Testimony

Question 1

Before a person is summoned to appear in court as a witness, what four things must be verified?

Answer 1

1) Whether they are allowed to give evidence
2) Whether they are required to give evidence
3) Whether they can refuse to give evidence
4) What type of witness they will be

Question 2

Are all people eligible and compellable to give evidence?

Answer 2

A witness is eligible if they are lawfully able to give evidence on behalf of prosecution and defence.

A witness is compellable if they can be required to give evidence against their will for both prosecution and defence.

If a witness has entered the witness box and been sworn, they are under a compellable obligation to answer all questions put to them.

Question 3

What makes a witness eligible?

Answer 3

A witness is eligible if they are lawfully able to give evidence on behalf of prosecution and defence.

Question 4

What makes a witness compellable?

Answer 4

A witness is compellable if they can be required to give evidence against their will for both prosecution and defence.

Question 5

What does s71(1) say about eligibility and compellability?

Answer 5

In a civil or criminal proceeding, any person is eligible to give evidence and that person who is eligible to give evidence is compellable to give that evidence.

Question 6

Compellability of defendants and associated defendants in criminal proceedings

Answer 6

a) A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding.
b) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless:
i) The associated defendant is being tried separately from the defendant
ii) The proceeding against the associated defendant has been determined

Question 7

An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply, state the two situations (s73, Evidence Act 2006)

Answer 7

a) The associated defendant is being tried separately from the defendant
b) The proceeding against the defendant has been determined.

Question 8

s73(4) - Associated Defendant

Answer 8

a) Associated defendant, in relation to a defendant, means a person against whom a prosecution has been instituted for:
i) An offence that arose in relation to the same events as the offence for which the defendant is being prosecuted
ii) An offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.

Question 9

Explain what is meant by privilege and list five examples.

Answer 9

Privilege is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible, and includes:

a) Communication with legal advisors
b) Communication with minister of religion
c) Solicitor’s trust account
d) Settlement negotiations
e) Information obtained by medical practitioners and clinical psychologists.
f) Preparatory materials for proceedings

Question 10

What is the meaning of self-incrimination under s4 of the Evidence Act 2006

Answer 10

The provision of a person of information that could reasonably lead to or increase the likelihood of the prosecution of that person for a criminal offence.

Question 11

Limited privilege protecting information obtained by medical practitioners and clinical psychologists is allowed for under s59 of the Evidence Act 2006. To whom does this apply and to whom does this not apply under s59(1)?

Answer 11

Limited privilege applies to a person who consults or is examined by a medical practitioner or clinical psychologist for drug dependency, or other condition or behaviour that may manifest itself in criminal conduct.

It does not apply to a person who has been required by an order of a Judge to submit herself or himself to the medical practitioner or clinical psychologist for any examination.

Question 12

When would communication with a legal adviser be privileged?

Answer 12

a) The communication must be intended to be confidential.
b) The communication must be made for the purposes of obtaining or giving legal advice.

Question 13

Explain the concept of privilege against self-incrimination

Answer 13

This section applies if a person is required to provide specific information in the course of a proceeding or by a person exercising a statutory power of duty which would, if provided, be likely to incriminate the person under NZ law for an offence punishable by a fine or imprisonment.

Question 14

Define the term Corroboration

Answer 14

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.

Question 15

Outline the distinction between hostile and unfavourable witnesses

… or … if a witness has memory loss can they be called hostile?

Answer 15

Witnesses who simply fail to come up to brief may be unfavourable to the party who called the witness, but they are not necessarily hostile.

Witnesses who suffer memory loss or provide evidence inconsistent with another statement does not necessarily justify finding the witness to be hostile.

Question 16

Section 85 Evidence Act 2006 enables a Judge to disallow, or direct that a witness is not obliged to answer certain types of questions. List four such types of questions.

… or … What are four types of questions that the Judge can state are unacceptable … or… List four examples of unacceptable questions.

Answer 16

Improper, unfair, misleading, needlesly repetitive, or expressed in a complicated language.

Question 17

What are the limits and conditions for re-examination of a witness?

Answer 17

After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purposes of clarifying or qualifying any issue raised during cross examination, but may not ask questions on any other matter, except with the permission of the Judge.

Question 18

List four occassions where leave may be given to the prosecution to allow evidence in rebuttal.

or … What are the four reasons that evidence in rebuttal can be called?

