Adducing witness evidence

Question 1

What are the stages of questioning a witness?

Answer 1

1 - examination in chief
2 - cross-examination
3 - re-examination

Question 1

What are the restrictions on re-examination?

Answer 1

A - cannot ask leading questions
B - restricted to matters arising out of cross-examination (s 39(a))
C - other questions may not be put to W unless the court gives leave (s 39(b))

Question 2

What is the first question to ask when seeking to call a witness?

Answer 2

Are they competent and compellable?

Question 3

What is competence?

Answer 3

When the witness i allowed by the court to testify by giving sworn or unsworn evidence

Question 4

What is compellability?

Answer 4

When the witness can be placed under a threat of punishment for failing to testify

Question 5

What is the rule on competence?

Answer 5

2 parts:
(1) Every person is competent unless the court finds otherwise (s 12(a), 13(6))
(2) Competence is determined on a fact-by-fact basis - A person who is not competent to give evidence about one fact may still be competent to give evidence about other facts (s 13(2))

Question 6

When is a person not competent?

Answer 6

A person is not competent if:
- No capacity to understand a question; OR
- No capacity to give an answer that can be understood
- AND the incapacity cannot be overcome

Question 7

What is the rule on compellability?

Answer 7

A person who is competent to give evidence is compellable (s 12(b))

Question 8

What are the exceptions to the rule on compellability?

Answer 8

• people with reduced capacity (s 14)
• Sovereigns (or foreign sovereign or Head of State) (s 15(1))
• Governor-General (s 15(1))
• Governor of a State (s 15(1))
  Administrator of a Territory (s 15(1))
• Member of Parliament if giving evidence would prevent the member from attending a sitting of the House of Parliament or a meeting of a committee of that House (where they are a member of the committee)(s 15(2))
• judges and jurors in the proceeding (s 16)
• Defendant in criminal proceeding (s 17)
• Defendant’s spouse, de facto partner, parent or child - by objection (s 18(2))

Question 9

When is a defendant competent and compellable?

Answer 9

• A defendant is not a competent witness for the prosecution (incl. prosecution for a co-accused) (s 17(2))
• A defendant is a competent (but not compellable) witness in own defence
• A defendant is competent, but not compellable to give evidence by an “associated defendant” with whom they are being jointly tried (s 17(3))

Question 10

Are juror’s ever competent and/or compellable to give evidence?

Answer 10

Jurors are not compellable (s 16) but will be competent to give evidence about mattes affecting the proceeding (S 16(1))

Question 11

Are judges ever competent and/or compellable to give evidence?

Answer 11

Judges are not compellable, (s 16) but judges and ex-judges can be given leave to give evidence about a proceeding they presided over (in Australia or overseas) (s 16(2))

Question 12

When is a defendant’s spouse, de facto partner, parent or child compellable to give evidence as a witness for the prosecution?

Answer 12

Compellable if no objection is made under s 18(2). Can object under s 18(2) to giving evidence as a witness for the prosecution.

Question 13

What are the rules for family member’s objecting to giving evidence for the prosecution?

Answer 13

• The objection must be taken before the person gives evidence (or as soon as practicable after they become aware of the right (s 18(3))
• Do not need to give evidence if the harm to the rship outweighs the desirability of having the evidence given (s 18(6))
  – Court must determine whether there is a likelihood that harm would or might be caused (directly or indirectly) to the person, or the rship between the person and the defendant, if the person gives evidence (s 18(6)(a))
  – If yes, must also determine whether the nature and extent of the harm outweighs the desirability of having the evidence given (s 18(6)(b))

Question 14

How do you swear in a witness to give evidence?

Answer 14

The witness must give an oath or affirmation (s 21(1)) unless “called merely to produce a document or thing” (s 21(3)) or
giving unsworn evidence (s 21(2))

The witness can decide which (s 23)