Witnesses

Question 1

What is the general rule as to competence?

Answer 1

all persons, whatever their age, are competent to give evidence

Question 2

what is the test for determining incompetence in children/people with disability

Answer 2

1 - are they able to understand the question
2 - can they give understandable answers

Question 3

who is always incompetent to give evidence for prosecution

Answer 3

Defendant/co-defendants

Question 4

What is the general rule as to compellability

Answer 4

generally all witnessess are compellablet

Question 5

what are the four categories of exception to compellability

Answer 5

1 - accused not compellable witness for themselves or co-accused
2 - accused CP or spouse is not compellable unless DV, child abuse, peadophile or attempts
3 - sovereign, head of state, diplomats
4 - bankers

Question 6

when may a co-accussed give evidence for prosecution

Answer 6

where they cease to be co-accused
either by acquittal/separate trial
pleads guilty

Question 7

what are the rules surrounding competence/compellability of an accused for the defence

Answer 7

competent at all stages of litigation (inc post conviction) - not compellable - can only be called by own applicaiton

Question 8

can spouse be compelled to give evidence for the accused

Answer 8

yesh

Question 9

how is the test for competency applied?

Answer 9

purely through understandibility - need not understand every question or the importance of telling the truth
cannot be decided purely on basis of age - person specific

Question 10

what is the test for competency to give sworn evidence

Answer 10

14yo and has sufficient appreciation of solemnity of the occasion and responsibility to tell the truth
if witness gives intelligible testimony then deemed to have understood solemnity if no evidence to contrary is adduced

Question 11

when is oath required/not required

Answer 11

before giving evidence in any court witness must be sworn
if not permitted to be sworn can still give evidence but cant be cross examined
witness called for producing document need not be sworn
if given video evidence must be sworn prior to XX
no verdict shall be deemed unsafe due to unsworn evidence

Question 12

when should a witness summons be used

Answer 12

to secure attendance of anyone who is likely to be able to give material evidence and it is in the interest of justice

Question 13

what is consequence of failing to respond to summons

Answer 13

warrant for arrest can be issued if likely that material evidence can be given, witness had reasonable time and resources given to attend, no ust cause to not do so
can be served on inidivdual by handing it to them or posting it 1st class to place where they could be expected to receive it

Question 14

who is responsible to secure attendance of witnesses

Answer 14

the party who has called them
can be done by applying for summons - can apply to in person attendance/production of document

Question 15

what is maximum penalty for contempt of court proceedings

Answer 15

3 months

Question 16

is arrest warrant required to commence contempt proceedings

Answer 16

no

Question 17

what is just cause for failure to attend?

Answer 17

will not be construed lightly - cant just forget

Question 18

what are the exceptions to the general rule on inadmissibilty of opinion evidence

Answer 18

non-expert - any matter not calling for expertise if made by witness as a way of conveying percevied facts
expert - statement of opinion on any relevant matter if qualified - cna be assisted by animations/reconstructin
it is for the party proferring evidence to prove admisisble

Question 19

non-expert may give opinion on a matter not calling for expertise - e.g

Answer 19

identification of an object
handwriting
voice
age
general appearance

Question 20

in what cases might statute require certain level of expert to be instructed?

Answer 20

jury shall not acquit on grounds of insanity unless 2 practitioners instructed and at least 1 is approved by SoS as having special experience
doctor not nurse needed to establish cause of injury

Question 21

where do experts derive expertise from

Answer 21

qualification or experience

Question 22

when can expert evidence be called

Answer 22

when expertise called for that a lay person could not be expected to possess sufficient degree of understanding on - if tribunal of fact can reach own decision then expert evidence inadmissible
always some extreme examples - e.g assessig childhood memory - amnesia experienced between ages 7-10
complainant counsellers can be called on sexual offence cases
evidence relating to call logs relatively inexpert but expert may be needed to explain process /particular locations

Question 23

what can an expert NOT give an opinion on

Answer 23

ultimate issues - e.g did D cause death by dangerous driving

Question 24

what is a certified expert?

Answer 24

any expert can apply to be certified through Expert Witness Institute and undertake to carry out competency checks, report writing and professional development

Question 25

how should a jury treat expert evidence

Answer 25

critically and cautiously - look at it in context, only accept unequivocally whif leads to contextual correct conclusion

Question 26

what are the general principles of privilege?

Answer 26

1 - person entitled to claim privilege can refuse to answer questions or produce documents 2 - if person entitled to privilege waives it explicitly or by conduct - no one else may object 3 - a party seeking to prove something which is protected by privilege may prove it by other means 4 - no inferences can be drawn against withholding info for privilege 5 - privilege must fall within domestic law

Question 27

what is the scope of privilege againsr self-incrimination

Answer 27

accused may refuse to answer a question if answering would tend to self-incrimination does not extend beyond the accused e.g spouse no privilege against incriminating strangers company may claim privilege but this does not extend to office holders

Question 28

what are the types of legal privilege

Answer 28

litigaiton privilege - made in course of litigation for purpose of enabling legal advice for matter in which proceedings contemplated legal advice privilege - advice given to client whether or not proceedings contemplated extends to things attached to that correspendence does not apply to things given by third party to lawyer for purposes of advice

Question 29

who is a legal professional for purposes of legal privilege

Answer 29

solicitor, barrister, foreign lawyer acting as lawyer in country

Question 30

what does legal privilege no cover?

Answer 30

records of time spent with client - attendence notes, time sheets, appointments as they are not comms with client

Question 31

what may a solicitor/barrister be compelled to give evidence on?

Answer 31

facts arising from relationship - e.g identity of client, clients handwriting, mental capacity

Question 32

when may direction be given to overrule privilege?

Answer 32

where public interest of providing all evidence which may support defence outweighed public interest of keeping client/pro comms private (in this case D had been acquitted and new proceedings commenced for Ds father)

Question 33

how is privilege waived and to what extent

Answer 33

documents may be disclosed for limited purpose without waiving entire privilege however if voluntarily disclosed - seems privilege waived stating that they acted on advice to give no comment interview does not waive privilege

Question 34

can a judge order handing over of special material material notwithstanding that it would tend to incriminate the subject of the order?

Answer 34

can do that when investigating indictable offence excludes privileged material

Question 35

examples of where expert evidence may be permitted where something within knowledge of jurors (4)

Answer 35

age telephone log - location triangulation memory - childhood amnesia video evidence - technician who slows it down and compares it to other stills

Question 36

list some expert areas

Answer 36

ballistics blood firearms forgeries fingerprints facial ID reverse projeciton gangs child sexual abuse shaken baby syndrome sudden infant death competence of pmedical practitioner diminished responsibility automatism