#8442 - Privilege - LAWS 307 Law of Evidence

Relates to relationship and self-incrimination evidence. We seek to protect certain relationships (non-epistemic reasoning).

We begin with the presumption that if evidence is relevant and probative then it should be admissible: “the public has the right to every man’s evidence” – Lord Chancellor Hardwicke.

AG v Clough - Lord Parker CJ had a disdain for privilege noting that it “constitutes a shackle on the discovery of the truth and an impediment on the true administration of the law.” But surely the protection of confidential relationships can further the administration of law?

Trammel v US a solution to prevent privilege becoming a ‘shackel’ is that is should be “strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normal predominant principle of utilizing all rational means for ascertaining truth.”

CIRCUMSTANCES IN WHICH A PRIVILEGE WILL ARISE:

1. disclosures that may self-incriminate.

2. where a distinctive relationship has developed.

Privilege is underpinned by various provisions in BORA (at back): s23(4) – right to silence when arrested or detained; s 25(d) right not to be compelled to be a witness or confess guilt; s27(1) general right to natural justice.

Wigmore on Evidence – ways to identify a distinctive relationship giving rise to privilege:

1 – the communications must originate in a confidence that they will not be disclosed;

2 – the element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties.

3 – the relationship must be one which in the opinion of the community ought to be sedulously fostered.

4 – The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit gained for the correct disposal of litigation.

Trammel v US (see above) – USSC – privilege must “promotes sufficiently important interests to outweigh the need for probative evidence.”

Riddick v Thames Board Mills – a document made available during discovery in a wrongful imprisonment trial could be used for a second action for wrongful dismissal, but not a third for defamation. Lord Denning noted that the wrongful dismissal action was enough that “the public interest there has served its purpose … The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires.”

Medway v Doublelock – concurrent proceedings: a civil case and a family case. Family case resulted in compulsion to hand over income documentation. Other party was prohibited in using this in the civil proceedings – danger is that it would encourage people to lie in Family Court for fear of usage of the documents elsewhere.

Home Office v Harman – documents were released in relation to claim by the national council for civil liberties (NCCL) for treatment arising out of a prison. Counsel for the NCCL later released these documents into the public domain, claiming that they were a public document after being used in public court. Held to be in contempt of court and that the documents were released for a single purpose: the court case.

This only applies to criminal cases; not civil cases.

Blunt v Park Lane Hotel – Goddard LJ: “not one is bound to answer any question if the answer thereto would, in the opinion of the Judge, have a tendency to expose any deponent to any criminal charge … which the Judge regards as reasonably likely to be preferred or sued for.”

May be invoked in 3 circumstances: 1 to avoid criminal liability; 2 liability to a penalty; 3 liability to forfeiture.

s 60 Privilege against self-incrimination

(1) This section applies if—

(a) a person is (apart from this section) 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.

(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.

(3) Subsection (2) has effect—

(a) unless an enactment removes the privilege against self incrimination either expressly or by necessary implication; and

(b) to the extent that an enactment does not expressly or by necessary implication remove the privilege against self incrimination.

(4) Subsection (2) does not enable a claim of privilege to be made—

(a) on behalf of a body corporate; or

(b) on behalf of any person other than the person required to provide the information (except by a legal adviser on behalf of a client who is so required); or

(c) by a defendant in a criminal proceeding when giving evidence about the matter for which the defendant is being tried.

(5) This section is subject to section 63.

Section 4 definitions:

incriminate means to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence

self-incrimination means the provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence

Taylor v NZ Poultry Board – a NZPB inspector asked T where some eggs came from. T refused to answer and was charged with failing to provide information, Cooke J held: “the privilege against self incrimination is capable of applying outside Court proceedings. The common law favours the liberty of a citizen, and if a Court is not satisfied that a statutory power of questioning was meant to exclude the privilege, it is in accordance … to allow the privilege.”

NZLC 1999 Report: said tis case was “a significant change in the common law privilege”. Further “the privilege [has] moved far from the historical roots [when penalties were harsh] … there is a strained artificiality in modern applications of the privilege in which the potential detrimental effect of the incrimination involved is minimal.” T would only have been fined by the NZPB – the same result seems unlikely today given that BORA only concerns criminal charges. Cooke J got around this by noting that the case “was not strictly against self-incrimination … but the related privilege against exposure to civil penalties”.

s 62 Claiming privilege against self-incrimination in court proceedings

(1) If in a court proceeding it appears to the Judge that a party or witness may have grounds to claim a privilege against self incrimination in respect of specific information required to be provided by that person, the Judge must satisfy himself or herself that the person is aware of the privilege and its effect.

(2) A person who claims a privilege against self-incrimination in a court proceeding must offer sufficient evidence to enable the Judge to assess whether self-incrimination is reasonably likely if the person provides the required information.

Statutes that abrogate the privilege against self-incrimination:

S 70 of the Insolvency Act 1967; ss 27 and 28 of the Serious Fraud Office Act 1990.

RESTRICTIONS ON THE RULE AGAINST SELF-INCRIMINATION

Taylor v NZPB – CA acknowledged that the privilege does not apply to the risk of civil penalty.

Re XY, ex parte Haes – does not apply to exposure to liability for bankruptcy.

Section 8A of the Evidence Act 1908 stated that,

A witness shall not be excused from answering any question relevant to the proceedings on the sole ground that to answer the question may establish or tend to establish that the witness owes a debt, or otherwise subject the witness to any civil liability.

s63 Replacement of privilege with respect to disclosure requirements in civil proceedings

(1) This section applies to a person who is required by an order of the court made for the purposes of a civil proceeding -

a) to disclose information; or

b) to permit premises to be searched; or

c) to permit documents or things to be inspected, recorded, copied, or removed; or

d) to secure or produce documents or things

(2) The person does not have the privilege provided for by section 60 and must comply with the terms of the order.

(3) No evidence of any information that has directly or indirectly been obtained as a result of the person's compliance with the order may be used against the person in any criminal proceeding, except in a criminal proceeding that concerns the falsity of the information. – an attempt to have immunity so that a right against self-incrimination does not apply in civil cases.

DOCUMENTS

Easton has suggested the privilege against self-incrimination does not apply to body samples or real evidence in general.

Boyd v US – court said that they could not see any difference between testimony of a person and their documents: “we are unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.”

Andresen v Maryland – There is a difference: compulsion. You do not need to put documents together; they pre-exist.

NZLC...