R v Fang

Relevant Statutory Provisions and Legal Principles

Sections 12 and 13 Evidence Act 1995 provide as follows: "12 Competence and compellability Except as otherwise provided by this Act: (a) every person is competent to give evidence, and (b) a person who is competent to give evidence about a fact is compellable to give that evidence. 13 Competence: lack of capacity (1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact, or (b) 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 sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities. (2) 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. (3) 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, he or she is under an obligation to give truthful evidence. (4) 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. (5) 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: (a) that it is important to tell the truth, and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. (7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence. (8) For the purpose of determining 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."
The logical starting point of s.13 is the presumption of competence established by ss.12 and 13(6): RJ v R [2010] NSWCCA 263; 208 A Crim R 174 at 179-180 [16].
Neither the defence nor the prosecution carries an onus. It is for the Court to determine whether it is satisfied that there is proof that a person (who is otherwise presumed to be competent) is incompetent to give evidence. That question must be determined on the balance of probabilities: s.142(1) Evidence Act 1995; RJ v R at 181 [24].
Where an issue arises as to the competence of a witness to give evidence, the Court undertakes an inquiry of a less formal nature than otherwise occurs in the accusatorial setting of a criminal trial. So much is made clear by s.13(8) Evidence Act 1995 which provides that the Court may inform itself as it thinks fit, including the obtaining of information as referred to in that subsection.
Although issues as to competence of witnesses under s.13 arise usually in the context of child witnesses, it is clear that the provision is not confined to that class of witness. Section 13 is capable of operating with respect to persons who fall within the terms of s.13(1), irrespective of age.
In SH v R [2012] NSWCCA 79; 83 NSWLR 258, Basten JA (Blanch and Hall JJ agreeing) said at 264-265 [23]: "Section 13, it should be noted, is not directly concerned with the interests of a witness of limited competence, such as a young child: it is concerned with the public interest of obtaining evidence relevant to the determination of a criminal charge. There are other provisions which protect the interests of a child witness in sexual offences such as the present, including those which provide for the recording of evidence and the absence of the child from the court room to a different place linked by closed circuit television. It is not correct to treat the operation of s 13 as involving a balance between the interests of the child witness and those of the accused: cf BBR at [38]."
In SH v R, at 260-261 [5], Basten JA said with respect to s.13: "5 The Evidence Act requires that every witness must either take an oath or make an affirmation, except a person who gives unsworn evidence under s 13: s 21. The primary test of competence, namely the capacity to understand a question and communicate a comprehensible answer, may be generic in respect of a particular witness or may relate to particular facts: sub-ss (1) and (2). Even what appears to be a generic exclusion, such as inadequate competence in English requiring the intervention of an interpreter, may operate differentially in relation to questions about particular facts: s 30. Deaf and mute witnesses are treated as having a generic incapacity: s 31. However, not all competent witnesses are competent to give sworn evidence; that depends upon having the capacity to understand that one is obliged to give truthful evidence: sub-s (3)."
Recently, the High Court of Australia has considered the Australian Capital Territory's version of s.13, which is in similar terms to the New South Wales provision, in the context of a competence issue concerning a child. In R v GW [2016] HCA 6; 90 ALJR 407, the Court (French CJ, Bell, Gageler, Keane and Nettle JJ) said at 410-411 [13]-[14] (footnotes omitted): "13. It will be observed that competence to give evidence about a fact is confined to the person's capacity to understand a question about the fact and to give an intelligible answer to the question. It is only competence to give sworn evidence that requires the person to have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. 14. The s 13(6) presumption applies to both competence to give evidence and competence to give sworn evidence. In either case, the presumption will be displaced where the court is satisfied on the balance of probabilities of the contrary. Where the presumption of competence to give sworn evidence is displaced, a person who is competent to give evidence about a fact may give unsworn evidence about the fact provided that the court has told the person the things set out in s 13(5)."
