Before a person is served with a summons to appear before the court, verification must be made as to:
- 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.
Eligibility and Compellability Generally
Section 71 Evidence Act 2006
(1) In a civil or criminal proceeding, -
(a) any person is eligible to give evidence; and
(b) a person who is eligible to given evidence is compellable to give that evidence.
(2) Subsection (1) is subject to sections 72 to 75.
A witness is eligible if they are lawfully able to give evidence on behalf or 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 compelling obligation to answer all questions put to them.
All people are eligible and compellable
Evidence Act 2006 Eliminates any objections to a witness’s testimony based on age, mental ability, and spouse.
Judges, Jurors and Counsel
Section 72 Evidence Act 2006
Under section 72, 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, they will be discharged from the jury and the trial would proceed with eleven remaining jurors.
A defendant acting as their own counsel will not need judicial permission to testify.
Defendants and Associated Defendants
Section 73 Evidence Act 2006
Comparability of Defendants and Associated Defendants in Criminal Proceedings
(1) A defendant in a criminal proceeding is not a compellable witness for the prosecution or defence in that proceeding.
(2) An associate defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless -
(a) the associated defendant is being tried separately from the defendant; or
(b) the proceeding against the associated defendant has been determined.
(3) A proceeding has been determined for the purposes of subsection (2) if -
(a) the proceeding has been stayed or, in a summary proceeding, the information against the associate has been withdrawn or dismissed; or
(b) the associated defendant has been acquitted of the offence; or
(c) the associated defendant, having plead guilty to, or having been found guilty of, the offence, has been sentenced or otherwise dealt with for that offence.
Section 73 Evidence Act 2006
(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” -
(a) an offence that arose in relation to the “same events” as the offence for which the defendant is being prosecuted;
(b) an offence “that relates to”, or “is connected with”, the offence for which the defendant is being prosecuted.
Not compellable to give evidence
Section 74 Evidence Act 2006
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.
Section 75 Evidence Act 2006
Under s75, where the bank is not a party to the proceeding, no bank officer is compellable to produce bank records if the content can be proven under the “business records” exception to hearsay rule (s19), or to appear as a witness to prove the matters recorded in the bank records.
A privilege in relation to giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
Types of Privilege
- communications with legal advisors - section 54
- solicitor’s trust accounts - section 55
- preparatory materials for proceedings - section 56
- settlement negotiations or median - section 57
- communications with ministers of religion - section 58
- information obtained by medical practitioners and clinical psychologists - section 59
- privilege of self-incrimination - section 60
- informer privilege - section 64
Where a claim of privilege is made
When a claim of privilege is made, it is important to ensure if the material in question, whether communication, information, opinion, or document, is within the scope of the privilege in question, as these can differ (e.g. some protect information and some protect communication).
Preventing disclosure of privileged material
Judge has wide discretion to prevent disclosure of material where privileged material comes into possession of a person who does not have appropriate authorisation to possess it.
Privilege may be waived at any time by the person who is entitled to rely on it, but this does not mean privilege has been waived for all purposes. An “interested person” can still apply for an order for the privileged material to remain inadmissible.
Communications with legal advisors
Section 54 Evidence Act 2006
- The communication must be intended be confidential.
- The communication must be made for the purposes of obtaining or giving legal services.
- The privilege is vested in the person seeking or receiving legal services.
- The privilege does not extend to communications made for any dishonest purpose, or enable or aid anyone to commit an offence.
- Intended confidential communication over heard by others does not abrogate (do away) the privilege.
Preparatory materials for proceedings
Section 56 Evidence Act 2006
- 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.
- A person has privilege if they are, or on reasonable grounds contemplate becoming, a party to the proceeding or apprehended proceeding.
- Privilege can be in respect of - party, any other person, legal advisor.
- Communication will still be protected if they were undertaken by an “authorised representative” of the privilege holder or his or her legal advisor.
- Documents which are in themselves not privileged becomes so when “compiled”. This is because the compilation may disclose tactics planned for the proceeding.
Communication with Ministers of Religion
Section 58 Evidence Act 2006
Privilege for Communication with Ministers of Religion
(1) A person has a privilege in respect of any communication between that person and a minister of religion if the communication was -
(a) made in confidence to or by the minister in the minister’s capacity as a minister of religion; AND
(b) made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.
(2) A person is a minister of religion who has a status within a church or other religious or spiritual community that requires or calls for that person -
(a) to receive confidential communication of the kind described in subsection (1); AND
(b) to respond with religious or spiritual advice, benefit, or comfort.
Communication with Ministers of Religion
Communication not falling within “religious or spiritual advice, benefit, or comfort” may still be protected from disclosure.
Where communication is for dishonest purposes or for the purpose of enabling or aiding an offence to be committed, the Judge must disallow the privilege.
Information obtained by medical practitioners and clinical psychologists
Section 59 Evidence Act 2006
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 (MP) or a clinical psychologist (CP) for drug dependency or any other conditions or behaviour that may manifest itself in criminal conduct.
(b) does not apply in the case of a person who has been required by an order of a Judge, or by lawful authority, to submit themselves to the examination, test, any other purpose, of medical practitioners or clinical psychologists.
