TOPIC 1 & 2 Overview, Introduction to the Uniform Evidence Acts and Overarching concepts

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1 TOPIC 1 & 2 Overview, Introduction to the Uniform Evidence Acts and Overarching concepts Overview This week we introduce the structure of the lectures, assessment and relationship between practical legal skills week and this course. Lectures The lectures are goal-orientated and there are three fundamental goals. The primary goal is to examine the rules of evidence that are now contained in the Evidence Act 2008 (Vic). The secondary goal is to embed in your minds the application of those rules in a practical (courtroom) setting. The tertiary goal is to prepare you for the assessment in this unit Assessment The assessment is set out in the Unit Outline. In short, there is: (a) an essay worth 20%; (b) a multiple-choice online test worth 20%; and (c), an open-book examination worth 60%. The exam is based exclusively on the material that we cover in the text book and lectures. It will include a problem-type question and an essay question. If the topic is not in the textbook or lectures it will not be covered in the exam. For the essay however you will be expected to expand the field of enquiry and look at material not covered in the course. The revision week (week 11) will consist of a practice exam. The essay topic will not appear in any of the essay questions in the end of trimester exam. Practical Legal Skills The trimester is short and many of you will be participating in practical legal skills week in witness examination. As we cover witness examination in week 2, we will be able to provide you with guidance as to how the rules of evidence influence witness examination. Basically, witness examination is a three-part process: (i) examination-in-chief, (ii) crossexamination, and (iii) re-examination. We will discuss this process in class. The combination of practical legal skills and examination problem solving is the best way to learn the rules of evidence and their application. 1

2 Introduction to the Uniform Evidence Acts The 2008 Victorian Evidence Act is based on legislation that has been operational in NSW and Federal courts since It has only been operational in Victorian courts since January, The legislation extinguishes most of the common law rules with the goal of uniform evidential rules in all state, territorial and federal courts. Needless to say there are many similarities between the common law evidential rules and the legislative evidential rules that we look at. On occasion, we will look at common law cases (such as for determining the burden of proof, e.g. beyond a reasonable doubt) if such cases help to clarify the meaning or application of a provision in the Act. The 2008 Victorian Evidence Act is a work in progress as is the mirror legislation that has been in operation for 14 years. As with all legislation there have been occasions when the provisions are unclear and as a result there is an emerging body of case law that attempts to clarify the meaning and operation of the Act. There is a rapidly expanding body of Victorian cases that deal with provisions of the Evidence Act since it began operating in Some sections of the Evidence Act are straightforward whilst others are diabolical. Consider section 62 as an example. It is perhaps the most poorly drafted provision ever seen. It attempts to define first hand hearsay. 62 Restriction to "first-hand" hearsay (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. It is an unnecessarily complex definition of what is essentially a simple concept: first hand hearsay. There are other provisions that have been and still are a source of confusion for students, legal practitioners and judges. Sections 97 and 98 are excellent examples. These sections deal with what used to be called similar fact evidence, but now separated out as tendency evidence and coincidence evidence. In the Unit Guide (week 8) it is referred to as Tendency and Coincidence evidence. If you remember that the Evidence Act is a work in progress you can have realistic expectations and avoid frustration. In the lectures we will simplify the complex provisions so that you can approach problem questions with some measure of confidence and not confusion. However, as a legal practitioner, if this is your chosen career, you will 2

3 have to reckon with the complexity and develop a more detailed understanding of the provisions, particularly if you intend to practice as a barrister. The cases that we look at will help clarify the meaning of the provisions and more importantly offer an example of their application. You will notice that many of the cases in the textbook and some to which we refer in the lectures are NSW decisions or Federal Court decisions. Since the NSW Evidence Act, the Commonwealth Evidence Act, the Tasmanian Evidence Act and the Victorian Evidence Act are (almost entirely) uniform, it is acceptable to reference cases from any of the jurisdictions with the uniform legislation. The Victorian Courts in particular the Supreme Court and Court of Appeal are rapidly accumulating case law that explores the provisions in the 2008 Victorian Evidence Act. In these decisions, judges do refer to NSW decisions as authority for various principles. We will refer to a small number of these cases in various topics throughout the course. Overarching concepts The best place to start with the 2008 Evidence Act is with the various types of evidence that are dealt with by the legislation and the overall scheme of the legislation. The legislation deals with three types of evidence: 1. Witness testimony 2. Physical objects or exhibits 3. Documents 3

