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
• what type of witness they will be

Question 2

Eligibility and Compellability

Are all people eligible to give evidence on behalf of the prosecution and defence?

Answer 2

Yes they are however they must be lawfully able to give evidence for the parties.

Question 3

Explain compellable?

Answer 3

A witness is compellable if they can be required to give evidence. Once they enter the witness box and been sworn they have a legal obligation to answer all question put to them…section 71.

Question 4

What is section 71?

Answer 4

It relates to Eligibility and Compellability generally:

(1) In a civil or criminal proceedings -
(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

In summary if a person is eligible to give evidence then they are compellable.

Question 5

Can a witness be excused from answering certain questions?

Answer 5

Yes, if a witness is compellable a Judge may still excuse them from testifying for “JUST CAUSE” (Section 165 Criminal Procedure Act 2011) These provisions take precedence over section 71.

In relation to answering certain questions, although they may not be excused from testifying they may be excused from answering certain questions because of a privilege.

Question 6

Section 72 - 75 (Exceptions)

What are the exceptions to the general proposition that all people are eligible and compellable?

Answer 6

Section 73 -

(1) defendant is not compellable to give evidence
(2) an associate defendant is not compellable to give evidence for or against a defendant unless:
(a) the associated defendant is being tried separately or
(b) the proceedings for 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the proceeding has been stayed or, in a summary proceedings, the information against the associated defendant has been withdrawn or dismissed or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) Associated defendant means a person 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
(b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.

Question 7

Section 74 - relates to Not compellable to give evidence

what does this section cover?

Answer 7

• Judges
• the Sovereign Governor General and Sovereign
• Head of State of a Foreign country.

Question 8

What does section 75 relate to?

Answer 8

Bank officers - they are not compellable if the banking records can be proven by business records, exception to the hearsay rule (s19) or to appear as a witness to prove the matters in the records.

Question 9

Privilege

Explain what is meant by privilege?

Answer 9

Even if a person is eligible or chooses OR is compelled to do so, they may still refuse or be prevented from answering on the grounds of PRIVILEGE.

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 10

What are the types of privileges?

Answer 10

Here are the following:

• communication with legal advisors - s54
• solicitors’ trust accounts - s 55
• preparatory material for proceedings - s 56
• settlement negotiations or mediation - s 57
• communications with minister of religion - s 58
• information obtained by medical practitioners and clinical psychologists - section 59

Question 11

What are other privileges besides the ones that are set out from section 54 to 59

Answer 11

Section 60 - information against self-incrimination

Section 64 - informer privilege

Question 12

Section 53 - what does it cover?

Answer 12

Section 53 covers the effect and protection of the privileges outlined from section 54 to 59

Question 13

What is involved in section 53(1) and how does the privilege be applied?

Answer 13

• People with privilege from 54 to 59 have the right to refuse to disclose

(a) any communication and
(b) information and
(c) any opinion formed by a person that is based on the communication or information

Question 14

How does 53(2) apply?

Answer 14

This relates to section 60 to 64, self incrimination, informant information, they have a right to refuse to disclose any information

Question 15

What is detailed in 53(3)?

Answer 15

A person who has a privilege under section 54 to 59 and 64 MAY require that information, communication, document, opinion NOT be disclosed in the proceedings

(a) by a 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.

Question 16

What can a Judge do under section 53(4)?

Answer 16

This section gives the judge discretion and a wide scope to order the information not to be disclosed the information communication opinion or document.

Question 17

Points to remember under section Section 54(1)

Legal adviser

Answer 17

• It must be intended to be confidential
• It must be for the purpose of legal advise between the client and legal advisor
• This priviliege does not extent to dishonest purpose or to enable or aid anyone to commit or plan to commit an offence.

Question 18

Preparatory materials for proceedings - what are some points to remember?

Answer 18

1) the privilege applies to communication or information made, received or compiled for the purpose of a proceedings.
2) A person has a privilege if the are or on reasonable grounds contemplate becoming, a party to the proceedings or apprehended proceedings.
3) the privilege can be in respect of:

• communication between party or any other person
• communication between party’s legal adviser any other person
• information complied or prepared by the party or party’s legal adviser
• information compiled or prepared at the request of the party or party’s legal adviser , by any other person.

