Competence+and+Compellability

Need to show that the witness is competent and compellable.

Except as otherwise provided by this Act –
 * s.12 ** –
 * 1) every person is competent to give evidence
 * 2) a person who is competent to give evidence about a fact is compellable to give that evidence


 * __ COMPETENCE __**


 * A witness is competent if that witness may lawfully be called to give evidence.


 * Competence may relate to: **
 * The capacity to give evidence (e.g. children, mentally disabled)
 * Legal competence (e.g. defendant).


 * Test of Competence at Common Law – The Oath **
 * does the witness understand that nature of the oath?
 * The witness must believe the oath; or
 * Have an intellectual understanding

** Incompetent Witnesses ** A person is not competent to give evidence about a fact if, for any reason (inc a mental, intellectual or physical disability) – And that incapacity cannot be overcome.
 * s.13(1) ** –
 * 1) The person does not have the capacity to understand a question about the fact; or
 * 2) The person does not have the capacity to give an answer that can be understood to a question about the fact

** Exception to 13(1) ** A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
 * s.13(2) – **

__ e.g. __ sexual offence issue of consent, child may not understand.

** Determining if a witness if competent ** The court can determine whether a witness is competent by (exhaustive) obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience.
 * s.13(6)(8) ** –
 * This would occur on a voir dire, in the absence of the jury;
 * The judge would
 * Ask questions of the witness;
 * Expert evidence may be useful here to decide if the witness is competent.


 * OATH OR AFFIRMATION (SWORN AND UNSWORN EVIDENCE) **

** Witness must have capacity to understand ** A person who is competent to give evidence about a fact is not competent to give //sworn// evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
 * s.21, 23, 24 & 24A – **
 * A witness giving sworn evidence must take an oath or make an affirmation. Form is spelt out in the schedule of the act.
 * A person called merely to produce a document or thing to the court need not take an oath or make an affirmation.
 * The responsible officer of a company may have to hand over the document. If you had to be sworn in order to hand over the document you would be exposed to cross examination on other matters.
 * Sections 24 and 24A takes the oath away from being related god – anyone from any religion/faith can take the oath.
 * s.13(3) – **

** Competent in giving unsworn evidence ** That person may be competent to give // unsworn evidence // if the court has told the person:
 * s.13(4)(5) – **
 * 1) that it is important to tell the truth; and
 * 2) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and
 * 3) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

** Witness ceases to be competent mid-trial ** Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
 * s.13(7) – **


 * __ COMPELLABILITY __**


 * A witness is compellable if he or she may be lawfully obliged to give evidence.
 * Victims, children and family members may not be compelled to give evidence.
 * See **s.12(b)** above


 * Test of Competence and Compellability **

// Does the witness have the capacity to understand the obligation to give truthful evidence? //
 * If no – the witness is incompetent.
 * If yes –

// Does the witness have the capacity to given an answer which can be understood? //
 * If no – the witness is incompetent
 * If yes, the witness is competent.

// If competent, does the witness have the capacity to understand the obligation to give truthful evidence? //
 * If no, may give unsworn evidence if informed of matters in s.13(5)
 * If yes, the witness may give sworn evidence.


 * AAs FOR CHILDREN AND PERSONS WITH COGNITIVE IMPAIRMENTS **

** Children’s Evidence ** In any proceeding a judge must not:
 * In cases of a disability, an interpreter, mechanical or electronic assistance can be provided. If they cannot be overcome, the witness is not competent.
 * s.165A – **
 * Warn or suggest to the jury that children as a class are unreliable witnesses or that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults;
 * Give a warning, or suggestion to the jury, about the unreliability of the particular child's evidence solely on account of the age of the child;
 * In the case of a criminal proceeding—give a general warning to the jury of the danger of convicting on the uncorroborated (when there is no other evidence or testimony to confirm it) evidence of a witness who is a child.
 * If a party satisfies the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child's evidence and that warrant the giving of a warning or information, the judge may, at the request of the party:
 * Inform the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable; and
 * Warn or inform the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it.


 * Challenges for children in sex cases: **
 * The Defendant may be present.
 * Subject matters – sensitive and complex
 * Nature of proceedings can be intimidating
 * Delays between the incident occurring and the actual trial

** AAs for sexual offences or indictable offences ** This section applies to a legal proceeding, other than a committal proceeding, that relates (wholly or partly) to a charge for
 * s.37B(1) – **
 * 1) a sexual offence; or
 * 2) an indictable offence which involves an assault on, or injury or a threat of injury to, a person.

** Audio and Video Recordings ** The evidence-in-chief of a witness for the prosecution may be given (wholly or partly) in the form of an audio or video recording of the witness answering questions put to him or her by a person prescribed for the purposes of this section if the witness is a person with __a cognitive impairment or is under the age of 18__. ** Recording must be direct testimony ** The recording is admissible in evidence in the proceeding as if its contents were the direct testimony of the witness if- ** Applies to Sexual Offence Cases ** Applies to a legal proceeding, other than a committal proceeding, that relates (wholly or partly) to a charge for a __sexual offence__. Subject to (3), the whole of the evidence of a child complainant or of a complainant with a cognitive impairment (including cross-examination and re-examination) must be taken at a special hearing and video recorded.
 * s.37B(2) – **
 * s.37B(3) – **
 * 1) At the proceeding the witness—
 * 2) Identifies himself or herself and attests to the truthfulness of the contents of the recording; and
 * 3) Is available for cross-examination and re-examination.
 * s.41G(1)(2) – **

** Directing the complainant to give direct testimony ** The court may, on the application of the prosecution, direct that the complainant is to give direct testimony if the court is satisfied that the complainant—
 * s.41G(3) – **
 * is aware of his or her right to have his or her evidence taken at a special hearing under this section; and
 * is able and wishes to give direct testimony in the proceeding.

