witness : competance, compellabilty, and other specialities Flashcards
define competence
can a witness be asked to give evidence
define compatability
can a witness be required to give evidence
1995 act s.266(1)
s.266(2)
THE ACCUSED:
the accused was not competent Cannot compel you to testify
s.266(2) he is now competent but cancan only be called to his own app
s.32 1995 act
THE ACCUSED
COMMENT ON FAILURE TO GIVE EVIDENCE.
the judge can comment on failure of an accused to give evidence . A pros can too and so may co-accused
brown v macpherson
THE ACCUSEDCOMMENT ON FAILURE TO GIVE EVIDENCE
the judge/ prosecutor should exercise this in exceptional circumstances and with restraint
scott v hm
THE ACCUSEDCOMMENT ON FAILURE TO GIVE EVIDENCE vague and contrictory evidence of the crown. so accused refused to comment. the judge REPEATADLY drew attention to thisOn appeal= quashed.
l.J clerk NORAMAN statements of the accused lack of evidence by the jusge should be made with restraint and only in special circumstances
Shevlin v hm
THE ACCUSEDCOMMENT ON FAILURE TO GIVE EVIDENCE the cooaccussed is not restained the same way as a judge
council for co-accused has no restraint in commenting on the accused failure to testify AS LONG AS IT DOES NOT MISLEAD.
LECTURER ARGUES than the case should be quashed if an inference was being drawn by the co-accused by mentioning the accused lack of testify
1995 act s.266(9)
the co-accused one accused person is COMPETANT but not COMPELLABLE for a co -accused.
if he gives evidence on his own behald he may be cross exam by co-accused .
however, both call a co-accused a s witness anf cross exam him when he gives evidence
1995 act s.266(10)
the co-accused where a person ceases to be co-accused, he becomes a competent witness and compellable (unless guilty plea or acquitted)for any remaining part
advocate v ferrie
the co-accused where a person ceased to be co-accused and becomes competent witness.
this is so eventhough they have not yet been sentences or formally convicted
dow v macknight
THE ACCOMPLICE an accomplice who gives evidence is reffferd to as a socius criminis. an accused can be convicted only if there is evidence from the socii
Docherty v hm adv
THE ACCOMPLICE a cum nota warning is no longer required
no surprise bench of 9
warning must be given everytime the the accomplice gave eveidence
casey v hm
THE ACCOMPLICEmight be inappropriate to give warning. could not exam matters not directly relevant to charge to get evidence of accused waring will be appropriate if the defence of the co-accused incrim the accused
macmilian v murray
THE ACCOMPLICE
where a crown calls a socius witness they require immunity from pros
o’neil v wilson
THE ACCOMPLICE a crown witness who admits to crim activity during the course of testimony is not protected
todd v hm
any relevant q could be asked even if it would incrim the accused spouse or partner.
the evidence of witnesses led for one accused is evidence against a co-aaccused whether elicited in chief or cross exam by the crown or another co-accused
s,264 1995 aact
spouse can be competent and compellable for the pros unless they need not give evidence by being co-accused
is the spouse of the accused competent/ compellable
prior 2011 spouse of accused was a=competent but not normally COMPELLABLE unless he was the alledged victim
now changes under s.86 2010 crim justice act the souse and civil partner of spouse now compellable
current law found In s.264 1995 act
Davidson v macfarlyn
JUDGES COS/ HC judges are not competent to give evidence of proceedings before them inferior courts are
mackintosh v wooster
prosecutors are competent witnesses although NOT in the trial they are currently conducting
cambell v cohrane
defence agenrs can give evidence in cases they are conducting BUT it is not clear how the practical difficulties would be overcome
s.8 contempt of court
JURORS
Cannot give evidence of their deliberations= contemto of court
