R v Climas

R v CLIMAS
QUESTION OF LAW RESERVED BY TRIAL JUDGE ON AN ISSUE ANTECEDENT TO TRIAL
[1999] SASC 457

Court of Criminal Appeal: Millhouse, Duggan and Lander JJ

1 MILLHOUSE J. I agree with the answers given by my brothers Duggan and Lander and, broadly, for the reasons which they give.
2 DUGGAN J. A judge presiding over a trial in the District Court has reserved for the consideration and determination of this Court various questions of law arising out of a preliminary issue raised before him. The questions are concerned with the interpretation and application of recent amendments to the Evidence Act 1929 dealing with sworn and unsworn evidence.
3 In the case before the trial judge the accused is charged with inciting a child to commit an indecent act. It is alleged that the offence took place in April 1998. The alleged victim was born on 21 September 1991 and the prosecution intends to call her as a witness at the trial.
4 Prior to the commencement of the prosecution case the learned trial judge was asked to determine whether the child should be permitted to give sworn evidence. There followed a discussion on the amendments contained in the Evidence (Miscellaneous) Amendment Act 1999 (the amending Act) which came into effect on 27 June 1999.
5 Before considering the questions which have been referred to this Court it is convenient to have regard to some relevant provisions both before and after the passing of the amending Act.
The relevant provisions prior to the passing of the amending Act

6 Section 6 (3) permitted an affirmation to be made instead of an oath. It provided:
"A person shall be permitted to make an affirmation instead of an oath in all circumstances in which, and for all purposes for which, an oath is required or permitted by law."
7 Section 9 dealt with the giving of evidence without formality. It provided as follows:
"(1) Where in any proceedings (including proceedings in the nature of a preliminary examination) it appears to a judge that a person does not understand the obligation of an oath, he may permit that person to give evidence without an oath and without formality.
(2) Before the judge receives any such evidence he must explain or cause to be explained to the person by whom the evidence is to be given that he is required to be truthful in anything that he may say before the court.
(3) (Irrelevant)
(4) A person who in giving evidence under this section wilfully makes any false statement shall be guilty of an offence and liable to be imprisoned for a term not exceeding two years.
(5) (Irrelevant)
(6) Unsworn evidence given under this section has such weight and credibility as ought to be given to evidence given without the sanction of an oath."
8 The giving of evidence by young children was dealt with in s 12. "Young child" is defined in both the pre and post amending Act legislation as a child of or under the age of 12 years. Section 12 provided:
"(1) A young child who is to give evidence before a court is not obliged to submit to the obligation of an oath unless -
(a) the child is of or above the age of seven years; and
(b) the judge is satisfied that the child understands the obligation of an oath.
(2) If a young child, who is not obliged to submit to the obligation of an oath, is to give evidence before a court and -
(a) the child appears to the judge to have reached a level of cognitive development that enables the child -
(i) to understand and respond rationally to questions; and
(ii) to give an intelligible account of his or her experiences; and
(b) the child promises to tell the truth and appears to understand the obligations entailed by that promise,
unsworn evidence of the child will be treated in the same way as evidence given on oath.
(3) In any case in which unsworn evidence of a young child is not assimilated under subsection (2) to evidence given on oath -
(a) the child's evidence will be evaluated in the light of the child's level of cognitive development; and
(b) a person who has been accused of an offence and has denied the offence on oath cannot be convicted of the offence on the basis of the child's evidence unless it is corroborated in a material particular by other evidence implicating the accused.
(4) A young child who is called as a witness is, while giving evidence, entitled to have present in the court, and within reasonable proximity, a person of his or her choice to provide emotional support (but the person must not interfere in the proceedings).
(5) Unless the court otherwise allows, a witness or prospective witness in the proceedings cannot be chosen under subsection (4) to provide emotional support for a young child."
The relevant provisions after the passing of the amending Act

