she did not appreciate that she was under an obligation to give truthful evidence. It is true that that direct question was not addressed to her although what she said strongly suggests that she would have so understood. The critical circumstance is that there was simply no evidence to establish that she was incapable of understanding the obligation and therefore was not a person for whom the special provision in s 13(2) was available as the introductory words of the subsection make plain in the statement: “(2) a person who because of subsection (1) is not competent to give sworn evidence …” (the various emphases are added).”