XN000022-1995-07-19 — Page 71

-

46

I will move an amendment to Section 79F to further safeguard the interests of the defendant by requiring the Crown Prosecutor to set out in an affidavit the reasons for his opinion as to the prejudice to the welfare of the witness if the case is not committed for trial without delay. Necessarily, he will have to consult experts such as medical officers, psychologists or social workers before he forms his own opinion. Mr President, this power is not to be delegated but will be exercised with great prudence by the Crown Prosecutor personally.

Whilst the Administration is committed to providing greater protection to the vulnerable witnesses, the defendant's right to a fair trial is not in any way prejudiced. The burden of proof still rests with the Prosecution and the standard of proof remains one of proof beyond reasonable doubt. Apart from the safeguards provided in the Bill, I will also propose amendments to Sections 79C and 79E by giving a mentally handicapped defendant an option to produce the video recorded evidence in court, as well as to give a deposition in writing before a magistrate. The purpose of these amendments is to preserve the defendant's right of silence.

Mr President, with your leave I now turn to the Evidence (Amendment) Bill 1995. I would like to respond to the arguments put forward this morning by the Hon Martin Lee and the Hon Simon Ip, arguments raised by the Bar Association against Clause 2 of the Bill. The Bill proposes to remove two technical rules in relation to children giving evidence in criminal proceedings, that is the presumption of incompetence and the rule of corroboration. These two rules are I would submit outdated and I would note that they were abolished in England in 1988.

Under the existing Section 3(a) of the Evidence Ordinance, children under 7 years of age are generally incompetent to give evidence unless the court is satisfied that they appear capable of receiving just impression of the facts respecting which they are examined and of relating them truly. What that means is that if a child witness fails to satisfy the court that he or she can give credible evidence at trial, the child is barred from giving evidence against the defendant.

The Committee on the Evidence of Children in Criminal Proceedings found that tests as to competence of child witnesses could be arbitrary and that this technical rule of evidence was unjustified. A key recommendation of the Committee is that children should be treated in the same way as adults. At present, there is no such competency test for adult witnesses. Accordingly, the power of a court to determine that a particular witness is not competent to give evidence should apply to children as it applies to other persons. The Court should be able to consider any relevant understandable evidence from a child, and to convict upon it if convinced by it. Like adults, children of all ages should be enabled to give evidence in court without first being tested by the magistrate or the judge.