Testimony

Question 1

Before Summonsing a witness to appear in court…

Answer 1

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.

Question 2

Eligible and Compellable

Answer 2

s71

(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

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. Once a witness has entered the witness box and been sworn, they are under a compellable obligation to answer all questions put to them.

Question 3

Witnesses can be excused from testifying or answering certain questions

Answer 3

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.

Question 4

Judges, jurors and counsel exemptions to s71

Answer 4

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.

Question 5

Defendants and associated defendants Compellability

Answer 5

s73

(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
(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.

Question 6

Not compellable to give evidence

Answer 6

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.

Question 7

Bank Officers

Answer 7

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.

Question 8

Privilege Explained

Answer 8

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. Privileged evidence can arise from the contents of the evidence, the class of the evidence, or because of the nature of a particular relationship.

Since the effect of a claim of privilege is that information is withheld from the court which might be of assistance in determining the case, the particular public interest underlying the claim must be a significant one, and one which outweighs the interests of justice in having all the relevant evidence before the court. The most important interest in this respect is the preservation of important social relationships which depend for their effectiveness on confidentiality.

Question 9

Types of Privilege

Answer 9

• communications with legal advisors – section 54
• solicitors’ trust accounts – section 55
• preparatory materials for proceedings – section 56
• settlement negotiations or mediation – section 57
• communications with ministers of religion – section 58
• information obtained by medical practitioners and clinical psychologists – section 59.
• privilege against self-incrimination – section 60
• informer privilege – section 64.

Question 10

Effect and protection of privileges Legislation

Answer 10

s53

(1) A person who has a privilege conferred by any of sections 54 to 59 in respect of a communication or any information has the right to refuse to disclose in a proceeding—
(a) the communication; and
(b) the information, including any information contained in the communication; and
(c) any opinion formed by a person that is based on the communication or information.
(2) A person who has a privilege conferred by section 60 or 64 in respect of information has the right to refuse to disclose in a proceeding the information.
(3) A person who has a privilege conferred by any of sections 54 to 59 and 64 in respect of a communication, information, opinion, or document may require that the communication, information, opinion, or document not be disclosed in a proceeding—
(a) by the person to whom the communication is made or the information is given, or by whom the opinion is given or the information or document is prepared or compiled; or
(b) by any other person who has come into possession of it with the authority of the person who has the privilege, in confidence and for purposes related to the circumstances that have given rise to the privilege.
(4) If a communication, information, opinion, or document, in respect of which a person has a privilege conferred by any of sections 54 to 59 and 64, is in the possession of a person other than a person referred to in subsection (3), a Judge may, on the Judge’s own initiative or on the application of the person who has the privilege, order that the communication, information, opinion, or document not be disclosed in a proceeding.
(5) This Act does not affect the general law governing legal professional privilege, so far as it applies to the determination of claims to that privilege that are made neither in the course of, nor for the purpose of, a proceeding.

Question 11

Waiving privilege

Answer 11

Privilege may be waived at any time by the person who is entitled to rely on it, but this does not necessarily mean that privilege has been waived for all purposes. Waiver ends the privilege holder’s rights over the material, but despite a waiver, under s52, an “interested person” may still apply for an order that the privileged material remains inadmissible.

Question 12

Communications with legal advisers

Answer 12

1. The communication must be intended to be confidential.
2. The communication must be made for the purposes of obtaining or giving legal services. Communications that would be privileged if carried out directly between client and legal adviser will remain privileged if carried out between the “authorised representatives” of either or both of these parties, if those communications were made for the purpose of obtaining legal advice or could be said to be part of communication between client and solicitor.
3. The privilege is vested in the person seeking or receiving the legal services. However, under s52(1), where the person waives the privilege, the judge may still order that evidence of the communication must not be given, either on his or her own initiative, or on the application of an interested person other than the person who has the privilege.
4. The privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence.
5. Provided that it was intended that the communication be confidential, the fact that the conversation was inadvertently overheard by others does not necessarily abrogate the privilege, even if no precautions to preserve confidentiality were taken. The protection of confidentiality where a person possesses information or communications without authority of the privilege is possible under s53(4), whereby the judge may order that the information or communication not be disclosed.

Question 13

Preparatory materials for proceedings

Answer 13

1. The privilege applies to a communication or information made, received, compiled, or prepared for the primary purpose of preparing for a proceeding or an apprehended proceeding.
2. A person has a privilege if they are, or on reasonable grounds contemplate becoming, a party to the proceeding or apprehended proceeding.
3. The privilege can be in respect of:
   • a communication between the party and any other person
   • a communication between the party’s legal adviser and any other person
   • information compiled or prepared by the party or the party’s legal adviser
   • information compiled or prepared at the request of the party, or the party’s legal adviser, by any other person.
4. Communications will still be protected if they were actually undertaken by an “authorised representative” of the privilege holder or his or her legal adviser.
5. Documents which are in themselves not privileged become so when “compiled”. This is because the compilation may disclose tactics planned for the litigation.

