Competence

Background

Rationale

4.3 The law of competence addresses both legal competence^[2] and competence in the sense of the capacity of a person to be a witness. This chapter is concerned with the latter. The primary rationale for the existence of tests of competence is to guard against the admission of evidence of little or no probative value. This need has to be balanced against the unnecessary exclusion of relevant evidence. These competing priorities are particularly evident in the context of the criminal law where it is necessary, on the one hand, to ensure that relevant evidence is before the trier of fact and, on the other, to provide an initial filter to exclude evidence that is so unreliable its admission would be unfair to the accused.

4.4 The assessment of competence should not be:

concerned with the many factors that can affect the value of the witness’ evidence such as the powers of observation, the time which has elapsed between the perception of an event and its ultimate report and so on. These factors will have bearing on the credibility of the witness and should therefore be taken into account at the stage when the weight of the testimony is to be assessed.^[3]

4.5 Rather, the test of competence should be concerned with assessing the ‘ability of the witness to function as a witness’.^[4]

4.6 The issue of competence generally only arises when the witness is a child or has some form of disability. There is a wide range of characteristics which may lead to a party seeking to impugn a person’s competence as a witness including, for instance, age, some forms of physical or sensory disability, acquired brain injury, mental illness and intellectual or cognitive disability.

4.7 Historically, the rationale for stringent rules regarding competence reflects stereotypical views about children and their unreliability as witnesses. The reasons for children’s evidence being considered inherently ‘suspect’ have been put on the basis that children have less reliable powers of observation and memory, are prone to live in a make-believe world, are egocentric and forget details unrelated to themselves, are suggestible and have little notion of the duty to speak the truth.^[5] Even more extreme views have been expressed in the past.^[6]

4.8 Recent research challenges many of these views.^[7] Of particular relevance in the context of this discussion about competence is that:

there is no psychological evidence that children are in the habit of fantasising about the kinds of incidents that might result in court proceedings or that children are more likely to lie than adults. Indeed, research suggests that children may be actually more truthful than adults. Certainly, the research on children’s beliefs about court proceedings implies that children may be more cautious about lying in the witness box than adult witnesses. When children do lie to an adult, the adult is usually well able to discern this, particularly with younger children. ^[8]

4.9 Further, some research about children’s conceptions and moral judgments of truth-telling and lying shows that, in reality,

[c]hildren’s knowledge about truth- and lie-telling emerges early and develops rapidly. Children from preschool years onward often show sophisticated understanding of the concepts of lying and truth-telling, rate truthful statements about rule violations positively, and judge lying to conceal rule violations negatively. ^[9]

Position at common law

4.10 The position at common law is that a person is only competent to give evidence if he or she can give sworn evidence.^[10] The traditional common law test of competence to give sworn evidence is whether the person understands the nature and consequences of the oath.^[11] There is conflicting authority on whether this test requires the witness to have a belief in a divine being and divine sanction so that the oath would have a binding effect on the witness’ conscience.^[12]

4.11 Experience has shown that the application of this test is a potentially cumbersome and abstract process. Some judicial officers have typically considered it necessary to inquire into a person’s understanding of moral issues, religious beliefs or belief in God and their appreciation of the concept of divine sanction. These are matters which may discriminate against people of certain faiths or backgrounds and are not necessarily helpful in ensuring that a witness can give reliable or accurate evidence.

4.12 The following is a typical example of a trial judge’s questioning based on the common law test of competence. The complainant, who was a girl with an intellectual disability, was aged 11 at the time of the alleged offences and aged 13 at the time of the trial. Before she was sworn she was questioned by the trial judge:

Do you know what the Bible is?—Talk about God.—A book about God did you say? Do you know what’s meant … when you talk about taking an oath, it sounds a lot of words, do you know what that means?—No.—Do you know what is meant if you take the Bible in your hands …?—Yes.—Do you know what the truth is—Yes.—What’s the truth?—If you be good.—Do you know what a lie is?—If you’re bad.—Do you know what might happen if you tell a lie?—You go to gaol.—You what?—You go to gaol.—Go to gaol, I see. So if you take the Bible in your hands and you swear to tell the truth, what do you think might happen if you didn’t?—I don’t know. ^[13]

