Competence And Compellability

Question 1

What does competence relate to?

Answer 1

A witness who may lawfully give evidence

Question 2

What does compellability refer to?

Answer 2

A person who may be lawfully obliged to give evidence

Question 3

What does privilege refer to?

Answer 3

A compellable witness may refuse to answer certain questions and claim privilege under the act.

Question 4

Who is competent to give evidence?

Answer 4

Section 12 Evidence Act: presumption is that everyone is competent to give evidence.

Question 5

What is important about section 12 of the Evidence Act?

Answer 5

Every person is competent to give evidence and a person who is competent to to give evidence about a fact is compellable to give that evidence.

= every person is competent and compellable to give evidence unless the act provides otherwise.

Question 6

Who is not competent to give evidence (3)?

Answer 6

1. A person who lacks capacity in accordance with section 13 evidence act
2. Defendant in criminal proceedings not competent to give evidence for the prosecution (section 17)
3. Judge, magistrate, juror etc in a proceeding not competent to give evidence in that matter (s16 evidence act)

Question 7

What must be established for a person to be deemed incompetent to give evidence?

Answer 7

S13(1) Evidence Act:
Must establish that the person is not competent to give evidence about a fact (including a mental, intellectual, disability) because of:
- a lack of capacity to understand a question about a fact OR
- a lack of capacity to give an answer that can be understood about the fact
AND that incapacity can not be overcome.

Question 8

What must be established for a person to be deemed incompetent to give evidence?

Answer 8

S13(1) Evidence Act:
Must establish that the person is not competent to give evidence about a fact (including a mental, intellectual, disability) because of:
- a lack of capacity to understand a question about a fact OR
- a lack of capacity to give an answer that can be understood about the fact
AND that incapacity can not be overcome.

Question 9

Can a person who is deemed incompetent pursuant to section 13(1) evidence act still give evidence?

Answer 9

Yes. Section 13(2) evidence act - a person who is not competent to give evidence about a fact in 13(1) may still give evidence about other facts.

Question 10

What needs to happen for a persons evidence to be excluded due to incapacity?

Answer 10

Need to prove on the balance of probabilities incapacity to understand a question about the fact or incapacity to give an answer about that fact.

The mere fact they dont understand the oath or affirmation is insufficient

Question 11

Who bears the onus of proving incapacity?

Answer 11

Party asserting witness is incompetent (s13(6))

Question 12

Do the rules of evidence apply in determining incapacity?

Answer 12

No. Court can inform itself as it thinks fit. (S13(8)

Question 13

In what ways may evidence be given?

Answer 13

Sworn evidence under oath or affirmation( s21 evidence act)

Or unsworn 13(5) evidence act. Person competent to give unsworn evidence if the court has told the person that its important to tell the truth and tell the court if they dont know the answer to a question.

Question 14

Is an oath effective if not religious or dont understand it?

Answer 14

Yes s 24(2)(a) evidence act

Question 15

Who can give unsworn evidence?

Answer 15

Only a person who is deemed incompetent to give sworn evidence under s13 evidence act.

Question 16

Is a child witness incompetent?

Answer 16

No. It is incorrect to presume a child witness is incompetent. Evidence needs to be adduced and a finding made of incompetence to give sworn evidence. R V Brooks

If have capacity to give unsworn evidence they must be given the opportunity to give the evidence SH v R (2012)

Question 17

Is a child witness incompetent?

Answer 17

No. It is incorrect to presume a child witness is incompetent. Evidence needs to be adduced and a finding made of incompetence to give sworn evidenxe. R V Brooks

If have capacity to give unsworn evidence they must be given the opportunity to give the evidence SH v R (2012)

Question 18

What weight is given to unsworn evidence?

Answer 18

Unsworn evidence is treated no different from other evidence R v Wills (1985). R v GW 2016 HCA

Question 19

How do we compell witnesses to give evidence?

Answer 19

Subpoena, warrant, adjournments

Question 20

If a person hasnt provided a statement or weren’t served a subpoena are they still compellable?

