Testimony Flashcards
What is an eligible witness?
Lawfully able to give evidence on behalf of both prosecution and defence
What is a compellable witness?
If they can be required to give evidence against their will for both prosecution and defence
Can a spouse give evidence against the defendant?
Yes - s71 is any person can give evidence
What happens if juror is given permission to give evidence
Evidence given then be discharged and trial continues with 11
What are the compellability rules of co-defendants and associated defendants in giving evidence?
Co-Defendant is not a compellable witness. Meaning they don’t have to give evidence if they don’t want to.
Associated defendant is being tried separately then they can be compelled to give evidence for the crown or defence
What happens to compellability if an associated defendant is a codefendant at the defendants trial?
Ordinary rule of non compellability will apply but if the associated defendant is not a co defendant then they can be compelled to give evidence for the prosecution or defence
What is an associated defendant?
Where the offending is related to the same offence another defendant is being tried. EG. Defendant being tried for burgs and then associated defendant is tried for receiving such stolen property.
Who is not compellable to give evidence
Judge
Head of state of another country
Governor general
What is privilege?
Right to refuse to disclose or to prevent disclosure to what would otherwise be admissible.
The public interest underlying the claim must be significant and outweighs the interests of the court
Three reasons how does privilege evidence arise?
Contents of the evidence
Class of the evidence
Nature of the relationship
Types of privilege
Comms with legal advisors
Solicitors trust accounts
Settlement negotiations or mediation
Communications with ministers of religion
Information obtained by medical practitioners
Informer privilege
Under s53 a person who has privilege under s54-59 has a right to refuse to disclose in a proceeding what 3 things?
- the communication
- the information, including any info in the communication
- any opinion formed by a person based off the comms and info
What must you enquire if claim of privilege is made?
Enquire if the comms, info, document or opinion is within the scope of the privilege as it can differ. Eg. Some protect info and other protect comms
What happens if a person received privileged material that didn’t have the appropriate authorisation?
Judge can order that communication, info, document or opinion not to be disclosed
Can privilege be waived by the person entitled to it?
Yes however an ‘interested person’ may still apply for an order so that the privileged material is not admissible
What did B v Auckland District Law Society discuss?
They discussed the matter of privilege, that legal privilege was not to be balanced against competing public interests. A lawyer must give their client absolute assurance that what they say won’t be disclosed.
Communication with legal advisors
s54
- comms must be intended to be confidential
- comms must be made for the purposes of obtaining or giving legal services
- privilege is on the person seeking the advice
- privilege does not extend to anything made for dishonest purposes or enabling/aiding someone to commit or plan an offence
- If the privileged info is overheard the judge can still ensure such info or comms is not to be disclosed
Preparatory material for proceedings
s56
- privilege applies to comms or info made, received, compiled or prepared for the purpose of preparing for a proceeding
- a person has privilege if they contemplate becoming a party to the proceeding or apprehended proceeding
- the privilege can be communication between party and legal or any other person ; info prepared by the party or legal ; info compiled at the request of the party or legal or any other person
- comms still protected if undertaken by someone else that has been authorised
- documents can become privileged once they are ‘compiled’
Communications with ministers of religion
s58
- must be aiming to obtain spiritual advice, benefit or comfort
- must be initiated by that persons own belief and seek out the minister themselves
- minister or religion can be extended to someone who plays a pastoral role in the community
- does not extend to people who do not depend on the belief in that religion
Information obtained by medical practitioners and clinical psychologists
s59
- disclosures only relate to disclosures the patient makes to the medical practitioner
- Patients representative disclosing to practitioner is NOT privilege
- Medical appointments made by the Judge or authorising person is NOT privilege
- Not privilege info if info is passed onto medical team whilst being treated for conditions sustained during unlawful activity or by product of criminal activity
What is the rational behind s59 (info obtained by medical professional and clinical psychologists)
Used to encourage drug addicts and people with disorders resulting in criminal behaviour to obtain assistance to seek help
What is privilege against self incrimination
s60
The provision by a person of information that could reasonable lead to or increase the likelihood of, the prosecution of that person for a criminal offence
What does the word ‘likely’ mean in s60
Likely means ‘real and appreciable’ and not ‘merely imaginary and fanciful’
Can one person claim privilege against self incrimination on someone else?
No, but only a lawyer can on behalf of their client
When does privilege apply in s60
When a person is required to provide specific information:
- in proceedings
- by a person exercising a stat power or duty
- by a police officer or other person holding a public office in course of an investigation into an offence or potential offence
Can a body corporate claim privilege?
No
Can a Defendant claim privilege whilst giving evidence of something they have been charged on?
Only if the information sought it poses a risk of conviction for a different offence
What is an informer
s64
Supplied gratuitously or for reward information to an enforcement agency or representative or an enforcement agency on possible or actual commission of an offence
Expects ID will not be disclosed and not called upon as a witness
Could be an officer working UC
What two reasons privilege disallowed in s64
Where is a prima facie that the info was given for a dishonest purpose or to enable or aid anyone to commit or plan to commit an offence
Judge decides that info is necessary to be disclosed to enable defendant to lodge an effective defence
What does s68 - 70 allow a judge to do
Gives the judge discretion to see if public interest outweighs to privilege to protection confidentially of communication
Discuss protection of journalists sources
Journalists and their employer are not compellable to give information that may reveal their sources. However a judge may say otherwise if the public interest outweighs the:
- adverse effect on the information or any other person
- public interest in the communication of facts and opinion to the public by the news
What is s69 - overriding discretion
The judge may protect judge the confidentiality of a person even where the person do not wish to preserve their confidence
What three categories must not be disclosed under s69 (overriding discretion)
- confidential comms
- confidential info
- any info that would or might reveal a confidential source of info
What offences must have corroborating evidence?
- perjury
- false oaths
- false statements/declarations
- treason
What is corroboration? (s121)
Independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged
Does the judge need to warn the jury about relying on uncorroborated evidence?
No
Should a judge warn the jury about a child complainant and uncorroborated evidence?
No, where the warning would not have been given if it was an adult anyways
