#4701 - Evidence Witnesses - BPC Civil Litigation

CIVIL EVIDENCE WITNESSES Competence & Compellability Rule: All persons are competent and all competent persons are compellable. Competence Person is "competent" if can (as a matter of law) give evidence Ex-Spouses Unclear whether, technically, ex-spouses are competent to give evidence Children Inquiry into competence necessary for child-Witness under-14 Test: Whether appears to Court not able to: * understand Qs put, and * give understandable answers Sworn Evidence Test: Child Witness can only be sworn if had sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth involved in taking an oath, which is over and above ordinary duty of normal social conduct. Unsworn Evidence If Child-Witness fails test for giving sworn evidence, may give evidence unsworn if: * in Court's opinion he does not understand the nature of an oath, and * in Court's opinion, * he understands his duty to speak the truth, and * has sufficient understanding to justify his evidence being heard (ie. competence test) Persons of Defective Intellect If can pass test to give sworn evidence - may give evidence and Court decides weight * sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth involved in taking an oath, which is over and above ordinary duty of normal social conduct. If cannot pass test for sworn evidence - incompetent. Compellability "Compellable" if competent and can be compelled to give evidence (as a matter of law) A Witness who is ordered to attend Court, will be in contempt if refuses to give sworn evidence/answer Qs after sworn. Sovereign, Heads of Sovereign States & Diplomats Unclear whether sovereign is competent, definitely not compellable Heads of sovereign states are competent but not compellable Diplomats are competent but partially immune from being compellable Bankers Bankers books are evidence of the matters stated. Bankers are not compellable to prove the contents or appear as Witnesses (unless bank is a party) Judges Cannot be compelled to give evidence relating to their Judicial functions However, they are competent, should not invoke non-compellability to avoid giving vital evidence. Preparation of Witness Statements "Witness Statement" - signed statement by a person which contains evidence that person would be allowed to give orally. Witness Statement should represent the Witness's evidence-in-chief Formalities Formal heading with title Party on whose behalf it is made in top right-hand corner Opening para: details of Witness's occupation/description and state whether party, employee of party. A4 - one sided Securely-bound - otherwise, each should bear claim no and initials of Witness. Text Must, if practicable, be in the Witness's own words - first person. Usually chronological. Each para confined to distinct portion of the subject. Indicate sections made only from "knowledge and belief" as opposed to matters w/n Witness's own knowledge + state source of knowledge. All numbers and dates expressed in figures. Docs referred to must be formally exhibited. Statement of Truth