4.13 The judge then stated that he was satisfied that there was sufficient evidence to show that the complainant understood the nature of the oath. She was then sworn. On appeal the court noted:

The evidence quoted above does, however, leave it very much open to doubt that the victim had demonstrated a sufficient understanding that by taking the oath she had exposed herself to divine sanctions for false swearing if God exists or for that matter that she even knew what an oath was.^[14]

Reform and liberalisation

4.14 The ALRC’s previous Evidence inquiry (ALRC 26 and ALRC 38) reviewed the common law test of competence and pointed out that this approach was ‘far from satisfactory’,^[15] essentially being a test of ‘moral and religious understanding’.^[16] In ALRC 26 the ALRC noted:

A person’s understanding of moral matters as evidenced by his [or her] comprehension of the oath might bear very little relationship to his [or her] ability to comprehend questions and formulate rational responses.^[17]

4.15 The ALRC pointed to the need for a secular and more direct test of competence.^[18] The main elements of its proposed reform included:

• a presumption that every person is competent to give evidence;
• in circumstances where doubt is raised, a person who does not meet a certain ‘minimum standard’, namely who does not understand the obligation to give truthful evidence, is not competent to give evidence; and
• a person ‘who is incapable of giving a rational reply to a question about a fact’ is incompetent to give evidence about that fact.

4.16 It was also proposed that a person was to give evidence having either sworn an oath or made an affirmation.^[19] There was no proposal by the ALRC for a test of competence to give unsworn evidence, although it was noted that some state legislation enables children not competent to take the oath to give unsworn evidence.^[20]

4.17 The recommendations of the ALRC reflect the evolution in recent years of competency laws in Australia and elsewhere, which favours an approach that is less exclusionary and promotes greater admissibility of evidence,^[21] although there is still considerable variation between jurisdictions as to what is required. Some jurisdictions have introduced presumptions of competence for all persons.^[22] In most Australian jurisdictions, the common law position has been modified to change the test of competence to give sworn evidence from one based in religion and the oath to an understanding of the obligation to tell the truth.^[23] There have also been moves to allow witnesses to give unsworn, as compared to sworn, evidence in certain circumstances.^[24]

The current law—the uniform Evidence Acts

4.18 The competence and compellability provisions of the uniform Evidence Acts are found in ss 12–20. This part of the chapter is particularly concerned with ss 12 and 13, which relate to the capacity of a witness to give evidence.

4.19 Section 12 sets out the basic rules for competence and compellability. Under s 12(a), all persons, regardless of age or other factors, are presumed to be competent to give evidence. This proposition applies subject to application of other provisions of the uniform Evidence Acts, in particular s 13. The presumption of competence may be rebutted if it is challenged and the person does not meet the relevant test of competence.

4.20 Section 12(b) provides that a person competent to give evidence about a fact is also compellable to give that evidence. This provision enables the court to determine competence and compellability in terms of a person’s capacity to give evidence about particular matters and not others.

4.21 Section 13(1)–(4) provides a number of qualifications to the general proposition that all witnesses are competent to give evidence.

4.22 Central to this discussion is the distinction made in s 13 between sworn and unsworn evidence and the tests for competence to give each type of evidence. Section 13(1) sets out the test of competence to give sworn evidence. It provides that a person who is incapable of understanding that he or she is under an obligation to give truthful evidence is not competent to give sworn evidence.

4.23 The test for competence to give unsworn evidence contained in s 13(2) requires the fulfilment of a number of criteria:

• first, the threshold issue must be established—that is, by virtue of s 13(1), the person is not competent to give sworn evidence because he or she is incapable of understanding the obligation to give truthful evidence;
• secondly, the court must be satisfied that the person understands the difference between a truth and a lie (s 13(2)(a));
• thirdly, the court must tell the person the importance of telling the truth (s 13(2)(b)); and
• fourthly, the person must indicate appropriately that he or she will not tell lies in the proceeding (s 13(2)(c)).