4 Witness Testimony Witness testimony is usually called oral evidence or viva voce (oral rather than written) evidence in practice testimony is more of an American usage. Of the three types of evidence, oral evidence is the most problematic. It is problematic since it based on the perceptions and memory of a human being. Human beings are bizarre, unpredictable, fallible and potentially dishonest. When you examine a witness you never know exactly what will come out of his or her mouth - particularly during cross-examination. However, the evidence that the witness gives will fall into one of these three types: 1. It will be honest evidence 2. It will be dishonest evidence 3. It will be honest but mistaken evidence Working out what type of evidence is being given is in part derived from the person giving the evidence. What to believe and what not to believe is the function of the jury or judge/magistrate depending on the type of hearing. However, a reliable guide as to a person s honesty or otherwise is elusive. Facial micro expressions, polygraph tests and brain fingerprinting are not accepted by the courts as being conclusive techniques that detect dishonesty in a person. The fact is that people do lie despite taking an oath. If they did not, the offence of perjury would be unnecessary. Cross-examination is about testing a witness not only for honesty but for accuracy (both fall within the concept of reliability ). If a witness is lying or mistaken, then it will be desirable (and theoretically possible) to expose this by way of cross-examination. The assessment of a witness in terms of his or her reliability will be heavily influenced by their performance under cross-examination. John Henry Wigmore, the original author of the leading American text on evidence, wrote: Cross-examination is the greatest legal engine ever invented for the discovery of truth. However, that comes with an important qualification: You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skilful enough not to impale his own cause upon it. Despite the problems with witnesses, their evidence is still usually the most important evidence in most cases. It is hard to imagine a criminal trial in which no witness is called by either the prosecution or defence. Most of the rules of evidence that we examine in this course deal with witnesses in one way or another. 4

5 Physical objects/ Exhibits (real evidence): We will not see many examples of exhibits or physical objects in any of the cases that we look at and we will not cover this type of evidence in great detail. Note: exhibits or physical objects are often referred to as real evidence. There is a large array of potentially relevant items recovered from a crime scene or accident scene that might be used (adduced) as evidence in a trial. It might be a murder weapon such as a rifle that is owned by the accused. Or it could be a serum sample such as blood or saliva recovered from the crime scene. It might be a glass cup from which a fingerprint is collected. In most cases, if not all, exhibits will be treated as circumstantial evidence. Exhibits from a crime scene will usually do no more than create suspicious circumstances. It is possible that an innocent explanation will account for the physical evidence collected from a crime scene. The accused might be the registered owner of the rifle used to murder the victim but that alone does not reveal that they are guilty. A fingerprint recovered from the crime scene that belongs to the accused will place them at the crime scene - but alone it is not enough to found a guilty verdict. Perhaps the accused installed insulation in the roof of the victim s house shortly before the victim was murdered and accepted a drink before leaving. 5

6 Documents Despite the fact that documents are a very common source of evidence particularly in commercial litigation we will not spend much time looking at the provisions of the evidence act that deal with documents. In fraud and tax evasion cases there can be a very large number of documents that will be admitted as evidence. A document might include such things as an airline ticket that is introduced to support an alibi (a claim that someone was elsewhere during a crime and not at the crime scene). Or it might be a sales receipt for a large quantity of potassium or nitric acid. Both are ingredients that can be used to make a bomb. Bear in mind that the presence of online transactional databases leads to an enormous amount of information being generated from online transactions. This is becoming a very common source of documentary evidence. Direct Relevance, Indirect Relevance and Circumstantial Evidence These are terms that you will come across in most textbooks on evidence. It is not necessary to explore these terms at this stage. We will consider them as they appear in various sections and cases. The terms direct and indirect are used in the Evidence Act as we shall see when we look at relevance. Most people have an intuitive understanding of circumstantial evidence and we will see examples of it throughout the course. Circumstantial evidence (which will create suspicious circumstances) is often quite common in a criminal trial. Can you think of a reason why this might be the case? 6

