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Evidence - WEEK 6 - COURSE NOTES
Competence, Compellability, Oaths and Affirmations
CONTENTS: Introduction Children
Competence is the ability of a potential witness to give evidence in a court. If a person is not competent to give evidence, then they cannot give evidence even if they or someone else wants them to.
The determination of a person’s competence has nothing to do with what they might say if they do give evidence. It has to do with their status as a person. (We shall see when we examine privilege that although a witness may be competent, the particular evidence and how it was generated can lead to its exclusion on the basis of rules that have to do with underlying public policy reasons.)
Compellability refers to the power to force a potential witness to come to court and give evidence. If a person is compellable, they are not only competent but have no right to refuse to come to court and give evidence if someone wants them to.
We begin with the general rule which is that all witnesses are both competent and compellable. Generally speaking everyone who has knowledge or information relevant to an issue may come to court and give evidence. They may also be forced (compelled) by a party in a dispute to come to court to give evidence.
If the general rule was an absolute rule, we would not have to spend any more time on this topic. However, there are exceptions and qualifications and this is what makes the topic challenging and interesting.
The exceptions to the general rule about competence are today far fewer than they were long ago. Case law and statute law has narrowed their scope. However, it is useful to view the topic from a historical perspective to see where the remaining exceptions to the general rule came from.
A historical perspective
The historical attitude that was mentioned in the first lecture is responsible for many of the exceptions, some of which continue to exist. What is this attitude? It is that anyone who has an interest in the outcome of a trial is likely to manufacture or exaggerate the evidence because of that interest. You just can’t trust someone with a stake in the outcome. This attitude was reflected in the rule that person’s with an interest in the outcome of a case were incompetent. In other words, even if they wanted to testify or if someone else wanted them to, the rule prevented them from doing so. Such a rule has the effect of rendering a witness incompetent.
The rule affected the plaintiff, and the defendant in a civil action and the accused in a criminal action. Historically, none were allowed to appear as a witness in a case in which they had an interest. In other words, they were incompetent to give evidence.
This historical rule also extended to spouses of these parties. The attitude included the notion that if your spouse has an interest and (and by implication can’t be trusted to be truthful), then neither can you because indirectly at least, you both have the same interest in the proceedings.
A second attitude that created exceptions to today’s general rule that everyone is competent and compellable is that certain types of people (regardless of whether they were parties or spouses of parties) could not be trusted to give evidence.
Historically, the oath has been a threshold to competence. Some people could not give an oath. Therefore their evidence could not be trusted. One type of person who fell within this description was a non Christian. Non Christians could not swear on the bible. Therefore, it was considered that their evidence could not be trusted. Therefore they were not competent witnesses. We will examine this in more detail shortly.
This says something about how people thought about oaths and the effect they were said to have on people’s obligation to tell the truth. This rule has of course changed and oaths or affirmations (which have the same effect as an oath) may be taken by anyone regardless of their religious beliefs.
Another type of person who was not competent (for much the same reason) was a child. Children may not have an interest in the outcome of a case but may be too young to understand an oath. Therefore they are incompetent.
Today, this rule is not absolute. In some circumstances, children can give evidence, even though they have not been able to swear an oath or make an affirmation because of lack of understanding. However, this is a relatively recent statutory change. The common law prevented anyone who could not understand the nature of an oath from giving evidence. Young children were therefore nearly always incompetent (recall the Sparks case which we considered in relation to judicial discretion).
Another category of people who are incompetent are those who, as a result of some mental infirmity (organic, traumatic or self induced) are unable to understand the nature of an oath and give rational testimony.
We will look at each of these categories in greater detail.
As mentioned above, the common law held that persons with an interest in the outcome of proceedings could not be trusted. They were not tested on a case by case or witness by witness basis. A blanket rule covered all of them. This of course is something most of us would consider harsh and unjust and it arguably did result in much injustice. We consider it very fundamental that parties in a dispute, either civil or criminal have a fundamental right to give evidence. It has been incorporated into what we consider the essential principles of natural justice.