4.24 There is a further competence requirement applicable to both sworn and unsworn evidence contained in subsections 13(3) and (4). Section 13(3) provides for the concept of ‘partial’ incompetence—that is, a person who is incapable of ‘giving a rational reply to a question about a fact is not competent to give evidence about the fact’. He or she may nevertheless be competent to give evidence about other facts. Section 13(4) relates to a person who for physical or other reasons is not capable of ‘hearing or understanding’ or ‘communicating’, and provides that such a person is not competent to give evidence ‘about a fact’ if that ‘incapacity cannot be overcome’.

4.25 Section 13(5) reinforces the proposition that all persons are competent by specifically providing for a presumption of competence which is displaced only ‘if the contrary is proved’. Accordingly, the burden of proof is on the party challenging the competence of a witness.

4.26 Section 13(6) deals with a situation where, before a witness finishes giving evidence, he or she dies or becomes incompetent to give evidence. It provides that evidence that has already been given by the witness does not become inadmissible merely because of the happening of such an event.

4.27 In determining a question concerning a witness’ competence under s 13, the court is, by virtue of s 13(7), permitted to inform itself as it sees fit.

4.28 The competence provisions in ss 12 and 13 for the most part reflect the original ALRC proposals except in two significant and related respects. First, the provisions make a distinction between competence to give sworn and unsworn evidence. Section 13(1) adopts the test of competence recommended by the ALRC—that is, an understanding of the obligation to give truthful evidence—but confines it to a test for giving sworn evidence. Secondly, s 13(2) introduces a test for competence to give unsworn evidence, which is to be applied where a witness fails to meet the competence test for sworn evidence but can satisfy another set of criteria.

Criticisms of the current law

4.29 Recent law reform work, particularly in Victoria,^[25] and academic consideration of the competency provisions, question the formulation of the competence tests under the uniform Evidence Acts.

4.30 There are a number of overlapping criticisms:

• first, taken together, the tests of competence to give sworn and unsworn evidence are too restrictive, with the risk that evidence of probative value will be excluded;
• secondly, the appropriateness of the requirement in the competence test to give unsworn evidence that a person ‘understands the difference between the truth and a lie’ is questionable;
• thirdly, the tests of competence to give sworn and unsworn evidence are too similar;
• fourthly, the tests of competence to give sworn and unsworn evidence pose difficulties for practical application; and
• fifthly, there is uncertainty about the application of the requirement that the court tell the witness that it is important to tell the truth.

4.31 These criticisms are dealt with below.

Too restrictive

4.32 The content and complexity of the tests in s 13 may defeat the trend towards less stringent laws of competence and an objective of greater admissibility of evidence. In their current form, the uniform Evidence Acts require a person whose competence is in doubt to meet certain standards. The level of cognitive ability or intellectual capacity required to fulfil these standards may exclude some persons from giving evidence who may nonetheless be able to communicate valuable information satisfactorily.

Appropriateness of ‘understands the difference between the truth and a lie’

4.33 The ‘truth’ criterion is a critical element in both the tests of competence to give sworn and unsworn evidence. The appropriateness of this, particularly for unsworn evidence, is questionable. Truth is an abstract, morally based concept. As has been said, ‘truth is not an unitary concept even for adults’.^[26] For truth to be a meaningful element in communication between two people, ideally they should share the same definition. This may not be the case, for instance, with very young children who may have quite a different understanding of truth from older children or adults.

4.34 For instance, a young child may perceive an accurate statement as a truth and an inaccurate statement as a lie, regardless of the intention of the speaker. An older child or adult may have a greater appreciation of the subjective intention of the speaker. An understanding of truth may be influenced not only by developmental factors, but also possibly by cultural background and moral and religious influences.

4.35 Further, while children may have an appreciation of truth and lies, there is concern about their ability to articulate, explain, define or distinguish their understanding of these concepts. It has been concluded that:

Psychological research reveals that many children under age seven (as well as some older children) often have a good understanding of the difference between truth and lies, and yet are unable to ‘correctly’ answer abstract questions concerning such concepts.^[27]

Given that the current test of competence to give unsworn evidence is expressed in terms of understanding ‘the difference between truth and lies’, it has the potential to invite developmentally inappropriate questions about these concepts.

