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2. Competence & Compellability

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Competence, Compellability & Special Witnesses  Generally → Competent & Compellable  Intelligible account of events → Competent  Knows evidence is serious → Competent under Oath  Affected Children  Child victim of sexual / violent offences (s21AA) → Video link etc  Special Witnesses  Children or likely to be intimidated etc (s21A) → Exclude people etc  Protected Witness  Child or victim of certain offences (s21M) → No XE by accused  Accused → Competent but not compellable (not competent for R)  Spouse → Competent & Compellable (no privilege)  Counsellors → Competent & Compellable (no privilege)  Aboriginal, ESL, Sex-related cases → Special provisions competent = may be called to give evidence compellable = obliged to give evidence Whether competent or compellable = collateral facts to be proven before the judge in a voir dire Privileges for—  Public interest and national security  Legal professional  Self-Incrimination (accused does not have to answer questions that will incriminate themselves) Witnesses Generally General Rule—Every person, including a child, is presumed to be competent: s9 QEA Qualifications to Rule (children & mentally disabled)  Witnesses competent if able to give an intelligible account of the events: s9A(2)  Sworn | Unsworn evidence o Competent to give evidence under oath if understands— (s9B(2) (especially with chn))  Giving evidence is a serious matter  Under obligation to tell truth, over & above ordinary duty o Otherwise → can give unsworn evidence, but Ct must explain duty of speaking the truth to the person: s9B(3)  Probative value not decreased merely because not sworn: s9D(2)(a)  Still liable for perjury: s9D(2)(c)  If any of these challenged—expert evidence can be used to discern o Can be used if— (s9C)  Witness is <12yrs: s9C(1)(c)  Deciding whether able to give intelligible account: s9C(1)(a)  Deciding whether understands obligations enough to give evidence under oath: s9C(1)(b) o Comment on— (s9C(2))  Intelligence  Powers of perception, memory & expression  Other relevant matters  Can still give evidence even if insane: R v Hill Andrew Trotter LWB432 Evidence Specifically for Children: s9E QEA = under 16 years old: s 9E(3) QEA Principles for dealing with children— (s9E(2) QEA) (a) Treat with dignity, respect and compassion; (b) limit distress & trauma as much as possible (c) don’t intimidate in cross-examination; (d) resolve as quickly as possible.  The court is allowed to disallow improper questions (upset or disturb the child): s21 QEA, having regard to— o Mental, intellectual, physical impairment o Age | education | level of understanding | cultural background | relationship to other parties to the proceeding  Support person during questioning by police: s 421 PPRA o support person to be present for pre-arrest questioning o child gets to choose support person o child may speak to support person in private o if support person unreasonably interferes with police questioning, the police officer may exclude them  Judge cannot give general direction about unreliability based on class of witness (eg child: s632 CC Affected children: s21AA QEA Object: to preserve integrity of child’s evidence | limit their distress & trauma: s21AA QEA Definition Affected child = a child in a relevant proceeding: s21AC 1. Child: s21AD  Measure from time when— o Criminal—def arrested | complaint made re defendant in proceeding | notice to appear served on def o Civil—when proceedings start  Age— o <16 years: s21AD(1)(a)(i) o 16~17 years AND special witness: s21AD(1)(a)(ii) Special witness = (s21A(1))  Disadvantaged due to mental, physical, intellectual impairment, etc  Likely to suffer severe emotional trauma  Likely to be intimidated so much it is a disadvantage  Must be giving evidence before turns 18: s21AD(2) 2. Relevant Proceeding: s21AC  Criminal proceeding for a relevant offence  Civil proceedings arising from the commission of a relevant offence → Relevant offence  Offence of a sexual nature Andrew Trotter