Unit 9: Witness Evidence Flashcards
A witness is competent if:
They may lawfully be called to testify; and
A witness is compellable if:
Being competent, the witness may be compelld by the court to testify.
What are the two exceptions to the presumption that all persons are competent to give evidence?
YJCEA s53
If the person is unable to understand questions put to him or her as a witness and to give answers to them which can be understood.
An accused is not competent to give evidence for the prosecution.
What are the four exceptions to the general rule that all competent witness are compellable
(hint: only need to know about the first two tbh)
The accused is not a compellable witness for the defence;
An accused’s spouse or partner is, except for a few specified offences, not compellable for either prosecution or co-accused;
The Sovereign, heads of other sovereign states and diplomats;
Bankers.
What are a few reasons why a co-accused may ‘no longer be liable to be convicted’ under s53(4) YCJEA?
Acquitted;
To be tried separately;
AG enters a nolle prosequi (no longer prosecuting);
If they plead guilty.
Is D required to give evidence in a voir dire?
No - they can elect to do so.
Which two sections/acts govern the competence and compellability of spouses/civil partners?
section 53(1) YJCEA 1999
section 80 PACE 1984
What are the ‘specified offences’ for which a spouse/CP can be compelled to give evidence?
Assaults/threat of injury/injury to the spiuse or civil partner OR to a person under 16;
A sexual offence alleged in respect of a person who was under 16 at the time;
Attempting or conspiring to commit, or aiding/abetting/counselling/procuring/inciting the commission of either of the above offences.
If someone used to be married/CP to the accused, but no longer is, can they be compelled to give evidence?
Yes; it is as if they were never married.
When can a spouse/civil partner be compellable to give evidence for the prosecution?
Only in respect of the specified offences.
Can a spouse/civil partner be compelled to give evidence for the prosecution if they are also charged in the proceedings?
No.
What are the five propositions from Barker [2010] relating to the competency of child witnesses?
The section 53 question is entirely witness/child specific;
No presumptions/preconceptions;
W does not need to understand the importance of telling the truth; does not need to be able to understand and answer every question;
The child should have the ability to understand the questions put by both D and P and to provide understandable answers;
Section 53 is not a discretionary exercise, but a judgment as to whether W fulfils the criteria.
What are the conditions for a child to be sworn for the purpose of giving evidence on oath? (YJCEA s55)
Be 14;
Have a sufficient appreciation of the selmnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.
(giving an intelligible testimony is evidence of this)
Who must prove that a child witness satisfies the criteria of s55 YJCEA?
The party seeking to have the witness sworn. Any proceedings held to determine this should be held in the absence of the jury.
Before giving evidence, a witness must…
take an oath or affirm (unless legislation provides otherwise)
If a witness is competent but is not permitted to be sworn, they shall…
Give their evidence unsworn.
At common law, does a witness called merely to produce a document need to be sworn?
No.
What is the impact of not being sworn?
W will not be liable for cross-examination.
Under YJCEA s56(5), where a witness gives evidence unsworn, can a conviction/verdict/finding be taken to be unsafe for the purposes of a grounds of appeal by reason of the fact that W was a person within s55(2) and so should have given evidence on oath?
No.
When can Mags Court 1 (who has just convicted D) remit the offender to Mags Court 2 (where he has previously be convicted but waits for sentence) remit the offender to that court to deal with the instant offence?
D is over 18;
The other court consents;
The instant offence is either imprisonable or punishable with disqualification from driving.
Who bears responsibility for attendance of witnesses?
Police: prosecution witnesses
Defence solicitor: defence witnesses
When can a witness summons be applied for?
Where Pros of def wish to secure the attendance of a witness but are not satisfied that the witness will attend voluntarily.
What happens if P disobeys a witness order/summons without just excuse?
They will be guilty of contempt of court.
They can be summarily punished, maximum penalty is 3 months imprisonment.
What are the exclusionary rules of general application?
Hearsay;
Opinion;
Character of the accused.
Is evidence elicited by leading questions inadmissible?
No, but the weight to be attached to it may be substantially reduced.
Are leading questions allowed to identify persons/objects in court?
Yes; virtually impossible otherwise!
Are leading questions allowed for formal/introductory matters?
Yes.
Are leading questons allowed for facts not in dispute?
yes.
Are leading questions allowed if the party is given leave to treat them as hostile?
Yes.
What are the two conditions for referring to a document to refresh memory?
Give evidence that the document records recollection at the time it was made;
Recollection at that time is likely to have been significantly better than at the time of the oral evidence.
Can a trial judge refuse applications for refreshing under s139?
Yes; they have a residual discretion.
Can a judge implement the memory-refreshing procedure?
Yes, if it is in the interests of justice to do so.
Can memory-refreshing be implemented in cross-examination?
Yes
Do the memory-refreshing conditions apply to refreshing memory prior to going into the witness box?
No!