competence/compellability/privilege

Question 1

Is a spouse of an accused competent and compellable to give evidence in criminal proceedings? (include section of EA)

Answer 1

No circumstances. They are competent and compellable s 8(2)

Question 2

When is it appropriate for a judge to comment on the failure of a competent accused to give evidence?

Answer 2

Jones v Dunkel does not generally apply in criminal law

Question 3

Legal professional privielge

Answer 3

‘Dominant purpose’ test adopted as test for privilege at common law. Esso v Commissioner of Taxation (brought into existence for legal advice and not some ancillary purpose).

Question 4

Privilege attached to without prejudice negotiations

Answer 4

If there is an attempt to negotiate settlement of a dispute. Field v Commissioner for Railways

Question 5

Is an accused compellable to give evidence? (include section of EA)

Answer 5

No, the are competent however s 8(1) of the EA

Question 6

What is the rule in Jones v Dunkel

Answer 6

If there is an unexplained failure to call a witness or adduce evidence, it will give rise to an inference that the evidence would not have assisted the party. Weissensteiner in criminal cases.

Question 7

Privilege against self incrimination

Answer 7

s 10(1) you are not compelled to give evidence if it will incriminate you.

Question 8

What is the difference between Weissensteiner, Dyers and Azzopardi.

Answer 8

DYERS - court cannot speculate what a witness might have said
Weissensteiner - may comment when an explanation as to what happened is only within the knowledge of the accused.

Question 9

What direction will a judge give if an accused refuses to answer questions claiming privilege against self incrimination (office #1)

Answer 9

If an accused does not answer questions after claiming privilege under 10(1), a judge can give a direction to the jury that they regard the questions as never asked and not speculate about the answers. R v King