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Lecture

Competence and Compellability

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Nick Dowse Competence and Compellability Competence and Compellability – Structure of Answer 1. “The issue here is whether [X] is competent and compellable to give evidence [for/against] [accused].” a. A witness is competent if can be lawfully called to give evidence. b. A witness is compellable if can be obliged to give evidence. 2. “The general rule is that every person, including a child, is presumed to be competent to give evidence (s 9 QEA).” a. But for some classes of witnesses, there are special rules that apply: (dealt with separately below) i. Privilege ii. Children iii. Intellectually disabled iv. Accused themselves v. Accused’s spouse 3. “A person, including a child, is competent to give evidence if can give an intelligible account of events observed/perceived (s 9A(2) QEA).” a. Whether a person can go one step further can give sworn evidence will depend on whether they understand: i. That giving evidence is a serious matter (s 9B(2)(a) QEA); and ii. That they have an obligation to tell the truth that is over and above the ordinary duty to tell the truth (s 9B(2)(b) QEA). b. If so, they will be competent to give sworn evidence (evidence on oath) (s 9B(2) QEA). i. Sworn evidence is given on oath and sworn on the Bible so that the testimony is binding on the witness’s conscience (s 33 Oaths Act). ii. Can also give an “affirmation” which is a non-religious type of sworn evidence, if: 1. witness is not religious or taking an oath would be contrary to the person’s religious beliefs (s 17 Oaths Act) 2. witness is incapable of understanding the nature of an oath, the judge has the discretion to direct that person to give evidence by way of affirmation (s 37 Oaths Act) 3. it would be impracticable to administer an oath in the form and manner required by a person’s religion to make it binding on the person’s conscience, then they can take a solemn affirmation instead (e.g. where a person has a level of disability) (s 39 Oaths Act). c. If not, can still give unsworn evidence but court must explain to the person that there is a duty to speak the truth (s 9B(3) QEA). 4. Privilege a. A person who is otherwise a competent and compellable witness may in certain circumstances decline to answer certain questions because they possess a ‘privilege’ against doing so. The privileges in contemporary practice are: i. Legal professional privilege – Legal professional privilege allows for confidentiality of communications between lawyer and client. This allows for the client to engage in honest and complete communication with their legal representatives and protects information and communications which are made for the purpose of litigation. ii. Public interest privilege – There is privilege in relation to information that is within the public interest, for example information about criminal intelligence or the inner workings of government. It is possible to extract information or documents that go before the Cabinet and are exempt material under FOI legislation. 1. Note – there is no privilege in relation to journalists and their sources of information, or privilege of a confessional in church. However, in reality, there is no judge that will make a priest in contempt of court. iii. Privilege against self-incrimination – A party is not required incriminate themselves Page 1 of 10 Nick Dowse Competence and Compellability by the production of a document or in an answer to an interrogatory (Reid v Howard). This privilege has been somewhat watered down, but the right to silence remains important and people are entitled to have the court direct the jury not to draw adverse inferences by the accused’s failure to give evidence. iv. Marital privilege (abolished) – there used to be marital privilege and spouses could not be forced to disclose what their spouse said. But was repealed in 2003 thus spouse competent and compellable. b. There is no privilege in QLD for: i. Clergymen and their flocks; ii. Doctors and clients; iii. Journalists and their sources; iv. Counsellors; v. Social workers. 