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14 THE GENERAL RULE is that anyone who has relevant evidence to offer is “competent” (or eligible) to give evidence.5 Traditionally, however, the evidence of some groups of witnesses has been considered untrustworthy.6 As a result, rules about competence and how to test the competence of various witnesses have been developed at common law. The operation of these rules has led to the exclusion of relevant testimony.
15 The current concern about the competence requirement is that it operates as an exclusionary rule. As one of the purposes of the proposed evidence code is to promote the rational ascertainment of facts, the continued validity of rules which prevent the fact-finder hearing relevant evidence needs to be considered.7
16 This chapter discusses the New Zealand law of competence, especially as it relates to children and people with intellectual disabilities; it questions whether the law is operating effectively; and it poses options for reform.
17 Everyone who gives evidence is presumed to be competent at the time that they swear an oath or make an affirmation, which is usually done immediately before they give evidence.8 At common law, no evidence could be heard unless under oath. The evidence of a child could be rejected if the court concluded that the child could not understand the nature and consequences of an oath. The common law position was partially modified by s 13 of the Oaths and Affirmations Act 1957, which allows for unsworn evidence of a child under 12 to be admitted if a declaration is made.9 However, before a child makes the declaration (“I promise to speak the truth, the whole truth, and nothing but the truth”), there should be inquiries to ascertain:
18 When the witness is over 12 “it is not the general duty of the judge to embark on an examination of fitness to give evidence on oath in the absence of some indication of possible incompetence.”11 If competence becomes a live issue,12 for example, in the case of adults with a significant intellectual disability or mental disorder,13 the test is “whether the person has a sufficient appreciation of the solemnity of the occasion, and a realisation that taking an oath involves more than the ordinary social duty to tell the truth.”14 It is unclear to what extent, if any, this inquiry differs from that undertaken in the case of young children.
19 It has been accepted that a ruling on competence may be made prior to the trial, under s 344A of the Crimes Act 1961.15 Competence should also be tested, or demonstrated, before the witness gives evidence at trial. In a criminal case this should take place in front of the jury16 as it is of assistance to the jury in deciding how much weight to give to the witness’s evidence.17
20 The trial judge usually takes an active role in questioning the witness to determine their competence. The Court of Appeal in R v Accused indicated that the test may be satisfied by a rather minimal approach directed at the duty to tell the truth, which may only indirectly reveal anything about the child’s ability to give a rational account of past events:
When the complainant was about to give evidence the Judge himself addressed several questions to her in the presence of the jury. He asked her age which she correctly gave to him. He asked if she knew what a promise was to which she replied she did and further that she understood what it was to promise to do something. The Judge then asked her if she knew what the truth was and what it is to tell lies. She then positively promised the Judge to tell the truth, and negatively promised him not to tell lies. Finally she promised not to tell anything which was not the truth and that she understood “all that”. ... [T]he answers she gave to the questions were single words “yeah” or “nah” but always apposite to the questions posed by the Judge.18
21 The test of understanding the duty to speak the truth, and the s 13 provision for witnesses under the age of 12 to make declarations, are reflected in the Evidence (Videotaping of Child Complainants) Regulations 1990 (SR 1990/164),19 which apply to videotaped interviews of child complainants in sexual cases (see further discussion in chapter 4).20
22 It appears that competence is currently tested only by an inquiry into whether the witness understands what truth is and what a promise means, which is followed by a promise to tell the truth. There seems to be no requirement, as a matter of practice, that a witness explain the difference between truth or lies; for instance, by giving a definition of truth. Further, it seems to be generally acknowledged that a judge cannot appropriately assess whether a witness has sufficient intelligence to give a rational account of past events.21 On these points the Court of Appeal has held:22
We are of the view that here in New Zealand where a child’s evidence has always been received without the formality of oath-taking, but on a promise to tell the truth once it is established such a child has sufficient appreciation of the solemnity of the occasion, should be followed [sic] ... We think this practice is in accord with experience, and current opinion of professional educators and child psychologists ...
