Privilege Notes

Evidence: 13th July: OUTLINE 14: PRIVILEGE Privilege against Self Incrimination/Right of Silence: Privilege against self incrimination is for noncriminal proceedings, right of silence is for criminal proceedings. The right of silence is broader in some respects, but narrower in others. In NZ, none of us have to say anything to anyone. Exceptions: Immigration issues, tax revenue forms. No broad right to be completely isolated from the government. The Right of Silence is completely limited to criminal proceedings. Privilege against self incrimination exists in both the non criminal and criminal spheres. Privilege Against Self Incrimination: People admit to doing something that is a criminal offence - selfincrimination. The privilege is that nobody can be forced to do this, nor a lot of pressure put on you to self incriminate. ie. No torture. Shouldn't be forced to take an oath and say you will answer all questions put to you truthfully. Never have to answer a question in any situation if doing so is going to cause you to admit to having committed a crime: This applies regardless of whether you are in a criminal or civil trial. The part of the privilege on the criminal side comes within a much broader right of silence. Right of Silence: Criminal only, applies to the entire span of criminal proceedings. You don't have to say anything, even if the answer to a question would completely exonerate you. Exceptions: If Police officer pulls you over while driving, for example. The right starts at the very first contact with officers, extends until the end of trial. NZBORA: s23 Rights of persons arrested or detained - criminal (Right of silence) s25 Minimum standards of criminal procedure - criminal (PASI + Right of silence) s27 Right to justice - both (PASI, Principles of Natural justice) 15th July: s4 Evidence Act - Interpretation section. Definition for selfincrimination. Person doesn't have to provide selfincriminating information (reasonably lead to criminal prosecution, or increase the likelihood), and can't be penalised for withholding. Principle: Parliament can override the privilege against self incrimination by statute Common Law: Taylor v NZ Poultry Board: Refusal to answer questions about where eggs had come from. Parliament had put in the regulations that you had to answer questions. Evidence Act: s60(2),(3) Principle: Privilege applies outside of the courtroom Common Law: Taylor v NZ Poultry Board Evidence Act: s60(1)(a) Principle: To benefit from PASI, a person does not have to specifically invoke it at the time of refusal. Common Law: Taylor v NZ Poultry Board. Don't have to use specific language to invoke the privilege or even know about the privilege. Evidence Act: s60(2)(b) Principle: Refusal to produce objects, documents, a bodily sample, all covered by PASI. Common Law: Not necessarily. Refusal to produce these is covered by PASI only if it amounts to a "testimonial disclosure". NZ Apple and Pear: - wanted to inspect some of the apples - Seller refused to produce them Court didn't agree with him, objects etc only covered if "testimonial disclosure". Close equivalent of actually 'saying' something. Cropp - Bodily samples are not testimonial disclosures. Evidence Act: Objects and documents are not covered by PASI unless it is a document that was created after and in response to the request, ss60(1)(a), 51(3) Principle: PASI adheres to the person (i.e. not the incriminating information or to anyone else) Common Law: Andreson - U.S. case, but the principle is sound. Evidence Act: s60(4)(b) Principle: PASI applies if the potential punishment arises only under foreign law Common Law: No. There may be a discretion to allow it to be claimed. Brannigan, a cook islands case. Would be prosecuted in Cook Islands by producing a document in NZ. Evidence Act: No. But there is a discretion to allow a claim of PASI if foreign punishment is capital or corporal punishment or imprisonment, s61, s61(1)(b). Principle: Corporate bodies may claim PASI Common Law: NZ Apple and Pear says yes. Evidence Act: No, s60(4)(a). Corporate bodies can't claim PASI. There are exceptions to these rules. The Evidence Act sets out 'default' positions on PASI - if other statutes conflict with the Evidence Act, the other statute prevails, unless it says otherwise. Evidence Act s5(1). Some of the statutes on CM4 change the rules of PASI in particular circumstances. 