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Week 3 - Competence and Compellability - Coggle Diagram
Week 3 - Competence and Compellability
Competence
A person is competent to give evidence if they are able to understand the nature of their oath, and their duty to tell the truth.
It is for the judge to determine, as a question of fact, whether they meet this standard.
In this case the lunatic seems to have been perfectly acquainted with the nature and sanction of an oath
~ Alderson B, in
R v Hill
(1851) 169 ER 495
The question for the court was whether Donelly, as a ‘lunatic’ could give evidence.
The court found that although Donelly had a serious mental affliction, he was able to understand the nature of his oath
Evidence Act 1977 (Qld)
s 9A(2)
A person is competent to give evidence if ‘the person is able to give an intelligible account of events which he or she has observed or experienced.’
R v Williams
[1989] 1 Qd R 607, where a 10-year-old, virtually illiterate boy was permitted to provide unsworn testimony because he understood he would be in trouble if he didn’t tell the truth.
R v Williams
(QCA, 26 April 1991, unreported) where an 8-year-old boy was deemed incompetent after not being able to inform the court of his home address or teacher’s name.
s 9B(2);
A person is competent to give sworn evidence if they understand that ‘the giving of evidence is a serious matter’ and that they have ‘an obligation to tell the truth that is over and above the ordinary duty to tell the truth.’
see
R v BBR
[2010] 1 Qd R 546
where the accused was convicted of indecently dealing with his young niece (who was under 10-years of age). The Court of Appeal overturned the conviction because the trial judge had not advised the young complainant witness of her duty of speaking the truth.
Evidence Act contemplates two types of evidence that can be given orally: sworn and unsworn
person is only able to give sworn evidence if they meet the requirements of section 9A, and in addition, if they understand that ‘the giving of evidence is a serious matter’ and that ‘in giving evidence, he or she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth’: Evidence Act 1977 (Qld) s 9B(2).
s 9C
permits the Court to receive expert testimony about intelligence, powers of perception, memory and expression, or other relevant matters to determine competence
s 9D
evidence is sworn or unsworn does not impact upon its probity, nor does it impact upon whether it requires corroboration
Compellability
refers to whether a witness may be compelled to appear at all
General Principle: Anyone competent is also compellable.
Ex Parte Fernandez
(1861) 142 ER 349
a witness refused to give evidence on the basis that the evidence might incriminate him; however, rather than refusing to answer specific questions on this basis, the witness refused to attend the court at all. The judges quite correctly made the point that any person is compellable; and if they have an excuse, they must show this excuse to the court. A person cannot simply excuse themselves from attendance, no matter how good their excuse.
Husbands and Wives are now compellable against one another.
Evidence Act 1997 (Qld) s 7 (but cf UE laws)
CIVIL
- Each party in a civil case is competent and compellable.
Evidence Act 1997 (Qld) s 7
see
Jones v Dunkel
(1959) 101 CLR 298
The failure of a party in a civil case to give evidence about something which it is perceived they could testify may result in an adverse inference being drawn about their case;
In that case (at 312) Justice Menzies noted that a proper direction in this type of case should make it clear that:
2)… the evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence
3) …where an inference is open from the facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.
(1) … the absence of the defendant as a witness cannot be used to make up any deficiency in the evidence;
CRIMINAL
- The accused is not competent or compellable to give evidence for the prosecution in a criminal matter.
Evidence Act 1997 (Qld) s 8
see
Weissensteiner v The Queen
(1993) 178 CLR 217
The Weissensteiner direction was given in some cases that the jury may more safely draw an adverse inference (an inference of guilt) from incriminating facts if an accused did not provide an explanation consistent with innocence (that must be within their knowledge). However, subsequent High Court cases appeared to retreat from this position: see RPS v The Queen (2000) 199 CLR 620 and Azzopardi v The Queen (2001) 205 CLR 50.