Counsel argued that the Judge’s questions were leading and that he did not test the respective children’s powers of comprehension by seeking from them definitions of promise, truth, lies, etc. We think there is no substance at all to those complaints. People of all ages use words correctly to convey meaning in ordinary speech but at the time if pressed sometimes cannot give very precise, or even adequate, linguistic definitions. We think these criticisms overlook that the questions are preliminary tests of capacity and competence before the substantive evidence of a child witness is embarked upon. It would be a damaging misjudgment in balance if a child witness were subjected to an emphatic test of general cognitive skills in the preliminary questioning on competence ...23
[W]e do not think it is wise for the Judge at this stage to embark upon a lengthy interrogation seeking definition of words or concepts. There are safeguards. If the evidence appears as it unfolds to be unsatisfactory then the Judge, depending on other evidence in the trial, has statutory powers ... We think that a jury should be told that a child is not disqualified simply by reason of age alone and that there is no precise age which determines a child’s competency. This depends on the child’s capacity and intelligence, or understanding of the difference between truth and falsehood and on appreciation of the duty to tell the truth. As with all witnesses the jury are the sole judges of the credibility of a child who gives evidence.24
23 These comments from the Court of Appeal acknowledge contemporary research concerning the psychosocial capacity of young children, and support the view that the fact-finder is best placed to make decisions concerning weight and credibility.25
24 Notwithstanding this authority, there are still occasions when relevant testimony is excluded on the grounds that the witness is not able to demonstrate competence in a more sophisticated manner than that required by the Court of Appeal.26 Further, there is a need to re-examine the continued appropriateness of a duty to test the competence of children under the age of 12. The next part of this chapter will therefore consider the following matters:
25 Historically the religious significance of swearing an oath was viewed as a disincentive to lying under oath. While it was assumed that adults ordinarily knew and believed in the consequences of lying under oath, some witnesses, such as children, were tested for their appreciation of the consequences.
26 Today the religious consequences of lying under oath do not provide a significant disincentive for most people. The fact that a witness may make an affirmation, and the fact that the validity of the oath is not affected if the witness has no religious belief,27 is legal recognition of this social reality. However, giving an oath or affirmation may still be viewed as an indication of the witness’s moral commitment to telling the truth, and the existence of the offence of perjury provides a legal sanction against lying.
27 The current requirement that the court must test a young child’s understanding of the duty to tell the truth may have been historically associated with a belief that children are more likely to lie than adults, or have more difficulty understanding the duty to tell the truth. These days it is recognised that children do lie and make allegations they know to be false, but there is no evidence to support any contention that children lie more than adults or that they are less capable of telling the truth.28 Some psychologists even theorise that very young children are incapable of lying although it is more generally accepted that there is no correlation between age and honesty.29
28 Research indicates that by the age of three or four most children do understand the difference between truth and lies, although they may have difficulty articulating a definition, as do many adults. Children of five or six may also consider they know the meaning of terms such as “truth”, “lie” and “promise”, but their definitions may be different from adults, which may influence assessments of children’s willingness or ability to tell the truth.30 For instance, very young children tend to define inaccurate statements as lies regardless of the intention of the person making the statement.31
29 The important question to ask is whether this part of the competence test (appreciating the duty to tell the truth and promising to do so) can accurately predict whether the witness will give honest evidence.
30 As it is clear that not everyone who takes an oath or affirmation tells the truth, even when aware that lying on oath is an offence, understanding the importance of telling the truth cannot guarantee the truth will be told. Conversely, it does not follow that failing to make a promise, or failing to adequately articulate the nature of a promise, will result in the witness lying. Studies indicate that there is no correlation between understanding the meaning of the oath and speaking the truth in court.32 Excluding the relevant evidence of a witness under this limb of the competence requirement seems to run counter to the goal of bringing all relevant evidence before the court and ignores the ability of fact-finders to make decisions about weight and credibility, which they do constantly with regard to those who are presumed competent. In the words of the Advisory Group on Video Evidence:33
A competence requirement is evidently only useful if by reference to the test which it imposes it is possible to ascertain whether a child is likely to subsequently give a truthful and accurate account. We have failed to find any evidence that the existing requirement achieves this.
