Evidence 2 PDF

Preview

Summary

Whether the unsworn evidence of the child is admissible?The first issue here is whether the unsworn evidence of the child is admissible under evidence act or not. A witness is a person who gives testimony or oral evidence in judicial proceedings. The general rule is that every witness is deemed comp...

Description

Whether the unsworn evidence of the child is admissible? The first issue here is whether the unsworn evidence of the child is admissible under evidence act or not. A witness is a person who gives testimony or oral evidence in judicial proceedings. The general rule is that every witness is deemed competent, unless the court consider that they might having difficulty in understanding the question given. Competent witness may be compelled to give evidence unless they raise a privilege against testifying in court. Section 118 of the Malaysian Evidence Act 19501 provides that all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions ask them or from giving rational answers to those questions by disease, extreme old age, tender years, whether of body or mind, or any other cause of the same kind. Under this section the main test in determining the competency of a witness is whether the witness has sufficient intellectual capacity to understand and give rational answers to the question. Therefore a child is competent to testify, if he or she can understand the question put to him, and give rational answers thereto. There is no precise age limit is given. In the case of Chao Chong V PP [1960] MLJ 2382 it was held that evidence of child witness must be treated with caution. A child may find it difficult to distinguish between fantasy and reality. In the case of Sidek bin Ludan v PP [1995] 3 MLJ 1783 it was held that the competency of any witness (including child) is a condition precedent and the court must hold inquiry. Under S. 118, the court is entitled to test the capacity by putting proper question. The court has to ascertain if witness has the intellectual capacity to understand the question and give rational answer. Section 133A of the Evidence Act stated that if a child witness does not understand the nature of oath, he is allowed to give unsworn evidence provided that he has sufficient intelligence to justify its reception and also he understands the duty to tell the truth. Section 133A makes it obligatory for a trial court, by way of a preliminary inquiry to ascertain the capacity of the child to understand the questions and give rational answers. The aim is to check whether the child is in position to be sworn. In Yusaini Bin Mat Adam v PP [2000] 1 CLJ 2064, the SC convicted the appellant for the offence of rape committed on a girl aged 10 years 8 months and the victim was of the age of 1 Evidence Act 1950 2 [1960] MLJ 238 3 [1995] 3 MLJ 178 4 PP [2000] 1 CLJ 206

11 when she gave evidence in court during the trial. Although the fact the girl was a child of tender years, the court failed to hold an inquiry to form an opinion whether the child was in the position to be sworn in accordance with the requirements pursue to section 133A of the EA. The girl gave contradictory evidence and the inspection noted by the session’s judge showed that the she behaved strangely through the trial. The appellant appealed. The appeal was allowed and stated that the court when accepting the evidence of a child of tender years ought to have examined whether the child had sufficient appreciation of the responsibility of telling the truth over the ordinary duty to tell the truth upon pain of punishment for perjury. The failure of the session court judge to follow the procedure in s 133A of the Act, the conviction should be set aside. This can be further explained in common law case of R V Hayes [1997] 64 Cr App R 1945 where defendant was charged with inciting three boys to commit acts of sexual activity with him, and also with committing an act of gross indecency with one of them. The boys were called as witnesses and the two older boys, aged 11 and 12, were sworn after being examined by the judge. The court’s questions during examination were more focusing with the boys’ religious understanding, but it was clear that the oldest boy, in particular, had little religious belief. The accused argued that the boy should not have been sworn in those circumstances, but the Court of Appeal upheld the trial judge’s decision. We have to focussed on 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 The competence of a child could never be presumed. Even for the purpose of giving unsworn testimony, it was still necessary to establish that the child understood the ordinary duty of telling the truth. According to the case of R v Khan [1981] 73 Cr App R 1906 it was the duty of a court or judge to determine competence and the proper level of competence before going to admit evidence from a child. This could involve the child being asked questions by the trial judge, and it could also involve the calling of expert opinion evidence from child psychologists. If a child was allowed to testify without such prior examination, any conviction based on that child’s evidence should be set aside

5 [1997] 64 Cr App R 194 6 [1981] 73 Cr App R 190

Back to Malaysian case Tajudin bin Salleh v Public Prosecutor [2008] 1 MLJ 3977 where an old man was charged under s 354 of the Penal Code in the magistrates court with using criminal force with intent to outrage the modesty of a 10-year-old girl. He was convicted on the charge and sentenced to 20 months’ imprisonment and the accused appealed against conviction and sentence and the DPP cross-appealed against inadequacy of sentence. On appeal, counsel for the accused contended inter alia that the magistrate had failed to examine whether the child victim PW2 and a child witness PW3 had sufficient appreciation of the solemnity of the occasion as required by law and practice. The evidence of PW 2 was also not corroborated. There was no evidence to show that the magistrate had established the competency of the child witnesses to give evidence. The High Court held that court to determine whether such omission was fatal. Section 133A must be read together with s 118 which makes all witnesses competent witnesses and makes reference to a person of tender years. Under s 133A, when a child of tender years is called to give evidence, there is a duty upon the court to ensure that the child understands the nature of an oath. The evidence can be received without an oath if the court is of the opinion that the child possesses sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth In Public Prosecutor v Chan Wai Heng[2008] 5 MLJ 7988 the sessions court judge ask himself first whether the child witness understand the oath or not. Then he begin a process to understand the child's level of maturity whether he is possessed with sufficient intelligent to justify the consequences of the evidence and understand the duty of speaking the truth through some questions that were asked to him by the learned DPP. In our situation ZZ was called as a prosecution witness during trial and gave oral evidence taken through a screen to protect her identity. The trial court allowed ZZ’s unsworn testimony to be admitted without a preliminary inquiry to assess her competency. The court should have to conduct the preliminary inquiry to check her competency level. This is because the section 118 of evidence act should read together with section 113A which makes all witnesses competent witnesses and makes reference to a person of tender years. There is a duty upon the court to ensure that the child understands the nature of an oath. The court should examine first. If is proved that the child is sufficiently intelligent to understand the meaning of the oath and the consequences of the oath she can give sworn evidence. If the child does not 7 [2008] 1 MLJ 397 8 [2008] 5 MLJ 798

