Competency of Witnesses, including children 1
Competency Every person, including a child, is presumed to be competent to give evidence in a proceeding and competent to give evidence in a proceeding on oath: s 9 Evidence Act 1977.
“Child” is not defined in the Evidence Act, but is defined in the Acts Interpretation Act 1954 (Qld) as “… an individual who is under 18”: s 36.
If in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness to give evidence, the person is competent to give evidence in the proceeding if, in the court’s opinion, the person is able to give an intelligible account of events which he or she has observed or experienced. This applies even though the evidence is not given on oath: s 9A Evidence Act 1977. The issue is determined on the voir dire by the judge alone.
If in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called to give evidence on oath, the person is competent to give evidence on oath if, in the court’s opinion, the person understands that the giving of evidence is a serious matter and in giving evidence, the witness has an obligation to tell the truth that is over and above the ordinary duty to tell the truth: s 9B Evidence Act 1977.
The court forms its opinion as to the witness’s understanding of the nature of the oath in any manner in which it sees fit. In practice the age of the witness and the submissions of counsel will bear upon the court’s opinion. The trial judge may direct the prosecutor (who has met the witness) to ask the relevant questions as to competency. If the witness is unwilling or unable to take an oath (for example, because of no belief in a god) presumably, if the conditions of s 9B are met, the witness can give evidence on solemn affirmation: s 17 Oaths Act