WITNESS – COMPETENCE AND COMPELLABILITY
Types of evidence
Documentary
- Anything with writing
R v Day
Darling J
- “Any written thing capable of being evidence is properly described as a document … and
it is immaterial on what the writing may be inscribed. It might be inscribed on paper, as is
the common case now; but the common case once was that it was not on paper, but on
parchment; and long before that it was on stone, marble, on clay, and it might be, and
often was, on metal.”
Criminal Evidence act 1921
- Photos, tape recording, films.
Real evidence
o Object
o Physical characteristic
o Physical possibility
o Can be a document
- When evidential value is not based on the writing.
• Does not have to be tangible
Oral evidence
• Characteristic of common law jurisdictions
•They are characterised by:
1. Adversarial nature
2. Oral evidence preference.
➢ Thus, witnesses are very important
COMPETENCE OF WITNESSES
- When a person is CAPABLE of giving evidence
• Competence used to be all about oath.
Historically
➢ barriers to certain categories of people created by obligation to take oath
• Historically, had to be Christian
• They have developed oaths to be taken where someone is NOT Christian
• This extended to atheists, then.
• Witness restrictions removed
, Today
➢ You basically just must:
(A) understand that you are under obligation to tell the truth (and the consequences)
(B) Giving intelligible testimony (capable of being understood)
• If a person can be understood they must be heard
Capacity to give intelligible testimony
➢ Use of interpreters
➢ Physical abilities
➢ Language barriers
➢ Mental illness
➢ Intoxication
• Capacity corresponds with timing – period of mental illness or toxication.
Challenging competence?
- Determined in a voire dire
• If you call a witness to the stand, you bear the burden of proving their competence.
• Usually the jury withdraws.
• Very rarely they are present, but the judge will always make the decision, based on
intelligibility.
COMPELLABILITY
- When MUST a person give evidence?
- You must first be competent
• In general, if you are competent you are compellable.
• The vast majority of witnesses are generally compellable and competent.
Exceptions:
(a) Legal professional privilege
(b) Public interest privilege
(c) Sacerdotal and counselling privilege.
• You cant be compelled if you can satisfy any of these.
How does one compel a witness?
1. Subpoena ad testificandum
2. Subpoena ad duces tecum
• Penalty is contempt of court which has an imprisonable sentence.
Types of evidence
Documentary
- Anything with writing
R v Day
Darling J
- “Any written thing capable of being evidence is properly described as a document … and
it is immaterial on what the writing may be inscribed. It might be inscribed on paper, as is
the common case now; but the common case once was that it was not on paper, but on
parchment; and long before that it was on stone, marble, on clay, and it might be, and
often was, on metal.”
Criminal Evidence act 1921
- Photos, tape recording, films.
Real evidence
o Object
o Physical characteristic
o Physical possibility
o Can be a document
- When evidential value is not based on the writing.
• Does not have to be tangible
Oral evidence
• Characteristic of common law jurisdictions
•They are characterised by:
1. Adversarial nature
2. Oral evidence preference.
➢ Thus, witnesses are very important
COMPETENCE OF WITNESSES
- When a person is CAPABLE of giving evidence
• Competence used to be all about oath.
Historically
➢ barriers to certain categories of people created by obligation to take oath
• Historically, had to be Christian
• They have developed oaths to be taken where someone is NOT Christian
• This extended to atheists, then.
• Witness restrictions removed
, Today
➢ You basically just must:
(A) understand that you are under obligation to tell the truth (and the consequences)
(B) Giving intelligible testimony (capable of being understood)
• If a person can be understood they must be heard
Capacity to give intelligible testimony
➢ Use of interpreters
➢ Physical abilities
➢ Language barriers
➢ Mental illness
➢ Intoxication
• Capacity corresponds with timing – period of mental illness or toxication.
Challenging competence?
- Determined in a voire dire
• If you call a witness to the stand, you bear the burden of proving their competence.
• Usually the jury withdraws.
• Very rarely they are present, but the judge will always make the decision, based on
intelligibility.
COMPELLABILITY
- When MUST a person give evidence?
- You must first be competent
• In general, if you are competent you are compellable.
• The vast majority of witnesses are generally compellable and competent.
Exceptions:
(a) Legal professional privilege
(b) Public interest privilege
(c) Sacerdotal and counselling privilege.
• You cant be compelled if you can satisfy any of these.
How does one compel a witness?
1. Subpoena ad testificandum
2. Subpoena ad duces tecum
• Penalty is contempt of court which has an imprisonable sentence.
