JOSEPH MELVILLE Vs. KING

JUDGEMENT

(1.) This is an appeal in forma pauperis by special leave from a decision of the Court of Criminal Appeal of Trinidad and Tobago, on a question of law reserved for the opinion of the Court by the trial Judge in a case of murder. The appellant, who is an adult, was indicted before Mr. Justice Smith in the Supreme Court of Trinidad and Tobago for the murder of a boy of between 7 and 8 years of age. He was convicted by the jury and sentenced to death, subject to the determination of a question of law raised by way of Case Stated by the trial Judge for the opinion of the Court of Criminal Appeal of the Colony. The point of law is whether the unsworn evidence of two children, one of 9 or 10 years of age and the other of 11 years of age, was rightly received at the trial. Mr. Justice Smith, while of opinion that the two children possessed sufficient intelligence to justify the reception of the evidence and sufficient understanding to realise the duty of speaking the truth, considered that they did not understand the nature of an oath and they testified unsworn. He took the view that their unsworn testimony was admissible under the authority contained in S.19 of the Children Ordinance of Trinidad and Tobago (Revised Ordinance, 1940; Ch. 4, No. 21).

(2.) The Court of Criminal Appeal in Trinidad decided that the evidence was rightly admitted under the authority conferred by the section, which authorises, in certain classes of offences therein referred to, the reception of unsworn evidence from a child of tender years if the child is considered by the Court to be possessed of sufficient intelligence and of an understanding of the duty of speaking the truth even though the child does not understand the nature of an oath. The whole question now to be decided is whether, when the offence charged is the murder of a child by an adult, this section applies. Section 19 of the Children Ordinance enacts as follows: "19. Where, in any proceeding against any person for an offence under this Part of this Ordinance, or for any of the offences mentioned in the Schedule hereto, the child in respect of whom the offence is charged to have been committed, or any other child of tender years who is tendered as a witness, does not in the opinion of the Court understand the nature of an oath, the evidence of that child may be received though not given upon oath, if, in the opinion of the Court, the child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth ;..."

(3.) There follow provisos requiring that there must be corroboration before a person is liable to be convicted under the testimony thus admitted, and providing for the punishment of an unsworn child witness who wilfully gives false evidence. The offences included in the Part of the Ordinance referred to do not include murder, and the question therefore comes down to this: Is murder, or at any rate murder of a child, an offence mentioned in the Schedule to the Ordinance ? The Schedule runs as follows: "Any offence under Ss. 25, 49 or 55 of the Offences against the Person Ordinance, and any offence against a child or young person under Ss. 6, 36 to 42 inclusive, 46 or 62 of that Ordinance, or under Ss. 4 or 5 of the Summary Offences Ordinance. Any other offence involving bodily injury to a child or young person."