13. Competence, Compellability & Unfavourable Witnesses (Vic)¶
Scope and currency
Reference sheet · Evidence Act 2008 (Vic) ss 12–19 (competence & compellability) + s 38 (unfavourable) · with the jury directions
The default, and the exceptions:
Default: Under s 12, every person is competent to give evidence, and every competent person is compellable — unless the Act provides otherwise.
Exception: The exceptions run through ss 13–19 (capacity, reduced capacity, Sovereigns, judges & jurors, the accused, spouses/family). Separately, s 38 lets a party cross-examine its own witness once that witness turns "unfavourable" — the modern replacement for the common-law "hostile witness" rule.
Part A — Competence & compellability (ss 12–19)¶
The default (s 12): everyone is competent; everyone competent is compellable — subject only to the exceptions below. Competence is:
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a question of law for the judge on the balance of probabilities (s 142),
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decided on a voir dire in the jury's absence (s 189); and
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the court may inform itself as it thinks fit, including by expert evidence (s 13(8)).
GATE 1 · s 13 Does the witness have capacity? (competence)
Can the person (1) understand a question about the fact, and (2) give an understandable answer? Not competent for a fact if — for any reason (including mental, intellectual or physical disability) — the person cannot understand a question about it, or cannot give an understandable answer, and that incapacity cannot be overcome (s 13(1)). A person incompetent for one fact may be competent for others (s 13(2)). Presumed competent unless the contrary is proved (s 13(6)); evidence already given does not become inadmissible if the witness later dies or ceases to be competent (s 13(7)). → Sworn vs unsworn: sworn / affirmed evidence requires the capacity to understand the obligation to give truthful evidence (s 13(3)). If the person lacks that, they may still give unsworn evidence (s 13(4)) — on the conditions below.
GATE 2 · s 13(5) Unsworn evidence — the mandatory instructions
Has the court told the person the three things? Before a person gives unsworn evidence, the court must tell them: (a) it is important to tell the truth; (b) they may say if they don't know or can't remember an answer; and © they may be asked suggestive questions and should only agree with what they believe is true, feeling no pressure to agree with what they believe is untrue (s 13(5)). Strict compliance is required (MK v The Queen; SH v The Queen); once the instructions are given there is no discretion to refuse the evidence (R v Muller; SH). Unsworn evidence is worth no less than sworn (R v GW (2016) 258 CLR 108, HCA held that there is no requirement or established rule of practice dictating that a trial judge must warn a jury to take the differences between sworn and unsworn evidence into account when assessing a witness's reliability). Out-of-court assertions are not sworn evidence: Permissible to make a comment to the jury to that effect (Mule v The Queen (2005) 79 ALJR 1573, a judge may properly instruct the jury that they are permitted to accord less weight to such unsworn, exculpatory assertions than they would to admissions against the accused's interest).
GATE 3 · s 14 Reduced capacity — not compellable
Would the process of ensuring capacity cause substantial cost or delay? A person is not compellable to give particular evidence if the court is satisfied that: (a) substantial cost or delay would be incurred in ensuring they have the capacity to understand the question or give an understandable answer, and (b) adequate evidence on the matter is available (or can be given) from another source (s 14). Overcoming disability: interpreters (s 30); directions for deaf or mute witnesses (s 31).
The compellability exceptions at a glance (ss 15–18)¶
| s | Who | Rule |
|---|---|---|
| 15 | Sovereign, Governors, foreign heads of state; MPs | not compellable; an MP is not compellable if it would prevent attending a sitting or committee. |
| 16 | Judges & jurors | jurors may give evidence on matters affecting the conduct of the proceeding (e.g. procedural irregularities, potential misconduct, or external influences that may have compromised the integrity of the trial); a judge is not compellable about a proceeding unless the court grants leave. |
| 17 | The accused & co-accused | an accused is not competent for the prosecution (17(2)); an associated accused is not compellable for or against unless tried separately (17(3)); in a joint trial the court must ensure the witness is aware (17(4); Trzesinski v Daire). |
| 18 | Spouse / de facto / parent / child | may object to giving evidence for the prosecution — subject to the balancing test below. |
| GATE 4 · s 18 Spouses & family — the objection & balancing test | ||
| Would the harm of giving evidence outweigh its desirability? A spouse, de facto partner, parent or child of the accused may object to giving evidence (or evidence of a communication) for the prosecution (s 18(2)); the objection is made before giving evidence or as soon as practicable (18(3)); the court must ensure the person is aware of the right (18(4)) and hears it in the jury's absence (18(5)). The test (s 18(6)): the person must not be required to give the evidence if there is a likelihood of harm to them or to the relationship, and that harm outweighs the desirability of the evidence. Factors (18(7)): - the nature/gravity of the offence; - the importance and weight of the evidence; - whether other evidence is reasonably available; - the nature of the relationship; and - whether it would disclose a confidence. A 10-year relationship with two children sufficed in a family-violence case (DPP v Nicholls). Consequences: the prosecutor may not comment on the objection, the ruling, or the failure to give evidence (18(8)). A successful objector becomes "unavailable", so the Crown may seek to tender their statement as hearsay under s 65 — resist on (1) the person is not truly unavailable, (2) s 137, and (3) the common-law fairness discretion (Haddara v The Queen [2014] VSCA 100). |
s 18 has a carve-out (s 19)
s 18 does not apply in proceedings for certain offences — s 19, which is adopted in NSW but not in VIC.
