Evidence Flashcards
What type of proceedings does the EA apply to?
All proceedings in a Victorian Court including;
bail, interloc or similar, heard in Chambers or subject to (sub 2) that relate to sentencing.
If such a proceeding relates to sentencing - the EA will only apply if the court so directs AND if the court specifies in the direction that the law of evidence only applies to specified matters - the direction will have effect acordingly.
The court must make such a direction if a party applies in relation to proof of a fact; and if in the court’s opinion, the proceeding involves proof of that fact and the fact is or will be significant in determining the sentence to be imposed in the proceeding. The court must make a direction if it is in the IOJ.
What is the rule of competence and compellability?
Chapter 2/ Adducing Evidence - Part 2.1 - Witnesses
s 12 Except as otherwise provided by the EA - every person is competent to give evidence -> and a person who is competent to give evidence about a fact is compellable to give that evidnece
When will somebody be deemed to lack capacity?
s 13 a person is not competent to give evidence, about a fact if for any reason ( mental physical or intellectual)- the person does not have capacity to answer a question about that fact;
or that person does not have capacity to give an answer that can be understood about the fact.
and that incapacity cannot be overcome;
sub 2 allows a person who is deemed to not competent as per sub 13(1) to give evidence about other facts
Can a witness give sworn or affirmed evidence if they do not understand that they are under an obligation to tell the truth?
Pursuant to s13(3) a person who is competent to give evidence about a fact, is not competent to give sworn or affirmed evidence - if they do not understand, in giving the evidence that they have the obligation to tell the truth
( look for problem questions with children who are giving inconsistent evidence)
(sub 4) Such a person may be competent to give unsworn/unaffirmed evidence subject to the requirements in (sub 5)
Sub 5 states that a person will not be competent to give unsworn or unaffirmed evidence, unless the court has advised them of the importance to tell the truth and that he or she may be asked questions to which he or she cannot remember and should tell the court should this occur; and he or she may be suggested that certain statements are true or untrue and that he or she should agree with the statement that he or she believes to be true and should feel no pressure to agree with the statements that are untrue.
It is presumed unless the contrary is proven that a person is not competent because of this section (sub 6)
NOTE: Questions of competence will always be determined voire dire - in the absence of the jury if one has been empaneled - and likely attract a pre-trial ruling under s192A.
Also note that in questions which involve a child, a court must give a mandatory direction, and may do so BEFORE any evidence is adduced in the trial - in accordance with 44N, and after hearing the relevant submissions from P and D counsel, if the TJ considers the child’s reliability/ credibility to be an issue in the trial (APPLY - why?), must direct the jury in acc with sub 4, ( older ‘children’ may to be necessary for direction if they have good language or skills) and may repeat himself at any given time during the trial
that children can:
-can accurately remember and report past events
-developing language and cognitive skills may effect whether children give a detailed/ chronological or complete account and how children respond to the questions that they are asked
they may have difficulty understanding certain language because that language is complicated for children or complicated generally
What is the meaning of ‘reduced capacity’
s14 - a person is not compelleable to give evidence on a particular matter if the court is satisfied that
(a) substantial cost and delay would be incurred, ensuring that the person would have the capacity to understand the question about the matter or could give an answer that could be understood and adequate evidence on the matter has already been given, from one person or more sources
Compellability - Sovereign and Others
s15 None of these following people are compellable to give evidence
- the sovereign
-the gov general
- the governor of a state
- the administrator of a territory
- foreign sovereign or head of state of a
foreign country
- A member of a House of an Australian Parliament is not compellable to give evidence, if the member would ( if compelled to give evidence) be prevented from attending
(a) a sitting of that house or a joint sitting of parliament or a meeting or committee of that house or parliament being a committee of which he or she is a member
Competence/ Compellability of Judges and Jurors
s16 a person who is a judge or a juror, in proceeding is not competent to give evidence in that proceeding.
(1)However a juror is competent to give evidence in the proceeding about matters that effect the conduct of the proceeding.
(2) A person who is or was a judge in a na Australian or overseas proceeding is not compellable to give evidence, about that proceeding unless the court gives leave.
Competence and Compellability of the Accused
s17 An accused is not a competent witness for the prosecution -> an associated accused is not compellable to give evidence for or against an accused in a criminal proceeding, unless the associated accused is being tried separately from the accused (3)
If there is a witness who is an associated accused who is being tried jointly from an accused in the proceeding the court is to satisfy itself ( in the juries absence - voire dire) that the witness is aware of the effect of sub 3.
What is family privilege in criminal proceedings
s18 a person who is required or subpoenaed to give evidence is the spouse, de facto partner, parent or child of an accused may object to being required to give evidence or evidence between that person and an accused as a witness for the prosecution
This objection must be made before the person gives evidence or as soon as practicable after the person becomes aware of their right to object - whichever is the later (3)
If it becomes clear to the court that a person may have a right to object under this section - the court must satisfy itself that the person is made aware of the section, as it may apply to the person.
Any objection regarding family privilege under s18 - must be determined in the absence of a jury, if one has been empaneled (s189 - on a voire dire) and any subsequent ruling made pursuant to s192A.
Any person so objecting must not be required to give evidence if the court finds that the likelihood of harm that might be caused to the person or relationship between the accused, and the person if the person gives that evidence and the nature of that harm outweighs the desirability of having the evidence given.
Factors that will be taken into account are;
nature and gravity of the offence/ substance and importance of any evidence - weight that may be attached to it/ any other evidence that may be reasonably available to the prosecutor/ nature of the relationship between the accused and the person/ whether the person would have to disclose a matter that was told to them in confidence by the accused.
On balance the court would…..because. Once the objection has been determined the court will not be able to comment on the objection, or the decision of the court in relation to the objection. s18 (8)
What are the rules surrounding oaths and affirmations?
s21 - a witness in a proceeding must take either an oath or an affirmation before giving evidence ( unless a person is granted leave to give unsworn evidence under s13)
A witness must take the oath or the affirmation, in accordance with the appropriate form in schedule 1 or in a similar form - in the case of a child or a cognitively impaired witness, words taken of a similar form of oath or affirmation may be that “I promise to tell the truth”
( any affirmation taken has the same effect as an oath)
A witness need not take an oath if they are merely called to produce a document or a ‘thing’
Do Interpreters need to be sworn?
s22 A person must either take an oath or an affirmation, before acting as an interpreter in a proceeding. Any oath or affirmation taken on the day of the proceeding is taken to be an oath or affirmation for all the remaining days of the subsequent proceedings, in the court that the person acts as an interpreter.
Much like any other a witness an interpreter who is taking an oath/ affirmation must make it in acc with schedule 1 or in a similar form.
Such an affirmation has the same effect as an oath.
Does someone have a choice as to whether to take an oath or an affirmation?
s23, a person will always have a choice as to whether to take an oath or an affirmation.
The court is to inform that person that he or she has this choice unless it is satisfied that the person has already been fully informed about the decision, or knows that that person has that choice.
A court may direct someone to make an affirmation if they refuse to take an oath or make an affirmation or it is not reasonably practicable that someone take an oath
Do religious texts need to be used for oaths?
It is not necessary to use a religious text for taking an oath, the oath will still be effective for the purposes of the division, even if the person who took it -
did not have a religious belief or did not have the kind of religious belief of a particular kind; or
did not understand the consequences of the oath.
Alternative Oath
s24A A person may take an alternative oath, even if the person’s religious or spiritual beliefs do not include a belief in the existence of a god.
the form of oath taken need not include a reference to god and may instead refer to the basis of the person’s beliefs in accordance with the form perscribed by the regulations
