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

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the proceeding has been stayed or, in a summary proceeding, the information against the associated defendant has been withdrawn or dismissed; or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 Privilege

Legislation

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

And what is an informer

(2) A person is an informer for the purposes of this section if the person -

Answer 15

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.

(2) A person is an informer for the purposes of this section if the person -
(a) 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;

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 16

Informer Privilege may be disallowed

Must and May be disallowed

Answer 16

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 17

Confidentiality

When can a judge allow evidence about jury deliberations

When the judge is……

And must weigh up…….

Answer 17

In addition, evidence may be given about the deliberations of a jury if the judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given. In deciding whether to allow the evidence, the judge 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 18

Confidentiality

Protection of journalists’ sources

Legislation

Where a journalist…….

Answer 18

Section 68 provides that, 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 19

Confidentiality

Protection of journalists’ sources

When a judge may order protection will not apply

When the judge is……..

Answer 19

A High Court judge may order that the protection will not apply if he or she is 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 on the informant or any other person, of the disclosure, 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 20

Overriding discretion as to confidential information

Legislation

Allows the judge to……

Answer 20

Section 69 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.

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 21

Corroboration

Legislation

Answer 21

121 Corroboration

(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).
(2) Subject to subsection (1) and section 122, if in a criminal proceeding there is a jury, it is not necessary for the Judge to -
(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroboration.

Question 22

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 22

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.