Lewis v R

JurisdictionCaribbean States
JudgeHallinan, C.J.
Judgment Date12 September 1960
CourtFederal Supreme Court (West Indies)
Date12 September 1960

Federal Supreme Court

Hallinan, C.J.;

Rennie, J.;

Marnan, J.

Lewis
and
R.

Dr. F. H. W. Ramsahoye for the appellant.

G. L. B. Persaud, Acting Solicitor-General, for the Crown.

Evidence - Unsworn evidence of child — Whether necessary, for, judge to make express determination as to whether child is of competent understanding — Whether necessary for judge to form opinion as to whether child knew that she ought to speak the truth — Evidence Ordinance, Cap. 25, ss. 48, 49 & 71.

1

Hallinan, C.J., delivered the judgment of the court: In this case, the appellant was convicted of having carnal knowledge of a girl under twelve and was sentenced to three years' imprisonment.

2

The record of the evidence of the girl, Barbara Moses, begins as follows

“I am ten years of age. I do not go to school now. I was in the third standard. I go to church. I do not know, about the Bible.”

3

It is apparent that, under the provisions of s. 71 of the Evidence Ordinance, Cap. 25, the judge came to the conclusion that the girl did not understand the nature of an oath, but that she was of competent understanding to give the evidence she was called on to give. Counsel for the appellant has submitted that the judge did not determine whether she was of competent understanding, but by his decision to admit her unsworn evidence, it is clear that he did so decide.

4

Before leaving s. 71, we should like to observe that it is most desirable that the statute law of British Guiana should provide that the unsworn evidence of a child given in a criminal case requires corroboration. This provision is contained in the proviso to s. 38 (1) of the Children and Young Persons Act, 1933, U.K. (see ARCHBOLD, 34th Edn., paragraph 1288), and has, in our experience, been adopted in most of the territories of the British Commonwealth.

5

Counsel further submitted that under s. 49 (1) of the same Ordinance, the judge should have determined whether the child knew that she ought to speak the truth. This sub-section reads as follows:

  • “49. (1) A witness is incompetent to give evidence if, in the opinion of the judge, he is prevented by extreme youth, disease affecting his mind, or any other cause of the same kind, from recollecting the matter on which he is to testify, from understanding, the questions put to him, from giving rational answers to these questions, or from knowing that he ought to speak the truth.”

6

Section 48 (the...

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