Testimony

Question 1

Who is eligible to give evidence at court?

Answer 1

71 Eligibility and compellability generally

(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

Who is not eligible to give evidence under section 72?

Answer 2

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

Who is not eligible to give evidence under section 73?

Answer 3

Section 73 therefore sets out a basic rule of non-compellability. A defendant facing a criminal trial is an eligible but not a compellable witness for either the prosecution or the defence in that proceeding, so a defendant may give evidence but does not have to.

Question 4

What is an associated defendant?

Answer 4

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 (

Question 5

Who is not eligible to give evidence under section 74?

Answer 5

Under s74, judges, in respect of their conduct as a judge, the Sovereign, Governor-General, and Sovereign or Head of State of a foreign country, are not compellable to give evidence.

Question 6

Who is not eligible to give evidence under section 75?

Answer 6

Under s75, where the bank is not a party to the proceeding, no bank officer is compellable to produce banking records if the contents can be proven under the “business records” exception to the hearsay rule (s19), or to appear as a witness to prove the matters recorded in the bank records.

Question 7

Who is not eligible to give evidence under section 75?

Answer 7

Under s75, where the bank is not a party to the proceeding, no bank officer is compellable to produce banking records if the contents can be proven under the “business records” exception to the hearsay rule (s19), or to appear as a witness to prove the matters recorded in the bank records.

Question 8

What is privilege?

Answer 8

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 9

Types of privilege?

Answer 9

A number of privileges are outlined in the Evidence Act 2006, including privilege for:
• 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.

Question 10

What are the effects and protection of privilege?

Answer 10

53 Effect and protection of privilege

(1) A person who has a privilege conferred by any of sections 54 to 59 in respect of a communication or any information has the right to refuse to disclose in a proceeding—
(a) the communication; and
(b) the information, including any information contained in the communication; and
(c) any opinion formed by a person that is based on the communication or information.

Question 11

What can a judge do when privilege is claimed?

Answer 11

(4) If a communication, information, opinion, or document, in respect of which a person has a privilege conferred by any of sections 54 to 59 and 64, is in the possession of a person other than a person referred to in subsection (3), a Judge may, on the Judge’s own initiative or on the application of the person who has the privilege, order that the communication, information, opinion, or document not be disclosed in a proceeding.

Question 12

legal profession privilege

Answer 12

The Law Lords cautioned that legal privilege was not to be balanced against competing public interests; a lawyer must be able to give a client an absolute and unqualified assurance that what they reveal will not be disclosed without their consent. In New Zealand, the privilege therefore takes primacy over all other public interests.

Question 13

Communication with legal advisers five points

Answer 13

1. The communication must be intended to be confidential.
2. The communication must be made for the purposes of obtaining or giving legal services. Will remain privileged if carried out between the “authorised representatives” of either parties, if those communications were made for the purpose of obtaining legal advice.
3. The privilege is vested in the person seeking or receiving the legal services.
4. The privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence.
5. Provided that it was intended that the communication be confidential, the fact that the conversation was inadvertently overheard by others does not necessarily abrogate the privilege, even if no precautions to preserve confidentiality were taken.

Question 14

Preparatory materials for proceedings when privilege is claimed

Answer 14

1. 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.
2. A person has a privilege if they are, or on reasonable grounds contemplate becoming, a party to the proceeding or apprehended proceeding.
3. The privilege can be in respect of:
   • a communication between the party and any other person
   • a communication between the party’s legal adviser and any other person
   • information compiled or prepared by the party or the party’s legal adviser
   • information compiled or prepared at the request of the party, or the party’s legal adviser, by any other person.
4. Communications will still be protected if they were actually undertaken by an “authorised representative” of the privilege holder or his or her legal adviser.
5. Documents which are in themselves not privileged become so when “compiled”. This is because the compilation may disclose tactics planned for the litigation.

Question 15

Communication with ministers of religion

Answer 15

Section 58 of the Evidence Act 2006 expands the previous law in its protection of communications with ministers of religion. It covers religious and spiritual communications, whether or not they involve atonement for sin, and is regardless of whether they are made within a structured religious community. It focuses on advice, benefit or comfort of a “spiritual” nature, but does not extend to communities that do not depend on the belief in some god, divine force or other spiritual basis for life.

Protection under s58 requires that communications are made in confidence and within the minister’s capacity as a minister of religion.

Also under s58, communications must occur personally between the privilege holder and the minister of religion

Question 16

Information obtained by medical practitioners and clinical psychologists

Answer 16

59 Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists

(1) This section—
(a) 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; but
(b) does not apply in the case of a person who has been required by an order of a Judge, or by other lawful authority, to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or for any other purpose.

The rationale behind s59 is to encourage drug addicts and people with disorders resulting in criminal behaviour to obtain assistance and communicate candidly with those from whom they seek help. It can be invoked by any person involved in a criminal proceeding, such as a witness called to testify for the Crown.

Question 17

Privilege against self-incrimination

Answer 17

60 Privilege against self-incrimination

(1) This section applies if—
(a) a person is (apart from this section) required to provide specific information—
(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.
(2) The person—
(a) has a privilege in respect of the information and cannot be required to provide it; and
(b) cannot be prosecuted or penalised for refusing or failing to provide the information, whether or not the person claimed the privilege when the person refused or failed to provide the information.

Question 18

Information that is likely to disclose the identity of a police informer or undercover officer

Answer 18

64 Informers

(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; 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 19

Informer definition

Answer 19

“informer” as 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 a reasonable expectation that his or her identity will not be disclosed (s64(2)).

An informer may be a member of the police working undercover (s64(3)).

Question 20

The privilege under s64 must be disallowed

Answer 20

The privilege under s64 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. Further, it 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 21

Judicial discretion to protect confidentiality

Answer 21

Sections 68-70 of the Evidence Act 2006 provide for judicial discretion to protect confidentiality. While privileges also protect confidentiality there is little room for a judge to deny protection granted by a privilege where he or she considers that some other public interest outweighs the public interest in protecting the privilege.

Question 22

Evidence about Jury deliberations

Answer 22

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 23

Protection of journalists’ sources

Answer 23

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 24

Confidential information disclosure

Answer 24

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.

Question 25

Things a judge must consider for disclosure of confidential information

Answer 25

(a) the likely extent of harm that may result from the disclosure of the communication or information; and
(b) the nature of the communication or information and its likely importance in the proceeding; and
(c) the nature of the proceeding; and
(d) the availability or possible availability of other means of obtaining evidence of the communication or information; and
(e) the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and
(f) the sensitivity of the evidence, having regard to—
(i) the time that has elapsed since the communication was made or the information was compiled or prepared; and
(ii) the extent to which the information has already been disclosed to other persons; and
(g) society’s interest in protecting the privacy

Question 26

which offences need corroboration?

Answer 26

(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 27

What is Corroboration?

Answer 27

“Corroboration” is not defined in the Act. It is independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.

Question 28

What warnings does a judge need to do for corroboration?

Answer 28

Section 121(2) provides that there is no requirement for either a general warning to the jury about the dangers of relying on uncorroborated evidence, or a direction to be given relating to the absence of corroboration.