4.36 There is also a lack of support for the assumption underlying competence examinations to the effect that an understanding of truth- and lie-telling will make it less likely that a person, particularly a child, will give inaccurate or untruthful evidence. All people (adults, children, those with disabilities or without) may be mistaken. Similarly, as a matter of common sense, most people probably lie on occasion. Some are perhaps better able to deceive than others. However, there is nothing to suggest that children are more inclined to tell lies than adults.^[28] Whether someone is mistaken, is lying or is intending to deceive is a matter for the trier of fact to assess.

Tests too similar

4.37 Having the truth criterion in common, the test of competence to give either sworn (s 13(1)) or unsworn evidence (s 13(2)) is distinguishable, but not significantly different.

4.38 The main distinction is that the test of competence to give sworn evidence requires a witness to understand that he or she is under an ‘obligation’ to tell the truth when giving evidence, while the test of competence to give unsworn evidence imposes no such understanding. An understanding of this obligation is something more than a promise or statement of an intention to tell the truth. It is an appreciation of the nature of the duty to tell the truth. It is a prerequisite for taking an oath or affirmation, which exposes the person to punishment for being untruthful.

4.39 The competence test for unsworn evidence does not require a person to understand his or her obligation to be truthful, but nonetheless requires a witness to understand the ‘difference between the truth and a lie’ (s 13(2)(a)) and to indicate that he or she ‘will not tell lies’ (s 13(2)(c)). Like the test for competence to give sworn evidence, s 13(2) involves a grasp of the abstract concepts, in this instance lies, as well as truth.

4.40 The fundamentally similar bases of the tests dilute the value and effectiveness of two separate tests. For instance, if a person cannot readily demonstrate an understanding of ‘truth’ for the purposes of s 13(1), it would then seem inappropriate and unnecessary to take the matter further and to ask questions about the difference between the truth and a lie (as is required by s 13(2)(a)). In reality, a person who in these circumstances does not meet the requirements of the competence test for sworn evidence is likely to also fail to meet the requirements of the competence test for unsworn evidence.

Practical difficulties

4.41 The application of the competence tests in s 13 requires skilled questioning. Ideally a judicial officer should ask questions which are developmentally sensitive and not too difficult or abstract, particularly when questioning children, so that a person has the potential to demonstrate understanding.^[29] If a child is questioned in a way which fails to take account of his or her stage of development, he or she may find it impossible to demonstrate their understanding. An example is questioning which asks the child to define ‘the truth’ or ‘a lie’ or to discuss the moral implications of lying.^[30]

4.42 The questioning should also amount to a staged inquiry to establish whether a person has the capacity to understand the obligation to tell the truth and, if not, whether the witness nonetheless understands the difference between the truth and a lie. However, in practice where the distinction between competence tests for sworn and unsworn evidence is unclear, a judicial officer may resort to asking the same or substantially the same questions or to blend or fuse the questioning for each test for each evidence type. Arguably this reflects the view that one inquiry will usually serve for a determination on both issues of sworn and unsworn evidence.^[31]

Requirement that the court tell the witness that it is important to tell the truth

4.43 The case of R v Brooks highlights uncertainty about the exact nature of the requirement in s 13(2)(b) for the court to tell a person that it is important to tell the truth.^[32] For instance, the provision may be interpreted as requiring some form of judicial ‘instruction’. Sperling J in the New South Wales Court of Criminal Appeal said the policy behind the provision is that ‘the authority of the court is to be brought to bear on the witness by means of an instruction’.^[33] It is therefore not surprising that the delivery of the judicial officer’s statement may have the potential to sound like a ‘formal or intimidating’ warning^[34] to a child or a person with an intellectual disability or cognitive impairment, particularly if it is delivered by an adult in a black robe with the power to punish.

4.44 Some researchers on children’s competence hold a contrary view about the usefulness of this provision. They suggest that there may be some benefit in asking a child to tell the truth.^[35] Indeed, like provisions exist in other jurisdictions.^[36]

4.45 It has been suggested that the following is a simple, convenient form of words: ‘Tell us all you can remember of what happened. Do not make anything up or leave anything out. This is very important’.^[37] It is also suggested that this is best said by the judge or magistrate in the introductory exchange with the witness and prior to any evidence been given.