7 Outline of the Evidence Act The evidence act is a collection of rules, and has a fairly simple outline that is easy to remember. The individual rules can be complex however the overall scheme of the act is not. The Act creates three stages that any item of evidence (witness, exhibit or document) must survive before it can be admitted. If an item of evidence fails to survive a single stage it will be excluded. 1. The evidence must be relevant. 2. The evidence must not violate any exclusionary rule. 3. The evidence must satisfy the discretion of the trial judge. If the evidence survives all the stages, it will be admitted. A simple diagram that represents the 3 stages can be drafted as follows: You can use this diagram as a guide when answering problem questions in which you will have to decide whether an item of evidence is admissible or not. Need to look at all three stages! A complete answer would recognise that all three stages must be satisfied as opposed to focusing exclusively on a single exclusionary rule and overlooking the requirement of relevance and discretion. 7

8 If relevance and trial discretion are not the focus of the question you need only mention the requirements in passing. In most problems that we look at the question will focus on the exclusionary rule. A more detailed diagram appears in the Act itself: 8

9 Burden of Proof Having briefly looked at an overview of the Evidence Act and the types of evidence that its deals with, we can turn to the relationship between evidence and the burden of proof. Whilst almost every other topic that we look at will appear in the 2008 Victorian Evidence Act, the burden of proof is not regulated by the Evidence Act. The burden of proof is regulated by common law principles. Trials never begin with facts. Trials always begin with an allegation such as the Crown s allegation that the accused has committed a crime or the plaintiff s allegation that the behaviour of the defendant was negligent. These allegations will not be accepted as fact unless evidence is introduced to support and prove them. Who has to collect evidence and present it in court? It is not a particularly difficult question to answer since there are only two parties to a legal dispute: the prosecutor and accused in a criminal trial or plaintiff and defendant in a civil trial. The burden of providing evidence that is used to prove an allegation will either be on the prosecution or the accused in a criminal trial or plaintiff and defendant in a civil trial. In addition to the need to introduce evidence the burden of proof also requires that the evidence must form a persuasive argument. Although it is possible that both parties will introduce evidence in relation to an allegation or issue that must be proved it is usually only one party who will be obligated to introduce evidence. For the other, it is optional. For example: if the prosecution alleges that the defendant has murdered their wife then the prosecution will have to introduce evidence that supports the allegation. The defendant may introduce or adduce evidence that refutes the prosecutions allegation however as a general rule they are not under an obligation to adduce evidence. Who is under an obligation to support the allegation or facts in issue with relevant evidence? As a general rule the party who makes the allegation must provide relevant evidence that supports it. Since it is the prosecution that makes the allegations in a criminal trial it is generally the prosecution that bears the burden of proof, HOWEVER there are exceptions! It is possible that the burden of proof will also place the defence under an obligation to provide relevant evidence. 9

10 Legal and evidential Burdens The burden of proving each allegation or fact in issue in a criminal or civil dispute to the required legal standard or proof is divided into two stages or requirements. SO you need to prove both stages. There is an evidential burden that relates to the sufficiency of evidence introduced to make out the claim. There is a legal burden that relates to the persuasiveness of the evidence. Whilst the evidential burden is reasonably straight-forward, the legal burden is more difficult to understand. Evidential Burden: The evidential burden requires that the prosecution or defendant has to produce sufficient evidence before a jury or judge in the capacity of a fact finder is required to consider it. If it is decided that the evidence is insufficient then there is no need for a jury or judge to reach a verdict. In a criminal trial after the prosecution has finished presenting its evidence, the defence may make a no case submission. The submission must be decided by the judge. If the judge finds that the prosecution has adduced insufficient evidence then the case is over. It does not happen often but if it does it is a source of embarrassment for the prosecutor. The evidential burden is fairly easy to understand. It is simply a question of looking at the volume and weight of evidence (witnesses, documents and exhibits) and deciding whether there is enough. Legal Burden: The legal burden is not as clear. The legal burden is to be decided by the jury (or judge if there is no jury). It only arises if the evidential burden is satisfied first. The legal burden is very closely connected to the closing address that each party delivers at the end of the trial after all the evidence has been presented. It is during a closing address that the prosecution will arrive at a conclusion that is based on the evidence that it has presented. This is an argument. In case you did not know in logic and in law an argument is a conclusion that is supported by evidence or reasons. In their closing argument the prosecution will review the evidence and tell the jury that it leads to one conclusion: the accused is guilty. The jury will listen to the argument and 10