The old common law rule regarding the competence of parties was changed a long time ago with respect to persons who are parties to civil proceedings. Section 2 of the Evidence Act, 1851 effected this change. However, by section 3 of the same act retained the existing law with respect to persons charged with a criminal offence and the spouses of such persons. Neither was competent or compellable for either side. It was sometime later (but still a long time ago from our perspective) that the Criminal Evidence Act of 1898 effected a change in the common law that allowed accused persons in criminal trials to give evidence.
Since 1898 therefore, the law has permitted plaintiffs and defendants (parties) in civil matters and accused persons in criminal to testify. They are competent, just like the rest of the population.
This means they can give evidence if they want tom (assuming they have something relevant to say). The next question is can they be forced to give evidence, even if they don’t want to? With respect to civil proceedings, the answer is yes. This however, in practice does not really affect the conduct of civil or criminal trials considerably.
There are at least three reasons why it makes little difference in practice whether a party in a civil case is compellable. One is that there would be few occasions when a plaintiff would want to call a defendant to give evidence for the plaintiff. Similarly, if you are a defendant, it would be very unlikely that you would want to call the plaintiff to give evidence on your behalf. Why? The mere fact that you have a dispute that has found its way into a courtroom suggests that the version of events the opposing party would give would be contrary to the facts (or at least inconsistent with the facts) you want to establish. It is highly likely that the evidence of the opposing party would, at the very least be unhelpful.
Also, even if a party doesn’t call the other side as a witness, he or she will still almost certainly have the opportunity to ask questions of the opposing party. This would be in the form of cross examination of the other side after they have finished giving evidence for themselves. As we shall see, cross examination can be a more effective tool for asking questions of persons whose interests are adverse to those you are trying to advance.
Thirdly, there is nothing to prevent the trier of fact from being asked to draw an adverse inference from the failure of a party to testify in civil proceedings. This means that in almost all civil cases, a party can expect the opposing party to testify and there will be a chance for the other side to cross examine.
Exceptions would exist where a party is incompetent. This would be the case where the party is a young child who cannot understand an oath or who is otherwise incompetent due to a mental infirmity. In that event, their case would have to be advanced with evidence of witnesses other than the party. This often happens in a negligence case where the injured party is a young child.
In criminal proceedings, the situation is different. Although an accused is competent to give evidence, he or she cannot be forced to give evidence if he or she does not want to. In other words, an accused is not compellable. This rule originated with the Criminal Evidence Act of 1898. This is an absolute matter and runs through the common law. It applies in all of the South Pacific jurisdictions.
However, simply being non-compellable is not totally satisfactory from the point of view of the accused in criminal proceedings. If an accused decided not to give evidence and a prosecutor, later in argument suggested to the trier of fact that because he didn’t testify, he must be guilty, (i.e. that an adverse inference should be drawn from the failure to give evidence) the right would lose much of its force and effect. You can easily imagine a case where this argument would be made. For instance, think back to the hypotheticals we have used in tutorials. If Jacob (the man who was alleged to have stolen the whiskey) sat through his trial and did not take the stand to explain his innocence, the prosecutor (in the absence of a rule preventing it) would almost certainly want to point this failure to testify out to the trier of fact and ask that an adverse inference be drawn.
Therefore, the law has included a companion rule together with that of non compellability of an accused. The law prevents the prosecution from making an adverse comment about the failure of the accused to give evidence. This is slightly different from saying that an adverse inference should not be drawn from the accused’s failure to give evidence.
This rule allows an accused or his or her counsel, at the end of the prosecution’s case to argue that the prosecution has failed to prove the case beyond a reasonable doubt. There is no need to explain why the accused did not testify. The prosecution is not allowed to suggest to the trier of fact that anyone in the position of the accused if he or she was innocent would certainly want to explain their innocence to the court – if the accused was indeed innocent. The obvious inference about the accused’s innocence.
