Testimony

Question 1

Before a person is served to give summons to appear, verification must be made as to what 4 things

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

What does S71 say in relation to eligibility and compellability?

Answer 2

Any person eligible to give evidence is compellable to give that evidence

Question 3

What does S71 do in relation to the non compellability of a spouse?

Answer 3

S71 does away with the principal on non compellability for the spouse of a defendant in a criminal case

Question 4

What are the S72 exceptions to compellability?

Answer 4

A person acting as a judge cannot give evidence in a that proceeding

A person acting as a juror or counsel is ineligible to give evidence in that proceeding unless the juror is given permission and he would be discharged from the proceeding as a juror.

A defendant who acts as his own counsel does not need permission to testify

Question 5

Explain S73 In relation to compellability of defendants and co’s

Answer 5

S73
1) A defendant in a criminal proceeding is not compellable as a witness

2) An associated defendant is not compellable to give evidence for or against a defendant. unless
The associated defendant is being tried differently
The proceeding against the associated defendant has been determined.

3) A proceeding has been determined if

• Stay or in a summary proceeding the information has been withdrawn, dismissed, acquitted, pleaded guilty, found guilty, sentenced or otherwise dealt with.
  4) associated defendant means a person who prosecution has been instituted for
• An offence that arose in relation to the same offence as did the other defendant
• An offence that relates to or is connected with which the defendant is being prosecuted

Question 6

What are two examples of associated defendants?

Answer 6

Linked offending eg burgler and receiver
Those who offend together and separately charged

If the associated defendant is actually a co-defendant then the non compellability rule will apply.

If the associated defendant is not a co-defendant and is tried separately and this has been determined, then he is compellable for both the crown and defence.

Question 7

Who does S74 of the EA relate to in terms of compellability?

Answer 7

Judges, governor general, sovereign heads of states are not compellable.

Question 8

Who does S75 of the EA relate to in terms of compellability?

Answer 8

No bank officer is compellable where bank records can be proven through business records.

Question 9

What is privilege?

Answer 9

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 10

Types of privilege? (8)

Answer 10

Communication with legal advisors

Solicitors trust accounts

Preparatory materials for proceedings

Settlement negotiations or mediation

Communication with ministers of religion

Information obtained by medical practioners

Privilege against self incrimination
Informer privilege.

Question 11

Can a person waive Privilege?

Answer 11

May be waved at any time by a person who is entitled to rely on it, but does not mean that it has been waived for all purposes.

A waiver ends the holders rights over the material.

Despite the waiver a interested person may still apply for an order that the material remains inadmissible.

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

Question 12

Discuss legal professional privilege?

Answer 12

S54 EA 06
Lawyers privilege takes primacy over all public interest

Any communication between a person and a legal advisor for the purpose of obtaining services is privileged.

Include communication between person and legal advisor.

Question 13

What things must be satisfied for claiming privilege for communications with a legal advisor?

Answer 13

Must be intended to be confidential
Communication made for the purpose of obtaining or giving legal services. (includes authorized representatives

Privilege is vested in the person seeking or receiving the legal services

The privilege does not extend to communications made for any dishonest purpose.

Provided that it was intended that the communication be confidential the fact that the conversation was inadvertently overheard by others does not necessarily abrogate the privilege even if no precautions were taken.

Question 14

What does privilege in respect of preparatory materials for proceedings apply to?

Answer 14

Applies to a communication made, compiled or prepared for the primary purpose of preparing for a proceeding or an apprehended proceeding.

A person has privilege if they are or on reasonable ground contemplate becoming a party to a proceeding
The privilege can be in respect of
A communication between the party and any other person

A communication between the parties legal adviser and any other person

Information compiled or prepared by the party or the parties legal advisor

Information compiled or prepared at the request of the part or legal advisor

Communication will still be protected if they were actually undertaken by an authorized representative of the privilege holder or legal advisor

Documents which are in themselves not privileged become so when compiled. This is because the compilation may disclose tactics planned for litigation.

Question 15

Discuss privilege between ministers of religion

Answer 15

S58 evidence act
Covers all communication whether or not they involve atonement for sin, and regardless of if theft are made in a religious community

It focuses on advice benefit or comfort of a spiritual nature, and does not extend to communities that do not depend on the belief in some god, divine for or spiritual basis for life.

Where communication is for a dishonest purpose then the judge must disallow the privilege.

Question 16

Could S58 Privilege extend to a Kaumatua?

Answer 16

S58 extends to all communication, including documents, and extends minister of religion to a person who plays a spiritual pastoral role in a community this would extend to certain Kaumatua (elders) in a maori community whose role is to offer spiritual guidance.

Question 17

Does S58 Privilege extend to online communications?

Answer 17

S58 requires that the communication are made in confidence within the ministers capacity as a minister.