Question 14

Privilege for communications with ministers of religion

Answer 14

s58

(1) A person has a privilege in respect of any communication between that person and a minister of religion if the communication was—
(a) made in confidence to or by the minister in the minister’s capacity as a minister of religion; and
(b) made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.
(2) A person is a minister of religion for the purposes of this section if the person has a status within a church or other religious or spiritual community that requires or calls for that person—
(a) to receive confidential communications of the kind described in subsection (1); and
(b) to respond with religious or spiritual advice, benefit, or comfort.

Section 58 also extends to all communication, including “a communication … contained in a document”.

Where the communication is for a dishonest purpose or for the purpose of enabling or aiding an offence to be committed, the judge must disallow the privilege.

Question 15

Information obtained by medical practitioners and clinical psychologists (criminal proceedings)

Answer 15

s59

s59

(1) This section—
(a) 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; but
(b) does not apply in the case of a person who has been required by an order of a Judge, or by other lawful authority, to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or for any other purpose.
(2) A person has a privilege in a criminal proceeding in respect of any communication made by the person to a medical practitioner or clinical psychologist that the person believes is necessary to enable the medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.
(3) A person has a privilege in a criminal proceeding in respect of information obtained by a medical practitioner or clinical psychologist as a result of consulting with or examining the person to enable the medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.
(4) A person has a privilege in a criminal proceeding in respect of information consisting of a prescription, or notes of a prescription, for treatment prescribed by a medical practitioner or clinical psychologist as a result of consulting with or examining the person to enable the medical practitioner or clinical psychologist to treat or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.
(5) A reference in this section to a communication to or information obtained by a medical practitioner or a clinical psychologist is to be taken to include a reference to a communication to or information obtained by a person acting in a professional capacity on behalf of a medical practitioner or clinical psychologist in the course of the examination or treatment of, or care for, the person by that medical practitioner or clinical psychologist.

Question 16

Definition of Clinical psychologist

Answer 16

s59(6)

Clinical psychologist means a health practitioner—

(a) who is, or is deemed to be, registered with the Psychologists Board continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of psychology; and
(b) who is by his or her scope of practice permitted to diagnose and treat persons suffering from mental and emotional problems

Question 17

Definition of Drug dependency

Answer 17

s59(6)

Drug dependency means the state of periodic or chronic intoxication produced by the repeated consumption, smoking, or other use of a controlled drug (as defined in section 2(1) of the Misuse of Drugs Act 1975) detrimental to the user, and involving a compulsive desire to continue consuming, smoking, or otherwise using the drug or a tendency to increase the dose of the drug.

Question 18

Rationale behind s59

Answer 18

To encourage drug addicts and people with disorders resulting in criminal behaviour to obtain assistance and communicate candidly with those from whom they seek help.

Question 19

s59 Exemptions

Answer 19

• Privilege will not apply if the interaction between the individual and a health professional, whether it be for an “examination, test, or … any other purpose”, was “required by an order of a judge, or by some other lawful authority” (s59(1)(b)).
• The privilege applies to disclosures made by the patient to the medical practitioner (including a psychiatrist) or clinical psychologist and their staff, but not the reverse.
• Disclosures made to a practitioner’s representative will be covered by the privilege, but the person must make the disclosure personally; disclosures by the person’s representative to the practitioner or staff will not attract s59 privilege.
• It will not attach to statements made or information obtained during medical or psychological treatment for conditions that result from a person’s unlawful conduct, or are the by-product of criminal behaviour (for example, when seeking treatment for a wound, the person discloses that the injury was received during the course of criminal conduct).

Note - If not covered by s59, communications made and information generated in the course of treatment or communication with health professionals may be protected from disclosure under a court’s overriding discretion to deal with confidences (s69).

Question 20

Privilege against self incrimination

Answer 20

s60

(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 New Zealand law for an offence punishable by a fine or imprisonment.
(2) The person—

(a) has a privilege in respect of the information and cannot be required to provide it; and
(b) cannot be prosecuted or penalised for refusing or failing to provide the information, whether or not the person claimed the privilege when the person refused or failed to provide the information.

(3) Subsection (2) has effect—

(a) unless an enactment removes the privilege against self incrimination either expressly or by necessary implication; and
(b) to the extent that an enactment does not expressly or by necessary implication remove the privilege against self incrimination.

(4) Subsection (2) does not enable a claim of privilege to be made—

(a) on behalf of a body corporate; or
(b) on behalf of any person other than the person required to provide the information (except by a legal adviser on behalf of a client who is so required); or
(c) by a defendant in a criminal proceeding when giving evidence about the matter for which the defendant is being tried

Question 21

Claiming privilege against self-incrimination in court proceedings

Answer 21

s62

(1) If in a court proceeding it appears to the Judge that a party or witness may have grounds to claim a privilege against self incrimination in respect of specific information required to be provided by that person, the Judge must satisfy himself or herself that the person is aware of the privilege and its effect.
(2) A person who claims a privilege against self-incrimination in a court proceeding must offer sufficient evidence to enable the Judge to assess whether self-incrimination is reasonably likely if the person provides the required information.

