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]
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
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
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
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).
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
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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;
v. Social workers.
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
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)
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
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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));
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
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)
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
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.
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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
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
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;
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v. Living in same household as child
vi. In care of or exercised authority over the child on a regular
vii. NOTE: above apply even where only half-, adoptive or step-
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
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
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),