Competence And Compeallability Flashcards
What kind of evidence can be given by competent witnesses?
Sworn and unsworn
What does section 12 of the EA say?
Except as otherwise stated in the Act,
A) every person is competent to give evidence
B) a person who is competent to give evidence about a fact is compellable to give that evidence.
What are the three associate concepts?
- Competency
- Compellability
- Privilege
What is meant by competency?
A witness is competent if the witness may lawfully give evidence. Can they reliably assist the Court in giving evidence of facts.
What is meant by compellability?
A witness is compellable if they may be lawfully obliged to give evidence.
What is meant by privilege?
A compellable witness can refuse to answer certain questions if they can claim protection under the rules of privilege.
What does section 13 of the EA say about competence?
13(1) a person is not competent to give evidence about a fact (mental, intellectual or physical disability) because of:
- lack of capacity to understand the question about the Fact
- lack of capacity to give an answer that can be understood about the fact.
AND - that incapacity cannot be overcome.
What are the two competency limbs?
- No capacity to understand
- No capacity to give answer
(Cannot be overcome by an interpreter)
What does 13(2) say about some facts?
A person may be capable of giving evidence about some facts but not others.
What does section 13(2) state?
A person may be able to be competent to give evidence about certain things but not other facts.
What two ways can evidence be given once a person is competent?
Section 21 states:
Sworn or unsworn
What does section 24(2)(a) state?
That an oath is effective even if the person did not have a religious belief
What does 23(3) permit the Court to do when it comes to oaths and affirmations?
The Court may direct a person who is to be a witness to make an affirmation if the person refuses to choose an oath or affirmation.
What must a witness understand to give sworn evidence?
13(3) to give sworn evidence the witness MUST understand that they ARE OBLIGED to tell the truth
Who can give unsworn evidence?
Someone who cannot give sworn evidence. Usually permitted under 13(4).
What does 13(3) permit?
Permits the prosecutor to investigate whether a witness is competent.
What requirement must be fulfilled under 13(5)?
There is an obligation to tell the witness who is to give unsworn evidence three things.
- Important to tell the truth
- Tell the court if cant remember or doesn’t know answer
- Can agree or disagree to statements put to them.
Are sworn and unsworn evidence of the same weight?
Yes.
What does 13(6) state?
Everyone is competent unless evidence is presented to the COurt to displace it. A baby would be deemed competent under section 12 until a video was played of the baby which would be evidence to suggest that they are not competent under section 13(1).
What may a court consider when determining competence under section 13(8)?
Anything the Court deems appropriate.
What would a court do when considering competency?
A Voir dire which can be conducted under section 189(1)(c).
What onus is required to prove a person is NOT competent?
S142 states that this is to be determined on the balance of probabilities.
What is the case of R v Brooks authority for?
Facts: judge presumed a child was incompetent to give evidence.
Held: there was no evidence put before the court to inform them that the witness was incompetent, so unsworn evidence provision unavailable.
What else does R v Brooks state?
That evidence needs to be adduced & a finding made of incompetence to give sworn evidence, to enable unsworn evidence provision.
