Witnesses and Trial

Question 1

Is the defendant a competent witness?

Answer 1

Yes, for themselves or their co-defendant. Not competent for the prosecution. If there are multiple defendants, not for prosecution against the other defendant unless the case against D has completed.

Question 2

Are children / persons with disabilities competent witnesses?

Answer 2

Yes, if they can understand questions and give comprehensive answers.

Question 3

Are spouses and civil partners of the defendant competent witnesses?

Answer 3

Yes.

Question 4

Are the deaf or speech impaired competent witnesses?

Answer 4

Yes, if they understand the oath.

Question 5

Is the defendant compellable?

Answer 5

Not compellable; however, if they choose not to give evidence then adverse inferences may be drawn (s.35 CJPOA 1994).

Question 6

Are children / persons with disabilities compellable witnesses?

Answer 6

If competent, also compellable?

Question 7

Are spouses and civil partners of the defendant compellable witnesses?

Answer 7

Can be compelled by the defence

Can only be compelled by the prosecution if:
* D charged for assault, injury or threat of injury against spouse/cp themselves or child under 16;
* sexual offence against child under 16
* attempt / aid or conspire of any of the above.

Question 8

What are the consequences of failing to give evidence once compelled?

Answer 8

May be arrested and held in contempt if the defendant refuses to answer questions.

Question 9

What is privilege and how does it apply in criminal cases?

Answer 9

Privilege against self-incrimination: general principle that courts will uphold a witness’ right (not D) to refuse to answer questions or disclose documents if it would make them liable to self-incriminate
Cannot claim privilege to protect someone else, i.e spouse.

Legal Professional Privilege: client communicates with lawyer + purpose of communication is to advance / act in process of litigation or obtain general advice.

Question 10

Is opinion evidence admissible?

Answer 10

Witness is witness of fact, not opinion. However, opinion as to commonplace occurrence about which witness’ perception is relevant may be admitted, e.g “he was drunk”, “it was her I saw”, “I recognise that handwriting, it belongs to X”.

Question 11

When are non-leading questions appropriate?

Answer 11

When carrying out an examination in chief, questions should be non-leading. Otherwise, the evidence obtained in consequence might be inadmissible or less credible.

Question 12

When are leading questions appropriate?

Answer 12

• Where an issue is not in dispute;
• Where the witness is hostile;
• Cross-examination

Question 13

When is a witness considered to be hostile?

Answer 13

• Witness known to have evidence to assist the prosecution + says they will give it then withdraws;
• If witness then gives account inconsistent with first statement + judge deems them not desirous of telling the truth, the party calling the witness can apply to judge to treat them as hostile.
• Can then use previous inconsistent statement to cross-exam witness.