History

To What Extent Are Witnesses Assisted and Protected by the Laws of Evidence

A witness under the age of 14 may also be able to testify and may be allowed to provide unsworn evidence, provided there are some understanding and fear of deity, and “the child has a sufficient appreciation of the solemnity of the occasion and the added responsibility, to tell the truth…”The finding made by a trial judge on the competence of the witness based upon the criteria laid out in the case of R v Hayes is dependent upon the discretion of the trial judge, who also determines whether a mentally disabled person is competent enough to testify in a trail2.The case of Sed v R3 involved an old woman with Alzheimer’s disease who often spoke in a manner that did not make much sense and sometimes did not appear to understand questions clearly. The competence of the witness under Section 53 of the YJCE was questioned by the defense, however, the Court held that the reasoning of the Trial Judge was correct in that he had discovered that the witness was not lucid at all times, but that it was not necessary for her to be so. Rather she demonstrated an understanding of simple questions and was able to respond lucidly on occasion and these could form the basis to determine that she was competent as a witness.However, even when a witness is found to be competent, that does not mean he can be compelled to testify at a trial. As stated by Murphy, “A witness is said to be compellable if he is not only competent but may lawfully be required by the Court, under the sanction of penalty as a contemnor, to give his evidence.”4 In general, the spouse of an accused will not be viewed as a competent witness due to the bond between the two and may not be compelled to give evidence.One of the major issues that have proved contentious in witness protection is in trials for sexual offenses, where several female witnesses were inhibited by the existing rules that required the former sexual history of the witnesses to be brought before the Courts.

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