Reform needed for courtroom witness oaths

Tuesday, 2 February 2016

Swearing to tell the truth "so help me God" while holding a copy of the Bible would become a thing of the past for witnesses in South Australia's courts if the recommendations of a new report are adopted.

The University of Adelaide’s South Australian Law Reform Institute will today officially hand over its final report to the State Attorney-General on witness oaths and affirmations.

The Institute was asked to investigate current courtroom and tribunal practices for witness oaths and affirmations, and make recommendations for improvement.

The final report - co-authored by retired South Australian Supreme Court Justice and Adjunct Professor The Hon. David Bleby QC, with Professor John Williams, Dean of the University of Adelaide Law School and Director of the South Australian Law Reform Institute - took into consideration a range of submissions from multicultural groups, judicial officers, religious leaders, lawyers and members of the community.

The 11 recommendations in the report include:
• a single form of witness promise be adopted for use in South Australia (currently there are multiple options available);
• the promise to tell the truth to be in the form of a question, not a phrase recited by the witness;
• it should be in plain English, with clear warnings about the penalties for not telling the truth;
• the promise should be non-religious in nature; and
• that the legal ritual be prescribed in law.

"There are some key opportunities here for legal reform, especially the need to adopt a single form of witness promise that is clearly understood by and is relevant to all witnesses," says Professor Williams.

"While we realise the recommendation to abolish a religious oath may be controversial, the recognition and respect that should be afforded to people of faith is not diminished by this proposed reform. We believe that personal faith is not challenged by a simple and solemn public promise to tell the truth in the court.

"The reality today is that many witnesses in court are either not religious, or they are not affiliated with a Christian religion, and therefore a religious-based oath has little or no meaning for them. Religious affiliation itself also does not necessarily represent a commitment to tell the truth in court. The penalties for lying to the court should be clearly stated as legal penalties, not penalties associated with a particular deity. Although a secular affirmation has been available as an alternative, some witnesses are confused by the choice or have difficulty in understanding the language," Professor Williams says.

If this recommendation is adopted, South Australia would become the first legal jurisdiction in the nation to have a single, non-religious witness promise.

Attorney-General John Rau said he looked forward to receiving the final report on oaths and affirmations from the South Australian Law Reform Institute.

"The Institute continues to provide insightful advice on matters of legislative reform, and we will give all of its recommendations due consideration," Mr Rau said.

The report can be found here.

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