Applicability of the competence provisions to a range of witnesses

4.46 In considering reform it should be borne in mind that challenges to competence will occur not just in relation to children, but also in relation to potential witnesses with a range of disabilities, particularly those with some form of intellectual disability or cognitive impairment. It is therefore important that any test of competence be appropriate for broad application and not be an unfair hindrance to any potential witness. Testing founded on complex and abstract concepts is more likely to pose such a barrier than, for instance, a test which assesses a person’s basic comprehension and communication skills.

Proposals in DP 69

4.47 To address the above criticisms, in DP 69 the Commissions proposed reform of the competence provisions in the uniform Evidence Acts.

Liberalisation

4.48 As a general approach, DP 69 proposed that the presumption of competence be retained and that the existing competency regime be made less stringent to guard against the possibility of evidence of probative value being excluded from court proceedings (both civil and criminal).^[38]

General competence

4.49 The central proposal was that there is a test of general competence founded on basic comprehension and communication skills. The test is to be applicable to the giving of both sworn and unsworn evidence. The recommended standard for general competence to give sworn or unsworn evidence is that the person can understand a question about a fact and can give an answer which can be understood to a question about that fact. A person who does not possess general competence in relation to some facts will be incapable of giving evidence about those facts, but not necessarily others.^[39]

4.50 Further, it was proposed that it be made explicit that if for any reason, including physical disability, a person is incapable of meeting the test of general competence and that incapacity cannot be overcome, the person is not competent to give evidence (sworn or unsworn).^[40]

4.51 A test of general competence is not novel. A similar test formulated in the 19th century by Sir James Fitzjames Stephen, and as applied in Christmas Island and the Cocos (Keeling) Islands, was considered favourably in ALRC 26.^[41] Another example exists in Queensland under the Evidence Act 1977 (Qld).^[42]

4.52 Such a test also applies in England under the Youth Justice and Criminal Evidence Act 1999 (UK). The relevant provisions of the English legislation came into force in July 2002. Section 53 provides that in a criminal proceeding ‘all persons are (whatever their age) competent to give evidence’ unless it appears to the court that the person is ‘not a person who is able to (a) understand questions put to him as a witness, and (b) to give answers to them which can be understood’.^[43]

4.53 There is little in the way of reported case law which gives an insight into the operation of the English provision. However, it has been applied in two separate reported cases, both concerning the sexual assault of elderly women suffering from dementia or Alzheimer’s disease. In those cases the test in s 53 was applied in the context of the trial judge’s consideration of the competence of the complainant as a witness when dealing with the issue of the admissibility of video-taped evidence under ss 23 and 26 of the Criminal Justice Act 1988 (UK) where the witness was otherwise unfit to attend trial to give evidence.

4.54 In the more recent of the two cases, Sed v The Queen, the Court of Appeal formed the view, as did the trial judge, that the complainant was a competent witness.^[44] In particular, the video of her showed:

That she did have some appreciation of why she was being questioned … Whilst she did not always answer the question put to her and sometimes rambled off into other occurrences and places involving other people, her reference to such sexual assault by a man was a strong theme in her discourse with the officers. Sometimes her answers were hard to understand or bore little relation to the question asked, but at the end of the interview, the abiding picture was of a woman whose account and responses to questions were somewhat patchy, but who was nevertheless complaining repeatedly of a particular recent sexual assault by a man …^[45]

4.55 The Court of Appeal went on to observe it is for the judge to determine the question of competence:

bearing always in mind that, if, on critical matters, the witness can be seen and heard to be intelligible, it is for the jury and no-one else to determine reliability and general cogency.^[46]

4.56 The Court of Appeal also noted that, ‘[t]he new s 53 test of “competence” is … concerned at its highest with the degree of mutual comprehension of those questioning and of the person being questioned’.^[47]

4.57 The Commissions favour a test of general competence substantially based on the English provision, which focuses on the ability of the witness to comprehend and communicate. Such a test is flexible, clear and unambiguous. It increases the possibility that a witness’ evidence is heard, requiring mainly that they understand and answer simple questions and communicate what happened.

