4. Testimony Flashcards
Discuss who is eligible and compellable to give evidence?
Under section 71 any person is eligilble to give evidence and any person that is eligible to give evidence is compellable to give evidence.
A person is eligible to give evidence if they are lawfully able to give evidence on behalf of the prosecution and defence.
A person is compellebale if they are required to give evidence against their will for both the prosecution and defence.
discuss what section 71 also does away with?
Section 71 does away with the non compellable of the spouse of the defendant, the age and mental/physical disablilities and privilege.
Discuss the exception to eligible and compellable witness in relation to judge and jurors
A person acting as a judge is not eligible.
Unless the judge allows it a juror is also ineligible but could be and then the jury will continue with 11 jurors.
Discuss the exception to eligible and compellable witness in relation to defendant and associated defendants
Defendants and associated defendants are eligible to give evidence but are not compellable.
the exception is that if the defendants are tried separately or the proceedings are determined then they will be compellable.
Define what an associated defendant means?
Is someone whom a prosecution has been initiated related to the same events as the offence for the which the defendant is tried or for related offences to the defendant.
Discuss privilege
Even if a person is eligible and compellable to give evidence they may refuse or be prevented from answering any questions on the grunds of privilege.
Define privilege?
Is the right to refuse to disclose or prevent from disclosing what would otherwise would be admissable.
List the 6 categories of privilege?
- Communication with legal advisor
- preperatory material for proceedings
- communication with ministers of religion
- information obtain by medical professionals.
- Privilege against self incrimination
- Informer privilege.
In relation to privilege with legal advisor, when is communication with a legal advisor deemed to be privilege
Communication with a legal advisor is deemed to be privilege when it is intended to be confidential and that the communication is for the purpose of obtaining or giving legal services and the privilege is vested in the person seeking the legal services
If a person has privilege what information do they have the right to refuse from disclosing?
- The communication
- The information or any information included in the communication
- any opinion based on the communication or information.
Discuss privilege in relation to information obtained by a medical professional.
Someone has privilege if they have consulted a medical professional in relation to a drug dependency or behaviour that may suggest criminal conduct.
the above does not apply if ordered by a judge to submit themselve to a medical profesional or a test, examiniation or any other purpose.
Define an informer
A person who has supplied voluntarily or for reward information to any enforcement agency or representative of a an enforcement agency, concerning the possibility or actual commission of an offence in circumstances they believe their identity will not be disclosed.
And
Informer maybe a memebr of the police who is undercover.
Discuss the general rule about the disclosure of jury deliberation and its exceptions
The general rule is that evidence must not be given about the jurys deliberations which includes anything that was said and done jury the fact finding function.
the only exception to this is if the judge believes that there are circumstnaces are exceptional and that there is a signifficantly compellable reason why the evidence needs to be given.
What is the overriding discretion to confidential information
Basically that under this act that 1 or more of the following is not to be disclosed
- any confidential communication
- any confidential information
Any infomation that may reveal the source of the conficdenial information.
What condsideration will the jedge consider when giving this direction
- The extent of harm it may cause
-the nature of communication and proceedings
Societies interst in protecting the victims privacy in rrelation to certain offences, ie sexual