Aborigines, evidence without oath (1841) (WA)

WESTERN AUSTRALIA

ANNO QUARTO ET QUINTO

VICTORIJE REGIME

No. 22

An Act to allow the Aboriginal Natives of Western Australia to give information and evidence without the sanction of an Oath.

[Assented to 26th November, 1841.

HEREAS many of the forms, requisites, and provisions of the preamble

Wof Australia, inasmuch as there is strong reason to believe that theselaw have been found inapplicable to the aboriginal inhabitants

people are ignorant of the existence of any future state of rewards and punishments, and do not acknowledge any form or mode of adjuration as binding upon them, in consequence of which much failure of justice might ensue, and many serious offences and crimes which have been committed with their privity only, might pass unpunished ; and whereas it is expedient to devise some means whereby such evils may be prevented ; and whereas the attendance of natives to give evidence cannot be secured by the forms of the British law : Be it therefore enacted, by His Excellency the Governor of Western Australia, by

from and after the passing of this Act it shall and may be lawful for re peace

and with the advice and consent of the Legislative Council thereof, that Any Justice of

made before him by any of the aboriginal race of this territory, to ntiblolritnImmtative any Justice of the Peace of the said Colony, upon any complaint being li c,icaelg °faint' °I-

receive and take the information of the said individual upon his tion.witlio9t.

affirmation or declaration to tell the truth, the whole truth, and1`;0/",',',1„Tr,,,"11.,

nothing but the truth, without administering the usual form of oath, of oath

and to reduce the substance of such information into writing, if it

should appear necessary so to do, and thereupon to issue his summons

or his warrant, as the nature of the case may require, or to take any

other such proceedings as may be usual and proper in the case of an

information made by any other of Her Majesty's subjects.

2. And be it enacted that in any civil action, or upon any inquiry On the inquiry

into any matter of complaint, or upon the trial of any offence, whether

committed by one of the aborigines or by any other person, it shall the aborig,thes

and may be lawful for any Court, or for any Justice or Justices of the '0',1,a;;Zr„,rni:;,ed

Peace to receive the evidence of any of the aborigines without ad- without mbninis-

ministering the usual form of oath, such aboriginal native having ti ec, Mliciraral

first made an affirmation or declaration to tell the truth, the whole

truth, and nothing but the truth ; provided always that in the case of

4 & 5 VICTORLE. No. 22

Aborigines

In any prelimi-	any proceeding in the nature of a preliminary inquiry the substance
proceeding such	of the evidence or information of such aboriginal native shall be
information or
evidence is to be	reduced to writing, and signed by a mark by such native, and verified
reduced to	by the signature of one or more of the Justices of the Peace before
writing, signed
by a mark, and	whom such information or such evidence shall have been given.
verified by the

nary stage of

Justice 3. And be it enacted that if at the appointed time of such inquiry

If at the ap-	or trial as aforesaid, the aboriginal native who gave his or her
inquiry or hear-
pointed time of	information or evidence in any preliminary stage of the proceedings
ing, the indi-	shall not appear when called upon, then, in such case, such information
vidual who gave
the information	or evidence so taken as aforesaid, and so reduced to writing, and so
does not appear,	signed and verified as aforesaid, may be read and received as evidence,
then such infor-
mation or evi-	in any future stage of the proceedings relative to the same transaction,
dence so written	without the necessity of bringing forward the same individual, to
and signed and
verified may be	repeat his testimony orally ;—Provided always, nevertheless, that the
read in evidence	degree of credibility to be attached to any such information or
The degree of
credibility to be	evidence, whether in the preliminary or in the final stage of the
attached to such	proceedings, and whether oral or written, shall be entirely left to the
information or
evidence shall be	decision of the Justice or Justices, or of the Court and Jury respectively,
entirely left to
the decision of	according to the tribunal before which such information or evidence
the Justices, or	shall have been offered, as being evidence given without the sanction
Court and Jury	of an oath or the test of cross-examination.
Any person

making such af- 4. And be it enacted, that if any aboriginal native making such

firmation falsely,	affirmation or declaration, as aforesaid, shall be convicted of having
is to be punish-
able as in case	wilfully, falsely, and corruptly affirmed or declared any matter or
of perjury	thing, which, if the same had been made upon oath in the usual form, would have amounted to wilful and corrupt perjury, he or she shall incur the same penalties and forfeitures as by the laws and statutes of England are enacted against persons convicted of wilful and corrupt perjury.
two years
Duration of Act,	5. And be it enacted, that this Act shall be and continue in force for two years from the date of its passing the Legislative Council.

JOHN HUTT,

GovERNOR.