Lecture 3 - KB - Autumn 2025-1

Topic: Witnesses and Evidence
Focus: Competence, compellability, and examination of witnesses in legal contexts

Competence: Refers to the ability of a person to give evidence in court.
Compellability: Obligation of a competent person to testify when called upon.
Vulnerability: Consideration of certain witnesses' capacity, especially those who may be vulnerable (e.g., children, individuals with disabilities).

Sworn Evidence: Witnesses must take an oath or affirmation before giving testimony, ensuring they are accountable for the truthfulness of their statements.
Unsworn Evidence: Provided without oath; subject to specific rules.

Focus on examining competency of witnesses and valid determination of facts relevant to cases.
Understanding the court's control during examinations:
- Examination-in-chief: Questions posed by the party who called the witness.
- Cross-examination: Questions posed by the opposing party.
- Re-examination: Follow-up questioning by the original party.

Section 189: Addresses preliminary questions that need resolution outside jury presence regarding evidence admissibility, witness competence, or compellability.

Section 12: States all individuals are competent to give evidence, but compellability is contingent upon competence.
Section 13(1): Identifies lack of capacity (due to mental, intellectual, or physical disability) as a reason for a witness not to be competent.
Section 13(3): Acknowledges that witnesses who lack the capacity to understand the obligation of truth in sworn evidence may still provide unsworn testimony under certain conditions.

Section 21: Witnesses must swear an oath or make an affirmation before testimony, ensuring accountability.
Statements affirm that witnesses commit to telling the truth under legal obligations.
Schedule 1 outlines the exact phrases used for oaths and affirmations.

s165A: Judges must not discredit child witnesses or suggest their evidence is inherently less reliable due to age; emphasizes protection against bias in jury considerations.
Relevant cases: R v Brooks, R v GW, Gray v R illustrate the legal challenges and protections afforded to child witnesses.

Section 18: Examines the compellability of spouses and others in criminal proceedings, considering the potential harm to personal relationships.
Section 18(6): Allows objections to giving evidence based on the likelihood of harm, weighing the desirability of evidence against potential harm.

Cross-examination rules: Ensures witnesses are asked leading questions or questioned about prior inconsistent statements, maintaining legal decorum and fairness in testimony.
Improper questions: Prohibited if they are misleading or may induce undue stress.
Must align with the requirements of Browne v Dunn rule, which mandates addressing aspects of a witness's evidence directly related to the case.

Allows questioning based on evidence arising from cross-examination but restricts additional, unrelated inquiries to maintain focus and relevance.

Understanding the framework of witnesses' competence, compellability, and examination techniques is crucial for navigating legal proceedings effectively.