The Reluctant Family

Mia's age is not determinative. A child is competent if she can understand the questions put to her and give answers that a jury can understand, and if she understands the duty to tell the truth. The judge should hold a voire dire, ask simple non-leading questions about the difference between truth and lies, and invite her to promise to tell the truth rather than administer a formal oath. Her limited vocabulary for time and distance affects the weight of her evidence, not competence. The judge can allow a support person, live link, or a recorded interview under special measures. Compellability follows competence: if she is competent, she can be required to testify, but the court should consider whether compelling her would cause serious harm. Reluctance alone is not a bar. The judge should also address the defence's ability to cross-examine a 7-year-old and ensure questions are developmentally appropriate. If Mia is competent, her statement to the teacher is not admitted as hearsay unless she adopts it; it may be used to rebut a suggestion of recent fabrication if she testifies.

Carla's compellability depends on the statutory exception for spouses. At common law, a spouse is competent but generally not compellable for the prosecution, except in cases involving violence against the spouse or a child. Here Damon is charged with assaulting Lena, not Carla. If the local statute extends the exception to domestic violence against a partner in the same household, Carla may be compellable; otherwise she is not. Separation without divorce does not end the marriage, so she remains a spouse unless a decree absolute or annulment. The bruise observation is not a confidential marital communication; it is something Carla saw. Marital privilege usually protects communications made during the marriage, not physical observations. If Carla is competent and chooses to testify, she can describe the bruise. If she is not compellable, the prosecution cannot force her, and her out-of-court statement is hearsay unless an exception applies. The judge should determine the scope of the statute and instruct the jury that Carla's refusal cannot be held against Damon.

Omar is not automatically 'hostile.' He is a witness whose evidence is unfavourable to the prosecution. The judge should first ask him whether he made the statement and whether it is true. If he denies making it, the prosecution may prove the signed statement through the police officer and Omar's signature. If he admits making it but says he was asleep and the statement is false, the statement can be used to impeach his credibility, not as proof that Lena shouted the words. To treat him as hostile, the prosecution needs leave; the judge should consider whether he is deliberately withholding evidence or genuinely unable to recall. Cross-examination on the prior statement should be put to him directly. A limiting instruction is essential: the jury may use the statement only to assess Omar's truthfulness, unless a hearsay exception-such as excited utterance-applies to the original shout. Because the foundation for excitement is now contested, the judge should admit the statement only for credibility.