Testimony Flashcards
Eligibility and compellability generally s71
Understanding
s71
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
No compellable
Under s74, judges, in respect of their conduct as a judge, the Sovereign, Gov General, and Head of State of a foreign country are not compellable to give evidence
*Compellability of defendants and associated defendants
s73
57
A defendant is not a compellable witness for the prosecution or defence
An associated defendant is not compellable to give evidence against a defendant unless -
- they are being tried separately
- proceeding against associated def has been determined
Privilege
The right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
What is the effect of privilege
Information is withheld from the court which might have be of assistance in determining the case.
Types of Privilege
Evidence Act 2006
- communications with legal advisors - s54
- solicitors trust accounts - s55
- preparatory materials for proceedings - s56
- settlement negotiations or mediation - s 57
- communications with ministers of religion - s58
- information obtained by medical practitioners and clinical psychologists - s59
Other privileges
- privilege against self-incrimination s 60
* informer privilege - s64
Effect of privileges
S53 - refers s54-59
Right to refuse to disclose in a proceeding
*communications with; and
*the information, including any information contained in the communication; and
*any opinion formed by a person that is based on the communication or information
Corroboration s121
121
Corroboration
(1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies on to be corroborated, except with respect to the offences of-
(a) perjury (s108 CA61); and
(b) false oaths (s110 CA 61); and
(c) false statements or declarations (s111 CA 61); and
(d) treason (s73 CA61)
(2) Subject to subsection (1) and section 122, if in a criminal proceeding there is a jury, it is not necessary for the Judge to -
(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroborration
Corroboration
Is not defined in the Act.
It is independent evidence that tends to confirm or support some fact of which the other evidence is given and implicates the defendant in the crime charged.
Independent evidence confirm/supporting a fact
In general, one witness’s testimony, unsupported by other evidence, will suffice to prove a case where the court is satisfied that it is reliable and accurate and provides proof to the required standard
Summary
- A general proposition is that all people are eligible to give evidence, and all who are eligible are compellable to give that evidence.
- The spouse of a defendant is no longer regarded as non compellable to give evidence under the provisions of s71
- When a witness is eligible to give evidence and chooses or is compelled to do so, he or she may still be able to refuse or be prevented from answering particular questions on the grounds of privilege.
- A privilege in relations to the giving of evidence is the right to refuse to disclose, or to prevent disclosure of evidence that would otherwise be admissible
- In a criminal proceeding, corroboration is not necessary for the evidence on which the prosecution relies, except for a few specified offences
*Self incrimination
the provision of a person of information that could reasonably lead to or increase the likelihood on the prosecution of that person
*What types of offences are considered by law to require corroboration?
- perjury and related offences s108, 110, 11 CA61
* treason s73 CA61
