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Privilege Notes

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10 Privilege

10.1 General Principles of Privilege Relates to relationship and self­incrimination evidence. We seek to protect certain
relationships (non­epistemic 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 self­incriminate. 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.

10.2 The rule against self-incrimination. 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 self­incrimination (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 self­incrimination 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 self­incrimination … but the
related privilege against exposure to civil penalties". s 62 Claiming privilege against self­incrimination 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 self­incrimination in a court
proceeding must offer sufficient evidence to enable the Judge to assess
whether self­incrimination is reasonably likely if the person provides the
required information. Statutes that abrogate the privilege against self­incrimination: S 70 of the Insolvency Act 1967; ss 27 and 28 of the Serious Fraud Office Act 1990. RESTRICTIONS ON THE RULE AGAINST SELF­INCRIMINATION 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 self­incrimination 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 pre­exist. NZLC in The Privilege Against Self­Incrimination - "there is no compulsion at the
point when information is created means that the likelihood of the compulsion causing
the evidence to be unreliable, or for the information to be created from abuses of
power, is minimal." Recommended privilege against self­incrimination to include:
oral statements, newly created documentary statements, non­verbal conduct intended
as an assertion. EA ­ S 51 Interpretation (2) A reference in this subpart to a communication or to any information includes
a reference to a communication or to information contained in a document. (3) Despite subsection (2), in sections 60 to 63, information means a statement of
fact or opinion given, or to be given,—
(a) orally; or (b) in a document that is prepared or created—
(i) after and in response to a requirement to which any of those sections
applies; but (ii) not for the principal purpose of avoiding criminal prosecution under
New Zealand law.

LIKELY TO INCRIMINATE Busby v Thorn - Cooke J: "The test generally applied has been whether answers may
place the defendant in real and appreciable, not merely imaginary or fanciful, peril." JUSTIFICATION Murphy v Waterfront Commission - USSC - Jutice Goldberg: "The privilege against
self­incrimination represents a landmark '… in man's struggle to make himself
civilized'." Self­Incrimination and Self­Preservation: A Skeptical View - Dripps: "The privilege
against self­incrimination stands in need of a convincing justification … defenders of
the privilege have yet to substantiate the misty rhetoric that cloaks the privilege in a
haze of noble words." But in Murphy v Waterfront Commission a number of justifications for the privilege
were advanced. Gallavin has noted "[w]hile each individual justification advanced by
Goldberg J is open to significant criticism, taken together they represent a formidable
argument in support of the privilege against self­incrimination." The question is
whether such a statement is true or merely more "noble words" - it does on the face
of it seem odd to suggest the sum of insufficient arguments could give a sufficient
argument (0+0+0 = 1?).

• the avoidance of the cruel trilemma of self­accusation, perjury or contempt o
Brown v Walker
: "a sense of personal degradation in being compelled
to incriminate one's self must create a feeling of abhorrence in the
community at its attempted enforcement." - Field J. Gallavin admits
that such reasoning is severely limited in the 21 st Century where trust
in administration is higher as is intolerance of criminal activity. He
suggests that this point is more to do with the reliability of a
defendant's testimony: "in [most] situations it is presumed that a
person would rather lie or fail to answer the question" - this seems
obvious and surely it should be for the jury to decide.

• the preference of an accusatorial system o based on upholding the presumption of innocence until proven
otherwise. But Gallavin notes that this argument is limited as the
privilege may extend to situations where "a witness exposes their
culpability for activity not known or not with the interest of the
investigator" - a situation where "the preference for an accusatorial
system is of little application". This justification seems very weak,
given that the other standards e.g. beyond reasonable doubt etc would
remain the same and the defendant's testimony would simply be a
piece of evidence to go into the mix - the accusatorial system is still
upheld.

• the prevention of inhumane treatment and abuses o
Wigmore
points out: "any system of administration which permits the
prosecution to trust habitually to compulsory self­disclosure as a
source of proof must itself suffer morally thereby." There will be a
resultant reliance on self­incrimination and other sources will not be
properly used. Gallavin: "a hunch or suspicion could develop to such a
stage that force is used to order to elicit information" - difficult to
agree with this, other laws protecting against force etc. Gallavin admits

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