Competence and compellability

Question 1

When is a person competent?

Answer 1

Every person competent unless otherwise provided in EA: s 12

Question 2

What are the exceptions to competence in the EA?

Answer 2

Four exceptions

1. If the person lacks the capacity to understand a q about the fact/give answer can be understood and that incapacity cannot be overcome (eg interpreter s 30 or s 31 for deaf/mute) s 13(1)
2. S 13(3) do not understand obligation to give truthful evidence not competent to give sworn evidence. May be competent to give unsworn evidence provided Court informs W of matters in s 13(5)
3. Judges and jurors in proceeding: s 16(1)
4. Criminal defendant for prosecution s 17(2)

Question 3

Do you have to be competent for all facts?

Answer 3

No can be competent for some and not others s 13(2)

Question 4

At what time is competency assessed?

Answer 4

Does not matter if you become incompetent after evidence given: s 13(8)

Question 5

Can the Court have assistance in determining?

Answer 5

Yes, may inform tself as it sees fit including by obtaining information from a person with relevant specialised knowledge based on the persons tracing study or experience s 13

Question 6

When is a person compellable?

Answer 6

All persons competent to give evidence about a fact are compellable except as provided: s 12

Question 7

What are the exceptions to compellability?

Answer 7

Six exceptions:
1 not competent s 12
2 reduced capacity if substantial cost or delay to understand/answer question AnD where adequate evidence on matter available other sources s 14
3 sovereign, GG, foreign heads of state and MPs (where would prevent attending sitting or committee meeting) s 15
4 Judge in Australian or foreign proceeding except with leave (s 192(2)) factors will apply): s 16
5 in criminal proceedings an associated defendant
6 in criminal proceeding, spouse, de facto partner, parent or child at time of giving evidence where objection taken and upheld s 18(6)

Question 8

When will the court uphold the objection of spouse, de facto partner, parent or child as compellable?

Answer 8

S 18

If objection taken prior to giving evidence or soon as practicable after learns of right to object (court must satisfy itself aware of right to objection): s 18(3),(4). Heard without jury s 18(5).

Court must not require to give evidence if finds likelihood that harm would it might be caused to the person or the relationship AND the harm outweighs desirability of evidence being given: s 18(6)

Question 9

What factors must the Court take into account in applying s 18(6)

Answer 9

S18(7) and as arguably a direction s 192(2) (Stanoevski)

Question 10

When will s 18 not apply?

Answer 10

S 18 in proceedings concerning certain crimes of child abuse, neglect and domestic violence.

S 279 CPA spouse is compellable in such offence un did excused