Competence and Compellability: is Child Evidence Admissible?
CHAPTER ONE
OBJECTIVES OF THE STUDY
The main reason for venturing into the subject mater of this long essay is to bring out and explain the procedure and practices of the Nigerian courts in relation to the admissibility of child evidence as well as the importance and nature of competence and compellability as in relation to child.
The long essay would also appraise and analyze the role of and what should be the role of the courts in ensuring that the evidence of a child is credible enough to be admitted and the conditions. It is hoped that the reader of the long essay would on careful perusal of the essay appreciate the competence of a child in law.
CHAPTER TWO
COMPETENCE AND COMPELLABILITY OF A WITNESS
INTRODUCTION
The adversary system remains the heart beat of our judicial process. Orality of proceedings, be it civil and criminal and the use of witnesses in proof or disproof of cases are the key features of the adversary system. As rightly observed, ‘the most common vehicle for proof is the evidence of witnesses[1]. Thus, testimony of a witness is only competent to be admissible if that witness is competent to testify. Thus, there are rules regulating the competence and admissibility of witnesses as well circumstances under which such competent witness may be compelled to testify.
A preliminary point worthy of note is that many potential witnesses have the tendency of shunning the court proceedings because the failure of the legal or judicial system to protect them against intimidating and incriminating questions during cross-examinations. Potential witnesses are therefore not easily forthcoming unless they are subpoenaed. It is not gaining saying to therefore argue that, the court as well as the parties are in some instance deprived of the testimonies of most witnesses who are otherwise indispensable in the proper determination of the case.
Thus, a writer has presented the plight of witnesses under the adversary system thus:
A witness in a court of law has no protection. He comes there unfed, without hope of guidance, to give such assistance to the state in repressing crime and assisting justice as his knowledge in a particular case may enable him to afford, and justice, in order to ascertain whether his testimony be true, subjects him to torture…One will naturally imagine that an undisturbed thread of clear evidence would be best obtained from a man whose mind was not harassed but this is not the fact, to turn a witness to good account he must be badgered this way and that until he is nearly mad, he must be made a laughing stock for the court. His very truths must be turned into falsehood so that he may be falsely ashamed…he must be made to feel that he has no friend near him. That the world is all against him. He must be confounded till he forgets his right hand from the left, till his mind is turned into chaos and his heart into water and then let him give his evidence. No member of the humane society interferes to protect the wretch[2].
MEANING AND PRINCIPLES OF COMPETENCE AND COMPELLABILITY
It is a matter of common knowledge that, the English common law rules of evidence as at 1943 form the basis of Nigerian Evidence Act[3] and since 1945, when the Act (then ordinance) became operational, it has not undergone any major reform, whereas some of the rules which form the basis of our Evidence Act, have either been reviewed or totally discarded in England.
CHAPTER THREE
THE EVIDENCE OF A CHILD
INTRODUCTION
A child who is prevented from understanding the questions put to him or from giving rational answers to those questions by reason of tender years is not a competent witness.
It is to be noted that there is no age stated and it is therefore the duty of each court before which a child appears for the purpose of giving evidence, to determine first of all whether the child is sufficiently intelligent to be able to understand questions put to him or to be able to answer questions put to him rationally.
The Court does this by putting preliminary questions to the child which may have nothing to do with the matter before the Court. If as a result of this investigation the Court comes to the conclusion that the child is unable to understand questions or to answer them rationally, then the child cannot be a witness at all in the case. But if the child passes the test, he is submitted to a further test for the determination of a further question whether he is in the section 155(1) Evidence Act or in the opinion of the Court able to understand the nature of an oath. This question is also determined by the Court by putting questions to the child as to the nature of an oath. He is asked about God and what will happen to someone who tells lies after being sworn. If he fails in this respect, he will nevertheless be able to give his evidence but will not be sworn, provided he has passed the first test under section 155(1) and understands the duty of speaking the truth (section 183) such unsworn testimony is admissible evidence as in the case of the sworn testimony of adults. Section 183(2) The question whether a child understands the duty of speaking the truth cannot be determined outside the Court or after the child has given his evidence.
