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Competence and Vulnerable Persons

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Question One

Competence and Vulnerable Persons

Section 12(a) and 13(6) of the Evidence Act 1995 (NSW) create the presumption that all persons regardless of age or other factors, are competent to give evidence.[1] The presumption of competence may be rebutted; if it is proven that the person does not meet the relevant test of competence.[2] It is for the court to determine whether it is satisfied on the balance of probabilities that there is proof that a person is incompetent.[3] Where vulnerable persons are required to give evidence, the question of competence may arise.[4] Section 306M(1) of the Criminal Procedure Act 1986 (NSW) defines a vulnerable person “as a child or cognitively impaired individual”.[5] Section 306M(2) provides that a cognitive impairment includes an “intellectual disability, brain injury and various other psychological disorders”.[6] Toby suffered a brain injury as a result of his accident and therefore is a vulnerable person pursuant to s 306M(1).[7] 

Section 13(1) establishes a general test for competence based on the witnesses’ ability to understand a question and give an answer that could be understood about a fact.[8]  Section 13(2) provides that a person may be competent to give evidence about one fact, but not competent to give evidence about another fact.[9] The judgment of RJ v R (2008) found that the question of competence to give evidence must be decided on a “fact by fact basis, unless there is a reasonable belief that the person is not competent in respect of any facts”.[10] The interview conducted after Toby’s accident made evident that he had the capacity to understand questions and give responses which could be understood. However, his responses highlighted that he could recall specific dates and times anymore. Therefore, pursuant to s 13(2) Toby is competent to give evidence regarding the general details of the incident,[11] but not competent to give evidence in relation to specific times and dates due to his memory loss.[12]

Sworn Evidence

Once, the general competence test is satisfied, the court is required to determine whether the witness is competent to give sworn evidence.[13] Section 13(3) provides that a person who is competent to give evidence can be sworn in, if they understand that in giving evidence they are under an obligation to tell the truth.[14] The judgment of Pease v R [2009] made clear that this determination requires a “matter of judgment and inevitably includes assessment and impression”.[15] The court in R v RAG relied on a publication from the Judicial Commission of NSW to determine the question raised by s 13(3).[16] The publication provides practical guidance to suggest that question is to be answered by answering the witness a set of basic questions and then explaining the importance of telling the truth. During his interview with the DPP, Toby indicated that he did not know what a court is. Based on his lack of understanding in relation to the function and role of a court, it would be found that Toby could not give sworn evidence pursuant to s 13(3).  (could develop this more)

Unsworn Evidence

Nevertheless, a person who is not competent to give sworn evidence may be competent to give unsworn evidence.[17]Whilst, s 13(4) uses the term “may” there is no direction to decline to allow unsworn evidence to be given, once the requirements in s 13(5)(a)-(c) have been met.[18] Therefore, as long as the court has informed Toby of the requirements in s 13(5)(a)-(c) he will be permitted to give unsworn evidence regarding the general details of the incident.[19] However, strict compliance to the requirements in s 13(5) is required,[20] as non-compliance may result in a conviction being set aside as witnessed in SH v R.[21]  The DPP could provide Toby’s evidence in the form of a visual recording of his interview by the investigating individual pursuant to s 306S(a) of the Criminal Procedure Act 1986 (NSW).[22] 

Question Two

Unreliable Evidence Warning

Section 165(1)(a)-(g) provides that a judicial warning may be issued in relation to evidence of a kind that may be unreliable,[23] which includes the reliability of evidence which may be affected by age, ill health or injury.[24]  The Evidence Act does not provide a test of unreliability and nor does it specify what might constitute good reasons to refuse to give a warning.[25] Heydon JA on the question of reliability stated that whether evidence of a kind might be unreliable is to be considered “in light of the particular circumstances surrounding the evidence”.[26] Once the requirements of s 165(1) are met and if a party requests a warning be given, the judge must inform the jury that the evidence may be unreliable.[27] The warning must include the reasons that may cause the evidence to be unreliable and caution whether jury should accept the evidence and the weight which should be given to evidence.[28] However, pursuant to s 165(3), the judge may refuse the request if there are good reasons for not giving one.[29]Furthermore, s 165(5) preserves the common law power of the judge to give a warning or inform the jury.[30] The judgment of PM v R established that judge only trials can still require warnings pursuant to s 133(3) of the Criminal Procedure Act.[31]  Section 133(3) states that if any “Act or law requires a warning to be given to a jury in any such case; the Judge is to take the warning into account in dealing with the matter”.[32] Therefore, pursuant to s 165 the judge will be required to give a warning regarding the evidence which Toby will present in court.[33] 



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