5. Children a. Issue: “Is [child] competent and compellable as a witness for [prosecution/defence]?” b. There is a presumption that every person is competent and compellable to give evidence (s 9(1) QEA). c. However, a child is only competent to give evidence if can give an intelligible account of what perceived (s 9A(2) QEA). i. Whether a person can go one step further can give sworn evidence will depend on whether they understand: 1. That giving evidence is a serious matter (s 9B(2)(a) QEA); and 2. That they have an obligation to tell the truth that is over and above the ordinary duty to tell the truth (s 9B(2)(b) QEA). ii. If so, they will be competent to give sworn evidence (evidence on oath) (s 9B(2) QEA). iii. If not, can still give unsworn evidence but court must explain to the person that there is a duty to speak the truth (s 9B(3) QEA). iv. An expert witness can be called to give evidence about the particular child’s ability to give evidence about the factors in s 9A and 9B, or where the child is under 12 years of age (s 9C(1) QEA) 1. Expert evidence is admissible in the proceeding about the person’s or child’s: (s 9C(2) QEA) a. Level of intelligence b. Powers of perception, memory and expression c. Any other matter relevant to the child’s competence to i. Give evidence ii. Give evidence on oath iii. Give reliable evidence. d. NOTE: unsworn evidence has the same weight as sworn evidence (s 9D(2) QEA). e. Special Principles for Dealing with Children i. Because a child tends to be vulnerable in dealings with a person in authority, it is the Parliament’s intention that a child who is a witness in a proceeding should be given the benefit of special measures when giving the child’s evidence (s 9E(1) QEA). ii. Only applies to children under 16 years (s 9E(3)). iii. Child must be: 1. Treated with dignity, respect and compassion (s 9E(2)(a)); and 2. Limited from distress or trauma when giving evidence (s 9E(2)(b)); and 3. Kept from intimidation in cross-examination (s 9E(2)(c)); and 4. The proceeding should be resolved as quickly as possible (s 9E(2)(d)). f. Improper Questions Can Be Disallowed Page 2 of 10 Nick Dowse Competence and Compellability i. A question that uses inappropriate language, is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive (s 21(4)) may be disallowed in cross-examination (s 21(1)). ii. In deciding whether the question is improper, court must take into account: 1. Any mental, intellectual or physical impairment the witness has (s 21(2)(a)); and 2. Age, education, level of understanding, cultural background or relationship to any party in the proceeding (plus any other relevant matter) (s 21(2)(b)&(3)). a. “Here, [child]’s age may mean the question is improper and would be disallowed under s 21(1) QEA.” g. Child May Also Be a “Special Witness” i. A ‘special witness’ is: 1. A child under 16 years of age (s 21A(1)(a)); or 2. A person with a mental, intellectual or physical impairment who would likely be disadvantaged as a witness (s 21A(1)(b)(i)); or 3. A person who is likely to suffer severe emotional trauma (s 21A(1)(b)(ii); or 4. A person who is likely to be intimidated as to be disadvantaged as a witness (s 21A(1)(b)(iii)). ii. If satisfy the definition, court can do any of the following: 1. Require accused be excluded or obscured from view (criminal only) (s 21A(2) (a)); 2. Exclude the public from the courtroom (s 21A(2)(b)); 3. Allow the witness to give evidence from another room (s 21A(2)(c)); 4. Allow the witness to be accompanied by an emotional support person (s 21A(2)(d)); 5. Allow the witness to give evidence by recorded video (s 21A(2)(e)); 6. Give rest breaks to witness (s 21A(2)(f)(i)) 7. Direct counsel to keep questions simple (s 21A(2)(f)(ii)); 8. Direct counsel to obverse a time limit in questioning (s 21A(2)(f)(iii)); 9. Direct counsel to only ask a certain number of questions on a particular topic/issue (s 21A(2)(f)(iv)). iii. However, the “special witness” provisions do not apply to a child where they are being dealt with as an “affected child” under Div 4A (see below) (s 21A(1A)). h. Child May Also Be an “Affected Child” i. Procedures available to preserve integrity of affected child’s evidence, and limit distress and trauma when giving evidence (s 21AA). ii. Will be an ‘affected child’ where: 1. Under 16 years old at time when accused is arrested (s 21AD(1)(a)(i)(A)) or when complaint made against accused (s 21AD(1)(a)(i)(B)) or when notice is served on accused under PPRA (s 21AD(1)(a)(i)(C); or 2. Is 16 or 17 years old when the accused is arrested and witness is a ‘special witness’ (as above) (s 21AD(1)(a)(ii)); and 3. Child is not the accused (s 21AC); and 4. Offence charged is of a sexual nature (s 21AC defn); or a. RAPE AND SEXUAL ASSAULTS… b. 208. Unlawful sodomy c. 210. Indecent treatment of children under 16 d. 211. Bestiality e. 213. Owner etc. permitting