Testimony Flashcards
Eligibility and Compellability Legislation (1) In a civil or criminal proceeding…….
S71 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 give evidence is compellable to give that evidence. (2) Subsection (1) is subject to sections 72 to 75
Exceptions to S71 (Eligibility and Compellability) Judges, Jurors and Counsel Of note only
S72 Evidence Act 2006 Of note 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.
Exceptions to S71 (Eligibility and Compellability) Legislation Defendant not compellable and when an associated defendant is compellable
S73 Evidence Act 2006 (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.
Associated Defendant Definition
S73 Evidence Act 2006 An “associated defendant” is someone against whom a prosecution has been initiated for an offence arising out of the “same events” as the offence for which the defendant is being tried (s73(4)(a)), or “that relates to, or is connected with,” the offence for which the defendant is being tried (s73(4)(b)).
When a proceeding has been determined Legislation
S73 Evidence Act 2006 (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the proceeding has been stayed or, in a summary proceeding, the information against the associated defendant has been withdrawn or dismissed; or (b) the associated defendant has been acquitted of the offence; or (c) the associated defendant, having pleaded guilty to, or having been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.
Privilege Definition
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
Types of Privilege
• Communications with legal advisors – S54 • Solicitors’ trust accounts – S55 • Preparatory materials for proceedings – S56 • Settlement negotiations or mediation – S57 • Communications with ministers of religion – S58 • Information obtained by medical practitioners and clinical psychologists – S59. • Privilege against self-incrimination – S60 • Informer privilege – S64.
Privilege For communication with legal advisor to be privileged, they must be:
- Intended to be confidential. - Made for the purposes of obtaining or giving legal services.
Preparatory materials for proceedings Definition
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.
Communications with ministers of religion Legislation A person has a privilege in respect of any communication between that person and a minister of religion if the communication was—
S58 Evidence Act 2006 (1) (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. Of note The person must be at least partly impelled to speak to a minister of religion by his or her own religious or spiritual belief or practice, must seek out the minister for spiritual communication, and must be aiming to receive spiritual advice, benefit or comfort.
Information obtained by medical practitioners and clinical psychologists Legislation Applies to a person who…..
S59 Evidence Act 2006 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; Of note 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).
