Competence: lack of capacity s13
(1) A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence.
(2) A person who because of subsection (1) is not competent to give sworn evidence is competent to give unsworn evidence if: (a) the court is satisfied that the person understands the difference between the truth and a lie; and (b) the court tells the person that it is important to tell the truth; and (c) the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding.
(3) A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact, but may be competent to give evidence about other facts.
(4) A person is not competent to give evidence about a fact if: (a) the person is incapable of hearing or understanding, or of communicating a reply to, a question about the fact; and (b) that incapacity cannot be overcome.
(5) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. Given s13(5), the burden of proof will be on the party asserting that a witness is not competent. In accordance with s142(1) that party will have to prove this on the 'balance of probabilities'.
(6) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence. (Any evidence they gave before becoming incompetent is still admissible.)
(7) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit. (eg they may call in a child psychologist to question a child’s testimony.)

R v Brooks (1998)
Facts: Brooks was convicted of child sexual assault  the complainant was under 12 years of age
•    At trial of B, the judge made a fundamental error.
•    Witness (plaintiff) gave unsworn evidence and judge presumed that because plaintiff was under 12, she was not competent to give sworn evidence.

Held:  Judge should have gone to 13(1) FIRST to determine competency and then 13(2) because there is a presumption of competency. Judge went first to s13(2) therefore the evidence was wrongly adduced, so the evidence was not evidence. A very strict reading of the statute was required here.
•    Conviction was set aside and the appeal was upheld.
•    Ct of Appeal said it was a highly technical reasoning, but the effect was that the evidence had no force and had no status.
•    Sperling J: emphasises that there has to be a direction from the court. Authority of the court is to give an instruction, that is the policy underlying it (s13(2)(b))

Compellability: reduced capacity s14
This provision empowers the court to allow a witness to choose not to give evidence 'on a particular matter' where undue cost or delay would be involved in overcoming some incapacity or if adequate evidence on that matter is capable of being given from other sources.

Compellability: Sovereign and others s15
None of the following is compellable to give evidence: (a) the Sovereign; (b) the Governor-General; (c) the Governor of a State; (d) the Administrator of a Territory; (e) a foreign sovereign or the Head of State of a foreign country.

Competence and compellability: judges and jurors s16
(1) A person who is a judge juror in a proceeding is not competent to give evidence in that proceeding. However a juror is competent in the proceeding about matters affecting the conduct of the proceeding.
(2) A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave.                                                    

Competence and compellability: defendants in criminal proceedings s17
(2) A defendant is not competent to give evidence as a witness for the prosecution:
(3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless tried separately: Note if non compellable they can still choose to give evidence.
(4) Court must ensure that an associated defendant, tried jointly, is aware of s17(3)
- In all cases where the co-offender is giving evidence you must consider s165 and s137 issues also.
Common Law for spousal compellability
•Other than domestic violence, a spouse is neither competent nor compellable in criminal cases: R v Lapworth

Compellability of spouses and others in criminal proceedings generally s18
(2) Persons who may object to giving evidence are a spouse, de facto spouse, parent or child of a defendant; grand parents can’t object
(3) An objection is to be made before the person gives evidence or as soon as practicable after the person becomes aware of the right to object
(4) If it appears
to the court that the person may have a right to object, the Court is to make the witness aware of the effect of this section [Requires  Notice]
(5) Court is to hear and determine any objection under this section in absence of the jury  [Voire Dire Requirement]
(6) The test for the objection to being compellable is the harm to the relationship of the witness and defendant vs desirability of giving evidence [Balancing test].
(7) Without limiting the matters that may be taken into account by the court for the purposes of subsection

(6), it must take into account the following: [Reasons for Compelling] (a) the nature and gravity of the offence for which the defendant is being prosecuted; (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it; (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor; (d) the nature of the relationship between the defendant and the person; (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant. (8) Prosecutor may not comment on the objection, court’s decision in relation to the objection or the failure of the person to give evidence.

R v Khan (unreported 1995) (Availability of alternative evidence may be a crucial factor)
Facts: Accused charged with murder of a lodger who he suspected was having an affair with his wife.
•    Crown’s case was based on a statement by the wife who said that K burst in on her and the lodger in bed and stabbed the lodger 67 times.
•    Just before the trial Mrs K said that she would testify that she was being sexually assaulted by the lodger and that is why K stabbed him.
•    She and her husband had been together for 10 years, he was the father of her children and they remained living together notwithstanding the charges
Issue: Should she be compelled to give evidence?

Held: Balancing act must be performed in relation to s18(6)  the criteria in (7) were also considered.
•    Her being required to give evidence would likely cause harm to the relationship with the accused to the extent that it outweighed the desirability of having evidence given.
•    Further, the evidence would be of relatively little weight and significant matters could be proven by other evidence that linked K to the murder etc.

RULE: FAMILY MEMBERS, IF COMPETENT, ARE NOT COMPELLABLE IF DOES MORE HARM THAN GOOD

Spousal Compellability in Criminal Proceedings s19
A spouse is compellable in certain cases, relating to the following provisions:
•Children (Care and Protection) Act 1987
–section 25 (Child abuse)
–section 26 (Neglect of children)
–section 51 (Endangering children in employment)
–section 52 (Certain employers of children to be authorised)
•s.104 Criminal Procedure Act 1986 –domestic violence / child assault

Accused May Refuse To Testify, And No Adverse Inference / Direction Is Permitted

Comment on failure to give evidence s20
(1) This section applies only to a criminal proceeding for an indictable offence
(2) The judge (or any party other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.
(3) The judge (or any party other than the prosecutor) may comment on failure to give evidence by a person who, at the time of the failure, was:
    (a) the defendant’s spouse or defacto spouse; or
    (b) a child or parent of the defendant.                                                                                                                                   (4) However, unless the comment is made by another defendant in the proceeding, a comment of the kind referred to in subsection (3) must not suggest that the spouse, de facto spouse, parent or child believed that the defendant was guilty of the offence concerned.
(5) If:
   (a) 2 or more persons are being tried together for an indictable offence; and
   (b) comment is made by any of those persons on the failure of any of those persons or of the      spouse or de facto spouse, or parent or child, of any of those persons to give evidence;
    the judge may, in addition to commenting on the failure to give evidence, comment on any comment of a kind referred to in paragraph (b).

•    Great care must be taken by a judge not to INDIRECTLY suggest D refused to testify in belief of wrongdoing etc.: RPS v R

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