4 - Testimony

Question 1

Define eligible?

Answer 1

Lawfully able to give evidence on behalf of both prosecution and defence

Question 2

Define compellable?

Answer 2

A witness is compellable if they can be required to give evidence against their will for both prosecution and defence.

Once a witness has entered the box and been sworn. They are under compellable obligation to answer all questions put to them.

Question 3

Section 71:

Outline general eligibility and compellability:

Answer 3

71 Eligibility and compellability generally
(1)
In a civil or criminal proceeding,—
(a)
any person is eligible to give evidence; and
(b)
a person who is eligible to give evidence is compellable to give that evidence.
(2)
Subsection (1) is subject to sections 72 to 75.

Question 4

Is a spouse compellable to give evidence against their other half?

Answer 4

Yes - S71 does away with the non-compellability

Question 5

Exceptions to general proposition that all people are eligible and compellable:

Answer 5

S72 - judges, jurors and counsel

S73- defendants and associate defendants

S74 - judges on respect of their conduct as a judge, Sovereign or Head of state

S75 - Ban Officer - if proven under s19 business record

Question 6

Section 73 -Compellability of defendants and associated defendants in criminal proceedings

Answer 6

Compellability of defendants and associated defendants in criminal proceedings
(1)
A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding.
(2)
An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless—
(a)
the associated defendant is being tried separately from the defendant; or
(b)
the proceeding against the associated defendant has been determined.
(3)
A proceeding has been determined for the purposes of subsection (2) if—
(a)
the proceeding has been stayed or the charge against the associated defendant has been withdrawn or dismissed; or
(b)
the associated defendant has been acquitted of the offence; or
(c)
the associated defendant, having pleaded guilty to, or having been found guilty of, the offence, has been sentenced or otherwise dealt with for that offence.
(4)
In this section, associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted for—
(a)
an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted; or
(b)
an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.

Question 7

Basis rule of Defendants non-compellability?

Answer 7

A defendant facing criminal trial is an eligible but no a compellable witness for either the prosecution or defence in that proceeding. They may give evidence but do not have to.

Question 8

Outline the types of privilege:

Answer 8

S54 - communication with legal advisors
S55 - Solicitors trust accounts
S56 -preparatory material for proceedings
S57 - settlement negotiations or mediation
S58 - communication with minister of religion
S59 - information obtained by medical practitioners and clinical psychologists

Other:
S60 privilege against self-incrimination
S64 informer privilege

Question 9

Define Privilege in relation to giving evidence

Answer 9

The right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.

Question 10

Effect and protection of privilege:

Answer 10

53 Effect and protection of privilege
(1)
A person who has a privilege conferred by any of sections 54 to 59 in respect of a communication or any information has the right to refuse to disclose in a proceeding—
(a)
the communication; and
(b)
the information, including any information contained in the communication; and
(c)
any opinion formed by a person that is based on the communication or information.
(2)
A person who has a privilege conferred by section 60 or 64 in respect of information has the right to refuse to disclose in a proceeding the information.
(3)
A person who has a privilege conferred by any of sections 54 to 59 and 64 in respect of a communication, information, opinion, or document may require that the communication, information, opinion, or document not be disclosed in a proceeding—
(a)
by the person to whom the communication is made or the information is given, or by whom the opinion is given or the information or document is prepared or compiled; or
(b)
by any other person who has come into possession of it with the authority of the person who has the privilege, in confidence and for purposes related to the circumstances that have given rise to the privilege.
(4)
If a communication, information, opinion, or document, in respect of which a person has a privilege conferred by any of sections 54 to 59 and 64, is in the possession of a person other than a person referred to in subsection (3), a Judge may, on the Judge’s own initiative or on the application of the person who has the privilege, order that the communication, information, opinion, or document not be disclosed in a proceeding.
(5)
This Act does not affect the general law governing legal professional privilege, so far as it applies to the determination of claims to that privilege that are made neither in the course of, nor for the purpose of, a proceeding.

Question 11

S54 - Communication with legal advisors - 5 key points

Answer 11

1 - communication intended to be confidential

2- communication made for the purpose or obtaining or giving legal services. Includes authorised reps

3- privilege is vested in the person seeking or receiving legal services. Even if waived - Judge may still order privilege

4 - does not extend to communication for any dishonest purpose or to enable or aid anyone to commit or plan a crime

5- provided it was intended to be confidential, the fact the conversation was inadvertently overheard does not abort the privilege. Possessing material without authority is 53(4)

Question 12

Preparatory materials for proceedings -S56 5 key points

Answer 12

1 - the privilege applies to a communication or information made, received, compiled, or prepared for the primary purpose of preparing for proceeding or an apprehended proceeding

2 - a person has privilege if they are, or unreasonable grounds contemplate becoming, a party to the proceeding or apprehended proceeding

3 - the privilege can be in respect of:
-A communication between the party and another person
-A communication between the parties, legal advisor and any other person
-Information compiled or prepared by the party or the parties legal advisor
-Information compiled or prepared at the request of the party for the parties legal advisor, by any other person

4 - communication will be protected if they were actually undertaken by an authorised representative of the privilege holder or his or her legal advisor

5 - documents which are and themselves not privilege become so when compiled. This is because the compilation may disclose tactics planned for the litigation.

