Testimony

Question 1

Before a person is served with a summons to appear in court, verification must be made as to?

Answer 1

• 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.

Question 2

• S71 - Eligibility and Compellability

Answer 2

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.

S71 abolishes common law tests of competence for children under 12 years of age and for people with a mental disability. It does away with the principle of non-compellability for the spouse of a defendant in a criminal case.

In relation to the hearsay rules, section 16 of the Evidence Act operates to make a person unavailable as a witness if he or she is “unfit to be a witness because of age or physical or mental condition”. However, such people may still be compellable.

Question 3

Witnesses can be excused from testifying or answering certain questions

Answer 3

Witnesses who are otherwise compellable under the Act, can nonetheless be excused by a judge from testifying in criminal proceedings for “just cause” (s165 of the Criminal Procedure Act 2011). These provisions take precedence over s71.

Question 4

S72 - Judges, Jurors, Counsel

Answer 4

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. A defendant who acts as his or her own counsel will not need judicial permission to testify.

Question 5

• S73 - Defendants and associated defendants

Answer 5

Sets out a basic rule of non-compellability. A defendant facing a criminal trial is an eligible but not a compellable witness for either the prosecution or the defence in that proceeding, so a defendant may give evidence but does not have to.

Question 6

Associated Defendant

Answer 6

If the “associated defendant” is actually a co-defendant at the defendant’s trial, the ordinary rule of non-compellability will apply. 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”, then he or she is compellable for both the Crown and the defence.

Question 7

S74 - Not Compellable to Give Evidence

Answer 7

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 8

S75 - Bank Officers

Answer 8

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.

Question 9

Privilege Explained

Answer 9

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 content, class of evidence, or the nature of a relationship.

Particular public interest underlying the claim must be a significant one, and one which outweighs the interests of justice in having all the relevant evidence before the court. The most important interest in this respect is the preservation of important social relationships which depend for their effectiveness on confidentiality.

Question 10

• Types of Privilege

Answer 10

• 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.
• privilege against self-incrimination – section 60
• informer privilege – section 64.

Note that there is no longer marital privilege

Question 11

Waiving Privilege

Answer 11

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. This reflects the fact that sometimes someone other than the privilege holder wants to prevent privileged material being given in evidence.

Question 12

• S54 - Legal Professional Privilege

Answer 12

Any communication between a person and his or her legal adviser for the purposes of seeking or obtaining professional legal services, is privileged.

In R v Derby Magistrates’ Court - “more than an ordinary rule of evidence … it is a fundamental condition on which the administration of justice as a whole rests.”

B v Auckland District Law Society - a lawyer must be able to give a client an absolute and unqualified assurance that what they reveal will not be disclosed without their consent.

Question 13

Communications with legal advisers

Answer 13

Circumstances in which such legal privilege may be claimed:
1. The communication must be intended to be confidential.
2. The communication must be made for the purposes of obtaining or giving legal services.
3. The privilege is vested in the person seeking or receiving the legal
services.
4. The privilege 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. the fact that the conversation was inadvertently overheard by others does not necessarily abrogate the privilege, even if no precautions to preserve confidentiality were taken.

Question 14

Preparatory Materials for Proceedings

Answer 14

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 a privilege if they are, or on reasonable grounds contemplate becoming, a party to the proceeding or apprehended proceeding.
3. The privilege can be in respect of:
   - a communication between the party and any other person
   - a communication between the party’s legal adviser and any other
   person
   - information compiled or prepared by the party or the party’s legal adviser
   - information compiled or prepared at the request of the party, or the
   party’s legal adviser, by any other person.
4. Communications will still be protected if they were actually undertaken by an “authorised representative” of the privilege holder or his or her legal adviser.
5. Documents which are in themselves not privileged become so when
   “compiled”. This is because the compilation may disclose tactics planned for the litigation.

Question 15

S58 - Communications With Ministers of Religion

Answer 15

Covers religious and spiritual communications, whether or not they involve atonement for sin, and is regardless of whether they are made within a structured religious community. It focuses on advice, benefit or comfort of a “spiritual” nature, but does not extend to communities that do not depend on the belief in some god, divine force or other spiritual basis for life.

“minister of religion” is defined by looking to the religious or spiritual community to determine who plays a pastoral role in that community.

Question 16

• S59 - Privilege medical practitioners and clinical psychologists

Answer 16

Limited privilege protecting information obtained by medical practitioners and clinical psychologists. The privilege applies to disclosures made by the patient to the medical practitioner (including a psychiatrist) or clinical psychologist and their staff, but not the reverse.

Disclosures made to a practitioner’s representative will be covered by the privilege, but the person must make the disclosure personally.

Privilege will not apply if the interaction between the individual and a health professional, whether it be for an “examination, test, or … any other purpose”, was “required by an order of a judge, or by some other lawful authority” (s59(1)(b)).

Question 17

• S60 - Privilege against self-incrimination

Answer 17

“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”. “likely” held as confining the privilege to circumstances where the potential for incrimination is “real and appreciable”.

One person cannot claim the privilege against self-incrimination on behalf of another. The privilege can only be asserted by natural persons and not on behalf of a body corporate.

A defendant cannot assert the privilege when giving evidence about the
matter for which the defendant is being tried. If a person on trial for a
criminal act chooses to testify in his or her defence, privilege can only be asserted when the information sought poses a risk of conviction for a different offence to that being tried.

Question 18

• S64 - Informers

Answer 18

Provides a privilege that protects of the identities of police informers and undercover officers. It extends to information likely to disclose that identity.

The section defines an “informer” as someone who 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.

The status of being an informer, and therefore the privilege, does not apply if the person is called as a witness by the prosecution to give evidence relating to the information given.

Question 19

S64 - Disallowed Privilege

Answer 19

The privilege under s64 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. Further, it 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 20

S68-70 - Confidentiality

Answer 20

Sections 68-70 allow for the weighing of public interests by the judge when deciding whether to protect the confidentiality of communications.

While privileges also protect confidentiality there is little room for a judge to deny protection granted by a privilege where he or she considers that some other public interest outweighs the public interest in protecting the privilege.

Question 21

Jury Deliberations

Answer 21

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.

In addition, evidence may be given about the deliberations of a jury if the judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given.

In deciding whether to allow the evidence, the judge 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.

Question 22

S68 - Protection of journalists’ sources

Answer 22

Section 68 provides that, 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.

A High Court judge may order that the protection will not apply if he or she is 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 on the informant or any other person, of the
disclosure, 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 23

• S69 - Overriding discretion as to confidential information

Answer 23

(1) A direction under this section is a direction that any 1 or more of the following not be disclosed in a proceeding:
(a) a confidential communication:
(b) any confidential information:
(c) any information that would or might reveal a confidential source of
information.

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.

Question 24

• S121 - Corroboration

Answer 24

(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).

“Corroboration” 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.

Unsupported evidence of one witness is insufficient to support a conviction of the above offences. In these instances, corroboration is required as a matter of law. In general, one witness’s testimony, unsupported by any other evidence, will suffice to prove a case where the court is satisfied that it is reliable and accurate and provides proof to the required standard.

Question 25

S122

Answer 25

If the judge is of the opinion that uncorroborated evidence may be
unreliable, he or she may warn the jury of the need for caution, notwithstanding the general provision in s121(2).

Question 26

• S125 - Judicial directions about children’s evidence

Answer 26

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.