They may maintain their right to remain silent as the trial plays out
many reasons why an accused does not want to give evidence
They include: ‘timidity; a concern that cross-examination may confuse the person charged; the fact that the person charged has already given an explanation to police; a possible memory loss; fear of retribution from other persons; or a belief that weaknesses in the prosecution case will leave you in any event with a reasonable doubt as to guilt’: Direction No. 28.2 ‘Defendant Not Giving Evidence, where an adverse inference may follow from that’
Queensland Supreme and District Court Judges Benchbook
Azzopardi v The Queen
(2001) 205 CLR 50
] it was stressed that these comments were only rarely required where the prosecution case is so strong that it calls for the accused to explain
The giving of evidence is not optional – giving evidence when called to do so is one of the fundamental duties of citizenship.
Oral Testimony
Observation evidence
Testimony of those things which a witness actually perceived, themselves, with their own five senses.
Observation evidence is limited to a direct description of those observations, without drawing any inferences from them, and without adding any additional context.
Observations evidence can be difficult to distinguish from some opinion evidence. Consider:
‘I heard a gunshot outside.’ (Opinion)
‘I heard a loud bang outside.’ (Observation)
Opinion Evidence
Opinion evidence does not simply relate the facts observed by the witness; rather it adds some level of interpretation.
Eg, In
R v Whitby
(1957) 74 WN NSW 441 a police officer was permitted to testify that a driver appeared to be, and smelt, intoxicated, even though no breath test was ever administered.
Hearsay Evidence
Hearsay is testimony of something a witness has heard from someone else
Hearsay is usually not admissible, but there are some exceptions - see week on Hearsay
Indigenous Perspectives
Australian Law Reform Commission, Recognition of Aboriginal Customary Laws
Australian Law Reform Commission, Uniform Evidence Laws
Documentary Evidence and Real Evidence
Documentary Evidence
For evidential purposes, a “document” reflects a wide range of media in which words, images or sounds can be stored and later retrieved. The statutory definition includes:
Books, plans, maps, graphs or drawings;
Photographs;
Labels;
Discs, tapes or soundtracks recording data;
Example:
Aust National Airlines Commission v Cth
(1975) 132 CLR 582, in which a cockpit voice recording was held to be a document
Films, negatives and tapes; and
Any other record of information whatever.
Evidence Act 1977 (Qld), definition of “Document”
Real Evidence
Exhibits
Physical objects put before the court for the court to observe first hand.
Exhibits must be authenticated by testimony before they can be accepted as evidence.
Evidence Act 1977
(Qld) s 99, which grants judges a discretion to refuse a jury taking a document into the jury room if there is a risk that the jury may give it ‘undue weight.’
Sometimes exhibits may be taken into the jury room: see, eg, R v Rae [2006] QCA 207, and R v Le (2007) 173 A Crim R 450.
Incidental
The demeanour of a witness will, in all likelihood, affect the credibility which is given to their testimony.
However, the demeanour of a witness may in some circumstances become evidence in itself.
This is real evidence because it is directly observed by the court.
Example:
GIO v Bailey
(1992) 27 NSWLR 304 in which a judge observed the physical discomfort experienced by a witness who had been injured in a motor vehicle accident
Demonstrations
Demonstrations may be conducted by witnesses in the witness box, for instance to physically show an act they claim to have performed; however more complicated re-enactments should be viewed with great caution.
Views
A “view” occurs when the judge and other participants visit a place relevant to the case.
R v Hawi
(No. 7) [2011] NSWSC 1653
R v Rawlinson
[2014] NSWSC 171
•
R v Hawi
(No. 7) [2011] NSWSC 1653, where the jury was taken on a view of the Sydney Airport Domestic Terminal to get an idea of layout when two bikie gangs clashed there.
•
R v Rawlinson
[2014] NSWSC 171, where the jury were taken on a view of a house where a woman had burned to death in a fire as the location of the rooms, and their relationships to each other, could not adequately be conveyed via the ‘walk-through’ video evidence of the crime scene. This was important as there was a question as to whether the accused could have been aware of the victim asleep in bed.
The Uniform Evidence laws, however, allow views to be taken in the same manner as courtroom demonstrations.
Evidence Act 1995
(Cth) ss 53-54