Calling Witnesses

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s 12 title

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Competence and compellability

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s 12

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Except as otherwise provided by this Act:
(a) every person is competent to give evidence, and
(b) a person who is competent to give evidence about a fact is compellable to give that evidence.

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s 13 title

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Competence: Lack of Capacity

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s 13- When incompetent generally

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(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):
(a) the person does not have the capacity to understand a question about the fact, or
(b) the person does not have the capacity to give an answer that can be understood to a question about the fact,
and that incapacity cannot be overcome.

(2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.

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s 13- Competence to give sworn evidence

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(3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.

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s 13- Competence to give unsworn evidence

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(4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.
(5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:
(a) that it is important to tell the truth, and
(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and
(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

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s 13- Guidance on application

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(6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7) 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.
(8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience.

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s 15- title

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Compellability: sovereign and others

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s 15- unconditional exemptions

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(1) 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.

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s 15 conditional exemptions

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(2) A member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from attending:
(a) a sitting of that House, or a joint sitting of that Parliament, or
(b) a meeting of a committee of that House or that Parliament, being a committee of which he or she is a member.

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s 16 - title

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Competence and compel lability: Judges and jurors

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s 16- unconditional exemption

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(1) A person who is a judge or juror in a proceeding is not competent to give evidence in that proceeding. However, a juror is competent to give evidence in the proceeding about matters affecting conduct of the proceeding.

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s 16- exemption only with leave

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(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.

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s 17

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Competence and Compellability: Defendants in Criminal Proceedings

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s 17- application

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(1) This section applies only in a criminal proceeding.

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s 17- Defendants' competence

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(2) A defendant is not competent to give evidence as a witness for the prosecution.

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s 17- Associated defendants' compellability

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(3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant.
(4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury’s absence) that the witness is aware of the effect of subsection (3).

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s 18- title

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Compellabillity of spouses and others in criminal proceedings generally

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s 18- basic exemption

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(1) This section applies only in a criminal proceeding.
(2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required:
(a) to give evidence, or
(b) to give evidence of a communication between the person and the defendant,
as a witness for the prosecution.

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s 18- need to object

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(3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.
(4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person

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s 18- procedural matters

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(5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.

(8) If an objection under this section has been determined, the prosecutor may not comment on:
(a) the objection, or
(b) the decision of the court in relation to the objection, or
(c) the failure of the person to give evidence.

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s 18- the tests

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(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:
(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and
(b) the nature and extent of that harm outweighs the desirability of having the evidence given.
(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:
(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.

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s 19- title

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Compellabiilty of spouses and others in certain criminal proceedings

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s 19

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Section 18 does not apply:
(a) in proceedings for an offence against or referred to in the following provisions of the Children and Young Persons (Care and Protection) Act 1998:
(i) section 222 (Endangering children in employment),
(ii) section 223 (Certain employers of children to be authorised),
(iii) section 227 (Child and young person abuse),
(iv) section 228 (Neglect of children and young persons), or
(b) if the person could be compelled to give evidence in proceedings under section 279 (Compellability of spouses to give evidence in certain proceedings) of the Criminal Procedure Act 1986.
Note. This section differs from section 19 of the Commonwealth Act.