9 A definition of "sworn evidence" was inserted into the Act in s 4. It is defined as "evidence given under the obligation of an oath or an affirmation".
10 Section 6 (3) of the Act was repealed and the following subsection was inserted:
"A person is permitted, and should be offered the choice, to make an affirmation instead of an oath in all circumstances in which, and for all purposes for which, an oath is required or permitted by law."
11 Section 9 of the Act was repealed and the following section was substituted:
"9(1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2) If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that -
(a) the judge -
(i) is satisfied that the person understands the difference between the truth and a lie; and
     (ii) tells the person that it is important to tell the truth; and
(b) the person indicates that he or she will tell the truth.
(3) In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
(4) If unsworn evidence is given under this section in a trial by a jury, the judge -
(a) must explain to the jury the reason the evidence is unsworn; and
(b) may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(5) (Irrelevant)."
12 Section 12 of the Act was amended by striking out subsections (1), (2) and (3).
13 Before considering the specific issues raised in the case stated it is convenient to make some general observations concerning the apparent purpose and effect of the amendments.
14 In my opinion the new provisions are to be viewed as representing one further step in the lengthy history of the movement away from a the time when the oath was a fundamental prerequisite to the giving of evidence. In Wigmore on Evidence (1976) Vol 6 para 1815f it is pointed out that in almost every jurisdiction this inflexible requirement has been removed for persons who hold beliefs which are incompatible with the taking of an oath. The amelioration of the earlier strictness of the common law began with the case of Omichund v Barker (1744) 26 ER 15, where it was held that persons who were not members of the Christian religion could be sworn. Then in the nineteenth century provision was made for witnesses to apply to make an affirmation. At first the right was restricted to specific religious groups, but on the passing of the Common Law Procedure Act, 1854 a person could affirm if he or she satisfied the presiding judge of the existence of a conscientious objection to the taking of the oath.
15 In South Australia, before the amendment of the Evidence Act in 1984, s 8 of the Act provided:
"8. (1) A person who objects to being sworn and states as the ground of his objection -
     (a) that he has no religious belief;
     (b) that the taking of the oath is contrary to his religious belief or his conscience;
     or
     (c) any other ground that the court thinks sufficient;
shall be permitted to make a solemn affirmation instead of an oath in all circumstances in which, and for all purposes for which, an oath is required or permitted by law."
16 Despite increasing pressure from various quarters to abolish the requirement to take the oath before giving evidence, most jurisdictions have retained it whilst, at the same time, providing a simple choice between giving evidence on oath and making an affirmation. The above section was repealed by Act number 56 of 1984 and replaced by the former s 6(3) which permitted an affirmation to be made as of right.
17 However there remained situations in which the court could be required to enquire into a person's understanding of the nature of the oath. Immediately prior to the passing of the amending Act, s 9(1) provided that the judge could permit a person to give evidence without an oath and without formality if it appeared that the person did not understand the obligation of an oath. An inquiry by the court under this subsection in relation to the person's understanding was specifically directed to the taking of an oath not an affirmation. The repealed s 12(1) which dealt with evidence of young children required the court to direct its attention to the child's understanding of the obligation of an oath.
18 The role of the court under these provisions and the further issue as to whether a judge was required under any circumstances to enquire into the religious beliefs of a person wishing to take the oath have been considered by this Court in a number of recent decisions. There was no difficulty if the witness chose to affirm. No belief was necessary in order to make that course appropriate. On the other hand, it was said from time to time that it was proper for the judge to make enquiries of the witness as to that person's understanding of the religious significance in taking an oath if a question arose as to the existence or level of such understanding. (R v Schlaefer (1992) 57 SASR 423 at 429).
19 In R v T (1998) 71 SASR 265 which was decided before the amending Act came into force, Doyle CJ touched on this question when he said (271):
"If a question is raised as to the propriety of administering an oath to a witness, in my opinion the judge may question the witness as to the witness' belief in a God. In saying that, I assume for present purposes that such a belief is required if the witness is to take the usual oath. As I said earlier, I do not need to decide that point. The judge may do so even though, having regard to the provisions of the Evidence Act, any problem can be solved by the witness affirming."
20 If such an enquiry was undertaken a further question arose as to the nature of any prerequisite to the taking of the oath. Did it require a belief in God and an appreciation of the significance of making a solemn promise to God to tell the truth as held in Schlaefer (at 438) or was it sufficient that the person swear in such a way as to bind his or her conscience as suggested by Perry J in R v Simmons (1997) 68 SASR 81 at 85?
21 Whatever the position might have been before the passing of the amending Act, I think the intention of the legislature in making these amendments to the law was to render such enquiries inappropriate. Section 9(1) provides that a person is presumed to be capable of giving sworn evidence. Sworn evidence means evidence given under the obligation of an oath or an affirmation. The presumption is not limited to one or the other. Assuming that the presumption is not displaced a choice between the two is created and that is confirmed by s 6(3). If the witness is capable of giving sworn evidence there is no fetter upon the choice which is to be made. There is no scope for intervention by the court, apart from that which might be deemed appropriate in providing the witness with information necessary to assist him or her in making the choice. But I do not think that the person, child or adult, can be directed to pursue one course as opposed to the other. The situation is the same for young children and adults alike. Section 12(1) which required that the judge had to be satisfied that a child of or above the age of 12 years understood the obligation of the oath before being permitted to submit to such an obligation has been repealed.
22 In my view some comments made by Bleby J in R v T are apt to a consideration of the issues under consideration in the present case despite the fact that they were made before the most recent amendment. His Honour said (284):
"If a witness elects to swear an oath so that he or she voluntarily and publicly undertakes some further obligation to God with the prospect (if he or she so believes) of a divine sanction as well, he or she is at liberty to do so. It is not for the court to question that person's state of belief or understanding in that regard. If the question of the person's competence arises, the court, in my opinion, need only inquire into the person's understanding of the common obligation. Of course, in earlier times, when evidence could only be given on oath, or when a person had to advance good reasons why he or she should not be sworn but should be allowed to affirm, a wider inquiry as to the person's religious belief and as to whether the oath was binding on the person's conscience was necessary. However, if inquiry as to the person's belief in God is not now necessary to establish competence, neither is an inquiry as to whether the oath or affirmation binds the person's conscience. 'There can be no conscience where there is no fear of God' (Gray v Macallum (at 109)).
This is not to say that some witnesses, when uncertain as to whether they should take an oath or make an affirmation, may not need some assistance in understanding what conditions must be met before an oath can properly be taken. Recent cases in this Court, R v Schlaefer and R v Simmons, have exposed some difference of opinion as to what those conditions are. This is not the occasion to venture into that area, and those differences may be of diminishing relevance."
It is my view that the amending Act has now removed altogether the relevance of those differences.
23 When stating this case the learned trial judge expressed the view that the obligation to tell the truth would differ depending on whether the evidence was given on oath or under the obligation of an affirmation and that this was a factor relevant to any determination the judge might make under s 9(1). With respect, I cannot agree with this view.
24 Under the new provisions the focus has changed from a consideration of the ability to understand the nature of the oath to a consideration of the ability to understand an obligation which is common to both oath and affirmation. King CJ explained the nature of this obligation in R v Whittingham (1988) 49 SASR 67 at 69 when he said:
"The law depends upon the solemnity attaching to the taking of the oath or affirmation to impress upon the minds of witnesses the importance of telling the truth in the witness-box, and indeed the crucial importance of telling the truth in the witness-box by comparison with other, everyday occasions on which the sanction and solemnity of the oath are not invoked."
25 I now turn to the questions posed by the learned trial judge.
26 1. Do the amendments effected by ss 3-7 of the Evidence (Miscellaneous) Amendment Act 1999 No 18 apply where the offence was allegedly committed before 27 June 1999?
27 Mr Millsteed QC, for the Director of Public Prosecutions, and Mr Apps, for the accused, both submitted that the amending Act was applicable to the accused's trial despite the fact that it is alleged the offence was committed prior to the date on which the amendments came into operation. I agree with that submission.
28 The rule at common law was stated in the judgment of the court in Rodway v The Queen (1990) 169 CLR 515 at 518 in the following terms:
"... a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction."
29 The position is different, however, where procedure alone is involved. In that event the statute operates prospectively because it prescribes the manner in which something is to be done, even if what is to be done relates to past events. (Rodway at 518).
30 The exception in relation to legislation which deals with procedural matters applies even in those cases in which the procedures affected by the amending legislation provide fundamental protection against wrongful conviction. In Rodway the amendment dispensed with the requirement to warn juries that it was unsafe to convict on uncorroborated evidence in all sexual cases. However it was held that the amendment was applicable to the trial of an offence alleged to have been committed prior to the legislation becoming operative.
31 The court in Rodway also expressed the view that Attorney-General's Reference No. 1 of 1988 (1988) 49 SASR 1 was wrongly decided. In that case the Evidence (Amendment) Act 1988 (SA) repealed in certain specified circumstances a prohibition against the conviction of an accused upon the uncorroborated evidence of a child under the age of 10 years where the accused denied the charge on oath. The Full Court of this Court held that this safeguard conferred a substantial right which went beyond the realm of mere procedure. The High Court disagreed with this view and held that the legislation was concerned with procedural matters, however important they might be regarded.
32 In the present case the amending Act effected the significant changes which are apparent from a comparison of the provisions which are set out above. However these changes have not affected existing rights or obligations; instead they are concerned with the manner in which such rights are to be determined.
33 It is for these reasons that the provisions in the amending Act are applicable to the trial in the present case.
34 2. Is the determination under s 9(1) merely one whether the witness "does not have sufficient understanding of the obligation to be truthful" irrespective of whether the witness is to take an oath or to make an affirmation, and so, if capacity is upheld, can witnesses either take an oath or make an affirmation as they then choose?
35 For the reasons given above, I would answer both aspects of this question in the affirmative. In my view the nature of an enquiry under s 9(1) should not vary according to particular obligations which might be said to be unique to either an oath or an affirmation. It is the common obligation to be truthful in relation to both oath and affirmation which is central to such an enquiry. Furthermore, as I have pointed out, s 6(3) provides for a choice to be made between oath and affirmation.
36 3. Is the determination under s 9(1) one where the witness "does not have sufficient understanding of the obligation to be truthful" in relation to either an oath or affirmation depending which of them the witness has chosen or is to choose?
37 The determination as to whether the witness does not have sufficient understanding of the obligation to be truthful is to be considered without regard to the choice of the witness to either take the oath or affirm.
38 4. Is the witness to be required to make the choice under s 6(3) of an oath or an affirmation before any determination is made under s 9(1)?
39 It is only if the choice between oath and affirmation is relevant to the determination on the issue of sufficient understanding of the obligation to be truthful that an election between the two would be necessary before such a determination. As it is not relevant, the witness is not required to make a choice before any determination is made under s 9(1).
40 5. If the accused so requests, is the Court to inquire into whether the witness has a sufficient understanding of an oath or an affirmation so as to be able to make a proper choice between them, and what is the effect if the witness cannot make a proper choice?

