More protection for children under proposed Evidence Act
Daraine Luton, Senior Staff Reporter
Proposed amendments to the Evidence Act could change the approach to the testimony of a child under the age of 14.
A bill seeking to amend the Evidence Act, which was tabled in the Senate by Justice Minister Mark Golding last Friday, is proposing that evidence given by a child under the age of 14 be treated, for civil and criminal proceedings, as if that evidence has been given under oath.
However, in the event that the child wilfully gives false evidence, the bill is proposing that the Child Care and Protection Act (Section 76) be used to remedy the breach. The possible remedies include dismissing the case; obtaining a probation order under the Probation of Offenders Act; and placing the child under the supervision for up to three years. No child under the age of 12 can be found guilty of any offence, under the Child Care and Protection Act.
The new evidence bill is proposing that where a child, who is competent to give evidence, does so in accordance with the provisions under the law, no conviction, verdict or finding in those proceedings is to be deemed as unsafe by reason only that the evidence of the child was given without administering an oath.
The bill also states that it is unnecessary for the evidence given by a child to be corroborated for a determination of liability, a conviction or any other issue being considered by the court. However, in a jury trial, where the judge considers that the circumstances of the case require it, should give a warning to the jury to exercise caution in determining whether they accept uncorroborated evidence of a child and the weight given to the evidence.
Where the evidence given by a child is adduced before a judge sitting alone, the judge, if the situation require it, should give himself a warning when deciding to accept the uncorroborated evidence of a child and the weight given to the evidence.
Safeguard procedures are built into the proposed legislation so as to prevent a child, who is incompetent to give evidence, from doing so. The bill is proposing that in determining the competence of the child to give evidence, the count should satisfy itself that he or she possesses sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.
A party to a civil or criminal proceeding, or the court on its own motion, can question whether a child is competent to give evidence. The bill proposes that in determining the child's competence, the court may rely on a child psychiatrist, a probation officer or any other person it considers qualified to make an assessment of the child. None of the persons making the determination on the child's competence can be a party to the proceedings.
Where the court finds it necessary to question the child in order to determine his or her competence, the bill proposes that this takes place in the presence of the parties to the proceedings and any social worker accompanying the child, or any other person appointed by the court for such purposes.
The bill to amend the Evidence Act also contains provisions which seek to simplify the admission of computer evidence as well as the admission of any document, without the maker of the document being called to give evidence, as long as it is agreed by the parties. Provisions have also been expanded in relation to the admissibility of expert reports as evidence in criminal proceedings without the need to have the expert being called upon to give evidence under oath.