Trial - Witnesses Preliminary Issues

Question 1

What does it mean for a witness to be competent?

Answer 1

A witness is competent if they may lawfully be called to testify in court

Question 2

Is D a competent witness for the Prosec?

Answer 2

No - a D is not competent for the Prosec. A co-D can only become a prosecution witness after their case concludes

Question 3

Are children and persons with disabilities competent witnesses?

Answer 3

Yes - if they can (1) understand Qs and (2) give comprehensible answers, regardless of age or disability and (3) as long as they understand the solemnity of the oath/affirmation

Question 4

Are spouses and civil partners competent witnesses?

Answer 4

Yes - they are competent for any party, including the prosecution and defence.

Question 5

When is a spouse/civil partner compellable for the Prosec?

Answer 5

Only in offences involving
- Domestic violence against them
- Violence or threats to a child under 16
- Sexual offences against a person under 16
- Attempts, conspiracy, or aiding the above

Question 6

Are witnesses allowed to give opinions?

Answer 6

Generally, no unless it relates to:
- a commonplace observation (eg drunkenness) or
- comes from a qualified expert

Question 7

What qualifies someone as an expert?

Answer 7

Knowledge or experience gained through study, practice or both - the burden is on the calling party to prove expertise.

Question 8

Is jury bound by unchallenged expert evidence?

Answer 8

No, jury is not obliged to accept it and may prefer other evidence if reasonable.

Question 9

Can a witness refuse to answer if it incriminates them?

Answer 9

Yes - under the common law privilege against self-incrimination (applies to witnesses, not Ds)

Question 10

Can a witness claim self-incrimination privilege to protect someone else?

Answer 10

No - it only applies to self-incrimination, not to protecting others, even spouses

Question 11

2 types of legal professional privilege?

Answer 11

1. Advice privilege - for general legal advice
2. Litigation privilege - for communications made for or in anticipation of legal proceedings

Question 12

Where do communications with 3rd parties fall under privilege?

Answer 12

Only under litigation privilege

Question 13

Who can waive legal professional privilege?

Answer 13

Only the client - waiver must be complete - not partial