Testimony: Eligibility and compellability

Question 1

s71: Eligibility and compellability generally

Answer 1

A witness is eligible if they are lawfully able to give evidence on behalf of the prosecution and defense.

A witness is compellable if they can be required to give evidence.

Once a witness has entered a witness box and have been sworn, they are under a compellable obligation to answer all questions put to them.

Question 2

What if witnesses lack capacity to give rational and coherent testimony?

Answer 2

Testimony may be excluded as irrelevant under s7, or under the general exclusion rules in s8.

Question 3

Witnesses can be excused from answering certain questions

Answer 3

Although compellable under the Act, witnesses can be excused by a judge from testifying for “just cause”

Same applies for answering certain questions.

Question 4

Permission for judges, jurors, and counsel to give evidence

Answer 4

Under s72:

• a persona acting as judge in a criminal proceeding is not eligible to give evidence in that proceeding- unless the judge gives permission, a juror or counsel is ineligible to give evidence
• a defendant acting as their own counsel will not need judicial permission to testify

Question 5

Section 73: Basic rule of non-compellability

Answer 5

A defendant facing a criminal trial is an eligible but not compellable witness for either prosecution or defense.