GATE 5 Children, comment & unreliability directions
Children (JDA s 33): the judge and counsel must not suggest that: (1) children as a class (of witness) are unreliable or less credible, that a child's evidence is unreliable solely because of age; or (2) it is dangerous to convict on a child's uncorroborated evidence. There is no requirement to warn that unsworn evidence may be unreliable (R v GW). Criminally-concerned witnesses: evidence from a witness who might reasonably be supposed to have been criminally concerned in the events may be unreliable, attracting a warning under JDA ss 31–32 (relevant to co-accused evidence, which is also subject to s 137).
Part B — Unfavourable witnesses (s 38)¶
The big change: s 38 replaces the common-law hostile-witness rule. You no longer need to prove the witness is hostile (refusing to tell the truth) — merely "unfavourable". It is the exception to the rule against leading your own witness (s 37); its real value is getting a prior inconsistent statement (PIS) in — and, via s 60, using it to prove the truth of its contents.
GATE 1 · s 38(1) The three things you may cross-examine your own witness about
Which trigger applies? With further leave, you may also cross-examine on matters relevant only to credibility (s 38(3)). Questioning is treated as cross-examination (s 38(2)) and normally happens before the other parties cross-examine (s 38(4)). → (a) Unfavourable evidence: evidence the witness gave that is unfavourable to the party. → (b) No genuine attempt: a matter the witness may reasonably be supposed to have knowledge of, but about which they are not making a genuine attempt to give evidence in chief. → © Prior inconsistent statement: whether the witness has, at any time, made a PIS.
GATE 2 · s 38 What does 'unfavourable' mean?
Is the evidence unfavourable — or merely neutral? Not defined and once contested. It means "not favourable", not "adverse" or hostile (R v Souleyman); the High Court thought there was "much to be said" for "unhelpful" evidence being unfavourable (Adam v The Queen (2001) 207 CLR 96). Merely neutral evidence is not enough (Klewer v Walton), nor is evidence that simply doesn't fit the case theory (R v Kneebone). The Victorian test (DPP v Garrett (a pseudonym) [2016] VSCA 31): "unfavourable" means unfavourable to the case the party seeks to advance [67] — not merely inconsistent with the overall tenor of the other evidence. Evidence may be unfavourable even if the witness gives nothing that detracts from the case — failing to give expected supportive evidence can be enough.
GATE 3 · s 38 Getting leave
Should the court grant leave? s 38(6) factors: whether the party gave notice at the earliest opportunity (a); and the matters on which, and extent to which, the witness has been or will be questioned by another party (b). Notice is one factor, not determinative. Plus the s 192 factors (unfairness, importance, nature of the proceeding, adjournment power) and the s 137 balance (probative value may be low, prejudice high). You may call a witness specifically to cross-examine under s 38 and prove a PIS — seek an advance ruling (s 192A). Avoid repeated "dollops" of leave; wait until the evidence on the topic has emerged and make one application (R v Le (2002) 54 NSWLR 474).
GATE 4 · s 38 How far can the questioning go?
Cross-examination at large — or confined? → Confined — R v White: s 38 is not "open slather"; specify the matters, no omnibus cross-examination (R v White). → Probability & credibility — R v Le: leave may extend to establishing the probability / improbability of the s 38(1) matters, including questions going only to credibility to shake the witness on those subjects (R v Le; and s 38(3)) — credibility questions remain subject to ss 103 / 106. → If the PIS is denied: inform the witness of the circumstances and draw their attention to the inconsistent part before proving it from another source (s 43(2)); documents are dealt with under s 45. See R v Bourbaud for the scope in practice.
