These are the notes that I used for my Criminal Evidence exam. They cover the rules regarding competence and compellability including in depth analysis of the law regarding spouses. I used these notes to revise for my exam, in which I got 75.
Competence and Compellability
Oaths
- Witness under 14 cannot give sworn evidence (s.55(2)(a) YJCE 1999)
- A witness over 14 can give sworn if passes test under s.55(2)(b).
o S.1 Oaths Act 1978.
o Solemn Affirmation: s.5 Oaths Act 1978.
o If not witness will give evidence unsworn (s.56).
False unsworn evidence can still give rise to perjury charge (s.57).
- Everyone prima facie competent and compellable (s.53(1) YJCE 1999)
o Exceptions s.53(3) and s.53(4)
- If objection take as to competence, ought to be raised prior to evidence being given.
Evidence will be presented in absence of jury (s.54(4))
- Person calling witness should then show on balance of probabilities that s.53(3)
satisfied and hence competent.
o In determining this, expert evidence may be called (s.54(5)).
- No preconceptions. Competence is “witness, trial and issue specific” (R v IA, TA and FA
2013)
- John Spencer 2000: “The rules mark the final transition from a system where courts
refuse to hear all sorts of persons for fear that they might not tell the truth, to one
where the courts listen to everybody, and try to decide whether or not they are truthful
or not on the basis of what they have said.”
CHILDREN
- Presumed competent. Speaking up for Justice 1998 publication led to overhaul since
view previously taken that child witnesses less reliable than adults. Led to s.53(1)
YJCE.
- Same test (s.53(3)) applies.
o The only test, age cannot be a factor (R v Barker 2011 disproving R v Wallwork
1958 (ridiculous that jury could attach value to evidence of a 5 year old).
o ‘put to him as a witness’ same as ‘asked of him in court’ so being able to
communicate in baby language with mother not enough but young child who
could speak basic English with strangers would be competent (R v MacPherson
2006).
- But time between statement and trial can be a factor. If originally competent, judge can
exercise discretion during trial under s.78 PACE.
o R v Powell 2006: child three and a half at time of sexual assault. Trial nine
months later. Initially treated as competent to testify by reference to video-
recorded interview. But by time of trial came apparent that serious grounds for
doubting competence. Overturned on appeal since judge should have revisited
question of competence.
o R v Malicki 2009: CA identified two problems with delays when young witnesses.
One child may not be able to accurately recall what happened and may have
problem distinguishing between video interview and true underlying events. In
this case became impossible to tell whether telling truth or just recalling video
interview which she had just seen twice. Child was only four and trial was over
14 months later. Appeal allowed since should have been excluded as no way of
telling whether testimony was that of real events.
MENTALLY HANDICAPPED PEOPLE
- Same s.53(3) test.
- The only test;
o R v Sed 2004: judge admitted statement of 81 year old with dementia accusing
D of rape. Even though answers in tape interview a little confused and didn’t
understand 100%, judge allowed it since she satisfied the test.
o R v F 2013: trial judge said incompetent since trouble with communicating with
witness who had learning difficulties and was deaf. Court should have applied
s.53(3) test and not difficulty in getting answers.
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