LAW20009 Week 4: Week 4 Collab Notes

Week 4 – Witnesses and Adducing Evidence

Subject: LAW20009 – Evidence Law Lecturer: Alana Ray Date: Week 4 (specific date not provided) Materials: Transcript + Slides

Overview

Topic Summary This week focuses on the competence and compellability of witnesses under the *Evidence Act 2008 *(Vic)**, including special protections for accused persons, family members, and vulnerable witnesses. It explores practical procedures for adducing evidence—particularly the conduct of examination-in-chief, cross-examination, re-examination, and the treatment of hostile or uncooperative witnesses. The lecture includes key authorities such as , , , and Azzopardi, each of which is broken down below using IRAC.

Key Concepts and Legal Doctrines

1. Competence and Compellability

Starting Presumption All persons are presumed competent and compellable (, ). Competence concerns the ability to understand and answer questions intelligibly ().

Sworn vs Unsworn Evidence

Sworn: Must understand obligation to tell the truth ()
Unsworn: Court must explain the importance of telling the truth ()

Procedure for Assessing Competence

Conducted via voir dire ()
Judge may use expert evidence
No burden on either party
Judicial—not adversarial—process

IRAC: Competency Assessment

Element	Detail
Issue	How is witness competence determined under the *Evidence Act 2008 (Vic)*?
Rule	: Person must (a) understand questions, and (b) give understandable answers. : Presumed competent unless proven otherwise.
Application	Judge uses voir dire to test capacity. Evidence of disability or communication difficulty may trigger alternative methods.
Conclusion	Competence is a threshold issue for all evidence.
Ratio	Competency depends on functional ability, not status. Presumption stands unless rebutted oai_citation:0‡LAW20009 Week 4 Collab Slides.pdf.

2. Compellability and Statutory Exceptions

Defendant: Not compellable (); not even competent to testify for the prosecution ().
Family members: May object (); court must weigh harm vs public interest.
Carve-outs: Section 19 removes protection in domestic violence, child abuse, and sexual offence cases.

IRAC: Balancing – Family Member Evidence

Element	Detail
Issue	Can a family member refuse to give evidence?
Rule	Court must balance harm (to person or relationship) against public interest in having the evidence (–(7)).
Application	Particularly relevant in domestic violence; court considers nature of offence, necessity of testimony, and confidentiality.
Conclusion	Refusal allowed only if harm outweighs evidentiary value.
Ratio	Family protections yield where evidence is exclusive and crucial oai_citation:1‡LAW20009 Week 4 Collab Slides.pdf.

3. Examination-in-Chief and Leading Questions

No leading questions (
), except:
- Introductory matters
- By leave of court
- If no objection
- Agreed matters
- Expert hypotheticals

Narrative Emphasis

Use chronological storytelling
Avoid suggesting answers

4. Cross-Examination and the

Core Purpose

Test credibility
Challenge factual assertions
Discredit or elicit favourable facts

Rule in If a party intends to later contradict a witness, they must put that contradiction to the witness in cross-examination.

IRAC: <Badge text="" variant=“note” /> (1894) 6 R 67 (HL)

Element	Detail
Issue	Must contradictory allegations be put to a witness?
Rule	Yes. A party must give a witness the opportunity to respond to any challenge to their account.
Application	Prevents trial by ambush; ensures fairness.
Conclusion	Contradictions must be raised explicitly in cross.
Ratio	Procedural fairness requires that adverse allegations be put to the witness oai_citation:2‡LAW20009 Week 4 Collab Slides.pdf.

5. Hostile Witnesses and Prior Inconsistent Statements

: Party may cross-examine own witness with leave if “unfavourable”
Hostility (): Can elicit inconsistent prior statements
: Inconsistent statement may be admitted for truth if otherwise relevant

IRAC: <Badge text="" variant=“note” /> (2001) 207 CLR 96

Element	Detail
Issue	Can a party cross-examine its own witness and use prior inconsistent statements as evidence?
Rule	allows cross of one’s own witness if unfavourable; allows prior statements to be used for their truth if relevant.
Application	Witness recanted trial statement; prosecution sought to admit prior police statement.
Conclusion	Statement admitted as evidence for the truth, not just credibility.
Ratio	Prior inconsistent statements can be used substantively under , if relevant oai_citation:3‡LAW20009 Week 4 Collab Slides.pdf.

6. Inferences from Silence and Missing Witnesses

: Jury cannot be directed to draw inference from defendant’s silence
: Court may infer missing evidence would not have assisted party (civil), rarely permitted in criminal matters

IRAC: <Badge text="" variant=“note” /> (2001) 205 CLR 50

Element	Detail
Issue	Can silence by an accused lead to an inference of guilt?
Rule	No. Silence may not be used as an inference unless accused seeks to rely on something peculiarly within their knowledge.
Application	Trial judge improperly invited jury to draw adverse inference from silence.
Conclusion	Breach of right to silence.
Ratio	The right to silence is inviolable; silence must not support the prosecution case oai_citation:4‡LAW20009 Week 4 Collab Slides.pdf.

IRAC: <Badge text="" variant=“note” /> (1959) 101 CLR 298

Element	Detail
Issue	Can a party’s failure to call a witness support an adverse inference?
Rule	If a party fails to call a key witness, court may infer their evidence would not assist.
Application	In civil, inference more freely drawn. In criminal, constrained by burden and right to silence.
Conclusion	Permissible in civil; discouraged in criminal unless clearly warranted.
Ratio	Adverse inferences from silence are constrained in criminal cases to preserve the presumption of innocence oai_citation:5‡LAW20009 Week 4 Collab Slides.pdf.

Practical Exam and Study Tips

Mnemonics

“C&C” = Competent & Compellable
“B&D” = = Put It or Lose It
“60 saves the truth” – allows truth of prior statement

Supplementary Reading and References

Cases

<Badge text="" variant=“note” /> (2001) 207 CLR 96
<Badge text="" variant=“note” /> (1894) 6 R 67 (HL)
<Badge text="" variant=“note” /> (1959) 101 CLR 298
<Badge text="" variant=“note” /> (2001) 205 CLR 50

Legislation

(Vic) s–19, 31, 37–39, 41–43, 60

Other Sources

JCV Evidence Bench Book – witness examination and credibility
Alana Ray’s Week 4 slides and commentary

Open Questions or Clarifications

What constitutes hostility under in Victorian practice?
Can statements excluded under be later admitted via ?
Is there High Court guidance on balancing factors?