4 - Testimony

Question 1

Before a person is served with a summons to appear in court, verification must be made as to:

Answer 1

• whether they are allowed to give evidence
• whether they are required to give evidence
• whether they can refuse to give evidence and
• what type of witness they will be

Question 2

What is the definition of associated defendant?

Answer 2

Associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted for:

• an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted
• an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted

Question 3

Are Judges compellable to give evidence?

Answer 3

Judges, in respect of their conduct as a Judge, the Sovereign, Governor-General, and Sovereign or Head o State of a foreign country, are not compellable to give evidence

Question 4

Bank officers - are they compellable to produce banking records?

Answer 4

Where the bank is not a party to the proceeding, no bank officer is compellable to produce banking records if the contents can be proven under the ‘business records’ exception to the hearsay rule (s19), or to appear as a witness to prove the matters recorded in the bank records.

Question 5

Define privilege

Answer 5

A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible

Question 6

Types of privilege

Answer 6

• Communications with legal advisors
• Solicitors trust accounts
• Preparatory materials for proceedings
• Settlement negotiations or mediation
• Communications with ministers of religion
• Information obtained by medical practitioners and clinical psychologists
• privilege against self incrimination
• informer privilege

Question 7

Explain privilege in criminal proceedings for information obtained by medical practitioners and clinical pyschologists

Answer 7

This section

• applies to a person who consults or is examined by a medical practitioner or a clinical pyschologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct but,
• 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 8

Claiming privilege against self incrimination in court proceedings

Answer 8

a) If in a court proceeding it appears to the Judge that a party or witness may have grounds to claim a privilege against self incrimination in respect of specific information required to be provided by that person, the Judge must satisfy himself or herself that the person is aware of the privilege and its effect
b) A person who claims a privilege against self incrimination in a court proceeding must offer sufficient evidence to enable the Judge to assess whether self-incrimination is reasonably likely if the person provides the required information

Question 9

Definition of informers

Answer 9

(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 10

Protection of journalists sources

Answer 10

Where a journalist promises an informant not to disclose the informants identity, neither the journalist nor his or her employer is compellable to answer any question, or produce any document, that would disclose the identity of the informant or enable that identity to be discovered

Question 11

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…

Answer 11

• perjury
• false oaths
• false statements or declarations
• treason

Question 12

Corroboration is not defined in the Act. It is independant…

Answer 12

evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged

Question 13

Corroboration in relation to children complainants

Answer 13

(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.