Flashcards in Eligibility and Compellability Deck (17)
How does s71 affect the spouse of a defendant giving evidence?
It does away with the principle of non-compellability for the spouse of a defendant in a criminal case
What is an associated defendant under S 73(4)?
In this section, associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted for—
an offence that arose in relation to the same events as did the offence for which the defendant is being prosecuted; or
an offence that relates to, or is connected with, the offence for which the defendant is being prosecuted.
When is a proceeding considered to be determined? S73(3)
A proceeding has been determined for the purposes of subsection (2) if—
the proceeding has been stayed or the charge against the associated defendant has been withdrawn or dismissed; or
the associated defendant has been acquitted of the offence; or
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.
Once the witness has entered the witness box what is their obligation and what section covers this?
They are under a compellable obligation to answer all questions put to them.
Eligibility and compellability generally
In a civil or criminal proceeding,—
any person is eligible to give evidence; and
a person who is eligible to give evidence is compellable to give that evidence.
Subsection (1) is subject to sections 72 to 75.
What is the general proposition in relation to eligibility to give evidence?
All people are eligible and compellable to give evidence.
The EA 2006 eliminates any objections to a witness's testimony based on age or mental disability.
When is a witness compellable?
If they can be required to give evidence against their will for both the prosecution and defence.
What is an associated defendant?
Someone against whom a prosecution has been initiated for an offence arising out of the same events as the events for which the defendant is being tried.
Under what circumstances can an associated defendant be compellable to give evidence against the defendant?S73(2)
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.
How does s75 relate to bank officers?
Where a bank is not party to the proceedings, 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.
Can a witness be excused from testifying where they are otherwise compellable?
Yes, a judge may excuse them. If they are not excused then they may be excused from answering certain questions because of privilege.
What does s73 cover?
The compellability of the defendants and associated defendants, it is not concerned with eligibility.
Who are the people that are the exception to the rule that all people are eligible to give evidence?
A judge cannot
A juror or person acting as counsel cannot unless given permission by the judge and if the juror gives evidence they will be removed from the jury.
When is a witness eligible to give evidence?
If they are lawfully able to give evidence on behalf of both the prosecution and defence
Where witnesses lack the capacity to give rational and coherent testimony, what sections may affect exclude their evidence?
S7, s8 and s16 however such people may still be compellable.
Who is not compellable to give evidence under s74?
Compellability of Sovereign and certain other persons
None of the following persons is compellable to give evidence:
a Sovereign or Head of State of a foreign country:
a Judge, in respect of the Judge’s conduct as a Judge.
How does an associated defendant being a co-defendant differ from an associated defendant that is not a co-defendant in relation to giving evidence?
A co-defendant is non-compellable where as a non co-defendant is compellable for both defendant and prosecution.
However where the proceedings against a co-defendant have been determined then they become compellable as a witness for both.