Testimony Flashcards
*Before a person is summoned to appear in court, what verification must be made?
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Before a person is served with a summons to appear in court, verification must be made as to:
• 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.
*Explain eligibility and compellability
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A witness is eligible if they are lawfully able to give evidence on behalf of both prosecution and defence. 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 witness box and been sworn, they are under a compellable obligation to answer all questions put to them. S71 provides that:
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.
As a general proposition is that all people are eligible to give evidence, an all who are eligible are compellable to give that evidence.
Section 71 does away with the principle of non-compellability for the spouse of a defendant in a criminal case.
- What can witnesses be excused from answering?
Where a witness is eligible and compellable, and is not excused from testifying, he or she may nevertheless be able to be excused from answering certain questions because of a privilege.
- Are judges, jurors and counsel eligible to give evidence?
s72, a person who is acting as a judge in a proceeding is not eligible to give evidence in that proceeding.
Unless the judge gives permission, a person acting as a juror or counsel in a proceeding is ineligible to give evidence in that proceeding. If the juror is given permission to give evidence, he or she would be discharged from the jury and the trial would proceed with the eleven remaining jurors.
A defendant who acts as his or her own counsel will not need judicial permission to testify.
*Are associated defendants compellable?
What is the definition of associated defendant?
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73 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, in a summary proceeding, 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) 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;
(b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.
*Who is not compellable to give evidence?
s74, judges, in respect of their conduct as a judge, the Sovereign, Governor-General, and Sovereign or Head of State of a foreign country, are not compellable to give evidence.
*Explain privilege
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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. Privileged evidence can arise from the contents of the evidence, the class of the evidence, or because of the nature of a particular relationship.
*What types of privilege are there?
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A number of privileges are outlined in the Evidence Act 2006, including privilege for:
• communications with legal advisors – section 54
• solicitors’ trust accounts – section 55
• preparatory materials for proceedings – section 56
• settlement negotiations or mediation – section 57
• communications with ministers of religion – section 58
• information obtained by medical practitioners and clinical psychologists – section 59.
Other:
• privilege against self-incrimination – section 60
• informer privilege – section 64.
*What are the points about communications with legal advisers in which legal privilege may be claimed?
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- The communication must be intended to be confidential.
- The communication must be made for the purposes of obtaining or giving legal services.
- The privilege is vested in the person seeking/receiving the legal services
- Privilege does not extend to communications made for any dishonest purpose or to enable anyone to commit/plan to commit any offence
- Provided the communication was intended to be confidential, the fact the conversation was overheard by others does not necessarily abrogate the privilege, even if no precautions to preserve confidentiality were taken
- Define self-incrimination
- When does the privilege apply?
- What must the person claiming privilege supply?
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The Act defines “self-incrimination” as “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” (s4).
The privilege will apply if a person is “required to provide specific information”, which means particularised items of information sought in response to certain questions or requests for information (s60(1)):
• in the course of a proceeding
• by a person exercising a statutory power or duty, or
• 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.
62 Claiming privilege against self-incrimination in court proceedings
(2) 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.
- It is not necessary for evidence to be corroborated, except with respect to what offences?
- Define corroboration
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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.
“Corroboration” is not defined 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 in the crime charged.
*What circumstances is corroboration required as a matter of law?
There are two types of offence – perjury and related offences (ss 108, 110 and 111 Crimes Act) and treason (s73 Crimes Act) – in which the unsupported evidence of one witness is insufficient to support a conviction. In these instances, corroboration is required as a matter of law.
