Testimony Flashcards
Eligibility and compellability
Eligibility and compellability
All people are 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. Once a witness has entered the witness box and been sworn, they are under a compellable obligation to answer all questions put to them.
- Any person is eligible to give evidence and a person who is eligible to give evidence is compellable to give that evidence.
Witnesses with age or mental difficulties
No objections to a witnesses testimony based on age or mental disability.
Some witnesses lack the capacity to give rational and coherent testimony, such testimony may be excluded as irrelevant under s.7 or under the general exclusion s.8.
Excemptions from testifying - s.72?
- Judges, jurors and counsel
Excemptions from testifying - s.73?
- Compellability of defendants and associated defendants.
- A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding.
- An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless; the associated defendant is being tried separately from the defendant or the proceeding against the associated defendant has been determined. (determined means withdrawn, dismissed, acquitted, guilty, sentenced).
So section 73 states a defendant is an eligible but non compellable witness.
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. If the associated defendant is not a co defendant and is being tried separately from the defendant or where the proceeding has been determined, hen he or she is compellable.
Excemptions from testifying s.74?
- Judges, governor generals and sovereign head of state of a foreign country are not compellable to give evidence.
Excemptions from testifying s.75?
- No bank officer is compellable to produce banking records if the contents can be proven under ‘business records’
What is privilege?
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.
Must be significant public interest which outweighs the interests of justice in having all the evidence before the court.
Types of privilege
Types of Privilege:
Communications with legal advisors – s.54
Solicitors trust accounts – s.55
Preparatory materials for proceedings – S.56
Settlement negotiations or mediation – s.57
Communications with ministers of religion – s.58 (ministers of religion has a wide meaning, e.g Kaumatua)
Information obtained by medical practioners and clinical psychologists – s.59 (covers drug dependency and any other condition or behaviour that may manifest itself in criminal conduct)
Privilege against self incrimination – s.60
Informer privilege – s.64
Effect of privilege?
Effect of privilege:
Has the right to refuse to disclose in a proceeding; the communication, the information, any opinion formed by a person that is based on the relevant communication or information.
Judge has a wide discretion to prevent disclosure of the material.
Legal professional privilege
Legal professional privilege – fundamental to justice, A lawyer must be able to give absolute assurance that what they reveal will not be disclosed without their consent. The communication must be intended to be confidential.
Privilege in relation to self incrimination
S.60 and s.62 cover of privilege in relation to self incrimination (privilege applies)(except for the matter in which a defendant is being tried)
Privilege in relation to police informers and undercover officers
s.64 – Privilege in regards to identity of police informers or undercover officers.
Informer – has supplied information to an enforcement agency, concerning the possible or actual commission of an offence, in circumstances where there is a reasonable expectation of their identity not being disclosed. May also be an undercover police officer.
This privilege does not extend to being called as a prosecution witness in relation to giving the evidence about providing that information. Undercover officer may still have ID protected by virtue of section 108 and 109.
Privilege and journalists
s.68 – Journalist sources
Where a journalist uses a informant neither the journalist or their employer is compellable to answer any questions or produce any documents in regards to the ID of the informant. Can disclosue if they want to though.
Privilege and confidential information
s.69 Confidential information can be ruled as privilege by a judge in order to protect the confidentiality.
Includes communication, information, information revealing source of confidential information.
Judge will consider public interest, harm caused, nature of proceeding, other evidence, sensitivity, relevance when deeming whether or not privilege.
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).
