Testimony Flashcards
Calling witnesses
Before a person is served with a summons to appear before the 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
- what type of witness they will be.
Eligibility and Compellability Generally
Section 71 Evidence Act 2006
(1) In a civil or criminal proceeding, -
(a) any person is eligible to give evidence; and
(b) a person who is eligible to given evidence is compellable to give that evidence.
(2) Subsection (1) is subject to sections 72 to 75.
Eligible
A witness is eligible if they are lawfully able to give evidence on behalf or both prosecution and defence.
Compellable
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 compelling obligation to answer all questions put to them.
All people are eligible and compellable
Evidence Act 2006 Eliminates any objections to a witness’s testimony based on age, mental ability, and spouse.
Judges, Jurors and Counsel
Section 72 Evidence Act 2006
Under section 72, 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, they will be discharged from the jury and the trial would proceed with eleven remaining jurors.
A defendant acting as their own counsel will not need judicial permission to testify.
Defendants and Associated Defendants
Section 73 Evidence Act 2006
Comparability of Defendants and Associated Defendants in Criminal Proceedings
(1) A defendant in a criminal proceeding is not a compellable witness for the prosecution or defence in that proceeding.
(2) An associate 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(a) the proceeding has been stayed or, in a summary proceeding, the information against the associate has been withdrawn or dismissed; or
(b) the associated defendant has been acquitted of the offence; or
(c) the associated defendant, having plead guilty to, or having been found guilty of, the offence, has been sentenced or otherwise dealt with for that offence.
Associated Defendants
Section 73 Evidence Act 2006
(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 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.
Not compellable to give evidence
Section 74 Evidence Act 2006
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.
Bank Officers
Section 75 Evidence Act 2006
Under s75, where the bank is not a party to the proceeding, no bank officer is compellable to produce bank records if the content can be proven under the “business records” exception to hearsay rule (s19), or to appear as a witness to prove the matters recorded in the bank records.
Privilege
A privilege in relation to giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
Types of Privilege
- communications with legal advisors - section 54
- solicitor’s trust accounts - section 55
- preparatory materials for proceedings - section 56
- settlement negotiations or median - section 57
- communications with ministers of religion - section 58
- information obtained by medical practitioners and clinical psychologists - section 59
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- privilege of self-incrimination - section 60
- informer privilege - section 64
Where a claim of privilege is made
When a claim of privilege is made, it is important to ensure if the material in question, whether communication, information, opinion, or document, is within the scope of the privilege in question, as these can differ (e.g. some protect information and some protect communication).
Preventing disclosure of privileged material
Judge has wide discretion to prevent disclosure of material where privileged material comes into possession of a person who does not have appropriate authorisation to possess it.
Waiving privilege
Privilege may be waived at any time by the person who is entitled to rely on it, but this does not mean privilege has been waived for all purposes. An “interested person” can still apply for an order for the privileged material to remain inadmissible.