CHAPTER FOUR
THE EFFECT OF UNCORROBORATED EVIDENCE OF A CHILD
INTRODUCTION
It is worthy of note that the legal admissibility of a piece of a child’s evidence is one thing, but the weight which the court would attach to such evidence after it has been admitted is quite another thing. Similarly, the competence of a particular child to give evidence in a particular proceeding is different from what weight the court will give to the evidence of such a child witness (even when admitted).
For example, even though as we shall see, a child may be a competent witness to give evidence against an accused person, the court would exercise a great caution before attaching much weight to such evidence.
In general, the evidence Act provides in Sec 91 (1) as follows;
In establishing the weight if any, to be attached to a statement rendered admissible by this Act, regard shall be heard to all the circumstances from which as any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had an incentive to conceal or misrepresent facts..
The issue of admissibility of evidence is for the judge while the issue as to what weight to attach to such evidence after admission is for the jury but since there is not more trial by jury in Nigeria, it is for the court, but even the two overlapped each other[1].
It is safe to say that an evidence of a child which is admitted is sufficient to warrant conviction without more so long as the court has admitted that evidence.
CHAPTER FIVE
GENERAL CONCLUSION
CONCLUSION
It is important to note that notwithstanding the expressive terms of section 182 of the Evidence Act there still exist several problems in the area of competence and compellability of the evidence of children. Yet in as much as these problems would become the focus here, it cannot but be mentioned that problems may not arise where it comes to rules against self corroboration. Given that it is imputed in the sworn evidence of a child that upon the evocation of section 213 of the Evidence Act, a counsel may insist that a child’s earlier statement may infact corroborate part of his testimony. Although the preponderance of learned opinion suggests that the principle applies in Nigeria. Nwadialo Fidelis, puts into serious doubts the accuracy of the provisions of section 213,it is also important to note that section 182 of the Nigerian Evidence Act, like section 38 of the Children and Young Persons Act 1933 of England are impari material. This is because both will form the parallels of comparison in the due course of this chapter. The Supreme court has erred in holding that the children were competent to give sworn testimony even when there was no prima facie evidence of a preliminary investigation as was held in Williams Omosivbe v Commissioner of Police. If a child gives evidence without the preliminary investigation the evidence is irregular and it can however be abated by sufficient corroboration of it,but the question is what character does the evidence assume sworn or unsworn. A fundamental distinction thus exists between competence and compellability on one hand and privilege on the other hand. In competence and compellability, the focus is on whether a person may testify or can be compelled to testify as a witness. With respect to the privilege on the other hand the issue of concern is whether the witness can refuse to answer questions on a particular document or decline to tender such a document. In other words, what type of evidence may be given or withhold is the focus under privilege.
A compellable witness is consequently not at liberty to refuse to attend court or judicial proceedings merely because the evidence he is expected to give is privileged. He must attend the proceedings and claim his privilege there. It is only when the court or the tribunal upholds the privilege that his presence in court is excused and/or he may be allowed not to give particular evidence or not to tender a particular document. A preliminary point worthy of note is that many potential witnesses have the tendency of shunning the court proceedings because the failure of the legal or judicial system to protect them against intimidating and incriminating questions during cross-examinations. Potential witnesses are therefore not easily forthcoming unless they are subpoenaed. It is not gaining saying to therefore argue that, the court as well as the parties are in some instance deprived of the testimonies of most witnesses who are otherwise indispensible in the proper determination of the case.
