Testimony Flashcards
A witness is eligible if
they are lawfully able to give evidence on behalf of both prosecution and defence.
A witness is compellable if
they can be required to give evidence against their will for both prosecution and defence.
What is the rule beind 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.
Can a judge given evidence in the proceeding
No
Can a member of the jury give evidence
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.
Is a defendant compellable
No, A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding.
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
(a) the associated defendant is being tried separately from the defendant; or
(b) the proceeding against the associated defendant has been determined
Define associated defendant,
, 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.
A privilege in relation to the giving of evidence is:
Define privilege
the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible
List some of the privileges
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
Who and when can privilege be waived
Privilege may be waived at any time by the person who is entitled to rely on it,
The Act defines “self-incrimination” as
“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”
In regards to Privilege against self-incrimination when would this privilege apply
- 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.
Can one person claim the privilege against self-incrimination on behalf of another
No
What offences need to be corroborated
(a) perjury
(b) false oaths
(c) false statements or declarations
(d) treason
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
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.
What is the general position in regards to eligibility and compellability
A general proposition is that all people are eligible to give evidence, and all who are eligible are compellable to give that evidence.
A privilege in relation to the giving of evidence is
is the right to refuse to disclose, or to prevent disclosure, of evidence that would otherwise be admissible.
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
still be able to refuse or be prevented from answering particular questions on the grounds of privilege.
When would a communication with a legal adviser be ‘privileged’?
(a) The communication must be intended to be confidential.
(b) The communication must be made for the purposes of obtaining or giving legal services.
An associated defendant is not compellable to give evidence for or against a defendant unless two situations apply. State these two situations
(a) The associated defendant is being tried separately from the defendant; or
(b) The proceeding against the associated defendant has been determined.
What is the meaning of self-incrimination under s 4 of the Evidence Act 2006?
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).
What types of offences are considered by law to require corroboration
− perjury
− treason
- false statement
flase oath
When is privilege disallowed
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.