Question 19

Communication with a religious minister - what defines a minister? Section 58

Answer 19

(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 minister defines in this section means a person has a status within a church or 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 20

Section 59 -

Answer 20

This 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

does not include a person who has been ordered by a Judge or by other lawful authority to attend to the medical practitioner or clinical psychologist for any examination, test, or for any other purpose. `

Question 21

For section 59 who does the privilege apply to?

Answer 21

It applies to patients that seek medical treatment from a medical practitioner - psychiatrist - clinical psychologist and their staff but not the reverse.

This does extent to information between representatives (workers, helpers staff) and medical practitioners

Question 22

In summary what to the 6 subsection in section 59 relate to?

Answer 22

1 - a person who consults or is examined by a m/p, psychiatrist, clinical psychologist for drug dependency or any other condition -

Does not include a person who has been directed by court or other authority

2 Privilege is given to this person for any comms of information between m/p psyc - clinical psychologist for treatment - to enable care

3 Information obtained through this treatment that may manifest in a criminal proceedings

4 Information consisting of prescription - notes prescription to treat and care for that person - manifest in criminal proceedings

5 Information obtained through a treatment or examination via a person acting in a professional capacitiy

6 Clinical psychologist - deemed to be registered P/B
(b) by his or her scope of practice permitted to diagnose and treat persons suffering, mental an emotional problems.

DRUG DEPENDENCY

Question 23

What people does section 60 apply to?

Answer 23

A person is required to provide specific information -

(a)

(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

Question 24

What is the extent of the privilege under section 60?

Answer 24

Subsection 2 -

has a privilege in respect of the information and cannot be required

AND

cannot be prosecuted or penalised for refusing or failing to provide the inormation whether or not privileged was claimed.

Question 25

Can the privilege be removed?

Answer 25

Subsection 3 - unless and enactment expressly or by implication OR doesn’t remove the privilege

Question 26

When doesn’t a claim of privilege apply to subsection 2

Answer 26

Sub section 4

• on behalf of a body corporate OR
• on behalf of any person other than the person required to provide the information (except by a legal adviser who is required to to do so)
• by the defendant in a criminal proceeding when giving evidence about the matter for which the defendant is being tried.

Question 27

Privilege against self-incrimination - what does section 62 entail?

Answer 27

Section 62

• During the proceeding a Judge seeing that party or witness grounds to claim privilege against self incrimination - The Judge must be satisfied the person is aware of the privilege and its effect.
• The person must offer sufficient evidence to enable to the Judge to assess it is meets self incrimination

Question 28

What section covers informant privilege?

Answer 28

Section 64

Informer has privilege in respect of information that would disclose OR is likely to disclose the informer’s identity.

Question 29

What is an informant?

Answer 29

Section 60 - subsection 2

A person is an informant who has provided, gratuitously or for reward any information to enforcement or rep of enforcement 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

is not called as a witness by the prosecutions in relation to the evidence.

Question 30

Can a police officer be an informant?

Answer 30

Yes, only if they are working as an undercover police officer.

Question 31

When the the informer privilege doesn’t apply?

Answer 31

It doesn’t apply when a person is called as a witness however an undercover police officer may still be protected by virtue under section 108 and 109 EA 2006

Question 32

When can informer privilege be disallowed?

Answer 32

Judge must disallow the privilege when there is a prima facie of the information given for a dishonest purpose or to enable or aid anyone to commit, or plan to commit an offence .

It may also be disallowed by the Judge because the evidence for the information is necessary to enable the defendant to present an effective defence.

Question 33

What sections cover confidentiality?

Answer 33

Sections 68-70

Provides Judicial discretion to protect confidentiality. While privileges protect confidentiality there is little room for a judge to deny protection granted by the privilege where he or she considers that other public interest outweighs the public interests by the Judge when deciding whether to protect the confidentiality of communications. In addition s76 protects the confidentiality of jury deliberations.

Question 34

What privilege applies to Jury deliberations?

Answer 34

It applies to what was said which includes everything in how they preformed their fact-finding function.

Question 35

What circumstances don’t apply to jury privilege?

Answer 35

When evidence did not form part of their jury deliberations can be given about issues connected with the jury - evidence about competence capcity of a juror or knowledge gained by or conduct of a juror that may disqualify the juror - eg juror who conducts his own enqiries.

