Testimony Flashcards
Testimony
The prosecution is not required to call as a witness every person who is able to give evidence on the matter before the court. However, under s113(3) of the Criminal Procedure Act 2011, if the court is of the opinion that a witness who has not been called should be, it may require the prosecution to call that witness.
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.
Eligibility and compellability
All people are eligible and 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.
Section 71 provides that:
71 Eligibility and compellability generally
(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
As a general proposition then, all people are eligible and compellable to give evidence.
The Evidence Act 2006 eliminates any objections to a witness’s testimony based on age or mental disability.
While witnesses (depending on their age) must still take an oath or make a promise to tell the truth under s77, s71 abolishes common law tests of competence for children under 12 years of age and for people with a mental disability.
Section 71 does away with the principle of non-compellability for the spouse of a defendant in a criminal case.
Some witnesses lack the capacity to give rational and coherent testimony. Such testimony may be excluded as irrelevant under s7, or under the general exclusion in s8 of the Evidence Act 2006 (see chapter 2). 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.
Witnesses can be excused from testifying or answering certain questions
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.
Where a witness is eligible and compellable, and is not excused from
testifying, he or she may nevertheless be able to be excused from answering certain questions because of a privilege, as discussed below.
Exceptions to general proposition
There are some exceptions in ss 72-75 Evidence Act 2006 to the general proposition that all people are eligible and compellable.
Judges, jurors and counsel
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
Defendants and associated defendants
Section 73 is concerned with the compellability of defendants and associated defendants. It is not concerned with eligibility of those persons should they wish to testify voluntarily, although such evidence may attract a warning under s122 Evidence Act 2006 if it is from an associated defendant. Section 73 provides that:
73 Compellability of defendants and associated defendants in criminal proceedings
(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.
(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.
(4) In this section, associated defendant, 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;
(b) an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.
Section 73 therefore 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.
Defendants and associated defendants (continued)
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)).
The two provisions were intended to encompass not only actual codefendants in a criminal trial, but also people charged with linked offending. For example, where a defendant is charged with burglary, then both an accomplice to the burglary itself, and someone charged with receiving goods stolen in the burglary, would also be associated defendants under s73.
If the “associated defendant” is actually a co-defendant at the defendant’s trial, the ordinary rule of non-compellability will apply. (See the prohibition in s73(1) against a “defendant in a criminal proceeding” being a compellable witness for either “the prosecution or the defence” in that case.)
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.
Not compellable to give evidence
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.
Bank officers
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
