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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