TOPIC THREE: COMPETENCE AND COMPELLABILITY
1. INTRODUCTION
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In order for [witness] to give evidence, he/she must be both competent and compellable.
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General rule: Per s12(a), every person is competent to give evidence and per (b) a person who is competent to give evidence about a fact is compellable to give that evidence.
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Thus W is prima facie required to give evidence
2. IS [W] COMPETENT?
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This exercise is done voir dire: s189(1)(c). In determining whether W is competent, the Court can call experts of relevant specialised knowledge to help decide (S13(8)
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s12 is subject to s13
• Competence simply concerned w/ assessing the ‘ability of a Witness to function as a Witness’
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NB: evidence given by witness not inadmissible merely because before witness finishes giving evidence he or she dies or ceases to be competent (S13(7)
→ PRESUMPTION: Per s13(6), W is presumed to be competent unless contrary proven
(can lose competence halfway through!)→ REBUTTING THE PRESUMPTION: However, [W] may rebut this presumption as it may be argued that
W’s [mental, physical, intellectual disability] renders them incompetent to give ev (s13(1)) because they:o
(a) Are incapable of understanding question about the fact; or
o
(b) doesn’t have capacity to give answer that can be understood to a Q about the fact; and
oThis incapacity cannot be overcome *.
o This is evident on the facts as…..
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S30 – can give ev through an interpreter
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S31 – deaf or mute can give ev in appropriate way (sign language etc)
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NB: Low threshold: need not be rational or cogent but merely intelligible so it can be understood
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W may potentially still be competent to give evidence about other facts: s13(2) 2.1. DO THEY NEED TO GIVE AN OATH/AFFIRMATION?
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If they are giving sworn evidence, W must make an oath or affirmation (s21(1)) unless if merely producing a document or thing in court (s21(3))
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The oath remains legally effective, even if W is not religious (s24)
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If no oath is given, then they cannot give sworn evidence and they cannot be cross-examined 2.2. CAN THEY GIVE SWORN EVIDENCE?
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Per s13(3), W cannot give sworn evidence about the fact if they do not have the capacity to
understand their obligation to give truthful evidenceo ‘Obligation’ means to be morally or legally bound to give truthful evidence (GW) o
Not enough for W to merely understand the difference between truth/lies, or to claim to
understand it (GW)
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Here, [W] arguable does not understand the obligation because [facts]. Nevertheless, [W] may give unsworn evidence If the court informs them of the matters in
s13(5)/s13(4):2.3. CAN THEY GIVE UNSWORN EVIDENCE?
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They may nonetheless be competent to give unsworn evidence (s13(4))
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In order to admit unsworn evidence, the Ct must inform W that (s13(5)):
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(a) important to tell the truth and
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(b) W may be asked Qs does not know/cannot remember,W should tell Ct if this occurs; and
o(c) agree with true statements and no pressure to agree if false
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AND The Ct (judge, not just the counsel: SH v R) must inform each detail and discharge their duty adequately, or W will be incompetent. Unsworn ev is not a category of unreliable ev! (R v GW)
o
No obligation to warn jury that unsworn evidence is unreliable (R v GW) EA is neutral to treatment and weight to be attached to either kind of evidence
o A direction by the judge that “I’m not satisfied that she has the capacity’ was still fine despite the wording of s13 suggesting they must be affirmatively satisfied they do not have the capacity; obviously still affirmatively satisfied that she did not have the competence (R v GW)
2.4. SPECIAL PARTY: W IS THE DEFENDANT (CRIMINAL)
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W is (obviously) not competent to give evidence for the prosecution (s17(2))
oBut of course, competent if giving ev for their own defence
2.5. SPECIAL PARTY: CHILDREN – FORBIDDEN WARNINGS!!
CIVIL PROCEEDINGS
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Where ev is given by child before jury, Judge must not warn or suggest that (s165A JDA)
o(a) children as a class are unreliable witnesses; or
o
(b) evidence of children are inherently less credible/reliable/requires careful scrutiny compared to adults; or
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(c) unreliability of particular child’s evidence solely on account of age
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BUT does not prevent judge, at party’s request from (s165A(2))
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(a) informing jury that ev of particular child may be unreliable & reasons why it may be; and
o(b) warning/informing jury of the need for caution in determining whether to accept the
evidence and the weight to give to it
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IF party satisfied Ct there are circumstances OTHER than just age, that affect the reliability of child’s evidence, warranted a warning
CRIMINAL PROCEEDINGS
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TJ/P/D must not direct or suggest that (S33 JDA 2015):
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(a) children as a class are unreliable witnesses; or
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(b) evidence of children are inherently less credible/reliable/requires careful scrutiny compared to adults; or
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(c) unreliability of particular child’s evidence solely on account of age
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(d) it would be dangerous to convict on the uncorroborated ev of a witness because the witness is a child
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Per s32(1) P or D can nonetheless request under s12 that TJ direct on unreliable evidence.