41 I have given my reasons as to why I am of the view that it is no longer necessary for the court to determine whether a person has sufficient understanding of an oath or affirmation before making a choice as between the two. I repeat my further view that it may be appropriate in a particular case for the court to assist a person in the making of that choice by providing information and other guidance.
42 As to the last part of the question, the choice between oath and affirmation would not arise until any enquiry deemed appropriate under s 9(1) had taken place. If, following an enquiry pursuant to s 9(1) it was found that a person had sufficient understanding of the obligation to be truthful in giving sworn evidence, it would be unlikely that the witness would not have sufficient understanding to make a choice between oath and affirmation, particularly after receiving assistance from the court. It is inappropriate to comment in advance on rare cases in which the circumstances may differ from one case to another. It is sufficient to observe that the only situation contemplated by the legislation as having consequences in this regard is where the person does not understand the common obligation to tell the truth. It should also be pointed out that s 6(2) provides:
"Where an oath has been lawfully administered and taken, the fact that the person taking the oath had no religious belief, or that the oath was not taken so as to be binding on his conscience, shall not affect, at all, the validity or effect of the oath".
43 6. Where a witness aged under 10 years chooses to make an affirmation:
(1) is the obligation of the witness to be truthful under s 9(1):
          (a) merely a moral obligation?
          (b) in the nature of a promise?
(c) greater than the obligation imposed by s 9(2) for unsworn evidence?
     (2) does the Court have to be satisfied that the witness understands the words of the affirmation 'do solemnly and truly declare and affirm'?
     (3) should some special form of wording be used for the non statutory parts of the affirmation which are tailored to the vocabulary and understanding of the witness?
44 A person under the age of 10 years cannot commit an offence (Young Offenders Act 1993 s 5). However, despite the absence of a criminal sanction for not telling the truth, it remains appropriate in the case of children of this age to regard the obligation to be truthful referred to in s 9(1) as alluding to the importance of telling the truth in the witness box as a serious matter which may have serious consequences for the accused. This is the nature of the obligation explained by King CJ in R v Whittingham (supra) but without the added aspect of a sanction.
45 I do not think it is relevant to consider whether this is properly described as a moral obligation, in the nature of a promise, or an obligation which is greater than that imposed by s 9(2).   It is sufficient to explain its content by reference to the above description.
46 Nevertheless it is appropriate to comment on the relationship between s 9(1) and s 9(2). In the event that the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the question may arise as to whether the person should be permitted to give unsworn evidence in accordance with s 9(2). The prerequisites for permitting such a course are as follows:

the judge must be satisfied that the person understands the difference between the truth and a lie (s 9(2)(a)(i));
the judge tells the person that it is important to tell the truth (s 9(2)(a)(ii))
and
the person indicates that he or she will tell the truth.
47 The section contemplates a situation where the person does not sufficiently understand the obligation which arises from giving evidence in a matter before the court, but does have sufficient understanding of the basic difference between telling the truth and telling a lie. This position is not far removed from the comparison made by King CJ in the passage quoted above from Whittingham's case.
48 For the reasons which I have already given, I do not think the court has to be satisfied in each case that the witness understands the words of affirmation "do solemnly and truly declare and affirm". However in a particular case the judge might well consider that an explanation of the nature of an affirmation is appropriate. Any explanation should stress the gravity and the importance of the truth being told on the particular occasion (cf R v Governor of Pentonville Prison, ex parte Singh (Harmohan) [1981] 3 All ER 23 at 27). However it might well be that these considerations have already been canvassed if an enquiry directed to the matters relevant to s 9(1) has taken place.
49 Although much depends upon the circumstances of the particular case, I agree that it might be appropriate in some cases to tailor the non-statutory parts of the affirmation to the vocabulary and understanding of the witness.
50 Questions seven and eight are as follows:
51 7. If a witness elects to take an oath, or if capacity to take an oath is otherwise relevant, are the criteria laid down in R v Schlaefer (1992) 57 SASR 423 to be used in determining whether the witness does not have sufficient understanding of the obligation to be truthful in giving evidence on oath?
52 8. If it is determined that the witness does not have the capacity to take the oath, is the witness then to be allowed to choose to make the affirmation, and to affirm if it is determined that the witness has the capacity to affirm?
53 It follows from what I have said that the answer to question 7 must be no.
54 Question 8 is irrelevant in the light of my view that it is unnecessary to conduct an enquiry into the understanding of the witness in relation to the taking of an oath.
55 In summary, therefore, I would answer the questions as follows:
Yes.
Yes and Yes.
No.
No.
No.
6(1) It is the same obligation as that for a witness over the age of 10 years as described by King CJ in R v Whittingham (1988) 49 SASR 67 at 69 but without the legal sanction which would attach for a false statement.
6(2) Not specifically.
6(3) It is within the discretion of the court to use a special form of wording for the non statutory parts of the affirmation in appropriate cases.
No.
Irrelevant.
56 LANDER J. I have had the advantage of reading in draft the reasons of Duggan J.
Procedure

57 This matter comes to this Court pursuant to s350 of the Criminal Law Consolidation Act. A District Court Judge has reserved for consideration and determination by this Court a question antecedent to trial (s350(1)).
Facts

58 The matter reserved arises in these circumstances. The accused is charged that in April 1988 he incited a child to commit an indecent act, contrary to s58a(1)(a) of the Criminal Law Consolidation Act. He has pleaded not guilty.
59 The alleged victim was born on 21 September 1991 and was thus less than seven years of age at the time of the alleged offence and is now nearly eight years of age.
60 The Director of Public Prosecutions intends to call the child as a witness at the trial and the accused has challenged the presumption under the new s 9(1) of the Evidence Act 1929 of her capacity to give sworn evidence. The learned Judge has informed this Court:
"I was requested on the voir dire to rule whether the alleged victim should be permitted to give sworn evidence under s 9(1), or, if not, whether she should be permitted to give unsworn evidence under the new s 9(2) of that Act. The alleged victim has not yet expressed any choice under s 6(3) of that Act whether to take an oath or make an affirmation if she is permitted to give 'sworn evidence'".
Questions

61 The learned Trial Judge has reserved the following questions:
"1. Do the amendments effected by ss3-7 of the Evidence (Miscellaneous) Amendment Act 1999 No 18 apply where the offence was allegedly committed before 27 June 1999?

Is the determination under s 9(1) merely one whether the witness "does not have sufficient understanding of the obligation to be truthful" irrespective of whether the witness is to take an oath or to make an affirmation, and so, if capacity is upheld, can witnesses either take an oath or make an affirmation as they then choose?
Is the determination under s 9(1) one where the witness "does not have sufficient understanding of the obligation to be truthful" in relation to either an oath or an affirmation depending which of them the witness has chosen or is to choose?
Is the witness to be required to make the choice under s 6(3) of an oath or an affirmation before any determination is made under s 9(1)?
If the accused so requests, is the Court to inquire into whether the witness has a sufficient understanding of an oath or an affirmation so as to be able to make a proper choice between them, and what is the effect if the witness cannot make a proper choice?
Where a witness aged under 10 years chooses to make an affirmation:
(1) is the obligation of the witness to be truthful under s 9(1):
          (a) merely a moral obligation?
          (b) in the nature of a promise?
          (c) greater than the obligation imposed by s 9(2) for unsworn evidence?
     (2) does the Court have to be satisfied that the witness understands the words of the affirmation "do solemnly and truly declare and affirm"?
     (3) should some special form of wording be used for the non statutory parts of the affirmation which are tailored to the vocabulary and understanding of the witness?
If a witness elects to take an oath, or if capacity to take an oath is otherwise relevant, are the criteria laid down in R v Schlaefer (1992) 57 SASR 423 to be used in determining whether the witness does not have sufficient understanding of the obligation to be truthful in giving evidence on oath.
If it is determined that the witness does not have the capacity to take the oath, is the witness then to be allowed to choose to make an affirmation, and to affirm if it is determined that the witness has the capacity to affirm?"
History

