Evidence Act 2011

A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability)—

the person does not have the capacity to understand a question about the fact; or

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 s 30 and s 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.

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.

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, the person is under an obligation to give truthful evidence.

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.

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 that—

it is important to tell the truth; and

the person may be asked questions that the person does not know, or cannot remember, the answer to, and that the person should tell the court if this happens; and

the person may be asked questions that suggest certain statements are true or untrue and that the person should agree with the statements that the person believes are true and should feel no pressure to agree with statements that the person believes are untrue.

It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.

Evidence that has been given by a witness does not become inadmissible only because, before the witness finishes giving evidence, the witness dies or ceases to be competent to give evidence.

For the purpose of deciding 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.