If a prosecutor could make this sort of argument, then an accused (especially one who really was not guilty) wouldn’t be much further ahead by exercising his or her status as a non compellable witness.
The 1898 legislation prevents any adverse inference from being taken from the accused’s failure to testify. Without it, the right to silence and the right to be free from self incrimination would lose much of their force. With it, the rights are made effective.Criminal Evidence Act 1898
“s. 1 Every person charged with an offence and the wife or husband, as the case my be, of the person so charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person. Provided as follows: -
A person so charged shall not be called as a witness in pursuance of this Act except upon his own application:
The failure of any person charged with an offence, or of the wife or husband, as the case may be, of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution:
The wife or husband of the person charged shall not, save as in this Act mentioned, be called as a witness in pursuance of this Act except upon the application of the person so charged:”
An accused cannot decide to give evidence and then refuse to answer a question because it might tend to incriminate him or her. In other words, an accused can’t have it both ways. Once an accused takes the stand, he or she is treated like any other witness. The accused is subject to cross examination and must answer the proper questions that are put by the prosecutor. Once an accused decides to give evidence, he or she cannot be selective about what evidence to give.
When an accused person gives evidence, the rules of evidence apply to the specific evidence that he or she can give, just the same as they affect the evidence of other witnesses.
Remember that the common law did not change. It is arguable that if all the statutes affecting evidence were repealed, that we would revert to the common law position where parties are not able to give evidence. It is legislation that has brought about the present situation whereby an accused is competent but not compellable.
We have already referred to the UK legislation that accomplishes this change from the common law.
Now, let us look at Pacific legislation that continues to give effect to this.
- Fiji section 145 of the Criminal Procedure Code
- Solomon Islands section 141 of the Criminal Procedure Code
- Tonga section 121 of the Evidence Act
- Vanuatu section 89 of the Criminal Procedure Code.
- Samoa section 15 of the Evidence Act
- Kiribati section 141 of the Criminal Procedure Code
- Cook Islands section 6 of the Evidence Act
Most of these sections are almost exact copies of the legislation of 1898.Marshall Islands– Constitution section 4(7) which states:
No person shall be compelled in any criminal case to be a witness against himself, or against his spouse, parent child or sibling, or to give testimonial evidence against any such person whenever that evidence might directly or indirectly be used to obtain such person's criminal conviction.
In the UK itself, the law has recently changed in relation to the compellability of an accused and the matter of what inferences may be drawn from a failure to give evidence. An adverse inference can be drawn in some circumstances. This is a significant departure form the pre-existing law. You do not need to know about these instances because the changes are too recent to be adopted in any South Pacific jurisdiction. This means that parts of the Murphy text are irrelevant to this course.
Note that in Fiji, the Law Reform Commission is considering changes to the law of criminal evidence and changes are likely to be forthcoming there. It is not yet known whether those changes will take the law in the direction that it has been taken in the UK.
Also remember that although the equivalent statutory provisions to the 1898 Criminal Evidence Act make an accused non compellable and prevent a prosecutor asking that an adverse inference be drawn when he or she does not give evidence, there will be occasions when the nature of the charge and the nature of an accused’s defence will make it practically necessary for the accused to give evidence. However, this would be evidence for the defence and not for the prosecution.
Testimony of accused in relation to co-accused
In criminal matters, people can be charged together. What we know from what has just been discussed is that an accused cannot be compelled to give evidence in relation to him or herself. Another question arises as to whether an accused is competent to give evidence for or against a co-accused and whether an accused is compellable to give evidence for or against a co-accused.
A co-accused is a person who is charged with the same offence or offences and is being tried on the same information or indictment as another accused.
An accused is no more compellable in relation to a co-accused than in relation to the charges he or she faces. This means that an accused cannot be called by either the prosecutor or a co-accused to give evidence for or against a co-accused.