62 At common law no person could give evidence unless that person took an oath. Anyone, who was otherwise competent to give evidence, and was prepared to take an oath could give evidence: Attorney-General's Reference No 2 of 1987 (1987) 46 SASR 275. Thus it followed that an infant even though under the age of seven years could be sworn to give evidence in a criminal prosecution "provided that such infant appears, on strict examination by the Court to possess a sufficient knowledge of the nature and consequences of an oath"; The King v Brasier (1779) 1 Leach 199; 168 ER 202. Age was not a barrier to a child taking an oath and therefore a child being competent to give evidence.
63 At common law the Court was under a duty to inquire into the competence of an infant to take an oath and for that purpose to determine whether "upon the sense and reason they entertain of the danger and impiety of falsehood"; The King v Brasier (supra) at 201.
64 In Omichund v Barker (1744) 1 Atkyns 22; 125 ER 1310 at 1313 the Court held that before an oath could be administered the person to take the oath needed to believe in God and future rewards and punishments in another world. However it was not necessary that that person be a Christian: see also Attorney-General v Bradlaugh (1885) 14 QBD 667 per Brett MR at 697.
65 There is some doubt whether it remained a requirement of the common law that a person, who was to take an oath, believe that God would reward or punish that person in this world or the next: R v Hayes (1977) 2 All ER 288 at 291, R v Chapman (1980) Crim LR 42; R v Khan (1981) 73 Cr App R 190; R v Kemble (1990) 3 All ER 116 at 117.
66 In R v Hayes (supra) two young boys were sworn to give evidence in a criminal trial. It was argued on appeal that one of them should not have been sworn in view of answers he gave on the voir dire. On that voir dire examination he said that he had not heard of God but later said that he thought that there was a God and promised before God to tell the truth.
67 Bridge LJ said at 290:
     "If the series of questions and answers start off the question, 'Do you think there is a God?' and the answer, 'Yes', there would really be no substance in counsel's complaints, but the fact that the earlier questions and answers, on their face, reveal the boy declaring that he is wholly ignorant of the existence of God does lend some force to the submission that if the essence of the sanction of the oath is a divine sanction, and if it is an awareness of that divine sanction in which the court is looking for a in a child of tender years, then here was a case where, on the face of it, that awareness was absent."
68 He went on to say at 291:
     It is unrealistic not to recognise that, in the present state of society, amongst the adult population the divine sanction of an oath is probably not generally recognised. The important consideration, we think, when a judge has to decide whether a child should properly be sworn, is whether the child has a sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct."
69 In R v Kemble (supra) the main prosecution witness, who was a Muslim, took an oath using the New Testament. The relevant section of the English Oaths Act provided that an oath could be administered by a person taking an oath upon the New Testament or in the case of a Jew, the Old Testament. The Act further provided for the taking of an oath, in those circumstances, without questioning the proposed deponent. The Act further provided that in the case of a person, who was neither a Christian nor a Jew, the oath should be administered in any lawful manner.
70 Lord Lane CJ said at 117:
"We had our attention drawn by counsel for the applicant, helpfully if we may say so, to the decision in R v Chapman [1980] Crim LR 42. The only passage I need read is a short passage in the part of the report which deals with the decision of the court. The court consisted of Roskill, Ormrod LJJ and Bristow J. The passage runs as follows:
          "The efficacy of an oath must depend on it being taken in a way binding, and intended to be binding, upon the conscience of the intended witness.
     The case was on cognate facts although the facts were not by any means precisely the same.
     We take the view that the question of whether the administration of an oath is lawful does not depend on what may be the considerable intricacies of the particular religion which is adhered to by the witness. It concerns two matters and two matters only in our judgment. First of all, is the oath an oath which appears to the court to be binding on the conscience of the witness? And if so, secondly, and most importantly, is it an oath which the witness himself considers to be binding on his conscience."
71 A similar result was arrived at in Spooner v Taylor [1926] SASR 396, a matter under appeal from a decision of a magistrate. It was argued on appeal that evidence of the principal witness for the prosecution, a young girl of ten, should not have been admitted because she said in cross examination that she knew that she had to tell the truth and that if she did not tell the truth she went to gaol. It was put on appeal that her answers in cross examination indicated her inability to comprehend the nature and quality of an oath.
72 Napier J said at 398:
     "I think that in these days it may be questioned whether we are bound to follow the cases to which I was referred in argument, e.g. R v White, (1786) 1 Leach 430, in so far as they lay down that a definite belief in a future state of rewards and punishments is essential to a proper appreciation of the nature and quality of the oath taken in a Court of Justice, but, however that may be, I think that the answer to which I have referred is in no way inconsistent with the proper appreciation of the nature and quality of the oath, even if that does not imply such a belief."
73 However in R v Schlaefer (1992) 57 SASR 423, this Court following R v Brown [1977] Qd R 220 decided that the common law was as stated in Omichund v Barker (supra) and "The test is belief in God and expectation that he will reward or punish in this world or the next" per Wanstall ACJ at 221/222; R v Schlaefer at 43. The decision of the Full Court of Queensland concerned the evidence of a complainant aged 12 and another witness three months younger. The statutory provision considered by the Queensland Full Court was in very different terms to the South Australian legislation. The statutory provision was in the following terms:
'"If any person tendered for the purpose of giving evidence in respect of any Civil or Criminal proceeding before a Court of Justice...objects to take an oath, or by reason of any defect of religious knowledge or belief, or other cause, appears incapable of comprehending the nature of an oath, it shall be the duty of the Judge or person authorised to administer the oath, if satisfied that the taking of an oath would have no binding effect on the conscience of such person and that he understands that he will be liable to punishment if his evidence is untruthful, to declare in what manner the evidence of such person shall be taken, and such evidence so taken in such manner as aforesaid shall be valid as if an oath had been administered in the ordinary manner.'"