(2) Privilege in criminal proceeding - communication with MP or CP, where person believes necessary to enable MP or CP for the examination, treatment, care for drug dependency or any other conditions or behaviour that may manifest itself in criminal conduct.
(3) Privilege in criminal proceeding - information obtained by MP or CP from consultation or examination to enable enable MP or CP for the examination, treatment, care for drug dependency or any other conditions or behaviour that may manifest itself in criminal conduct.
(4) Privilege in criminal proceeding - information consisting of prescription, notes, treatment by MP or CP from consultation or examination to enable enable MP or CP for the examination, treatment, care for drug dependency or any other conditions or behaviour that may manifest itself in criminal conduct.
(5) MP and CP include person acting on behalf in a professional capacity.
(6) Clinical psychologist:
(a) registered with the Psychologist board as practitioner of Psychology; and
(b) scope of practice permit them to diagnose and treat persons suffering from mental or emotional problems.
- periodic or chronic intoxication
- compulsive desire to continue consumption.
Rationale of Section 59
Rationale is to enable drug addicts or people with disorders resulting in criminal behaviour to obtain assistance and communicate candidly.
Person must make disclosure personally to MP or CP. Disclosure by person’s representative is not covered in s59.
No attachments to statement or information obtained during medical or psychological exams of criminal behaviour. e.g. treatment of wound from criminal conduct.
Privilege against Self-Incrimination
Section 60 Evidence Act 2006
Self-incrimination: the provision by a person of information that could reasonably lead to, or increase likelihood of, the prosecution of that person for a criminal offence (s4)
60 Privilege against self-incrimination
(1) This section applies if -
(a) a person is required to provide specific information -
(i) in the course of a proceeding; or
(ii) by a person exercising 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 (real and appreciable) to incriminate the person under NZ law for a 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.
Privilege against Self-Incrimination
(3) Subsection (2) has effect unless removed by an enactment
(4) Subsection (2) doe not enable privilege
- on behalf of body corporate
- on behalf of other person required to provide information (except legal advisor)
- by defendant when giving evidence about matter being tried.
Privilege against Self-Incrimination
Section 62 Evidence Act 2006
Claiming privilege against self-incrimination in court proceedings.
(1) Appears to Judge that witness may have grounds to claim privilege, Judge must satisfy themselves that the person is aware of the privilege and effect.
(2) A person who claims privilege in court must provide sufficient evidence to satisfy the Judge.
Section 64 Evidence Act 2006
(1) An informers has 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 possible or actual commission of an offence in circumstances 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.
Informer Privilege can be Disallowed
Privilege MUST be disallowed by the Judge where there is a prima facie case the information was given for dishonest purposes, or to enable or aid anyone to commit, or plan to commit and offence.
Privilege MAY be disallowed if the Judge’s opinion where evidence of the information is necessary for the defendant to present an effective defence.
Judicial discretion to protect confidentiality
Sections 68 - 70 Evidence Act 2006 provide for judicial discretion to protect confidentiality. While privileges also protect confidentiality, there is little room for the judge to deny protection granted by a privilege where they considers:
- Some other public interest that
- Public interest in protecting the privilege.
Section 76 Evidence Act 2006
The general rule is evidence must not be given about the deliberations of a jury, which includes everything said and done during the time that the jury was performing its fact finding function. This rule promotes the finality of verdicts, and permits unencumbered discussion during the deliberations.
However, evidence that did not form part of the jury deliberations can be given about issues connected with the jury, e.g. competency, capacity, knowledge gained by (own investigation), or conduct of the juror.
In addition, evidence about the deliberation may be given if the judge is satisfied during “exceptional” circumstances and “sufficiently compelling reasons”. Judge must weigh up:
- public interest in protecting confidentiality of jury deliberations
- public interest in ensuring that justice is done.
Protection of Journalist’s sources
Section 68 Evidence Act 2006
Where a journalist promises an informant not to disclose the ID of the informant, the journalist or his employer is compellable to answer any questions, or produce any documents that would/likely disclose the ID of the informant.
A High Court Judge may waive the protection if they are satisfied the public interest in disclosure of the ID of the informant outweighs:
- any likely adverse effect the informant or any other person, of the disclosure; AND
- the public interest in the communication of facts, opinion by news media, the ability of news media to access sources of facts.
nothing in this section prevents the disclosure when the journalist or employer is willing to disclose.
Judge can still prevent disclosure even though the person does not wish to preserve the confidence. Judge can give discretion on their on initiative or application of an “interested person”.*
Section 121 Evidence Act 2006
Corroboration: independent evidence that tends to confirm or support some fact of which other evidence is given.
(1) It is not necessary in a criminal proceeding for evidence on which the prosecution relies on to be corroborated, except the offences of -
(b) false oaths
(c) false statements or declarations
(2) Subject to subsection (1) and section 122 (unreliable evidence), if in a criminal proceeding there is a jury, it is not necessary of the Judge to -
(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroboration.
Section 125 Evidence Act 2006
Judicial directions about children’s evidence
(1) in a criminal proceeding tried with a Jury in which the complainant is a child at the time when the proceeding commences, the Judge must not give warning to the jury about the absence of corroboration evidence of the complainant if the Judge would not have give the same kind of warning that the complainant been an adult.