Witnesses: Examination, Competence and Compellability, Privilege, Opinion Evidence, Experts

Question 1

examination of witnesses

Answer 1

1) examination in chief =

• no leading questions
• witness statements can be used: if contents are agreed, if witness is asked to refresh their memory, in cross examination on a previous inconsistent statement
• hostile witness = W is called to give evidence and gives an inconsistent account than their original statement - so judge thinks they are not telling the truth

2) cross-examination = opposing party can ask leading questions

3) re-examination = if adducing party wants to cover matters raised in cross-examination which could not have reasonably been covered in examination in chief

Question 2

competence vs compellability

Answer 2

• competence = whether W is allowed to give evidence in court
• compellability = whether W can be forced to give evidence

Question 3

competence and compellability of ordinary witnesses

Answer 3

• competent for prosecution and defence
• compellable for prosecution and defence

Question 4

competence and compellability of the defendant

Answer 4

• for prosecution = not competent or compellable
• for themselves = competent but not compellable (but adverse inferences may be drawn if they do not give evidence for themselves)
• for co-defendant = competent but not compellable

Question 5

competence and compellability of a spouse

Answer 5

competent for prosecution and defence

compellability =

• for prosecution = compellable against their partner only in domestic abuse or child abuse cases
• for defence = compellable for their defendant spouse UNLESS jointly charged with the defendant spouse
• for co-defendant = compellable against their partner only in domestic abuse or child abuse cases

Question 6

competence and compellability of children or persons with disorders/disabilities

Answer 6

• competent if they can understand questions and give comprehensive answers
• compellable if competent

Question 7

2 types of witness privileges

Answer 7

1) against self-incrimination =

• only to protect themselves from incrimination not another person (even a spouse)
• but they cannot prevent such information from being acquired by other routes

2) legal professional privilege =

1. litigation privilege = all direct communication between lawyer and client is privileged unless client waives this
2. advice privilege = communications with third parties will be privileged in the case of litigation but not general advice

Question 8

when can courts allow witness opinions?

Answer 8

1. expert evidence
2. opinion is given in relation to commonplace occurrences about which the witnesses’s perception appears relevant and proper

Question 9

opinion evidence - commonplace occurrences

Answer 9

examples of admissible commonplace occurrence opinion =

• drunkenness = witness can say ‘he was drunk’ or otherwise can give factual evidence indicating a person’s speech was slurred, pupils dilated, or walking unsteadily.
• identification evidence = eg, he was young
• recognition of voice and handwriting

Question 10

opinion evidence - expert evidence

Answer 10

• the law specifies what level of expertise is required before the court allows expert opinion - eg, doctors not nurses can give some medical evidence
• the party seeking to rely on expert evidence must establish they have sufficient expertise
• an advocate CANNOT ask an expert to give an opinion directly on the final matter in issue in the case (this is for the jury)
• the jury is NOT obliged to accept expert evidence EVEN if it is not contradicted
• the jury IS OBLIGED to accept expert evidence where the expert’s opinion and all other evidence leads invariable to only one conclusion (via direction by judge)