Victorian Consolidated Legislation

Evidence Act 1958 - SECT 23

Evidence of children and persons with a cognitive impairment

23. Evidence of children and persons with a cognitive impairment







(1) Subject to this section, a child or a person with a cognitive impairment
is competent and compellable to give evidence.





(1A) A child or a person with a cognitive impairment is competent to give
sworn evidence only if he or she is capable of understanding that, in giving
evidence, he or she is under an obligation to give truthful evidence.

(1B) Subject to subsection (1C), a child or a person with a cognitive
impairment who is not competent to give sworn evidence is competent to give
unsworn evidence only if he or she is capable of understanding, and of giving
an answer that can be understood to, a question that is put to him or her.

(1C) If a child or a person with a cognitive impairment is not capable of
understanding, and of giving an answer that can be understood to, a question
that is put to him or her, that child or person is not competent to give
evidence about the fact to which that question relates, but may be competent
to give evidence about another fact that relates to a question which the child
or person is capable of understanding and of giving to it an answer that can
be understood.

(1D) If a child or a person with a cognitive impairment is competent to give
evidence, the court must, before the evidence is given, explain to the child
or person in the absence of the jury (if any)-

   (a)  the importance of telling the truth and of not telling lies; and

   (b)  that he or she may be asked questions that he or she does not know, or
        cannot remember, the answer to, and that he or she should let the
        court know if this occurs; and





   (c)  that he or she may be asked questions that make suggestions that are
        true or untrue and that he or she should agree with the statements
        that are true and should not feel pressured to agree with statements
        that he or she believes are untrue.

(2) The competency of a child or a person with a cognitive impairment to give
evidence must be determined in the absence of the jury.





(2A) On the trial of a person for an offence, the judge must not warn, or
suggest in any way to, the jury that the law regards children or persons with
a cognitive impairment as an unreliable class of witness.

(2B) Nothing in subsection (2A) prevents a judge from making any comment on
evidence given in the proceeding that it is appropriate to make in the
interests of justice.

(3) If any person whose evidence is received by virtue of this section gives
false evidence in such circumstances that he would if the evidence had been
given on oath, have been guilty of perjury he shall be guilty of an indictable
offence.

(4) Nothing in this section shall limit or affect the provisions of the
Crimes Act 1958 as to the reception of evidence not on oath.

(5) Nothing in this section shall limit or affect the operation of section 102
of this Act.



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