Testimony

Question 1

Eligibility and Compellability

Legislation

(1) In a civil or criminal proceeding…….

Answer 1

S71 Evidence Act 2006

(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.
(2) Subsection (1) is subject to sections 72 to 75

Question 2

Exceptions to S71 (Eligibility and Compellability)

Judges, Jurors and Counsel

Of note only

Answer 2

S72 Evidence Act 2006

Of note

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.

Question 3

Exceptions to S71 (Eligibility and Compellability)

Legislation

Defendant not compellable

and when an associated defendant is compellable

Answer 3

S73 Evidence Act 2006

(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.

Question 4

Associated Defendant

Definition

Answer 4

S73 Evidence Act 2006

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 (s73(4)(b)).

Question 5

When a proceeding has been determined

Legislation

Answer 5

S73 Evidence Act 2006

(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the proceeding has been stayed or, in a summary proceeding, the information against the associated defendant has been withdrawn or dismissed; or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.

Question 6

Privilege

Definition

Answer 6

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

Question 7

Types of Privilege

Answer 7

• Communications with legal advisors – S54
• Solicitors’ trust accounts – S55
• Preparatory materials for proceedings – S56
• Settlement negotiations or mediation – S57
• Communications with ministers of religion – S58
• Information obtained by medical practitioners and clinical psychologists – S59.
• Privilege against self-incrimination – S60
• Informer privilege – S64.

Question 8

Privilege

For communication with legal advisor to be privileged, they must be:

Answer 8

1. Communication must be intended to be confidential.
2. Communication must be made for the purposes of obtaining or giving legal services.
3. The privilege is vested in the person seeking or recieving the legal services.
4. Does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence.
5. That it was intended to be confidential. Even if it was inadvertently overheard by others.

Question 9

Privilege

Preparatory materials for proceedings

Answer 9

1. The privilege applies to a communication or information made, received, compiled, or prepared for the primary purpose of preparing for a proceeding or an apprehended proceeding.
2. A person has privilege if they are, or on reasonable grounds contemplate becoming, a party to the proceeding or apprehended proceeding.
3. Privilege can be in respect of - party, any other person, legal advisor.
4. Communication will still be protected if they were undertaken by an “authorised representative” of the privilege holder or his or her legal advisor.
5. Documents which are in themselves not privileged becomes so when “compiled”. This is because the compilation may disclose tactics planned for the proceeding.

Question 10

Information obtained by medical practitioners and clinical psychologists

Legislation

Applies to a person who…..

Answer 10

S59 Evidence Act 2006

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;

Of note

It will not attach to statements made or information obtained during medical or psychological treatment for conditions that result from a person’s unlawful conduct, or are the by-product of criminal behaviour (for example, when seeking treatment for a wound, the person discloses that the injury was received during the course of criminal conduct).

Question 11

Drug dependency

Legislation

Defintion

Answer 11

S59 Evidence Act 2006

Means the state of periodic or chronic intoxication produced by the repeated consumption, smoking, or other use of a controlled drug detrimental to the user, and involving a compulsive desire to continue consuming, smoking, or otherwise using the drug or a tendency to increase the dose of the drug.

Question 12

Privilege against Self Incrimination

Legislation - Definition

Answer 12

S4 Evidence Act 2006

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

Of note

This will apply not only to information directly admitting criminal acts, but also to matters forming links in the chain of proving such acts.

Question 13

Privilege Self Incrimination

Legislation - S60 Evidence Act 2006

Applies if a person is (apart from this section) required to provide specific information—

Answer 13

S60 Evidence Act 2006

(i) in the course of a proceeding; or
(ii) by a person exercising a statutory power or duty; or
(iii) 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; and

(b) the information would, if so provided, be likely to incriminate the person under New Zealand law for an offence punishable by a fine or imprisonment.

Question 14

Informer Privilege

Legislation

(1) An informer has a privilege in respect of……..

And what is an informer

(2) A person is an informer for the purposes of this section if the person -

Answer 14

S64 Evidence Act 2006

(1) An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.