Competence to give sworn and unsworn evidence

4.58 In DP 69, the Commissions also proposed that s 13 be reformulated so that the standard for determining competence of a witness to give unsworn evidence is substantially different from, and less rigorous than, that required for competence to give sworn evidence.^[48]

4.59 It was proposed that the test of competence to give sworn evidence in s 13(1) should:

• continue to require that the person understands the obligation to give truthful evidence; and

• provide expressly that a person who satisfies the test of sworn evidence must also satisfy the test of general competence. The proposal was to place the test of general competence, which is founded on basic comprehension and communication skills, elsewhere in s 13.

4.60 In relation to unsworn evidence, it was proposed that a person may give unsworn evidence about a fact if they satisfy the test of general competence. A person who does not possess the requisite comprehension and communication skills in relation to some matters will be incapable of giving unsworn evidence about these matters or facts, but not necessarily others. Otherwise, it was proposed that, subject to retaining (in general terms) the requirement that the court informs the person of the importance of telling the truth, the current test of competence to give unsworn evidence in s 13(2) be deleted.^[49] It would therefore no longer be necessary for a person to understand the ‘difference between the truth and a lie’ as part of the test for competence to give unsworn evidence. Rather, it will be up to the court to determine the weight that should be given to unsworn evidence.

Expert opinion in assessment of competence evidence

4.61 In DP 69 the Commissions considered favourably the recommendation in the Victorian Law Reform Commission (VLRC) sexual offences reports that, in cases involving allegations of child sexual assault, the court should be able to seek a report from an independent and appropriately qualified expert about a child’s competence to give sworn or unsworn evidence.^[50] As the VLRC noted, courts generally

do not hear expert evidence on the capacity of a particular child to give evidence, even though a person with expertise in the development patterns of children may be able to provide important information about the child’s capacity to give evidence.^[51]

4.62 The Commissions considered that a court might benefit from the availability of expert reports in relation to other witnesses whose competence may be in doubt. For instance, the insights of an appropriately qualified expert skilled in determining intellectual functioning may assist the court to assess issues of competence concerning witnesses with an intellectual disability or cognitive impairment. In the absence of such evidence, the assessment would be made through judicial questioning and impressions ascertained in the artificial environs of the courtroom.

4.63 It was therefore recommended that the current provision s 13(7), which provides that in determining questions under s 13 the court may ‘inform itself as it sees fit’, should be amended to make it clear that a court is entitled to draw on expert opinion to assist in determining such questions.^[52]

Consequential amendment

4.64 Finally, the wording of ss 14 and 61 should be amended to bring them in line with the proposed changes to s 13(4).

Submissions and consultations

4.65 Submissions and consultations in response to the proposals in DP 69 have addressed different aspects of the detail. The issues raised are as follows:

• liberalisation;
• deletion of the requirement that a ‘person indicates … that he or she will not tell lies in the proceeding’;
• focus on competence about ‘a fact’;
• ‘physical disability’ affecting competence;
• equality before the law for people with disabilities;
• practicalities in overcoming obstacles to competence; and
• expert opinion in the assessment of competence.

Liberalisation

4.66 Achieving acceptable competency laws requires ‘a delicate balancing of the interests and needs of individuals [including defendants, victims and witnesses], society, investigating authorities and the courts’.^[53] No matter what form the law takes, it is to be expected that there will be differences of opinion about whether it is too strict or too liberal.

