Do I Need to Testify in Court? Witness Compellability and Competence

November 14, 2023by Naomi Cramer

Being referred to as to ‘give proof’ – also referred to as as testify – in a felony trial is usually a daunting expertise; one thing chances are you’ll not need to do for any of a number of causes – chances are you’ll be apprehensive about saying the flawed factor and thereby stepping into hassle, you will have different commitments and never need to wait all day (and even a number of days) in your flip to come back up or the particular person in opposition to whom you’re anticipated to testify in opposition to could also be a pal, a loved-one and even somebody you concern.

Typically, solely a witness who’s competent (who has authorized capability) and compellable (who will be required to attend and testify) will be compelled to offer proof in a felony trial.

Nonetheless, the principles relating to competence and compellability have modified through the years, typically making it more durable to get out of getting to testify.

Right here’s a rundown of the legal guidelines that presently apply.

family: ‘Barlow Semi Condensed’, ‘Arial Slender’, sans-serif; font-size: 1.4rem; font-weight: 500;”>Presumption that each one witnesses are competent and compellable

Part 12 of the Proof Act 1995 (NSW) offers a rebuttable presumption that each one individuals are competent  and compellable to offer proof in authorized issues.

In different phrases, it’s presumed that anybody will be compelled to testify in court except it’s established that they don’t seem to be.

When is a witness not competent to offer proof?

An individual won’t be competent to behave as a witness in the event that they lack sure capacities attributable to a psychological, bodily or mental incapacity.

Below part 13 of the Act, an individual will not be competent to offer proof a couple of truth if, for any motive:

  • the particular person doesn’t have the capability to know a query concerning the truth; or
  • the particular person doesn’t have the capability to offer a solution that may be understood to a query concerning the truth.

In some circumstances, the court could make changes in order that an individual positive aspects capability. For instance, a deaf particular person could have capability to know questions and reply if an applicable signal language interpreter is offered.

If proof is required to be given underneath oath or affirmation (sworn testimony) an individual can even not be competent in the event that they lack the capability to know that, in giving proof, she or he is underneath an obligation to offer truthful proof.

When is a witness not compellable to offer proof?

A compellable witness is one who’s required to offer proof, and failing to take action can result in severe penalties together with being charged with the offence of contempt of court.

Part 14 of the Act offers that an individual won’t be compellable if there are problems with competency (as described above) and the court is happy that:

  • substantial price or delay could be incurred in guaranteeing that the particular person would have the capability to know a query concerning the matter or to offer a solution that may be understood to a query concerning the matter, and
  • ample proof on that matter has been given, or will have the ability to be given, from a number of different individuals or sources.

Individuals in positions of governance

Part 15 of the Act makes clear that the next persons are not compellable to offer proof in court:

  • The Monarch (presently the King).
  • The Governor-Basic.
  • The Governor of a State.
  • The Administrator of a Territory.
  • A international sovereign or the Head of State of a international nation.

The part moreover states {that a} sitting Member of Parliament will not be compellable if having to to attend court would forestall the member from attending a sitting of the Home, a joint sitting of parliament or a parliamentary committee assembly of which the particular person is a member.

Judges and jurors

Part 16 of the Act offers {that a} decide or juror in a continuing will not be competent to offer proof in that continuing, however a juror is competent if being referred to as in relation to issues affecting conduct of the continuing.

The part additional states that decide in an Australian or abroad continuing will not be compellable to offer proof about that continuing, except the court offers depart (permission).


Part 17 of the Act makes clear that an related defendant – also referred to as a ‘co-accused’ – will not be compellable to testify for a defendant (eg if subpoenaed to attend court by the defence) or in opposition to a defendant (eg if subpoenaed by the prosecution) in a felony continuing, except the related defendant is being tried individually from the defendant.

This rule can have vital ramifications in instances the place multiple particular person is charged with a felony offence arising from the identical alleged set of circumstances.

Members of the family

There are particular guidelines that apply to the compellability of spouses or family in instances the place their liked one is dealing with felony proceedings.

Below part 18 of the Act, a  partner, de facto companion, parent or child of a defendant might object to giving proof as a witness.

This objection should be made as quickly as practicable after the particular person turns into conscious they’re required to offer proof, or that they’ve a proper to object to doing so.

A court will settle for this objection if:

  • there’s a chance that hurt would or may be prompted (whether or not immediately or not directly) to the particular person, or to the relationship between the particular person and the defendant, if the particular person offers the proof, and
  • the character and extent of that hurt outweighs the desirability of getting the proof given.

In figuring out the above, the court can take into account a spread of things together with:

  • the character and gravity of the offence for which the defendant is being prosecuted
  • the substance and significance of any proof that the particular person may give and the load that’s more likely to be hooked up to it,
  • whether or not every other proof regarding the issues to which the proof of the particular person would relate within reason obtainable to the prosecutor,
  • the character of the connection between the defendant and the particular person,
  •  whether or not, in giving the proof, the particular person must disclose matter that was obtained by the particular person in confidence from the defendant.

Part 19 of the Act stipulates that an individual can not object if the alleged offence includes child abuse or neglect, or is expounded to child guardianship determinations.

So there you have got it – a thumbnail sketch of the present guidelines on the subject of being compelled to offer proof as a witness in court.

Going to court?

If you’re dealing with court or are not sure of your authorized proper, name Sydney Criminal lawyers anytime on (02) 9261 8881 to rearrange an appointment with a specialist felony defence lawyer who will take you thru your rights, your choices and one of the simplest ways ahead.

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by Naomi Cramer

Auckland Lawyer for FIRST TIME Offenders Seeking to Avoid a Conviction. Family Law Expert in Child Care Custody Disputes. If you are facing Court Naomi will make you feel comfortable every step of the way.  As a consummate professional your goals become hers, with customer service as our top priority. It has always been Naomi’s philosophy to approach whatever you do in life with bold enthusiasm and pure dedication. Complement this with her genuine passion for equal justice and rights for all and you have the formula for success. Naomi is a highly skilled Court lawyer having practised for more than 20 years. She serves the greater Auckland region and can travel to represent clients throughout NZ With extensive experience, an analytical eye for detail, and continuing legal education Naomi’s skill set will maximise your legal rights whilst offering a holistic approach that best fits your individual needs. This is further enhanced with her high level of support and understanding. Naomi will redefine what you expect from your legal professional, facilitating a seamless experience from start to finish.   Her approachable and adaptive demeanor serves her well when working with the diverse cultures that make up the Auckland region. Blend her open and honest approach to her transparent process and you can see why she routinely delivers the satisfying results her clients deserve. If you want to maximise your legal rights, we recommend you book an appointment with Naomi today so she can detail the steps for you to achieve your goals. 

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