Preliminary issues relating to Witnesses
• Competence and compellability,
• Oaths and affirmations,
• The principles and procedure for the issue of a witness summons and warrant of arrest (outline only).
The rules relating to the examination of Witnesses
• Examination in chief: ...
Witnesses
SYLLABUS REFERENCE
12. Preliminary issues relating to Witnesses
Competence and compellability,
Oaths and affirmations,
The principles and procedure for the issue of a witness summons and warrant of arrest
(outline only).
13. The rules relating to the examination of Witnesses
Examination in chief: form of questioning, memory refreshing, the use of previous
consistent statements, hostile witnesses,
Cross examination: form of questioning, previous inconsistent statements, restrictions
on cross examination, including finality on collateral matters,
Re-examination: form of questions,
The special measures available to vulnerable witnesses and witnesses in fear of
testifying.
Examination and Chief
READING:
Required Reading
Blackstone’s Criminal Practice F6
Further Reading
CLS Evidence Manual 2014, Chapter 6
Keane and McKeown, The Modern Law of Evidence, 10th Edition, Chapter 6
Cross Examination and Suspect Witnesses
READING:
Required Reading
Blackstone’s Criminal Practice, F5 and F7
Further Reading
CLS Evidence Manual 2014, Chapters 5 and 7
Keane and McKeown, The Modern Law of Evidence, 10th Edition, Chapters 7 and 8
Competence, Compellability, Special Measures, The Cross-Examination of Vulnerable
Witnesses & Witness Anonymity
READING:
Required Reading:
Blackstone’s Criminal Practice, F4 and D14
Further Reading:
CLS Evidence Manual 2014, Chapter 4.
Keane and McKeown, The Modern Law of Evidence, 10th Edition, Chapter 5
1
, Evidence SGS 3, 4, 5
WITNESSES
Everything you need to know on witnesses is on the PowerPoint!!
o So read them within the next week or 10 days!
With regards to witnesses, I must know:
1. Competence & compellability
2. Sworn & unsworn evidence
3. Rules relating to examination-in-chief of witnesses, including questioning, memory
refreshing, previous statements, hostile witnesses
4. Rules relating to cross-examination, including leading questions, putting inconsistent
statements, rule of finality, restrictions on cross- examination in sexual cases.
5. Special measures
1. Competence & Compellability
General rule =
All persons are competent; and
All competent persons are compellable
Competence
Someone is competent if they understand but they also have to be
understandable
Competent if they may lawfully be called to testify
All witnesses are presumed to be competent unless their competence is
challenged
o A party can challenge competence or a judge can question competence on
their own authority – where it is challenged, the party calling the witness
must establish that the witness understands and it understandable
Youth, Justice & Criminal Evidence Act 1999:
S. 53(1): “At every stage in criminal proceedings all persons are (whatever their age)
competent to give evidence”
Children and persons of unsound mind
S. 53(3): “ A person is not competent to give evidence in criminal proceedings if it
appears to the court that he is not able to understand questions put and give answers
which can be understood.”
Mostly affects:
o Children
o Persons of unsound mind (persons with a disorder or disability of the
mind)
Test is one of understanding
o Child should not be found incompetent on the basis of age – but the
question of the child’s competence should be kept under review
throughout the trial
o Under the second exception: the accuse is not competent to give evidence
for the P
2
, Evidence SGS 3, 4, 5
The accused
S. 53(4): a person charged in criminal proceedings is not competent to give evidence
for the prosecution.
S 53(5) states that a “a person charged in criminal proceedings” does not include
a person who is not, or is no longer, liable to be convicted of any offence in the
proceedings
Accused is thus competent to give evidence for the prosecution:
o On pleading guilty
o On acquittal
o Where separate trials are orders or
o Where a nolle prosequi has been entered on the direction of the
Attorney-General
S 53(1)…see above.. the accused is competent to give evidence on his or her own
behalf
Factors that follow when the accused gives evidence:
1. Any evidence that the accused may give is admissible against any co-accused
2. He is open to XX by both the prosecution and the co-accused
Compellability
All competent witnesses are compellable
Whether a competent witness can be made to testify
It’s presumed that all competent witnesses are compellable…EXCEPT AND
UNLESS one of the examples apply:
Examples:
1. Accused are not compellable witness for the defence (for himself)
2. Husbands, wives and civil partners are not compellable against the accused
a. BUT they can be compelled to give evidence against their significant
other if it’s a specified offence – like sexual offences against a child,
offences against the person (if the person is their spouse) or assaulting
a child
3. Heads of state and diplomats
4. Bankers
5. Judges
The Accused-
The accuse is not competent as a witness for the prosecution
Competent to give evidence on his own behalf, but not compellable. Competent
for co-accused but not compellable whilst charged in the proceedings (see
Criminal Evidence Act 1898, s 1(1)).
Once the accused is no longer a “person charged” in the proceedings, he or she
will be compellable
3
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