5194LAW Lecture Notes - Lecture 3: Legal Aid, Developmental Psychology, Perjury
20 Jun 2018
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1. COMPETENCE & COMPELLABILITY & VULNERABLE WITNESSES
1.1. Competence & compellability
- Definitions
oCompetence – witness is competent if s/he can lawfully give evidence
oCompellability – witness is compellable if s/he can lawfully be obliged to give
evidence
1.2. ACC v Stoddart [2011] HCA 47 per French CJ and Gummow J:
- Trying to get out of going against husband who she knew was dodgying the books
- [The distinctions between competence, compellability and privilege] are stated as follows
in the eighth Australian edition of Cross on Evidence:
o(1) "It is necessary to distinguish between three separate, though closely related,
concepts – the competence, compellability and privilege of a witness. A person is
competent if that person may lawfully be called to give evidence. Nowadays, most
people are competent witnesses, but under the law which applied to civil cases
down to the middle of the nineteenth century, and to criminal trials until the end of
that century, many of those who could give relevant evidence were not allowed to
do so."
o(2) "A person is compellable if that person can lawfully be obliged to give
evidence. The general rule is that all competent witnesses are compellable, but
there are a few exceptions which will have to be mentioned in due course. The
essential difference between competence and compellability on the one hand, and
privilege on the other, is that the two former matters must be resolved before the
witness begins to testify. Once the witness has entered the witnessbox and has
been sworn, has affirmed or is permitted by law to give unsworn evidence, the
witness must answer all questions put unless excused or unless the refusal to
answer is based upon a privilege conferred by law. Competence and compellability
therefore attach to the witness and not to the evidence the witness may give."
Are they competent?
Are they compellable
Can we force them to give evidence
Must answer unless excused or refusal to answer based on privilege?
Based on grounds might incriminate myself
1.3. Competence
- Traditional (now obsolete) categories of ‘incompetent’ witnesses
onon-Christians;
if couldn’t swear on bible then don’t necessarily have to tell truth
can choose now or affirmation that will tell truth
perjury rules still applies regardless
opersons convicted of serious crimes;
opersons with a pecuniary or proprietary interest in the outcome of proceedings;
oparties to civil litigation & their spouses; &
eg contract
oaccused at own trial & his/her spouse (except when charge concerned violence
against spouse).
-Section 9 EAQ
oGeneral rule now: everyone (including children) is presumed competent:
to give evidence; and
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to give evidence on oath.
Affirmation is equivalent to oath: s17 Oaths Act
Also ss 6 - 8 – expressly abrogates Common Law categories of incompetence
opresumption of competency
(1) Every person, including a child, is presumed to be--
(a) competent to give evidence in a proceeding; and
(b) competent to give evidence in a proceeding on oath
oUnder s 9C, expert evidence may be adduced in relation to question under ss 9A
and 9B and where evidence of a child under age of 12 is to be admitted
Questions whether or not someone competent
Children presumed to be competent but need expert evidence
- When competence is raised as an issue…
oCompetent to give evidence if: can give an intelligible account of events: s 9A
oCompetent to give sworn evidence if person understands that: giving evidence is a
serious matter; & therefore they have: an obligation to tell truth, over & above
ordinary duty to tell truth: s 9B
oCan receive expert evidence on competency: s 9C
oNo legal difference remains between sworn & unsworn evidence: s 9D
Only difference is the weight given to each
-R v D [2003] QCA 151
oD had allegedly Indecent dealing with child under age of 12 approx 5 when
happened and 8 when gave evidence; Evidence at trial by child psychologist as to
ability of child to form accurate uncontaminated memories of events; family friend
indecently touched her; parents asked question but whether child could recall.
oCould she remember?
oTrial judge admitted child’s evidence; Appeal from conviction;
oPer Davis, JA “…it is right for a trial judge "to approach with caution any attempt to
call evidence which could have the effect of usurping the jury's function in reaching
their ultimate conclusion as to whether a witness was telling the truth or not. But
that caution does not entitle a judge to exclude or disregard expert evidence about
a witness' power of memory retention, in deciding a question under s 9A(1),
because he thought that would be to usurp the role of the jury.”
oDavies JA again
“…a distinction which should be made, in considering evidence tendered as
expert evidence about a witness' power of memory, between the capacity of
a witness to retrieve an uncontaminated memory in circumstances such as
this, on the one hand, and, on the other, the possibility that a witness, may
not in fact have an accurate memory because of the possibility that it has
been contaminated by other events. The first of these is a matter on which,
pursuant to s 9A, expert evidence may be given. The second is, in general,
a question for the jury but it may be that, even on this question, expert
evidence may be relevant.”
oJudge has to decide whether the witness can recall. Absolutely developmental
psychologist should be used to be able to give report that child can
1.4. Compellability (step 2)
-General rule: a competent witness is also compellable
oSee ss 6-8 EAQ
oSpouses generally compellable: s 7(2); even in criminal matters without Accused's
consent: s 8(2)
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Before they were not
oDe factos not within Common Law definition of ‘spouses’ – hence competent &
compellable under Common Law: R v Khan (also, of course under current
legislation’s general rule as competent witness without exception to
compellability.)
-Exceptions:
oThe accused is not compellable: s 8 (right to silence)
Including police questions and not forced to make give evidence against
themselves
1.5. Vulnerable witnesses: Introduction
- “Vulnerable witnesses” – umbrella term used to describe broad categories of witnesses in
both civil and criminal proceedings:
oChildren and young people;
oVictims of sexual assault; and
oPeople with impaired intellectual or mental abilities
oOther categories – for example where a person suffers severe emotional trauma or
is so intimidated as to be disadvantaged in giving evidence.
- Sometimes an accused person testifying as a witness in his own defence may fall under
one of the above categories (e.g. where accused has a learning disability).
- Several different legislative options to assist vulnerable witnesses to give evidence
1.6. Competency and protection of children
-Section 9 EAQ – presumption of competency
o(1) Every person, including a child, is presumed to be--
(a) competent to give evidence in a proceeding; and
(b) competent to give evidence in a proceeding on oath
- Expert evidence may be adduced in relation to question under ss 9A and 9B and where
evidence of a child under age of 12 is to be admitted
- Remember R v D [2003] QCA 151 re ability to form memories
- Legislative limitations on the calling of child complainants at committal hearings in sexual
offence proceedings
oUse their evidence not them coming to court preferably
-Evidence (Protection of Children) Amendment Act 2003 (Qld)
- An “affected child” is a child less than 16 years of age who is a witness to a sexual or violent
offence
1.7. Competency, credit and explaining disability
-Coombe v Bessell [1994] 4 Tas R 149
oNormal development and intelligence but D had speech impediment which gave
him difficulty giving evidence
oD gave evidence - convicted
oMagistrate at first instance said D’s demeanour had been of principal importance in
determining credit in the case.
Need for report to explain the stutter
oOn appeal conviction set aside – evidence should be admitted to explain impact of
D’s impediment on demeanour. Not an attempt to bolster credit.
oPer Zeeman J “…I do not agree that the nature of evidence is such that, if it were to
be led on a hearing de novo of the complaint, it could be described as being
calculated to do no more than to bolster the credit of the applicant in any sense
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