The Court said in R v GW at 412-413 [26] that the word "obligation" in s.13(3) "is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound" to give truthful evidence.
Later in R v GW, the Court said at 415-416 [43] (footnotes omitted): "Section 12 provides that every person is competent to give evidence subject to any other provision of the Evidence Act. Section 13 makes other provision in sub-ss (1) and (2). Section 13 distinguishes competence to give sworn evidence from competence to give unsworn evidence (sub-ss (3) and (4)). Competence to give sworn evidence is presumed, subject to the contrary being proved (sub-s (6)). This presumption is the only respect in which the Evidence Act may be said to give 'primacy' to sworn evidence; the evidence of a competent witness will be given sworn unless the presumption is displaced. Where the presumption applies, s 21(1) requires a witness in a proceeding to take an oath or make an affirmation before giving evidence. The form of the oath and the affirmation are set out in Sched 1 to the Evidence Act. In each case, the person undertakes that the evidence to be given 'will be the truth, the whole truth and nothing but the truth'. An oath requires the person to give that undertaking by swearing to do so by Almighty God or the god recognised by the person's religion. An affirmation requires the person to give that undertaking by a solemn and sincere declaration to do so. Section 21(5) provides that an affirmation has the same effect for all purposes as an oath. Where the presumption of competence to give sworn evidence is displaced, s 21(2) relieves the witness of the requirement to take an oath or make an affirmation. In either case, the evidence of the witness is before the court. The assessment of the reliability of the evidence is for the trier of fact. Sections 12, 13(3), (4) and (6) and 21 do not support a conclusion that the Evidence Act accords primacy to sworn evidence as a bolster to the reliability of evidence."
In the course of a decision concerning the competence of an adult party to give evidence in civil proceedings, Stevenson J said in The Recyclers (NSW) Pty Ltd v Ayoub [2016] NSWSC 144 at [16]-[24]: "16 So far as competency to give evidence is concerned, the test is thus whether a person, asked a question about a fact, has the capacity to understand that question, and to give a comprehensible (that is one that 'can be understood') answer to that question. 17 The nature of the answer given to a question may cast light on whether the person understood the question. But an unresponsive answer will not necessarily bespeak a want of understanding of the question. 18 A response to a question such as 'I don't know' or 'I cannot remember' will not necessarily indicate a want of understanding; indeed, it may indicate the opposite: that the person understood the question but was not able to provide an answer. 19 As Hughes LJ said in Director of Public Prosecutions v The Queen [2007] EWHC 1842 (at [21] - [22]): 'Recollection is quite different from competence. Of course, absence of recollection may, in some cases, co-exist with absence of competence, but they do not necessarily run together. Persons who have no recollection of a matter may be perfectly competent.' 20 The nature of the answer will of course cast light on whether the person has the capacity to give an answer that 'can be understood'. An answer to a question about a fact may be so confused or irrational that it leads to the conclusion that, whether or not the person understood the question, the person was not able to provide a comprehensible answer. 21 If a party is competent to give evidence about a fact, the further question may arise as to whether that person is competent to give sworn evidence about that fact. By reason of s 13(3) of the Act, a person is not so competent if the person lacks capacity to understand the person's obligation to give truthful evidence. 22 In that event (assuming the person is competent for the purpose of s 13(1) of the Act), by reason of s 13(5) of the Act, the person is competent to give sworn evidence if the Court tells the person the three matters set out in s 13(5). Those matters are, to summarise, that it is important to tell the truth, that the person should tell the court if he or she does not know or cannot remember the answer to a question, and the person should not feel under pressure to accept propositions put (typically in cross-examination) with which the person disagrees. 23 It is common ground in this case that if Mr Ayoub is competent to give evidence for the purpose of s 13(1) of the Act, he is also competent to give sworn evidence for the purpose of s 13(3) of the Act. 24 No party bears the onus of proving competence or lack of competence However, by reason of s 13(6) of the Evidence Act it is presumed, unless the contrary is proved, that a person is not incompetent. It is for the court to determine whether it is satisfied that there is proof that the person is incompetent. The question is to be decided on the balance of probabilities. (see RJ v R at [24] and RA v R [2007] NSWCCA 251; 175 A Crim R 221 at [11])."

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