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Requests must specify (a) the significant matters that may make [EV] unreliable; or (b) if request concerns [EV] by child, the significant matters (other than just age) that could make [EV] unreliable
3. IS W COMPELLABLE?
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As W is likely competent, they are presumed to be compellable – can be made by law – to give evidence about [fact] – s12(b)
3.1. EXCEPTION – DEFENDANT IN CRIMINAL PROCEEDING
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An associate accused is not compellable to give ev for/against an accused unless they are being tried separately from accused (S17(3))
3.2. EXCEPTION – DEFENDANT’S SPOUSE OR FAMILY (s18(1))
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As W is the [SPOUSE, DE FACTO PARTNER, PARENT or CHILD] of [D] and this is a criminal proceeding, [W] may object to (a) give ev or (b) to give ev of a (particular) communication between them and D as a witness (s18(2))
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NB: ‘de facto’ includes same-sex partner (Dictionary, EA)
oNB: Relationship must exist at time of giving evidence
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NB: If spouse – they do not automatically have spousal privilege (Stoddart) → only recourse is through balancing act in s18
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STEP ONE: HAVE OBJECTION REQUIREMENTS BEEN COMPLIED WITH?
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Objection must be made before ev given or ASAP after knowing the right – whichever is later s18(3)
oIf appears to Ct W may have right of objection, must satisfy itself that W is aware of this sections
effect (s18(4)
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Objections are determined voir dire (s18(5))
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STEP TWO: DETERMINE LIKELIHOOD OF HARM
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As [W] has objected, he/she must not be required to give evidence if the ct finds that (s18(6)):
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(a) A likelihood that HARM would/may be caused (direct/indirectly) to them, or their r/s with D if they were to give ev: and
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Indirect = financial dependence/retribution/psychological harm
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(b) nature & extent of harm OUTWEIGHS desirability of having evidence
oWhen deciding under sub-s(6), must take into account sub-s(7) factors:
Section Factor Explanation
s 18(7)(a) Nature and gravity of offence for
which D prosecuted The more serious an offence, the more we prefer to hear the evidence (e.g. murder, rape c.f. shoplifting).
Khan: murder of a friend.
s 18(7)(b) Substance and importance of evidence person may give + likely weight attached
Substance: Khan – wife would have to acknowledge lack of chastity. Little weight due to PIS.
Importance - how vital? What weight can jury give?
s 18(7)(c) Is alternative evidence re matter W’s evidence relates reasonably
available?
If W the only one who can provide evidence, will increase desirability of evidence being heard.
s 18(7)(d) Nature of relationship between D and
W
Khan: length of marriage, no. of children, if couple have endured ‘trying circumstances of trial’?s 18(7)(e) If – in giving E – W needs to disclose
matters received in confidence from D Exceptionally harsh to force family members to give evidence against a partner of confidential info in context of relationship.
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STEP THREE: CONCLUDE
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On facts, [likely/unlikely] harm outweighs desirability of evidence and therefore W will/will not be compellable under s18(6)
o
Per s18(8), if objection has been determined, P may not comment on the (a) objection, (b) the decision of Ct re: objection and (c) failure of person to give ev
NB – If C&C doesn’t work, see if they can claim PASI
NB – If conclude they ARE C&C – suggest that his evidence may be so unreliable that it requires a warning
ALTERNATIVE ARRANGEMENTS – ALL REFERENCES TO CRIMINAL PROCEDURE ACT
Criminal Procedure Act 2009
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Specifically for sexual offences, serious assaults where evidence of complainants and witnesses are children or the cognitively impaired
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Designed to make giving evidence easier for vulnerable witnesses
WITNESSES
Does it even apply to these proceedings?
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This [Div 5] applies to criminal proceedings (not committals) relating to (a) sexual offences or (b) indictable offences involving assault/injury/threat of injury s366(1); AND to a WITNESS in a criminal proceeding that is (a) under 18 OR (b) person with cog impairment (s366(2))
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Per s3 definitions: Cog impairment includes impairment b/c of mental illness, intellectual disability, dementia or brain injury
What are the options?
