Testimony Flashcards
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
When is a witness eligible and compellable to give evidence:
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.
Once a witness has entered the witness box and been sworn, they are under a compellable obligation to answer all questions put to them.
S71 EA06 - Eligibility and compellability generally
In a civil or criminal proceeding -
- any person is eligible to give evidence; and
- a person who is eligible to give evidence is compellable to give that evidence
S73 EA06 - 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.
EXTRA
(3) a proceeding has been determined for the purposes of (2) if -
a) the proceeding has been stayed or, in summary proceeding, the information against the associated defendant has been withdrawn or dismissed; or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.
What are examples of privileges where a person cannot be compelled to give certain evidence to a court proceeding?
A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
- Communications with legal advisors
- Communications with ministers of religion
- Solicitors’ trust accounts
- Preparatory materials for proceedings
- Settlement negotiations or mediation
- Information obtained by medical practitioners and clinical psychologists
- Privilege against self-incrimination
- Informer privilege
Limited privilege protecting information obtained by medical practitioners and clinical psychologists is allowed for under s59 EA06.
To whom does this apply to and to whom does this not apply to under s59(1) EA06?
Applies to a person who consults or is examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.
Does not apply to a person who has been required by an order of a Judge, or by other lawful authority, to submit themselves to the medical practitioner or clinical psychologist for any examination, test, or for any other purpose.
What is required for communications with a legal adviser to be privileged?
- the communication must be intended to be confidential.
- the communication must be made for the purposes of obtaining or giving legal services.
- the privilege is vested in the person seeking or receiving the legal services.
- the privilege does not extend to communication made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence.
What are the privileges in regard to preparing for a proceeding?
- the privilege applies to a communication of information made, received, compiled, or prepared for the primary purpose of preparing for a proceeding or an apprehended proceeding.
- a person has a privilege if they are, or on reasonable grounds contemplate becoming, a party to the proceeding or apprehended proceeding.
What is the meaning of self-incrimination under s4 EA06?
The provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence.
When is privilege granted in relation to privilege against self-incrimination (s60 EA06)? PSP
(1) This section applies if -
(a) a person is (apart from this section) required to provide specific information -
(i) in the course of a proceeding; or
(ii) by a person exercising a statutory power or duty; or
(iii) by a police officer or other person holding a public office in the course of an investigation into a criminal offence or possible criminal offence; and
(b) the information would, if so provided, be likely to incriminate the person under NZ law for an offence punishable by a fine or imprisonment.
Under s121 EA06 it is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated except with respect to the offences of:
- Perjury
- False oath
- False statement or declaration
- Treason
An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply. State these two situations (s73(2) EA06):
(2) an associates defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless -
a) the associates defendant is being tried separately from the defendant; or
b) the proceeding against the associated defendant has been determined.
What is an associated defendant (s73(4) EA06)?
(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.