However, an accused is competent to give evidence. If the accused does give evidence (for or against a co-accused or on his or her own behalf) he or she can be cross examined by counsel for the co-accused just the same as he or she can be cross examined by the prosecutor. Cross examination on behalf of a co-accused could attempt to point all the blame on the accused or make the co-accused look good. But if the accused has decided to give evidence, he or she cannot refuse to answer these questions.
An accomplice is not a co-accused if he or she is tried separately, either in the past, in another trial or in pending proceedings where no charge has yet been laid. Sometimes persons who begin as co-accused, charged on the same information or indictment may stop being co-accused’s part way through a criminal proceeding.
One way that proceedings might be separated is where although jointly charged, an accused pleaded guilty. He is no longer on trial. This is because he is no longer an accused. Similarly, where the prosecution drops a charge against one co-accused but proceeds against another, the first is no longer a co-accused although that is how the started out.
When the accused is no longer a co-accused, he or she becomes competent or compellable just like an ordinary witness.
If an accused is tried on a separate indictment from that of an accomplice, he or she is not a co-accused. When an accused was but is no longer a co-accused, there are special rules of practice that apply. These rules of practice are not rules of evidence.
For instance, if A is charged with an offence along with B and the prosecutor says to A, “we will drop the charges against you if you will give evidence against B” and A agrees, then, once the charges are dropped, then A is no longer an accused. The prosecutor can call A just like any other witness.
Another similar instance is where the prosecutor says to A, “If you plead guilty (it might be to the offence charged or a lesser included offence), then we will go easily on you in sentence if you agree to give evidence against B.” A agrees.
Section 16 of the Samoa Evidence Act provides a statutory basis for the above discussion. It provides that a former co-accused is both competent and compellable at the instance of the prosecution.
There are conflicting interests that govern the practice of compelling a former co-accused to give evidence for the prosecution. On the one hand there is the need to eliminate any possibility or even perception that the evidence of a co-accused is being given in exchange for (or even in hope of) a more lenient sentence. This would be seen as improper in most jurisdictions. Also, it would be an effective basis for cross examination on the issue of credibility. Nothing prevents a defence lawyer from cross examining a former co-accused about a favourable arrangement that he or she might have had with the prosecution. This goes to the issue of credibility. The solution to the credibility issue is to this is to make sure that sentence is passed on a co-accused before he or she testifies for the prosecution against a co-accused.
On the other hand there is the need to sentence all co-accused in as consistent a way as possible. This requires that all co-accused be sentenced at the same time and that sentence of the one who pleads or is found guilty should wait until all co-accused have been convicted (or acquitted). In this way, subsequent evidence by a co-accused that distorts the picture that emerges on an earlier guilty plea can be taken into account.
Different jurisdictions might resolve these differing interests in different ways. These are rules of practice that are tangential to the issues of competence and compellability that we are mainly concerned with.
The Evidence of Spouses
Although a spouse remains competent and compellable in civil cases (subject to spousal privilege – which relates to what evidence a spouse may be forced to give as opposed to whether the spouse may be forced to be a witness in the first place), in a criminal case, a spouse, generally speaking is competent and compellable as a witness for the accused but not for the prosecution. A spouse is not compellable at the instance of the prosecution. In other words, a prosecutor cannot force the spouse of the accused to testify against him or her. See the sections referred to above which provide for this.
This means that if a person is charged they can ask their spouse to testify on their behalf and if the spouse refuses, the person can subpoena them and force them to testify. However, unless the accused agrees, the prosecution cannot call the accused’s spouse.
SEKOVE VATUABETE Appellant and THE STATE Respondent
HIGH COURT OF FIJI
CRIMINAL APPEAL NO. HAA0053 OF 1993
This is an appeal of a criminal conviction for robbery of a taxi driver. Mr. Gates (as he then was) represented the appellant. He argued two main points on appeal. the competence and compellability of the woman alleged to be the wife of the appellant. It was argued that the Magistrate should have inquired and stopped the witness.
The second issue was identification of the accused. It was argued that, with no line up, the identification of the appellant by a taxi driver was a fleeting glance only and insufficient for the court to conclude beyond a reasonable doubt that he was the person who committed the offence.
