› Whether s 13(5) Evidence Act 2011 (ACT) requires witness to understand directions given by court
› Whether court may inquire into witness's understanding
› Whether lack of understanding renders witness incompetent
› Evidence Act 2011 (ACT), s 13
Appeal
› Interlocutory decisions
› Leave to appeal
› Crown appeal against ruling on witness competence
› Supreme Court Act 1933 (ACT), s 37E
Quick Take
1Section 13(5) of the Evidence Act 2011 (ACT) requires only that the court give the prescribed directions to a proposed witness (that it is important to tell the truth, that the witness should say if they do not know or cannot remember, and that the witness should not feel pressured to agree with untrue suggestions); it does not require the court to be satisfied that the witness has understood those directions as a precondition to competence to give unsworn evidence.
2While it may be appropriate for a judge to inquire into a proposed witness's understanding of the s 13(5) directions in order to determine whether further explanation is needed, a judicial doubt about that understanding does not provide a basis for finding the witness incompetent to give unsworn evidence.
3Once the requirements of s 13(1) (general competence) and s 13(3) (incompetence to give sworn evidence) are established, and the court has performed the functions prescribed by s 13(5), there is no residual discretion to exclude the witness's unsworn evidence on the basis of perceived lack of comprehension.
