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1

Before a person is summoned to give evidence, 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

2

- Eligibility and compellability

In a civil or criminal proceeding...

act/section

S71 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 give evidence is compellable to give that evidence.

(2) Subsection (1) is subject to sections 72 to 75

3

Exceptions to sec 71:

Sec 73, -

S73 Evidence Act 2006

(1) A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding.

(2) An associated 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.

Therefore defendant is eligible as a witness but not compelled to give evidence

4

When can a compellable witness be excused from testifying?

If they are excused by a judge for 'just cause'

- or they are excused from answering certain questions due to privilege.

5

Who is not compellable to give evidence and under what act/section?

72 - Judge presiding over case not compellable

73 - defendant not compellable

74 - Judges are not compellable to give evidence.

75 - Bank officers not compellable if banking records are available.

6

What is the definition of 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

7

What are the types of privilege?

• Communications with legal advisors – S54
• Solicitors’ trust accounts – S55

• Preparatory materials for proceedings – S56
• Settlement negotiations or mediation – S57

• Communications with ministers of religion – S58
• Information obtained by medical practitioners and clinical psychologists – S59.

• Privilege against self-incrimination – S60
• Informer privilege – S64.

8

Privilege

For communication with legal advisor to be privileged, they must be:

- Intended to be confidential.

- Made for the purposes of obtaining or giving legal services.

9

What are some examples of privilege for preparatory materials for a proceeding?

-communication between party and any other person

- communication between parties legal advisor and any other person

-information prepared by party or parties legal advisor.

-information prepared at request of party, legal advisor, or other person

10

When do documents that are not privileged in themselves become privileged?

'Compiliation'

When the documents become compiled, as this may disclose tactics planned for the litigation

11

Privilege of communication with ministers of religion: Section 58 (1)

(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.

12

Privilege of communication with ministers of religion: Section 58 (2)

A person is a minister of religion if the person has a status within a church or other religious or spiritual community that requires or calls for that person -

a) to receive confidential communications of the kind described in (1) AND

b) to respond with religious or spiritual advice, benefit or comfort.

13

Information obtained by medical practitioners and clinical psychologists

Section 59 EA 2006

S59 Evidence Act 2006

(1)(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;

(b) but does not apply to a person who has been ordered by a judge to be examined by a medical practitioner or psychologist

Of note
It will not attach to statements made or information obtained during medical or psychological treatment for conditions that result from a person’s unlawful conduct, eg when seeking treatment for a wound, the person discloses that the injury was received during the course of criminal conduct

14

Drug dependency
Defintion

S59 Evidence Act 2006

Means the state of periodic or chronic intoxication produced by the repeated consumption, smoking, or other use of a controlled drug detrimental to the user, and involving a compulsive desire to continue consuming, smoking, or otherwise using the drug or a tendency to increase the dose of the drug.

15

Privilege against self incrimination

Sec 60 (1)

S60 Evidence Act 2006

(1) Applies if
(a) a person is 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.

16

Self incrimination definition

Self incrimination is the provision by a person of information that could reasonable lead to, or increase the likelihood of, the prosecution of that person for a criminal offence.

17

When can claim of privilege against self incrimination NOT be used?

Sec 60 (4)

Claim of privilege cannot be made

a) on behalf of a body corporate

b) on behalf of any person other than the person required to provide the information (except for legal council on behalf of client)

c) By a defendant in a proceeding giving evidence about the matter he is being tried.

18

Informer privilege

Sec 64 (1)

S64 Evidence Act 2006

(1) An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.

19

Informer privilege - wh0 is an informer?

Sec 64 (2) and (3)

(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.

20

When can privilege under sec 64 be disallowed?

MUST be disallowed by judge if the information was given for dishonest purposes

or MAY be disallowed if the judge believes the evidence of the information is necessary to enable defendant to present a defence.

21

Confidentiality

When can a judge allow evidence to be given about jury deliberations

when judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given.

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.

or

when the evidence did not form part of the jury deliberations, eg evidence about the competence and capacity of a juror; or knowledge gained by, or conduct of, a juror that may disqualify the juror.

22

Confidentiality - protection of journalists sources

Sec 68

S68 Evidence Act 2006

When a journalist promises confidentiality to a source, either the journalist nor his employer are compelled to disclose that persons ID, or answer questions or produce docs that would likely lead to the ID being known.

23

Overriding discretion as to confidential information

Sec 69

Allows the judge to......

S69 Evidence Act 2006

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.

24

Corroboration

Act/section

S121 Evidence Act 2006

(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).

25

Corroboration

sec 121 (2)

In a jury trial, it is not neccessary for the judge to

a) warn the jury about acting on uncorroborated evidence , or

b) give a direction relating to the absence of corroboration.

26

Corroboration and Child witnesses

act/section

S125 Evidence Act 2006

The Judge must not give any warning to the jury about the absence of corroboration of the evidence of the complainant, if the Judge would not have given that kind of a warning had the complainant been an adult.