This is an extract of our Competence And Compellability document, which we sell as part of our Evidence Law Notes collection written by the top tier of Monash University students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Competence and Compellability?A competent witness - can be lawfully called to give evidence i.e. allowed to give evidence. Concerned about the ability of the witness to function as a witness A compellable witness - can be obliged to give evidence i.e. required to give evidence A witness is presumed to be competent. Generally if you are competent, you are compellable s12
CompetencyAre they competent? Yes/No o o
o o o
oExcept as otherwise provided by the Act, every person is competent to give evidence s 12(a) EA A person is not competent to give evidence about if fact, if, for any reason 13(1) (a)They do not have the capacity to understand a question about the fact; or
? Remember interpreters can be used to help them understand and to adequately reply s 30
? If the person is deaf or mute the court can give directions so that they can satisfy these sections s 31 (b)Do not have the capacity to give an understandable answer about the fact However just because they are not competent to give evidence about one fact does not necessarily mean they are not competent to give evidence about another fact s 13(2) EA It is presumed, for the purposes of s 13, that the person is competent. The burden of proof is on the party arguing they are not s 13(6) 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 experience) s 13(8) Evidence that has been given by a witness does not become inadmissible because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence s 13(7)
If they ARE competent, can they give sworn evidence?
Unsworn Evidence: A person who is competent to give evidence is NOT competent to give sworn evidence about the fact if they do not have a capacity to understand that, in giving evidence, they are under an obligation to give truthful evidence s 13(3)
? Do they have the capacity to understand that they are under and obligation to give truthful evidence? If not:
? In these scenario, they may be competent to give unsworn evidence 13(4) if the court has told the person (5) (a)That it is important to tell the truth (b)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 (c) That he or she may be asked questions that suggest certain statement are true or untrue and that he or she should feel no pressure to agree with them if he/she thinks they are untrue
? Failure to comply may render the witness not competent to give unsworn evidence SH v R If they are capable of giving sworn evidence:
? A witness giving sworn evidence must take an oath or affirmation s 21. They can choose which one s 23(1), must be informed that they can choose unless they have already been informed or know that they have that choice s 23(2) and can be forced to take an affirmation if they refuse to choose, or can't take the appropriate oath s 23(3)
? A person called to merely produce a document or thing need not take an oath or make an affirmation s 21 (If they aren't sworn in, aren't open to cross-examination)
Buy the full version of these notes or essay plans and more in our Evidence Law Notes.