Answer 20

Yes section 36 evidence act.

Question 21

Who is not compellable?

Answer 21

1. Court satisfied substantial cost or delay in communication and adequate evidence has already been given (s14 evidence act)
2. Soverign/governor s15(1) evidence act.
3. Member of house of Australian parliament if it would prevent them from attending a sitting of parliament or meeting or a committed of that house s15 evidence act
4. An associated defendant in a criminal proceeding being tried together unless willing and give informed consent (s17 evidence act)
5. Exception for family members section 18 evidence act

Question 22

Which family members are not compellable to give evidence against the defendant under section 18 Evidence Act?

Answer 22

Parents, spouse, defacto partner and children.

Question 23

When will a family member be compellable to give evidence against the defendant?

Answer 23

Section 279 Criminal Procedure Act provides that a family member would be compellable for domestic violence against someone in same household and child assault offences

Section 19 evidence act provides that section 279 overrides section 18 evidence act making the family members compellable FOR offences for which section 19 relates

Question 24

What offences are family members compellable to give evidence in?

Answer 24

S19 evidence act :
Child and young persons care and protection act
S 222 - endangering children in employment
223 - certain employers of children to be authorised
227 child and young person abuse
228 neglect of children
279 criminal.procedure act ( dv offences and child assault offences

Doesnt apply if defendant under 18 and the DV or child offence needs to be on a person in the same household.

Exception s279(4)CPA

Question 25

When may a family member be excused from giving evidence?

Answer 25

Family members are compellable to give evidence UNLESS they have applied to and have been excused by the court feom givinf evidenxd in accorandance with s279(4) criminal procedure act.

Application needs to be made freely and independently from any threat or improper interference by any other person and that is relatively unimportant to the case to establish facts and the offence is a minor nature

Question 26

If a person is excused under the act from being compelled to give evidence what is the effect of any statement they have made?

Answer 26

Being excused makes them unavailable to give evidence pursuant to the definition of unavailable witness in clause 4(1)(g) of the definition in evidence act. Therefore make an application under s 65 for the statement of the excused witness to be tendered in evidence.

DPP v Nicholls held that it was the intent of s 65 to operate in this way.

Question 27

If the person is compellable must the court compell them to give evidence?

Answer 27

Yes bUt not if they are a family member. The test as to whether they should be compelled to give evidence is in section 18(6) evidence act

Person must not be required to give the evidence if the court finds that:

There is a liklihood of harm would or might be caused to the person, or to the relationship between the person and the defendant if the person gives evidence and the nature and extent of that harm outweighs the desirability of giving the evidence.

Question 28

If a non compellable witnesses choses to give evidence what obligation is placed on the court?

Answer 28

S18(4) evidence act - must inform them of their right to not give evidence

Question 29

What is the process in determining if a witness must give evidence?

Answer 29

1. Are they competent (yes s 12 unless exception applies.
2. Are they compellable (exceptions)
3. Yes apply exceptions

No . Do they want to give evidence anyway (18(4))

3. Is the offence listed in s19 evidence act

No (dont have to give evidence) apply test in section 18(6)

Yes. S 279 compellable unless s279(4) applies

Question 30

Can the prosecutor comment on excused witnesses or defendants not giving evidence?

Answer 30

No. S20 evidence act.

Extends to judhes as well RPS v the Queen

Question 31

Husband punches wife in front of son. Is wife and son compellable?

Answer 31

Yes to both. S19 provides section 279 CPA overridses s 18 ea. The offence is a domestic violence offences and commityed against someone in the same household is listed in s 19.

Unless they apply for an exception s279(4) CPA

Question 32

Husband neglects son. Is wife compellable?

Answer 32

Yes if she is a witness as offence is child neglect offence listed in section 19 Evidence Act

Question 33

Dad punches uncle john in front of son. Is uncle john and Charlie compellable?

Answer 33

Uncle john is compellable. an exception in section 18 does not apply.

Charloe is not as offence against uncle john is not a household member and s279 cpa doesnt apply