Testimony

Question 1

A witness is eligible if

Answer 1

they are lawfully able to give evidence on behalf of both prosecution and defence.

Question 2

A witness is compellable if

Answer 2

they can be required to give evidence against their will for both prosecution and defence.

Question 3

What is the rule beind eligibility and compellability generally

Answer 3

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.

Question 4

Can a judge given evidence in the proceeding

Answer 4

No

Question 5

Can a member of the jury give evidence

Answer 5

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.

Question 6

Is a defendant compellable

Answer 6

No, A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding.

Question 7

An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless— When is a associated defendant compellable

Answer 7

(a) the associated defendant is being tried separately from the defendant; or
(b) the proceeding against the associated defendant has been determined

Question 8

Define associated defendant,

Answer 8

, 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.

Question 9

A privilege in relation to the giving of evidence is:

Define privilege

Answer 9

the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible

Question 10

List some of the privileges

Answer 10

communications with legal advisors 
• solicitors’ trust accounts
• preparatory materials for proceedings 
• settlement negotiations or mediation 
• communications with ministers of religion 
• information obtained by medical practitioners and clinical psychologists 
• privilege against self-incrimination 
• informer privilege

Question 11

Who and when can privilege be waived

Answer 11

Privilege may be waived at any time by the person who is entitled to rely on it,

Question 12

The Act defines “self-incrimination” as

Answer 12

“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”

Question 13

In regards to Privilege against self-incrimination when would this privilege apply

Answer 13

• in the course of a proceeding
• by a person exercising a statutory power or duty, or
• 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.

Question 14

Can one person claim the privilege against self-incrimination on behalf of another

Answer 14

No

Question 15

What offences need to be corroborated

Answer 15

(a) perjury
(b) false oaths
(c) false statements or declarations
(d) treason

Question 16

In a criminal proceeding tried with a jury in which the complainant is a child at the time when the proceeding commences, the Judge must

Answer 16

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 a warning had the complainant been an adult.

Question 17

What is the general position in regards to eligibility and compellability

Answer 17

A general proposition is that all people are eligible to give evidence, and all who are eligible are compellable to give that evidence.

Question 18

A privilege in relation to the giving of evidence is

Answer 18

is the right to refuse to disclose, or to prevent disclosure, of evidence that would otherwise be admissible.

Question 19

When a witness is eligible to give evidence and chooses or is compelled to do so, when could they refuse or be prevented on answering some questions

Answer 19

still be able to refuse or be prevented from answering particular questions on the grounds of privilege.

Question 20

When would a communication with a legal adviser be ‘privileged’?

Answer 20

(a) The communication must be intended to be confidential.

(b) The communication must be made for the purposes of obtaining or giving legal services.

Question 21

An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply. State these two situations

Answer 21

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

Question 22

What is the meaning of self-incrimination under s 4 of the Evidence Act 2006?

Answer 22

Self-incrimination is “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” (s 4).

Question 23

What types of offences are considered by law to require corroboration

Answer 23

− perjury
− treason
- false statement
flase oath

Question 24

When is privilege disallowed

Answer 24

Privilege must be disallowed by the judge where there is a prima facie case that the information was given for dishonest purposes or to enable or aid anyone to commit or plan to commit an offence.

Question 25

Is the spouse of the defendant non-compellable

Answer 25

No

Question 26

Define informer privilege

Answer 26

a privilege in respect of information that would disclose or is likely to disclose the informers identity

Question 27

When is a privilege disallowed

Answer 27

where there is a prima facie case that the information was given for a dishonest purpose or to enable anyone to commit or plan to commit an offence

Question 28

Define corroboration

Answer 28

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