Competence and compellability

Competence and compellability are defined in the Dictionary.

The starting point in determining both competence and compellability is s12, which provides that all witnesses are competent, and all competent witnesses a compellable.

There follows in ss13-19 a series of exceptions.

s13 sets out the main exceptions as to competence. First, a witness will not be competent where (s13(1)):

(a) they cannot understand a question; or

(b) the cannot give an answer which can be understood.

Second, a person will not be competent where they do not understand the obligation to tell the truth: s13(2).

Note also that a lack of competence can relate either to the whole of their evidence, or only in respect of a particular issue: s13(3). Also, a lack of competence to give sworn evidence does not prevent the witness giving unsworn evidence, so long as the requirements of s13 are met.

Exceptions to compellability

Section 14 provides an exception in respect of curable incompetence, that is, where a witness is held not to be compellable due to the cost or delay associated with overcoming their incapacity.

Section 15 excepts Sovereigns of the Commonwealth, States and other countries.

Section 16 exempts judges and juries in the proceedings, although jurors are able to give evidence about matters affecting the conduct of the proceedings.

Sections 17 and 18 are give protections to defendants in criminal proceedings (s17) and their partners, de factos, parents and children (s18). Under s17, the defendant in criminal proceedings is not compellable as a witness for the prosecution, or as a witness for an associated defendant, unless they are tried separately.

Section 18 requires that the witness object, although by virtue of s132, if it appears to the court that a witness might fall within s18, the court must satisfy itself that the witness is aware of the effect of s18. On objection, the court is then to determine whether the harm to the relationship between the proposed witness, and the defendant, outweighs the desirability of their giving evidence: 18(6)(b). In order to arrive at that determination, the court must take into account, inter alia, the matters listed in s18(7), and the matters in section 192: Suteski.

Section 19 brings in s279 of the Criminal Procedure Act (NSW) (the other sections listed having been repealed) which provides a different approach to determining the compellability of spouses in domestic violence offences.


Although s20 is drafted in the permissive sense, in that it says the court may comment on the failure of the defendant to give evidence, the significant issue in respect of this section is the extent to which adverse comment is permissible.

As such, subsection (2) relevantly provides that such comment may not be made where it suggests that the silence is evidence of guilt. As a practical matter, this rules out much in the way of adverse inference (Dyers v The Queen; cf Jones v Dunkel below)

Jones v Dunkel and the right to silence

In Jones v Dunkel, the High Court held that an adverse inference might be drawn from the failure to call a witness where there is a reasonable expectation that the ought be called, and a failure to explain why they were not. The adverse inference available is that their evidence would not have assisted the party who failed to call them. A Jones v Dunkel direction remains appropriate in civil proceedings.

In criminal proceedings however, the general rule is that a Jones v Dunkel inference is not appropriate in respect of either the accused, or the prosecution, albeit for different reasons: Dyers v The Queen.

In Dyers, the High Court held that the drawing of an adverse inference from the accused’s failure to call a witness (including the failure of the accused to give evidence) is inconsistent with both the accusatorial nature of the trial, and the accused’s right to silence. However, in rare and exceptional circumstances, where a damning inference calls for an explanation of matters which could only be within the knowledge of the accused, then such an inference might be drawn: RPS, Azzopardi. For an (or perhaps the) example of such a rare and exceptional case, see Weissensteiner v The Queen.

In relation to the prosecution, the High Court in Dyers noted that the decision as to whether to call witnesses fell squarely within prosecutorial discretion. As such, a Jones v Dunkel inference was only appropriate in circumstances where the failure to call a witness amounted to a breach of the prosecutor’s duty to call all material witnesses (see Kneebone).

Refreshing memory

Whilst giving evidence

Perhaps unsurprisingly, the Evidence Acts places more limits on refreshing the memory from within the witness box than outside it. Section 32 requires a grant of leave before a witness can refresh their memory from within the witness box: s32(?).

