Competence and Compellability (NSW)

The determination of legal matters depends on parties being able to require witnesses to give evidence. In some situations, though, a person cannot be required to give evidence because they are not compellable as a witness. This page deals with the competence and compellability of witnesses in New South Wales.

Legislation on competence and compellability

Evidence law in New South Wales is contained in the Evidence Act 1995. Division 1 of that Act deals with competence and compellability of witnesses. As a general rule, in New South Wales, a person who is competent to give evidence is also compellable to do so; however, there are some exceptions to this.

Competence

At common law, there is a presumption that every person is a competent witness. This includes children without any age limit as well as adults.

However, under section 13 of the Evidence Act 1995, a person is not competent to give evidence if:

they lack the capacity to understand questions about facts; or
they lack the capacity to answer questions in a way that can be understood.

A person may be competent to give evidence about some facts but not others.

A person who cannot understand the nature of an oath or affirmation is not competent to give sworn evidence; however, they may be competent to give unsworn evidence.

Reduced capacity and compellability

Under section 14 of the Evidence Act 1995, a person is not compellable to give evidence if:

ensuring they had the capacity to understand questions would cause substantial cost or delay; and
adequate evidence on the matter has been given by others.

Who is not compellable?

Under the Evidence Act 1995, the following persons are not compellable to give evidence:

The sovereign
The Governor-General
The Governor of a state
The Administrator of a territory
A foreign sovereign or head of state

A member of parliament is not compellable to give evidence if requiring them to do so would cause them to miss a sitting of parliament or a meeting of a parliamentary committee of which they are a member.

Spouses and others

Under section 18 of the Evidence Act 1995, a person who is the spouse, partner, parent or child of the accused in a criminal proceeding may object to being required to give evidence for the prosecution.

If the court finds that requiring the person to give evidence is likely to cause harm to the person or to their relationship with the accused and that harm outweighs the desirability of having the evidence given, then the person must not be required to give evidence.

However, this provision does not apply if the accused is charged with certain offences involving the abuse or neglect of a child.

Judges and jurors

Judges and jurors in a proceeding are not competent to give evidence in that proceeding. However, they are competent to give evidence about matters affecting the conduct of the proceeding.

Subpoenas

If a party to a criminal matter requires a person to attend court to give evidence, they will issue a subpoena setting out the date, time and location that the person is required to attend. The subpoena will be personally served at least five days before the date the recipient is required to attend court. A copy of the subpoena will be served on the other party.

The person who has been issued with the subpoena is required to comply. If they fail to attend court, they will be in contempt of court and the court may issue a warrant for their arrest to ensure their attendance at court on a future date. They may also be charged with the offence of contempt of court.

Objecting to a subpoena

A person who is served with a subpoena may object to the subpoena on a number of grounds including that the evidence being sought is not relevant, that the person is not a compellable witness or that the information being sought is covered by a legal privilege – for example, solicitor/client privilege.

A person who wishes to object to a subpoena should seek legal advice immediately.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.