Evidence (Special Provisions)

Link to law: http://www.lawnet.lk/process.php?st=1999Y0V0C32A&hword=%27%27&path=2
Published: 1999

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Evidence (Special Provisions)
Evidence (Special Provisions)




AN ACT TO MAKE PROVISION FOR A COURT TO RECEIVE EVIDENCE OF A CHILD WITHOUT CAUSING AN OATH OR AN AFFIRMATION TO BE ADMINISTERED TO SUCH CHILD ; AND TO AMEND THE EVIDENCE ORDINANCE








BE it enacted by the Parliament of the Democratic Socialist Republic of Sri Lanka as follows :-



[7th October

, 1999 ]













Short title.



1. This Act may be cited as the Evidence (Special Provisions) Act, No. 32 of 1999.
PART I



Child to testify without causing an oath or affirmation to be administered .



2.





(1) Where a court is satisfied that a child is competent, as required by the Evidence Ordinance, to testify in any proceedings but is not able to understand the nature of an oath or an affirmation, the court may receive the evidence of administered such child without causing an oath or an affirmation to be administered to such child, and any unsworn testimony given by such child in such proceeding shall be deemed not to be inadmissible by reason only of the fact that such testimony was not given on oath or affirmation and the proceeding in which such testimony was given shall not be invalidated by reason only of the tact that such testimony was not given on oath or affirmation.



(2) Where a child is permitted, under subsection (1), to testify without taking an oath or making an affirmation, the child shall be bound to stale the truth on all matters to which his testimony relates, and the court shall explain this to the child.



PART II



Insertion of new section 38A in Chapter 14.



3. The following new section is hereby inserted immediately after section 38 of the Evidence Ordinance (hereinafter in this Part referred to as the principal enactment") and shall have effect as section 38A of the enactment:-







"Statement as to age in a certificate of a Medical Practitioner when relevant.



38 A (1) Where a court is required to form an opinion as to the age of a person, a statement in a certificate purporting to be issued by a Medical Practitioner as to the probable age of such person is relevant. (2) In this section, "Medical Practitioner" means a Medical Practitioner registered under the Medical Ordinance.'.



Insertion of new section 163A in the principal enactment.



4. The following new section is hereby inserted immediately after section 163 and shall have effect as section 163A of the principal enactment:"







'Video recorded interview with a child may be given in evidence.



163A





(1) In any proceedings for an offence relating to child abuse a video recording of a preliminary interview which-





(a) is conducted between an adult and a child who is not the accused in such proceeding (hereinafter referred to in this section as "a child witness"); and



(b) relates to any matter in issue in those proceedings,



may notwithstanding the provisions of any other law with the leave of the court, be given in evidence in so far as it is not excluded by court under subsection (2).



(2) Where a video recording is tendered in evidence in any proceedings referred to in subsection (1) the court shall give leave under that subsection unless-





(a) it appears to court, that the child witness will not be available for cross examination in such proceedings ; or



(b) any rules of court requiring the disclosure of the circumstances in which the video recording was made have not been complied with to the satisfaction of the court.



(3) Where a video recording is given in evidence under this section-





(a) the child witness shall be called by the party who tendered the video recording in evidence ;



(b) such child witness shall not be examined in chief on any matter which in the opinion of the court, has been dealt with in his recorded testimony.



(4) Where a video recording is given in evidence under this section any statement made by the child witness which is disclosed by the video recording shall be treated as if given by that child witness in direct oral testimony and accordingly, any such statement shall be admissible evidence of any fact of which direct oral testimony from him would be admissible.



(5) Where the child witness, in the course of his direct oral testimony before court, contradicts, either expressly or by necessary implication, any statement previously made by him and disclosed by the video recording, it shall be lawful for the presiding judge, if he considers it safe and just in all the circumstances of the case, to act upon such previous statement as disclosed by the video recording, if such previous statement is corroborated in material particulars by evidence from an independent source, for the purpose of this section-





(a) "an offence relating to child abuse" means offence under section 286A, 308A, 360A, 360B,360C, 363, 364A, 365, 365A, or 365B of the penal code when committed in relation to a child;



(b) "child" means a person under eighteen years of age, at the time when the preliminary interview is video recorded;



(c) "video recording" means any recording in any medium from which a moving image may by any means be produced and include the accompanying sound track.



Sinhala text to prevail in case of in consistency.



5. In the event of any inconsistency between the Sinhala and Tamil texts to this of this Act , the Sinhala text shall prevail.