CRIMES (SEXUAL OFFENCES) ACT 2006 (NO 2 OF 2006) - SECT 25 Evidence of children and persons with a cognitive impairment

CRIMES (SEXUAL OFFENCES) ACT 2006 (NO 2 OF 2006) - SECT 25

    (1)     Insert the following heading to section 23 of the Evidence Act 1958 —

"Evidence of children and persons with a cognitive impairment" .

    (2)     For section 23(1) of the Evidence Act 1958 substitute —

    "(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 sub-section (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)—

s. 25

        (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.".

    (3)     In section 23(2) of the Evidence Act 1958 , for "person with impaired mental functioning or under the age of 14" substitute "child or a person with a cognitive impairment".

    (4)     In section 23(2A) of the Evidence Act 1958 , for "people with impaired mental functioning or children" substitute "children or persons with a cognitive impairment".