LAW4323 Chap.2 Competence and Compellability

Competence and Compellability

Competence concerns whether a person can understand questions and give understandable answers; compellability asks whether a competent person can be required to testify. The inquiry is functional and evidence-specific. Accused persons, family witnesses and witnesses requiring communication support may follow different routes, so status and proceeding must be identified before reaching a conclusion.

What this chapter covers

• 01

  Functional capacity

• 02

  Question-specific competence

• 03

  Accused protection

• 04

  Family witnesses

• 05

  Communication support

• 06

  Jury directions

Worked example · free

Classify two witnesses separately

Key terms

Competence

Capacity to understand questions and give intelligible answers.

Compellability

Whether a competent witness can be required to testify.

Communication support

Assistance enabling understanding or response.

Special measure

A procedure supporting fair reception of evidence.

Competence and Compellability FAQ

Exam move

Prepare witness profiles rather than memorising conclusions about categories of people. Each profile should record the witness's legal status, relationship to the accused, proceeding type, party seeking the evidence, proposed topics and any communication support. Start the analysis with the actual questions the witness must understand and the form in which an answer can be given.

A person may be competent for one topic and unable to answer another, so practise scenarios that change complexity, wording and support while keeping the witness constant. Distinguish a witness who cannot understand from one who is reluctant, frightened, inconsistent or unwilling. Those facts may trigger other processes but do not themselves answer competence. After resolving capacity, begin a new paragraph for compellability.

Use the witness's status to select the accused, spouse or family rule rather than carrying the competence conclusion across. Create paired hypotheticals in which two competent witnesses reach different compellability results because their relationship or role differs. When a problem mentions a child, cognitive impairment, interpreter or communication device, describe the functional effect and the available support.

Avoid using age or diagnosis as a shortcut to unreliability. Add the relevant jury-direction question only after the evidence route is clear, and state how the direction prevents stereotype rather than suggesting the witness deserves automatic belief.

In revision, cover the statutory references and reconstruct the sequence from the facts: capacity, oath or unsworn evidence where relevant, compulsion, protective procedure and direction. Use seminar scenarios to practise conditional conclusions when a key fact is missing. For example, state what further information is needed about the proposed questions or family relationship instead of assuming it.

Under time pressure, open with one sentence that keeps the doctrines separate: competence asks whether this witness can give this evidence; compellability asks whether this competent witness must do so. Finish by identifying the court action required, such as determining capacity, allowing support, applying a protection or giving a direction.

Check that the final answer never treats communication difficulty as a credibility finding. The examiner should be able to see which evidence can be received, from whom, and under what procedural conditions. AskSia Library · LAW4323 · Evidence · Monash University INTEGRATED PRACTICE Practice Integrated trial problem Map every tender and purpose before writing conclusions A warehouse fire leads to a prosecution.

The Crown tenders a neighbour’s message saying the accused threatened to burn the building, a security analyst’s identity opinion, evidence of a similar earlier entry, and an interview conducted without a proper caution. A witness changes one detail in court. Work item by item; do not write one global admissibility conclusion.

Build the issue ledger For the message, identify the previous representation, intended asserted fact and whether it is tendered for truth, notice or another purpose. For the analyst, separate observed image features from the opinion and expose the specialised-knowledge reasoning. For the earlier entry, state tendency or coincidence use and apply its threshold.

For the interview, identify the admission and then run reliability, unfairness and impropriety separately. For the changed detail, select the witness-examination and credibility route.

Item First rule Next likely question Neighbour message s 59 purpose exception or non-truth use Image opinion Part 3.3 basis and reasoning Earlier entry Part 3.6 value and s 101 Interview Part 3.4 ss 84-85, 90, 138-139 Changed detail ss 38, 43, 102-106 proof and permitted use Write separate results The message may have one admissible purpose and another prohibited use.

The opinion may fail if the report does not reveal specialised reasoning. The earlier entry may be relevant yet fail the Part 3.6 threshold. The admission may be factually powerful but excluded under a criminal safeguard. The prior statement may assist credibility without automatically proving its contents. Preserve those distinctions.

✓ Original practice weighting Allocate your own time evenly across the five items, then reserve a final review period. This is a study allocation, not a published Monash mark scheme. Finish each item with the court action requested and the scope of any use. If a crucial fact is absent, identify it precisely.

For example, ask how the analyst derived the comparison, whether the earlier event shared distinctive features, who heard the admission, or what search supports witness unavailability. Missing facts should generate targeted questions rather than invented assumptions.

{PG} · AskSia AskSia Library · LAW4323 · Evidence · Monash University MODEL SEQUENCE Practice review A model issue sequence Compare ordering and use, not memorised prose The best self-review asks whether the answer reached each issue in the correct order. Relevance and purpose come first. Classification follows. Exceptions and procedural gates come next. Discretions and limits close the analysis.

A correct conclusion reached through the wrong route is fragile. A Hearsay self-check Question: The message is offered to show the accused made a threat and that the neighbour warned a manager. Analyse both uses. Answer: The truth use engages s 59 and needs an exception. The warning use may be non-hearsay if notice matters, but its relevance and misuse risk must be shown.

B Opinion self-check Question: The analyst says “same person” without explaining image features. Answer: Identify the opinion and identity fact, then test whether specialised knowledge and disclosed reasoning substantially support the conclusion. Experience alone is not the reasoning. C Admissions self-check Question: Police supplied the crucial words after an omitted caution.

Answer: Identify adoption, proof route, reliability, unfairness, and impropriety. Attribute every word and apply each exclusion separately. Final consistency check Confirm that no item is both described as excluded and later used without explanation. Check that every limiting direction matches a named misuse. Verify that the accused’s silence is not used to fill a gap.

Ensure that credibility conclusions do not become propensity reasoning by stealth. Finally, state which evidence remains available to prove each element after the rulings. A problem answer is a set of purpose-specific rulings, not a catalogue of doctrines. Integrated practice lesson The LMS contained revision problems and practice exams, including a mock timing exercise.

Reproduce that discipline by writing under a chosen time limit, but do not infer the official duration or question count from the practice setting. Confirm current examination logistics in the official exam notice and Monash timetable. {PG} · AskSia

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