4. Testimony Flashcards
Before a person is served with a summons to appear in court, verification must be made as to:
4 Points ARRT
- 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.
S71 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.
A witness is eligible if 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.
Exceptions to general proposition that all people are eligible and compellable.
S72 - Judge, juror or counsel - not eligible
S73 - Defendant not compellable. Associated defendant not compellable unless tried separately, or proceedings finished.
S74 - Judges, Governor General, Head of States
S75 - Bank Officers - Records
Privilege
Privilege can rise from? CCN
When a claim of privilege is made it is important to?
A privilege is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible evidence.
Privileged can arise from the contents of the evidence, the class of the evidence, the nature of a particular relationship.
When a claim of privilege is made, it is important to enquire if the material in question, whether communication, information, opinion, or document, is within the scope of the privilege in question,
Types of privilege
8 points
- 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.
Jury deliberations Whats the general rule?
Evidence about jury deliberation may be given if?
When can evidence about jurors be given?
general rule- evidence must not be given about the deliberations of a jury.
Evidence about jury deliberation may be given if circumstances are exceptional and sufficiently compelling.
Judge must weigh -
* the public interest in protecting the confidentiality of jury deliberations, and
* the public interest in ensuring that justice is done in those proceedings.
However, evidence that did not form part of the jury deliberations can be given about issues connected with the jury, Eg. Juror competence and capacity, knowledge, conduct that may disqualify a juror - making his own enquiries.
Protection of journalists’ sources - Section 68
Where a journalist promises an informant not to disclose the informant’s identity Not compellable to answer any question, or produce any document, that would disclose the identity.
High Court Judge may overrule if public interest to disclose informant info outweighs
- Adverse effect on the informant, and
- the public interest in the communication to the public by media and their ability to access sources of facts.
Overriding discretion as to confidential information - Section 69
Section 69 allows the judge to prevent disclosure of confidential information, communication, or info that would reveal confidential source if public interest in disclosing info is outweighed by public interest in preventing harm.
Permits a judge to protect confidentiality even where the person to whom the confidence was imparted does not wish to preserve the confidence.
Corroboration - Section 121
121 Corroboration
(1) It is not necessary evidence on which the prosecution relies to be corroborated, except with respect to the offences of perjury, false oath/statement, treason.
Child complainants - Section 125
evidence given by children should, in general, be treated in the same way as evidence given by adults.
Thus it prohibits:
- Judge warning about absence of corroboration of childs evidence (if wouldn’t have warned if was an adult)
- comment about scrutinising child evidence with care because they could invent or distort.