31 It seems clear that requiring a witness to demonstrate an understanding of the duty to tell the truth, presumably to give meaning to their promise to tell the truth, does not help accurately predict whether a witness will tell the truth or will give reliable evidence.34 Decisions about credibility are much more likely to be based on the totality of the witness’s evidence, including their demeanour, and the evidence of other witnesses. It is therefore unclear why extracting a promise to tell the truth is so important.
32 To the extent that requiring a witness to swear an oath, make an affirmation or promise to tell the truth has a psychological and symbolic aspect and may increase the likelihood that they will tell the truth, it is a helpful practice. The practice may also mark the solemnity of the occasion, which might result in witnesses giving more truthful evidence. The solemnity of the courtroom may, however, cause witnesses, through fear or trauma, to offer less accurate or reliable evidence.35 This issue is discussed in more detail in the following chapters.
33 If it is desirable to require witnesses to promise to tell the truth, then it is sensible to ensure that witnesses understand what that means. However, the consequences of a witness failing to adequately demonstrate an understanding of the importance of telling the truth need re-examination. At present, such a failure may lead to their evidence not being heard.
34 The concern about the ability of a witness to give a rational account of past events seems to have been a response to the belief that young children and persons of “defective intellect”36 cannot give accurate and reliable evidence. This belief has been challenged and discounted by much recent empirical evidence.37 As already noted, it appears that this part of the competence requirement is rarely, if ever, tested directly. It seems to be accepted, certainly in jurisdictions where this issue has been recently debated, that judges are not well placed to make an assessment of a witness’s cognitive ability.38 The Commission concludes that the only helpful and practical assessment of a witness’s ability to give a rational account of past events is that made by fact-finders – that is, when the witness gives evidence and is questioned about it.
35 The possibility of a competence test which assesses communication ability is discussed under the reform options.
36 The research shows that in certain situations, some witnesses may, because of their level of psychological development or intellectual disability, have more difficulty than others in perceiving, remembering or recounting evidence accurately.39 There is reasonable agreement that children’s memories can be reliable, but that with age the accuracy and comprehensiveness of their memories increase. But given that the evidence of adults of ordinary intelligence may also be unrealiable for many reasons, including the problems that all people have in accurately interpreting and remembering an event, it is difficult to know whether the evidence of children, for example, is less reliable per se than that of adults. Many factors, other than age alone, contribute to the quality of a witness’s evidence.40 On the one hand, the differences between children’s and adults’ evidence are not sufficient to justify the traditional distrust of children’s evidence that is reflected in the requirement to test their competence. On the other hand, those difficulties do justify modifying some aspects of the trial procedures, particularly those relating to giving evidence, to enable children to give the best evidence they can. This paper will consider such modifications in chapters 4 and 5.
37 Given the limited value of the current competence requirement, and the likelihood that it still operates to exclude relevant and possibly accurate evidence, it seems appropriate to consider reform.
38 Options for reform include:
1 revising the present competence test and testing only when the issue is raised;
2 abolishing the competence requirement.
39 This option includes revision of the competence test and the removal of the judge’s duty to determine competence in the case of children under 12. The judge would only test a witness’s competence – whether a child, a person with intellectual disability, or any other witness – if the issue were raised by counsel or if the judge felt it to be necessary. Competence could be challenged at any stage, as it is now, whether before trial, during the trial, and even after the witness begins testifying. In the case of videotaped evidence, it is still the judge at trial who would determine competency, although an interviewer may ask the same kinds of questions in order to assist the decision at trial.
40 A number of other countries have recently revised their competence tests. In Ireland it is provided, in relation to both children and people with “mental handicap”, that:41
Notwithstanding any enactment, in any criminal proceedings the evidence of a person under 14 years of age may be received otherwise than on oath or affirmation if the court is satisfied that he is capable of giving an intelligible account of events which are relevant to those proceedings.
41 In the Commission’s view a test of this nature, which focuses on communication abilities, is preferable to one purporting to test intellectual development. A test of communication ability seems the only one capable of fulfilling its purpose. If the issue is raised, the judge will need to ask the child some questions which, even if not directly relevant to the proceedings, should provide a guide to their ability to communicate effectively on matters which are relevant to the proceedings.
