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

2. Competency for other witnesses s 18

A. Law

1. 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

2. 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.

3. Can give sworn evidence if complied with s 13(3) – unless incapable of understanding that “they are under an obligation to give truthful evidence”

4. 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

1. Person not compellable from reduced capacity? s 14

2. 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

1. No compulsion: on accused to testify in own trial.

2. 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)).

3. 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?

1. 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

2. 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.

3. Can give sworn evidence if complied with s 13(3) – unless incapable of understanding that “they are under an obligation to give truthful evidence”

4. 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).

5. If compelled –...