Testimony Flashcards
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 eligible and complellable
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.
Explain the compellability of a Judge, juror, or counsel in a proceeding.
Under 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.
Expalin the compellability of a defendant in a criminal proceeding
(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.
Who is an asscoiated defendant?
An “associated defendant” is someone against whom a prosecution has been initiated for an offence arising out of the “same events” as the offence for which the defendant is being tried (s73(4)(a)), or “that relates to, or is connected with,” the offence for which the defendant is being tried
If the associated defendant is not a co-defendant, and is being “tried separately” from the defendant, or where the proceeding against the associated defendant has been “determined” (as defined in s73(3)), then he or she is compellable for both the Crown and the defence.
Who is not compellable to give evidence under s74?
Under 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.
When are bank officers not compellable
Under s75, where the bank is not a party to the proceeding, 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 appear as a witness to prove the matters recorded in the bank records.
Define 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.
What can priviledge arise from?
- the contents of the evidence,
- the class of the evidence
- or because of the nature of a particular relationship.
What types of privileges are outlined in the Evdience Act?
- 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.
What are some considerations for legal prioviledge?
- 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 or receiving the legal services.
Who does s59 (Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists) apply to?
(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 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.
What is the rational behind s59
The rationale behind s59 is to encourage drug addicts and people with disorders resulting in criminal behaviour to obtain assistance and communicate candidly with those from whom they seek help. It can be invoked by any person involved in a criminal proceeding, such as a witness called to testify for the Crown.
What is corroboration?
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.
The evidence on which the prosecution relies must be corroborated with respect to which offences?
(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).
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.
