Chapter 2 Div 1 Flashcards
When is a person competent to give evidence?
Every person is competent unless otherwise provided in EA:
S 12.
(a) By s 13 (1), a person is not competent if that person lacks the capacity to understand a question about the fact, or to give an answer that can be understood, and that incapacity cannot be overcome (e.g., under ss 30 (interpreters) and 31 for deaf and mute people)).
(b) By s 13(2), a person may be competent to give evidence about some facts, and not others.
(c) By s 13(3), witnesses who do not understand their obligation to given “truthful evidence”, are not competent to give sworn evidence (s 13(3)). They may, however, be competent to give unsworn evidence (ss 13(4), 13(5)), provided the court informs the witness of the matters in s 13(5).
Note presumption of competence in s13(6)
(d) By s 16(1) - judges and jurors in a proceeding (s 16(1))
(e) By s 17(2) - a criminal defendant is not competent to give evidence for the prosecution
When is a person compellable to give evidence?
All competent persons are compellable except as otherwise provided: s 12(b).
Exceptions:
(1) By s 12 - Persons that are not competent.
(2) By s 14 - Persons of reduced capacity in certain circumstances, and where adequate evidence is available on that matter from other sources.
(3) By s 15 - The sovereign, GG, governors, administrators and foreign heads of state are not compellable to give evidence, nor are MPs if doing so would prevent their attendance at a parliamentary sitting or committee meeting.
(4) By s 16(2) - judge in an Australian or foreign proceeding except with leave (ss 16(2), 192(2), Stanoevski).
(5) By s 17(3) - In criminal proceedings, an associated defendant (as defined), unless tried separately.
(6) By s 18(6) - In criminal proceeding, spouse, de facto partner, parent or child where objection upheld (s 18(6)). See other flash card
But By s 19, s 18 does not apply in proceedings concerning certain crimes of child abuse, neglect and domestic violence under the Children (Care and Protection) Act 1987. Crim. PA, s 279 provides that a spouse of the accused is compellable in such offences unless excused.
Can people comment on the failure of a defendant, its spouse or parent/child not giving evidence?
Section 20 - if indictable criminal offence Judge or another party (other than prosecutor) can comment on failure but must not suggest guilt or brief of guilt. Guilt or belief of guilt can be suggested by another D in proceeding but the judge can comment on that suggestion.
Following Azzopardi and RPS, a direction that the jury can more confidently find a fact established based on the silence of the accused should only be given in “rare and exceptional,” circumstances (Azzopardi)
The exception is cases such as Weissensteiner, in which:
i) The prosecution invites the jury to draw a particularly damning inference from proven facts,
ii) Where there may be additional facts that would explain or contradict that, and
iii) Where such facts, if they exist, would be peculiarly within the knowledge of the accused.
(e) The judge is entitled to comment — but not direct (Azzopardi) — that the failure of the defendant to provide any such explanation entitles the jury to more readily draw the inference the prosecution is seeking (Weissensteiner (1993) (HCA), Azzopardi (2001) HCA)).
(f) Comment is not on failure to give evidence per se, but only on failure to provide explanation (Azzopardi).
(g) The fact that the person could have supported or contradicted evidence already given will not suffice (Azzopardi (2001) HCA).
(h) The judge should generally warn the jury that the accused’s silence does not constitute an admission by the accused, and may not be used to fill gaps in the prosecution’s case (s 165, RPS v The Queen (2000) HCA)
If criminal offence, Prosecutor cannot comment on failure of spouse, parent, child to give evidence if objection made and upheld by Court: s 18(8)
Jones v Dunkel (1959) HCA establishes that in civil cases, a judge may instruct a jury that the jury may draw an inference from a party’s failure to give evidence that the evidence, if called, would not have assisted that party’s case.
Can a parent be compelled to give evidence against their child?
Section 18: not compellable if objection taken and Court upholds. Can object to give evidence or evidence of communication with D.
Objection to be made prior to giving evidence, or as soon as practicable after father learns of right to object (s 18(3)), but court must satisfy itself that potential witness is aware of right of objection (s 18(4)). Court must not require to give evidence if it finds that there is a likelihood that harm “would or might” be caused to “the person or the relationship” as a result, and that the nature and extent of the harm outweighs the desirability of having the evidence given (s 18(6)).
Court must take into account (s 18(7)) factors, but ultimately judicial discretion (Khan). Further, as direction is arguably required, s 192(2) factors must be considered (Stanoevski).
Objection heard without jury: (5)
(f) If the accused is charged with an offence to which s 19 applies, s 18 has no effect and father will be compellable.
(g) Act abrogates the common law with respect to the law of competence and compellability of family members (s 9, Glasby)
