#9230 - Competence And Compellability - Evidence Law

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

Competency

• Are they competent? Yes/No

  • Except 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)

    1. 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

    2. 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)

      1. That it is important to tell the truth

      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 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)

    • Requirements for oaths:

      • Not necessary to use a religious text 24(1)

      • Oath is effective even if the person who took it did not understand the nature and consequences of the oath 24(2)(b)

      • Can take oath even if their spiritual beliefs do not include the existence of a god 24A

        • Oath need not include a reference to a god; and may instead refer to the basis of the person’s beliefs in accordance with a form prescribed by the regulations

• Children

  • A judge must not 165A(1)

    • warn a jury that children are as a class unreliable

    • or that their evidence is less credible or reliable, or require more careful scrutiny than that of adults

    • or in a criminal proceeding, give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child

  • A judge can give a warning that: 165A(2)

    • The evidence of a particular child is unreliable (and explain why)

    • Warn or inform the jury of the need for caution in determining whether to accept the evidence

    • ONLY if there are circumstances (other than the age of the child) particular to that child that affect the reliability of their evidence

    • Onus is on the party seeking the warning

• Sexual Offences or Serious Assaults

  • Witnesses (child or cognitively impaired)

    • 366(1) Criminal Procedure Act 2009 (Vic) For a witness in a criminal proceeding that relates (wholly or partly) to a charge for

      • (a) a sexual offence or

      • (b) an indictable offence which involves an assault on, or injury or threat of injury, to a person

    • s 366(2) CPA And that witness is

      • (a) under the age of 18; or

      • (b) has a cognitive impairment (includes impairment because of mental illness, intellectual disability, dementia or brain injury) s 3 CPA

    • 367 CPA They may give evidence in chief in the form of an audio or audio-visual recording of the witness answering questions put to him by a person prescribed by the regulation

    • 368 CPA Such recording is admissible as if its contents were the direct testimony of the witness so long as:

      • Notice requirements are complied with; and

      • The accused (and legal practitioner) were given a reasonable opportunity to listen to/view the recording; and

At the hearing the witness attests to the truthfulness of the contents and is available for cross-examination and re-examination

• The court may rule as inadmissible any part of the recording 368(3)

• Complainants (children or cognitively impaired)

  • 369(1) Criminal Procedure Act 2009 (Vic) For a complainant in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence

  • 369(2) And that complainant was

    • Under the age of 18

    • Had a cognitive impairment (includes impairment because of mental illness, intellectual disability, dementia or brain injury) s 3 CPA

  • 370(1) The whole of the evidence (including cross-examination and re-examination) of a complainant must be

    1. given at a special hearing and recorded as an audiovisual recording; and

    2. presented to the court in the form of that recording

  • Court will direct whether it is to be held before or during trial 370(1A)

  • 370(2) Court may, on application of the prosecution direct that the complainant is to give direct testimony if satisfied that the complainant

    1. Is aware of his or her right to have a special hearing

    2. Is able and wishes to give direct testimony

  • If a special hearing goes ahead:

    • 371 CPA If a special hearing is held it must be held within 3 months after the day on which the accused is committed for trial; and before the date at which the indictment is filed

    • 372 CPA the defendant and his legal practitioner are to be present, but the defendant is not to be in the same room as the complainant when the C’s evidence is being taken, but is entitled to see and hear the C while the C is giving evidence

    • 372 No unauthorised persons are to be present and the evidence of the complainant is to be given by CCTV that enables communication with the courtroom

    • A recording must be the best available record of the evidence of the complainant 373

    • A recording is admissible in evidence as it its contents were the direct testimony of the complainant 374

      • The court may rule any part admissible, or direct that it be edited or altered to delete any inadmissible part

  • Judges direction to the jury if there is a special hearing

    • 375 CPA: Must warn jury that:

      1. it is routine practice for evidence of a C under 18 or with a cognitive impairment be recorded at a special hearing

      2. no adverse inference may be drawn

      3. evidence is not to be given any greater or lesser weight as a result of the evidence being recorded

• Witnesses/Complainant (other)

  • 359 A court may direct that alternative arrangements be made for the giving of evidence by a witness (including the complainant) if the proceeding relates wholly or partly to designated sexual offences, family violence and certain designated offences

  • 360 Alternative arrangement may include

    1. Use of closed-circuit television

    2. Using screens to remove the defendant from the witness' direct line of vision

    3. Permitting a person to be beside the witness

    4. Permitting only certain people to be present

    5. Requiring legal practitioners not to robe

    6. Requiring legal practitioners to be seated

  • Judge must warn jury not to drawn any adverse inference 361

  • CCTV MUST BE USED WHEN: 363 If the witness is a complainant in a case that relates wholly or partly to a charge for a sexual offence, the court must direct that CCTV be used unless

    1. the prosecution applies for the complainant to give evidence in the court room; and

    2. the court it satisfied that the complainant is aware of their right to give evidence in another place by CCTV or other facilities and is able and wishes to give evidence in the courtroom

  • SCREENS MUST BE USED WHEN 364: If the witness is a complainant in a case that relates wholly or partly to a charge for a sexual offence, the court must direct that screens be used unless:

    1. the court it satisfied that the complainant is aware of their right to use screens

    2. and does not wish a screen to be used

  • DIRECT PRESENCE OF SUPORT PERSON MUST BE AVAILABLE WHEN 365: If the witness is a complainant in a case that relates wholly or partly to a charge for a sexual offence, the court must direct that the complainants gets the direct presence of a support persons unless

    1. the court it satisfied that the complainant is aware of their right and

    2. does not wish to have a support...