Question 22

Information that is likely to disclose the identity of a police informer or undercover officer

Answer 22

s64

(1) An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.
(2) A person is an informer for the purposes of this section if the person -

(a) has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed; and
(b) is not called as a witness by the prosecution to give evidence relating to that information.

(3) An informer may be a member of the police working undercover.

Question 23

Application of Privilege under s64

Answer 23

Does not apply if the person is called as a witness by the prosecution to give evidence relating to the information given. However, if the informer is an undercover officer, he or she may still have their identity protected by virtue of ss 108 and 109 of the Evidence Act 2006.

Question 24

Disallowing Privilege under s64

Answer 24

The privilege under s64 must be disallowed by the judge where there is a prima facie case that the information was given for a dishonest purpose, or to enable or aid anyone to commit, or plan to commit, an offence. Further, it may be disallowed where the judge is of the opinion that evidence of the information is necessary to enable the defendant to present an effective defence.

Question 25

Judicial discretion to protect confidentiality

Answer 25

Sections 68-70 of the Evidence Act 2006 provide for judicial discretion to protect confidentiality. Sections 68-70 allow for the weighing of public interests by the judge when deciding whether to protect the confidentiality of communications.

Question 26

Jury Deliberations

Answer 26

s76 protects the confidentiality of jury deliberations. The general rule is that evidence must not be given about the deliberations of a jury, which includes everything that was said or done during the time that the jury was performing its fact-finding function. This rule promotes the finality of verdicts, and permits unencumbered discussion during deliberations.

Question 27

Jury Deliberations Exemptions

Answer 27

• evidence that did not form part of the jury deliberations can be given about issues connected with the jury, such as evidence about the competence and capacity of a juror; or knowledge gained by, or conduct of, a juror that may disqualify the juror. This may include, for example, a juror who conducts his or her own inquiries.
• Evidence may be given about the deliberations of a jury if the judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given.
• In deciding whether to allow the evidence, the judge must weigh up:
  • the public interest in protecting the confidentiality of jury deliberations generally, and
  • the public interest in ensuring that justice is done in those proceedings.

Question 28

Protection of journalists’ sources

Answer 28

Section 68 provides that, where a journalist promises an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question, or produce any document, that would disclose the identity of the informant or enable that identity to be discovered.

Question 29

Protection of journalists’ sources exemptions

Answer 29

• when the journalist or employer is willing to disclose.
• A High Court Judge is satisfied by a party to the proceeding that the public interest in the disclosure of the identity of the informant outweighs:
• any likely adverse effect on the informant or any other person, of the disclosure, and
• the public interest in the communication of facts, and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

Question 30

Overriding Discretion

Answer 30

s69 - allows the judge to prevent disclosure of confidential information after weighing up various factors to determine if the public interest justifies protection of the material.

Section 69 permits a judge to protect confidentiality even where the person to whom the confidence was imparted does not wish to preserve the confidence. A judge can give a direction under s69 on the judge’s own initiative or on the application of an “interested person”.

Question 31

s69 Legislation

Answer 31

(1) A direction under this section is a direction that any 1 or more of the following not be disclosed in a proceeding:
(a) a confidential communication:
(b) any confidential information:
(c) any information that would or might reveal a confidential source of information.
(2) A Judge may give a direction under this section if the Judge considers that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in—
(a) preventing harm to a person by whom, about whom, or on whose behalf the confidential information was obtained, recorded, or prepared or to whom it was communicated; or

(b) preventing harm to—
(i) the particular relationship in the course of which the confidential communication or confidential information was made, obtained, recorded, or prepared; or
(ii) relationships that are of the same kind as, or of a kind similar to, the relationship referred to in subparagraph (i); or
(c) maintaining activities that contribute to or rely on the free flow of information.

(3) When considering whether to give a direction under this section, the Judge must have regard to—
(a) the likely extent of harm that may result from the disclosure of the communication or information; and
(b) the nature of the communication or information and its likely importance in the proceeding; and
(c) the nature of the proceeding; and
(d) the availability or possible availability of other means of obtaining evidence of the communication or information; and
(e) the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and

(f) the sensitivity of the evidence, having regard to—
(i) the time that has elapsed since the communication was made or the information was compiled or prepared; and
(ii) the extent to which the information has already been disclosed to other persons; and

(g) society’s interest in protecting the privacy of victims of offences and, in particular, victims of sexual offences.
(4) The Judge may, in addition to the matters stated in subsection (3), have regard to any other matters that the Judge considers relevant.
(5) A Judge may give a direction under this section that a communication or information not be disclosed whether or not the communication or information is privileged by another provision of this subpart or would, except for a limitation or restriction imposed by this subpart, be privileged.

Question 32

Corroboration Legislation

Answer 32

s121

(1) 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 -
(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).
(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 corroboration.

Question 33

Corroboration required as a matter of law in some circumstances

Answer 33

There are two types of offence – perjury and related offences (ss 108, 110 and 111 Crimes Act) and treason (s73 Crimes Act)

Question 34

Child Complainants

Answer 34

s125

(1) 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.