According to Section 2 of the Evidence of Child Witness Act 2007, “child witness” means a person under the age of sixteen years who is called or proposed to be called to give evidence in any proceedings but does not include an accused or a child charged with any offence.
A child can be invited to make a sworn or unsworn statement depend on the findings of the court. When a child of tender years is proposed as a witness, preliminary examination by the court is necessary. The court must first determine whether the witness oath can be administered to a child. In preliminary examination, the court must satisfy that the witness knows the means of taking oath and giving evidence in court, the witness understands the consequences of lying, the witness knows the duty to tell the truth under oath, and the witness possesses sufficient intelligence whereby he understands the questions put to him and able to give rational answers to the questions asked. The burden of proof is on the party who produce a child witness. The witness should be cautioned to speak the truth, the whole truth and nothing but the truth. The findings of the court in preliminary examination should be recorded. Failure to conduct a preliminary examination is a fatal omission in the case.
Section 133A of the Evidence Act 1950 provides guidelines in dealing with a child witness. First, the child must be rejected as a witness if the court finds that the child does not understand the nature of an oath and at the same time is not possessed of sufficient intelligence and does not understand the duty of speaking the truth. Second, if the court finds upon preliminary examination that the child understand the nature of an oath, the child could be allowed to take the oath and give evidence. Third, if a child does not understand the nature of an oath, the child may be permitted to give unsworn statement if the court is of the opinion that the child is possessed of sufficient intelligence and understand the duty of speaking the truth. An unsworn evidence is receivable in court provided that it was taken and reduced into writing in accordance with Section 269 of the Criminal Procedure Code.
A child may be testify by having a screen between him and the accused; by live link; by video recording; testify through an intermediary; or accompanied by an adult when testify in the court. These privileges given to a child witness to protect their interest and to make the court atmosphere child friendly.
However, a child's statement should be treated with care and cautions. The credibility of a child witness is subject to further arguments. The general perception has been that young children are not particularly reliable.
Scientific research by Researchers Valerie Reyna, Human Development Professor; and Chuck Brainerd, Human Development and Law School Professor, both from Cornell University in the years of 2008 shows that children's memory may be more reliable than adults' in court cases.
This was affirmed by another scientific research by Witness Psychologist, Gunilla Fredin at Lund University in Sweden in the years of 2011 which shows that children are more reliable eyewitnesses. Young children who witness crimes are good at recounting the events, even though younger children include fewer details than older children and adults, but what they say is more accurate. Older children and adults have had more experiences and can therefore find it difficult to differentiate between reality and fiction. http://www.sciencedaily.com/releases/2011/09/110909111528.htm
Prepared by: TAN SHOO MAY A 130299