A problem which needs to be taken care of is the need to minimize psychologic A preliminary point worthy of note is that many potential witnesses have the tendency of A preliminary point worthy of note is that many potential witnesses have the tendency of shunning the court proceedings because the failure of the legal or judicial system to protect them against intimidating and incriminating questions during cross examinations. Potential witnesses are therefore not easily forthcoming unless they are subpoenaed. It is not gaining saying to therefore argue that, the court as well as the parties are in some instance deprived of the testimonies of most witnesses who are otherwise indispensible in the proper determination of the case.
shunning the court proceedings because the failure of the legal or judicial system to protect them against intimidating and incriminating questions during cross-examinations. Potential witnesses are therefore not easily forthcoming unless they are subpoenaed. It is not gaining saying to therefore argue that, the court as well as the parties are in some instance deprived of the testimonies of most witnesses who are otherwise indispensible in the proper determination of the case.
We have had many cases brought to our notice in which a child or young person has been overcome with distress and fright in giving evidence at the trial or has broken down or even fainted. The result of this distress has sometimes been that no evidence could be obtained and the case has consequently been lost or has had to be withdrawn. Adults may or may not see the need for their evidence to be tested, children definitely will not. It may confusing and distressing to be called a liar[1].
RECOMMENDATION
It is suggested that our court in exercise of their inherent powers should offer similar protection to children who testify as witnesses. Presently, the non-protection of these children, who beak down out of fright on sighting the accused in the dock, result in the acquittal of many guilty accused persons.
Also, despite the fact that most children or child of tender years that give evidence under oath knows the implication of telling the truth under an oath yet they still continue to give unrealistic evidence.
Inspite of the fact of the law under our Evidence act has made enough provision for a child to give unsworn evidence in court, it is believed that such evidence in court by children of tender years is unreliable. Most of the children do tell lies to the court though it might not be as a result of other supervening forces such as a promise of threat from a person in authority that if a child could lie or give a contrary statement that such a child will be rewarded.
A good and conducive atmosphere must be created when a child is called to give evidence therefore during preliminary investigation nothing should be done outside the court as reproved by the statute. Also, the issue of police interrogation should not be meted out on a child as their evidence may be influenced just by the look of a policeman.
Lastly, the court should guide against brutal and unfriendly counsel which may be too hash on the child in an attempt to extract evidence from him because by nature of the children’s mental and physical disposition, their evidence can be tainted when they are confronted with an unfriendly counsel. What should be required instead is that child be sufficiently intelligent.
As a result of this need to protect children who testify in court in England and other common law countries have by means of legislation put in place certain strategies to protect child witnesses.
The use of television screens, live video links, close circuit television are examples of some strategies adopted by legislation for such protection.
Also, section 32(1) Criminal Justice Act 1988 provides for evidence to be given through a live television link by a witness who is under the age of 14 years in cases involving violence or sexual offences.
Evidence by a child in this circumstance is done from a room near the courtroom. The child answers questions put to him by the counsel or the judge from the adjoining room via the monitor in the court room. The child could also has a monitor on which the questioner can be seen. Most times the child is accompanied by a social workers as appointed by the Judge.
In spite of the loopholes in respect of the topic, Competence and Compellability of witnesses in respect to child evidence, the courts have been able to ensure a degree of stability by providing guidelines and principles to cover these loopholes. The only shortcoming is that there is lack of uniformity.
There is no doubt that judges should be very careful before convicting an accused on evidence given by children. But the judge should also note that in the process of trying to be careful in giving judgment as regards children evidence, there should be as much as possible no miscarriage of justice. When all necessary precautions have been taken, a child’s evidence would certainly be as reliable as that of an adult.
REFERENCES
- Allen C, ‘Practical Guide to Evidence’ (Cavendish Publishing Ltd London)1988
- May R, ‘Criminal Evidence’.(4th Sweet and Maxwell Publishers ltd London1986)
- Murphy P, ‘Murphy on Evidence’ (Ethiope Publishers Ltd Benin 1983)
- Edwards P, ‘Briefcase on Law of Evidence’ (Cavendish Publishing Limited 1988)
- Aguda T.A ‘Law and Practice Relating to Evidence in Nigeria’ (2nd MIJ Proffesssional Publisher Limited,Lagos 1998)