R v Climas No. DCCRM-99-416 Judgment No. D92

[1999] SADC 92

R v DESMOND GORDON CLIMAS
[1999] SADC 92

Judge Lunn
Criminal

REASONS FOR STATING A CASE

1. These reasons are intended to be read in conjunction with the Case Stated.

2. The Evidence (Miscellaneous) Amendment Act 1999 No 18, which was proclaimed to come into operation on 27 June 1999, introduced a new Section 9 into the Evidence Act 1929 in the following terms:

   “Unsworn evidence

   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 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.  ............”

The amending Act also introduced the following new definition of “sworn evidence”:

“’sworn evidence’ means evidence given under the obligation of an oath or an affirmation; and ‘unsworn evidence’ has a corresponding meaning;.”

The amending Act also introduced the following new s6(3) and s12A:

“6(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.”

“Warning relating to uncorroborated evidence

12A. There is no rule of law or practice obliging a judge in a criminal trial to warn the jury that it is unsafe to convict on the uncorroborated evidence of a child if the child gave sworn evidence.”

1. At the commencement of the trial before me on 19 July it was agreed that I should conduct a voir dire to rule in what manner the 7 year old alleged victim should be permitted to give evidence and whether she could take the oath, make an affirmation or give unsworn evidence under s9(2).  Although no formal objection was taken before me to the new s9 being the relevant law, counsel for the accused reserved his position to argue after he had researched the authorities whether the new s9, and the repeal of s12(1), (2) and (3), did affect the substantive rights of the accused and therefore that the amendment was not retrospective in its operation.  Question 1 was included in the Case to allow the accused to pursue that question if he wished.

2. Question 2 in the Case sets out the submission of the prosecutor about the proper interpretation of s9(1).  I have considerable reservations about it.  It does not allow for there being a difference in the obligation under s9(1) depending on whether the “sworn evidence” is on oath or by affirmation.  I doubt that the new definition of “sworn evidence” sets up a category of sworn evidence which creates a single obligation of truthfulness applying identically to where either an oath and an affirmation will be used.  The prosecutor conceded that the effect of her submission was that there would be no practical difference between allowing evidence to be given on oath or on affirmation.  If that was the intention of Parliament, it could have said so in a far more direct manner.  The subject of the determination under s9(1) is the understanding of the witness of the obligation to be truthful, and not of the understanding of truthfulness.  The nature of such obligation is related at least in part to the particular features of an oath and an affirmation and would not be identical for each.

3. Question 3 is predicated on the nature of the obligation to be truthful in s9(1) being either wholly or partly dependent upon whether the witness is to take an oath or make an affirmation.  It is the view of s9(1) which I favour, but I am not confident about it.  It seems to be dependent upon the answer to Question 4 being that the choice is to be made before the determination under s9(1).

4. Question 5 arises because counsel for the accused indicated that if the prosecution was wrong in its view which is encompassed in Question 2, and it was necessary for a choice to be made before a determination under s9(1) was embarked upon, an application was likely to be made in those terms.

5. Question 6 deals with the issues which would arise if the witness made a valid election to make an affirmation before a determination was made under s9(1) of her capacity to do so. An argument was raised whether s9(1) could be interpreted as allowing the witness to choose an affirmation if the understanding of the obligation to be truthful entailed in making an affirmation involved no more than what was required under s9(2) for the judge to permit the witness to give unsworn evidence. As s5 of the Young Offenders Act 1993 provides that a person under the age of 10 years cannot commit an offence it would appear that the child witness here could not be guilty of perjury, or any other offence, if she gave false evidence, and there is thus no obligation on her to be truthful arising from any criminal sanction for breach of that obligation. It seems anomalous that there should be a lesser obligation on a child under 10 years to satisfy the criteria for giving sworn evidence than a child over 10 years when the natural expectation would be the reverse.

6. It is difficult to formulate an obligation in purely moral terms for a child under 10 years to tell the whole truth on an affirmation.  There is considerable philosophical debate about whether ethically a person should always tell the truth and about whether in some circumstances a lie might be justified to achieve a greater good.  The force of a moral obligation would be enhanced if the affirmation could be put to the witness as containing an implied promise to tell the whole truth.  I am not sure whether the statutory words of the affirmation “do solemnly and truly declare and affirm” do amount to a promise to tell the truth.

7. There is certainly a possibility that a 7 year old will not understand the words “do solemnly and truly declare and affirm”. Even if the presumption in s9(1) is not displaced, should a young child be permitted to take an affirmation if despite the best efforts of the judge to paraphrase and simplify the concept of the affirmation in explaining it to the child he is not satisfied that the child does understand the words which she is required to say in making an affirmation? Insofar as the wording of the affirmation is not laid down by s6(4) of the Evidence Act should a simplified variant be used which is tailored to the vocabulary and understanding of the particular child witness?

8. Question 7 raises the issues which were canvassed in R v Simmons (1997) 68 SASR 81 as to the correctness of R v Schlaefer (1992) 57 SASR 423.

9. Counsel for the accused submitted that in law the course postulated in Question 8 could not be pursued.

10. In her submissions to me the prosecutor sought to refer to relevant material in Hansard. I had some reservations about whether this should be permitted by virtue of s22(2) of the Acts Interpretation Act where it was in furtherance of a purposive interpretation of the legislation rather than the old mischief rule as it might have the effect of extending criminal liability.

11. I decided upon stating the Case because I had no clear understanding of the applicable law under the new legislation which governs the procedure to be followed in deciding how evidence is to be taken from a young child.  Rather than risk the child having to go through a second trial if it was held on appeal that I had not correctly determined the mode by which the child was to give evidence, I considered it was better to seek to have the law clarified before any trial was conducted.  The point is of general importance and will apply to a number of trials.