** Special Hearings ** At a special hearing:
 * s.41G(6) – **
 * the defendant and his or her legal practitioner are to be present;
 * the defendant is not to be in the same room as the complainant when the complainant's evidence is being taken; but
 * is entitled to see and hear the complainant while the complainant is giving evidence.
 * no unauthorised persons are to be present when the complainant's evidence is being taken; and
 * the evidence of the complainant is to be given by means of closed-circuit television that enables communication with the courtroom.

** Recording’s contents must be a direct testimony of the witness ** A recording is admissible in evidence as if its contents were the direct testimony of the witness. The court may rule as inadmissible the whole or any part of the contents of a recording and, if so, the court may direct that the recording be edited or altered to delete any part of it that is inadmissible.
 * s.41H(1)(2) – **

** Circumstances where witness must be present ** The witness is not required to attend the proceeding unless required to do so for cross-examination or re-examination. A court must not grant leave to cross examine unless satisfied that: ** s.37 does not apply to complainants ** This section does not apply to a witness who is a complainant in relation to a charge for a sexual offence and who is a child or a person with a cognitive impairment.
 * s.41H(6) **
 * the defendant is seeking leave because of becoming aware of a matter of which he or she could not reasonably have been aware at the time of the recording; or
 * if the witness were giving direct testimony he or she could, in the interests of justice, be recalled to give further evidence; or
 * it is otherwise in the interests of justice to permit the witness to be cross examined or re-examined.
 * s.37C(1) **

** Directing that Alternate Arrangements be made ** The court may, of its own motion or on the application of a party to a legal proceeding, direct that alternative arrangements be made for the giving of evidence by a witness if the proceeding relates (wholly or partly) to designated sexual offences.
 * s.37C(2) **

** Types of Alternative Arrangments ** The alternative arrangements may include: *exclusive list *discretionary direction
 * s.37C(3) **
 * Use of closed-circuit television
 * Using screens to remove the defendant from the witness' direct line of vision
 * Permitting a person to be beside the witness
 * Requiring legal practitioners not to robe and/or to be seated
 * Permitting only specified persons to be present in court.

** Sexual Offence directions ** Subject to sub-section (2), in a legal proceeding that relates (wholly or partly) to a charge for a sexual offence, the court __must__ direct that any of the following alternative arrangements be made for the giving of evidence by a child complainant or a complainant with a cognitive impairment—
 * s.41E(1) **
 * Use of closed-circuit television
 * Using screens to remove the defendant from the witness' direct line of vision
 * Permitting a person to be beside the witness

** Where AAs are not necessary ** The court must direct that the alternative arrangement be made unless:
 * s.41E(2) **
 * 1) the court is satisfied that the complainant is aware of his or her right to give evidence in accordance with the arrangements and is able and wishes to give evidence in the courtroom; and
 * 2) the court, on the application of the prosecution, determines not to direct that the arrangements be made.


 * AAs FOR THE DEFENDANT **

** Defendants are not competent ** In a criminal proceeding, a D is not competent to give evidence for the prosecution. An ‘associated defendant’ is not compellable against a defendant unless tried separately. ** Defendants are competent but not compellable ** Subject to this section, where a person is charged with an offence he shall at every stage of the proceedings against him be a competent, but not compellable, witness of his own defence…
 * s.17 – **
 * s.399(1) Crimes Act – **
 * AAs FOR THE DEFENDANT’S SPOUSE OR FAMILY **

** Can object to giving evidence ** In a criminal proceeding, a person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required—
 * s.18(1)(2) **
 * to give evidence; or
 * to give evidence of a communication between the person and the defendant—as a witness for the __prosecution__.

** Must be current relationship ** Applies only to relationships which are in existence at the time of giving evidence. ‘De facto partner’ is defined in the Dictionary to the Act and includes same-sex relationships.
 * s.18(1)(2) **

** Must be informed of right to object and object asap ** Objection must be made before giving evidence or as soon as practicable after the person becomes aware of the right. If it appears to the court that a person may have a right to object, the court must satisfy itself that the person is aware of the effect of the section. Any objection must be determined in the absence of the jury (if any).
 * s.18(3)(4)(5) **

** Court must weight up the likelihood and extent of harm vs benefit of evidence ** The person must not be required to give the evidence if the court finds that:
 * s.18(6) **
 * there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence; __and__
 * the nature and extent of that harm outweighs the desirability of having the evidence given.

** Court must take into account… ** Without limitation, the court must take into account:
 * s.18(7) **
 * the nature and gravity of the offence for which the defendant is being prosecuted;
 * the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;
 * whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor;
 * the nature of the relationship between the defendant and the person;
 * whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

** Rules for Prosecution ** If an objection under this section has been determined, the prosecutor may not comment on—
 * s.18(8) **
 * the objection; or
 * the decision of the court in relation to the objection; or
 * the failure of the person to give evidence.