Testimony Flashcards
WITNESS - ELIGIBLE AND COMPELLABLE
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
A person who is eligible to give evidence is compellable
EXPLAIN PRIVILEGE
Privilege in relation to giving 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
- 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
PRIVILEGE OBTAINED BY MEDICAL PRACTITIONER OR CLINICAL PSYCH
Limited privilege applies to a person who consults or is examined by a medical practitioner or clinical psych for drug dependency or other condition that may manifest itself in criminal conduct.
Does not include if the Court order the person to submit to a medical exam or other.
WHAT OFFENCES NEED TO BE CORROBORATED?
- perjury
- false oaths
- false statements or declarations
- treason
MORE THAN 1 WITNESS CORROBORATION OFFENCES
For the offences perjury and treason - unsupported evidence from only 1 witness is insufficient to support a conviction. In this case it is a matter of law
SECTION 71 - EVIDENCE ACT 2006
In a civil or criminal proceeding
- any person is eligible to give evidence and
- a person who is eligible to give evidence is compellable to give that evidence
DEFINE ASSOCIATED DEFENDANT
An associated defendant is someone whom a prosecution has been initiated for an offence arising out of the same events as the offence which the defendant is being tried.
Witnesses who refuse to give evidence
Section 165 Criminal Procedure Act 2011
Any witness without offering an excuse refuses to give evidence or refuses to be sworn or refuses to answer any questions, the court may order the witness to be detained in custody not exceeding 7 days or a warrant to arrest is issued.
Where can privilege evidence arise from?
- contents of the evidence
- class of the evidence
- nature of a particular relationship
Defendant compellability and associated defendant’s
Section 73
A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding.
Associated defendants are also not compellable to give evidence for or against a defendant unless:
- they are being tried separately
- the proceeding against them has been stayed or in a summary proceeding or withdrawn or dismissed or acquitted
What must be done before a witness is summoned to appear in court?
- 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.
Waiving privilege
Privilege may be waived at any time by the person who was entitled to rely on it or an interested person
What is the rational behind section 53?
To encourage drug addicts and people with disorders resulting in criminal activity to obtain assistance and communicate with those they seek help from.
Define informer
Section 64 - Evidence Act 2006
A person who 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