11 decide whether it is persuasive. If it is persuasive they will accept it, if not they will reject it. The burden of proof gives rise to two questions. 1. Is there sufficient evidence to make out a case (evidential burden)? 2. Does the evidence yield a persuasive argument to prove the case (legal burden)? Both questions have to be addressed before the burden of proof can be discharged. If the prosecutions evidence is sufficient and persuasive then the jury will arrive at a guilty verdict. Now having identified the two components of the burden of proof we need to determine which party must discharge the evidential burden and which party must discharge the legal burden. It differs depending upon whether it is a criminal trial or a civil trial. Prosecution: In criminal proceedings it is usually the prosecution that must discharge the evidential burden in relation to the facts in issue they have alleged and also discharge the legal burden. Once the prosecution has satisfied the evidential burden by adducing sufficient evidence, and the defence finishes presenting its case if they choose to do so, the judge will allow the evidence to be considered by the jury. The jury then will decide whether or not the legal burden has been satisfied by the prosecution. If they decide that the prosecutions argument (the accused is guilty) and evidence is persuasive they will arrive at a guilty verdict. When we come to the standard of proof we will see that the juries are not left to their own devices in the persuasiveness enquiry. There is overlap between the legal burden of proof and the standard of proof. The prosecutions argument (accused is guilty) is persuasive in a criminal context if it proves the case beyond a reasonable doubt (the standard of proof). Defence: In relation to the defence the general rule is that the defence does not have to prove anything. Why would this be the case? A fundamental assumption in the criminal justice system is that the accused is innocent unless the prosecution can prove otherwise. An innocent person does not therefore need to prove anything in a criminal trial There are times however when the defendant in criminal proceedings might bear an evidential burden or they will bear both an evidential burden and a legal burden. The burden of proof usually arises for the defence if the accused (defence) pleads insanity or if they raise a defence such as self-defence or provocation. If a defendant pleads not guilty by reason of insanity then their sanity will be a fact in issue or a disputable fact. Are you sane or insane? The evidential burden and legal burden here is upon the defendant. 11

12 If, e.g. in response to a criminal charge an accused argues self-defence, provocation or duress then the evidential burden must be satisfied by the defendant. However there is no legal burden upon them. Here the legal burden is not upon the defendant it is upon the prosecution (defence only has the evidential burden here). This is a difficult issue to understand unless you look at an example. Let s say that John is charged with murder and at his trial he claims that he was acting in self-defence. John must introduce evidence to support his claim that he was acting in self-defence in order to satisfy the evidential burden of proof. If John does not satisfy the evidential burden then the jury will not consider his self-defence claim in their deliberations. If he does satisfy the evidential burden then the legal burden will be upon the prosecution. How does this work? Where the evidential burden is on the accused but the legal burden is on the prosecution, the prosecution will have to convince the jury that the evidence is not persuasive. For example, the prosecutor might make the following statement during their closing address: The evidence introduced by the accused can not lead to the conclusion the he was acting in self-defence, for the following reasons... For Civil proceedings: In civil proceedings the evidential and legal burden will be upon the party making a claim which will be the plaintiff or the party making a defence which will be the defendant. There is no need for us to consider the civil burden of proof principles for this course. I have never seen a problem question that deals with a civil matter. If one ever appeared it would be dealt with during revision. Standard of Proof- in the EA Vic 2008 The standard of proof, unlike the burden of proof, does appear in the Evidence Act. The burden of proof determines who bears the responsibility for proving an allegation. The standard of proof provides jurors with a guideline that is supposed to help them determine if an allegation has been proven. There is overlap as I have mentioned between the standard of proof and the legal burden. An argument about a fact in issue is considered persuasive if it satisfies the standard of proof. I.e. legal burden can be proven only is SOP is met. The Crown/prosecutor must prove the accused s guilt beyond reasonable doubt. However, the Crown does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence and is in dispute. The obligation that rests upon the Crown is to prove the elements of the charge; that is the essential facts that go to make up the charge, and must prove those facts beyond reasonable doubt. In a criminal trial there is only one ultimate issue that a jury has to decide. Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is yes, the appropriate verdict is guilty. If the answer is no, the verdict must be not guilty. 12

