[stealing – evidence, by child – oath, nature of]

R. v. Roach

Supreme Court of Van Diemen’s Land

Montagu J., 7 July 1841

Source: Launceston Advertiser, 8 July 1841[1]

            Cornelius Roach was charged with stealing from the person of Valentine Parish, a gun of the value of 40s., the said Valentine Parish being put in bodily fear.

Mr. Rocher appeared for the prisoner.

Valentine Parish, a youth about 13 years of age, was called and questioned by the Attorney-General as to the nature of an oath, of which he was quite ignorant; he did not go to church; but knew the Lord’s Prayer and Belief, and also knew the consequences of false swearing.

His Honor said, he could not have the witness sworn, as he did not understand the nature of an oath.

Attorney-General. - I am sure your Honor, there are some on that Jury who would find it a matter of difficulty to explain the nature of an oath.

His Honor. - I hope not, Mr. Attorney-General, I cannot predicate any thing of the kind.

Attorney-General. - Your Honor, it is an abstract question, and with all possible respect for the gentlemen of the jury, I am sure some of them would not be able to explain the nature of an oath, although they perfectly understand the consequences of perjuring themselves.

His Honor. - If so, it is high time we had a jury of another kind, but I cannot Mr. Attorney-General indicate anything of the kind. His Honor then at some length entered upon the subject, and after explaining to the jury that he was bound to reject the testimony of the witness, unless he could conscientiously believe that he perfectly understood the nature of an oath, declined swearing him, and the prisoner was consequently discharged.

His Honor remarked that he should much wish to see some law introduced into the colony by which the evidence of children might be taken without putting them on their oaths, but such not being the case, and the witness distinctly stating that he had no knowledge of what constituted an oath, he had no alternative but to direct the jury to acquit the prisoner.

A verdict of Not Guilty, was then recorded.

Notes