Competency of a witness means aperson who is legally capable of being a witness to testify in court. Accordingto Section118 of Evidence Act 1950, all person shall be competent to testify ifhe or she can understand the question put to him and give rational answer tothe question.
Unless he or she could not understand the question put forward tohim 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 disorderedperson or lunatic person can testify in court if he understand the question putto him and can give a rational answer to the question. The sole test ofcompetence under this section is the intellectual capacity in other words, intellectualcapacity test1. There are no precise law to thecourt that on how to measure the competency or the level of intelligence of achild witness so that he can testify in court. The law only described “tenderage”. There are no specific minimum or maximum age limit set neither for tenderage nor extreme old age.
It depends solely on the facts of the case. Competencyunder Section 118 is not tested on the basis of age of a person but only on thebasis of his capacity to understand2. For example, even aperson reached the age of majority doesn’t means that he reached the tender agewhich legally capable to testify in court. Whether a child witness reached thetender age to understand the question put forward to the child is to bedetermined by the court. The court will look into the background of the childand determine whether the child understands the nature or consequences of the answergiven by him. Whether a child can be qualified to testify in court can bedetermined by the judge on whether he can communicate in daily life, whether hecan distinguish true from falsify or understand his obligation to tell thecourt the truth.
In the case of Chao Chong & Ors v Public Prosecutor3, the court ruled that thejudge will put less weight on the evidence taken on affirmation as the childwitness has a danger that he or she cannot differentiate between reality andfantasy. Therefore, the court required corroborated evidence from the childwitness. Similarly, under Section133A of EA, this section talks about the evidence of child of tenderyears. This section should be read together with section 118 as section 118talks about the person who may testify included a child at the tender years.
UnderSection 133A, a child of tender years nay called as a witness to give sworn orunsworn evidence. Unsworn evidence may be admissible by court if the court inthe opinion that such child possessed sufficient intelligence and understandthe duty to speak the truth but it subject to such unsworn evidence must becorroborated by material evidence, then the accused can only be convicted. Generally speaking, after the courtdetermined that a child witness is a competent witness, the court will proceedto determine whether the child witness is in a position to give sworn orunsworn evidence4. A sworn evidence means that oralevidence given by a witness with oaths or affirmation on the other hands,unsworn evidence means that statement made by the witness after a caution givenby the court to tell nothing but only the truth. Whether to give sworn orunsworn evidence, it is solely based on the opinion of the court that’s varied basedon different cases. Sworn evidence will only be given by the child whounderstand the nature of oath.
Conversely, if the court satisfied that suchchild witness have sufficient intelligence but doesn’t understand the natureand consequences of taking oath, the court may order to give unsworn statementin court but given less consideration compared to sworn statement. In addition,according to proviso of Section 133A, the unsworn statement must be supportedby corroborated evidence in order to convict the accused. In the case of Sidek bin Ludan v PP5, the trial court ruledthat a preliminary examination must be held in order for the court to determinewhether the child witness to give sworn or unsworn statement by analysing whetherthey understood the nature of oaths administered by them. Such preliminary examinationof a child witness is required under s 133A of EA. The child can give swornstatement if the court satisfied that the child understand the nature and moralobligation of an oath and the responsibility to tell the truth. In the case of Yusaini Mat Adam v PP6, it was held that sincethe court doesn’t follow the requirement to undergo the preliminary examinationas required under s 133A, the conviction of the accused was be set aside. In the case of Mohammad bin Abdul Kadir v Public Prosecutor7, the judge in the opinionthat while conducting the preliminary inquiry on the competency of a witness togive sworn or unsworn statement, the child should be firstly be asked on fewsimple questions then gradually increase the difficulties of the question to beasked to the child.
Then if the court satisfied that the child had the sufficientintelligence to give evidence, then the court should showed him the prescribed formof oath and asked the child to read and asked whether the child witness understandthe nature and consequences of the oath. If the answer is positive, then thecourt should record the evidence given by him was of the nature of swornevidence. Therefore, in short, to admit achild witness evidence, the court must be ascertain whether the child iscompetent to give evidence in court by applying intellectual capacity test. Then,the court will by way of preliminary inquiry to determine whether the childwitness should give sworn or unsworn evidence. Even though unsworn evidencecarry less weight, it still be admissible by the court if it corroborated withother material evidence. Next, under Section 17 of Sexual Offences AgainstChildren Act 2017(SOACA), it talks about the presumption as to thecapacity of a child witness.
This section presumed that a child witness iscompetent to give evidence unless the court thinks otherwise. This was applied inany proceedings against any person relating to any offence under the act or anyoffences specified in the Schedule. Unlike with Section 118 of EA, achild witness to be testified in court must fulfilled to the court on the competencyby applying intellectual capacity test and then undergo a preliminary inquiryby the court. Section 17 of SOACA are more lenient as it presumed a childwitness to be competent depending on the opinion of court but not by way oftest. Such section under SOACA can be considered to protect the child witnessso that they can give evidence in the court as long as it doesn’t prejudicialto the accused.
1 Sidekbin Luban v PP 1995 3 MLJ 1782 Tajudinbin Salleh v Public Prosecutor 2008 1 MLJ 3973 196026 MLJ 234 KeeLik Tian v Public Prosecutor 1984 1 MLJ 3065 19953 MLJ 1786 19993 MLJ 5827 20137 MLJ 684