Before a person is summonsed to court, what verification must be made?
- Whether they’re allowed to give evidence
- Whether they’re required to give evidence
- Whether they can refuse to give evidence
- What type of witness they’ll be
What is the difference between an eligible witness and a compellable witness?
Eligible
Person is is lawfully able to give evidence for both the prosecution and defence.
Compellable
A person who is required to give evidence against their will for both the prosecution and defence. Anyone who is eligible is compellable.
Who is NOT eligible to give evidence?
Section 72
- A judge presiding over a hearing
- A juror or counsel in the proceeding unless a judge permits. They will then be discharged from the hearing.
Can a Defendant be compelled to give evidence?
Section 73(1)
No, a Defendant is an eligible witness but not compellable. They do not have to give evidence.
When is an associated Defendant compellable to give evidence against the Defendant?
Section 73(2)
- If the co-defendant is being tried separately OR
- Proceedings against the co-defendant have been finished.
Who is NOT compellable to give evidence?
Section 74
- Judges
- Sovereign
- Governor General
- Head of States of foreign countries
What is “A Privilege”?
The right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.
What are the types of privileges outlined in the Evidence Act 2006?
Section 54 - Communication with legal advisors
Section 55 - Solicitors Trust Accounts
Section 56 - Preparatory materials for proceedings
Section 57 - Settlement negotiations/mediation
Section 58 - Communications with ministers of religion
Section 59 - Medical/Psychological practitioners notes
Section 60 - Privilege against self-incrimination
Section 64 - Informer privilege
Marital privilege is no longer applicable.
Who can waive privilege?
By the person who is entitled to rely on it, however where there is an interested party, they must apply for an order for the information to be inadmissible.
What is legal profession privilege?
Section 54
Any communication between a person and their legal advisor for the purpose of obtaining their guidance.
When can legal privilege be claimed?
- The communication is intended to be confidential
- The communication is to seek legal advice or services
- The privilege belongs to the person seeking or obtaining the advice or services
- Privilege does not extend for a dishonest purpose
- If the conversation was overheard, it is still privileged.
What is communication with ministers of religion?
Section 58
Communication with their minister of religion is privileged regardless if it involves atonement for sin or not. They must seek the minister for spiritual advice, benefit or comfort.
What is the rational behind Section 59 - Privilege with a health professional?
Privilege will not apply if the examination by a health professional was ordered by a judge.
Define “Self-Incrimination”
Section 60
Information by a person that could lead to or increase the likelihood of the prosecution of that person for a criminal offence.
In what circumstances would a person be required to give specific information in relation to S60 - Privilege against self incrimination?
- In the course of the proceeding
- by a person exercising a statutory power or duty or
- By a Police officer in the course of an investigation into a criminal offence
Describe “Informer”
Section 64 -
A person who has provided information whether for reward or not, in relation to a possible or actual crime with the expectation their identity will not be disclosed.
When does informer privilege not apply?
When the prosecution calls them as a witness to give evidence in relation to the information provided.
When can informer privilege be disallowed?
Privilege must be disallowed when there is prima facie that the information provided was dishonest or intended for anyone to commit an offence.
What is the general rule of Jury deliberations?
Evidence must not be given about the deliberations of a jury, including anything that was said or done during the fact finding process.
What is the protection governing journalists sources?
Where they have promised confidentiality, neither the journalist or their employer are required to disclose information that would identify the source.
What two instances require corroboration as a matter of law?
In general, corroboration is not necessary except for:
- Perjury related offences
- Treason
