Testimony Flashcards
Before a person is served with a summons to appear in court verification must be made as to what…
- 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
When is a witness eligible to give evidence
If they are lawfully able to give evidence on behalf of both prosecution and defence
When is a witness compellable to give evidence
If they can be required to give evidence against their will for both prosecution and defence
What is held regarding eligibility and compellability generally
s71(1)
• any person is eligible to give evidence
and
• a person who is eligible to give evidence is compellable to give that evidence
What are the exceptions to the general proposition that all people are eligible and compellable to give evidence
- judges, jurors and counsel
- defendants and associated defendants
- judges, Sovereign, Governor General, Head of State
- bank officers
A defendant is not a compellable witness for prosecution or defence and neither is an associated defendant
When can an associated defendant be compellable in a defendants hearing
s73(1)(2)
- if the associated defendant is being tried separately to the defendant
- if the proceeding against the associated defendant has been determined
What is the definition of an “associated defendant”
• 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
or
• that relates to, or is connected with the offence for which the defendant is being tried
What is the definition of privilege in relation to the giving of evidence
The right to refuse to disclose or to prevent disclosure of what would otherwise be admissible
What are some examples of privilege
- communications with legal advisors
- solicitors trust accounts
- preparatory materials for proceedings
- settlement negotiations or mediation
- communications with ministers of religion
- information obtained by medical practitioners and clinical psychologists
- privilege against self-incrimination
- informer privilege
What can a person who has privilege refuse to disclose
s53(1)
- the communication
- the information, including any information contained in the communication
- any opinion formed based on the communication or information
Outline what is meant by waiving privilege and exceptions to this
Privilege may be waived at any time by the person who is entitled to rely on it.
Despite a waiver, under s52, an “interested person” may still apply for an order that the privileged material remains inadmissible
When is communication with a legal advisor deemed to be privileged
- the communication is intended to be confidential
- the communication is made for the purpose of obtaining or giving legal services
Not privileged if:
• made for dishonest purpose or to enable/aid anyone to commit/plan an offence
When does communications with ministers of religion become privileged
s58(1)
• made in confidence to them in their capacity as a minister of religion
and
• made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit or comfort
What privilege can be claimed for information obtained by medical practitioners and clinical psychologists
If it relates to a drug dependancy or any other condition of behaviour that may manifest itself in criminal conduct
Privilege against self incrimination applies if a person is required to provide specific information in what three circumstances
- in the course of a proceeding
- by a person exercising a statutory power/duty
- by a police officer or other person holding a pubic office in the course of an investigation into a criminal offence or possible criminal offence
What is the definition of an informer
Someone 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 reasonable expectation that their identity will not be disclosed
May be a member of police working undercover
When can privilege information about informants be disallowed
If is used for a dishonest purpose or to enable/aid anyone to commit or plan to commit an offence
The general rule is that evidence cannot be given about jury deliberations however evidence may be given if the judge is satisfied that the circumstances are so EXCEPTIONAL there is a SUFFICIENTLY COMPELLING REASON to allow the evidence.
What must the judge weigh up when deciding whether to allow the evidence
- public interest in protecting confidentiality of jury deliberations generally
- public interest in ensuring that justice is done
Overriding discretion as to confidential information. A direction under this section (69) is a direction that any one or more of what three things may not be disclosed in a proceeding
- confidential communication
- confidential information
- information that would or might reveal a confidential source of information
What types of offences are considered by law to require corroboration
- perjury
- false oaths
- false statements or declarations
- treason
What is the definition of corroboration
Independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged
Is the judge required to warn the jury about relying on uncorroborated evidence
No, unless the charge is perjury or treason
What is the meaning of self-incrimination under s4 of the 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
