Competence And Compellability; Is Child Evidence Admissible

Abstract

Determination of lawsuits is highly dependent on these availability of evidence. In law, every person is a competent witness in any judicial proceeding unless otherwise prevented by the law. And every compellable witness is a competent witness as the court will not compel anyone to give evidence, if he is incompetent to do so. However, it is not every competent witness that is compellable in court. Competence does not imply ‘reliable,’ thus a witness may legally speaking not be able to give evidence for several reasons.

For example, the witness may be a child who is too young that he/she cannot understand the questions put to him or give rational answers to them. Compellability on the other hands deals with the question whether as a matter of law, witnesses can be obliged to give evidence when they do not wish to do so but there are some circumstances in which competent witnesses cannot be obliged to give evidence against their will. This long essay therefore aims at analyzing the competency and compellability of a child to give evidence as a witness with respect to how it affects availability and admissibility of evidence.

Chapter one of the long essay which is introductory explains the objectives, focus, extent and limitation of the study as well as the methodology employed in carrying out the research.
Chapter two gives an insight as to the elements of the topic by explaining what Competency and Compellability of a witness imply.
In chapter three the long essay considers who a child is in law and the conditions for the admissibility of his testimonies.
While chapter four sheds light on issues relating to compellability of a child witness and the effect of compelling an incompetent child witness.
Lastly, chapter five summarizes the findings of the research and made far reaching recommendations were offered as a forward It is strongly believed that if recommendations made herein are taken seriously and reflected in proposed amendment to the Act, the would go along way in improving the state of the law in that direction.

Chapter Five

General Conclusion

5.0.0 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 selfcorroboration. 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.

A harm to children who testify as witnesses. Our law leaves our children who testify in court unprotected psychologically. In some jurisdictions, strategies have been adopted to minimize the effect of fright and distress on children who testify in courts especially in criminal cases. In England, the Department Committee on Offences against Children and Young Persons had cause to observe:

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 .

5.1.0 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.

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