Introduction

The most common way for evidence to be adduced is through the testimony of a witness. The
general rule in English law is that all witnesses are competent and compellable to give
evidence, with statutory exceptions, in any proceedings although in certain cases a witness
may refuse to answer questions on the grounds of privilege or public policy. A competent
witness is one who is free from personal characteristics which would disable him from giving
evidence before a court. A compellable witness is not only competent but maybe lawfully
obliged to give evidence on pain of being in contempt of court. However, there is an
exception relating to the Defendant and his or her spouse or civil partner. These witnesses are
only compellable to give evidence against their partner in limited circumstances. There is a
general rule respecting the autonomy of parties in an adversarial system to call whichever
witness they decide in whatever manner. However, the rule is only true for civil cases. In
criminal cases, the prosecutor has no autonomy to call whatever witness. His duty is to do
justice to the case. He may be compelled to make available evidence which he comes across
which could support the accused’s innocence. The court can also demand which witnesses
can be called.

Compellability of a witness

Compellability is about whether, as a matter of law, a witness can be required to give

evidence when they do not wish to do so. Generally, in civil proceedings all witnesses that
are competent to give evidence may also be compelled to do so.1 The court may compel a
witness to give evidence by „subpoena duces tecum‟ – to produce document or „subpoena
testificandum‟ – to testify.2 When a party requires a person to give evidence, they issue a
subpoena for the person to attend court on a particular date. A person who has been issued
with a subpoena must attend court on the specified date and if they fail to attend, the court
may issue a warrant for their arrest. If a person who receives a subpoena to give evidence
believes they are not a compellable witness, they must attend court and indicate this to the
court.

Competence of a witness

Generally, all persons are competent to testify either for or against a party to proceedings.

1
Health and Care Professions Tribunal Service Practice Note
2
Part VII of the High Court Act and Part VIII of Subordinate Court Act, Cap 28 of the Laws of Zambia
The law however places certain further qualifications on certain special types or categories of
witnesses based on interest, prejudice and capacity generally. A person is not competent to
give evidence about a fact if they do not have the capacity to understand or answer questions
about the fact and this incapacity cannot be overcome.3 This may be because of mental or
physical disability because the person is a very young child or for any other reason.

Competence is not to be confused with credibility. A witness does not lack competence
simply because they have poor powers of observation or an imperfect memory. Competence
refers to a person’s ability to function as a witness. A person may be competent to give
evidence about some matters but not others. The issue of whether a person is competent to
give evidence is for the judge to decide in the absence of the jury, on the balance of
probabilities.4

At common law, objections on competence of a witness are usually taken by the judge at the
time the witness is being sworn. In modern practice, objections may be taken before a witness
is sworn or are taken during cross examination. If the witness‟ incompetence appears, his/her
evidence may be excluded from the record.

The Accused

No person who is tried for a criminal offence is compellable to give evidence at his trial.5
Section 157 of the criminal procedure code outlines the circumstances in which an accused
may be a competent witness which is only when he himself decides to take a stand in the
witness box, sworn in. This applies to the spouse of the accused who will only be able to
testify on behalf of the partner if the partner/accused decides for the idea.6 Nevertheless, In
Mumba V The People,7 DK Chirwa J confirmed this in saying “it has always been law that an
accused person in a criminal trial has had the following choices: either to remain silent or say
something, he has either to say it on oath (giving evidence) or say something by way of
unsworn statement.”8 At common law the accused is not competent to act as a witness for the
prosecution. This includes a co-accused giving evidence against another co-accused.9 It is
3
R v Sed [2005] 1 Cr App Rep 55, CA
Auld LJ Mr Carter-Stephenson’s second point was that, unless the complainant understood all the material
questions put to her and all her material answers were understandable, she could not qualify as competent
within the terms of s 53
4
https://www.gotocourt.com.au/criminal-law/competence-compellability-witnesses/, 10/04/2020
5
Article 18(7) of the Constitution Chapter 1 of the Laws of Zambia.
6
Section 157 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia.
7
High Court Zambia, 1984,
8
Section 207 of CPC
9
R V Gunewardene 1951, 35 Crim App R 80
trite law that an accused’s statement not made on oath in the course of a trial is evidence only
against himself, and as such the statement is ineffective to weigh in the scales against the co-
accused unless the latter is shown to have adopted the statement so as to make it his own.10

For the Prosecution

At common law the accused is not competent to act as a witness for the prosecution. This
includes a co-accused giving evidence against another co-accused. However, if a co-accused
cease to be a co-accused, the prosecution may call him/her. This may happen in a number of
ways:

a). If co-accused enters a guilty plea, unless the plea is set aside.11

b). If a person pleads guilty to an indictment, he is no longer incompetent to give evidence for
the prosecution against others charged of that same indictment.12

c). If co-accused is acquitted.