Both grounds of appeal were carefully considered but in the end rejected. The first because the spouse’s evidence was duplicated by other admissible evidence. The second because the facts satisfied the court (both of them) that the identification was a good one. The following is an extract from the case.1. INADMISSIBILITY OF SPOUSE'S EVIDENCE
“Mr. Gates for the Appellant complained that the learned Magistrate, being put upon notice, as it were, from the material in front of him that there was at least a claim by the Appellant that Ateca McGoon was his wife, should have intervened to stop her giving evidence, since she was neither a competent nor compellable witness against her husband in law, in this class of case.
The State conceded that if she was the Appellant's wife, she was in law neither competent nor compellable, because these types of proceedings were not such that she could be called in them against the Appellant.
Strangely, and unsatisfactorily from the point of view of this Court, neither party was in a position to inform the Court whether Ateca McGoon was in fact lawfully married to the Appellant. A simple search of the register of marriages would have ascertained this. S.320 of the Criminal Procedure Code provides that necessary additional evidence may be given on appeal.
Mr. Gates submitted it had been, and still was, for the prosecution to qualify their witness. But he said her evidence did not amount to much anyway. The State pointed out that any evidence she gave was replicated in other parts of the evidence. The Appellant admitted everything that was in her evidence, the State said, so no undue advantage was obtained, if it was inadmissible.
The immunity from giving evidence of course did not operate to prevent police interviewing McGoon and obtaining quite profitable information from her. Also the obtaining from her of exhibits that might help to convict the Appellant.”
Remember that once a spouse does decide to testify, he or she is open to cross examination by both the prosecutor and if there is any co-accused, by the lawyer for the co-accused.
However, there is still the privilege relating to communications between spouses during marriage. An example of the difference might help. If a spouse saw a gun in her husband’s brief case, this is not privileged. It is not a communication during marriage. If a spouse is told by his spouse that there is a gun in her briefcase, this is a communication and is privileged. If the spouse was asked in court if her husband told her anything about the whereabouts of the gun, she would probably refuse to answer (subject to a judge’s ruling) on the basis that the communications during marriage between herself and her husband are privileged. We will examine privilege in greater detail later.
However, there are certain types of offences where spouses are both competent and compellable at the instance of a prosecutor. They tend to be where the spouse, family members or children are victims of the offence that the accused is charged with. Also, in charges of bigamy, the spouse can be called to testify. These are statutory exceptions to the general statutory rule that spouses are not compellable.
See the sections of the statutes referred to above and other related sections in the legislation (see section 145 of the Fiji Criminal Procedure Code and similar sections in the other legislation.).
It does not matter whether the matter about which evidence is sought occurred outside the time the spouses were married or even if they were married after the alleged offence solely to protect the wife from giving evidence. A spouse is not compellable as a prosecution witness regardless of when the marriage took place. At common law, former spouses remain non compellable in relation to evidence of events taking place during the marriage. (page 430 Murphy).
The law does not recognize common law relationships (de facto marriages) or same sex relationships. In view of the new Constitution in Fiji, one might expect that, eventually a submission will be made in a case to the effect that this is discriminatory and therefore unconstitutional.
What are the conflicting public policy reasons for the rules relating to the competence and compellability of spouses? If you were drafting legislation dealing with this issue, what would you include?
See section 138 of the Fiji Criminal Procedure Code.
Should a spouse be compellable at the instance of the prosecution in cases where the accused is charged with an assault against the wife or a child?
The wording of the statutes that govern this area however, refer only to spouse when dealing with competence and compellability. They do not apply to former spouses. Therefore, a spouse who has been divorced before trial is competent and compellable for the prosecution. One may ask whether this serves any valid policy objective. It should be acknowledged that this is an area where there is some uncertainty even among the text writers. In any case in the Pacific where it is anticipated that a spouse of an accused or a former spouse is likely to be called as a prosecution witness, some care should be taken to formulate a position based on authorities prior to the trial.