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Per s360, Ct may direct alternative arrangements such as:
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(a) closed-circuit television
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(b) screens to remove D from witness’ direct line of vision
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(c) permitting a person to be beside the witness for emotional support
o(d) permitting only specified persons to be present in Ct
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Requiring legal practitioners not to (e) robe/ or must be (f) seated
If Alternative Arrangements are made, TJ must then warn jury not to draw any inference adverse to
accused or give any evidence lesser or greater weight b/c of making those arrangements
TOPIC NINE: HEARSAY
Rationale for hearsay rule: (Teper)
• It is not the best ev and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by XXN and the light which his demeanour would throw on his testimony is lost
[PARTY] may argue that [evidence X] should be excluded by the hearsay rule as it is evidence of a previous representation made by [person] and adduced to prove the existence of a fact that it can reasonably be supposed that the [person] intended to assert (s59)
• S59:
o (1) Evidence of a previous representation made by a person is inadmissible to prove the existence of a fact [the asserted fact] that it can be reasonably be supposed that the person intended to assert by the representation
o (2) Such a fact is an ‘asserted fact’
1. DOES THE HEARSAY RULE APPLY?
1.1 STEP ONE: REPRESENTATION MADE BY A PERSON?
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A representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced
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Representation includes: (per dictionary)
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(a) An express or implied representation (oral (even if overheard) or in writing) (Walton)
o(b) representation to be inferred from conduct
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(c) Representation not intended by its maker to be communicated to or seen by another
o(d) Representation that for any reason is not communicated
(like a diary)• Kamleh: ‘he turned the TV up’ ; Benz ‘my mother is sick’
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NB: Representation in docs deemed to be made by a person if
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(a) doc written, made or otherwise produced by the person; or
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(b) rep recognised by person as his/her’s by signing, initially or marking 1.2. WHAT IS THE ASSERTED FACT?
• With regards to whether maker of assertion intended to assert the existence of the fact, need to regard whether representation was intended or unintended: ‘representation’ applies to both express and implied
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Express: “Daddy’s on the phone” – mother is asserting that child’s father is on the phone (Walton)
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Implied: “My mother is sick” – impliedly asserting that the other person in the car was his mother
(Benz) – but will not be admissible b/c only relevant If statement made to W were taken to be true•
Inferred from conduct? E.g. woman nodding when asked “is it him” – asserting D assaulted her
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NB: unintended assertions do NOT fall within the hearsay rule – thus would be admissible 1.3. RELEVANCE OF THE REPRESENTATION – IS IT ADDUCED TO PROVE ASSERTED FACT?
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Here, look to what purpose the party is adducing the evidence for (Subramaniam)
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Ev is hearsay and inadmissibility will occur when the object of the ev is to establish the truth contained in the statement
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It will not be hearsay ( ∴ admissible) when the mere fact the statement was made, not its truth, is as stake
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If statement tendered to prove that assertion is true, hearsay. If to show statement was made or for some other purpose, statement admissible (this is original evidence, not hearsay)
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Potential other purposes (to which hearsay does not apply)
Other Purpose Case
To prove awareness or
knowledge (NB: if relevant, think about s66A exception)
Kamleh: W talked with K after shooting. “I turned the TV up”. Asserted fact = that K turned the up the TV. Prosecution wanted to adduce ev to prove K knew TV on full volume (esoteric knowledge of maker), not that he in fact did turn up TV/kill victim. ∴ admissible
To prove state of mind Subramaniam: Defence to terrorism charges was duress. S told court that terrorists said they would kill him if he didn’t comply. Here statement adduced to prove threat was made and he was scared (relevant to defence), but not adduced to prove they actually would kill him