4.67 Not surprisingly, views differ about the appropriateness of this approach. For instance, the New South Wales Public Defenders Office (NSW PDO) submits that the common law requirements for competence (which preceded the uniform Evidence Acts competence regime) are considerably stricter and that ‘the bar has been already lowered as far as should be allowed’.^[54] Conversely, other submissions are generally supportive of a less stringent approach.^[55]

Deletion of the requirement that a ‘person indicates … that he or she will not tell lies in the proceeding’

4.68 The one submission directed to this proposal described it as ‘a retrograde step’. The argument is put on the basis of academic research which shows ‘that asking children to promise to tell the truth has real value in encouraging children to tell the truth’.^[56]

4.69 The proposed changes to the competence provisions for unsworn evidence aim to move the focus away from understanding of the truth and a lie. Rather, the emphasis in the recommended test of general competence is on capacity to comprehend and communicate. It is the Commissions’ view that it would be inconsistent with the approach taken to require a witness who has been unable to demonstrate a capacity to understand an obligation to give truthful evidence (s 13(1)) and is therefore ineligible to give sworn evidence, to nonetheless be required to indicate appropriately that he or she ‘will not tell lies’ or to promise to tell the truth.

Focus on competence about ‘a fact’

4.70 The proposed test of general competence provides that if a witness lacks capacity to understand a question or to give an answer which can be understood to a question about ‘a fact’ (and therefore is not competent to give evidence about that fact), nonetheless, subject to comprehending and communicating appropriately to a question about another fact, he or she be competent to give evidence about that fact.^[57]

4.71 Victoria Police submits that, as a matter of practical concern, this approach may require constant rulings by a judicial officer regarding each ‘fact’ that is raised with the witness.^[58]

4.72 It is the Commissions’ view that these concerns are more theoretical than real. Section 13 of the uniform Evidence Acts currently recognises that a witness may be competent to give evidence about some facts but not others.^[59] It has been noted that:

This is particularly important for children who may have differing language skills, abilities to make inferences, conclusions or estimates or capacities to understand concepts such as time and special perspective. This approach to competency allows a young child to respond under oath to simple questions but not to questions beyond the child’s capacity that cannot be reframed in simpler terms.^[60]

4.73 There have been no submissions or consultations which indicate that this approach has posed practical difficulties to date. Further, the Commissions are of the view that it is important that the Acts retain a flexible approach, allowing a court to hear evidence from a witness on certain matters but excluding evidence about matters they are not competent to deal with.

‘Physical disability’ affecting competence

4.74 The Australian Government Attorney-General’s Department expresses some concern about the specific reference to ‘physical disability’ in the proposed amendment to s 13(4).^[61] The criticism seems to be that the use of this term over-emphasises the likelihood that a person with a physical disability will not meet the required standard of comprehension and, in particular, the standard of communication, and is therefore potentially discriminatory.

4.75 As has been discussed, competence provisions are typically viewed as relevant when assessing the capacity of children to give evidence, and the capacity of persons with an intellectual disability or cognitive impairment to give evidence. The specific reference to ‘physical disability’ is made to ensure that the potential applicability of the competence requirements to witnesses with this kind of disability is not overlooked. In light of the concerns expressed, consideration has been given to expanding the list of categories of potential matters which may affect capacity. However, the danger of this approach is that as more categories are listed, attention will focus on the list and if a particular category is omitted that may seem to be significant and create more uncertainty. Therefore to retain the potential for flexible interpretation and the inclusive nature of s 13, it has been decided not to list further categories of disabilities.

Equality before the law for people with disabilities

4.76 A number of submissions in response to DP 69 also indicate that there is a need for the provisions to be more explicit about facilitating the participation of witnesses with a disability. For example, the Australian Government Attorney-General’s Department submits that a person ‘should not be excluded from giving evidence because they need to use an alternative means of communication’.^[62] The Department acknowledges that a person’s incapacity is subject to the qualification in the section ‘that incapacity cannot be overcome’ ‘which goes some way to alleviating this concern’.

4.77 The Department recommends aligning the proposed competence provisions with the objectives and language associated with the Disability Discrimination Act 1992 (Cth)(‘DDA’). Specifically, it suggests that the qualifier ‘that incapacity cannot be overcome’ be replaced or expanded to reflect an obligation to ‘reasonably accommodate the requirements of a person with disability, unless it causes unjustifiable hardship to the service provider’.