The competence of children is related to their perceived ability to understand the nature of an oath. The nature of an oath, as we shall see, has to do with understanding that there is a divine sanction for not telling the truth after calling God as your witness when you swear to tell the truth.
If a child can understand an oath, and is sworn, then the child is competent. Once this is determined in the affirmative, then a child is treated as any other witness. The key to understanding is believing that there is divine retribution for not telling the truth.
The age at which children are able to understand an oath is not fixed. Murphy refers to old cases where children as young as 5 or 7 have been sworn and have given evidence. Cases have been adjourned for children to get some religious education so that they will be able to be sworn. In other words, steps have been taken to make incompetent children competent. (One might well ask whether this amounts to manipulation and whether it does not require a fiction to support it.)
The determination of whether a child is able to understand an oath is made by a judge after asking the child questions about the meaning of telling the truth. Therefore it is unlike a normal voir dire. This may be contrasted to the determination of competence of other adults which is a matter about which counsel have a right to ask questions.
The determination of the competence of children takes place in the absence of the jury or assessors if there are any. In this sense, it is like a voir dire. In some cases, a judge will interview a child in the privacy of his or her chambers.
In most jurisdictions, there are Statutory provisions which allow the giving of evidence by children who do not understand the nature of an oath but have the ability to communicate their evidence. See sections of the legislation referred to above and related sections.
In cases where a child is able to give evidence without being sworn or affirmed, the child’s evidence normally has less weight than that of an ordinary witness. An accused cannot be convicted without evidence to corroborate that given by the child. (again see legislation – for example section 83 of the Criminal Procedure Code of Vanuatu or section 66 of the Samoan Criminal Procedure Code.)
Section 10 of the Oaths, Affidavits and Affirmation Act of Samoa provides for children under 12 (with no apparent minimum age to make a promise to tell the truth) and thereby, their evidence is given the same status as if it had been given under oath. Therefore the unsworn evidence of a child may be just as powerful as sworn evidence.
“s. 10 All witnesses who are or appear to be under 12 years may be examined without oath but any such witness shall be required, before being examined, to make the following declaration, “I promise to speak the truth, the whole truth and nothing but the truth” or words to that effect; and such declaration shall be of the same force and effect as if the witness had taken an oath.”
Presumably this would require a judge to inquire whether a child could understand the meaning of giving such a promise.
Compellability of special categories of persons
Other persons who are competent but who are not compellable include members of the diplomatic corps. This is not a common law matter but most countries have some legislation that covers this.
The head of state may not be compellable. In the UK, the Queen cannot be compelled to give evidence and in Tonga, the Evidence Act specifically provides that the King is not a compellable witness.
It has already been mentioned that except for some children in criminal cases, people who are unable to understand the nature of an oath or affirmation are not competent and therefore cannot be compelled to give evidence.
The burden of establishing competence
If the competence of a witness (other than a child whose understanding of an oath is a matter for the judge to determine) is challenged, the burden is on the party who is calling him or her. This is done in the absence of the jury. (This is not absolute and there is some authority to suggest that it ought to be done with the jury present. This way, if there is competence, then evidence elicited during the voir dire can be used to weigh the evidence.) It is conducted like a voir dire. The main issues of the trial are set aside and the only issue becomes the competence of the witness. Normally questions are put to the potential witness (if appropriate) or perhaps to a medical or psychiatric expert. This is a matter of law for the judge as the one who decides law. It is not a matter for the trier of fact. Only if competence is established and evidence is given does the evidence become something for the trier of fact.
The standard of proof is unclear although there is authority to the effect that it is beyond a reasonable doubt where the prosecution has to prove competence in a criminal case. Murphy agrees with this and further asserts that in all other cases, the civil standard of proof applies. (page 438)
A finding about competence does not affect the competence of a witness for all time. A witness might be found incompetent on one occasion and yet, later, be lucid and be found competent.
