Competence And Compeallability

Question 1

What kind of evidence can be given by competent witnesses?

Answer 1

Sworn and unsworn

Question 2

What does section 12 of the EA say?

Answer 2

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.

Question 3

What are the three associate concepts?

Answer 3

1. Competency
2. Compellability
3. Privilege

Question 4

What is meant by competency?

Answer 4

A witness is competent if the witness may lawfully give evidence. Can they reliably assist the Court in giving evidence of facts.

Question 5

What is meant by compellability?

Answer 5

A witness is compellable if they may be lawfully obliged to give evidence.

Question 6

What is meant by privilege?

Answer 6

A compellable witness can refuse to answer certain questions if they can claim protection under the rules of privilege.

Question 7

What does section 13 of the EA say about competence?

Answer 7

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.

Question 8

What are the two competency limbs?

Answer 8

1. No capacity to understand
2. No capacity to give answer
   (Cannot be overcome by an interpreter)

Question 9

What does 13(2) say about some facts?

Answer 9

A person may be capable of giving evidence about some facts but not others.

Question 10

What does section 13(2) state?

Answer 10

A person may be able to be competent to give evidence about certain things but not other facts.

Question 11

What two ways can evidence be given once a person is competent?

Answer 11

Section 21 states:

Sworn or unsworn

Question 12

What does section 24(2)(a) state?

Answer 12

That an oath is effective even if the person did not have a religious belief

Question 13

What does 23(3) permit the Court to do when it comes to oaths and affirmations?

Answer 13

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.

Question 14

What must a witness understand to give sworn evidence?

Answer 14

13(3) to give sworn evidence the witness MUST understand that they ARE OBLIGED to tell the truth

Question 15

Who can give unsworn evidence?

Answer 15

Someone who cannot give sworn evidence. Usually permitted under 13(4).

Question 16

What does 13(3) permit?

Answer 16

Permits the prosecutor to investigate whether a witness is competent.

Question 17

What requirement must be fulfilled under 13(5)?

Answer 17

There is an obligation to tell the witness who is to give unsworn evidence three things.

1. Important to tell the truth
2. Tell the court if cant remember or doesn’t know answer
3. Can agree or disagree to statements put to them.

Question 18

Are sworn and unsworn evidence of the same weight?

Answer 18

Yes.

Question 19

What does 13(6) state?

Answer 19

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).

Question 20

What may a court consider when determining competence under section 13(8)?

Answer 20

Anything the Court deems appropriate.

Question 21

What would a court do when considering competency?

Answer 21

A Voir dire which can be conducted under section 189(1)(c).

Question 22

What onus is required to prove a person is NOT competent?

Answer 22

S142 states that this is to be determined on the balance of probabilities.

Question 23

What is the case of R v Brooks authority for?

Answer 23

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.

Question 24

What else does R v Brooks state?

Answer 24

That evidence needs to be adduced & a finding made of incompetence to give sworn evidence, to enable unsworn evidence provision.

Question 25

What is the case of R v JTB about?

Answer 25

Facts: 8 year old victim, judge assumed not competent so heard unsworn evidence
Held: evidence was not given under oath or lawful alternative and so there was no evidence before the court.
There must be a positive enquire to establish grounds for unsworn evidence.

Question 26

Is a defendant competent to give evidence in their trial?

Answer 26

No s 17(2)

Question 27

Who is compellable?

Answer 27

S12 says every person is competent and compellable.

Question 28

What is section 18 about?

Answer 28

Provides an exemption for some family members.

1. Only applies in criminal proceedings

Question 29

Who is a family member under 18(2)?

Answer 29

Spouse, de facto parter, parent or child of defendant may make an objection.

Question 30

When is an objection under 18(3) to be made? How does 18(4) apply?

Answer 30

It should be made before the person gives evidence and the Court should make the person aware of their right to make objection.

Question 31

What is the test in 18(6)?

Answer 31

A person must not be required to give the evidence if the court finds that:
A) there is a likelihood that harm would or might be cause whether directly or indirectly to the person, or to the relationship between the person and the defendant, if the person gives evidence AND
B) the nature and extent of that harm outweighs the desirability of having the evidence given.

Question 32

What does section 19 state?

Answer 32

That section 279 of the Criminal Procedure Act prevails over section 18 of EA.

Question 33

What does section 279 of the Criminal Procedure Act state?

Answer 33

For certain offences such as Domestic Violence Offences and Child Assault Offences family members are compellable.

Question 34

Does s18 apply to offences against the care and protection act?

Answer 34

No, it does not. The immediate family members are compellable.

Question 35

How can a person be excused under s 279(4)?

Answer 35

May be excused if:
A. Freely and independently of threat or any other influence
B. That is relatively unimportant to the case (their evidence)
C. Offence before the Court is of a minor nature.

VERY RARE