Aboriginal Witnesses Act 1848 (SA)

No. 3.

I

l

To Facilitate the Admission of the U~lsworn Testimony of l

the Aboriginal inhabitants of South Australia and the parts	[L,*
adjacent.

of justice, no testimony is permitted to be received, unless given under the sanction of an oath, necessarily excludes the testimony of many persons Aboriginal Natives of this Province, and of the Countries adjacent thereto on the Continent of Australia, who are altogether uncivilized and are destitute of the knowledge of a God, and of any fixed religious belief: AND WHEBEAB in order to prevent the failure of justice, and that crimes and offences committed with the privity of E U C ~ uncivilized Persons might not go unpunished, Two seyerd Ordinances have been passed, the one on the twelfth day of August one

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WmmEAs the Law of Evidence whereby, in the adminiitration p,eambh,

18'"	$0	one thousand eight hundred and fortyfour, intituled " An Ordinance to allow the Aboriginal Inhabitants of South Australia and the parts adjacent to givkInformation and Evidence without the sanction of an Oath;" and the other passed on the twenty-third day of &&E& one
l"'.	5.	thousand eight hundred and forty-six, being an Ordinancc passed for the purpose of amending the first-mentioned Ordinance: A m
WETEREAS it is deemed necessary to amend the said Ordinances, and

Repeal of Ordinances, to reduce the same into one Ordinance: BEIT THEREFORE ENACTED by

No. 8, 1844, and No. 5,	THE GOVERNOR	OF SOUTH:	AUSTRALIA,	with the advice and consent of
1846.

THELEGISLATIVZ COUKCIL thereof-THAT both the said Ordinances shall continue in force until this present Ordinance shall commence and

l take effect, and shall then be repealed,

such uncivilized person:	11,-AND	BE IT ENACTED,	that in all proceedings in the adrninistra-
as are hereinbefore de-

scribed rnayigive infor- tion of justice whether of a civil or criminal nature, wherein tllc

mation Or e v i W c e with- testimony of any such uncivilized person as hereinbefore dcscribcct, out oath. ; may be requircd, it shall be lawful for thc Court, Judge, or Coroner, or

i *

L	Justice, or Justices of the Peace having jurisdiction in the matter, to
which the testimony relates, to receive such testimony withbut
administering any form of oath, a ~ d without any formality, except

The Court, Judge, &C., is that such Court, Judge, or Coroner, or Justice, or Justices, as the case

cause I0 be

ed to the witness that he may be, shall before Feceivirg such testimony, canse it to be explained

i s to tell a11 he knows to such uncivilized person, that he is required to tell what he knows	about the matter in ques-
ticin. about the matter, to which his testimony relates.
The testimony of such 111.-AND m IT ENACTED, that thc testimony of any such
uncivilized person being

to writing, is to uncivilized person being reduced to writing, and being ~erified as

in all cases where the be received as evidence hereinafter mentioned, may be lawfully received as evidence upon

affidavit, k c, ofanyper- any trial, civil or criminal in this Province, when under the like

O n ieceived, g h t be lawfully circumstances the written affidavit, examination, or deposition upon

oath of any person, might be lawfully read or received as evidence.

Tnfo~mation of such un- IT.-AND BE IT ENACTED, that when any such uncivilized person

c iv i l i zd person may be

received without oath.	as aforesaid, shall be willing to make any complaint or infonnatiou,
before any Justice of the Peace of any matter, whereof such Justice
hath ju&sdiction to enquire, i t shallWbe lawful for him to take t l ~ e
complaint or information of such uncivilized person as afol-esnid, without administering any form of oath, and without other formality,
and such complaint or information being in all cases reduced to
writing, and verified by the signature of the Justice beforc whom the same is made, such further acts and proceedings may be done and hsd thereupon, as may be lawfully done and had, upon complaints or informations made upon oath in ordinary cases,

~n cases of preliminary	V.-AND	BE IT ENACTED,	that in every case of proceeding of tile
enquiry the complaint,

~~o~~~~on,o!testimonp.,

nature of a preliminary enquiry, the testimony of such uinciviliecd

persoq

person as aforesaid shall be reduced into writing by, or in fie of such unci~ilized per- son to be reduced into pescnce of the Coroner, Justice of thc Peace, or other Magistrate, writing in the prercnoe

before whom the same may be taken, and shall be verified by the of the Juutice*

of suchCouoner, Justice, or Magistrate, and by his certificate,

I the writing contains a truc statement of such testimony, which And be by hL

~crtificate shall be according to the form in the Schcdulc to this signature and certificate.

Ordinance annexed.