20th July: If another Act conflicts with the Evidence Act, the other Act takes precedence. Fisheries Act - direct confirmation of principle. Commissions of Inquiries Act - indirect confirmation. Companies Act - abrogation, s267(1), use immunity (s267(2). Petroleum Demand Restraint Act - privilege to not incriminate a spouse/partner. Weights and Measures Act - noone has to produce any self incriminating document. Final Notes about PASI in Criminal Proceedings: Once a defendant in criminal proceedings waives his right to silence by choosing to testify, the defendant has waived his right to PASI. Evidence Act s60(4)(c). It is impossible for a defendant to say something at his trial by retain PASI by having the statement be 'unsworn'. S366A Crimes Act. R v S: - Police tried to get password from him to access files of child pornography - Waived the privilege by giving the password Even postevidence Act, not all of the controversies are solved. PASI in Criminal Proceedings: s63 Evidence Act has the potential to be one of the most significant changes in Evidence Law. Under the common law, the same principles of PASI apply in criminal and non criminal proceedings. S63 removes PASI in civil proceedings, but preserves a restriction on the derivative use of incriminating information. As originally drafted, s63 only applied to Anton Pillar orders ("surprise" search and seizure), but the final Act extended the section to cover "any order of the court made for the purposes of a civil proceeding". Could mean any court requirement in civil proceeding, or could be narrower. Right of Silence: Purely a criminal law concept. Common Arguments in Favour: It is a natural companion to the presumption of innocence. It is one of the few advantages granted to the defendant and is necessary to protect the defendant from the overwhelming power of the state. It is a normal companion to the right of privacy. There are good reasons that even innocent people may want to remain silent. Common Arguments Against: Many states that protect the presumption of innocence and the right of privacy have no right of silence. It is incompatible with duties and responsibilities of citizenship: refusal to cooperate with the state. Allows defendant to tailor their stories. Mainly the guilty will benefit. Very common to use the right of silence at trial and not to testify. Pretrial almost no one remains silent. Examples: Rice v Connolley: - Citizens may have a "moral" or "social" duty to help police, but there is no legal duty to speak with police or accompany them anywhere. - No one has the right to tell a false story to the police, but everyone has the right to say nothing to the police. Waaka v Police: Police have no general power to arrest or detail a person soley for questioning. 22nd July: Examples of statutory abrogation of the right of silence - CM1921. PreTrial Silence and Allegations: An accused person can start invoking the right of silence at any point. Only one exception - once you start testifying, you have waived your right of silence. Evidence Act, s32. Deals with pretrial silence. The basic rules are: 1. If the defendant did not respond to a pretrial question or statement made during "investigative questioning" (s41(1)), no one can invite the fact finder to draw an adverse inference from this. s32(2)(a). 2. If the jury is the fact finder, the judge must direct the jury that it may not draw this type of inference. s32(2)(b) Important note: s32 never actually does prohibit the fact finder from actually making this type of inference in its decision making. R v Hall: - Drug case, flatmates - Accused not present at the flat when the police start questioning people. One of the flatmates blames Hall. - Hall shows up later and is told he's been accused of owning the drugs. No response, then all three said nothing, CA in Jamaica held that the appellant's silence amounted to an acknowledgement of the truth of the accusation. Silence can not be used by the court at trial to infer guilt - general rule. Silence in the face of an allegation or question cannot be used to infer guilt. This case provides us with the reason for s32. R v Parkes: (PC, Jamaica) - Daphne murdered, mother finds her cut and bleeding - Mother said to appellant - what she do you, why you stab her? - Appellant doesn't reply - Doesn't reply when she repeats the question. Appellant allowed to make an unsworn statement from the dock - said he didn't reply because he didn't know what she was talking about. Judge in CA said jury could draw on inference of guilt from the appellant's silence and conduct. The appellant relied on R v Hall (Can't use silence to infer guilt). But, PC decides the judge made an error. In Hall, there was a police officer, in this case, there was no police officer or investigator, it was the mother of the victim. When "speaking on equal terms" and a spontaneous charge is made against a person, it is reasonable to expect that he or she will deny it, and absence of such a denial is evidence of the truth of the charge. Mrs Graham and the appellant had a landlordtenant relationship, but it wasn't enough to say that they weren't speaking on equal terms. The principles in Hall and Parkes are well settled. Ask: Is this a situation where the standard rule in Hall applies, or the rule in Parkes? R v Duffy: - Drug case - Police officer wants to question someone, and is almost trying to avoid it being a Hall situation. - Gets a coaccused already convicted, and police officer asks the coaccused questions instead of Duffy himself. - The accused says nothing while the police officer asks Mahmood questions. NZCA judge says we're not going to accept that this is a Parkes case. The court must "consider the totality of the circumstances in which the accused person was placed at the time". The accusations were not made by Mahmood spontaneously, it was 'stage