12: Issues relating to Witnesses

Question 1

How to secure attendance of a witness?:

Answer 1

Securing attendance of witness by :

1. Witness order; or
2. Witness summons

Question 2

Who is competent?

Answer 2

Competence = ALL persons (whatever ages) are competent to give evidence

Question 3

Competence = ALL persons (whatever ages) are competent to give evidence

EXCEPTION:

Answer 3

1. If unable to understand questions put to him as witness; and
2. Give answers which can be understood.

Question 4

Who MAY be incompetent?

Answer 4

Children + persons with disability MAY be incompetent.

Question 5

Who is NOT competent as a witness for the prosecution?

Answer 5

D is NOT competent as witness for pros!

Question 6

Compellability = A competent witness is compellable. EXCEPTION:

Answer 6

1. D is not compellable witness for D (i.e. himself or co-accused);
2. D’s spouse/ civil partner NOT compellable for either pros or co-accused
3. Bankers not compellable

Question 7

PROCEDURE

Competence of witness should be determined WHEN?

Answer 7

begin of trial absence of jury.

Question 8

PROCEDURE

Who may raise the issue of competence?

Answer 8

Competence MAY be raised by either party or court

Question 9

PROCEDURE

Party calling witness MUST satisfy on WHAT BURDEN OF PROOF?

Answer 9

Party calling witness MUST satisfy on balance of probability that witness = competent.

Question 10

PROCEDURE

Questioning of witness who is it conducted in the presence of?

Answer 10

Questioning of witness = conducted by court in presence of parties.

Parties MAY call expert evidence.

Question 11

Children + disability people

COMPETENCE =

Answer 11

All people competence but NOT:

1. If person unable to understand questions put to him; and
2. 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.

Question 12

Accused

WITNESS FOR PROSECUTION

Competence?

Answer 12

D not competent as witness for Pros. A co-accused MAY give evidence for pros if he ceases to be co-accused.

Question 13

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:

Answer 13

1. On pleading guilty;
2. On acquittal
3. Where separate trials ordered.

Question 14

Accused

WITNESS FOR HIMSELF

Answer 14

D is competent, but NOT compellable. Where D gives evidence:

1. Evidence D gives is admissible against co-accused;
2. He is open to cross-examination by both pros + co-accused

Id F decides not to testify, jury MAY draw inference against him.

Question 15

Accused

WITNESS FOR CO-ACCUSED

Answer 15

D is competent, but NOT compellable.

Once no longer a “person charged In proceedings”, he WILL be compellable.

Question 16

Compellability of spouse to give evidence on behalf pros or co-D

Is a spouse competent?

Answer 16

Spouse/CP is competence for ANY party, UNLESS charged in same proceedings.

Question 17

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?

Answer 17

NEITHER will be competent FOR THE PROSECUTION.

Question 18

Compellability of spouse to give evidence on behalf pros or co-D

COMPELLABILITY

For Prosecution:

Who is compellable?

Answer 18

Only compellable on behalf of pros against D or co-accused for specified offences.

Question 19

Specified offences:

Answer 19

1. Assault, injury or threat of injury to spouse
2. Assault, injury or threat of injury to V under 16;
3. Sexual offence in respect of V under 16;
4. Aiding, abetting, counselling, procuring above

But where spouse charged in same proceedings, he is NOT compellable unless no longer liable to be convicted.

Question 20

Compellability of spouse to give evidence on behalf pros or co-D

COMPELLABILITY of spouse

For Accused

When compellable/the exception:

Answer 20

Spouse compellable for Accused. EXCEPTION: where charged in same proceedings.

Question 21

Compellability of spouse to give evidence on behalf pros or co-D

COMPELLABILITY

For former spouse/CP?

Answer 21

Exceptions to general rule of compellability don’t apply when spouse no longer married.

Question 22

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:

Answer 22

1. Accused not competent to give evidence for prosecution
2. Cannot understand Qds put or give answers that can be understood

Question 23

Compellability - can you lawfully compel W to come to court?

Common law: if competent = compellable.

