Competence and Compellability

Question 1

What is competency?

Answer 1

A witness is competent if the witness may lawfully give evidence. (Can they reliably assist the court in giving evidence of facts?)

Question 2

What is Compellability?

Answer 2

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

Question 3

What is privilege?

Answer 3

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

Question 4

s 13 (2) Evidece Act?

Answer 4

Lack of capacity
A person may be competent to give evidence on some facts but not others.
Just because you can’t give evidence on the facts of certain things doesn’t mean you are not a competent witness. E.g - Child giving evidence on being struck, but not knowing the address they were at etc.

Question 5

S 24 (2)?

Answer 5

The oath is effective even if
a) person did not hold a religious belief of a particular kind or
B)even if dont understand nature and affect of oath.

Question 6

23 (3)?

Answer 6

Court may direct a person to take an affirmation if;

• If person refuses to choose oath or affirmation or;
• Not reasonably practicable for person to take a specific oath.

Question 7

13 (6)?

Answer 7

It is presumed unless contrary proved, a person is not incompetent because of this section.
Burden of proof on person asserting witness is incompetent.

Question 8

13 (8)?

Answer 8

For the purpose of determining a question under this section, court can inform itself as it thinks fit.

Question 9

189 Evidence ACt?

Answer 9

Voir Dire’s

Question 10

189 (1) (c)?

Answer 10

Can have a Voire Dire to determine if witness is competent or not.

Question 11

142?

Answer 11

Whether or not witness is competent is decided on Balance of probabilities.

Question 12

R v Brooks

Answer 12

Judge presumed child witness was incompetent and so the child gave unsword evidence.
There was no evidence the child was incompetent, and the incompetent provisions under 13(5) were not adhered to so evidence was excluded.
Evidence must be adduced and finding made of incompetence to give sworn evidence to then enable the unsworn evidence provisions.

Question 13

Regina v JTB

Answer 13

As with Brooks, there must be a positive inquiry to establish grounds for unsworn evidence. An ussumption is not good enough.

Question 14

Compellability and section?

Answer 14

12

A person who is competent is compellable to give evidence.

Question 15

s 18 evidence Act?

Answer 15

Exception to compellability for certain family members (parents, spouse, de facto partners, children, as witnesses for prosecution.

Question 16

S 19?

Answer 16

279 of the Criminal Procedure Act prevails of Section 18 and person is compellable for those certain offences. S 18 does not apply to offences under children and young persons care and protection Act, under sections 222, 223, 227, 228.

Question 17

S18 (2)?

Answer 17

Person who is spouse, defacto, parent or child of defendant may object;
a - to giving evidence
b - to giving evidence pertaining to a communication between them and defendant,
As a prosecution witness.

Question 18

S18 (6)?

Answer 18

If an objection raised, not required to give evidence if;

• Harm likely or may occur to person or the relationship
• Nature of that harm outweighs desirability of evidence given.

Question 19

18 (7)?

Answer 19

Court must take into consideration when determining whether to grant objection under 18 (6).

a) nature and gravity of offence
b) Substance and importance of evidence and likely weight it will have.
c) Any other like evidence in existance?
d) Nature of relationship between wit and def.
e) Whether requirement to disclose anything in confidence between wit and def.

Question 20

S 279 CPA?

Answer 20

Provides special rules in respect of compellability of family members to give evidence in DV offence and Child Assault offences.

Question 21

13 (1)?

Answer 21

Person not competent to give evidence about a fact for any reason if;

a) Don’t have capacity to understand
b) Don’t have capacity to give answer that can be understood.

Question 22

s 12 Evidence Act?

Answer 22

All persons are competent to give evidence and aperson who is competent is compellable to give that evidence.

Question 23

Does 279 apply for a child assault offence where the victim is not child of the accused?

Answer 23

No. Must be a child of the household or of the person. I.e - Dad (50 years old) assaults neighbours child in front of his own son. Son is not compellable.

Question 24

S 279 2A CPA?

Answer 24

If accused is under 18, does not make witnesses who are family compellable in DV offence.

Question 25

Case law for finding witness incompetent through positive enquiry rather than assuming

Answer 25

R v brooks

R v JTB

Question 26

Can family member be excused from giving evidence under 279 CPA?

Answer 26

Yes, (3). However only if;

b) Their evidence is unimportant
c) Offence is of minor nature.