Witnesses

Question 1

General rule regarding witnesses

Answer 1

Everyone is presumed to be a competent and compellable witness

Question 2

Witnesses to competence inquiry

Answer 2

1. Children
2. People with mental disabilities
3. Judges and Magistrates
4. Spouses
5. Co-accused

Question 3

How to establish someone is a hostile witness?

Answer 3

1. show that they do not wish to tell the truth
2. show intention to prejudice party’s case

Difficult to do: cant cross-examine

Question 4

Can you refresh a witness’s memory

Answer 4

General rule: evidence must be given orally and in response to questions asked in examination / cross examination

Question 5

Requirements to refresh a witness’s memory

Answer 5

1. Witness must have personal knowledge of events recorded
2. show witness is unable to fully recollect on matter on which they are being examined
3. Witness must have made the recording (compiled doc) and it must be shown that the facts were fresh in their mind when recording was made
4. Original documents to be used where witness has no independent recollection.
5. Document used to refresh mind is made available to court and opponant for inspection.
6. report ≠ complied when litigation was already foreseen (Exception - experts investigating facts for purpose of giving evidence who prep written report)

Question 6

Common law rule re refreshing a witness’s memory: which part forms evidence

Answer 6

Where W has independent memory of events and the document is only used to refresh memory, the oral testimony is the evidence (not document).

Where no present recollection, doc essentially their memory: doc is evidence.

Question 7

Establishing child as competent witness

Answer 7

Must be able to communicate with court

Court must establish that they know what it means to tell the truth. {do they understand the oath / affirmation? if not: establish whether child can distinguish between truth and lies. If they can distinguish: court must admonish child to tell truth}

Question 8

Rules re persons with mental disabilities

Answer 8

Someone mentally ill / intoxicated and thus deprived of use of proper reason is not competent for the period they are afflicted for

Persons suffering from mental disability but is able to communicate with court = regarded as competent.

Question 9

Rules re judges and magistrates: competency

Answer 9

They are not competent witnesses for cases over which they preside.

Question 10

Spouses re competency

Answer 10

Generally competent but not compellable but exceptions: offences against spouse / child; maintenance claims; incest; perjury - these all make spouse compellable.

Rule applies after divorce but only regarding matters occurring during marriage. (Taylor)

Competence + compellability inquiry happens before privilege inquiry.

Question 11

Taylor

Answer 11

Rule that spouses are generally competent but not compellable applies after divorce but only regarding matters occurring during marriage.

Question 12

Co-accused rules re competency and compellability + exceptions

Answer 12

Accused has a right to remain silent so competent but never compellable. It follows that a co-accused can never be compellable.

Exception: where co-accused’s status changes (state witness + charges withdrawn = compellable; if plead guilty and trial is separated as a result then also compellable.