74 It is not hard to understand how the Queensland Full Court concluded that the witness needed to have a religious belief of the kind in Omichund v Barker and that the Court might need to inquire into a proposed witnesses religious belief.
75 The decision would not allow a non Christian who had a religious belief in a deity to be sworn. Whatever else that would be inconsistent with s6 of the Evidence Act.
76 The Full Court of South Australia also decided that the common law in this State entitles a court, on a voir dire hearing, to inquire into a person's belief in God and that person's belief in the significance of the taking of an oath to determine whether a person should be sworn: R v Schlaefer (supra) at 429. The extent of the inquiry is not entirely clear. It is not clear whether the Court needed to be both satisfied of the witness's belief in God and of a belief of rewards or punishment in this or the next world.
77 When R v Schlaefer was decided, s12 of the Act, which dealt with the evidence of young children, provided that a young child (a child under the age of 12 years) was not obliged to give evidence on oath unless the Judge was satisfied that the child understood the obligation of an oath [s12(1)(b)]. Whilst recognising the relevance of this section the majority do not seem to have had regard to the nature of the statutory inquiry involved. On similar but not identical Canadian legislation the Canadian Courts have determined that the inquiry need only determine whether the child understands the moral obligation involved: R v Taylor (1970) 1 CCC (2d) 321; R v Bannerman (1966) 57 WWR 736; R v Fletcher (1982) 1 CCC (3d) 370.
78 In R v Simmons (1997) 68 SASR 81 Perry J (with whom Nyland J agreed) doubted that a belief in God and an expectation of punishment in this or the next world was the test for whether an oath could be administered to a witness. His Honour seems to have preferred the English decisions of R v Hayes, R v Chapman and R v Kemble. R v Schlaefer was not followed in Attorney-General's Reference No. 2 of 1993 (1994) 4 Tas 26.
79 In R v T (1998) 71 SASR 265 Doyle CJ, after citing Omichund v Barker (supra) for the proposition that an oath need not be taken in a Christian form and any oath that bound a witness' conscience was sufficient, concluded that he did not need to decide whether a belief in God was any longer required.
80 As in R v T it is not necessary to decide in this case whether the common law developed to a point whether a belief in God and an expectation of reward and punishment in this and the next world was required for a witness to take an oath or whether it was sufficient for the witness to accept that the oath was binding on that person's conscience. In R v Simmons (supra) Perry J doubted the correctness of R v Schlaefer. In R v T Doyle CJ left the matter open. Whilst I doubt whether R v Schlaefer is correct for all the reasons given by Perry J and for a further reason, which I shall mention, the parties have not asked this Court, on this occasion, to overrule R v Schlaefer and I should not be seen to be going any further than Perry J in R v Simmons. In view of the current legislation the correctness of R v Schlaefer may not need to be considered.

81 The Evidence Act 1929 (the Act) now governs the taking of an oath.
82 Subsections 6(1) and (2) of the Evidence Act 1929 provide:
"(1) An oath shall be administered and taken as follows -
(a) the person taking the oath shall hold a copy of the Bible (being a book that contains the New Testament, the Old Testament or both) in his hand and, after the oath has been tendered to him, shall say 'I swear'; or
(b) in any other manner and form which the person taking the oath declares to be binding on his conscience; or
(c) in any other manner or form authorised or permitted by law.
(2) Where an oath has been lawfully administered and taken, the fact that the person taking the oath had no religious belief, or that the oath was not taken so as to be binding on his conscience, shall not affect, at law, the validity or effect of the oath."
83 Section 6(1) allows for a Christian and probably a Jewish oath because it would appear that an oath under that subsection may be taken on the Old Testament alone. The Old Testament, without the New Testament, may be described as a Bible.
84 Paragraph 6(1)(b) allows a person to take an oath in any other manner and form which the person taking the oath declares to be binding on his or her conscience.
85 Section 6 of the Evidence Act was not discussed in detail in R v Schlaefer (supra). If s6(1)(b) allowed the taking of an oath without a belief in God then R v Schlaefer would have been decided differently.
86 Subsection 6(2) rather suggests that the qualification for taking an oath is a religious belief or a recognition that the oath is binding on the party's conscience. The subsection might suggest that an oath can be administered to a person who has no religious belief but who recognises that the oath will be binding on his or her conscience. The words "or that the oath was not taken so as to be binding on his conscience" following reference "to a religious belief" might mean that an oath which is taken as binding on the person's conscience does not require the person to have a religious belief and therefore a belief in God. In other words one or other will suffice.
87 Such an interpretation would be consistent with the decision in R v Hayes and R v Kemble.
88 Section 6(1)(b) was first introduced into the Evidence Act in 1984 by the Statutes Amendment (Oaths and Affirmations) Act 1984.
89 In his second reading speech the then Attorney-General, Mr Crafter, ascribed the initiative for this reform to suggestions in the 46th Report of the Law Reform Commission. That Report dealt with the form of Oaths. As an aside it was suggested that there should be a form of oath where the witness has a belief in a Supreme Being but no holy book or sacred book like the Bible or the Koran. There is no direct reference in the Report to providing for an oath without a belief in God.
90 It can be seen from that short history that originally an oath required a belief in a Christian God and a belief in rewards and punishment in this and the next world. There is no longer a requirement that a party have a belief in the Christian God or a belief in rewards and punishment in this and the next world. R v Schlaefer would suggest that there is still a requirement for a belief in God before an oath can be administered. There is authority to the contrary as was recognised in R v Schlaefer.
91 In England affirmations were offered as an alternative to an oath but originally affirmations were only available to Quakers and Moravians: Civil Rights Of Quakers and Moravians Act 1833. That Act permitted "People called Quakers, and every Moravian" to make a "solemn Affirmation or Declaration" instead of taking an oath where an oath was required by the common law or by any Act of Parliament.
92 The Affirmation or Declaration required the person to acknowledge that he or she was a Quaker or a Moravian and then to "solemnly, sincerely, truly declare and affirm" that which was required. That Act also provided a new form of Affirmation to be taken in lieu of the Oath of Abjuration to replace an earlier form of affirmation applying to Quakers and Moravians.
93 Later that same year members of a dissenting religious body known as Separatists were also permitted to take an affirmation: An Act to allow the People called Separatists to make a solemn Affirmation and Declaration instead of an Oath. (3 and 4 William iv C 82) If any person who was not a Separatist made an affirmation that person committed an offence.
94 In England the Common Law Procedure Act was enacted in 1854: 17 and 18 Vict C 125.
95 Section 20 of the Act provided:
"If any Person called as a Witness, or required or desiring to make an Affidavit or Deposition, shall refuse or be unwilling from alleged conscientious Motives to be sworn, it shall be lawful for the Court or Judge or other presiding Officer, or Person qualified to take Affidavits or Depositions, upon being satisfied of the Sincerity of such Objection, to permit such Person, instead of being sworn, to make his or her solemn Affirmation or Declaration in the Words following; videlicet,
'I A B do solemnly, sincerely, and truly affirm and declare, That the taking of any Oath is according to my religious Belief, unlawful; and I do also solemnly, sincerely and truly affirm and declare, .......'
Which solemn Affirmation and Declaration shall be of the same Force and Effect as if such Person had taken an Oath in the usual Form."
96 In 1861 the right to make an Affirmation or Declaration was extended to any Court exercising Criminal Jurisdiction in England and Ireland: 24 and 25 Vict C 66. But still the right to make an affirmation depended upon an unwillingness to take an oath for "conscientious Motives".
97 The Evidence Act was amended by the Evidence Act Further Amendment Act 1869 (32 and 33 Vict C 68) and s 4 of that amending Act provided:
"If any person called to give evidence in any court of justice, whether in a civil or criminal proceeding, shall object to take an oath, or shall be objected to as incompetent to take an oath, such person shall, if the presiding judge is satisfied that the taking of an oath would have no binding effect on his conscience, make the following promise and declaration:
'I solemnly promise and declare, that the evidence given by me to the court shall be the truth, the whole truth, and nothing but the truth.'
And any person who, having made such promise and declaration, shall wilfully and corruptly give false evidence, shall be liable to be indicted, tried, and convicted for perjury as if he had taken an oath."
98 This allowed a witness, who objected to taking an oath or who was objected to as incompetent, to solemnly "promise and declare" that person's evidence. The section allowed a person, who had no belief in God, to give evidence in a court of law.
99 The 1869 Act was further extended in its operation to allow such a promise and declaration to include any person who was by law authorised to administer an oath for the taking of evidence: Evidence Act Amendment Act 1870 (33 and 34 Vict C 49).
100 Similar legislation was passed in the Colony of South Australia in response to the legislation passed by the Imperial Parliament. The Supreme Court Procedure Act 1855 contained a provision (s14) in the same terms as s 20 of the Common Law Procedure Act 1854.
101 An Act for amending the Law of Evidence and Practice on Criminal Trials 1867 provided that an affirmation or declaration could be made in any Court in the Colony.
102 Section 9 of the Act was in the following terms:
"If any person called as a witness in any Court in the said Province, or required or desiring to make an affidavit or deposition in the course of any proceeding in any such Court, shall refuse or be unwilling, from alleged conscientious motives, to be sworn, it shall be lawful for the Court, or Judge, or other presiding officer or person qualified to take affidavits or depositions, upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following, that is to say-
'I, A B, do solemnly, sincerely, and truly affirm and declare that the taking of any oath is according to my religious belief unlawful, and I do also solemnly, sincerely, and truly affirm and declare,' &c.
Which solemn affirmation and declaration shall be of the same force and affect as if such person had taken an oath in the usual form."
103 The Evidence Further Amendment Act 1869 contained a provision (s 4) in similar terms to that passed in England in 1869.
104 The Affirmations Act 1896 dispensed with the requirement that the person making an affirmation or declaration have a conscientious motive. Section 3 of that Act provided:
"Every affirmation may commence 'I do truly and solemnly affirm,' and may proceed in the same words as the oath required or permitted by law under the same circumstances, omitting all words of imprecation or calling to witness, and the attestation of any affirmation in writing may be in the same words as the jurat of an affidavit, substituting the word 'affirmed' for 'sworn'."

