The Almighty Truth: SA Looks to Remove Religion from the Courtroom

Wednesday 20 April 2016 @ 2.13 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

The South Australian Law Reform Institute (SALRI) has made recommendations to the Attorney-General to remove references to religious deities in witness oaths and affirmations. After receiving submissions from lawyers, religious leaders and community members alike, SALRI released their final report in February 2016 following a request from the Honourable John Rau MP, the Attorney-General of South Australia, back in 2012.

The report makes 11 recommendations in total regarding witness oaths and affirmations, the second of which specifically states: 'That there should be prescribed a single form of non-religious affirmation or promise.' If the Attorney-General adopts these recommendations, then SA will be the first jurisdiction in Australia to remove the choice between a religious oath and a secular affirmation.

Current Laws Regarding Oaths

Presently, a witness can choose to take a religious oath, or a non-religious or secular affirmation when swearing to tell the truth as a witness in court. While the reference to religion in witness oaths has a long history, there are concerns regarding its legitimacy given the lack of religious validation used in other courtroom practices, the wide range of religions practised in Australia, and the over-complication of an already daunting legal process for witnesses.

As such, in line with the separation of religion and law, SALRI has recommended reducing these options to a single secular affirmation. This is despite a greater majority of submissions in favour of keeping the option for a religious oath, including submissions from the Archbishop and the Legal Services Commission, who among others argued that the current system is working and promotes a sense of 'personal responsibility.'

History of the Religious Oath

Currently section 6(1) of the Evidence Act 1929 (SA) requires that oaths be administered with the use of a Bible. Oaths also make reference to a religious deity. However, whether the witness taking the oath believes in that particular religious deity is irrelevant to the binding nature of the oath, as stipulated in section 6(2) of the Act.

Alternatively, a witness may make an affirmation, which does not reference religion and has the same binding affect to the truth as an oath. The reference to religion appears to be purely symbolic; the notion that there is a source of power above and beyond the courtroom that will punish the oath-maker should they betray their oath encourages faith in the system. However, this is arguably inconsistant with modern society which views the law as separate to religion and breaches of the law as attracting only legal consequences. It is generally accepted that making a religious oath does not mean that there is a greater chance of being told the truth.

Other Movements Away From Tradition

The movement away from religion is not the only indicator of change in the law governing witness evidence this year. Controversy was sparked in March 2016 when the High Court overruled a Court of Appeal decision regarding the unsworn evidence of a child. In the case of The Queen v GW [2016] HCA 6 the full court of the High Court set aside an earlier decision of the ACT Court of Appeal that had initially overturned a conviction based on the way the trial judge had directed the jury regarding the child witness' unsworn evidence. Under the Evidence Act 2011 (ACT) section 13(3) a person is not capable of giving sworn evidence if they cannot understand that they must tell the truth. They can however still give unsworn evidence, as was the case in this instance. The trial judge, Penfold J, did not warn the jury that the evidence was potentially unreliable because it was unsworn, despite requests from the prosecution for an explanation to the jury of the differences between sworn and unsworn evidence. The Court of Appeal claimed Penfold J had erred in not doing this, stating the Act gave 'primacy' to sworn evidence over unsworn evidence.

Surprisingly, the High Court disagreed with the Court of Appeal, overturning this decision on appeal. Rather, the High Court argued that the Act does not suggest unsworn evidence is unreliable simply because a witness does not have the capacity to understand that they must tell the truth, at least within the context of child witnesses. This is potentially a move away from the traditional notion that unsworn evidence bears less weight or on the reliablity of sworn evidence. Much like the push away from the religious oath, the laws governing witness statements are adapting as society changes its views on what it means to tell the truth.

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