Competency Of Witnesses In NSW

In NSW, a competent witness is an individual who is legally qualified to testify in a court of law. “Competency pertains to an individual’s ability to act as a witness. According to Section 12 of the Evidence Act 1995:

Unless specified otherwise in this Act:

(a) any person has the capacity to provide testimony, and

(b) an individual who is qualified to testify regarding a particular fact can be compelled to do so.”

Accordingly, to be considered competent, a witness must meet several criteria:

Capacity to Understand Questions and Provide Coherent Answers

A competent witness must be capable of understanding the questions posed to them and responding with coherent and relevant answers. This includes having the mental capacity to comprehend the nature of the questions and the ability to communicate effectively.

Ability to Take an Oath or Affirmation

Witnesses are typically required to swear an oath or make an affirmation to tell the truth before providing their testimony. This demonstrates their commitment to providing accurate information to the court.

According to common law principles, an individual is considered competent to provide testimony only if they are capable of giving sworn evidence. This necessitates an understanding of the significance of taking an oath or making an affirmation. However, Section 13 of the Evidence Act introduces an exception. It allows individuals who are not able to give sworn evidence due to a lack of comprehension regarding the duty to speak truthfully, to provide unsworn evidence instead.

For a witness to be eligible to provide unsworn evidence, they must:

• Be informed about the paramount importance of speaking truthfully;
• Be informed that they may encounter questions to which they do not possess the answers, and should promptly inform the court if this situation arises;
• Be informed that they should not feel compelled to endorse statements that are false in nature.

Ability to Recall Events

Competent witnesses must possess the ability to recall and describe events accurately. While some degree of memory lapse is natural, a witness should be able to provide a reasonable account of the events in question.

Freedom from Mental Disorder

Witnesses cannot be suffering from a mental disorder that impairs their ability to understand questions or provide reliable answers. If a witness is deemed to be mentally incapacitated, their testimony may be considered unreliable.

Freedom from Bias or Prejudice

Competent witnesses should not have a strong bias or prejudice that could significantly impact the accuracy of their testimony. If a witness is found to have a vested interest in the outcome of the case, it may affect their credibility.