Testimony

Question 1

Eligibility and Compellability Legislation (1) In a civil or criminal proceeding…….

Answer 1

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

Question 2

Exceptions to S71 (Eligibility and Compellability) Judges, Jurors and Counsel Of note only

Answer 2

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.

Question 3

Exceptions to S71 (Eligibility and Compellability) Legislation Defendant not compellable and when an associated defendant is compellable

Answer 3

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.

Question 4

Associated Defendant Definition

Answer 4

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)).

Question 5

When a proceeding has been determined - associated Defendant

Legislation

Answer 5

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the proceeding has been stayed or, in a summary proceeding, the information against the associated defendant has been withdrawn or dismissed; or (b) the associated defendant has been acquitted of the offence; or (c) the associated defendant, having pleaded guilty to, or having been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.

Question 6

Privilege Definition

Answer 6

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

Question 7

Types of Privilege

Answer 7

• 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.

Question 8

Privilege For communication with legal advisor to be privileged, they must be:

Answer 8

• Intended to be confidential. - Made for the purposes of obtaining or giving legal services.

Question 9

Preparatory materials for proceedings Definition

Answer 9

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.

Question 10

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—

Answer 10

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.

Question 11

Information obtained by medical practitioners and clinical psychologists Legislation Applies to a person who…..

Answer 11

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).

Question 12

Drug dependency Legislation Defintion

Answer 12

S59 Evidence Act 2006 Means the state of periodic or chronic intoxication produced by the repeated consumption, smoking, or other use of a controlled drug 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 13

Self Incrimination Legislation Definition

Answer 13

S4 Evidence Act 2006 The provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence

Of note This will apply not only to information directly admitting criminal acts, but also to matters forming links in the chain of proving such acts.

Question 14

Self Incrimination Legislation Applies if a person is (apart from this section) required to provide specific information—

Answer 14

S60 Evidence Act 2006 (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.

Question 15

Informer Def

Answer 15

A person who has supplied, gratuitously or for reward, information to an enforcement agency concerning a possible or actulal offence in circumstances where that person expects his identity will not be disclosed

Question 16

Informer Privilege Legislation (1) An informer has a privilege in respect of……..

Answer 16

S64 Evidence Act 2006 (1) An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.

Of note 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 17

Informer Privilege may be disallowed Must and May be disallowed

Answer 17

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.

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 18

Confidentiality When can a judge allow evidence about jury deliberations When the judge is…… And must weigh up……..

Answer 18

Is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given. 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 19

Confidentiality Protection of journalists’ sources Legislation Where a journalist…….

Answer 19

S68 Evidence Act 2006 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 20

Confidentiality Protection of journalists’ sources When a judge may order protection will not apply When the judge is……..

Answer 20

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 of the disclosure on the informant or any other person, 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 21

Overriding discretion as to confidential information Legislation Allows the judge to……

Answer 21

S69 Evidence Act 2006 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.

Of note The focus of the section is on confidentiality, and does not require any special relationship to be shown.

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 22

Corroboration Legislation

Answer 22

S121 Evidence Act 2006 (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).

Question 23

Child Complainants Legislation Section 125(1) prohibits a corroboration warning in cases involving child complainants where the warning would not have been given had the complainant been an adult. (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…….

Answer 23

S125 Evidence Act 2006 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.