#8537 - Competence And Compellability - Litigation 2

Lit 4 Competence and Compellability 1

1. Competency and compellability of the defendants in a criminal trial: s 17 see s 20; Azzopardi; Weissensteiner comments in no. 20 notes 2

(i) Opening the Defence case – s 159 CPA 2

(ii) Accused can testify for self (s 17), but not for Crown s 17(2) 2

2. Competency of other witnesses 4

A. Law 4

B. Procedure for determining competency? 7

3. Compellability of other Witnesses 8

A. Law 8

(a) Not compellable under s 14(a) cost or delay and (b) adequate evidence from other sources 8

(b) Not compellable if particular class eg spouses: s 18; Khan 8

B. Procedure for compellability 10

Appendix: Competence/Compellability 11

23.1‐23.5; SM: ss12, 13, 14 (p.32‐33); Section 18: apply Khan at 23.21

Exam format /checklist

1. Competency/compellability of the defendant? Associated defendant? S 17

2. Competency for other witnesses s 18

A. Law

State the general presumption (everyone competent under s 12(a) and every competent person is compellable under s 12(b)).
1. If compelled, doesn’t give evidence, breach law: Gilby.
2. Person can take oath or make affirmation: s 21
Competent to give evidence or incompetent from a lack of capacity? s 13(1)
1. What is incompetence: under s 13
2. Procedure: Obligation on court undertake inquiries.
3. Consequences: If not competent – then cannot give sworn or unsworn evidence. If competent, then consider if can give sworn (s 13(3)) if not then unsworn evidence.
Can give sworn evidence if complied with s 13(3) – unless incapable of understanding that “they are under an obligation to give truthful evidence”
If cannot give sworn evidence, can give unsworn evidence? if (a) satisfies s 13(1) and (b) court has told person the three matters in s 13(5).

B. Procedure: Note on procedure – how the court can decide issues of competency and compellability: under s 13(8)

3. Compellability for other witnesses: s 14, 18

Person not compellable from reduced capacity? s 14
Criminal proceedings > spouses and others not compellable s 18; Khan

Defence can give an opening statement after prosecution opening on matters disclosed in the prosecutor’s opening address in addition ‘to the matters to be raised by the accused person’: S 159 Criminal Procedure Act (NSW).

Scope: s 159 limits defence to informing jury of issues to be raised in the trial, and should not be lengthy or argumentative: R v MM .
Eg could be overstepping to discuss: onus and standard of proof, function of judges and jury, or to anticipate directions/warnings given by trial judge, urge jury on way to assess evidence: R v MM
Could be overstepping to emphasise how the matters are very old: R v MM
Rationale: (1) to inform jury of issues to be raised in trial. “Purpose of such an announcement in the early defence opening is to alert jury at early stage of trial as to nature of accused’s person defence. So issues in case narrowed and defined. (2) To avoid disadvantage to Crown which could arise if Crown opening were to be substantially separated from the Crown case: R v MM

Law

No compulsion: on accused to testify in own trial.
Accused person can testify, but is incompetent to testify as a prosecution witness in his or her own trial: s 17(2) EA. (only for criminal proceedings: s 17(1)).
Associated defendant not compellable to give evidence for or against a fellow D (unless separately tried) but can if court is satisfied that AD knows right under s 17(3) (s 17(4)): An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant: s 17(3) EA
- Is X an AD? An associated defendant is a person for whom a prosecution has been instituted but not finalized, for: (a) an offence that arose in relation to same events as those in relation to which offence for which D is being prosecuted arose; or (b) an offence that relates to or is connected with the offence for which the accuse is being prosecuted (EA Dictionary)
  - So two elements (1) charges not finalized and (2) offence or events are related to accused’s
- If AD, then:
  - Not compellable to give evidence ‘both for or against a defendant in a criminal proceeding’: s 17(3) but can if court is satisfied that they are aware of lack of evidence: s 17(4).
  - Court should inform witness AD of s 17(3): If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury's absence) that the witness is aware of the effect of subsection (3): s 17(4)

Think about:

Is the other person (possible AD) competent? Compellable? An accomplice such that the evidence should be given close scrutiny: Grey?

