It is important to know who is able to be a witness (competence) and whom if asked must be a witness (compellability). As a general rule everyone is able to give evidence. People who have prior criminal convictions can testify. However there are some exceptions.
Evidence is normally given under an oath or affirmation This is called sworn testimony. The oath or affirmation will be as follows:
I (a) I swear by Almighty God…; OR (b) I swear by [name of a deity recognised by his or her religion]…; OR (c) I swear, according to the religion and the beliefs I profess, … . that the evidence I will give in this case will be the truth, the whole truth and nothing but the truth.
In other circumstances evidence can be given without such an oath or affirmation and is called unsworn testimony. The witness needs to understand that they are under an obligation to tell the truth and all that they know about the subject in question. They must also understand that if they don’t they will be liable to punishment.
Children as witnesses[]
A child is someone who is under the age of 18. Children between 12 and 18 are able to give sworn evidence in the same way as adults. If they are under the age of 12 where the judge believes that they understand that they must tell the truth and that it is a serious matter to give evidence they can give sworn testimony.
Children who are under 12 can also give unsworn evidence if the judge believes them capable of giving an understandable description.
Protections for child witnesses:
Children have some extra protections when giving evidence. These include;
- Support person and assistance
- Where an accused does not have a lawyer they cannot question the child directly.
- They can have their witness statement read to the court by another instead of speaking themselves to the court.
Children have extra protections if they are declared to be an ‘affected child’ that is they are under 16 and a victim of a serious sexual offence or where bodily harm is caused.
- Evidence may be pre-recorded
- There may be use of screening arrangements rather than having the child present in court.
- If the child has to be in court this will be for the shortest possible time.
A child may be alternatively a special witness and have protections for this reason. A person is a special witness if the court believes that they would experience a great deal of emotional trauma or be prevented by trauma from giving reliable evidence or evidence at all. They may also be considered a special witness if they will not be able to give evidence or giving reliable evidence because of a mental impairment or physical disability.
Witnesses with a disability[]
If it is needed an interpreter can be used for a witness with a physical disability. If appropriate the witness can give unsworn testimony (see above). Someone who has either a mental illness or a mental impairment comes within this category of witness. The court will assess the ability of witnesses with a mental disability to give evidence under oath. A witness with a disability may be a special witness and enjoy certain protections (see above).
Accused as a witness:[]
An accused is able to give evidence but cannot be forced to do so. They also have the right to defend a charge. An accused is able, if they want to, to give evidence against their co-accused if the trial is for both of them. If they are prosecuted in separate trials they may be required to give evidence.
Family of the accused[]
Civil proceedings: family members including spouses and former spouses can give evidence and can be required to do so. De facto spouses are not considered to be ‘family’.
Criminal proceedings: spouses are able to and can be required to give evidence for the accused. They are capable of giving evidence for the prosecution but cannot be forced to do so. However if the offence is one of personal violence or loss of liberty then the spouse will be required to give evidence. Former spouses can and may be required to give evidence for either party.
Other points to note:[]
Interpreters: Interpreters are sometimes necessary. It is an internationally recognised right that a defendant must be given access to an interpreter and to be told of what they have been charged in a language that they understand. A conviction cannot stand where because there was no interpreter and the accused did not understand English there was not a fair trial.
Sanctions for non-compliance by witnesses: Witnesses who are required to appear at court and do not may be required to tell the court their reasons and a warrant can be issued if they do not comply.
Giving of false evidence: If a witness gives false evidence they may be liable for one of two offences, either perjury or contempt of court. No civil claim can be brought against a witness for giving false evidence.