EXCEPTION

Answer 23

1. The accused
   
   1. ​A man charged in criminal proceedings shall not be called as a witness except on his own application
2. Wife or husband of accused

Question 24

Compellability - can you lawfully compel W to come to court?

Common law: if competent = compellable.

EXCEPTION: Wife or husband of accused

Answer 24

Accused wants to call them: Compellable

If pros wants to call them: Only compellable if D charged with specified offence:

1. Assult, injury, threat of injury to the spouse
2. assult, injury, threat of injury to personj under 16
3. Sexual offence in respect of V under 16 at the time
4. 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.

Question 25

**SWORN EVIDENCE** Witness MUST NOT be sworn unless:

Answer 25

1. Aged 14; and 2. Has sufficient appreciation of the solemnity of occasion + of particular responsibility to tell the truth.

Question 26

If witness = competent = presumed to have sufficient appreciation unless evidence to contrary. If evidence adduced THEN -)

Answer 26

for party seeking to have witness sworn to prove on balance of probability he is 14 + sufficient appreciation. Expert evidence MAY be received.

Question 27

Determination of whether a witness may be sworn= IS IN FRONT OR NOT OF THE JURY?

Answer 27

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.

Question 28

**SWORN EVIDENCE** What is the Rebuttable presumption?

Answer 28

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.

Question 29

**OATHS + AFFIRMATIONS** Before giving evidence, witness MUST take oath/affirm. Witness called for producing doc need not be sworn. An **unsworn witness** = What happens:

Answer 29

NOT liable for cross-examination. BUT if identify of doc disputed = MUST be done by sworn evidence.

Question 30

**OATHS + AFFIRMATIONS** What happens with children and oaths?

Answer 30

Where video recording of interview with child = admitted + child is then 14 or over, oath should be administered before start of cross examin.

Question 31

Where competent witness gives unsworn evidence Can you appeal?

Answer 31

= cannot appeal that conviction unsafe.

Question 32

Gen rule = witness’s evidence must be given orally in court EXCEPTION:

Answer 32

1. Evidence may be read with agreement of both parties 2. Evidence may be read where admitted as hearsay 3. Evidence may be given through live link 4. Evidence may be given by pre-recorded video.

Question 33

Under 14s cannot give sworn evidence. Witness Statement admissible where:

Answer 33

1. Statement signed by maker 2. Statement of truth 3. Copy served on each party 4. None of parties have served notice objecting.

Question 34

**_SECURING ATTENDANCE OF WITNESSES =_** General rule:

Answer 34

responsibility of **POLICE** to secure attendance = **_prosecution witness_**

Question 35

**_SECURING ATTENDANCE OF WITNESSES =_** What does the Defence solicitor do?:

Answer 35

**Defence solicitor** to ensure the defence witness.

Question 36

## Footnote **_SECURING ATTENDANCE OF WITNESSES =_** Compelling witness = Where pros/def not satisfied witness will attend voluntarily, MAY

Answer 36

apply for witness summons.

Question 37

SECURING ATTENDANCE OF WITNESSES = Punishment for not attending a witness order/summons:

Answer 37

if “Without just excuse” = disobeys witness order/summons = contempt of court. Punishment for COC = up to 3 months imprisonment

Question 38

**_WITNESS SUMMONS_** Attendance of witness at **Mags** may be secured by:

Answer 38

1. Issue of summons; or 2. Warrant Applies to pros + def.

Question 39

**_WITNESS SUMMONS_** When Mags satisfied: when can they issue summons\>?

Answer 39

1. Person likely to be **material evidence** or produce doc of material evidence for **summary trial**; and 2. 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.

Question 40

When may the Mags issue an arrest warrant Who may issue it?

Answer 40

If mags (but NOT clerk) satisfied on evidence on oath that = **PROBABLE** summons would not procedure witness attendance, arrest warrant MAY be issued instead.

Question 41

Where summons issued, court may issue arrest warrant where:

Answer 41

1. Witness likely to give material evidence or produce material doc 1. Established on evidence on oath 2. Witness duly served with summons + pay reasonable sum of costs + expenses; and 3. No just excuse for failure to attend.