Competence & Compellability

Question 1

What does Section 23(3) of the Evidence Act say?

Answer 1

23 Choice of oath or affirmation

(3) The court may direct a person who is to be a witness to make an affirmation if:
(a) the person refuses to choose whether to take an oath or make an affirmation, or
(b) it is not reasonably practicable for the person to take an appropriate oath.

Question 2

What does Section 24(2)(a) of the Evidence Act say?

Answer 2

24 Requirements for oaths

(1) It is not necessary that a religious text be used in taking an oath.

(2) An oath is effective for the purposes of this Division even if the person who took it:
(a) did not have a religious belief or did not have a religious belief of a particular kind, or

(b) did not understand the nature and consequences of the oath.

Question 3

What does Section 13(4) relate to?

Answer 3

Sworn and Unsworn evidence

13 Competence: lack of capacity
(4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.

Question 4

What does Section 13(6) relate to?

Answer 4

It is presumed unless the contrary is proved (onus on the person asserting that witness is incompetent) that a person is NOT incompetent

Question 5

The presumption that all persons are competent to give evidence (S12) places the onus on the party who asserts a person is incompetent to prove the fact on the BALANCE OF PROBABILITIES. What Section of the Evidence Act covers this particular standard of proof?

Answer 5

Section 142

142 Admissibility of evidence: standard of proof

(1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding:
(a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not, or
(b) any other question arising under this Act,

have been proved if it is satisfied that they have been proved on the balance of probabilities.

Question 6

The question of fact of whether a witness is competent to give evidence is a preliminary question and that may be determined on a voir dire. What Section of the Evidence Act covers Voir Dires?

Answer 6

Section 189

189 The voir dire

(1) If the determination of a question whether:
(a) evidence should be admitted (whether in the exercise of a discretion or not), or
(b) evidence can be used against a person, or
(c) a witness is competent or compellable,

depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.

Question 7

R v Brooks is an authority for?

Answer 7

Competency to give evidence. In this matter the Judge presumed that the child witness was incompetent to give sworn evidence (made no enquiry as to actual competence) so allowed the child to give unsworn evidence.

HELD: there was no evidence the witness was incompetent so the unsworn evidence provisions were unavailable and hence all the unsworn evidence given by the child were inadmissible.

Evidence needs to be adduced and a finding made of incompetence to give sworn evidence, to enable UNSWORN evidence provisions.

Question 8

What is Regina v JTB an authority for?

Answer 8

Another case regarding capacity to give sworn/unsworn evidence.
In this case, an 8 year old victim gave evidence about sexual misconduct of Accused. Judge assumed child could not give sworn evidence so heard unsworn evidence. Accused was convicted and sentenced.

HELD: The Evidence was not given under oath or lawful alternative and so there was no evidence before the Court.

** There must be a positive enquiry to establish grounds for unsworn evidence**

Question 9

What does Section 18 of the Evidence Act provide?

Answer 9

Section 18 provides an exception to the compellability of some family members (parents, spouses, de factos, children) as witnesses for the prosecution if they are called to give evidence against the defendant.

Question 10

Section 19 of the Evidence Act states that Section 18 (witness may object to giving evidence against family member) in certain proceedings. What are those certain proceedings?

Answer 10

Section 18 does not apply to Offences against or referred to in the Children’s And Young Person’s (Care and Protection) Act (Sections 222; 223; 227; 228) and also Section 279 of the Criminal Procedure Act.

Question 11

Section 13(3) Bottom slide page 3

Answer 11

Section 13(3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.

• The distinction between sworn and unsworn evidence is that…

Question 12

Under what Subsection of Section 18 would I find the test in relation to compellability to give evidence vs harm being done to a relationship?

Answer 12

Section 18(6)

(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:
(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and
(b) the nature and extent of that harm outweighs the desirability of having the evidence given.

Question 13

Evidence can be given in 2 ways: what are they?

Answer 13

Sworn and Unsworn

Question 14

The Court may find a person not competent under Section 13(1), however what does Section 13(2) provide?

Answer 14

A person may be competent to give evidence of some facts but not others.

13(2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.

Question 15

Section 13(1) of the Evidence Act relates to competence: ‘and that competence cannot be overcome’.. there is a “NOTE” under Section 13(1) - What does that note lead you to?

Answer 15

The note leads you to look at Sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities. (ie: interpreters, deaf/mute witnesses).