In due course the Oaths and Affirmations Act 1911 repealed the form of affirmation and declaration in the Criminal Procedure Amendment Act 1867 and substituted the following:
" 'I, A.B., do solemnly, sincerely, and truly affirm and declare'; and then shall follow the words of the oath prescribed by law, but omitting any words of imprecation or calling to witness."
106 When the present Evidence Act was introduced in 1929 it provided (as had a 1925 enactment) that any person, who objected to being sworn and who stated as the ground of such objection that he or she had no religious belief, or that the taking of an oath was contrary to his or her religious belief or to his or her conscience, was permitted to make a solemn affirmation instead of taking an oath. Section 8 of that Act provided that such affirmation should be of the same force and effect as if the oath had been taken.
107 In 1972 s8(1) of the Evidence Act was repealed and re-enacted to provide for affirmations in the two circumstances to which I have already referred and in circumstances where a person gives, as the ground of his or her objection, "any other ground that the court thinks sufficient".
108 The 1972 amendment also introduced a provision that if a person requested that an oath be administered to that person otherwise than upon a Christian Bible and the holy book or sacred book he or she requested to be sworn upon was not available then that person could also make an affirmation.
109 Section 8 was repealed by the Statutes Amendment (Oaths and Affirmations) Act 1984 and thereafter the provisions relating to affirmations were included within s6. Subsection 6(3) was amended in 1999 to include the words italicised below:
110 Subsections 6(3), (4), (5) and (6) of the Act read:
"(3) A person is permitted, and should be offered the choice, to make an affirmation instead of an oath in all circumstances in which, and for all purposes for which, an oath is required or permitted by law.
(4) A person taking an affirmation shall say: "I, A.B., do solemnly and truly declare and affirm" and then shall proceed with the words of the appropriate oath, omitting any words of imprecation or calling to witness.
(5) Every affirmation has, at law, the same force and effect as an oath.
(6) No oath or affirmation is invalid by reason of a procedural or formal error or deficiency."
111 An affirmation now must be in the form prescribed in the Evidence Act. An affirmation recognises the gravity and solemnity of the occasion on which the statement is made and the importance that the person must attach to truthful evidence: R v Governor of Pentonville Prison ex parte Singh [1981] 3 All ER 23.
112 At 27 Ackner LJ said:
"The right to affirm was introduced in 1838 for the benefit of Quakers and Moravians and the essential part of the declaration is still retained today, namely 'I ... do solemnly, sincerely and truly declare and affirm'. Although neither parties suggest that this or any closely comparable formula has to be used, it is agreed that the mere signature to a document or the verbal acknowledgment that its contents are correct cannot amount to an affirmation. Where then is the line to be drawn?
The answer cannot be precise: it must be a matter of fact and degree dependent upon the particular circumstances of the case. I do not consider that the affirmation need take place prior to the making of the statement. What is required, where the statement has been made, is its adoption in circumstances which recognise the gravity and importance of the truth being told on the particular occasion."
113 See also R v Governor Of Pentonville Prison [1982] 3 All ER 1012.
114 If a party elects to affirm the Court does not carry out an inquiry. It does not inquire into any belief that the witness may hold because there are no relevant beliefs which impact upon whether a witness may affirm; R v T (supra) 272.
115 I think the position can be summarised thus. At common law a person was not competent to give evidence unless that person did so on oath. By 1744 the person did not have to be a Christian. Any oath which recognised a God and reward and punishment in this world and the next was sufficient.
116 Affirmations were introduced originally to allow persons to give evidence who did believe in God and reward and punishment in this world and the next, but who were precluded by reason of the tenets of their religion from taking an oath. Eventually affirmations were extended to include those people who had no religious belief and were thus not entitled to take an oath.
117 The position is now that a person who is called to give evidence and who is otherwise competent may elect to give evidence upon oath or affirmation (s6(3)). The affirmation has the same force and effect as an oath (s6(5)). If a person chooses to be sworn then that person can be sworn by taking an oath on the Bible consisting of either the New Testament or the Old Testament or both (s6(1)). A person who wishes to be sworn, but who does not wish to be sworn upon a Bible, may swear upon some other holy or sacred book (s6(1)). It may be the case that a person can taken an oath without having a belief in any deity.
118 A person who makes an affirmation does not have to establish that he or she has any religious belief.
119 A person who believes in a deity of any form may elect to be sworn or take an affirmation. A person who does not believe in a deity of any form can take an affirmation and may be allowed, depending upon the true construction of s6 of the Evidence Act, to take an oath.
120 If the true construction is that a person may take an oath without having a belief in a deity there seems to be no reason to have both oaths and affirmations.
121 That may be a reason, of course, for suggesting that the construction of s6 is otherwise than I have suggested it might be. On the other hand it might be, if the construction is as I have suggested, that is that the end result and there is no point in maintaining both oaths and affirmations.
122 In any event that is a decision for another day.
The Repealed Provisions

123 Prior to the passing of the Evidence (Miscellaneous) Amendment Act 1999 (the 1999 Act), s9 of the Act provided for the giving of evidence without formality. Section 12 dealt with the evidence of a young child. It is not necessary to repeat those repealed sections which are incorporated in the reasons of Duggan J.
124 The provisions of the Evidence Act immediately before the 1999 amendments have been referred to by Duggan J in his reasons. Before the 1999 amendments the Act contemplated that some persons would give evidence on oath and some would make an affirmation. A person was entitled to make an affirmation whether that person had a religious belief or not.
125 The Act contemplated that some persons might not understand the obligation of the oath. In that case the Judge could, after he or she had explained that that person was required to be truthful about anything the person said in Court, permit that person to give evidence without an oath and without formality. Although the section did not say so in its terms the section contemplated, by its silence, that the person could also not understand the obligations attaching to an affirmation.
126 The section assumed that the evidence might have lesser weight and credibility because of the absence of the sanction of an oath.
127 Section 12(1) dealt with a young child's obligation to take an oath, s12(2) with assimilating the evidence of a child who had not taken an oath and s12(3) with a child's unsworn evidence which was not assimilated under s12(2).
128 The 1999 Act repealed and re-enacted a new s9 and repealed ss12(1), 12(2) and 12(3).
The Current Provisions