HS is tendered through another W or doc, for the purpose of establishing that the assertion is TRUE
PREVIOUS REP = Rep made otherwise than in course of giving ev in proceeding in which ev of rep sought to be adduced EV OF REP = Person called to give oral ev about rep and/or doc ev tendered as exhibits which show rep made (letter itself, vid recording)
• First: This was admissible and therefore not HS, because it was adduced to prove Z’s state of knowledge of the murder, rather than proof that it was true that Z turned up to the TV and that there were shootings
• Second: This was admissible b/c P sought to show collusion not to prove that what they said on the phone was true (obviously as they were probably lying)
• Third: This was admissible b/c evidence of K’s intention/motive, even though it is adduced to prove the existence of the asserted fact [now reflected in s66A]
EXCEPTIONS TO HEARSAY CASES Lee v R (1998) - s60 EXCEPTION TO HS
FACTS:
• Police sought to tender evidence that Callum had told a police officer that Lee had told him: Don’t bother me I have just done job, I fired two shots…and the other guy with me bailed out
• NB: Confessions are an exception to the hearsay rule
• Callum then says he only remembered speaking to him about money and nothing else – a PIS and the Crown can XXN Callum about this. Lee argues the PIS is inadmissible
• Two ways in which this ev can be brought to the court: can call police officer – hearsay upon heasay
• Alternatively, witness statement of callum – doc is like a witness now HELD:
IF IT IS ADMISSIBLE – ADMISSIBLE FOR NON-HEARSAY PURPOSE, I.E. AS A PIS. ADMISSIONS ARE AN EXCEPTION TO HS IF FHH
• This was SHH – s60 could not have applied here and that evidence is tendered of a previous representation that contains a previous representation by another person - unlikely parliament intended for it to go this far
Graham v R (1998) FACTS:
• Sex assaults by father – told her not to tell anyone. Six years later, told her flatmate what her father had done. Charges made
• Question is whether this is sufficient as ‘fresh in the memory’ of the person who made the rep for s66 HELD:
FRESH MEANS RECENT OR IMMEDIATE
• NOT FIM – the temporal relo required will very likely be measured in hours or days, not years Williams v R (2000) – s65 – MAKER UNAVAILABLE – SHORTLY AFTER
FACTS:
• Police adducing interview with Stuart – he died before trial. Morning of the robbery, W told S that he had done a rort and asked if he had an incinerated (for disposing of ev obviously)
• Recording was 5 days after the robbery – was this shortly after?
HELD:
SHORTLY AFTER DOES NOT REQUIRE STRICT CONTEMPORANEITY - IT IS USED IN ITS ORDINARY SENSE
• 5 days was too long – freshness in the memory – the rationale is not whether the events may easily be recalled, but whether they are likely to be a fabrication! He was a person living a fringed existence - many reasons to tell police what they wanted to hear.
• Shortly after requires that the rep be made ‘when’ or under the proximate pressure of ‘shortly after’ the event Conway v R – MAKER UNAVAILABLE - SHORTLY AFTER
FACTS:
• V died of heroine overdose – before hand told neighbour that C had seen her, she felt off her head, she thought her coffee tasted weird and that C had spiked it
• HS – asserted fact was that the coffee tasted funny/C spiked it – adducing to prove its truth so HS – exception here?
HELD:
DOES NOT REQUIRE STRICT CONTEMPORANEITY
• Rep made on the afternoon the coffee was drunk – that is ok. Unlikely the rep was a fabrication because no reason to lie – several hours later so could recall with accuracy - but then look to (c) – highly probable that the rep is reliable? She was drugged – court considered this as an alternative – a higher threshold (‘catch all’)
Munro v The Queen [2014] – EXAMPLE OF MADE IN CIRCS WHERE HIGHLY PROBABLY REP IS RELIABLE FACTS:
• P wanted to adduce ev from G, a cleaner, linking butts of cigarettes with D’s DNA to crime scene (bus station) – he was proud of his cleaning
• Q is whether it was made in circs that make it probable that it was reliable.
HELD:
LOOK TO CIRCS LIKE PERSONAL INTEREST IN SUBJECT MATTER, ANY REASON TO LIE
• Highly probable it was reliable – S65(2)(C) - merely because made to police officer understanding that false statement could lead to perjury prosecution was insufficient. BUT: G described well remembered work system done for 5 years; no personal interest in the subject matter, the participants or outcome of the trial; any inclination to exaggerate proficiency outweighed by desire to avoid perjury + police could check with employer!
Baker v The Queen [2012] – EVIDENCE ADDUCED BY DEFENDANT AND MAKER UNAVAILABLE!
FACTS:
• Res Gestae Brunswick party case: B sought to adduce admission made by co-accused (LM) contrary to own penal interest – that he pushed deceased out the window – to show that B was not culpable
HELD:
AS LONG AS FHH ADDUCED BY DEFENDANT IN CRIM PROCEEDING, DON’T NEED TO RELY ON (A) (B) OR (C)
• HCA rejected under CL, but said LMs previous reps would meet conditions of s65(8) – provides broader exception to HS rule The Queen v Bauer [2018] -FRESH IN THE MEMORY CHANGES