13 The jury is left with a task to decide the verdict (after the closing address of each party to the legal dispute). They must decide whether the arguments are persuasive (legal burden). Bear in mind that the jury will usually have to reckon with conflicting versions from the prosecution and defence and they will have to choose between the two. This can be quite a difficult choice. In addition people when faced with a fact in issue or allegation and evidence to support it will arrive at different conclusions. This happens because people have different standards in relation to proof. Some people are more easily convinced than others. Others are more sceptical and harder to convince. Think of the current debate about the factors that are influencing climate change. If we accept that the variation in average temperatures are increasing and that this is abnormal then what has caused the increase. Many think that the evidence leads to the conclusion that increasing average temperatures are abnormal and they are caused by carbon output. For them the standard of proof/ legal burden has been satisfied and as a result the claim that the earth is warming due to carbon output has been proven. Others look at the same evidence and remain unconvinced. Either they reject the claim that warmer average temperatures are abnormal or reject the claim that warmer average temperatures are caused by carbon output. They are not convinced. The courts are aware of the differences between people s ideas about proof so they have tried to create some guidelines. The purpose of the guidelines is to promote consistency amongst jury members and judges so that they apply a similar standard of proof. Both standards are defined in the Evidence Act. Criminal Standard: section 141 Civil Standard: section 140 Criminal standard s141: The criminal standard requires some explanation since there can be different standards imposed on the prosecution and the defence. The obvious difference is the distinction between beyond a reasonable doubt and the balance of probabilities. To understand when the different standards apply we need to return to the legal burden of proof which overlaps with the standard of proof. If the legal burden of proof is on the defendant as it is when you plead insanity then the persuasiveness of the insanity claim must be beyond the balance of probabilities (NOT beyond a reasonable doubt like it is for the prosecution). However, as we know, the legal burden on the prosecution is stricter. The claims or allegations they make must not give rise to a reasonable doubt (beyond a reasonable doubt). Beyond a reasonable doubt What does this phrase even mean? It is an excellent question unfortunately there is no answer to this question. At least you won t find any answer that has been offered by the 13

14 courts. This was the case under the common law and it will continue to be the case under the Act NOBODY KNOWS. There is longstanding authority for the proposition that, except in certain limited circumstances, no attempt should be made to explain or embellish the meaning of the phrase beyond reasonable doubt : Green v The Queen (1971) 126 CLR 28 at 32 33; La Fontaine v R (1976) 136 CLR 62 at 71; R v Reeves (1992) 29 NSWLR 109 at 117; Raso v R [2008] NSWCCA 120 at [20]. If, in an address, counsel suggests that fantastic or unreal possibilities should be regarded by the jury as affording a reason for doubt, the judge can properly instruct the jury that fantastic or unreal possibilities ought not to be regarded by them as a source of reasonable doubt: Green v The Queen at 33; or as put in Keil v The Queen (1979) 53 ALJR 525, fanciful doubts are not reasonable doubts. The question of whether there is a reasonable doubt is a subjective one to be determined by each individual juror: Green v The Queen at 32 33; R v Southammavong [2003] NSWCCA 312 at [28]. There was no error in R v Southammavong by the trial judge saying, in response to a jury request for clarification, that the words beyond reasonable doubt are ordinary everyday words and that is how you should understand them : at [23]. Newman J said in R v GWB [2000] NSWCCA 410 at [44] that judges should not depart from the time honoured formula that the words beyond reasonable doubt are words in the ordinary English usage and mean exactly what they say. TOPIC 3: VERBAL EVIDENCE 1. COMPETENCE Incompetent witnesses can t give evidence even if their testimony is relevant and even if it does not violate any of the exclusionary rules and even if it satisfies the discretion of the judge. The distinction between competence and incompetence under the Evidence Act revolves around the ability of a witness to understand questions and give understandable answers. Trying to exclude a witness on the basis of their competence creates an opportunity to remove a witness from an opponent s case but it is a limited opportunity and one that won t always succeed. This doesn t always stop an accused from trying, for example, this often occurs in sexual assault cases where the victim is a child or has a mental impairment. 14