Question 13

Communication with ministers of religion:

Answer 13

Section 58

Privilege for communications with ministers of religion
(1)
A person has a privilege in respect of any communication between that person and a minister of religion if the communication was—
(a)
made in confidence to or by the minister in the minister’s capacity as a minister of religion; and
(b)
made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.
(2)
A person is a minister of religion for the purposes of this section if the person has a status within a church or other religious or spiritual community that requires or calls for that person—
(a)
to receive confidential communications of the kind described in subsection (1); and
(b)
to respond with religious or spiritual advice, benefit, or comfort.

Question 14

Section 59 - Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists

Answer 14

Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists

(1)
This section—
(a)
applies to a person who consults or is examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct; but
(b)
does not apply in the case of a person who has been required by an order of a Judge, or by other lawful authority, to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or for any other purpose.

Question 15

Definition - clinical psychologist:

Answer 15

clinical psychologist means a health practitioner—
(a)
who is, or is deemed to be, registered with the Psychologists Board continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of psychology; and
(b)
who is by his or her scope of practice permitted to diagnose and treat persons suffering from mental and emotional problems

Question 16

Definition - drug dependency:

Answer 16

drug dependency means the state of periodic or chronic intoxication produced by the repeated consumption, smoking, or other use of a controlled drug (as defined in section 2(1) of the Misuse of Drugs Act 1975) detrimental to the user, and involving a compulsive desire to continue consuming, smoking, or otherwise using the drug or a tendency to increase the dose of the drug

Question 17

When will s59 (medical privilege) not apply?

Answer 17

It will not attach to statements made or information obtained during medical or psychological treatment for conditions that result from a persons unlawful conduct or are byproduct of criminal behaviour for example seeking treatment for a wound , and disclose it was an injury received during the course of criminal conduct

Question 18

Self incrimination definition

Answer 18

The provision by a person of information that could reasonably lead to or increase the likelihood of the prosecution of that person for a criminal offence

Question 19

Privilege against self incrimination

Answer 19

60 Privilege against self-incrimination
(1)
This section applies if—
(a)
a person is (apart from this section) required to provide specific information—
(i)
in the course of a proceeding; or
(ii)
by a person exercising a statutory power or duty; or
(iii)
by a Police officer or other person holding a public office in the course of an investigation into a criminal offence or possible criminal offence; and
(b)
the information would, if so provided, be likely to incriminate the person under New Zealand law for an offence punishable by a fine or imprisonment.
(2)
The person—
(a)
has a privilege in respect of the information and cannot be required to provide it; and
(b)
cannot be prosecuted or penalised for refusing or failing to provide the information, whether or not the person claimed the privilege when the person refused or failed to provide the information.
(3)
Subsection (2) has effect—
(a)
unless an enactment removes the privilege against self-incrimination either expressly or by necessary implication; and
(b)
to the extent that an enactment does not expressly or by necessary implication remove the privilege against self-incrimination.
(4)
Subsection (2) does not enable a claim of privilege to be made—
(a)
on behalf of a body corporate; or
(b)
on behalf of any person other than the person required to provide the information (except by a legal adviser on behalf of a client who is so required); or
(c)
by a defendant in a criminal proceeding when giving evidence about the matter for which the defendant is being tried.

Question 20

Section 60 privilege will apply if:

Answer 20

A person is required to provide specific information which means particularised items of information sort and response to certain questions or request for information:

• And the course of a proceeding
  -By a person exercising a statutory power or duty
  -By a police officer or other person holding a public office in the course of investigation into a criminal offence or possible criminal offence

Question 21

Section 64

Answer 21

Informers
(1)
An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.
(2)
A person is an informer for the purposes of this section if the person—
(a)
has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed; and
(b)
is not called as a witness by the prosecution to give evidence relating to that information.
(3)
An informer may be a member of the Police working undercover.

Question 22

Section 68-Protection of journalists sources where a journalist promises confidentiality.

Answer 22

Protection of journalists sources where a journalist promises confidentiality.

The journalist nor their employer is compellable to answer questions or produce any documents.

HCJ can order that protection will not apply if he or she is satisfied public interest outweighs adverse effect on informer and public interest of access to sources

Question 23

Section 69

Answer 23

Permits the Judge an overriding discretion as to confidential information.

Question 24

Corroboration

Answer 24

121 Corroboration
(1)
It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offences of—
(a)
perjury (section 108 of the Crimes Act 1961); and
(b)
false oaths (section 110 of the Crimes Act 1961); and
(c)
false statements or declarations (section 111 of the Crimes Act 1961); and
(d)
treason (section 73 of the Crimes Act 1961).
(2)
Subject to subsection (1) and section 122, if in a criminal proceeding there is a jury, it is not necessary for the Judge to—
(a)
warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or
(b)
give a direction relating to the absence of corroboration.

Question 25

Section 125 - Child Complainants

Answer 25

Judicial directions about children’s evidence
(1)
In a criminal proceeding tried with a jury in which the complainant is a child at the time when the proceeding commences, the Judge must not give any warning to the jury about the absence of corroboration of the evidence of the complainant if the Judge would not have given that kind of a warning had the complainant been an adult.
(2)
In a proceeding tried with a jury in which a witness is a child, the Judge must not, unless expert evidence is given in that proceeding supporting the giving of the following direction or the making of the following comment:
(a)
instruct the jury that there is a need to scrutinise the evidence of children generally with special care; or
(b)
suggest to the jury that children generally have tendencies to invent or distort.
(3)
This section does not affect any other power of the Judge to warn or inform the jury about children’s evidence exercised in accordance with the requirements of regulations made under section 201.