42 Another possible formulation is that found in the California Evidence Code, section 701, which provides:
(a) A person is disqualified to be a witness if he or she is:
(1) Incapable of expressing herself or himself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him [or her] ...
43 To similar effect, s 13(4) of the Evidence Act 1995 (Aust) provides:
A person is not competent to give evidence about a fact if:
(a) the person is incapable of hearing or understanding, or of communicating a reply to, a question about the fact; and
(b) that incapacity cannot be overcome.
44 Subsection 13(3) provides that such a person may still be competent to give evidence about other facts.
45 The advantage of a revised test, in comparison with no test, may be that some kind of preliminary inquiry by the judge, particularly in front of a jury, will assist the jury’s assessment of the witness, and discourage counsel’s questions concerning capacity during cross-examination.
46 The use of a revised test may also promote court efficiency. It would allow judges to exclude in advance the testimony of a witness whose contribution to the decision-making process of the court is clearly likely to be unhelpful or time-wasting. However, such exclusion could also occur through reliance on the general discretion to exclude evidence42 during an application under s 344A of the Crimes Act 1961.
47 The second option is to abolish the requirement to test the competence of any witness. The result would be that all witnesses would be able to testify, subject only to the general provisions concerning admissibility. This approach has been recommended in several reports, namely A Public or Private Nightmare? (the “Geddis Report”),43 by the Canadian Committee on Sexual Offences Against Children and Youths (the “Badgley Report”),44 by the Law Reform Commission of Canada,45 the Ontario Law Reform Commission,46 as well as by commentators, including Wigmore,47 McCormick,48 and Paciocco,49 and has been implemented in some states in the United States and in the Federal Rules of Evidence,50 and in the United Kingdom.51
48 The Badgley Report recommended:
1 Every child is competent to testify in court and the child’s evidence is admissible. The cogency of the child’s testimony would be a matter of weight to be determined by the trier of fact, not a matter of inadmissibility.
2 A child who does not have the verbal capacity to reply to simply framed questions could be precluded from testifying.52
49 The Advisory Committee on the Federal Rules of Evidence53 has stated (in relation to the general rule of competency):
No mental or moral qualifications for testifying as a witness are specified. Standards of mental capacity have proved elusive in actual application ... A witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility. 54
50 The Law Reform Commission of Canada recommended the elimination of the common law grounds rendering a person incompetent to testify at trial, arguing:
Because of the impossibility of stating and applying a standard of mental inconsistency that renders a witness incompetent to testify, it seems preferable simply to let the trier of fact take into account any such incapacity in assessing the weight to be given to the testimony. 55
51 The Ontario Law Reform Commission took the position that:
[N]o special competency examinations should be required of child witnesses. Providing the child promises to tell the truth ... the child ought to be permitted to give evidence.56
52 The Geddis Report concluded:
It is our view that the competency test serves no useful function and should be abandoned. The weight to place on the child’s testimony would be determined by the trier of fact. 57
53 We agree with this strong body of opinion.
54 In the New Zealand context, the Commission believes the major advantages of abolishing the competence requirement are simplicity and consistency with the purposes of the law of evidence set out in chapter 1. Abolishing the competence requirement would ensure that an increased amount of relevant evidence is made available to fact-finders for their assessment of reliability and weight. No person – child or adult – would be required to be tested for competence in order to give evidence, and the judge would have no duty to test the competence of any prospective witness.
55 We recognise that problems may arise with the evidence of some witnesses, due to difficulties with communication and accurate perception and recall. However, the differences between adult witnesses generally and vulnerable witnesses may have been exaggerated. Where difficulties do exist, they may be more appropriately addressed by ensuring that procedures for giving evidence enhance reliability and effective communication, rather than simply excluding the evidence. (These procedures are discussed in the following chapters.)
56 We believe it is appropriate to retain the usual requirement to swear an oath or take an affirmation. It seems desirable that a child should make a declaration or promise to tell the truth, even if there is no competence requirement (section 3(3) of the draft code rules). Although there will normally be no inquiry into whether a child or any other witness understands the nature of a promise, it will remain open to the judge to make a preliminary inquiry, whether of their own initiative or at counsel’s request, where it seems likely that a witness may not understand the nature of a promise.
