Can I Be Compelled to Give Evidence? Here’s What to Know

According to Section 12 of the Evidence Act 2011:

(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.

The Act provides a number of exceptions to the starting point detailed above. For one, the law considers not competent a person who has a mental, intellectual, or physical limitation that prevents them from giving testimony or participating in proceedings. If the lack of capacity renders them such that the person cannot comprehend the question or give an answer that could be understood, the law may not compel them to provide evidence.

Further, a person’s lack of capacity is not presumed universal. They may be obliged to give evidence about other facts or give unsworn evidence. However, these exceptions are subject to Subsection 5, which states:

(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 that—

(a) it is important to tell the truth; and

(b) the person may be asked questions that the person does not know, or cannot remember, the answer to, and that the person should tell the court if this happens; and

(c) the person may be asked questions that suggest certain statements are true or untrue and that the person should agree with the statements that the person believes are true and should feel no pressure to agree with statements that the person believes are untrue.

In criminal law proceedings, defendants are not compellable to provide evidence as a prosecution witness. They are considered not competent in this instance. Similarly, an associated defendant cannot be compelled to give evidence against the other defendant unless they are being tried separately, or unless according to Section 17, Subsection 4 is satisfied:



If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court must satisfy itself (if there is a jury, in the jury’s absence) that the witness is aware of the effect of Subsection 3.

Again, in criminal law proceedings, there are special conditions regarding the compellability of domestic partners and other close relations. Parents, partners, or children of a defendant may object to giving evidence as a prosecution witness. Section 18, Subsections 3 to 5 specifies:

(3) The objection must be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right to object, whichever is the later.

(4) If it appears to the court that a person may have a right to make an objection under this section, the court must satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(5) If there is a jury, the court must hear and decide any objection under this section in the jury’s absence.

If the court finds that the person providing testimony might be harmed by giving evidence, they may not be compelled to do so. This is especially true if the extent of the damage outweighs the evidence’s value. Subsection 7 elaborates:

(7) Without limiting the matters that may be taken into account by the court for subsection (6), it must take into account the following:

(a) the nature and gravity of the offence for which the defendant is being prosecuted;

(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;

(c) whether any other evidence about the matters to which the evidence of the person would relate is reasonably available to the prosecutor;

(d) the nature of the relationship between the defendant and the person;

(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

The law presumes all persons as competent unless presented with information proving otherwise. Therefore, every person is also presumed competent and compellable to furnish the court with evidence regarding a case. 

A skilled criminal lawyer can help an individual understand their legal rights and responsibilities given certain circumstances.

Get the best legal advice and representation from the Andrew Byrnes Law Group. We are Canberra criminal lawyers dedicated to obtaining the best outcomes in our cases. 

If you face criminal charges in Canberra, Queanbeyan, Goulburn, Yass, Wollongong, and surrounds, book a free consultation with our legal experts to learn more.