Testimony Flashcards
when is a witness eligible and when are they compellable
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(1)
any person is eligible to give evidence and a person who is eligible to give evidence is compellable to give that evidence
compellability of a spouse
a spouse in no longer compellable to give evidence
judges, jurors and counsel
s72 - judge in a proceeding is not eligible to give evidence in that proceeding.
Unless given permission by a judge, a person acting as a juror or counsel in a proceedingis ineligible to give evidence in that proceeding.
If juror is given permission they would be discharged from the jury and trial proceeds with 11 jurors.
who is not compellable to give evidence
- the defendant in proceeding
- an associated defendant is not compellable to give evidence against a defendant
- judges in respect of their conduct as a judge, the sovereign, governor general, and sovereign head of state of a foreign country
- bank officers where the bank is not a party to the proceedings 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 prove the matters recorded in the bank records
s73(2) an associated defendant is not compellable to give evidence for or against a defendant unless what
a) associated defendant is being tried separately from the defendant; or
b) proceedings against the associated defendant has been determined
what is the meaning of an associated defendant
s73(4) associated defendant means:
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; or
(b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.
privilege in relation to giving of evidence is what
privilege in relation to giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible
categories of privilege
- communication 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
when may privilege be waived
privilege may be waived at any time by the person entitled to rely on it, does not necessarily mean that privilege has been waived for all purposes. Despite a waiver under s25, an interested person may still apply for an order that the privileged material remains inadmissible
when would communication with a legal adviser be privileged
- the communication must be intended to be confidential
- the communication must be made for the purposes of obtaining or giving legal services
communications with legal advisers further
- communications must be intended to be confidential
- comms must be made for purpose of obtaining/giving legal services
- privilege is vested in the person seeking or receiving the legal services. If that person waives privilege judge may still order evidence of communication not to be given
- privilege does not extend to communications made for any dishonest purpose or to enable or aid anyone to commit an offence
- if communication was intended to be confidential, the fact that it is inadvertently over heard by others does not abrogate the privilege, even if no precautions were taken to preserve confidentiality
what is required under s58 for communications with ministers of religion to be protected as privilege
- must be made in confidence and within ministers capacity as minister of religion
- made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.
s59 of EA 2006 Privilege with regards to medical practitioner and clinical psychologist
s59
(1) This section -
(a) 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
when does privilege not apply with regards to communications with medical practitioner or clinical psychologists
s59(1)(b) 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.
