12: Issues relating to Witnesses Flashcards
How to secure attendance of a witness?:
Securing attendance of witness by :
- Witness order; or
- Witness summons
Who is competent?
Competence = ALL persons (whatever ages) are competent to give evidence
Competence = ALL persons (whatever ages) are competent to give evidence
EXCEPTION:
- If unable to understand questions put to him as witness; and
- Give answers which can be understood.
Who MAY be incompetent?
Children + persons with disability MAY be incompetent.
Who is NOT competent as a witness for the prosecution?
D is NOT competent as witness for pros!
Compellability = A competent witness is compellable. EXCEPTION:
- D is not compellable witness for D (i.e. himself or co-accused);
- D’s spouse/ civil partner NOT compellable for either pros or co-accused
- Bankers not compellable
PROCEDURE
Competence of witness should be determined WHEN?
begin of trial absence of jury.
PROCEDURE
Who may raise the issue of competence?
Competence MAY be raised by either party or court
PROCEDURE
Party calling witness MUST satisfy on WHAT BURDEN OF PROOF?
Party calling witness MUST satisfy on balance of probability that witness = competent.
PROCEDURE
Questioning of witness who is it conducted in the presence of?
Questioning of witness = conducted by court in presence of parties.
Parties MAY call expert evidence.
Children + disability people
COMPETENCE =
All people competence but NOT:
- If person unable to understand questions put to him; and
- Give answers which can be understood.
This applies to ALL witnesses. No requirement witness knows of this statute. Person with no recollection of event MAY still be competent.
- No presumptions as to competence
- Witness doesn’t need to understand every question
MUST be able to answer questions by Pros + Def. Not discretionary, but a judgment making.
Accused
WITNESS FOR PROSECUTION
Competence?
D not competent as witness for Pros. A co-accused MAY give evidence for pros if he ceases to be co-accused.
Accused
WITNESS FOR PROSECUTION
Competence: D not competent as witness for Pros. A co-accused MAY give evidence for pros if he ceases to be co-accused. Accused is competent to give evidence for pros:
- On pleading guilty;
- On acquittal
- Where separate trials ordered.
Accused
WITNESS FOR HIMSELF
D is competent, but NOT compellable. Where D gives evidence:
- Evidence D gives is admissible against co-accused;
- He is open to cross-examination by both pros + co-accused
Id F decides not to testify, jury MAY draw inference against him.
Accused
WITNESS FOR CO-ACCUSED
D is competent, but NOT compellable.
Once no longer a “person charged In proceedings”, he WILL be compellable.
Compellability of spouse to give evidence on behalf pros or co-D
Is a spouse competent?
Spouse/CP is competence for ANY party, UNLESS charged in same proceedings.
Compellability of spouse to give evidence on behalf pros or co-D
Spouse/CP is competence for ANY party, UNLESS charged in same proceedings.
Where D + spouse charged in same proceedings,
Who is competent?
NEITHER will be competent FOR THE PROSECUTION.
Compellability of spouse to give evidence on behalf pros or co-D
COMPELLABILITY
For Prosecution:
Who is compellable?
Only compellable on behalf of pros against D or co-accused for specified offences.
Specified offences:
- Assault, injury or threat of injury to spouse
- Assault, injury or threat of injury to V under 16;
- Sexual offence in respect of V under 16;
- Aiding, abetting, counselling, procuring above
But where spouse charged in same proceedings, he is NOT compellable unless no longer liable to be convicted.
Compellability of spouse to give evidence on behalf pros or co-D
COMPELLABILITY of spouse
For Accused
When compellable/the exception:
Spouse compellable for Accused. EXCEPTION: where charged in same proceedings.
Compellability of spouse to give evidence on behalf pros or co-D
COMPELLABILITY
For former spouse/CP?
Exceptions to general rule of compellability don’t apply when spouse no longer married.
Competence - Can you lawfully be called to tesitfy?
At every stage in crim proceedings, all persons are (whatever their age) competent to give evidence
EXCEPTION:
- Accused not competent to give evidence for prosecution
- Cannot understand Qds put or give answers that can be understood
Compellability - can you lawfully compel W to come to court?
Common law: if competent = compellable.
