105. Further protections - defendants making unsworn statementsRead more...
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Note
The Commonwealth Act includes a provision which sets out the situations in which where a defendant in a criminal proceeding has made an unsworn statement evidence may be adduced from a person relating solely to the credibility of the defendant.
44. Previous representations of other personsRead more...
(1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.
(2) A cross-examiner may question a witness about the representation and its contents if-
(a) evidence of the representation has been admitted; or
(b) the court is satisfied that it will be admitted.
(3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows-
(a) the document must be produced to the witness;
(b) if the document is a tape recording, or any other kind of document from which sounds are reproduced-the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents;
(c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given;
(d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.
(4) A document that is so used may be marked for dentification.
25. Rights to make unsworn statements unaffected
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Note
The Commonwealth Act includes a provision that preserves any right that a defendant in a criminal proceeding has under a law of a State or Territory to make an unsworn statement.
21. Sworn evidence of witnesses to be on oath or affirmation
(1) A witness in a proceeding must either take an oath, or make an
affirmation, before giving evidence.
(2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13.
(3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so.
(4) The witness is to take the oath, or make the affirmation, in accordance
with the appropriate form in Schedule 1 or in a similar form.
(5) Such an affirmation has the same effect for all purposes as an oath
[The respondent's] attempt to explain why he had never seen a document by reason of it being sent to the “wrong fax number”, only for it to emerge that the number to which the document was sent was a number previously used by [the respondent] – and possibly used in 2004 – is not the hallmark of a witness telling “the truth, the whole truth and nothing but the truth”.Read more...
69. That, of course, is part of the oath now set forth in the Schedule to the Evidence Act 1995 (Cth) and part of the oath in fact taken by [the respondent]. The oath itself has been traced back to at least 1649: Mellinkoff, The Language of the Law (1963) at 172. An oath to “tell the truth”, it has also been pointed out long ago, was not always regarded as an oath to tell “the whole truth”: Silving, ‘The Oath’ (1959) 68 Yale L J 1329 at 1346 and 1527 to 1577. It should constantly be recalled that the requirement that an oath or affirmation be administered, as contemplated by s 44(1) of the Federal Court of Australia Act 1976 (Cth) and by s 21 of the Evidence Act 1995 (Cth), is not merely a procedural step which is but a precursor to a witness thereafter answering such questions as may be asked in such a manner as the witness may see fit. An oath or an affirmation is (in part) a solemn reminder to any witness of the serious obligation imposed to give a truthful account. The evidence given by a witness is central to the administration of justice.
70. In the absence of explanation, some of the answers given by [the respondent] may perhaps be the hallmark of a witness determined to tell far less than the “whole truth” and only so much of the truth as assisted his case. The “whole truth” as to the fax number, however, did finally emerge.
13. Competence - lack of capacityRead more...
(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability)-
(a) the person does not have the capacity to understand a question about the fact; or
(b) the person does not have the capacity to give an answer that can be understood to a question about the fact-
and that incapacity cannot be overcome. Note See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.
(2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
(3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.
(5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person-
(a) that it is important to tell the truth; and
(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and
(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
(6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
(8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience.
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