d). If an application to sever the indictment succeeds [An indictment may be severed where
the counts are unrelated, severance would be fair to all the parties and the trial judge would
otherwise not properly be able to instruct the jury.13

e). If the AG enters a nolle prosequi (unwilling to pursue).

f). If the accused is not competent then plainly, neither is he compellable

For the Defence

The accused is a competent but not compellable witness for the defence

a). However, where the accused does choose to give evidence, he may be cross-examined by
both Prosecution and any other co-accused.14 (R v Hilton).

b). R v Paul – the accused had confined his evidence-in-chief to an admission of his own
guilt. However, evidence elicited under cross-examination of co-accused’s guilt was held to
be properly admitted by the co-accused

Spouses
10
Naweji V The People Supreme Court, Zambia 1981
11
R v McEwan England and Wales Court of Appeal (Criminal Division) 29 th March 2011
12
Section 53 of the Youth Justice and Criminal Evidence Act English Laws
13
R V Christou; R V Wright 1992, 1 QB 979, [1996] 2 Cr App R 360
14
R v Hilton (Respondent) (Northern Ireland) Case ID: UKSC 2018/0075, [2017] NICA 73 (12 May 2017) 
At common law a husband or wife was considered incompetent to testify either for or against
the other spouse by reason of unity in person and interest. The only exception was in cases of
personal violence against a spouse, forcible marriage and in public interest in cases of
treason.

The People v Mushaikwa15

Held:

i) At common law, the wife of an accused person is not a competent witness for the
prosecution save in cases of forcible marriage and possibly treason on both of which
occasions the spouse is competent and compellable.

ii) Generally, all competent witnesses are compellable; but in the case of a spouse of an
accused person although the spouse may be rendered by statute a competent witness in
certain cases the spouse is not compellable in these instances.

iii) Failure by the court to give such a warning renders the evidence given by the spouse
totally inadmissible

Children

The competency of children depends on their ability to understand the nature of an oath and
the consequences of falsehood. This would effectively be conducted during a viore dire to
establish the competence of a witness, Preliminary examination to test competence of a child
witness. Section 122 of the Juveniles Act, Cap 53 of the Laws of Zambia provides for viore
dire in assessing competence of a child of tender years, now 14 years.16

Conclusion

To be allowed to give evidence, a witness must be “competent.” To be required to give

evidence (eg.by a witness summons), a witness must be “compellable.” A witness is said to
be competent if he may be called to give evidence and compellable if, being competent, he
may be compelled to do so. At common law, the law of competence and compellability is
governed by a general rule with two limbs. The first rule is that anyone is a competent
15
(1973) ZR 161
16
Provisions of the Juveniles (Amendment) Act No.3 of 2011
witness in any proceedings. at every stage of criminal proceedings all persons (whatever their
age) are competent to give evidence’. The only remaining exceptions to the first limb of the
general rule relate to the accused as a witness for the prosecution, children, and persons of
disorder or disability of the mind. The second limb of the general rule is that all competent
witnesses are compellable. The only remaining exception to this limb relates to the accused,
his or her spouses or civil partner, heads of sovereign states, diplomats, and in certain cases,
bankers.

References

Statutes

1. Provisions of the Juveniles (Amendment) Act No.3 of 2011

2. Section 53 of the Youth Justice and Criminal Evidence Act English Laws
3. Article 18(7) of the Constitution Chapter 1 of the Laws of Zambia.
4. Section 157 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia.
 5. Section 207 of CPC
6. Health and Care Professions Tribunal Service Practice Note
7. Part VII of the High Court Act and Part VIII of Subordinate Court Act, Cap 28 of
the Laws of Zambia

Case Law

1. The People v Mushaikwa (1973) ZR 161

2. R V Gunewardene 1951, 35 Crim App R 80
3. Naweji V The People Supreme Court, Zambia 1981
4. R v McEwan England and Wales Court of Appeal (Criminal Division) 29th March
2011
5. R V Christou; R V Wright 1992, 1 QB 979, [1996] 2 Cr App R 360
6. R v Hilton (Respondent) (Northern Ireland) Case ID: UKSC 2018/0075, [2017]
NICA 73 (12 May 2017)
7. R v Sed [2005] 1 Cr App Rep 55
8. Mumba V The People High Court Zambia, 1984

Websites

1. https://www.gotocourt.com.au/criminal-law/competence-compellability-witnesses/,
10/04/2020