LWB432 Evidence  Offence involving violence if there is a prescribed relationship between a child who is witness and the defendant → Prescribed relationship (only for violent offences—not required for sexual offence) Relationship (includes ½, adoptive, step) where the defendant is—  Parent  Grandparent of the child  Brother or sister  Uncle, aunt, nephew, niece or cousin  Defendant lived in the same household at time of offence  Carer or person with authority over the child in a household on a regular basis Effect Committal proceeding  Evidence in chief—can be statement without being called as witness: s21AF(1)  Cross-examination— o Only if magistrate requires: s21AG o Scope limited to issues for which they are called: s21AH Summary trial | trial | committal  Support person: s21AV  Evidence to be videotaped: s21AK o Can direct for child to be in a separate room: 21AL(2)(a) o Can direct which persons may be present: 21AL(2)(b) o Defendant must not be in same room, but must be able to see & hear: 21AL(4)(a) o ← taped evidence admissible as if given orally: s21AM; s93A [→Hearsay Exceptions—s93A Statements by a Child]  Exclude people: s21AU o Offence of sexual nature → exclude all except essential persons: s21AU(2)  Includes parties | Crown | Prosecutor | persons whose appearance necessary & desirable | support person: s21AU(4) o Not a sexual nature → exclude all except essential persons unless consider that need to be heard in open court: s21AU(3)  ← preserves discretion  Testimony must be transmitted to courtroom via AV link: s21AQ o Accused must be able to see and hear o Otherwise screen must be used: s21AQ(5)  Identification of the defendant or things— (s21AT) o In a way that limits distress or trauma o If in presence of defendant, then for no longer than necessary: s21AT (4)  Can apply for further evidence from child: s21AN  Judge cannot say to jury that witness unreliable because they are a child: s632 Criminal Code Other—  Disclosure requirements: s590AB-AX Criminal Code o Prosecution pre-trial disclosure obligations – to combat what is argued by the defence as a total loss of the accused to cross-exam their accuser  Tendering out-of-court statements by child (eg video): s93A QEA [→hearsay] Special witnesses: s21A QEA Definition: s21A(1)  < 16 years Andrew Trotter LWB432 Evidence o BUT does not apply if ‘affected child’: s21A(1A)  Disadvantaged due to mental, physical, intellectual impairment, etc  Likely to suffer severe emotional trauma  Likely to be intimidated so much it is a disadvantage Orders a court can make: s21A(2)  accused excluded from room | obscured from view of witness: s21A(2)(a)  Exclude any other specified persons: s21A(2)(b)  Witness gives evidence in another room: s21A(2)(c) o For (a), (b), (c) → accused must be able to see testimony via video etc: s21A(4)  Another person present for emotional support: s21A(2)(d)  Video-taping testimony: s21A(2)(e) o May exclude people from room where recording: s21A(5) o Opposing counsel entitled to view prior to cross-examination: s21A(5A) o Evidence admissible in all related proceedings as though given orally: s21A(6); s93A [→Hearsay Exceptions—s93A Statements by a Child]  Rest breaks: s21A(2)(f)(i)  Simple questions: s21A(2)(f)(ii)  Limited time for testimony: s21A(2)(f)(iii)  Limited number of questions: s21A(2)(f)(iv) Directions to Jury MUST instruct jury that— (s21A(8)) (a) No inferences drawn as to guilt from the direction (b) Direction does not alter probative value (c) Direction does not alter weight of evidence Protected witnesses: s21L-S QEA Definition— (s21M(1) QEA)  < 16 years: s21M(1)(a)  intellectually impaired: s21M(1)(b)  Alleged victim of ‘prescribed special offence’ — (s21M(1)(c)) o 208 (Unlawful sodomy), o 209 (Attempted sodomy), o 210 (Indecent treatment of children under 16), o 213 (Owner etc. permitting abuse of children on premises), o 215 (Carnal knowledge with or of children under 16), o 216 (Abuse of intellectually impaired persons), o 217 (Procuring young person etc. for carnal knowledge), o 218 (Procuring sexual acts by c
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