evidence part 3 - testimony

Question 1

Before a summons must verify

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 of a witness

Answer 2

any person is is eligible to give evidence in civil and criminal proceeding
any eligible witness is also compellable to give evidence

a person can be excluded if their age/mental health means they lack capacity to give rational and coherent answers. They may still be compellable.

A judge can excuse a witness because of just cause.

Question 3

witness exceptions

Answer 3

Judges
Jurors or counsel unless a judge gives permission
defendant is not compellable by the prosecution
associated defendant unless they are being tried separately or the proceeding is already determined.
Sovereign, governor general and head of state are also exempt.

Question 4

privilege

Answer 4

right to refuse to dispose or to prevent disclosure of what would otherwise be admissible

Question 5

legal privilege

Answer 5

Any communication between a person and legal advisor for the purpose of seeking/obtaining professional legal services is privilege

Question 6

legal privilege rules

Answer 6

communication must be intended to be confiendetial
communication made for purpose of seeking/obtaining legal services
privilege is vested in the person seeking legal services
privilege does not intend to communication for any dishonest purpose/planning of an offence
if confidential conversation is overheard it does not necessarily remove the privilege, judge can order it not to be disclosed

Question 7

Prosecution privilege and examples

Answer 7

Other privilege material is preparatory material used for proceedings which includes
communication for primary purpose of preparing for a proceeding
a person contemplating become a party to proceeding

Can include
communication between the party and any other person
communication between parties legal advisor and any other person
information made by the party or the party’s legal adviser
information made at the request of the party of their legal adviser
documents that have been complied, because it may disclose litigation tactics

Question 8

Religious privilege - what is it and who qualifiees

Answer 8

Communication with ministers of religion is privilege if made in confidence for the purpose of obtaining spiritual advice, benefit or comfort
The communication must be made to a person of status with a church or other religious/spiritual community. Includes kaumatuas.

Question 9

medical practicioners privilege - what is it and why

Answer 9

medical practitioners and clinical psychologists who consults/examines for drug dependancy or other conduct/behaviour that results in criminal behaviour is privilege (unless ordered by judge).
Privilege extends to communication that enables examination, treatment or care.
purpose is to encourage drug addicts / people with disorders that results in criminal behaviours to get help.
This section includes witnesses.

Question 10

Self-incrimination

Answer 10

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

Question 11

Can a defendant assert privilige during evidence

Answer 11

A defendant cannot assert privilege when giving evidence and being cross examined.

Question 12

when does self incrimination privilege apply

Answer 12

Privilege will apply if a person is required to provide specific information in response to certain questions or requests for information. Includes
Includes questions in the course of a proceeding, questions by a person exercising a statutory power or duty, or a Police officer or other person holding a public officer in the course of an investigation into a criminal offence or possible criminal offence.

Question 13

informers privilege

Answer 13

Informers have privilege to information that would disclose or likely disclose their identity.

Undercovers can be informers. If called as a witness privilege does not apply.

Question 14

Judges role

Answer 14

Decide all questions are admissible
Determine that evidence is fit to be submitted to a jury
To explain and enforce general principles of law that apply to points in issue
Instruct the jury on the rules of weight of evidence

Question 15

Reasons hearsay is not reliable

Answer 15

Cannot be cross examined regards contents and how statement was made
Juries cannot evaluate without being able to see demeanor of persons
Danger is misinterpreting thing said

Question 16

Cross examination purpose

Answer 16

To elicit information supporting the case of the party conducting the cross
To challenge accuracy of testimony in evidence in cheif

Question 17

Judge to take into account for witnesses

Answer 17

Age or maturity of witness
Physical, intellectual, psychological, ir psychiatric impairment
Linguistic or cultural background, religious beliefs
Nature of proceeding