Question 16

What section of the Evidence Act covers competence and compellability?

Answer 16

Section 12 of the Evidence Act.

Except as otherwise provided by this Act:

(a) every person is competent to give evidence, and
(b) a person who is competent to give evidence about a fact is compellable to give that evidence.

Question 17

Section 12 of the Evidence Act provides that unless otherwise provided by the Act, every person is competent and a person who is competent is compellable to give evidence. Where are most of the mechanisms found for compelling a witness to give evidence?

Answer 17

Most of the mechanisms to compel a person to give evidence are found in the Criminal Procedure Act.

Example: Section 229 of the CPA or Section 231

Question 18

There are 3 separate and closely related concepts in relation to competence and compellability being?

Answer 18

Competence - (can’t) - A witness is competent if the witness may lawfully give evidence
Compellability - (don’t want to) - A witness is compellable and they may lawfully
Privilege- (can’t make me) -

Question 19

What does Section 13 of the Evidence Act cover?

Answer 19

Competence: Lack of capacity

Section 13(1) states that a person may not be competent to give evidence about a fact (including a mental, intellectual, physical disability) because of:

• . A lack of capacity to understand a question about the fact; or
• . A lack of capacity to give an answer that can be understood about the fact.

AND that incapacity cannot be overcome

= NOT COMPETENT

Question 20

What does Section 21 of the Evidence Act provide?

Answer 20

Sworn evidence of a witness to be on oath or affirmation.

21 Sworn evidence to be on oath or affirmation

(1) A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence.
(2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13.
(3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so.
(4) The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form.
(5) Such an affirmation has the same effect for all purposes as an oath.

Question 21

What is Competence?

Answer 21

Capacity to give evidence.

Question 22

What Sections of the Evidence Act relate to Sworn Evidence?

Answer 22

Sections 21-24 and Section 13.

21 Sworn evidence to be on oath or affirmation
22 Interpreters to act on oath or affirmation
23 Choice of oath or affirmation
24 Requirements for oaths

Question 23

How does competence and compellability and privilege work?

Answer 23

Competence - (Can or Can’t)

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

Compellability (Don’t want to)

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

Privilege: (Can’t make me)
A compellable witness may refuse to answer certain questions if they can claim protection under the rules of privilege.

Question 24

Section 12 of the Evidence Act covers what?

Answer 24

Section 12: Competence and Compellability

Except as otherwise provided by this Act:

(a) every person is competent to give evidence, and
(b) a person who is competent 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 26

Define “Competence”

Answer 26

Competence is the ability or capacity to understand a question and articulate an answer

Question 26

Section 13(1) of the Evidence Act states that a person is not competent to give evidence about a fact due to lack of capacity HOWEVER what does 13(2) state?

Answer 26

13(2) states that a person who is not competent to give evidence about a fact because of 13(1) can still give evidence about other facts.

Question 26

What does Section 21 of the Evidence Act relate to?

Answer 26

Sworn evidence to be given on Oath or Affirmation.

Question 26

What does Section 24 of the Evidence Act relate to?

Answer 26

Section 24 sets out the requirement for oaths to not be religious. Particularly Section 24(2)(a) which states that an oath is effective for the purpose of this Division even if the person who took it did not have a religious belief or did not have a religious belief of a particular kind.

Question 27

What does Section 23 of the Evidence Act relate to?

Answer 27

The choice of whether to take an oath or affirmation.

Section 23(3) states that the Court may direct a person who is to be a witness to make an affirmation if the person refuses to choose whether to take an oath or make an affirmation, or it is not reasonably practicable for the person to take an appropriate oath.

Question 28

What is the distinction between sworn and unsworn evidence?

Answer 28

The distinction between sworn and unsworn evidence is that to give sworn evidence the witness MUST understand that they ARE OBLIGED to tell the truth.

Section 13(3) states that a person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.

Section 13(4) then provides that if a witness does not understand their obligation to tell the truth they may give UNSWORN evidence subject to 13(5).

Question 28

Before starting Section 13(5) requirements ie: allowing a person to give unsworn evidence - investigation must complete Section 13(3) requirements. What are the 13(3) requirements?

Answer 28

Establishing whether the person does not have the capacity to understand that they are OBLIGATED to tell the truth. Not just assume.

R v BROOKS / Regina v JTB

Question 28

Before allowing a person to give unsworn evidence under Section 13(5), what must the Court tell the person?