S58 requires communication to occur personally between the person and minister, however stuff that does not fall under s58 may be up to discretion of judge.

Question 18

Discuss privilege between medical practioners and psychologists.

Answer 18

Limited privilege protection is given to medical professionals
Privilege applies to disclosures made by the patient to the medical practitoner but not the reverse
Rationale is to encourage drug addicts and people who have disorders which result in criminality to seek help and communicate candidly.

Disclosures made to a practitioners representative will be covered
Will not cover any examination ordered by a judge or lawful authority.

The privilege will not attach to statements made or information obtained during medical treatment for conditions that result from a person unlawful conduct or are the by product of criminal offending. (eg receiving treatment for a wound, and disclosed it was from a burglary.)

Question 19

Discuss privilege against self incrimination?

Answer 19

S60

This privilege will apply when information is sought in response to questions or requests:
In the course of a proceeding
By a person executing statutory power or duty or
By a police officer or other person holding a public office in the course of investigation into a offence

S60(2)a provides that where the privilege applies the holder cannot be compelled to provide information that legal rules would otherwise require him or her to supply.

Question 20

What is Self incrimination?

Answer 20

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

Question 21

When can this S60 privilege be relied upon in terms of likeliness of incrimination?

Answer 21

Circumstance where the potential for incrimination is ‘real and appreciable’ and not merely imaginary and fanciful

Question 22

When will S60 actually apply?

Answer 22

If there is no compulsion to produce the information S60 will not apply

So only when defendant is compelled.

Question 23

Can a body corporate rely on S60 privilege?

Answer 23

This privilege can only be asserted by a person and not on behalf of a body corporate. Does not preclude employees claiming on their own behalf where they may incriminate.

Question 24

Can a defendant choose not to answer questions when on the stand under S60 privilege?

Answer 24

A defendant cannot assert privilege when giving evidence about the matter for which the defendant is being tried. If a person on trial chooses to testify, privilege can only be claimed for different offences not being tried.

Question 25

What defines an informer?

Answer 25

A person who has supplied, gratuitously or for reward information to an enforcement agency, representative, concerning the possible or actual commission of an offence in the circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed.

An informer may be a member of police working UC.

Question 26

What is S64 in relation to privilege and its purpose?

Answer 26

Information that is likely to disclose the identity of a police informer or UC officer.
To encourage reporting of serious crime and to protect those who assist.

Question 27

Can a witness rely on S64 privilege to not give evidence?

Answer 27

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

The effect of the section is to prevent other people from disclosing the privileged info.
If in informer is a UC they still may have their identity protected.

Question 28

When can privilege in respect of S64 be disallowed?

Answer 28

Privilege under S64 may be disallowed by the judge where there is prima facie case that the info was given for dishonest purpose or to enable anyone to commit or plan a offence.

Further is 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 29

Can evidence of jury deliberations be given?

Answer 29

S76
General rule 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.

However evidence that did not form part of the deliberations can be given about issues connected to the jury.

Such as evidence about the competence and capacity of a juror, knowledge gained by or conduct of a juror which may disqualify them.

Question 30

What must a judge consider in obtaining evidence of jury deliberations?

Answer 30

The public interest in protecting the confidentiality of jury deliberations

The public interest in ensuring that justice is done in those proceedings.

Question 31

Is communication with journalists privileged?

Answer 31

S68 Protection of journalists sources

Where a journalist promises anonymity, neither the journalist or his employer is compellable to answer any question or produce any document that would disclose the identity of the informant.

Question 32

Can a judge overrule a journalists sources confidentiality?

Answer 32

A high court judge may order that this does not apply if they are satisfied that the public interest in the disclosure of the identity outweighs

• Any likely adverse effect on the informant or any other person of the disclosure
• The public interest in the communication of facts opinion to the public by the news media and accordingly also in the ability of the news to access sources of facts.

Question 33

Is there an overriding discretion in relation to confidential information before a tribunal?

Answer 33

S69 Overriding discretion:

S69 allows the judge to prevent disclosure of confidential material after weighing up several factors to determine if public interest justifies protection of the material.
The focus is on confidentiality and does not require a special relationship

Question 34

What is Corroboration?

Answer 34

Independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant charged.

Question 35

When is corroboration required?

Answer 35

Corroboration required as a matter of law for perjury, false oaths, false statements and treason.

Question 36

Can a judge give a warning to the jury about acting on the uncorroborated evidence of a child?

Answer 36

S125 Childs evidence
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 warning had the complainant been an adult.

Question 37

Does a judge need to give a warning to the jury about acting on uncorroborated evidence?

Answer 37

Not required to warn under s121 of acting on uncorroborated info, but under s122 a judge may if he is of opinion that it may be unreliable.