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RULES OF EVIDENCE : Competence and Compellability

Something that I learnt from my Criminal Law professor in the first year of my undergrad degree some 6 years ago stuck with me to this day. Presenting evidence is an art, he had said. A few years later, I understand what he meant.


Evidence is usually provided in Australian courtrooms, and other common law jurisdictions including Canada, in the form of oral testimony. This is usually done at trial by following proper procedures and rules of evidence. Contrary to popular belief, it is not quite as simple as getting on the stand as saying whatever comes to your mind. For instance, in Queensland, witnesses and their evidence are subject to the strict rules in the Evidence Act 1977. Similarly, in Canada, the Canada Evidence Act governs all criminal and civil proceedings. The very length and complexity of these statutes provides an insight into the seriousness of how to introduce evidence into a Courtroom in common law systems.


Adrian J. Carter, Australian Lawyer

Witnesses must be called to provide evidence within the bounds of legislated procedures.

The concepts of competency and compellability are central to the rules of evidence in a criminal court in both Australia and Canada. Competency deals with the ability of a witness to give comprehensible testimony. This has much to do with logic and coherence. In Queensland, as a general rule, a witness or any other party to a proceeding is assumed to be competent to give evidence under the Evidence Act. It is only upon the raising of an issue about it, that the competency is brought into question. This can be apparent in cases where it can be shown that the witness does not quite appreciate the nature or consequences of answering the questions posed during exam. At the end of the day, the discretion is with the Court whether the witness is considered competent or not. Similarly, in Canada, a presiding judge has the discretion to determine whether a not an individual may be competent and compelled to testify, based on the relevance of the evidence that they would potentially provide as a witness.


Compellability is exactly what it sounds like, being obligated to give evidence for a proceeding to the Court. In Queensland, again the presumption is that any witness or party if competent, is compellable to provide testimony. That is, unless the party falls in one of the exceptions. One such important exception, is the so called “right to remain silent”. The Queensland Evidence Act in section 8, provides protection for the accused against self-incrimination, in that any person charged, although competent, is not compellable to provide evidence. Likewise, the Canadian Charter of Rights and Freedoms sets out in section 13, that a witness has the right to not present evidence that may incriminate him or herself, be it in the same or a different proceeding. Important to note another rule of compellability in Queensland is that spousal privilege does not apply. The Evidence Act clearly sets out that a husband or wife of an accused is both competent and compellable when it comes to a criminal proceeding. Correspondingly in Canada, the Canada Evidence Act underwent changes recently to reflect that spouses of an accused are, in fact, competent and compellable as witnesses against them.



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