15 The general rule is that all witnesses are competent to give evidence (s. 12) unless they fall within a very limited number of exceptions (s. 13) Under Common Law It used to be the case that the law courts would discriminate against a number of classes of possible witnesses. They were not enthusiastic about atheists, convicted criminals, mentally affirmed or children. People who refused to take the oath were not competent to testify until the introduction of legislation in most jurisdictions that allowed an alternative, which allowed witnesses to make an affirmation rather than an oath before God. An affirmation simply omits those parts of the oath, which give it a religious character, but is still a promise to tell the truth. There is a legal presumption that all witnesses are competent unless their competence is disputed and there is evidence to suggest otherwise. If the competence of a witness is disputed then the dispute will be held on a voir dire (judge only and counsel, which is in the absence of the jury). In a voir dire the jury will be excused whilst the judge and legal counsel determine whether or not the witness is competent since it is a question of law and not fact. The defence will attempt to cast doubt upon the victim s ability to understand their duty to tell the truth. The magistrate has to believe that the witness understands the nature of the oath as required by the common law and ruled that the witness was competent. A voir dire will also be conducted if the admissibility of evidence is questioned. Admissibility and competence are questions of law to be decided by the judge alone and not the jury who is responsible for determine questions of fact. It is not common to dispute the competence of a witness but it can happen when the witness has a mental or intellectual defect or when the witness is a child. It is far more likely to happen where the victim of the crime is a child or a person with an intellectual or mental disability. Common Law example There was a recent example in a sexual assault case where the victim had an intellectual disability and was judged to have the intellectual capacity of a 4 year old according to an assessment. At the committal proceedings the defence counsel objected to the competence of the victim and a voir dire was conducted that lasted for 2 hours. The magistrate believed that the witness understood the nature of the oath as required by the common law and ruled that the witness was competent. 15

16 The case went from committal to trial where the defence counsel again challenged the competency of the victim. This time they conducted a voir dire that lasted for 3 days. As part of the voir dire, evidence was given by the victim, the victim s mother, the victim s teacher, the crown psychologist and the defence psychologist. The trial judge accepted that the victim understood the nature of the oath and declared the victim a competent witness. During the trial the defence nonetheless led evidence that cast doubt upon the victim s ability to understand their duty to tell the truth. We assume that practitioners don t take any delight from attacking the competency of children or victims with an intellectual disability. It is a potentially effective strategy that can lead to success but possibly not many friends. Under the Evidence Act Competency under the Evidence Act starts with section 12, which states the general rule, which is very similar to the old common law position. Section 12 states a general rule: all witnesses are competent and compellable. But like most rules in law, it is subject to exceptions. The main exception to section 12 is section 13. Section 13 is quite complex so it is best to break it down into subsections. Section 13(1) This is a fundamental requirement that all witnesses must satisfy. If a witness does not satisfy the requirements of section 13(1) they will not be competent to give evidence at all. 16

17 There are 2 requirements (i) (ii) A witness must be capable of understanding a question that they are asked. BUT if a witness can understand some questions but not others, then they can only answer the questions that they understand (this is thus important to instances where the witness is a child). A witness must be capable of providing an answer that can be understood by the court (BUT if it is a child, an inability to answer a question about a single fact would not prevent a witness from answering questions about other facts). It is hard to think of many examples of people who can understand a question but are incapable of giving an answer that can be understood. Often it will be the case that a witness who is not capable of understanding a question is also not capable of giving an answer that is understandable. It is typically children and witnesses with an intellectual or mental disability who may fail the requirements of section 13(1). Unfortunately, it is not uncommon for these witnesses to be victims of a crime. A strategy that an accused might adopt is to seek a declaration that the victim is an incompetent witness. Eliminating the victim as a witness can have an enormous impact on the outcome of a trial. The section however was carefully drafted to accommodate witnesses who are children. The drafters of the legislation made sure that an inability to answer a question about a single fact would not prevent a witness from answering questions about other facts. This is important in relation to children. The Australian Law Reform Commission made the following observation in relation to children witnesses: Children may have differing language skills, abilities to make inferences, conclusions or estimates or capacities to understand concepts such as time and special perspective. [section 13] allows a young child to respond under oath to simple questions but not to questions beyond the child s capacity that cannot be reframed in simpler terms. Therefore, practitioners will not be permitted to eliminate a child witness by deliberately drafting complex questions that any child would struggle to understand. If a witness survives section 13(1) they will be a competent witness. Competent witnesses may give two types of verbal evidence: (i) (ii) Sworn evidence- capable of understanding obligation to tell the truth Unsworn evidence- not capable of understanding. 17