(2) A person is an informer for the purposes of this section if the person -
(a) has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed;

Of note

and
(b) is not called as a witness by the prosecution to give evidence relating to that information.

(3) An informer may be a member of the police working undercover.

Question 15

Informer Privilege may be disallowed

Must and May be disallowed

Answer 15

Must be disallowed by the judge where there is a prima facie case that the information was given for a dishonest purpose, or to enable or aid anyone to commit, or plan to commit, an offence.

May be disallowed where the judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence.

Question 16

Confidentiality

When can a judge allow evidence about jury deliberations

When the judge is……

And must weigh up……..

Answer 16

Is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given.

must weigh up:
• the public interest in protecting the confidentiality of jury deliberations generally, and
• the public interest in ensuring that justice is done in those proceedings.

Of note

The general rule is that evidence must not be given about the deliberations of a jury, which includes everything that was said or done during the time that the jury was performing its fact-finding function. This rule promotes the finality of verdicts, and permits unencumbered discussion during deliberations.

However, evidence that did not form part of the jury deliberations can be given about issues connected with the jury, such as evidence about the competence and capacity of a juror; or knowledge gained by, or conduct of, a juror that may disqualify the juror. This may include, for example, a juror who conducts his or her own inquiries.

Question 17

Confidentiality

Protection of journalists’ sources

Legislation

Where a journalist…….

Answer 17

S68 Evidence Act 2006

Where a journalist promises an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question, or produce any document, that would disclose the identity of the informant or enable that identity to be discovered.

Question 18

Confidentiality

Protection of journalists’ sources

When a judge may order protection will not apply

When the judge is……..

Answer 18

Satisfied by a party to the proceeding that the public interest in the disclosure of the identity of the informant outweighs:
• any likely adverse effect of the disclosure on the informant or any other person, and
• the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

Question 19

Overriding discretion as to confidential information

Legislation

Allows the judge to……

Answer 19

S69 Evidence Act 2006

Allows the judge to prevent disclosure of confidential information after weighing up various factors to determine if the public interest justifies protection of the material.

Of note

The focus of the section is on confidentiality, and does not require any special relationship to be shown. Section 69 permits a judge to protect confidentiality even where the person to whom the confidence was imparted does not wish to preserve the confidence. A judge can give a direction under s69 on the judge’s own initiative or on the application of an “interested person”.

Question 20

Corroboration

Legislation

When Corroboration is needed

Answer 20

S121 Evidence Act 2006

(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).

Question 21

Child Complainants

Legislation

Section 125(1) prohibits a corroboration warning in cases involving child complainants where the warning would not have been given had the complainant been an adult.

(1) In a criminal proceeding tried with a jury in which the complainant is a child at the time when the proceeding commences, the judge must not…….

Answer 21

S125 Evidence Act 2006

The Judge must not give any warning to the jury about the absence of corroboration of the evidence of the complainant, if the Judge would not have given that kind of a warning had the complainant been an adult.

Question 22

Who is not compellable to give evidence

Answer 22

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.

Question 23

Waiving Privilege

Answer 23

Privilege may be waived at any time by the person who is entitled to rely on it, but this does not necessarily mean that privilege has been waived for all purposes. Waiver ends the privilege holder’s rights over the material.

Despite a waiver, under s52, an “interested person” may still
apply for an order that the privileged material remains inadmissible.

Question 24

Privilege

Communications with ministers of religion

Section 58 Evidence Act 2006

Answer 24

(1) A person has a privilege in respect of any communication between that person and a minister of religion if the communication was -

(a) made in confidence to or by the minister in the minister’s capacity as a minister of religion; AND
(b) made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.

(2) A person is a minister of religion who has a status within a church or other religious or spiritual community that requires or calls for that person -

(a) to receive confidential communication of the kind described in subsection (1); AND
(b) to respond with religious or spiritual advice, benefit, or comfort.

Question 25

Corroboration

Definition

Answer 25

“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.

Question 26

Before a person is served with a summons to appear in Court, verification must be made to:

Answer 26

• 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 are