Chp 7 - Competence and compellability of witnesses

Question 1

Explain who is a competent witness?

Answer 1

Presumption of competency for person or child to give evidence or evidence by oath (s9)

Question 2

Defence challenge the competency of a prosecution witness. How is the question of competency decided? QEA

Answer 2

Ouns is on defence. The question of competency are decided by the judge on voir dire. The court needs to be satisfied that the person is able to give an intelligible accounts of events which he or she has observed or experience (s9A)Expert evidence is admissible about matters relevant to persons ability to give reliable evidence. (9C QEA)

Question 3

Generally witnesses must give evidence in person, however there are sections in the evidence act which are exceptions to this what are they?

Answer 3

s21A - Special witness measures (i.e. remote evidence ect)

s21AA - Affected child witness

s93A - Statement made by child before proceeding is admissible

Question 4

Defence may “trial by ambush” unless…(3)

Answer 4

it relies on alibi evidence, expert evidence, or a statements under 93B (statement made witness who is dead or incapable of giving evidence).

Question 5

Who can be witnesses in a criminal, and civil proceedings? EAC

Answer 5

Criminal

A person charge is competent but is not compellable to give evidence (s8(1)).

Spousal privilege is abolished in Queensland - A husband or wife of an accused is competent and compellable to give evidence in a proceeding (s8(2) EAQ).

Civil

Each party to a proceeding is competent and compellable to give evidence in a proceeding (s7)(1) EAQ)

Question 6

Co-offender spouse as a witness…what is the go with that?

Answer 6

An alleged co-offender who has been acquitted or convicted or is going to be tried separately is not a person charged in the proceeding (s8(1)) so can be compelled to give evidence, however they may claim another privilege to not give evidence (s10).

Question 7

Section 10 of the QEA provides…and does invoking this result in an adverse inference?

Answer 7

A person is not compelled to answer a QUESTION which may tend to incriminate (S10), however where a person charged gives evidence their liability to answer a question is governed by s15 QEA. Applies to testimonial evidence ONLY.

No adverse inference can be drawn from a claim of self incrimination.

Question 8

Explain the rules regarding cross examination of an accused person - Generally

Answer 8

Where an accused elects to give evidence may not invoke privilege against self incrimination s15(1).

An accused must not be asked, and is not required to answer questions about previous convictions, or questions about their bad character (s15(2) QEA) unless:-

15(2)(a) - ‘other occasion’ evidence the question may rebut a defence, motive, identity, relationship, knowledge, ability, or modus opernadi; or

15(2)(c) - The defendant first gives evidence of good character or defence is conducted in a way to involve imputations on the character of a prosecution witness.

Leave first needs to be sought to ask these questions (15(3)).