Checklist	State the general presumption (everyone competent under s 12(a) and every competent person is compellable under s 12(b)). If compelled, doesn’t give evidence, breach law: Gilby. Person can take oath or make affirmation: s 21 Competent to give evidence or incompetent from a lack of capacity? s 13(1) What is incompetence: under s 13 Procedure: Obligation on court undertake inquiries. Consequences: If not competent – then cannot give sworn or unsworn evidence. If competent, then consider if can give sworn (s 13(3)) if not then unsworn evidence. Can give sworn evidence if complied with s 13(3) – unless incapable of understanding that “they are under an obligation to give truthful evidence” If cannot give sworn evidence, can give unsworn evidence? if (a) satisfies s 13(1) and (b) court has told person the three matters in s 13(5). If compelled – then procedure consider the procedure for determining issues of competency s 13(8)
(a). general presumptions	a. State the general presumption about Competence and compellability Generally everyone competent: Every person is competent to give evidence, unless excepted by the EA: s 12(a) EA Every competent person is compellable: A person who is competent to give evidence about a fact is compellable to give that evidence: s 12(b) EA
(b) Is person competent to give any evidence?: s 1(1).	b. Is person competent to give evidence? Incompetent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): if Req 1: Person does not have: (a) capacity to understand a question about the fact (13(1)(a) or (b) capacity to give an answer that can be understood to a question about the fact (s 13(1)(b)); and Req 2#: That incapacity cannot be overcome (eg by s 30-31): s 13(1) Can be competent to give evidence about some facts and not others: A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts: s 13(2) EA More on Req 2: 30 Interpreters : A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact. 31 Deaf and mute witnesses : (1) A witness who cannot hear adequately may be questioned in any appropriate way. (2) A witness who cannot speak adequately may give evidence by any appropriate means. (3) The court may give directions concerning either or both of the following: (a) the way in which a witness may be questioned under subsection (1), (b) the means by which a witness may give evidence under subsection (2). (4) This section does not affect the right of a witness to whom this section applies to give evidence about a fact through an interpreter under section 30. Procedure: Presumption: It is presumed, unless the contrary is proved, that a person is not incompetent because of this section: s 13(6); s 12. (Wrong in law for court to assume that W incompetent to give sworn evidence without testing witness in this regard: Brooks) Court can inform itself in any way it thinks fit: S 13(8), including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience. If competency issue arises, hear matter on voir dire: determined by judge, jury absent: RA v R; Demirok; s 189(4) EA. Court may overturn this presumption and order jury to observe proceedings but only after at least considering s 189(5) factors: (a) prejudice to defendant; (b) whether ev concerned will be adduced in course of competency hearing; (c) and whether ev would be admitted if adduced at another stage of hearing. Onus and standard of proof: person seeking to challenge W’s competency bears burden of raising issue, and then the court will inquire into the matter (in any way it sees fit under s 13(8)), in order to determine whether its satisfied on the BOP (s 142(1)) W is incompetent Consequences: if complies with s 13(1), can give sworn evidence if complies with s 13(3), but if des not comply with s 13(3), can possibly give unsworn evidence if compliance with s 13(4).
(c) Can person give sworn evidence due to compliance with s 13(3)?	c. A person who complies with s 13(1) can only give sworn evidence about the fact if they comply with s 13(3) – must be capable of...

Checklist

State the general presumption (everyone competent under s 12(a) and every competent person is compellable under s 12(b)).
1. If compelled, doesn’t give evidence, breach law: Gilby.
2. Person can take oath or make affirmation: s 21
Competent to give evidence or incompetent from a lack of capacity? s 13(1)
1. What is incompetence: under s 13
2. Procedure: Obligation on court undertake inquiries.
3. Consequences: If not competent – then cannot give sworn or unsworn evidence. If competent, then consider if can give sworn (s 13(3)) if not then unsworn evidence.
Can give sworn evidence if complied with s 13(3) – unless incapable of understanding that “they are under an obligation to give truthful evidence”
If cannot give sworn evidence, can give unsworn evidence? if (a) satisfies s 13(1) and (b) court has told person the three matters in s 13(5).
If compelled – then procedure

consider the procedure for determining issues of competency s 13(8)

(a). general presumptions

a. State the general presumption about Competence and compellability

Generally everyone competent: Every person is competent to give evidence, unless excepted by the EA: s 12(a) EA
Every competent person is compellable: A person who is competent to give evidence about a fact is compellable to give that evidence: s 12(b) EA

(b) Is person competent to give any evidence?: s 1(1).

b. Is person competent to give evidence?

Incompetent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): if
- Req 1: Person does not have:
  - (a) capacity to understand a question about the fact (13(1)(a) or
  - (b) capacity to give an answer that can be understood to a question about the fact (s 13(1)(b)); and
- Req 2#: That incapacity cannot be overcome (eg by s 30-31): s 13(1)
Can be competent to give evidence about some facts and not others: A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts: s 13(2) EA

More on Req 2:

30 Interpreters : A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.
31 Deaf and mute witnesses : (1) A witness who cannot hear adequately may be questioned in any appropriate way. (2) A witness who cannot speak adequately may give evidence by any appropriate means. (3) The court may give directions concerning either or both of the following: (a) the way in which a witness may be questioned under subsection (1), (b) the means by which a witness may give evidence under subsection (2). (4) This section does not affect the right of a witness to whom this section applies to give evidence about a fact through an interpreter under section 30.

Procedure:

Presumption: It is presumed, unless the contrary is proved, that a person is not incompetent because of this section: s 13(6); s 12. (Wrong in law for court to assume that W incompetent to give sworn evidence without testing witness in this regard: Brooks)

Court can inform itself in any way it thinks fit: S 13(8), including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience.
If competency issue arises, hear matter on voir dire: determined by judge, jury absent: RA v R; Demirok; s 189(4) EA. Court may overturn this presumption and order jury to observe proceedings but only after at least considering s 189(5) factors: (a) prejudice to defendant; (b) whether ev concerned will be adduced in course of competency hearing; (c) and whether ev would be admitted if adduced at another stage of hearing.
Onus and standard of proof: person seeking to challenge W’s competency bears burden of raising issue, and then the court will inquire into the matter (in any way it sees fit under s 13(8)), in order to determine whether its satisfied on the BOP (s 142(1)) W is incompetent

Consequences:

if complies with s 13(1), can give sworn evidence if complies with s 13(3), but if des not comply with s 13(3), can possibly give unsworn evidence if compliance with s 13(4).

(c) Can person give sworn evidence due to compliance with s 13(3)?

c. A person who complies with s 13(1) can only give sworn evidence about the fact if they comply with s 13(3) – must be capable of...

#8537 - Competence And Compellability - Litigation 2 - Evidence Law

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