The following Fiji case relates to the question of when the judge has a duty to specifically qualify a witness as competent. It is an appeal where the competence of a child to take an oath is raised. The appeal court found that, not only is a 15 year old girl competent to take an oath but there is nothing to suggest that the trial judge should have made a specific inquiry into the issue prior to her taking one. The following is an excerpt of the case. (This case also deals with recent complaint and corroboration which we will consider later in the course.)
ELLIAS IAMARURU V. REGINAM
COURT OF APPEAL OF FIJI* CRIMINAL JURISDICTION
[COURT OF APPEAL, 1972 (Nimmo P., Marsack J.A., Gould J.A.), 12th, 23rd June]
“In his argument on the first ground, counsel for the appellant contended that as the complainant was under 15 years of age when she gave evidence, there should have been some enquiry as to her understanding of the nature of an oath. Counsel referred the Court to the proviso to Section 134 of the Criminal Procedure Code of the British Solomon Islands Protectorate, the relevant portions of which read as under:
“Provided that the court may at any time, if it thinks it just and expedient ..... take without oath the evidence of any person . . . who by reason of immature age or want of religious belief would not, in the opinion of the court, be admitted to give evidence on oath.
It is a well-established law that an infant of any age may be sworn as a witness in any criminal case provided that such infant appears sufficiently to understand the nature and moral obligation of an oath; Archbold, 36th Edition, Para. 1287. It is a matter for the discretion of the judge; and in our view there is nothing on the face of it to show that the learned trial judge in the present case should not have exercised his discretion in the direction of permitting a girl of nearly 15 years of age to be sworn as a witness, without making previous enquiry as to her understanding of the nature of an oath.”
Where a witness refuses to give evidence although compellable
There are statutory provisions in the legislation of all countries in the region that deals with what are referred to as refractory witnesses. (refractory – “stubbornly disobedient”)
See section 137 of the Criminal Procedure Code of Fiji.
In effect what a court does (and in most cases only has to threaten to do) is to adjourn the case for a period not exceeding 8 days with the witness remanded to custody. This is repeated as often as is necessary to effect the compliance of a compellable witness.
There have been celebrated cases where journalists who have been called to give evidence have refused to disclose the confidential sources of stories they have written and have been remanded in custody. It becomes a test of wills between the journalist (who usually appeals to a code of journalistic ethics) and the prosecutor. If the seriousness of the charge or the importance of the witness’s evidence is outweighed by the expense, inconvenience and other logistical factors, a witness who can handle being locked up (and perhaps gaining favourable press in the process) can effect a stay of proceedings.
On other occasions, a prisoner who is brought to court to testify will refuse to answer questions or lying, say that he or she “forgets”. There are codes of behaviour and allegiance among prisoners that are sometimes stronger than the sanctions of justice. After all, if a person is already in custody, it is unlikely that been confined in custody for 8 days would have much impact.
Oaths and Affirmations
As mentioned above, the main criteria that separates competent from incompetent witnesses is the ability to understand and give an oath or affirmation.
The historical view has been, if you can give an oath you can testify, if you can’t give an oath you can’t.
An oath was, in its original sense, something only Christians could do. Therefore, originally, only Christians were competent witnesses. You can easily imagine cases where injustice resulted from this rule, especially where it worked in conjunction with the rule that parties could not testify. However, this changed and a belief in a supreme ruler of the universe became the criterion, thus permitting an oath to be taken by non Christians of other faiths who believed in God.
However, this development did not allow for evidence to be given by atheists who did not believe in the existence of a supreme ruler of the universe. In 1869, statutory provision was made to allow atheists to affirm rather than to swear an oath. An affirmation is a solemn promise to tell the truth but it does not invoke God.
Oaths are generally straightforward, routine matters, administered without very much formality. A Christian takes the bible in his or her right hand and repeats the following words or words to the same effect.
“I swear by almighty God that the evidence which I shall give shall be the truth the whole truth and nothing but the truth.”