EXCEPTION
-
The accused
- A man charged in criminal proceedings shall not be called as a witness except on his own application
- Wife or husband of accused
Compellability - can you lawfully compel W to come to court?
Common law: if competent = compellable.
EXCEPTION: Wife or husband of accused
Accused wants to call them: Compellable
If pros wants to call them: Only compellable if D charged with specified offence:
- Assult, injury, threat of injury to the spouse
- assult, injury, threat of injury to personj under 16
- Sexual offence in respect of V under 16 at the time
- Aiding, abetting, counselling, procuring, attempting, conspiring.
Another D (Co-accused) wants to call them: Only compellable re specified offences
CANNOT BE LIABLE TO CONVICTION IN THE SAME PROCEEDINGS.
SWORN EVIDENCE
Witness MUST NOT be sworn unless:
- Aged 14; and
- Has sufficient appreciation of the solemnity of occasion + of particular responsibility to tell the truth.
If witness = competent = presumed to have sufficient appreciation unless evidence to contrary. If evidence adduced THEN -)
for party seeking to have witness sworn to prove on balance of probability he is 14 + sufficient appreciation. Expert evidence MAY be received.
Determination of whether a witness may be sworn=
IS IN FRONT OR NOT OF THE JURY?
Determination of whether a witness may be sworn= the absence of the jury, but in presence of parties. Witness not permitted to give sworn evidence -) MUST = unsworn. Amount of weight attached is for jury.
SWORN EVIDENCE
What is the Rebuttable presumption?
person who can understand questions put to him + give answers presumed to have sufficient appreciation + responsibility to tell truth. If evidence contrary adduced = party seeking to swear witness must prove = balance of probability 14 + sufficient appreciation.
OATHS + AFFIRMATIONS
Before giving evidence, witness MUST take oath/affirm.
Witness called for producing doc need not be sworn. An unsworn witness =
What happens:
NOT liable for cross-examination. BUT if identify of doc disputed = MUST be done by sworn evidence.
OATHS + AFFIRMATIONS
What happens with children and oaths?
Where video recording of interview with child = admitted + child is then 14 or over, oath should be administered before start of cross examin.
Where competent witness gives unsworn evidence
Can you appeal?
= cannot appeal that conviction unsafe.
Gen rule = witness’s evidence must be given orally in court EXCEPTION:
- Evidence may be read with agreement of both parties
- Evidence may be read where admitted as hearsay
- Evidence may be given through live link
- Evidence may be given by pre-recorded video.
Under 14s cannot give sworn evidence.
Witness Statement admissible where:
- Statement signed by maker
- Statement of truth
- Copy served on each party
- None of parties have served notice objecting.
SECURING ATTENDANCE OF WITNESSES =
General rule:
responsibility of POLICE to secure attendance = prosecution witness
SECURING ATTENDANCE OF WITNESSES =
What does the Defence solicitor do?:
Defence solicitor to ensure the defence witness.
SECURING ATTENDANCE OF WITNESSES =
Compelling witness = Where pros/def not satisfied witness will attend voluntarily, MAY
apply for witness summons.
SECURING ATTENDANCE OF WITNESSES =
Punishment for not attending a witness order/summons:
if “Without just excuse” = disobeys witness order/summons = contempt of court. Punishment for COC = up to 3 months imprisonment
WITNESS SUMMONS
Attendance of witness at Mags may be secured by:
- Issue of summons; or
- Warrant
Applies to pros + def.
WITNESS SUMMONS
When Mags satisfied:
when can they issue summons>?
- Person likely to be material evidence or produce doc of material evidence for summary trial; and
- In interests of justice
Mags MAY issue summons. Similar power given to justices’ clerk. If mags (but NOT clerk) satisfied on evidence on oath that = PROBABLE summons would not procedure witness attendance, arrest warrant MAY be issued instead.
When may the Mags issue an arrest warrant
Who may issue it?
If mags (but NOT clerk) satisfied on evidence on oath that = PROBABLE summons would not procedure witness attendance, arrest warrant MAY be issued instead.
Where summons issued, court may issue arrest warrant where:
- Witness likely to give material evidence or produce material doc
- Established on evidence on oath
- Witness duly served with summons + pay reasonable sum of costs + expenses; and
- No just excuse for failure to attend.
