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TOPIC 2 – ADDUCING EVIDENCE; WITNESSES
• s11: general powers of the court → run a case to ensure it is run fairly
• STEP ONE: COMPETENCE – is the witness competent to give evidence?
A. GENERAL RULE: s12: unless otherwise stated in the Act, everyone is qualified to act as a witness (presumption)
B. Does X fall under an exception that renders them not competent to give any advice?
→
s13(1):not competent if mental, intellectual or physical disability
C. Apply the test: A person is not competent to give sworn or unsworn evidence if they do not have the capacity to:
a. Understand the question; or s13(1)(a)
– X cannot understand the question because [justify]. This cannot be overcome because [justify]. Accordingly, X is not competent.
b. Give an answer that can be understood; s13(1)(b)
– X cannot give an answer that can be understood because [justify]. This cannot be overcome because [justify]. Accordingly, X is not competent
And this incapacity cannot be overcome D. Deaf or mute? s31(2)
E. Witness dies? s13(7); still admissible
F. Does X fall under an exception that renders them not competent to give SWORN evidence? → s13(3): (test for giving sworn evidence)
▪ Whether a person has the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence
G. Can X give UNSWORN evidence? s13(4)-(5)
▪ If incompetent to give sworn evidence, can give unsworn evidence if sections complied with H. Apply common law:
▪ Kirk v Industrial Court of New South Wales
▪ R v GW: 6-year-old was not competent, Burns J was not satisfied that she had the capacity to understand that giving evidence involves the obligation to give truthful evidence
o Not competent? Unsworn evidence: s13(5) as long as s13(1) satisfied – s21(2) or s21(3) o Sworn evidence: oath or affirmation: s21(1)
• STEP TWO: COMPELLABILITY – is the witness compellable to provide evidence?
A. GENERAL RULE: s12: unless otherwise stated in the act, all witnesses are compellable (presumption)
B. Does X fall within one of the exceptions to compellability? EXCEPTIONS to s12 found in ss14-19.
▪ Right to object to giving evidence under s18 may be lost (certain offences):s19
▪ Associated accused in criminal proceedings: s17
▪ Family member of accused: s18
– X is the [spouse, de facto partner, parent or child] of Y, A family member of accused in a criminal proceeding (s18(1)) may make an application to the judge to be excluded from giving evidence (s18(2))
– Judge will consider the following: Australian Crime Commission v Suddart
s18(6): (a) likelihood that harm might be caused if the person gives evidence AND (b) the nature and extent of the harm outweigh the desirability of the evidence being given
▪ From the facts it is clear that harm would likely/unlikely be caused because [justify]
s18(7): In making the determination, the judge must consider:
a. Nature and gravity of offence
b. Substance and importance of the evidence
c. Whether other evidence of the same matter is available
d. The nature of the relationship between the person objecting and the accused e. Whether the person would have to disclose information given to them in
confidence
Definition of de-facto: p.206 EA Part 2 (11) – Australian Crime Commission v Suddart
C. Conclude: Accordingly, the judge is likely to/to not grant the application
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• STEP THREE: Does the question involve a witness examination? If so, which part?
o A - Examination in chief
1. The aim of the examination in chief is to allow the witness to give their account in their own words
2. Did the questioning fall within a limitation?
Two major limitations: LEADING QUESTIONS and REVIVING A WITNESSES MEMORY
▪ s37: no leading questions are allowed
– Dictionary: leading questions means a questions asked of a witness that- (a) directly or indirectly suggests a particular answer to a question; or (b) assumes the existence of a fact in issue about which the witness has not yet given evidence – Will be prohibited if:
a. X asked [witness]. This question directly/indirectly suggests [answer]. This question may be categorised as a leading question and is prohibited (s37(1)) b. X asked [witness]. This question assumed the existence of [insert], which is in
dispute and which [witness] has never given evidence about. This question may be categorised as a leading question and is prohibited (s37(1)) – Will not be prohibited if: s37(1)
a. The court gives leave
b. The questions relates to a matter introductory to the witness c. No objection is made
d. The questions relates to a matter that is not in dispute
e. If the witness has specialised knowledge based on the witness’s, training, study or experience
X asked [question], which is a leading question. However, this question may be permitted under s37(subsection) because [justify].
3. Is the witness unfavourable? s38
▪ s38: can declare they are an unfavourable witness: p.24 EA
a. When the witness is giving evidence that is unfavourable to the party b. When it appears that the witness is not making genuine attempts to provide
evidence
c. When the witness made a prior inconsistent statement – ABOUT: Credibility of the witness: s43, s108 or;
– Contested fact
▪ Did the court give leave? s37(1)(a)
▪ Adam v R: discussed s38; was not making a genuine attempt to give evidence
▪ R v Lockyer (1996): Unfavourable means: 'Not favourable'
▪ DPP (Vic) v Garrett (2016): It has been held to mean ‘not favourable’; and not to mean
‘adverse’ in the sense of ‘hostile’
▪ Consider s38(6) and s192 4. Did the witness revive their memory?
a. If X was out of court: may refresh memory: s34
b. IF X was in court: not allowed, unless court gives leave: s32(1) c. If in court, was X a police officer? s33(1) and s33(2)
▪ s32: a witness may not refer to any notes to revive memory when providing evidence in court unless provided with leave
▪ s33: Sets an exception to the rule with regard to police officers (permitted to refer statements they have made in court)
▪ s34: refreshing witness memory outside of court (reading a statement they prepared early before giving evidence at court