#17493 - Evidence Witness Competence And Compellability Criminal And Civil - Evidence I: Foundations

WITNESS - COMPETENCE AND COMPELLABILITY Types of evidence DocumentaryAnything 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 1921Photos, tape recording, films. Real evidenceo Object Physical characteristic Physical possibility 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 WITNESSESWhen 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. COMPELLABILITYWhen 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.