57 It is envisaged that, where possible, a judge will impress upon a witness the importance of telling the truth, and explain what that means, in order to give meaning to the promise. Even if it is apparent that the witness may not adequately understand, the change to the current law proposed under this option is that the witness’s evidence would still be admissible and the requirement to promise to tell the truth waived (section 3(5) of the draft code rules). This approach has been suggested by other law reform bodies:
The [Ontario Law Reform] Commission further proposes that in the small number of cases in which the judge is of the opinion that the child does not understand the promise to tell the truth ... the judge shall nevertheless hear the evidence and may act on it, if at the end of the case, he or she is satisfied that it is reliable.58
58 Under this option a question about a witness’s ability to understand the nature of a promise is ultimately for the fact-finder to consider when weighing up the evidence in the case. As is the current position in relation to affirmations and declarations, there would be no difference at law between the weight accorded to sworn evidence and that accorded to unsworn evidence (section 3(5) of the draft code rules).59 The judge may also direct the jury that a witness may still be telling the truth even if they have not promised to do so.
59 An alternative under this option would be to follow the United Kingdom approach and require all children to give “unsworn” evidence, that is, without swearing an oath or making a promise to tell the truth. This would have no effect on the validity of the evidence.60 Such an approach removes any need to inquire into the child’s understanding of a promise and therefore abolishes the competence requirement as it relates to young children. However, as noted in the Pigot Report,61 it seems possible that some jurors may be inclined to draw an inference that unsworn evidence is less reliable. The Advisory Group stated that:62
[J]udges may find it helpful to admonish child witnesses to give a full and truthful account of what occurred in terms suitable to their age and understanding. This could be to the effect of “Tell us all you can remember of what happened. Don’t make anything up or leave anything out. This is very important.”
60 The abolition of the competence requirement was supported by 93% of judges and 56% of barristers in an evaluation of the then proposed amendment.63
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Is abolition of the competence requirement desirable?
If so, which approach should be followed?
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61 If a child or any witness cannot communicate effectively, even if assisted, the judge may still exclude the evidence on one of the general grounds for exclusion, for example, that the evidence may mislead the court or jury or result in unjustifiable consumption of time.64 In addition, it seems unlikely that counsel would call a witness who would be unable to communicate effectively with the court. The existence of the general exclusionary power means that a test of communication skills as proposed under Option 1 may not be necessary.
62 A further issue may arise when a witness has already offered some evidence before it becomes apparent that the witness cannot continue to give coherent evidence. In such cases, the judge could warn the jury to disregard the later evidence (although it is unclear if this is sufficient protection for a defendant in a criminal case) or the jury could be discharged (creating further expense and delay). Under the current law challenges may be made during a witness’s testimony, and this approach would continue.
63 Further, if the first part of the witness’s evidence seems coherent but at a later stage deteriorates, the jury should be entitled to hear the “good” evidence and then to receive a direction from the judge as to why the rest of the evidence should not be relied upon. To do otherwise would mean the jury would not have all the necessary information to make a proper assessment of credibility. This approach is, of course, subject to the rules about the admissibility of evidence that cannot be tested by cross-examination; for example, when a witness is able only to give evidence in chief. The law on this topic is discussed in part in chapter 8, and will be the subject of further consideration in the Commission’s review of witness questioning rules. It will remain possible, if there is an objection to the witness’s evidence before he or she gives evidence, to hear the objection by way of a pre-trial application under s 344A of the Crimes Act 1961.
64 Under the current law, expert evidence from psychologists and psychiatrists is admissible to show that the witness does not have the capacity to give reliable evidence. If the competence test is abolished, greater reliance may be placed by counsel on expert evidence to assist the jury with its assessment of the witness’s credibility. Expert evidence concerned solely with the credibility of a witness, however, is usually excluded, and under the Commission’s proposed rules on expert evidence it is envisaged that such evidence will still be regarded as suspect.65
65 The Commission considers that the proposed new rule on admissibility of expert evidence, based on “substantial helpfulness”, will be a sufficient control on the quality of expert evidence as well as operating to exclude unreliable evidence and evidence which is valueless and time wasting. It appears to the Commission that judges will continue to take a cautious approach to the admissibility of this kind of expert evidence, even if the competence requirement is abolished, so that there is unlikely to be a demonstrable increase in the amount of expert evidence tendered to address issues of reliability or credibility.
