Research Brief 8
For the adversarial trial, the oath symbolizes the ascertainment of truth. Truth is emphasized in the witness swearing to tell the truth, the whole truth and nothing but the truth. Historically, the swearing of an oath by a witness at trial had a number of significant implications. Those who were foresworn risked prosecution for perjury; the presumption that criminal defendants would undoubtedly commit such perjury meant they were unable to take the oath and give sworn testimony in their own defense until the turn of the twentieth century.
Judgments about truth-telling and oath-making abilities also debarred or limited the evidentiary value of other types of witnesses. From the 1840s Aborigines were able to give unsworn testimony, but could only take the oath if they proved they were had received a Christian education. By contrast Chinese witnesses sometimes had oaths administered to them according to their own customs, which required the snuffing out of a candle or the decapitation of a chicken to symbolise their commitment to tell the truth.
As my thesis explores, much of the vexed deliberations by the courts over the nature and purpose of the oath were prompted by the evidence of child witnesses. The standard question asked of child witnesses was “Do you understand what will happen if you don’t tell the truth?” Giving evidence at Bungaree Court in Victoria in February 1905, a young boy said that if he did not tell the truth that meant he would tell a lie. The magistrate questioning him pressed on. The consequence of telling a lie, the boy said, was that he would go to gaol for committing perjury. The magistrate was still not satisfied that the boy understood the nature of an oath. He asked the boy outright – “where would you go when you died?” “Oh when I died I would go to hell”. It was reported that at this point “the court rang with laughter” and the boy was sworn (The Register, 28 February 1905, 6)
Demonstrating an understanding of the nature of an oath ordinarily involved demonstrating an understanding of the Christian faith, and the concept of punishment in the after-life. Such belief was debated at length in the 1931 Australian High Court case of Cheers v Porter. William Cheers (an adult male) was convicted of larceny based on the testimony of 9 year-old Robert. At the trial Robert had not satisfied the court that he understood the nature of an oath, but he was permitted to give unsworn testimony pursuant to section 13(1)(i) Oaths Act 1900 (NSW). This section provided that, under certain conditions a witness could make a declaration.
The decision of the High Court was split three to two. The majority found that Robert was rightly permitted to give unsworn evidence. They found that s13(1)(i) was designed to prevent the loss of testimony simply because of the religious views of the potential witness. The minority view was that the section was limited to witnesses who had the capacity to form a belief but were instead deliberately disbelieving or holding other religious views. Children who did not understand the nature of an oath, they thought, were not in that category.
All judges in Cheers v Porter noted the long-held concerns of courts in England and Australia that witnesses should not necessarily be rejected because of their religious beliefs and opinions. But concern about losing the evidence of a child was not so great that it prevented strict limits being imposed upon it in some circumstances, for example in trials involving allegations of sexual offending against a child.
The evidence required to prove such charges formed the basis of Joseph Eade’s appeal against his conviction for indecent assault in New South Wales in 1923. Unlike s13(1)(i) Oaths Act that was the focus of Cheers v Porter, in Eade’s case s418 of the NSW Crimes Act expressly provided for the acceptance of unsworn testimony of children in cases involving allegations of sexual offences. Where a child of tender years could not swear an oath but they were ‘sufficiently intelligent’ to understand the need to tell the truth, they could give their evidence.
At Eade’s trial in 1923, Acting Judge Ralston decided that, at five years old, the girl was too young to understand the nature of an oath. But he was satisfied that she was ‘sufficiently intelligent’ to understand the need to tell the truth and allowed her to give her evidence. Eade’s appeal to the High Court led to his conviction being overturned and a retrial ordered. The appeal succeeded because there was no evidence corroborating the unsworn testimony of the girl (despite the trial judge accepting the evidence of the girl’s mother as corroborative). At the retrial, the girl was permitted to swear an oath. Presumably sometime between the first and second trials the girl was given some sort of religious instruction to enable her to satisfy the court that she understood the nature of an oath.
Today, children are generally presumed to be competent to give evidence regardless of the charges being heard but historically, all child witnesses were tested in court to determine whether they understood the nature of an oath.
Author: Robyn Blewer, PhD candidate
To cite this research brief: Robyn Blewer, ‘Swearing children: The nature of an oath’, The Prosecution Project, Research Brief 8, https://prosecutionproject.griffith.edu.au/swearing-children-the-nature-of-an-oath (2 March 2015, viewed 19 July 2016).