TOPIC THREE:
competence &
compellability
1. INTRODUCTION
THE WITNESS [WITNESS NAME] MUST BE COMPETENT AND COMPELLABLE TO GIVE EVIDENCE. THERE IS A REBUTTABLE PRESUMPTION THAT EVERY PERSON IS COMPETENT (S 12(A)) AND THAT EVERY COMPETENT PERSON IS COMPELLABLE (S 12(B)).
A witness is competent if that witness may lawfully be called to give evidence. This may relate to the capacity to give evidence and legal competence.
A witness is compellable if he or she may be lawfully obliged to give evidence.
2. REBUTTING THE PRESUMPTION OF COMPETENCE
S 13(1) Evidence Act states that a person is not competent to give evidence about a fact if they do not have the capacity to [understand a question (a)/give an answer that can be understood (b)] and that capacity cannot be overcome.
• To overcome this, [PARTY] may argue that the witness could give evidence through an interpreter, as provided in s 30.
• To overcome this, [PARTY] may argue that the deaf or mute witness could give evidence through writing down or using sign language, as provided in s 31.
S 13(2) states that a person who is not competent to give evidence about a fact under subs(1) may be competent to give evidence about other facts.
In order to ascertain any question under s 13, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on their training, study or experienced, per s 13(8). Unless [PARTY] can prove this, it will be presumed that the person is not incompetent because of s 13 (s 13(6)).
THE DEFENDANT - S 17
Under s 17, the defendant remains an incompetent witness for the prosecution. This does not prevent them from giving evidence on their own behalf.
[D] can give evidence after the prosecution has closed its case.
[D] is not compellable to give evidence for or against an associated defendant if they are tried jointly. This is not the case when tried separately.
The accused can give evidence in their own defence. If [D] remains silent, an adverse inference of guilt may be drawn in limited circumstances.
3. OATH OR AFFIRMATION
A witness giving sworn evidence must take an oath or affirmation. 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, they are not competent to give sworn or affirmed evidence about that fact, per s 13(3).
However, even if [PERSON] cannot give sworn evidence, [he/she] may be competent) to give unsworn evidence or evidence that is not affirmed (s 13(4)) if the court has told the person that it is important to tell the truth (a), that he or she may be asked questions that he or she does not know or cannot remember and should tell the court if this occurs (b), and that he or she may be asked
questions that suggest certain statements are true or untrue and should agree with statements that he or she believes are true and feel no pressure to agree with statements that are untrue (c) under s 13(5).
Per SH v R, a failure to comply with these requirements may render the witness not competent to give unsworn evidence. In SH v R, the prosecutor, but not the trial judge had conveyed that the child witness shouldn’t feel pressured to agree, and even though there had been no substantial
miscarriage of justice because the complainant had been provided the information, a strict
interpretation was adopted so that the trial judge, rather than counsel, must convey the information in s 13(5).
4. CHILDREN’S EVIDENCE
CRIMINAL PROCEEDINGS
Per s 33 Jury Directions Act, a judge, prosecution and defence counsel (or accused if they are unrepresented) must not say or suggest to the jury that [children as a class are unreliable witnesses (a)/the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny than the evidence of adults (b)/a particular child’s evidence is unreliable solely on account of the age of the child (c)/it would be dangerous to convict on the uncorroborated evidence of a witness because that witness is a child (d)].
CIVIL PROCEEDINGS
Per s 165A Evidence Act, a judge in a civil proceeding where evidence is given by a child before a jury must not warn the jury or suggest that [children as a class are unreliable witnesses (a)/evidence of children as a class is inherently less credible or reliable or requires more careful scrutiny than the evidence of adults (b)/the particular child’s evidence is unreliable solely on account of the age of the child (c)].
See also ss 21, 23, 24, 24A Evidence Act.
5. UNRELIABLE EVIDENCE
S 31 Jury Directions Act defines unreliable evidence to include:
(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) of the Evidence Act 2008 applies; and (b) evidence the reliability of which may be affected by age, ill health
(whether physical or mental), injury or the like; and