understand the meaning of the oath but understands the duty to speak the truth and possess sufficient intelligence to give evidence she can give unsworn evidence. In the case of Yusaini Mat Adam it was held that the court should held a preliminary inquiry to form an opinion whether the child in position to be sworn. This is because we cannot presume the competency of a child. So the unsworn evidence of the child is inadmissible and the court should hold an inquiry before taking the evidence.

Whether the video recording of ZZ about the incident by PW4 is admissible or not? The rule governing the principles of evidence is governed by Evidence Act, but the procedure of giving evidence by a child witness is governed by Evidence of Child Witness Act. The objectives of ECW is mainly to provide for special procedures of giving evidence in order to ensure the child witness is able to testify comfortably without being traumatized by the complex technicalities of settings in a normal court room. A simple and specially designed court room also facilitates child witness to gain their self-confidence and comfort, hence eventually contribute to smooth running of the trial process itself. Section 2 of ECW stated that video recording means a video recording of the oral evidence of the child witness, in the form of an interview conducted between a police officer and the child witness, expressed upon any format, made with a view to its admission as evidence of examination-in-chief of the child witness. To give a fair proceedings involving child witness, video technology is recommended to be used in court for examination in chief of a child witness. Section 6(1) of ECW9 states to the effect that where a video recording of a child witness is given in evidence, such video recording shall be admitted as evidence of examination in chief subject to the provision of EA. Section 6(6) of ECW set out to the effect that the use of such video evidence shall be treated as if it is given vide a direct oral evidence in examination in chief. Besides that, upon tendering the video, the child may be further examined in chief in court on matters that have not been adequately dealt in the recorded testimony. Video recording involves a police officer and a child witness Although it can be argued that the use of pre-recorded video as an examination in chief should not be supported on the ground that it prevents the opposing party from 9 Evidence of Child Witness Act 2007

objecting the evidence therein, the fact remains that the opposing party still has the right to assess or challenge such evidence as it shall still be subject to cross-examination, in particularly in respect of a sworn evidence. This includes the requirement for the child witness who testified in the video recording to attend court to undergo a live cross examination. After all, to make it admissible, the video recording evidence must fully satisfy the principles set forth in Evidence act. In the case involving child evidence in a recorded video, on the inquiry of child’s competency, it is mandatory for the court to hold the inquiry or preliminary examination. It must be conducted by the judge prior to the further examination of child witness in court. Besides, the police officer or authority who conducts the video recording must produce a certificate and such certificate shall be admitted as a prima facie evidence as stated in Section 6(3) of evidence of Child Witness Act. However, for such video recording to be admitted, it must be accompanied by a transcript of the original language used in the video recording plus a translation of the transcript. This is stated in Section 6 (2) (a) and (b) of the Evidence of Child Witness Act and compulsory when the language used in the video recording is other than the national language or Malay language, for example if the video recording is conducted in Mandarin, Tamil or other languages. This is further explain in the case of MUHAMMAD ADIB SUFYAN AZMAN v. PP [2019] 8 CLJ 25410. In this case it was held that where a video recording of a child witness is given in evidence, such video recording shall be admitted as evidence of examination-in-chief of the child witness and it shall be accompanied by a transcript of the original language used in the video recording and a certificate by a person who did the video recording pursuant to subsection (1) shall, until the contrary is proven, be admitted as a prima facie evidence of the authenticity of the content of the video recording.

In our situation during the trial a video recording of ZZ’s police interview about the incident which was recorded on 2 August 2018 by PW4 (Inspector Ali) was adduced. The video recording was tendered as ZZ’s evidence-in-chief. ZZ was further called as a prosecution witness during trial and gave oral evidence taken through a screen to protect her identity. The trial court admitted the video recording in evidence. By applying the above law, the police officers who interview the child should provide a certificate for the recording and such 10 [2019] 8 CLJ 254

certificate shall be admitted as prima facie evidence according to section 6(3) of the CWA. Beside that according to section 6(2) of the CWA the recording also should have accompanied by transcript of the original language used or accompanied by translation of the transcript, if the language used in video recording is other than the national language. So basically the video recording of ZZ about the incident by PW4 is not admissible under evidence act because it is not accompanied by certificate and also did not accompanied by a legit transcript....