Welcome to the Evidence Act 2008

This blog was started back when the Evidence Act 2008 was nothing more than a gleam in Parliament's eye. It was an attempt to further understanding of some challenging new legislation when information about it was difficult to find.

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17. Competence and compellability - defendants in criminal proceedings

17. Competence and compellability - defendants in criminal proceedings

(1) This section applies only in a criminal proceeding.

(2) A defendant is not competent to give evidence as a witness for the prosecution.

(3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant.

(4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury's absence) that the witness is aware of the effect of subsection (3).


Associated defendant is defined in the Dictionary.

Section 17(2) is unequivocal in stating that an accused is not a competent witness for the prosecution. It is important to note that the accused is not competent (and therefore cannot be called) rather than not compellable as a witness.

In Kirk v Industrial Relations Commission of NSW [2010] HCA 1 the High Court described a NSW WorkCover proceeding where the defendant had been called as a witness for the prosecution by consent as 'substantial' [the majority at 53; Heydon writing his own judgment] and sufficient to require a grant of certiorari. The Court discussed a number of reasons, notably the defence counsel's ability to ask unrestrictedly leading questions of his own client, as reasons why s 17(2) cannot be departed from, even where the parties are in agreement about adopting this course.

Section 190, which allows parties to dispense with the rules of evidence by agreement, does not allow waiver of the provisions of Division 1 of Part 2.1 of the Act.


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