Testimony

Question 1

Eligibility and Compellability:

All people are eligible and compellable (pg 56)

Answer 1

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.

As a general proposition then, all people are eligible and compellable to give evidence.

Question 2

Eligibility and Compellability:

Section 73(4): Associated defendant means (pg 58)

Answer 2

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

Question 3

Eligibility and Compellability:

Who is not compellable to give evidence: (pg 58)

Answer 3

Under s 74

• 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 4

Eligibility and Compellability:

Legal professional privilege: (pg 62)

Answer 4

• Under s54 any communication between a person and his or her legal advisor for the purpose of seeking or obtaining professional legal service is privilege
• Under s56 communications between the person or legal advisor with regarding any contemplated proceeding, are also privileged.

Question 5

Eligibility and Compellability:

Defendants and associate defendants. S73 overview (pg 57)

Answer 5

Section 73 is concerned with the compellability of defendants and associated defendants. It is not concerned with eligibility of those persons should they wish to testify voluntarily.

Question 6

Informer Defined (pg 69)

Answer 6

Someone who has supplied, gratuitously or for a reward, information concerning the possible or actual commission of an offence and has reasonable expectation that his or her identity will not be disclosed (s64(2)).

An informer may be a member of the Police working undercover (s64(3)).

Question 7

Confidentiality:

Jury deliberation (pg 70)

Answer 7

The general rule is that evidence must not be given about the deliberations of a jury.

Question 8

Corroboration:

Corroboration is required as a matter of law in some circumstances (pg 73)

Answer 8

There are two types:
- perjury and related offences
- treason
In these instances corroboration is required as a matter of law.

Question 9

Spouse:

Answer 9

A spouse Is no longer non-compellable to give evidence

Question 10

Who is not compellable to give evidence:

Answer 10

• Defendant in a criminal proceeding is not compellable,
• an associated Defendant is not compellable to give evidence for or against a Defendant,
• 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 where the bank is not a party to the proceedings no bank officer is compellable to produce banking records if the contents can be proven under the “business records” exception to the hearsay rule (Section 19), or to prove the matters recorded in the bank records

Question 11

Waiving privilege

Answer 11

Privilege may be waived at any time by the person entitled to rely on it, does not necessarily mean that privilege has been waived for all purposes. Despite a waiver under section 25, an interested person may still apply for an order that the privileged material remains inadmissible.

Question 12

Communication with legal advisors further

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
3. The privilege is vested in the person seeking or receiving the legal services. However were the person waives the privilege, the judge may still order that evidence of the communication must not be given.
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.

Question 13

Corroboration

Answer 13

Not defined by the act. It is independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.

Question 14

Section 121(2) Evidence Act 2006, Corroboration. Subject to Sub Section (1) & Section 122, in criminal proceedings where there is a jury, it is not necessary for the judge to:

Answer 14

(a) Warn jury that it is dangerous to act on uncorroborated evidence or give warning to the same or similar effect.
(b) Give a direction relating to the absence of corroboration.

Question 15

Before a person is served with a summons to appear in court, verification must be made as to:

Answer 15

• 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

Question 16

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

Answer 16

The associated defendant is BEING TRIED SEPARATELY from the defendantorThe PROCEEDING against the ASSOCIATED DEFENDANT has been DETERMINED

Question 17

List 4 categories of privilege

Answer 17

• Privilege against self incrimination
• Professional confidence
• Public Policy
• Police Informants