Witnesses - competence and compellability

Question 1

What is the rule re competence and compellability?

Answer 1

Rebuttable presumption that every person is competent to give evidence (s12(a), and that every competent person is compellable (s12(b)).

Question 2

Questions to consider re witnesses

Answer 2

• IS THE WITNESS COMPETENT?
• IF YES, ARE THEY COMPELLABLE?
• IF YES, DO THEY HAVE A PRIVILEGE THAT WOULD STOP THEM FROM GIVING A PARTICULAR EVIDENCE?

Question 3

Types of witnesses

Answer 3

1. COMPETENT TO GIVE SWORN EVIDENCE,
2. COMPETENT TO GIVE UNSWORN EVIDENCE,
3. NOT COMPETENT TO GIVE EVIDENCE

Question 4

How can the presumption of capacity be rebutted?

Answer 4

the presumption of capacity can be rebutted per s13(1) –
a. Does the person have the capacity to understand a question about the fact?
b. Does the person have the capacity to give an answer that can be understood to a question about the fact?

Question 5

Can lack of capacity be overcome?

Answer 5

ss30 and 31 (interpreters and deaf and mute witnesses)

Question 6

When is a witness not competent to give sworn evidence?

Answer 6

• A person who is competent about a fact is not competent to give sworn evidence if they do not understand that they are under an obligation to give truthful evidence.

Question 7

When can a witness give unsworn evidence?

Answer 7

A court must first find a witness incompetent to give sworn evidence (in accordance with 13(3)) before complying with the requirements of s13(5) to permit the witness to give unsworn evidence

Question 8

Matters that the court must tell a W who is competent to give unworn evidence?

Answer 8

o It is important to tell the truth; and
o He or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this happens; and
o He or she may be asked questions that suggest certain statements are true or untrue, and
o That he or she should agree with the statements which he or she believes are true and should feel no pressure to agree with the statements which he or she believes are untrue (s13(4) and 13(5)).

Question 9

When does the court consider questions re competence and compellability?

Answer 9

• Question of competence and compellability to be decided by voir dire (s189(1)(c)).

Question 10

What does the court consider when considering questions of competence and compellability?

Answer 10

• In determining, may draw on expert evidence (s13(8)) – court can ‘inform itself as it thinks fit’ to determine a question about competence.

Question 11

Is an accused competent to give evidence?

Answer 11

NO
* An accused is not competent to give evidence as a witness for the prosecution (s17(2)).

Question 12

What is the rule for compellability of spouses?

Answer 12

• A spouse/de facto partner/parent or child of accused may object to giving evidence as a witness for the prosecution (s18(2)).

Question 13

When is a spouse not compelled to give evidence?

Answer 13

o There is a likelihood that harm would or might be caused to the person, or to the relationship between the person and the accused, if the person gives the evidence; and
o The nature and extent of that harm outweighs the desirability of having the evidence given.

Question 14

Compellability of spouses - how does the court consider whether harm outweighs the desarabililty of the evidence

Answer 14

s18(7)
o The nature and gravity of the offence for which the accused is being prosecuted;
o The substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;
o Whether any other evidence concerning the matters to which the evidence of the person would relate I reasonable available to the prosecutor;
o The nature of the relationship between the accused and the person;
o Whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the accused.

Question 15

JDA and accused not giving evidence - s41 JDA

Answer 15

• Per s41 JDA, if accused does not give evidence or call a particular witness, defence counsel may request under s12 that the trial judge direct the jury on that fact. Judge must explain:
  o Prosecution’s obligation to prove the accused is guilty;
  o Accused is not required to give evidence/call a witness;
  o Jury should not speculate about what might have been contained in any missing evidence;
  o Fact that the accused did not give evidence or call a witness is not evidence against the accused/not an admission/must not be used to fill gaps/does not strengthen the prosecution case.

Question 16

S42 JDA

Answer 16

• Per s42 JDA, the trial judge, the prosecution and defence counsel must not suggest in any way to the jury that because an accused did not give evidence or call a particular witness the jury may:
  o Conclude that the accused is guilty from that fact; or
  o Use the failure to provide an explanation of facts which must be within the knowledge of the accused;
  o Draw an inference that the accused did not give evidence or call a witness because that would not have assisted his or her case.

Question 17

S43 JDA

Answer 17

• Per s43 JDA, if the prosecution does not call a witness, defence counsel may request under s 12 that the judge direction jury on that fact. Can only do so if the trial judge is satisfied that the prosecution:
  o Was reasonably expected to call or question the witness; and
  o Has not satisfactorily explained why it did not call or question the witness.