18 Section 13(3) Sworn evidence A witness can give sworn evidence IF they have the capacity to understand that they are under an obligation to give truthful evidence. If a witness does not satisfy this section, the witness might be able to give unsworn evidence. You would think that truthfulness is a fairly important quality for any witness. However the truth can be a difficult concept to understand for example, in the case of a child witness or witnesses with an intellectual or mental disability. Under the common law, if a child was incapable of understanding the nature of the oath that requires them to tell the truth, then they were not permitted to testify. It seemed reasonable but the Evidence Act recognised that this might not be a realistic or necessary expectation (hence witness may be able to give unsworn evidence). As a result, failure to understand the duty to tell the truth is not fatal. A witness who fails to understand that they are obligated to tell the truth can give unsworn evidence, if the requirements of section 13(5) are satisfied. Section 13(5) Unsworn evidence This section requires the trial judge to give 3 instructions to the witness. Once the instructions have been given to the witness they will be permitted to give unsworn testimony. What is the difference between sworn testimony and unsworn testimony? See page 54 of the textbook: Section 13 provides for two different types of evidence to be given: sworn and unsworn. However, these forms of evidence do not seem to be different in qualitative terms. Evidence which is unsworn has probative weight and the Act does not state that it is necessarily a lower type of evidence. 18

19 The only difference that might arise is in relation to the offence of perjury. Prohibitions upon perjury usually require that the perjury is deliberate or wilful (which will not be possible to prove if the evidence is unsworn). Perjury: section 314 Crimes Act 1958 (Vic) (1) Whosoever commits willful and corrupt perjury or subornation of perjury shall be liable to level 4 imprisonment (15 years maximum). If a witness lies whilst giving unsworn testimony can they be charged with perjury? Perhaps it could be possible to argue that if they do not understand that they are under a duty to tell the truth that they cannot willfully commit perjury. So likely no. 2. COMPELLING A WITNESS TO GIVE EVIDENCE Although a witness is declared competent they might be extremely reluctant to give a testimony. If they are pivotal to your case and competent but refuse to give testimony can you force them to testify? The short answer is yes. Competent witnesses can be subpoenaed to attend court and give evidence; if an individual is served a subpoena and does not attend court, he/she can be charged with contempt of court and ultimately be imprisoned. Contempt is a fairly serious crime. Competent witnesses might have a variety of reasons for being reluctant to testify: fear of the consequences; e.g. a personal relationship at stake (with a spouse, child or parent). 19

20 Thus, compellability creates a conflict between two important principles when there is a close relationship between the accused and the victim. The first principle is that relationships are often partly based on loyalty. If the spouse of the accused is forced to appear as witness against the accused, then one could argue that what they require amounts to a betrayal. At the same time the courts require evidence in order to prosecute offenders. If a spouse or close family member knows what the accused has done, then their evidence could be used to convict the offender and offer some justice to their victim/s. Justice for the victim might be considered more important than the relationship between the witness and the accused. This obviously becomes more important as the severity of the crime increases. Several factors need to be examined before a witness can be compelled to give evidence. The courts will consider: - The severity of the crime, - The significance of the evidence that witness has to offer, - The impact on the relationship. Courts are not insensitive to the complications that can occur when a partner or immediate relative has to testify against their parent, child or spouse. Whether or not you can compel family members of the defendant to give evidence against them depends upon whether the proceedings are civil or criminal. **In civil cases in Victoria, section 24 of the Evidence Act 1958 provides that spouses are both competent and compellable to give evidence. **In criminal proceedings however the Evidence Act 2008 creates a scheme under which spouses and immediate family members can apply for exemptions. I.e. spouses and family members can be exempt from being compelled to give evidence. Section 18 EA 2008 A spouse, de facto partner, parent or child of an accused may raise an objection if they are required to give evidence as a witness for the prosecution against the accused. If an objection is raised then the court must determine the objection in the absence of the jury (voir dire). I.e. is a question of law, not of fact. Section 18(6) provides that two requirements must be satisfied before an objection will be successful: (a) there must be 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. 20