12. Preliminary issues relating to Witnesses Flashcards
what does competent mean?
if witness may be lawfully called to testify
what does compellable mean?
if competent witness can be lawfully compelled by the court to testify
how can witness attendance be secured?
witness order or witness summons
general rule - competence
all persons whatever their age are competent
exceptions to competence general rule?
not competent if:
* unable to understand questions or give understandable answers
* accused not competent to give ev for pros
general rule compellability?
all competent witnesses are compellable
4 exceptions to general compellability rule?
- 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.
rule about the accused as a witness for pros?
accused not competent to give evidence for prosecution.
Unless accused has pleaded guilty - then they are competent for prosecution.
accused as witness for defence?
they are competent at all stages for defence. But accused is not compellable.
general rule about spouses and civil partners?
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
are ex-spouses/civil partners compellable?
yes
general rule - oaths/affirmations
witness must take oath or affirmation
propositions for assessing competence?
- fact specific
- no presumptions
- witness does not need to understand all questions nor importance of truth in court
test for competence?
can understand questions put to them AND can give answers that can be understood.
when can a witness be sworn?
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.
who has to prove witness can be sworn?
person seeking to have witness sworn must prove on balance of probs that 2 conditions are satisfied.
jury absent
what happens if person is competent but not permitted to be sworn
give evidence unsworn
when can mags issue witness summons?
- person is likely to be able to give/produce material evidence AND
- in ints of justice to issue summons to secure attendance
when can mags issue arrest warrant?
if satisfied by evidence on oath that it is probable summons would not procure witness - can issue arrest arrant instead
what can court do if summoned person fails to attend?
issue arrest warrant
when issuing arrest warrant for summoned person failure to attend - what must be satisfied?
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
whos responsibility is it to secure witness attendance?
police for pros witnesses
defence sol for defence witnesses
punishment for witness failure to attend
if without just excuse disobeys witness order or sumomons - guilty of contempt of court
may be summarily punished for contempt of court.
