Evidence - Competence, Corroboration, Compellability

Witness Competency

A witness is capable of giving evidence if competent in law.

Compellability of Competent Witnesses

Usually compellable, with a few specific exceptions.

Exceptions to Compellability

The Accused, his Spouse, and the Co-Accused.

Determination of Competency

Determined by the trial judge.

Raising Competence Issues

Can be raised by the parties or the trial judge.

Judges as Witnesses

Most witnesses are competent, even judges.

Warren v Warren

Most witnesses are competent even judges

R v Lee

If a witness is not competent to give sworn evidence or affirm, they cannot give any evidence (except for a child in criminal cases)

Who are questions of competency raised regarding?

Children, incapacitated witnesses, the accused/ defendant, co-accused, spouse of accused/ defendant

Children

A child under 10 years of age shall give unsworn evidence in criminal proceedings, a court shall hold an enquiry to determine if the child is competent

R v Nelson

Where there is no enquiry, the evidence may be inadmissible

Who decides whether a child is competent or not?

The judge usually decides, however, the enquiry is in the jury's presence and is usually recorded

R v Reynolds [1950]

Evidence regarding a child's competency to hear evidence must be done in the presence of the jury, or else the conviction will be quashed

R v Dunne [1930]

The competency of a child must be evaluated in the presence of the jury

R v Khan [1981]

Judges must conduct a capacity inquiry for any witness under the age of 14 in open court in the presence of a jury

What is the test for unsworn evidence in Criminal Cases?

Is the child possessed of sufficient intelligence to justify the reception of the evidence, and does she understand the duty to speak the truth? It is contained in statute, which intervened to permit unsworn testimony

R v Z

There is no minimum age limit for children to submit unsworn evidence

Campbell v R

Where a child is a witness the court must treat him with particular care

Test for persons who are temporarily incapacitated (drunk, high) and permanently incapacitated (mental illness)

Sworn evidence of child, usually done in the presence of a jury

R v Dunning (insane witness)

An insane witness is competent to testify if the trial judge determines they understand the nature and obligation of an oath

R v Bellamy

a mentally incompetent, similar hearing to that of a child

R v Deakin

Where an expert witness is called to give evidence of mental illness the voir dire will be held in the absence of the jury

R v Kemble (Two-part conscience test concerning holy books)

whether an oath is lawfully administered is determined by : whether the oath appears to the court to be binding on the conscience

R v Hines and King

Where a person from another faith is prevented from swearing in accordance with their rastafarian faith, thus precluding them from giving evidence, the conviction will be quashed

Is the accused a competent witness?

He is competent but not compellable for the defence

R v Riley

Comment on failure to testify is frowned upon; it is not permitted by the prosecution

R v Mutch

The accused is not a compellable witness, and a judge should never suggest that silence amounts to an admission of guilt, as the accused retains the right to remain silent

Is unsworn testimony by the accused permitted?

Not in Trinidad and Tobago

R v Paul

A co-accused is competent and compellable to give evidence for the prosecution ONLY IF HE CEASES TO BE CO-ACCUSED

R v Richardson

A co-accused is competent but not compellable to give evidence for his co-accused

R v Hadwen

Is the spouse a competent witness in Civil Cases?

Yes

Is the spouse a competent and compellable witness?

Yes, a spouse is a competent and compellable in all cases AT STATUTE

Is the spouse a competent and compellable witness at common law?

For criminal cases, a spouse is not considered a competent witness against the accused.

Shabir Ali v The State

A spouse is not a competent witness against the accused

Hoskyn v MPC [1979]

The wife, although a competent witness, is not necessarily compellable at common law and she has the right to choose whether or not to testify

R v Yeo [1951]

spouse was not a competent witness against her spouse for the prosecution

R v Deacon [1973]

R v Verolla [1963]

R v Khan [1987] on who is considered a spouse

R v Algar [1954] on who is considered a spouse

Moss v Moss [1963]

R v Jaquith and Emode [1989]

R v Baskerville on the definition of corroboration

"Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirm in some material particular not only the evidence that the crime was committed but also that the prisoner committed it".

"The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime."

R v Baskerville on the Test of evidence in order for it to be corroborative

it must be independent, it must affect the defendant by connecting them to the crime, must implicate the defendent by saying not only was a crime committed but the defendant committed it

General Rule of Corroboration

No requirement that evidence must be corroborated and no requirement that the tribunal of fact be warned of the danger of acting on uncorroborated evidence unless the exceptions apply

What are the exceptions to the general rule of corroboration?

where corroboration is required by statute, where the tribunal of fact should be warned to exercise care before acting on the evidence of certain types of witnesses, if unsupported

What are the three instances in which there must be corroboration in order to sustain a conviction according to statute?

treason, speeding and prejury

Under the Children's Act, Section 19(1), what evidence shall a child under ten years of age give in criminal proceedings?

A child under ten years of age shall give unsworn evidence in criminal proceedings.

Under the Children's Act, Section 19(2), what enquiry must the Court hold before receiving the evidence of a child under ten?

