4. Competence and Compellability

4–1 Section 13(2), (3) and (4) of the uniform Evidence Acts should be amended or replaced to bring about the following:

• a person not competent to give sworn evidence is competent to give unsworn evidence but may not do so unless the court informs the person of the importance of telling the truth;
• all witnesses must also satisfy a test of general competence in s 13(4);
• the test of general competence to give both sworn and unsworn evidence in s 13(4) should provide that if for any reason, including physical disability, a person lacks the capacity to understand, or give an answer that can be understood to, a question about a fact and that incapacity cannot be overcome, the person is not competent to give evidence about that fact;
• the inclusion of a note to s 13(1) that ‘the person may be competent to give unsworn evidence’;
• the inclusion of a note to s 13(4) that ‘the person may be competent to give evidence about other facts’; and
• the inclusion of a note to s 13(4) cross-referencing to s 31.

4–2 Section 13(7) of the uniform Evidence Acts should be amended to make it clear that in informing itself as to the competence of a witness, the court is entitled to draw on expert opinion.

4–3 The wording of ss 14 and 61 of the uniform Evidence Acts should be amended to bring them in line with the proposed changes to s 13(4).

4–4 The provisions of the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW) should be amended to eliminate the term ‘de facto spouse’ (including the definition) and to replace it with the term ‘de facto partner’.

4–5 The Evidence Act 1995 (Cth) should be amended to provide a definition of ‘de facto partner’ in the following terms:

‘de facto partner’ means a person in a relationship as a couple with another person to whom he or she is not married.

4–6 The Evidence Act 1995 (Cth) should be amended to provide that for the purpose of determining whether a relationship between 2 persons is a relationship as a couple, the matters that the court may take into account include:

(a) the duration of the relationship;

(b) the extent to which the persons have a mutual commitment to a shared life; and

(c) the reputation and public aspects of the relationship.