STEP 1: Whether or not T is competent and compellable is a preliminary question which will be determined by the judge in voir dire; (s 189(1)(c)). [W] is prima facie competent and compellable to give sworn E (s 12(a)-(b) EA) unless the presumption can be rebutted. STEP 2: Is [W] competent? Does the person have CAPACITY? Capacity: S 13(1): a person is not competent to give evidence about a fact if, for any reason (including mental, intellectual or physical disability) if he does not have the capacity to either: • understand a question about a fact: s 13(1)(a) EA, OR • be understood in giving an answer to a question about a fact (i.e. intelligible, not necessarily “rational” ): s13(1)(b) EA. And that incapacity cannot be overcome NOTE: Witness may be competent for some facts but not others: s 13(2). (Eg, a person with ABI – short term memory affected but not long term memory) or Sexual Offences person may be competent to give other facts. In considering whether that incapacity can be overcome, look to: • S 30: a witness can give evidence through an interpreter = COMPETENT • S 31(1): deaf witnesses can give evidence in appropriate way = COMPETENT • S 31(2): mute witnesses can given evidence in appropriate way = COMPETENT • S 14: even if capacity could be overcome, if evidence is available elsewhere, and cost would be too high to overcome capacity, W will not be compellable. • S 13(8): for the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining an expert opinion STEP 3: does the person UNDERSTAND their obligations to give truthful evidence?