66 It is possible that concerns about a witness’s reliability which are now meant to be addressed in the context of the competence test will still be raised in the absence of the test, but will be presented at trial as relevant to credibility. For example, if a witness’s ability to remember accurately over time is challenged during cross-examination, we believe this is a legitimate way to test a witness’s capacity, rather than through a preliminary inquiry ill-designed for the task.
67 The Commission proposes to repeal this provision which currently governs the admissibility of some expert evidence in respect of child and mentally handicapped complainants in sexual cases. The provision was enacted to ensure the admission of opinion evidence that the complainant’s behaviour is consistent with sexual abuse.66 A discussion of the operation of this section will appear in a revision of the Commission’s work on opinion evidence.
68 The proposal that every person is eligible to give evidence is aimed at increasing the amount of relevant evidence before the court. The abolition of the requirement to test competence may cause concern for defendants in criminal cases, particularly in cases where vital evidence is given by child complainants. The only change of significance, however, is that a child’s evidence is not ruled inadmissible solely on the grounds of a failure to make and understand a promise, as required under the current competence test. A defendant may still challenge the credibility and reliability of a child witness through cross-examination. The judge still has discretion to exclude the evidence of a witness who is unable to communicate with the court. A child who is inarticulate or uncommunicative to the point of being misleading or wasting time may have their evidence ruled inadmissible under the general exclusions.67
69 Abolition of the requirement to test competence has some implications for the present obligation of witnesses to swear, affirm, or promise to tell the truth. A review of the law governing oaths is, however, not central to this paper, and will be dealt with in more detail in the Commission’s work on witness questioning rules.68
70 The abolition of the competence requirement means, however, that there will no longer normally be an inquiry into whether the witness understands the duty to tell the truth. As stated earlier, witnesses will be required to swear, affirm or (for children aged under 12) promise to tell the truth whether giving evidence on videotape or in court (section 3(3) of the draft code rules). The fact that a witness cannot understand the nature of a promise, will not affect the validity of his or her promise, and he or she will not be disbarred from being a witness on that ground alone. The requirement to promise to tell the truth may also be waived in these circumstances (section 3(5) of the draft code rules). Evidence showing the person’s ability to understand such concepts may still be relevant to an assessment of the witness’s credibility.
71 The Commission does not believe that there are substantive implications of this approach for the offence of perjury.69 This offence currently also applies to witnesses who are not competent (for example, who do not understand the nature of the oath). A consequential amendment would remove the reference to competence, but the section would still cover unsworn evidence, as it does currently.
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Are there other implications of abolishing the competence
requirement?
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72 The operation of the present competence rules does not accurately predict whether a witness will give honest or accurate testimony. A witness’s ability to understand the duty to tell the truth provides no guarantee that the witness will tell the truth or intends to do so. However, to the extent that a witness’s understanding of the need to tell the truth may increase the likelihood that they will tell the truth, the oath, affirmation or declaration may have a symbolic value. The most useful way of assessing credibility seems to be that undertaken by the fact-finder when making a verdict choice.
73 The ability of children and other groups of witnesses to give accurate evidence has in the past been underestimated. Difficulties for children and other groups of vulnerable witnesses, particularly those with intellectual disabilities and mental disorders, may relate as much to communication skills in the courtroom, including those of the interviewer and lawyer, as to other factors bearing more directly on reliability, such as capacities of perception, reasoning and recall. There seem to be no compelling reasons for requiring all young children’s competency to be tested.
74 The second part of the competence requirement, requiring the ability to give a rational account of past events, is not currently tested in any direct way. The possibility that it assists in an assessment of communication skills is of little weight, given that a person who is unable to give coherent evidence would not normally be called as a witness.
75 On balance the Commission prefers the option of abolishing the competence requirement so that:
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