In exceptional circumstances SUFFICIENT COMPELLING REASON a Judge may make a decision on jury deliberation by weighing up P I in protection the jury deliberation and P I in having justice being served in the proceedings.

Question 36

What applies to Journalists’ sources?

Answer 36

Section 68

Identity of an informant can be protected if they have been promised - Journalist or their supervisor are not compelled to however a HIGH JUDGE can override that if the public interest in the disclosure of the ID of Informant outweighs:

• any likely adverse effect on the informant or any person of the disclosure AND
• the public interest in the communication of facts and opinion public by the news media and accordingly also in the ability of the news media to access sources of facts.
• Nothing stops a journalist or employer is willing to disclose.

Question 37

Section 69 - Overriding discretion as to confidential information - what things can be directed not to be disclosed in a proceeding?

Answer 37

Under subsection 1

any one or ore of the following:

• a confidential communication.
• any confidential information.
• any information that would or might reveal a
  confidential source of information.

Question 38

Section 69 (2)

Answer 38

A judge may give the direction is he considered that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in

(A)PREVENTING HARM to a person by whom about whom or on whose behalf the confidential information was obtrained recorded or prepared or to whom it was communicated OR

(B) preventing HARM to

(i) the particular relationship in the course of which the confidential communication or confiential information was made, obtained, recorded or prepared OR
(ii) relationships that are of the same kind as or of a kind similar to, the relationship referred to in subparagraph (i) or

(C) maintaining activities that contribute to or rely on the free flow of information.

Question 39

What section outlines what a Judge must consider when giving the direction to no disclose confidential information?

Answer 39

Section 69 (3)

Judge must consider

a) the extent of harm that may result
b) nature communication and importance that it is likely in the disclosure in the proceedings
c) the nature of proceedings
d) other or possible other information evidence that may be obtained which can be used
e) availability of means of preventing or restricting public disclosure of the evidence if the evidence is given and
f) sensitivity of the evidence having regard to

TIme lapse of obtaining or compiling

or

the extent to which the information has already been disclosed to others

g) the protection of Victim in particular sexual victims.

Question 40

If confidential information is no privileged under section 69 can a judge still order for it not to be disclosed?

Answer 40

Yest under section 69(5) it allows a Judge to give this direction.

Question 41

Corroboration

What section outlines Corroboration?

What does it mean say about corroboration in this section?

Answer 41

Section 121(1)

Corroboration is not necessary in a criminal proceedings except for the following offences:

• perjury
• false oaths
• false statements
• treason

Question 42

Corroboration

Does a Judge have to warn a jury about uncorroborated evidence?

Answer 42

In relation to 121(2)
(Subject to sub (1) and Section 122 unreliable)

A Judge does not have to warn a jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect OR

give a direction relating to the absence of corroboration.

Question 43

What is the definition of corroboration?

Answer 43

There is no definition in the Act…it is independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant.

Question 44

Section 125(1) what does it outline in relation to warning of corroboration?

Answer 44

A Judge must not give a warning to jury about absence of corroboration of evidence of the complainant if the Judge would not have given that warning had the complainant been an adult.

Question 45

Does the person have to be a child before the proceedings commences, in relation to corroboration warning?

Answer 45

Yes, it stipulates that if the person is a child at the time of the commencement of the proceedings.

Question 46

Progress Test 4

When would a communication with a legal adviser be privileged?

Answer 46

• Communication that is intended to be confidential

- Communication that is purposed to obtain or give legal advice

Question 47

Progress Test 4

An associate defendant is not compellable to give evidence for or against a defendant unless two situations apply. State these two situations?

Answer 47

When they are being tried separately from the defendant

or

The proceedings against the associated defendant has been determined.

Question 48

Progress Test 4

What is the meaning of self-incrimination under section 4 of the Evidence Act ?

Answer 48

Is the provision by a person of information that could reasonable lead to, or increase the likelihood of the prosecution of that person for a criminal offence.

Question 49

Progress Test 4

What types of offences are considered by law to require corroboration?

Answer 49

• Section 121 Evidence Act 2006
• Perjury
• False oaths
• False statement
• Treason