129 Section 9 now provides:
"(1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2) If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that -
     (a) the judge -
          (i) is satisfied that the person understands the difference between the truth and a lie; and
          (ii) tells the person that it is important to tell the truth; and
     (b) the person indicates that he or she will tell the truth.
(3) In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
(4) If unsworn evidence is given under this section in a trial by jury, the judge -
     (a) must explain to the jury the reason the evidence is unsworn; and
     (b) may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(5) A justice to whom it appears that a person who desires to lay a complaint or information does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence may ascertain by inquiry the subject matter of the complaint or information and reduce it into the appropriate form, and any action or proceedings may be taken upon the complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents on oath or affirmation."
130 It can be seen that s9(1) provides a statutory presumption that a person is capable of giving sworn evidence in any proceedings unless the judge otherwise determines for the reason mentioned in the subsection itself. Person in s9(1), in the absence of any definition to the contrary, must mean a person of any age. Therefore the presumption is that anyone of any age is capable of giving sworn evidence in any proceedings.
131 Sworn evidence is now defined in s 4 of the Evidence Act:
'"Sworn evidence' means evidence given under the obligation of an oath or an affirmation, and 'unsworn' evidence has a corresponding meaning."
132 The presumption in s9(1) is that a person of any age is capable of giving evidence under the obligation of an oath or an affirmation in any proceedings unless the Judge otherwise determines for the reason given in the subsection.
133 The statutory presumption can be displaced, as s9(1) provides, if the Judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
134 Any inquiry therefore under s 9(1), if it arises, is as to whether the witness simply has sufficient understanding of the obligation to be truthful in giving evidence by taking an oath or making an affirmation. It is not an inquiry into the witness's understanding of an oath or affirmation. Nor is it an inquiry into the witness's religious beliefs or whether the witness has a belief in God. It is merely an inquiry into whether the witness has sufficient understanding of the obligation to be truthful under an oath or an affirmation. In that respect the Court will simply inquire as to whether the witness understands the meaning of truth and whether the witness understands that in giving sworn evidence there is an obligation to be truthful.

135 The Act does not indicate what the understanding of the obligation to be truthful entailed in giving sworn evidence is. It must be more than simply an understanding of an obligation to be truthful otherwise the Act would only have required an understanding to be truthful in giving evidence and not included specifically 'sworn evidence'.
136 Because of the provision of s9(2) it must be more than simply an understanding of the obligation to be truthful. That subsection allows for a person who understands the difference between a truth and a lie and also indicates that he or she will tell the truth to give unsworn evidence.
137 Section 9(1) contemplates an obligation more than simply an obligation to be truthful. In my opinion, what is contemplated in s9(1) is an understanding that, in giving sworn evidence, the person is thereby accepting the solemnity of the taking of an oath or the making of an affirmation and the sanctions which would follow, both morally and legally, if that person failed to comply with the obligation to tell the truth. It is not simply the legal obligation which attaches to sworn evidence which is important. Section 242 of the Criminal Law Consolidation Act 1935 provides for the offence of perjury for a false statement made under oath. Oath includes an affirmation (s242(5)(a)). Because of s5 of the Young Offenders Act no child under the age of 10 years can commit an offence. Although a child under the age of 10 years cannot be guilty of the offence of perjury a child under that age can give sworn evidence. That supports the proposition that the obligation to be truthful entailed in giving sworn evidence does not emanate solely from the legal sanction for failing to do so. The obligation arises from the public declaration in taking an oath or making a declaration, the accompanying recognition of the solemnity of that declaration, the recognition of the importance of truthfulness in the proceedings and the acceptance of the moral, and in the case of a person over the age of 10 years, the legal sanctions in failing to comply with that public declaration.
138 Section 9(1) therefore, in my opinion, contemplates obligations attaching to sworn evidence which would not attach to similar statements made outside the court even though social obligations would suggest that those extra curial statements should also be truthful.
139 In my opinion, such a construction is consistent with the scheme of s9(2) which provides for the taking of unsworn evidence. Unsworn evidence cannot be taken unless the Judge is satisfied that the person understands the difference between the truth and a lie and that the person indicates that he or she will tell the truth. Both of those criteria must be pre-requisites to giving sworn evidence as well as unsworn evidence. There must, therefore, be something more in sworn evidence apart from a recognition of the difference between truth and a lie and an undertaking to tell the truth. That recognition, in my opinion, embraces all the matters to which I have referred.
140 Ordinarily it will be presumed that every witness can give sworn evidence because that is the statutory presumption given in s9(1). If the witness indicates that he or she wishes to give sworn evidence it will be for the witness to decide whether he or she will take an oath or make a declaration. It does not matter whether the witness chooses an oath or affirmation because both have, at law, the same force and effect.
141 However, if the Judge determines that a witness does not understand the obligation to be truthful entailed in giving sworn evidence then that witness is not thereafter entitled to make any choice between oath or affirmation. The situation simply will not arise because that witness is not a person who will be permitted to give sworn evidence.
142 It follows that it is not necessary, before inquiring into the witnesses understanding of the obligation to be truthful entailed in giving sworn evidence, to ascertain whether the witness is intending to give evidence under oath or affirmation. Both have the same force and effect so that the question is irrelevant in the determination of whether or not the person has sufficient understanding of the obligation to be truthful.
143 To hold otherwise would be to suggest, contrary to the statutory provisions, that there is some higher obligation upon a witness who has taken an oath rather than made an affirmation, or that there is some greater weight attaching to the evidence of a person who has taken an oath rather than the evidence of a person who has made an affirmation.
144 If the statutory presumption raised in s 9(1) is not displaced then the Court makes no inquiry into whether the witness understands the distinction between an oath or an affirmation or indeed whether the witness should take an oath or make an affirmation. It is not for the Court to know whether a witness who takes an oath has a genuine belief in the deity to whom the oath is offered. That is a matter for the witness.
145 The case stated has directed this Court's attention to witnesses under the age of ten years. They are no longer under the provisions of the Evidence Act a special class of witnesses.
146 Section 12 continues to refer to young children and a young child is defined in s4 as being a child under the age of twelve. However a young child is no longer subject to any special inquiry in relation to the young child's evidence. The young child is subject to the same inquiry under s9(1) as any other person. There is a statutory presumption that anyone of whatever age is presumed to be capable of giving sworn evidence by oath or affirmation in any proceedings. A Judge, however, may determine that the person, including a child, does not have sufficient understanding of the obligation to be truthful. There is not, however, any special inquiry relating to a witness aged under ten years.
147 With all of those matters in mind, I turn now to the questions which have been posed.

Do the amendments affected by subsections 3-7 of the Evidence (Miscellaneous) Amendment Act 1999 number 18 apply where the offence was allegedly committed before 27 June 1999?

Prior to the enactment of s9 in the 1999 Act, the repealed s9 dealt with giving of evidence, without formality, for all persons, and s12 dealt with a young child giving evidence before a court.

The 1999 Act does not disentitle anyone from giving evidence or, indeed, from giving sworn evidence. It merely provides for a procedure whereby the court may receive the evidence of any person in either a sworn or unsworn form.

Any person who, prior to the 1999 Act, did not understand the obligation of an oath, was entitled to give evidence without an oath and without formality. That person is still entitled to give evidence without an oath and now expressly without making an affirmation.