Answer 28

• important to tell the truth, and
• tell the Court if can’t remember or doesn’t know the answer to question
• Can agree or disagree to statements put to them, there is no pressure to accept untrue statements

Question 29

What does Section 13(8) state?

Answer 29

(8) For the purpose of determining a question arising under this section the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience.

Question 29

Is a defendant available to give evidence for the prosecution in criminal proceedings?

Answer 29

No. Section 17(1) and (2)

Question 29

Section 19 prevails over the exceptions under Section 18. What does Section 19 provide?

Answer 29

19 Compellability of spouses and others in certain criminal proceedings

Section 18 does not apply:

(a) in proceedings for an offence against or referred to in the following provisions of the Children and Young Persons (Care and Protection) Act 1998:

(i) section 222 (Endangering children in employment),
(ii) section 223 (Certain employers of children to be authorised),
(iii) section 227 (Child and young person abuse),
(iv) section 228 (Neglect of children and young persons), or
(b) if the person could be compelled to give evidence in proceedings under section 279 (Compellability of family members to give evidence in certain proceedings) of the Criminal Procedure Act 1986.

Question 29

What does Section 18 of the Evidence Act provide (particularly ss 2, 6 & 7)

Answer 29

18 Compellability of spouses and others in criminal proceedings generally

(1) This section applies only in a criminal proceeding.
(2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required:
(a) to give evidence, or
(b) to give evidence of a communication between the person and the defendant, as a witness for the prosecution.
(3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.
(4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.
(5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.
(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:
(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and
(b) the nature and extent of that harm outweighs the desirability of having the evidence given.
(7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:
(a) the nature and gravity of the offence for which the defendant is being prosecuted,
(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it,
(c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor,
(d) the nature of the relationship between the defendant and the person,
(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.
(8) If an objection under this section has been determined, the prosecutor may not comment on:
(a) the objection, or
(b) the decision of the court in relation to the objection, or
(c) the failure of the person to give evidence.

Question 29

Section 19 of the Evidence Act states that Section 18 (witness may object to giving evidence against family member) in certain proceedings. One of those proceedings is Section 222 of the Children’s and Young Person’s (Care and Protection) Act. What is that offence?

Answer 29

s222 Endangering children in employment

Question 29

Section 19 of the Evidence Act states that Section 18 (witness may object to giving evidence against family member) in certain proceedings. One of those proceedings is Section 227 of the Children’s and Young Person’s (Care and Protection) Act. What is that offence?

Answer 29

227 Child and young person abuse
A person who intentionally takes action that has resulted in or appears likely to result in:
(a) the physical injury or sexual abuse of a child or young person, or
(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or
(c) the physical development or health of a child or young person being significantly harmed,

Question 29

Section 19 of the Evidence Act states that Section 18 (witness may object to giving evidence against family member) in certain proceedings. One of those proceedings is Section 228 of the Children’s and Young Person’s (Care and Protection) Act. What is that offence?

Answer 29

228 Neglect of children and young persons
A person, whether or not the parent of the child or young person, who, without reasonable excuse, neglects to provide adequate and proper food, nursing, clothing, medical aid or lodging for a child or young person in his or her care, is guilty of an offence.

Question 29

Section 19 of the Evidence Act states that Section 18 (witness may object to giving evidence against family member) in certain proceedings. One of those proceedings is offences found under Section 279 of the Criminal Procedure Act. What is found at S279 of the Criminal Procedure Act?

Answer 29

Section 279 of the Criminal Procedure Act relates to domestic violence offences.

S279 compels a member of the accused person’s family (the spouse or de facto partner of the accused person or a parent or child of the accused person to give evidence against the accused in domestic violence offence proceedings including a child assault offences or a prescribed sexual offence committed on a child under the age of 18 years

• Doesn’t apply if Deft under 18
• Relates to DV offence on a family member OR child assault offence committed on a child living in the household of Accused or upon the child of the Accused.
• Family member is compelled to give evidence UNLESS has applied to and has been excused by the Court from giving evidence for the prosecution
• if ss4 is satisfied (that there has been no threat or improper influence etc)

Question 30

If an application is made by a family member to not give evidence against the Accused (as per Section 279 of the Criminal Procedure Act), is the Defendant present upon making of that application?

Answer 30

(6) An application under this section by a member of an accused person’s family to be excused from giving evidence is to be made and determined in the absence of the jury (if any) and the accused person, but in the presence of the accused person’s Australian legal practitioner.