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[1999] SASC 457
Supreme Court of SA
1999-10-28
Original judgment source is linked above.
For the reasons I have given the answer to this question must be no.
The inquiry is into the witnesses understanding of the obligation to be truthful not into the witnesses' religious beliefs.
8. If it is determined that the witness does not have the capacity to take the oath, is the witness then to be allowed to make an affirmation, and to affirm if it is determined that the witness has the capacity to affirm?
Any witness who does not wish to take an oath can, if the witness has the appropriate understanding in s9(1) make an affirmation. Subject to having the appropriate understanding the choice is for the witness.
The question as posed will not arise because there need not be an inquiry into the witness's capacity to take an oath rather than the capacity to give sworn evidence.
6(1) It is the same obligation as that for a witness over the age of ten years as described by King CJ in R v Whittingham (1988) 49 SASR 67 at 69 but without the legal sanction which would attach for a false statement.
(3) It is within the discretion of the Court to use a special form of wording for the non-statutory parts of the affirmation in appropriate cases.
R
CLIMAS
20 If such an enquiry was undertaken a further question arose as to the nature of any prerequisite to the taking of the oath. Did it require a belief in God and an appreciation of the significance of making a solemn promise to God to tell the truth as held in Schlaefer (at 438) or was it sufficient that the person swear in such a way as to bind his or her conscience as suggested by Perry J in R v Simmons [1997] SASC 6561; (1997) 68 SASR 81 at 85?
71 A similar result was arrived at in Spooner v Taylor [1926] SAStRp 46; [1926] SASR 396, a matter under appeal from a decision of a magistrate. It was argued on appeal that evidence of the principal witness for the prosecution, a young girl of ten, should not have been admitted because she said in cross examination that she knew that she had to tell the truth and that if she did not tell the truth she went to gaol. It was put on appeal that her answers in cross examination indicated her inability to comprehend the nature and quality of an oath.
If it does, in my opinion, the subject matter of the legislation deals with matters of procedure only; Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261.
(1992) 57 SASR 423
(1998) 71 SASR 265
(1988) 49 SASR 67
(1990) 169 CLR 515
(1988) 49 SASR 1
(1987) 46 SASR 275
(1997) 68 SASR 81
(1957) 96 CLR 261
(1998) 49 SASR 67