Testimony

Question 1

Before a person is served with a summons to appear in court, verification must be made as to what?

Answer 1

• wether the person is allowed to give evidence.
• wether they are required to give evidence
• whether they can refuse to give evidence
• what type of witness they will be.

Question 2

Define eligibility and compellability as in section 71.

Answer 2

• a witness is eligible if they are lawfully able to give evidence on behalf of both prosecution and defence.
• a witness is compellable if they can be required to give evidence.

As a general rule all people are eligible and compellable to give evidence.

Question 3

Who is not compellable to give evidence in court?

Answer 3

• The judge.
• jury members.
• the Defendant or co- defendants
• the sovereign
• head of state of a foreign country
• the governor general

Question 4

Under section 73(2) an associated defendant (that is a defendant who is not necessarily a co-defendant but a defendant arising out of the same events) can only be compelled in what circumstances?

Answer 4

• the associated defendant is being tried separately from the defendant
• the proceedings against the associated defendant has been determined (withdrawn, dismissed, acquitted, sentenced).

Question 5

In relation to testimony, what is “privilege”?

Answer 5

The right to refuse to disclose or to prevent disclosure of what would otherwise by admissible.

Question 6

In relation to testimony, what are considered “privilege” as outlined in the Evidence Act 2006?

Answer 6

• communications with legal advisors
• solicitors trust accounts
• preparatory materials for proceedings
• settlement negotiations or mediation
• communications with ministers of religion
• information from medical practitioners.

There is also privilege against self incrimination and informers.

Question 7

If Privilege is granted, it protects what under section 53?

Answer 7

• the communication
• the information, including information contained in the communication
• any opinion formed by a person that is based on the communication or information.

Question 8

Privilege in relation to non disclosure of information is always weighed against the public interest by the judge. Except what?

Answer 8

Legal professional privilege in the following conditions:
- the communication must be intended to be confidential.
- communication made for the purposes of legal services.
- privilege does not extend to communication made for a dishonest purpose or to commit an offence.
- privilege is not wavered even if the conversation was inadvertently overheard.

Question 9

In relation to the privilege of materials prepared for proceedings, for both defence and prosecution, what can this cover?

Answer 9

• communication between a party and another person.
• communications between the party’s legal adviser and another person.
• information compiled or prepared by the party’s legal adviser.
• information compiled or prepared at the request of the party’s legal adviser.

Question 10

Under what conditions does privilege extend to information obtained by medical practitioners and clinical psychologists?

Answer 10

• for drug dependency,
• other conduct or behaviour that may manifest itself in criminal conduct.

This does not apply if the information has been gained as part of a lawful order, eg drug testing for sentence conditions.

Question 11

In relation to privilege, what is the definition of privilege”self incrimination”?

Answer 11

“The provision by a person of information that could reasonably lead to, or increase, that likelihood of, the prosecution of that person for a criminal offence.

Question 12

Privilege against self incrimination under section 60 allows people to claim privilege when asked specific information from who?

Answer 12

• in the course of a proceeding
• by a person exercising a statutory power or duty
• 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.

Question 13

Who cannot claim privilege against self incrimination under section 60?

Answer 13

• the defendant when giving evidence on matters for which the defendant is being tried. Privilege can only asserted if the information sought poses a risk of conviction for a different offence.
• a person on behalf of a body corporate.
• a person on behalf of another person (unless it’s a legal adviser).

Question 14

Under section 64, Police informers have privilege from the disclosure of their identity. What is the definition of a “informer”

Answer 14

Someone who has supplied, gratuitously or for reward, information to an enforcement agency, or 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 is not called by prosecution to be a witness.
An informer can be a member of the police working undercover.

Question 15

When may the judge disallow the privilege of informers not to be identified in section 64?

Answer 15

• where there is a prima facie case that the information was given for a dishonest purpose or to enable to commit an offence.
• when the judges of the opinion that the information is necessary to enable the defendant to present an effective defence.

Question 16

Jury deliberations are generally under privilege. Under what circumstances can a judge waver this?

Answer 16

The judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given. The judge must weigh up:
- the public interest in protecting the jury deliberations.
- the public interest that justice is done in the proceeding.

Question 17

Under section 68, where a journalist promises an informant confidentiality about their identity identity. The journalist and their employer has privilege not to answer anything that would identify the informant, when may this be wavered?

Answer 17

Only by a high court judge who is satisfied by a party to the proceedings that the public interest in identifying the informant out weights:
- any likely adverse effects on the informant or any other person.
- the public interest in the communication of the facts and opinions to the public media and the ability of the news media to access sources of facts.

Question 18

When may a judge prevent disclosure of confidential information?

Answer 18

Under section 69 a judge may prevent disclosure after weighing up various factors to determine if the public interest justifies protection of the material.
A judge may protect confidentiality even if the person does not wish to preserve their confidence.

Question 19

Under section 121, corroboration is not necessary in proceedings for the evidence on which the prosecution relies. Except for what offences?

Answer 19

• perjury
• false oaths
• false statements
• treason

Question 20

Under section 121, there is no need to warn the jury about the dangers of relying on uncorroborated evidence, except when?

Answer 20

• the judge is of the opinion the uncorroborated evidence may be unreliable.

Question 21

When a witness is eligible to give evidence and chooses or is compelled to do so, they may still be able to refuse or be prevented from answering particular questions because of privilege. What kinds of privilege are there?

Answer 21

• Communications with legal advisors
• solicitors trust accounts
• preparatory material for proceedings
• settlements for negotiations
• communications with ministers of religion.
• information from medical practitioners and clinical psychologists.
• self incrimination
• informer Privlidge