Testimony Flashcards
Before a person is served with a summons to appear in court, what needs to be verified first
- 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.
S71 EA 06 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
Discuss Witnesses being 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
Discuss testimonies given by Judge, Jurors and Council.
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
S73 EA 06 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the proceeding has been stayed or, in a summary proceeding, the information against the associated defendant has been withdrawn or dismissed; or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 58 Evidence
(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
Define Associated defendant
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)).
Discuss compelled to give evidence as an associated defendant
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.
Who is NOT compelled 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.
Discuss Bank officers and compellability.
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
