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Competency Of Witnesses In NSW

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The competency of witnesses is a crucial aspect of the legal system, ensuring that the information presented in a court of law is reliable and accurate.


In New South Wales, there are specific criteria that individuals must meet to be deemed competent witnesses, in both criminal proceedings and civil proceedings. An enquiry as to whether a witness is competent to give evidence is usually conducted in court in the absence of the jury, if the case is listed for jury trial. This enquiry part of the trial process and conducted before the trial judge.

Who Are Competent Witness In Law of Evidence?

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.

There are specific categories of individuals who may not be considered competent witnesses in NSW:




In NSW, children under the age of 14 are generally presumed to be incapable of giving sworn testimony. However, they may be allowed to provide evidence in special circumstances if the court deems them competent.


In cases where there is uncertainty regarding whether the presumption of a witness’s capability to provide evidence, or their ability to give sworn testimony, has been challenged, the procedural guidelines for resolving this issue can be located in Section 189(1) of the Evidence Act 1995.


This is a preliminary matter settled without the presence of the jury, unless the court directs otherwise (Section 189(4)). Neither the defence nor the prosecution bears the burden of proof. It is the court’s responsibility to ascertain if it is convinced, on the basis of a preponderance of evidence, that there exists substantiation of a person’s incompetency.


Individuals with Intellectual Disabilities


Persons with severe intellectual disabilities that hinder their ability to understand and respond to questions may be considered incompetent witnesses.


Persons under the Influence of Drugs or Alcohol


Individuals who are under the influence of drugs or alcohol at the time of giving testimony may be deemed incompetent due to impaired judgment and cognition.

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How Often Are Psychologists Used to Determine Competence of Witness?

Forensic psychologists play a vital role in the legal system when it comes to determining witness competence. They employ their expertise in assessing cognitive functioning, memory capacity, and mental health to evaluate whether a witness meets the criteria for competency. Expert witness evidence and expert opinion such as this carries weight in court.


Cognitive Functioning Assessments


Psychologists may conduct a series of tests and assessments to evaluate a witness’s cognitive abilities. This may involve tasks designed to measure memory, comprehension, and communication skills.


Memory Capacity Evaluations


Assessing a witness’s memory capacity is crucial to ensure they can accurately recall and describe events. Psychologists may employ techniques to gauge the reliability of a witness’s memory.


Mental Health Assessments


Psychologists are equipped to evaluate the mental health of witnesses. If a witness is suffering from a mental disorder, psychologists can determine the extent to which it impairs their ability to provide reliable testimony.


Frequency of Psychologists’ Involvement


The involvement of psychologists in determining witness competence varies depending on the complexity of the case and the specific needs of the court. In high-stakes cases or those involving vulnerable witnesses, the court is more likely to seek the expertise of psychologists. Additionally, cases involving individuals with known mental health issues may necessitate a psychological assessment to determine their competency as a witness.


Competency of witnesses is a fundamental aspect of the legal system, specially for a child witness, ensuring that the information presented in court is accurate and reliable. In NSW, specific criteria must be met for an individual to be considered a competent witness.


Psychologists play a crucial role in this process, employing their expertise to assess cognitive functioning, memory capacity, and mental health. Their involvement is particularly important in cases involving vulnerable witnesses or individuals with known mental health issues. By upholding standards of witness competence, the legal system in NSW maintains its commitment to fair and just proceedings.


If you have been charged with a serious criminal offence in NSW, contact our criminal lawyers in Sydney. We will provide you with free legal advice for up to 15 minutes on the phone. Contact our expert criminal defence lawyers today.

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