V1.-AXD BE IT ENACTED, that the effect of any such unsworn ~ f f e c t of unsworn tcsti- !

testimony shall be according to thc weight and credibility, which in ,ionollheJustice, Judge, mony to be in the discre-

tile opinion of the Justice or Justices, or of the Court or Judgc, or of or Jury, &c. 2LL+--x-- .

the Jury, under the direction of thc Court or Judge, (as the tribunal &..&-"LP+--

maj	ibcdifore which such evidence shall be offered)bught tobeattached
ther	meto, as evidence given without the sanction of an oath: PRO- ,iprooiso.
TIDY	ED ALWAY?, that no person whether Aborigmal Native, or other
shal	l1 be convicted of any offence in respect whereof he may be H, d f ~ 2 6

"7

ad,jl: ~dged to suffer death or transportation upon the sole unscorn I /-?F? -

test:	imony of any snch uncivilized person or persons: PEOVIDED	p v i s o;	>
l	I
NEV	ERTHELESS that it shall not be nccessary to a conviction in any 1,

cast	:, that thc testimony of such uncivilized prrson or persons shall be '	4
COY)	.oborntcd, as to any particular fact by other evidence relating to '
the	same fact.	I

t TII.-Ax~ W ~ c n z a s some such uncivilized person as aforesaid, GnswornInterpretcr may

ma;	r occasioix~lly be foimd, llaving sufficient knowledgc of the be used,
E116	$sh language to ha able to cxplain therein, what is said by one
of S	uch uncivilized persons in his native language: BE IT THEREFORE
ESA	CTED, that in all cases, when according to the provisions of this
Ord	liliance the testimony of snch uncivilised persons as aforesaid may
be	lavfnlly recei\*ed in the administration of justice, without the
San	ction of an oath, it shall be in like maimer lawf~d for the Judge,
Jus	tice, or Coroner bcfore whom such testimony is offered, to reccivc
the	saule by means of the interpretation of any such uncivilized
per	son as aforesaid, without administering to hiin any oath duly to

in tc irprct such tcstin~ony : PROYIDED that such Judge, Justice, or p,,,i,O+

C 01

-oner shall be satisfied of the ability of the person offered as In-

peter duly to interpret the same.

$HI.-SND BE IT ENACTED, that if nnpsucb uncivilized person as Punishment for any wi1-

resaid, shall in giving his information m testiniony in manner fully false statement.

resaid; wilfiilly make any false statement, which if made upon oath,

~ l d subjcct him to the penalties of pcqky, he shall be deemed

It? of a, nhderueanor, and be liable to be imprisoned with or

hout llard labour for any term, not exceeding Two years, and f~~rthcr

3e once, twice, or thrice publicly or privately whipped, if the Court,

before

before whom he shall be tried shall so think fit, in addition to such

hprisonment.

The common Of IX.-PROVIDED ALWAYS, that nothing herein contained, shall b,

eraona who appear to be-

Eere in r GO^,. future deemed to authorise any Judge, Coroner, or Justice of the Peace,

Iem& and take or admit the unsworn testimony of any person, who shall appa

punishment and to un-

derstand the obligation of upon examination to believe in a God, or a future state of reward an,

an oath nottobeadmitted. punishment, and to understand the obligation of an oath.

X.-AND BE IT ENACTED, that the term uncivilized persons sha]

~onstnrction.

be deemed to include, not only Aboriginal Natives of this Provinct

and the Countries adjacent thereto, b ~ ~ t uncivilized Natives thereo;

who are half-caste or of mixed,breed.

Commmcement of A G ~, XI.-AND BE IT ENACT~D, that this Ordinance shall cornmenc

and take effect from the passing thereof.

FREDK. H. ROBE,

Lieutenan t-Governor,

Paased the Legislath e Council this Twenty-

prst day of July, One thousand eight

hgndred and fortv-eight.

W. L. O'HALLORAN,

Clerk of Council,

SCHEDULE.

South Az~stralin The examination of (state the name of witness),

t o Wit. ) an Aboriginal and Uncivilized Native of South

Australia talrcn before me, A. B., one of Her Majesty's Justices of

the Peace for the said Province, the day of

who in the presence and hearing of (state the name of the accused person), chmged before me, the mid Justice, for (state the ofenee) saith (set for:'ii the exnmijzlrtion.)

I certify that thc above writing contains a true statement of' the

testimony of the above-named jriume o	Native witness) on his ex-	f
amination before me this day.

Given under my hand this day of

NOTE.-If the examination was taken by means of an Interpreter,

the words as interpreted by (name of Interpreter) may be introduced

with the certificate. If taken before a Coroner, the examination and

certificate will be varied accordingly.

ADBLAID~ : Printed by authority by John Slephens, Printer, Hindleg-street.