4.78 The Commissions are of the view that such change to the language of the proposed provisions is not required. Consistently with the policy approach of the DDA, the proposed changes to the provisions aim to reduce obstacles to the giving of evidence in court by persons with a disability. Currently, there is no explicit use of the terms ‘reasonable adjustments’ or ‘reasonable accommodations’ in the DDA (although it is noted that in early 2005 the Australian Government accepted a recommendation in the Productivity Commission’s Review of the Discrimination Act to expressly include in the DDA a duty to make reasonable adjustments).^[63] The phrase ‘that incapacity cannot be overcome’ implies making adjustments or accommodations and, in fact, favours a person with a disability and is not subject to an explicit exclusion for adjustments or accommodations that would cause ‘unjustifiable hardship’.

4.79 However, the Commissions do consider it appropriate to include a note to s 13(4) cross referencing to s 31, which makes specific provisions for ‘deaf and mute witnesses’.

Practicalities in overcoming obstacles to competence

4.80 In a related way a number of submissions raised the practicalities of overcoming obstacles to competence. For example, the New South Wales Disability Discrimination Legal Service submits that ‘before a finding of incompetence is made it should be demonstrable that the court made every reasonable attempt to facilitate the potential witness’ participation’. The Intellectual Disability Rights Service also emphasises that the right support or ‘special measures’ in court can have a significant impact on the effect of a witness’s disability, and consequently the capacity of a witness to understand or communicate. The Australian Government Attorney-General’s Department suggests that, where appropriate, courts should provide Auslan interpreters and other alternative methods of communication.^[64]

4.81 The competence provisions aim expressly to allow measures necessary to overcome obstacles to a person’s ability to comprehend or communicate to facilitate competence to give evidence. However, the Commissions believe that addressing the responsibility for the practicalities of these measures is beyond the scope of the uniform Evidence Acts. This is a systemic and resource related issue.

Expert opinion in assessment of competence

4.82 Submissions and consultations have produced a range of responses to the proposal that s 13(7) be amended to make it clear that a court is entitled to draw on expert opinion to assist in determining questions of competence. Some express anxiety and concern about experts ‘determining’ competence while others raise practical concerns.^[65] The majority are supportive.^[66]

4.83 The Australian Government Attorney-General’s Department notes that provided that expert evidence is given on the basis of personal knowledge of the particular child concerned, the proposal may go some way to taking the onus off the individual judge in deciding what a witness can and cannot understand.^[67]

4.84 Submissions from the NSW Disability Discrimination Legal Service^[68] and the Intellectual Disability Rights Service^[69] also suggest that expert opinion should be available to identify any alternative communication methods or support needs which could help facilitate the giving of evidence by a person with a disability.

4.85 This proposal is not intended to allow an expert in any way to supplant the role of the court in making a determination as to competence. Generally, submissions and consultations have expressed approval of the proposal.

Conclusion

4.86 The Commissions continue to favour a more liberal approach to the laws of competence. This can be achieved through the reform of s 13, in particular, by introducing a test of general competence to give sworn and unsworn evidence and by distinguishing better the tests of competence to give sworn and unsworn evidence so that they are sufficiently different. Consultations and submissions generally support this approach. The Commissions recommend that the proposals in DP 69 be adopted, with the qualifications set out below.

4.87 The draft of s 13(2)(a) in DP 69 provides that a person who is not competent to give sworn evidence because of s 13(1) is competent to give unsworn evidence.^[70] The Commissions consider that, having regard to the terms of s 12, a person not competent to give sworn evidence remains, subject to the test of general competence, competent to give evidence, which of necessity will be unsworn. The Commissions’ proposal is to delete the reference to competence to give unsworn evidence in s 13(2). To ensure that the change does not cause any uncertainty, a note to s 13(1) should be included in the following terms: ‘Note: The person may be competent to give unsworn evidence’.

4.88 Further, s 13(4) of the draft provisions in DP 69 provides expressly that if a person does not meet the test of general competence and cannot give evidence about a fact, the person may nonetheless be competent to give evidence about another fact. The Commissions consider that it is not necessary to specify in s 13(4) that a person may be competent to give evidence about other facts, and are of the view that it is preferable for this to be indicated in a note to s 13(4).

4.89 Finally, as is noted above, there should also be a note to s 13(4) cross-referencing to s 31. The draft provisions are contained in Appendix 1.