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Competency of a witness means a person who is legally capable of being a witness to testify in court. According to Section 118 of Evidence Act 1950, all person shall be competent to testify if he or she can understand the question put to him and give rational answer to the question. Unless he or she could not understand the question put forward to him or her due to the tender years, extreme old age, disease or any sickness. Nevertheless, under the explanation of Section 118, it provided that a mentally disordered person or lunatic person can testify in court if he understand the question put to him and can give a rational answer to the question. The sole test of competence under this section is the intellectual capacity in other words, intellectual capacity test.
There are no precise law to the court that on how to measure the competency or the level of intelligence of a child witness so that he can testify in court. The law only described “tender age”. There are no specific minimum or maximum age limit set neither for tender age nor extreme old age. It depends solely on the facts of the case. Competency under Section 118 is not tested on the basis of age of a person but only on the basis of his capacity to understand. For example, even a person reached the age of majority doesn’t means that he reached the tender age which legally capable to testify in court. Whether a child witness reached the tender age to understand the question put forward to the child is to be determined by the court. The court will look into the background of the child and determine whether the child understands the nature or consequences of the answer given by him. Whether a child can be qualified to testify in court can be determined by the judge on whether he can communicate in daily life, whether he can distinguish true from falsify or understand his obligation to tell the court the truth.
In the case of Chao Chong & Ors v Public Prosecutor, the court ruled that the judge will put less weight on the evidence taken on affirmation as the child witness has a danger that he or she cannot differentiate between reality and fantasy. Therefore, the court required corroborated evidence from the child witness.
Similarly, under Section 133A of EA, this section talks about the evidence of child of tender years. This section should be read together with section 118 as section 118 talks about the person who may testify included a child at the tender years. Under Section 133A, a child of tender years nay called as a witness to give sworn or unsworn evidence. Unsworn evidence may be admissible by court if the court in the opinion that such child possessed sufficient intelligence and understand the duty to speak the truth but it subject to such unsworn evidence must be corroborated by material evidence, then the accused can only be convicted. Generally speaking, after the court determined that a child witness is a competent witness, the court will proceed to determine whether the child witness is in a position to give sworn or unsworn evidence.
A sworn evidence means that oral evidence given by a witness with oaths or affirmation on the other hands, unsworn evidence means that statement made by the witness after a caution given by the court to tell nothing but only the truth. Whether to give sworn or unsworn evidence, it is solely based on the opinion of the court that’s varied based on different cases. Sworn evidence will only be given by the child who understand the nature of oath. Conversely, if the court satisfied that such child witness have sufficient intelligence but doesn’t understand the nature and consequences of taking oath, the court may order to give unsworn statement in court but given less consideration compared to sworn statement. In addition, according to proviso of Section 133A, the unsworn statement must be supported by corroborated evidence in order to convict the accused.
In the case of Sidek bin Ludan v PP, the trial court ruled that a preliminary examination must be held in order for the court to determine whether the child witness to give sworn or unsworn statement by analysing whether they understood the nature of oaths administered by them. Such preliminary examination of a child witness is required under s 133A of EA. The child can give sworn statement if the court satisfied that the child understand the nature and moral obligation of an oath and the responsibility to tell the truth. In the case of Yusaini Mat Adam v PP, it was held that since the court doesn’t follow the requirement to undergo the preliminary examination as required under s 133A, the conviction of the accused was be set aside.
In the case of Mohammad bin Abdul Kadir v Public Prosecutor, the judge in the opinion that while conducting the preliminary inquiry on the competency of a witness to give sworn or unsworn statement, the child should be firstly be asked on few simple questions then gradually increase the difficulties of the question to be asked to the child. Then if the court satisfied that the child had the sufficient intelligence to give evidence, then the court should showed him the prescribed form of oath and asked the child to read and asked whether the child witness understand the nature and consequences of the oath. If the answer is positive, then the court should record the evidence given by him was of the nature of sworn evidence.
Therefore, in short, to admit a child witness evidence, the court must be ascertain whether the child is competent to give evidence in court by applying intellectual capacity test. Then, the court will by way of preliminary inquiry to determine whether the child witness should give sworn or unsworn evidence. Even though unsworn evidence carry less weight, it still be admissible by the court if it corroborated with other material evidence.
Next, under Section 17 of Sexual Offences Against Children Act 2017(SOACA), it talks about the presumption as to the capacity of a child witness. This section presumed that a child witness is competent to give evidence unless the court thinks otherwise. This was applied in any proceedings against any person relating to any offence under the act or any offences specified in the Schedule. Unlike with Section 118 of EA, a child witness to be testified in court must fulfilled to the court on the competency by applying intellectual capacity test and then undergo a preliminary inquiry by the court. Section 17 of SOACA are more lenient as it presumed a child witness to be competent depending on the opinion of court but not by way of test. Such section under SOACA can be considered to protect the child witness so that they can give evidence in the court as long as it doesn’t prejudicial to the accused.
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