abuse of children on premises f. 215. Carnal knowledge with or of children under 16 g. 216. Abuse of persons with an impairment of the mind h. 217. Procuring young person etc. for carnal knowledge i. 218. Procuring sexual acts by coercion etc. Page 3 of 10 Nick Dowse Competence and Compellability j. 218A. Using internet etc. to procure children under 16 k. 219. Taking child for immoral purposes l. 221. Conspiracy to defile m. 222. Incest n. 227. Indecent acts o. 227A. Observations or recordings in breach of privacy p. 227B. Distributing prohibited visual recordings q. 228. Obscene publications and exhibitions r. 228A. Involving child in making child exploitation material s. 228B. Making child exploitation material t. 228C. Distributing child exploitation material u. 228D. Possessing child exploitation material v. 228F. Excluding non-essential persons from court when child exploitation material displayed w. 228G. Forfeiture of child exploitation material etc. x. 228H. Possession etc. of child exploitation material by law enforcement officer y. 229B. Maintaining a sexual relationship with a child 5. Offence charged is one involving violence and witness is in a prescribed relationship with the accused (s 21AC defn). a. Offences involving violence: i. MURDER ETC… ii. 315 Disabling in order to commit indictable offence iii. 316 Stupefying in order to commit indictable offence iv. 316A Unlawful drink spiking v. 317 Acts intended to cause grievous bodily harm and other malicious acts vi. 320 Grievous bodily harm vii. 320A Torture viii. 322 Administering poison with intent to harm ix. 323 Wounding x. 323A Female genital mutilation xi. 323B Removal of child from State for female genital mutilation xii. 324 Failure to supply necessaries xiii. 326 Endangering life of children by exposure xiv. 328 Negligent acts causing harm xv. 328A Dangerous operation of a vehicle xvi. 328B Additional power to convict for dangerous driving xvii. 335. Common assault xviii. 339. Assaults occasioning bodily harm xix. 340. Serious assaults xx. 354. Kidnapping xxi. 354A. Kidnapping for ransom xxii. 355. Deprivation of liberty xxiii. 359A-359F Unlawful stalking xxiv. 363 Child-stealing xxv. 363A Abduction of child under 16 xxvi. 364 Cruelty to children under 16 b. Prescribed relationships: where accused is (s 21AC defn) i. Child’s parent ii. Child’s grandparent iii. Child’s brother or sister iv. Child’s uncle, aunt, nephew, niece or cousin; Page 4 of 10 Nick Dowse Competence and Compellability v. Living in same household as child vi. In care of or exercised authority over the child on a regular basis vii. NOTE: above apply even where only half-, adoptive or step- relationship. iii. If can satisfy the above definition, entitled to following measures: 1. Evidence-in-chief must be given as a statement without the child being called as a witness (s 21AF(1); and 2. Generally, the child must not be called to give cross-examination at a committal unless the magistrate requires it (s 21AG(1) & (3)); and a. Even if the magistrate does allow cross-examination, can place limits on the cross-examination (s 21AH) 3. The affected child’s evidence must be taken and video-taped at a preliminary hearing presided over by a judicial officer (s 21AK(1) (committal) or s 21AQ(2) (trial)) a. The judicial officer may order that the preliminary hearing be conducted by audiovisual link (s 21AK(3)). b. The judicial officer presiding at the preliminary hearing may make any order the judicial officer considers appropriate in relation to taking and video-taping the affected child’s evidence (s 21AL(1)). c. NOTE: does not apply where child is a witness for the defence (s 21AI(2)). i. Child May Also Be a “Protected Witness” i. Will be a protected witness if: 1. Under 16 years (s 21M(1)(a)); or 2. Person with an impairment of the mind (s 21M(1)(b)); or 3. Proceeding is one for a ‘prescribed special offence’, and witness is an alleged victim of the offence (s 21M(1)(c)); or a. Prescribed special offences (s 21M(3)): i. 208 (Unlawful sodomy), ii. 209 (Attempted sodomy), iii. 210 (Indecent treatment of children under 16), iv. 213 (Owner etc. permitting abuse of children on premises), v. 215 (Carnal knowledge with or of children under 16), vi. 216 (Abuse of intellectually impaired persons), vii. 217 (Procuring young person etc. for carnal knowledge), viii. 218 (Procuring sexual acts by coercion etc.), ix. 219 (Taking child for immoral purposes), x. 221 (Conspiracy to defile),
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