Answer 18

1) Relates to a purely formal matter
2) Relates to a matter arising out of the conduct of defence, the relevance of which could not reasonably have been foreseen
3) Was not available or admissible before the prosecution’s case was closed
4) Is required to be admitted in the interest of justice for any other reason

Question 19

There are a number of circumstances in which a Judge may direct the jury that evidence should be scrutinised with particular care, or should be given less weight. Provide examples of such circumstances.

… or … Judicial warnings given to Jury

Answer 19

a) Judicial warning that evidence may be unreliable
b) Judicial directions about certain ways of giving evidence
c) Judicial warning about lies
d) Judicial directions about children’s evidence
e) Judicial warning about identification evidence
f) Delayed complaints or failure to complain in sexual cases.

Question 20

s122(2) - Evidence that may be unreliable

The Judge may consider giving a warning whenever the following evidence is given; or … s122(2) types of evidence that may be unreliable, list 4… or … s122 contains judicial directions about evidence which may be unreliable. Under s122(2) the Judge must consider whether to give a warning whenver certain types of evidence are given. List those types of evidence.

Answer 20

a) Hearsay evidence
b) Evidence of a statement by the defendant, if that’s the only evidence implicating the defendant
c) Evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant
d) Evidence of a statement by the defendant to another person made while both in prison or police station or another place of detention

Question 21

Section 125(1) - Does a Judge have to give a warning where a child is a witness, if not why not?

Answer 21

No, a Judge is not required to give a corroboration warning in cases involving child complainants where the warning would not have been given had the complaianant been an adult.

Question 22

Section 125 provides that evidence given by children in criminal cases should, in general, be treated in the same way as evidence given by adults. What does this section therefore prohibit?

Answer 22

The Judge must not instruct the jury that there is a need to scrutinise the evidence of children generally with special care and suggest to the jury that children generally have tendencies to invent or distort.

This section therefore prohibits a corroboration warning involving child complainants where the warning would not have been given to an adult.

Question 23

If you wish to refer to your notebook, you must:

Answer 23

a) Ask the court’s permission
b) Introduce the material properly
c) Jury and defence are entitled to view officer notebook so seal off other entries
d) Remember that you are only allowed to refresh your memory, you cannot read the whole entry

Question 24

While carrying out duties as O/C witness for a jury trial, the parents of an 11-year-old witness question you as to the court procedure for the child when making an oath or affirmation, discuss the advice you would provide them

Answer 24

a) Must be informed by the judge of the importance of telling the truth and not telling lies.
b) Must after being given the information, make a promise to tell the truth before giving evidence

Question 25

What is the purpose of cross-examination?

Answer 25

a) To draw out information supporting the case of the party conducting the cross-examination
b) To challenge the accuracy of the testimony given in evidence in chief.

Question 26

Can a witness refresh their memory before court? Explain.

Answer 26

Witnesses may, before they give evidence in court, refresh their memory by reference to statements they have made months before or they may check their recollection of events with the officer who interviewed them and so forth.

Question 27

If a witness wishes to consult a document while giving evidence, the following conditions must be satisfied … or … Can a witness refresh their memory in court? … or … What three conditions must be satisfied for a witness who wishes to consult a document in court?

Answer 27

a) The leave of the Judge must be obtained.
b) The document must be shown to all parties in the proceeding.
c) The document needs to have been made by a witness at a time his or her memory was fresh.

Question 28

What are the three exceptions to the general prohibition on previous consistent statement (s35 Evidence Act 2006)?

Answer 28

a) The statement responds to a challenge to the witness’ veracity or accuracy based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
b) Forms an integral part of the events before the court.
c) Consists of mere fact that a complaint has been made in a criminal case.

Question 29

Types of questions that can be asked once a witness has been declared hostile.

Answer 29

If a witness has been declared hostile, the witness may be asked questions in the manner of cross-examination to the extent that the Judge considers necessary. These may include:

a) Asking leading questions
b) Asking questions designed to probe the accuracy of memory and perception
c) Asking questions as to prior inconsistent statements
d) Other challenges to veracity, including evidence from other witnesses

Question 30

What behaviours might a hostile witness exhibit in court?

Answer 30

a) Exhibiting a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably have knowledge.
b) Giving evidence that is inconsistent with a statement made by that witness in a manner that exhibits an intention to be unhelpful to the party who called the witness.
c) Refusing to answer questions or deliberately withholds evidence.

Question 31

List two types of offences in which the unsupported evidence of one witness is insufficient to support a conviction.

Answer 31

Perjury, false oath, false statement, treason

Question 32

Under s121, it is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated except with respect to which offences?

Answer 32

Perjury, false oath, false statement or declaration, treason