A young child, prior to the 1999 Act, could only be sworn if that child was over the age of seven years and the judge was satisfied that the child understood the obligation of an oath. The 1999 Act has not affected a child's rights to give evidence by taking an oath provided the child understands the obligation in giving sworn evidence. It does not seem to me that any children have become disentitled from giving sworn evidence. Indeed, children now under the age of seven theoretically could give sworn evidence whereas under the repealed ss12 they were disqualified. Section 12 did not apparently extend to children the right to make an affirmation. That right is now available to them.

In those circumstances it is not easy to suggest that the amending legislation affects any existing rights or obligations.

If it does, in my opinion, the subject matter of the legislation deals with matters of procedure only; Maxwell v Murphy (1957) 96 CLR 261.

The 1999 Act only deals with the manner in which evidence might be received.

In Rodway v The Queen (1990) 169 CLR 515 at 518 the Court said:

"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance."
In my view, the 1999 Act will operate prospectively in that it will prescribe the manner in which evidence is to be received in the trial of these proceedings. In those circumstances it will apply where the offence was allegedly committed before 27 June 1999 and in any proceedings where it is relevant for the Act to apply after that date.

Is the determination under s9(1) merely one where the witness "does not have sufficient understanding of the obligation to be truthful" irrespective of whether the witness is to take an oath or make an affirmation, and so, if capacity is upheld, can witnesses either take an oath or make an affirmation as they then choose?

There is a presumption that all witnesses are capable of giving sworn evidence. If there is a challenge to that presumption then the Court must determine whether the witness has a sufficient understanding of the obligation to be truthful in giving sworn evidence.

The question rather supposes that in all cases a party will first be examined under s9 s(1) to determine whether that party does have a sufficient understanding of an obligation to be truthful entailed in giving sworn evidence before that party has indicated whether the party will take an oath or an affirmation.

I would have thought it is more likely that the matter will proceed otherwise. I would have thought a witness would indicate that the witness wishes to take either an oath or an affirmation. It would then be an inquiry into the competence of that witness to take either an oath or an affirmation. The inquiry would then be whether the person has sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. The obligation to be truthful must be the same whether the person wishes to take an oath or make an affirmation. There can be no higher obligation, in my view, in relation to one rather than the other.

The inquiry will not discriminate between an oath and an affirmation because there is no need to do so.

It is not material then whether a witness elects between an oath or affirmation before or after the Court determines that the witness is capable of giving sworn evidence.

Whether a witness wishes to take an oath or make an affirmation, the inquiry under s9(1) is whether the witness has sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. It is for the witness to choose whether the witness wishes to take an oath or make an affirmation.

The direct answers to the two questions raised are Yes and Yes.

Is the determination under s9(1) one where the witness "does not have sufficient understanding of the obligation to be truthful" in relation to either an oath or affirmation depending which of them the witness has chosen or is to choose?

The Evidence Act does not distinguish in any sense now, except as to form, between an oath and an affirmation. In those circumstances the inquiry in s9(1) is whether the witness has a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence without regard to whether the witness proposes to give evidence by taking an oath or making an affirmation.

Is the witness to be required to make the choice under s6(3) of an oath or an affirmation before any determination is made under s9(1)?

In my opinion it does not matter when the witness makes an election under s6(3) of the Act. Whether the witness wishes to take an oath or make an affirmation will not effect any inquiry which is carried out under s9(1). That inquiry is simply limited to that witness's understanding of an obligation to be truthful entailed in giving sworn evidence; it does not matter whether the witness has elected to take an oath or make an affirmation.

If the accused so requests, is the Court to inquire as to whether the witness has a sufficient understanding of an oath or an affirmation so as to be able to make a proper choice between them, and what is the effect if the witness cannot make a proper choice?

It is for a witness to choose whether to take an oath or to make an affirmation. If a witness seeks assistance from the court then, of course, the court will assist the witness by explaining to the witness the differences between an oath and an affirmation. That explanation, in my opinion, would proceed upon the provisions of s6 of the Act and any differences there inherent between an oath and an affirmation.

It will then be for the witness to choose whether to take an oath or make an affirmation.

The accused is only entitled to call for an inquiry under s9(1) and that is for the purpose of determining whether the witness has a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. An accused is not entitled to request the Court to determine whether the witness has a sufficient understanding of an oath or an affirmation.

It would be difficult to envisage a case where the Court believed that a person who, after explanation did not have a sufficient understanding of an oath or affirmation, but did have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. If it did occur it would still be a choice for the witness whether the witness took an oath or made an affirmation.

Where a witness aged under ten years chooses to make an affirmation:

(1) is the obligation to be truthful under s9(1):

(a) merely a moral obligation?

(b) in the nature of promise?

(c) greater than the obligation imposed by s9(2) for unsworn evidence?

(2) does the Court have to be satisfied that the witness understands the words of the affirmation "do solemnly declare and affirm"?

(3) should some special form of wording be used for the non statutory parts of the affirmation which are tailored to the vocabulary and understanding of the witness?

Section 9 assumes that a person under the age of ten can give sworn evidence. As I have said s9 applies to all persons of any age. It follows, in my opinion, that a child under the age of ten can choose to give sworn evidence either by taking an oath or making an affirmation.

A child under the age of ten, of course, is not subject to any criminal sanction if the child fails to answer a question truthfully and in that respect is not subject to the same criminal sanction as an adult.

However, because sworn evidence is different to unsworn evidence, and because unsworn evidence only requires the witness to have an understanding between the truth and a lie and for the witness to indicate that he or she will tell the truth, a child giving sworn evidence must be undertaking an obligation higher than that required by s9(2). Therefore the child must be assuming a moral obligation not assumed by a person who gives unsworn evidence under s9(2). The absence of any legal obligation, however, does not mean that a child cannot give sworn evidence.

The child assumes that moral obligation in the circumstance to which I previously referred by a public declaration which recognises the solemnity of the oath or affirmation: R v Whittingham (1998) 49 SASR 67 per King CJ at 69.

In respect of par(2) of the question the Court only needs to be satisfied of the matters in s9(1). The Court does not need to be satisfied of the words mentioned in the question. However if the child did not have a broad appreciation of those words the Court might be less easily satisfied that the statutory presumption in s9(1) should prevail.

Subsection 6(5) provides for a mandatory form of the affirmation. Whatever words are used after the mandatory form should be relevant and sufficient to indicate to what it is that the witness is affirming.

If a witness elects to take an oath or if capacity to take an oath is otherwise relevant, are the criteria laid down in R v Schlaefer (1992) 57 SASR 423 to be used in determining whether the witness does not have sufficient understanding of the obligation to be truthful in giving evidence on oath?

For the reasons I have given the answer to this question must be no.

The inquiry is into the witnesses understanding of the obligation to be truthful not into the witnesses' religious beliefs.

If it is determined that the witness does not have the capacity to take the oath, is the witness then to be allowed to make an affirmation, and to affirm if it is determined that the witness has the capacity to affirm?

Any witness who does not wish to take an oath can, if the witness has the appropriate understanding in s9(1) make an affirmation. Subject to having the appropriate understanding the choice is for the witness.

The question as posed will not arise because there need not be an inquiry into the witness's capacity to take an oath rather than the capacity to give sworn evidence.

148 I would answer the questions

Yes.

Yes and Yes

6(1) It is the same obligation as that for a witness over the age of ten years as described by King CJ in R v Whittingham (1988) 49 SASR 67 at 69 but without the legal sanction which would attach for a false statement.

(2) Not specifically.

(3) It is within the discretion of the Court to use a special form of wording for the non-statutory parts of the affirmation in appropriate cases.

Irrelevant.

[1999] SASC 457

28 October 1999