Assignment 2A (20 marks)
Assignment 2A (20 marks)
Format:Problem-based questions based on the HYPERLINK "https://vucollaborate.vu.edu.au/d2l/common/dialogs/quickLink/quickLink.d2l?ou=1411009&type=content&rcode=VU-2932897" t "_blank" Factsprovided.
Weight:20 marks
Word Guide:Up to approximately 1,400 words for the whole assignment
Conciseness is encouraged.
Please do not feel it is necessary to pad your answers to reach a word count of around 1,400 words.
On the other hand, please do not feel constrained to omit any relevant issues or points just to keep the word count around 1,400 words.
Due date:11 pm Saturday of Week 2 (13 August 2022)
General instructions:
Both the IRAC method and essay-style responses are acceptable
Authorities, sources and quotes must be appropriately referenced
Where an authority is cited multiple times, an appropriate abbreviation may be adopted after it is cited in full the first time
Authorities such aslegislation, cases and quotesmay be excluded from the word count
Relevant content: For this assessment, please review:
Module 2 notes;
Discussion 3;and
Chapter 2 of the prescribed textbook,Uniform Evidence
Bibliography : aglc
Competence and compellability accused in criminal proceedings.
A Issues
The issue here for Kayli McKenny is different from Jon De Tramp if they are to be called as witnesses for the prosecution. Kayli is not a spouse, parent or child of the accused but for her the issue is whether she could object as a possible associate of the accused.
B Rule
The Evidence Act s12 (a)(b) has at is basis that every person is competent to give evidence and a person who is competent to give evidence about a fact is compellable to give that evidence. However, there are exceptions under this act where the court would not compel someone to give evidence. In particularly in criminal proceedings where the accused cannot be compelled to be a witness for the prosecution.
In s17 competence and compellability accused in criminal proceedings.
(1) Applies only to criminal proceedings.
(2) An accused is not competent to give evidence as a witness for the prosecution.
(3) An associated accused is not compellable to give evidence for or against an accused in a criminal proceeding, unless the associated accused is being tried separately from the accused.
(4) If a witness is an associated accused who is being tried jointly with the accused in the proceeding, the court is to satisfy itself (if there is a jury, in the jurys absence) that the witness is aware of the effect of subsection (3).
Common law Bannon v The Queen (1995) Joint trial. The evidence which is led against one or other of the accused would be of prejudice to the other accused but inadmissible is his or her trial.
C Application
In the matter of Kayli s17 (3)(4) seems to apply, the concern that these sub-sections raise is the effect it may have in the event that she was also tried jointly with de Tramp. In that event the effect it may have is one accused could not be cross-examined about the activities of a co-accused. However, it appears that the way this section is to be applied in Victoria is supportive of the crimes act 1958 s399 (1). That is in a joint trial one co-accused cannot compel the other to testify. If the co-accused chooses to testify, however, then there is nothing in the section which would prevent him or her from being cross-examined.
The court would have to be satisfied that Kayli is aware that she is not compellable to give evidence as understood in s17(4).
D Conclusion
Unlike civil matters a party may call the other party as a witness. Unlike in criminal cases the accused is competent but not compelled to be a witness in his or her own defence. In the case of Kayli, she is competent but not compellable to give evidence by as associated accused with whom she may be jointly tried with de Tramp if the police were able to charge and go to trial with de Tramp. Kayli has been one of his closest advisors and she has refuted the claims that have come from the press article that was published online and has refute the allegations raised by the article and she has further made the same statement to police in interview with them. The information is contradictory to what the police has been provided by their credible witness. Regardless of that, Kayli could request that she be excepted from being called as a witness as she is unsure as to whether the police are considering taking action against her and the predicament, she will be left in. The police have other means to obtained information that may refute her claims and that of de Tramp, but it should not be coming from her until her situation and that of de Tramp has been clarified that he is charged, and a trial will proceed.
Compellability of spouse and others in criminal proceedings
A Issue
The issue here is whether Jon de Tramp could object to be called as a witness for the prosecution.
B Rule
In the Evidence Act s18(2) states that a person who has been called in to give evidence is the spouse, de facto partner, parent or child of an accused may object to being required
To give evidence; or
To give evidence of a communication between the person and the accused as a witness for the prosecution.
S18(3) the objection is to be made before the person gives evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.
S18(6) a person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evide22nce if the court finds that
There is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the accused, if the person gives the evidence; an
The nature and gravity of the offence for which the accused is being prosecuted
Whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor
The nature of the relationship between the accused and the person.
S18 (5) court must hear the objection without a jury being present.
C Application
The court must consider the nature of the relationship that Jon has with his son de Tramp and weigh up the harm that it may cause that relationship with the desirability to have that evidence given. In doing so it must consider if this evidence can be obtained from another source also s18 (7) (c).
S18 (6) provides a guide to discretionary exception to presumption of compellability in criminal proceedings and extend it to include same sex de factors. Family members are not able to object to give evidence and the court has no power to excuse. However, it can use the discretion granted in s18 if any of those grounds apply.
The court has to be satisfied that Jon to whom this applies is aware of his right to object under s18(4) and this objections must be done so as soon as practicable after becoming aware the right to be able to do under s18(3).
D Conclusion
Under the evidence act the court can still compel family members to give evidence against their relatives if it considers that the evidence out weights the implications for them if they are at a risk of harm or their relationship damage because they have been called as witness for the prosecution. The court is less likely to compel family members or spouse as outline in the act if the evidence can be obtained from other sources. In Jons case this is the case, there were 20 other people behind closed door that were privy to the same information. The court can excuse Jon from giving evidence but may not necessarily mean that his statement may not be tender under s 65. And can only be disallowed if it has been ruled as unavailable preventing the prosecution from relying on s65 to try and get the statement into evidence. The matter of Dpp v Nicholls is relevant when witness are excused from giving evidence and the ramification of it.
