Topic 9- Preliminary Issues Relating to Witnesses

Question 1

How is a witness determined to be competent?

Answer 1

If the witness may lawfully be called to testify

Question 2

How is a witness determined to be compellable?

Answer 2

If, being competent, the witness may lawfully be compelled by the court to testify

Question 3

What is the general rule as to competence with witnesses?

Answer 3

All persons, whatever their age, are competent to give evidence

Question 4

What are the two exceptions for the general rule of competence?

Answer 4

If they do not understand questions to put to him, or to give answers which can be understood (eg, children or disabled)

An accused is not competent to give evidence for the prosecution

Question 5

What is the general rule for compellability of witnesses

Answer 5

All competent witnesses are compellable

Question 6

What are the four exceptions for the general rule of compellability?

Answer 6

The accused is not a compellable witness for the defence

An accused’s spouse is not compellable (there are exceptions)

Heads of State and Diplomats

Bankers

Question 7

Can an accused give evidence for the prosecution?

Answer 7

They cannot as they are not a competent witness

Question 8

When may a co-accused give evidence for the prosecution?

Answer 8

If they cease to be a co-accused

Question 9

Is an accused a compellable witness for the defence?

Answer 9

No, they can only be called as a witness if the accused makes an application

Question 10

Can the spouse of the accused give evidence?

Answer 10

They are not a compellable witness

Question 11

What are the exceptions as to the compellability of an accused’s spouse?

Answer 11

If it involves an assault or threat of injury to the spouse, or a person who was under 16

If it involves a sexual offence to a person who was under 16

If it involves the conspiring to commit, or aiding, etc, for the above crimes

Question 12

Can a spouse of an accused give evidence FOR THE ACCUSED

Answer 12

They are competent and shall be compellable, unless also charged in proceedings

Obviously they are not compellable to give evidence in other circumstances

Question 13

What is the test for determining competence of a witness (eg, a child)?

Answer 13

If they can speak and understand basic English with strangers

Question 14

Can a person who has no recollection of an event be a competent witness?

Answer 14

Yes they can

Question 15

What are the requirements for a witness to be sworn in?

Answer 15

They must be over 14
and
have sufficient appreciation of the solemnity of the occasion and of the responsibility to tell the truth

Question 16

What must a witness do before giving evidence?

Answer 16

They must take an oath

Question 17

What can be used to secure the attendance of witnesses in court?

Answer 17

Issuing a summons or warrant

Question 18

What are the circumstances for a witness summons be issued?

Answer 18

If the person is likely to be able to give material evidence

If it is in the interests of justice to issue a summons to secure the attendance

Question 19

If a magistrate is satisfied that a summons would not procure a witness, what can they do?

Answer 19

They may issue an arrest warrant for their attendance

Question 20

What happens if a witness fails to attend court via a witness summons?

Answer 20

The court can issue an arrest warrant, however they must be satisfied that:

The witness is able to give the evidence
The witness has been duly served with the summons
There was no just excuse for failing to attend

Question 21

What are the requirements for the court to issue an arrest warrant if a witness does not attend court?

Answer 21

The witness is able to give the evidence

The witness has been duly served with the summons and been given costs and expenses

There was no just excuse for failing to attend

Question 22

How is a witness summons served?

Answer 22

By handing it to the individual

By leaving it or sending it via 1st class post to their address

Question 23

Whose responsibility is it to secure the attendance of a prosecution witness?

Answer 23

The police and the defence solicitor

Question 24

When will a witness summons be ordered?

Answer 24

If a witness may not attend voluntarily

Question 25

What is the punishment for a witness who disobeys a witness summons without excuse?

Answer 25

They will be guilty of contempt of court

Max penalty is 3 months imprisonment