The effect of sworn testimony vs. merely "telling the truth" in the context of child evidence
By Ms Rhea Greatale Binti Mohd Yusof
Usman & Partners' Intern (March 2023)
6th March 2023
In Malaysia, providing sworn testimony as evidence is an essential part of the judicial process to establish the facts of a case. A sworn statement (or, as the case may be, a sworn testimony) is different from a simple statement of truth because the former carries a legal obligation while the latter (i.e. ‘merely telling the truth’)' is stating facts that the witness believes to be true, without taking an oath.
The Evidence Act 1950 and the Oaths and Affirmations Act 1949 govern how sworn testimony is used as evidence in Malaysia. Under section 6(1)(a) of the Oaths and Affirmations Act, a witness who testifies in court must take an oath or affirmation, swearing to tell the truth. They are also reminded of the importance of the situation and their duty to tell the truth. This then becomes part of their evidence in court. They may also be cross-examined, re-examined or subjected to examination-in-chief under Section 137 of the Evidence Act if necessary.
In the case of child witnesses, this is provided for in both section 119 and section 133A of the Evidence Act. Section 119 provides that the witness shall not be able to give evidence if he is incompetent by reason of tender age, advanced age or physical or mental diseases. In addition, section 133A provides that a child of tender age who is called as a witness and who, in the opinion of the court, does not understand the nature of the oath, may still give evidence and the court may receive the child's statements but such evidence must be supported with other significant evidence from other witnesses. The child's testimony may be admitted only if the child has sufficient intelligence to warrant the admission of the testimony and understands the duty to tell the truth.
In order to decide whether a child should properly be sworn, the court in R v Hayes  64 Cr App R 194 held that the child must sufficiently understand the seriousness of the occasion and the responsibility to tell the truth. In the aforesaid case, it was also said that the obligation to take an oath supersedes the obligation to tell the truth which is an ordinary duty of social conduct. This case was cited with approval in Yusaini bin Mat Adam v PP  3 MLJ 582. Therefore, the ‘duty to tell the truth’ is different from the ‘duty to understand the oath’. In other words, if the child understands the duty to swear (i.e. to make a statement with legal consequences), he can testify under oath. Otherwise, his testimony should not be sworn and the court should ask the child to merely tell the truth without requiring him to take an oath.
In other words, if the child understands the duty to swear (i.e. to make a statement with legal consequences), he can testify under oath. Otherwise, his testimony should not be sworn and the court should ask the child to merely tell the truth without requiring him to take an oath.
In summary, sworn testimony creates a legal obligation to tell the truth, which enhances the credibility and weight of the proffered testimony. It also reminds witnesses of the seriousness of the situation and reduces the possibility of dishonesty or concealment of information.