The Court shall hold an enquiry to determine whether the child is possessed of sufficient intelligence to justify the reception of his evidence, and understands the duty of speaking the truth.

Under the Children's Act, Section 19(3), how may a child's unsworn evidence be taken and what is its legal status?

A child's unsworn evidence may be taken and reduced to writing in accordance with this Act or any other written law and shall be deemed to be a deposition.

Under the Children's Act, Section 19(4), can the unsworn evidence of a child be corroborated solely by the unsworn evidence of another child?

No. The unsworn evidence of a child may not be corroborated solely by the unsworn evidence of another child.

Under the Children's Act, Section 19(5), what is required before a person can be convicted on a child's unsworn evidence?

The unsworn evidence admitted under this section and given on behalf of the prosecution must be corroborated by some other material particular implicating the accused. Such corroboration may consist of evidence other than oral evidence.

Under the Children's Act, Section 19(6), can an accused person be convicted on the uncorroborated unsworn evidence of a child?

Yes. Notwithstanding subsection (5), an accused person may be convicted on the uncorroborated unsworn evidence of a child, provided that the Court warns the jury of the danger of convicting the accused person on that evidence.

Under the Evidence Act, Section 15A(1), what common law requirement has been abrogated in trials on indictment?

Any requirement whereby the Court is obliged to give the jury a warning about convicting the accused on the uncorroborated evidence of a person.

Under the Evidence Act, Section 15A(1), in what two circumstances was the Court previously required to warn the jury about convicting on uncorroborated evidence?

(1) Where the person is an alleged accomplice of the accused; or (2) where the person is someone in respect of whom it is alleged that a sexual offence under the Sexual Offences Act has been committed.

Under the Evidence Act, Section 15A(2), what happens to the corresponding corroboration warning requirement at a summary trial?

Any requirement applicable at the summary trial of a person for an offence which corresponds to the requirement mentioned in subsection (1) is abrogated.

Under the Evidence Act, Section 15A(3), does the abolition of the corroboration warning prevent a Judge from advising the jury about corroboration?

No. Nothing in this section shall prevent a Judge from exercising his discretion to advise a jury of the need for corroboration.

Under the Evidence Act, Section 15A(4), to which proceedings does the section not apply?

Any trial on indictment or proceedings before a Magistrate's Court which began before the commencement of this section.

Under the Treason Act, Chap. 11:03, Section 6, what is required before a person may be indicted, tried or convicted of treason or misprision of treason?

The oath of two lawful witnesses, unless the person willingly and without violence confesses in open Court.

Under the Treason Act, Chap. 11:03, Section 6, what must the two lawful witnesses testify to?

Either both witnesses must testify to the same overt act, or one must testify to one overt act and the other to another overt act of the same treason.

Under the Treason Act, Chap. 11:03, Section 6, what is the exception to the requirement for the oath of two lawful witnesses?

The accused person willingly and without violence confesses to the treason or misprision of treason in open Court.

Under the Treason Act, Chap. 11:03, Section 6, what offences are subject to the two-witness requirement?

Treason or misprision of treason.

Under the Perjury Act, Chap. 11:14, Section 15, what is the general rule regarding conviction for perjury based on the evidence of one witness?

A person shall not be liable to be convicted of any offence against this Act solely upon the evidence of one witness as to the falsity of any statement alleged to be false.

Under the Perjury Act, Chap. 11:14, Section 15, does the prohibition apply only to offences under the Perjury Act?

No. It also applies to any offence declared by any other written law to be perjury or subornation of perjury, or to be punishable as perjury or subornation of perjury.

Under the Perjury Act, Chap. 11:14, Section 15, what must the evidence of one witness relate to for the prohibition to apply?

The evidence of one witness as to the falsity of any statement alleged to be false.

Under the Family Law Act (No. 15 of 1981), Section 23, what is the general rule regarding a Magistrate's Court making a finding of paternity based on one witness?

A Magistrate's Court shall not make a finding of paternity under section 22 based upon the evidence of one witness only unless that evidence is corroborated by some other material evidence.

Under the Family Law Act (No. 15 of 1981), Section 23, can a Magistrate's Court make a finding of paternity based solely on the evidence of one witness?

No. The evidence of one witness must be corroborated by some other material evidence.

Under the Family Law Act (No. 15 of 1981), Section 23, what is required to corroborate the evidence of one witness in paternity proceedings?

Some other material evidence.

Under the Evidence Act, Section 16, are the parties to an action for breach of promise of marriage competent to give evidence?

Yes. The parties to any action for breach of promise of marriage are competent to give evidence in such action.

Under the Evidence Act, Section 16, what is required before a plaintiff can recover a verdict in an action for breach of promise of marriage?

The plaintiff's testimony must be corroborated by some other material evidence in support of such promise.

Under the Evidence Act, Section 16, can a plaintiff recover a verdict based solely on their own testimony in an action for breach of promise of marriage?

No. The plaintiff's testimony must be corroborated by some other material evidence in support of the promise.

Under the Evidence Act, Section 16, what must the corroborating evidence support in an action for breach of promise of marriage?

The existence of the alleged promise of marriage.

