Part 2.1 Witnesses - Division 1 - Competence and compellability Flashcards
S12 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.
S13 Competence—lack of capacity
determined at Voir dire in absence of jury
Competence test
(1) Person is not competent to give evidence about a fact if for any reason (inc mental, intellectual or physical disability):
● (a) Can’t understand a question about the fact or
● (b) Can’t give an answer that can be understood to a question about that fact; and
● That incapacity cannot be overcome
(2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent about other facts.
(3) Person competent to give evidence about fact are not competent to give sworn/affirmed evidence about it if they do not have the capacity to understand that they are under an obligation to give truthful evidence
(4) Person who’s not competent to give sworn/affirmed evidence may, subject to (5), be competent to give it unsworn/unaffirmed.
(5) Person who’s not competent to give sworn/affirmed evidence is competent to give it unsworn/unaffirmed if court tells them:
(a) It is important to tell the truth
(b) May be asked questions they don’t know the answer to or can’t remember; they should tell the court if this occurs
(c) May be asked questions that suggest certain statements are true or untrue and that they should agree with those statements they believe are true, and feel no pressure to agree with statement they believe are untrue.
(6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7) Evidence that has been given by a W does not become inadmissible merely because, before the W finishes giving evidence, they die or cease to be competent to give evidence.
(8) Court can inform itself of matters under this section in any way it thinks fit including by expert evidence.
S14 Compellability — reduced capacity
Person not compellable to give evidence on certain matter if court satisfied that—
(a) substantial cost/delay would be incurred in ensuring they’d have capacity to understand/give understandable answer and
(b) adequate evidence on that matter has been given, or will be able to be given, from one or more other persons or sources.
15 Compellability—Sovereign and others
(1) None of the following compellable: (a) Sovereign, (b) GG, (c) Governor of State, (d) Administrator of Territory, (e) foreign sovereign/head of state
(2) MP not compellable if compulsion would prevent attendance at (a) sitting of that House, or Parliament joint sitting; (b) committee meeting of that House/Parliament
16 Competence and compellability—judges and jurors
(1) person who’s judge/juror in proceeding not competent to give evidence in that proceeding. However, a juror is competent to give evidence in the proceeding about matters affecting the conduct of the proceeding
(2) A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave.
17 Competence and compellability—accused in criminal proceedings
(1) This section applies only in a criminal proceeding.
(2) Accused not competent to give evidence as a W for the prosecution
(3) Co-accused not compellable to give evidence for or against an A in criminal proceeding, unless they’re being tried separately
(4) In joint trial, Court must satisfy itself (in jury’s absence if there is jury) that co-accused is aware of this if they are a witness
18 Compellability of spouses and others in criminal proceedings generally
(1) Section only applies in criminal proceedings
Objection
(2) Spouse, de facto partner, parent or child of an accused may object to being required —
○ (a) To give evidence generally; or
○ (b) To give evidence of a communication between the person and the accused —
As a witness for the prosecution.
(3) Objection is made before they give evidence or ASAP after they become aware of this section, whichever is later
(4) Court must satisfy itself person aware of this section if appears person may have a right to object under it
(5) Any objection to be heard in absence of jury, if there is one
Determination
(6) Person who objects 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 accused, if the person gives the evidence; AND
(b) The nature and extent of that harm outweighs the desirability of having the evidence given.
(7) W/o limiting relevant matters, court must take account:
(a) Nature and gravity of offence
(b) Substance and importance of any evidence the person might give and weight likely to be attached to it
(c) Whether any other evidence concerning the matters is reasonably available to the P
(d) Nature of the relationship between W and A
(e) Whether person would have to disclose something received in confidence
(8) If objection’s been determined, P then can’t comment on
(a) the objection, (b) court’s decision on the objection, (c) the failure of the person to give evidence
