Witnesses that are subpoenaed to attend court in a criminal proceeding are generally compellable to give evidence in a hearing or trial. There is no general right of a subpoenaed witness to refuse or object to giving evidence or to not answer any particular question. There are a number of relatively limited exceptions to this general rule.
Defendants in Criminal Proceedings
In criminal proceedings a defendant is not compellable to give evidence as a witness in the prosecution case. They may decide to give evidence as a witness in their own defence case but do not have to, consistent with their ongoing right to silence. A co-defendant is also not compellable to give evidence against another defendant unless the defendants are being tried separately. If the matters are listed in the one joint trial or hearing, and one co-defendant chooses to give evidence in their defence case, that evidence is also not admissible against another co-defendant.
Reduced Capacity
Section 14 of the Evidence Act states that a person is not compellable to give evidence if the court considers that there would be substantial cost or delay to ensure the person would have capacity to understand the questions asked, and for an answer to be given that can be understood, and if adequate evidence on the matter has already been given or will be given.
Partner’s and Family Members of Defendant’s
A defendant’s spouse, de-facto partner, parent or child can object to being required to give evidence as a witness for the prosecution as set out in section 18 of the Evidence Act. A person may still be required to give evidence despite an objection if the court is satisfied that there is no likelihood of harm to occur as a result of the evidence, and that the desirability of the evidence outweighs the nature and extent of the harm.
The court must consider the nature and gravity of the offence, the substance and importance of any evidence the witness might be able to provide alongside whether related evidence is available to the prosecutor, the nature of the relationship between the defendant and the witness, and whether giving evidence a person may disclose a matter which was received in confidence by the defendant.
A defendant’s spouse, de-facto partner, parent or child cannot object and is still compellable to give evidence if the proceeding is for a family violence offence (section 19).
Sovereign’s and State Officials
Section 15 of the Evidence Act outlines that the following persons are not compellable to give evidence:
- The Sovereign
- The Governor-General
- The Governor of a State
- The Administrator of a Territory
- A Foreign Sovereign or Head of State of a Foreign Country
Members of Australian Parliament are also not compellable to give evidence if providing this evidence could prevent the member from attending a sitting of the house or joint sitting of Parliament, or if they are a member of a committee of the house or parliament, a meeting of the committee. Judges and jurors in a proceeding are also not compelling to give evidence about a proceeding they are involved in – although a juror may still be questioned about a matter that relates to the conduct of the proceeding, not evidence.