What does corroboration mean in the case of perjury?

The technical meaning it once bore at common law, according to Hamid.

Evidence, to be capable of being corroboration in a strict or technical sense must

be relevant and admissible, must be credible, must be independent (originating from a source other than the witness requiring corroboration) and implicate the accused

Scarrott [1978]

Corroborating evidence must be relevant and admissible

DPP v Kilbourne [1973]

Corroboration can only be afforded by a witness who is otherwise believed. If a witness's testimony falls on its own inanition, of his being capable of giving corroboration does not arise

DPP v Hester [ 1973]

Corroborative evidence will only fill its role if it itself is completely credible

Whitehead [1929]

To corroborate, evidence must be extraneous; a previous consistent does not corroborate

Cooper [2010]

Business records created by a witness cannot serve as independent corroboration of that same witness's oral testimony

Fallon [1993]

When a judge directs a jury on corroboration, he should explain what it means, making clear the requirements of credibility, independence and implication

Tragen [1956] and McInnes [1989] on corroboration direction to the jury

Having directed the jury as to what evidence, in law, amounts to corroboration the jury then determines whether the evidence does in fact corroborate

What should the judge also indicate when giving corroboration direction to the jury?

What evidence is capable of being corroboration and what is not, he should also explain to the jury that it is for them to decide whether the evidence does in fact constitute corroboration.

Accomplices Giving Evidence for the Prosecution (Position at Common Law): What was the position at common law regarding accomplices and complainants in sexual cases?

At common law, the jury had to be warned of the danger of acting on the evidence, if not corroborated, of accomplices giving evidence for the prosecution and complainants, whether male or female, in sexual cases.

Accomplices Giving Evidence for the Prosecution (Position at Common Law): What type of warning was required at common law?

Where a warning was required, it had to be a full warning.

Accomplices Giving Evidence for the Prosecution (Position at Common Law): What was the first requirement of a full warning?

A warning to the jury that it was dangerous to convict without corroboration but that they could do so if satisfied of the truth of the evidence of the accomplice or complainant.

Accomplices Giving Evidence for the Prosecution (Position at Common Law): What was the second requirement of a full warning?

An explanation of the technical meaning of corroboration.

Accomplices Giving Evidence for the Prosecution (Position at Common Law): What was the third requirement of a full warning?

An indication of what evidence was and was not capable of being corroboration.

Accomplices Giving Evidence for the Prosecution (Position at Common Law): What was the fourth requirement of a full warning?

An explanation that it was for the jury to decide whether evidence did in fact constitute corroboration.

Boodram (Dole Chadee) v AG of Trinidad and Tobago (Corroboration Direction): What is corroboration in relation to the evidence of an accomplice?

Corroboration is independent evidence; that is, evidence that does not come from the accomplice himself and which confirms in some material respect not only the evidence that a crime has been committed, but also that the accused committed it.

Boodram (Dole Chadee) v AG of Trinidad and Tobago (Corroboration Direction): Why is it dangerous to convict in reliance upon the evidence of an accomplice without corroboration?

It is dangerous to convict in reliance upon the evidence of an accomplice unless that evidence is corroborated, that is, independently confirmed by other evidence.

Boodram (Dole Chadee) v AG of Trinidad and Tobago (Corroboration Direction): Can the evidence of one accomplice corroborate the evidence of another accomplice in the same crime?

No. The evidence of one accomplice cannot corroborate the evidence of another accomplice in the same crime.

Boodram (Dole Chadee) v AG of Trinidad and Tobago (Corroboration Direction): Can the evidence of Levi Morris corroborate the evidence of Clint Huggins, or vice versa?

No. The evidence of Levi Morris is incapable of amounting to corroboration of the evidence of Clint Huggins. Similarly, the evidence of Clint Huggins is incapable of amounting to corroboration of the evidence of Levi Morris.

Boodram (Dole Chadee) v AG of Trinidad and Tobago (Corroboration Direction): What must the judge point out to the jury regarding corroboration?

The judge must point out the evidence which, if accepted, will be capable of independently confirming the evidence of the accomplices.

Boodram (Dole Chadee) v AG of Trinidad and Tobago (Corroboration Direction): Can the jury rely on the uncorroborated evidence of an accomplice?

Yes. Despite the absence of independent confirmation, the jury may rely upon either or both accomplices' evidence if they are sure they are speaking the truth, provided they fully bear in mind the danger of convicting without corroboration and consider the criticisms levelled against the evidence.

Care Warnings: When should a jury be warned to exercise caution before acting on a witness's evidence?

In appropriate circumstances, the jury should be warned to exercise caution before acting on the evidence of certain types of witness, if unsupported.

Care Warnings: Is the giving of a care warning mandatory?

No. Whether a warning is given is a matter of judicial discretion dependent on the particular circumstances of the case.

Care Warnings: Does failure to give a care warning necessarily furnish grounds for a successful appeal?

No. Failure to give a warning will not necessarily furnish grounds for a successful appeal.

Care Warnings: What determines the strength of a care warning and the extent to which the judge should elaborate upon it?

The particular circumstances of the case.