12. Preliminary issues relating to Witnesses

Question 1

what does competent mean?

Answer 1

if witness may be lawfully called to testify

Question 2

what does compellable mean?

Answer 2

if competent witness can be lawfully compelled by the court to testify

Question 3

how can witness attendance be secured?

Answer 3

witness order or witness summons

Question 4

general rule - competence

Answer 4

all persons whatever their age are competent

Question 5

exceptions to competence general rule?

Answer 5

not competent if:
* unable to understand questions or give understandable answers
* accused not competent to give ev for pros

Question 6

general rule compellability?

Answer 6

all competent witnesses are compellable

Question 7

4 exceptions to general compellability rule?

Answer 7

• accused not compellable for def/co-accused
• accused spouse/civil partner in most cases not compellable for pros or co-accused
• heads of sovereign states/diplomats
• bankers.

Question 8

rule about the accused as a witness for pros?

Answer 8

accused not competent to give evidence for prosecution.

Unless accused has pleaded guilty - then they are competent for prosecution.

Question 9

accused as witness for defence?

Answer 9

they are competent at all stages for defence. But accused is not compellable.

Question 10

general rule about spouses and civil partners?

Answer 10

competent and compellable for defence always

competent and compellable to give evidence for co-accused but only in respect and for pros but ONLY for specified offence.

specified offence =
- assault to spouse/cp or U16
- sexual offence against children

Question 11

are ex-spouses/civil partners compellable?

Answer 11

yes

Question 12

general rule - oaths/affirmations

Answer 12

witness must take oath or affirmation

Question 12

propositions for assessing competence?

Answer 12

• fact specific
• no presumptions
• witness does not need to understand all questions nor importance of truth in court

Question 12

test for competence?

Answer 12

can understand questions put to them AND can give answers that can be understood.

Question 13

when can a witness be sworn?

Answer 13

aged 14 or above AND
sufficient appreciation of solemnity of occassion and responsibility to tell truth.

if witness competent - assumed to have requirements to be sworn unless evidence to show otherwise.

Question 14

who has to prove witness can be sworn?

Answer 14

person seeking to have witness sworn must prove on balance of probs that 2 conditions are satisfied.

jury absent

Question 15

what happens if person is competent but not permitted to be sworn

Answer 15

give evidence unsworn

Question 16

when can mags issue witness summons?

Answer 16

• person is likely to be able to give/produce material evidence AND
• in ints of justice to issue summons to secure attendance

Question 17

when can mags issue arrest warrant?

Answer 17

if satisfied by evidence on oath that it is probable summons would not procure witness - can issue arrest arrant instead

Question 18

what can court do if summoned person fails to attend?

Answer 18

issue arrest warrant

Question 19

when issuing arrest warrant for summoned person failure to attend - what must be satisfied?

Answer 19

MUST be satisfied that:
- witness likely to give / produce material evidence
- witness has been duly served with summons and paid for costs & expenses
- no just excuse for FTA

Question 20

whos responsibility is it to secure witness attendance?

Answer 20

police for pros witnesses
defence sol for defence witnesses

Question 21

punishment for witness failure to attend

Answer 21

if without just excuse disobeys witness order or sumomons - guilty of contempt of court

may be summarily punished for contempt of court.