managed' by the police officer. R v Fred: - Child sex abuse case - Mother of the alleged victim is confronting the accused, and asks the accused some questions. - The accused never confirms or denies the allegations, but does not remain completely silent. The pivotal question is whether there was a sufficiently clear charge or allegation put by the mother which called for an answer from the appellant. Parkes applies, speaking on even terms. Hall and Parkes apply when the accused is not completely silent, but fails to respond. Juken Nisso v Northland Regional Council: - Corporation, resource consent case. Fairly straightforwas application of Parkes. Didn't respond to accusations in any way. The principles in Hall and Parkes apply to written allegations as well as oral. 27th July: Strictly speaking, if the situation is a Parkes one, s32(1)(c) does not apply at all, because it refers to "investigative questioning", and accusations being made by a person speaking "on even terms" with the accused todes not meet the definition of "investigative questioning" in s4(1). Therefore in a Parkes situation, it appears that the trier of fact could be invited to infer guilt from the silence and that the judge does not need to tell the jury that they can't draw that inference. But, failure to respons "on even terms" accusations can often be classified as a failure to "disclose a defence before trial", under s32(1)(b), in which case the same rules of s32(2) apply. Outright denials of Accusations: What if the person responds to an accusation or question not with a "failure to answer" but with an outright denial? R v Halligan If the defendant denies the allegation, the prosecution may not enter the allegation and denial into the record as evidence as a means of "filling holes" in the evidence given at trial. In other words, a person's denial of an allegation cannot act as evidence that would contribute to the proof of the truth of the allegation itself. PreTrial silence with respect to alibis and other defences: Evidence Act s32(1)(b). 1. If the defendant did not disclose a defence before trial, no one can invite the fact finder to draw an adverse inference from this. 2. If the jury is the fact finder, the judge must direct the jury that it may not draw this type of inference. R v Fulton: - Elderly woman raped, struggle in the hall with the assailant, fingerprint/thumbprint left, had to be the rapist - Thumbprint matches Fulton - Pretrial gave no indication of his whereabouts. - At trial, takes the stand - says he went out with his friends and returned home to bed. - Prosecution says why didn't you give this alibi before. At this point, the judge should have intervened and stopped this line of questioning, and advised the jury. Normally would retrial, but the fingerprint evidence was so strong. Like s32(1)(a), nothing in the Evidence Act prohibits the fact finder from actually making this inferece. So when can the trier of fact infer guilt from pretrial silence with respect to alibis and defences? The principles of Hall and Parkes still apply. "On even terms" applies. If remain silent, Parkes applies, and fact finder could draw an adverse inference. But nobody can invite the fact finder to do this, and judge has to tell the jury not to do this. R v Shaw: If an explanation is produced before trial, but there is a delay between the accusation or arrest and the telling of the explanation, the delay can be used as a means of judging the credibility of the accused, but it may not be used to infer guilt or for any other reason. - They arrested him 30th November - 12th December he writes a signed statement explaining things to police, 2 weeks after arrest. Prosecution Errors short of "inviting" inferences based on silence: R v Shaw: Also points out that the prosecution can go too far, even if they do not explicitly invite the fact finder to draw an adverse inference from pretrial silence. Statutory Provisions on Alibis: On 29th June, 2009 The Criminal Disclosure Act 2008 came into effect, which repeals the Crimes Act s367A(1). Now, a person being committed to stand trial under indictment or summary proceedings has to produce notice of the details of any alibi that they will use at trial within 14 days of the various occurances in Criminal Disclosure Act s22(2). Summary Proceedings Act 1957, s168B was also repealed, but s20 of the Criminal Disclosure Act sets out a similar procedure whereby the accuseed must be given a written notice of the requirement in s22. 29th July: Silence At Trial: Evidence Act s33. "In a criminal proceeding, no person other than the defendant or the defendant's council or the judge may comment on the fact that the defendant did not give evidence at his or her trial." i.e. the prosecution can not comment. Note that the Evidence Act does not address: 1. Whether or not the trier of fact can draw an adverse inference from silence at trial 2. What kind of comments can be made by the judge ie what the content of the comments can or cannot be. 3. In what circumstances it is or is not appropriate for the judge to make a comment.

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