In determining whether to grant leave, the court is required to take into account the matters listed in s32(?), namely:

  • whether the witness can recall the matters without using the document
  • whether the document recorded when “fresh in the memory” (see below)
  • whether the document was at the time of creation found to be accurate

Of course, the matters listed in s192 also fall to be considered: Stanoevski.

As to the meaning of fresh in the memory, whilst noting the amended definition of the term in s66(2A), there is conflicting authority as to the meaning of the term in this section. It has been held to require immediacy, ie, the document being created within hours. The ALRC appear on the other hand to have had a more flexible notion of the term.

Refreshing outside court

Where memory is to be refreshed outside the box, the are no statutory conditions, and leave is not required. However, where a document is used for that purpose, there are consequences. First, s34 allows the court to give such directions as it considers necessary to ensure production of the document(s) to the court (s34(1)), and may refuse to admit the evidence of the witness if such document(s are not produced: s34(2). Second, use of the document is, in light of s34, likely to be a waiver of client legal privilege (see s122; Mann v Carnell).

Refreshment for police officers

s33 provides a much more liberal condition on police officers wishing to refsh their memory, in recognition of their role as frequent, professional evidence givers (whose evidence often reproduced verbatim their witness statements, in any event). Officers can be lead through, or read out their statement in XC where:

  • the statement was made soon after the event (with a connotation of immediacy, ie within 24 hours: Orchard v Spooner);
  • the statement was signed at the time it was made; and
  • a copy of the statement was served on the defendant, or his legal representatives a reasonable time before the hearing

Questioning witnesses

Form of questions

Two forms of question are categorised in the act – leading and non-leading questions. Leading questions are defined in the Dictionary as questions which:

  • suggest a particular answer to the question; or
  • assume the existence of a fact in issue in the proceedings about which evidence has not been given

Leading questions are allowed in cross-examination: s42.

Leading questions are only allowed in XC and RX in the limited circumstances set out in s37, that is, where:

(a) the court gives leave (b) introductory matters (c) no objection, and all parties legally represented (d) in relation to matters not in dispute (e) when putting a hypothetical scenario to an expert witness.

Unfavourable witnesses

s38 allows a party to question their own witness, as if cross-examining them, in three scenarios:

(a) where the witness is giving unfavourable evidence (b) where the party is not making a genuine attempt to give evidence (c) where the witness has made a prior inconsistent statement

In practical reality, these often overlap.

Unfavourable is a term newly introduced by the Evidence Acts, replacing the common law ‘hostile witness’ requirement. Whilst broader than that term, it still requires something more than that the witness not be giving the evidence they were expected to: Kneebone.

In determining whether to grant leave, the court is required to take into account the matters listed in s38(7), plus s192 matters: Stanoevski.

A grant of leave does not permit general cross-examination (Hogan), but does allow questioning as to crebility, and as to the factual matters relevant to (a), (b) and (c) above: Le.

Cross examination on a prior inconsistent statement

A witness can be XXed about a prior inconsistent statement without it being shown to them: s43. However, before evidence of the statement can be adduced (assuming it is admissible), the preconditions in s43(2) must be met, namely, thatthe witness be informed of the circumstances of the making of the statement and still deny it. Where the witness admits making the statement, no such conditions must be met.

Where the prior inconsistent statement is inadmissible, evidence of the statement cannot be adduced, and a procedure like that in s44(3) might be followed.

Cross examination on the prior statements of others

Where the prior statement is made by another, the scenario is different. No limitations are imposed where evidence of the representation is already in evidence, or will be: s44(2). However, where the representation is inadmissible, the procedure in s44(3), sourced from the common law procedure in The Queen’s case must be followed. That procedure is:

(a) the document or audio is to be produced to the witness (b) the witness is given time to examine (or privately listen to) the document or recording (c) the witness is asked whether, having examined the document, they stand by their evidence

Neither the witness or the cross-examiner are to identify the document or recording.