Evidence given to courts is divided into sworn evidence and unsworn evidence. Sworn evidence is given when someone takes an oath or makes an affirmation before giving evidence [s 4 Evidence Act 1929 (SA)]. Unsworn evidence is evidence that is given without the obligation of an oath first being taken or an affirmation being made.
Children are able to give sworn evidence to a court, if they have a sufficient understanding of the obligation to be truthful involved in giving such sworn evidence. Even if a child cannot give sworn evidence that child may be allowed to give unsworn evidence. To give unsworn evidence a person must have a proper understanding of the difference between the truth and a lie, understand the importance of telling the truth and say to the Court that they will tell the truth when they give their evidence.
To give sworn evidence the person must have the understanding needed to give unsworn evidence but in addition must understand that in giving sworn evidence they acknowledge and accept the solemnity of taking an oath/ making an affirmation and the moral and/or legal sanctions that would follow if they fail to comply with the promise to tell the truth [s 9(1) Evidence Act 1929 (SA)].
Where unsworn evidence is given the judge must tell the jury the reason why the evidence was unsworn as opposed to sworn evidence and would almost always be required to warn the jury that they need to be cautious in deciding whether to accept it [s 9(4) Evidence Act 1929 (SA)].
Section 9 of the Act does not apply to a statement made outside of court admitted as evidence under an exception to the rule against hearsay at common law or under the Act.
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