In most jurisdictions the oath is now put in the form of a question. “Do you swear that the evidence that you shall give touching the matters in question shall be the truth, the whole truth and nothing but the truth, so help you God?” The witness takes the oath by answering, “yes”.
Different religions prescribe different observances or rituals that go along with making an oath. Most involve holding in the right hand a holy book. Some involve kissing the book. Phipson gives a description of some of the more colourful rituals. If a student is aware of any particular practices in the South Pacific, I would be grateful if you would let me know.
What is it about an oath that is supposed to compel people to tell the truth? Historically, it was the belief in a divine sanction involved in breaking an oath that was felt to be an inducement to tell the truth. This is why those who could not give an oath could not testify. They could not be said to be under a belief that God would punish them for telling a lie.
This is still a strong inducement for some people to tell the truth. Many religious persons would agree that telling a lie after swearing to God that you will tell the truth will result in some divine punishment.
In the following case excerpt, a Solomon Islands judge voices frustration at the way that some witnesses treat an oath. (We have already examined the following case in relation to credibility and the role of the finder of facts. It also deals with burden of proof and character evidence.)
REGINA v PHILIP TAHEA & OTHERS
HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 14 of 1995
Before: Palmer J
“I feel compelled at this juncture to express my deep displeasure, at the way the Oath that a witness takes to tell the truth, the whole truth in court, and that includes answering questions, has been blatantly abused and taken for granted by witnesses who come before this Honourable Court. Taking the oath is a solemn act in itself, and directly invokes the Authority of God Almighty, recognising His Omnipresence and Omniscience, as the Witness to the testimony of the witness. All witnesses therefore who take the oath must take it seriously, and seek actively at all times, to speak the truth according to the best of their ability, knowledge and understanding, instead of deliberately lying in court. I raise this concern now because it is clear to me that there are some witnesses who do not appreciate the value and significance of the oath and the assistance that it provides to the Courts in the due administration of justice. I think we should remind ourselves, not to use the oath as a mere human tool which can be abused at will but also a solemn act, in which we make ourselves accountable not only to men, but also to God Almighty. It is my hope that we will have fewer cases where witnesses come to these courts and deliberately lie through their teeth.”
However, there are other reasons for telling the truth after being sworn or giving a solemn affirmation. One has to do with the conscience that some people feel to tell the truth even without a belief in divine intervention. Certainly, an affirmation, if it binds the conscience in any manner, does so on this basis. It is not that God will punish a person, it is that the person’s conscience, apart from God will bother or “punish” the person if he or she does not tell the truth.
However, there is another, perhaps even stronger reason for telling the truth and that does not have to do with divine punishment or human conscience but rather the fear of being caught telling a lie and the possibility of being charged and convicted with perjury. The Penal Codes or other legislation in every jurisdiction of the Pacific would include the offence of perjury. It is a serious indictable offence. Telling a lie is likely to result in very rigorous cross examination at the very least and this increases the chances that a lie will be revealed.
It would be naïve however to assert that these measures are sufficient to prevent all witnesses from lying in court or to uncover and punish those who do.
The law prevents people from getting around their obligation to tell the truth by taking a false oath; that is, taking an oath that is not binding. For instance, a non Christian might deliberately take an oath on the bible thinking that this will result in him or her not really being sworn to tell the truth and therefore not really obliged to tell the truth and to be able to lie with impunity.
The law has not allowed this course to be taken as a means of defence to a charge of perjury. It is the taking of an oath and not the belief in it that triggers the obligation and is the basis for the offence of perjury. People cannot say, after taking an oath, “I didn’t mean it” or “I didn’t believe it” or “I don’t really believe in God”. The law will not permit them to use this to evade the obligation to tell the truth or the consequences of not doing so.
Each jurisdiction has some legislation known as the Oaths Act, The Oaths and Affirmations Act or the Oaths, Affirmations and Declarations Act. You should be familiar with the legislation in effect in your jurisdiction and to see the specific provisions relating to oaths and affirmations.
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