★ Featured — Singh v The King [2025] VSCA 95
counsel agreed the Crown could cross-examine its own primary witness on undefined "discreet issues" without leave under s 38 — and the Crown wrongly assumed it would get leave to cross-examine at large. Defence counsel did not insist on s 38 compliance; the evidence that followed was disastrous for the accused. Held: counsel incompetence made out — new trial ordered. The lesson: insist on the s 38 process and its limits.
GATE 5 · s 38 Jury directions
There is no requirement to warn the jury merely because a witness was declared unfavourable and cross-examined under s 38 — indeed the jury need not be told a ruling was made. But if the evidence is of a kind that may be unreliable under JDA s 31 (e.g. the witness may have been criminally concerned in the events), an unreliability warning may be appropriate.
Provisions at a glance¶
| s | Effect |
|---|---|
| 12 | Default — everyone competent; every competent person compellable (unless otherwise provided). |
| 13 | Competence — capacity to understand a question / give an understandable answer; sworn vs unsworn (13(3)–(5)); presumption (13(6)). |
| 14 | Not compellable where ensuring capacity is a substantial cost/delay and adequate evidence is available elsewhere. |
| 15 / 16 | Sovereigns, Governors, MPs (15); judges & jurors (16). |
| 17 | The accused — not competent for the prosecution; an associated accused not compellable unless tried separately. |
| 18 / 19 | Spouse / family may object (balancing test, 18); s 18 does not apply to certain offences (19). |
| 37 / 38 | No leading your own witness (37); unfavourable-witness cross-examination, with leave (38). |
| 43 / 45 / 60 | Proving a denied PIS from another source (43(2)); documents (45); PIS → truth via s 60. |
| JDA 31 / 32 / 33 | Unreliability warnings (31–32); no "children as a class" suggestion (33). |
Case law at a glance¶
| Case | The point it stands for |
|---|---|
| R v GW (2016) 258 CLR 108 | s 13(5) unsworn evidence of a child; it is open to the judge not to be satisfied of the s 13(3) capacity — and unsworn evidence is worth no less than sworn; no unreliability warning required. |
| MK v The Queen · SH v The Queen | Strict compliance with the s 13(5) instructions is required before unsworn evidence. |
| R v Muller · SH v The Queen | Once the s 13(5) instructions are given, there is no discretion to refuse the unsworn evidence. |
| Trzesinski v Daire | In a joint trial the court must explain to a co-accused that they are not compellable and ensure they understand (s 17(4)). |
| DPP v Nicholls | s 18 — a 10-year relationship with two children sufficed to excuse a family-violence complainant from giving evidence. |
| Haddara v The Queen [2014] VSCA 100 | A residual common-law fairness discretion can exclude a statement tendered after an s 18 objector becomes 'unavailable'. |
| R v Souleyman (1996) 40 NSWLR 712 | "Unfavourable" means "not favourable", not "adverse". |
| Adam v The Queen (2001) 207 CLR 96 | There is "much to be said" for "unhelpful" evidence being unfavourable. |
| Klewer v Walton [2003] NSWCA 308 · R v Kneebone (1999) 47 NSWLR 450 | Neutral evidence, or evidence that merely doesn't fit the case theory, is not unfavourable. |
| DPP v Garrett (a pseudonym) [2016] VSCA 31 | The Victorian test — unfavourable = unfavourable to the case the party seeks to advance [67]. |
| R v Le (2002) 54 NSWLR 474 | Scope may extend to probability / credibility to shake the witness on the s 38 subjects; but avoid repeated "dollops" of leave. |
| R v White [2003] NSWCCA 64 | s 38 is not "open slather" — specify the matters; no omnibus cross-examination. |
| R v Bourbaud [2011] VSC 103 | The Crown may cross-examine unfavourable witnesses on inconsistencies between their plea summaries and later accounts. |
| Singh v The King [2025] VSCA 95 | Failing to insist on s 38 compliance (cross-examining one's own witness without leave / at large) was counsel incompetence — retrial. |
Key authority watch¶
• Newest: Singh v The King [2025] VSCA 95 — the s 38 process and its limits matter; ignoring them can be counsel incompetence.
• The anchors: R v GW (unsworn = sworn), DPP v Garrett (the Victorian meaning of "unfavourable"), R v Le / R v White (the scope of s 38 questioning).
• Don't forget: an s 18 objector becomes "unavailable" (s 65 hearsay may follow); and s 18 is subject to the s 19 offence carve-out.