Eligibility and Compellability

Question 1

Eligible witness

Answer 1

A witness is eligible if they are lawfully able to give evidence on behalf of both prosecution and defence

Question 2

Compellable witness

Answer 2

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

Question 3

Section 71(1), Evidence Act 2006
(Eligibility and compellability)

Answer 3

(a) any person who is eligible to give evidence, and
(b) a person who is eligible to give evidence is compellable to give that evidence

Question 4

Section 165, Criminal Procedure Act 2011
(Compellable witnesses excused)

Answer 4

Compellable witnesses can be excused by a Judge from testifying in a criminal proceeding for “just cause”

Question 5

Section 73(1), Evidence Act 2006
(Compellability of defendants in a criminal proceeding)

Answer 5

A defendant is not a compellable witness for the prosecution or the defence in that proceeding

Question 6

Section 73(2), Evidence Act 2006
(Compellability of defendants - associated defendants)

Answer 6

An associated defendant is not compellable to give evidence for or against a defendant, unless -

(a) the associated defendant is being tried separately from the defendant, or
(b) the proceeding against the associated defendant has been determined

Question 7

Section 73(3), Evidence Act 2006
(Compellability of defendants - meaning of determined)

Answer 7

A proceeding has been determined if -

(a) the proceeding has been stayed (halted) or, in a summary proceeding, the information against the defendant has been withdrawn or dismissed, or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, the offence has been sentenced or otherwise dealt with for that offence

Question 8

Section 73(4), Evidence Act 2006
(Compellability of defendants - associated defendant)

Answer 8

Associated defendant 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,
(b) an offence that relates to or is connected with the offence for which the defendant is being tried