Compellabikity And Competency

Question 1

Governed by?

Answer 1

Section 25 - Criminal Evidence Act 1992– spouse of accused NOT compellable

Section 21 — spouse COMPETENT witness—only incompetent if co-accused

Section 22— lists EXCEPTIONS —where spouse IS compellable to testify

Question 2

Exceptions under section 22 of criminal evidence act 1992

Answer 2

Situations where:

1) violence to spouse, her child, person under 17
2) sexual offence— child of spouse/ person under 17
3) offence—involving— conspiracy to commit/aiding/abetting/counselling/procuring/inciting

If spouse Is Co-accused- can also be compelled to testify under these exceptions

Question 3

Unconstitutionality of section 22?

Answer 3

Arguably, it is and it isn’t

—potential breach of article 41.3.1
—involving state to take care to exercise special case to guard and protect institution of marriage

However
— section 26 of criminal evidence act 1992— states that section 22— does not affect right to marital privacy

Question 4

Right for spouse to be compellable witness first recognised by o’hanlon J—in SvS

-further developed by Walsh J—in Dpp v JT

Answer 4

Dpp v JT. Article 41 — “an attack on the very fabric of the family”

Walsh stated—- constitution required wife to be compellable witness for prosecution —-where husband was charged with sexual assault —on their children

Judgement in this case—- was one of the reasons for the introduction of the criminal justice evidence act 1992

Sect 21 of 1992 act— makes spouse of former spouse competent to give evidence for prosecution in any criminal proceedings

Section 22— makes spouse compellable for prosecution under the already mentioned exceptions

1992 act- provides that spouse or former spouse is both competent and compellable —as a witness for the accused

Question 5

Introduction

Answer 5

Witness is competent to testify- if capable of giving evidence

Compellable witness— is a competent witness who can be required to give evidence

@common law— anyone who was capable of understanding the nature and consequences of an oath —- was competent to testify & all competent witnesses were compellable

Number of exceptions

Question 6

@common law

Answer 6

General common law rule—- spouse not compellable to testify for prosecution

However— this rule didn’t apply if accused — was charged with certain acts of violence against his spouse

Section 4 of criminal justice (evidence) act 1924—- spouse competent to testify for prosecution of accused was charged with any list schedules of offences like offences against the person act 1861