Confidentiality

Question 1

Difference between confidentiality and privilege?

Answer 1

Judge has discretion to factor in the publ;ic interest when deciding whether to keep communications confidential where as a privilege the judge does not have this discretion.

Question 2

What is the general rule about giving evidence in relation to jury deliberations?

Answer 2

Generally evidence must not be given which includes everything said or done during that time.

This rule promotes the finality of verdicts and permits unencumbered discussion during deliberations.

Question 3

What evidence can be given about the jury?

Answer 3

Evidence that did not form part of the jury deliberations can be given about issues connected of the jury.

(eg. knowledge/conduct of a juror that may disqualify that juror)

Question 4

When can evidence be given about jury deliberations?

Answer 4

If the judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given.

Question 5

When deciding whether to allow evidence in relation to jury deliberations, what must the judge weigh up?

Answer 5

• the public interest in protecting confidentiality of jury deliberations generally and
• the public interest in ensuring that justice is done in those proceedings

Question 6

Under s68, what are the rules of confidentiality between journalist and informant?

Answer 6

If a journalist promises an informant not to disclose their identity, neither the journalist or their employer are compellable to disclose the informants identity.

Question 7

Who can over rule s68, confidentially of journalist informants?

Answer 7

A high court judge

Question 8

When can a high court judge over rule the confidentiality of journalist informants?

Answer 8

If they are satisfied that the public interest in disclosure of the identity outweighs:

• any likely adverse effect on the informant or any other person, of the disclosure and
• the public interest in the communication of facts, and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

Question 9

Does s68 prevent journalists from disclosing informant information?

Answer 9

No

Question 10

What does s69 allow the judge to do?

Answer 10

Prevent the disclosure of information to protect confidentiality even when the person whose confidentiality is impaired does not wish to preserve their confidentiality.
There does not need to be any special relationship.

Question 11

Under S69(1) what are the things that the judge can give a direction on not to be disclosed?

Answer 11

(1)
A direction under this section is a direction that any 1 or more of the following not be disclosed in a proceeding:
(a)
a confidential communication:
(b)
any confidential information:
(c)
any information that would or might reveal a confidential source of information.

Question 12

Under S69(2) what is factor in the decision making of the judge?

Answer 12

(2)
A Judge may give a direction under this section if the Judge considers that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in—
(a)
preventing harm to a person by whom, about whom, or on whose behalf the confidential information was obtained, recorded, or prepared or to whom it was communicated; or
(b)
preventing harm to—
(i)
the particular relationship in the course of which the confidential communication or confidential information was made, obtained, recorded, or prepared; or
(ii)
relationships that are of the same kind as, or of a kind similar to, the relationship referred to in subparagraph (i); or
(c)
maintaining activities that contribute to or rely on the free flow of information.

Question 13

Under S69(3) what must the judge consider when giving a direction?

Answer 13

(3)
When considering whether to give a direction under this section, the Judge must have regard to—
(a)
the likely extent of harm that may result from the disclosure of the communication or information; and
(b)
the nature of the communication or information and its likely importance in the proceeding; and
(c)
the nature of the proceeding; and
(d)
the availability or possible availability of other means of obtaining evidence of the communication or information; and
(e)
the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and
(f)
the sensitivity of the evidence, having regard to—
(i)
the time that has elapsed since the communication was made or the information was compiled or prepared; and
(ii)
the extent to which the information has already been disclosed to other persons; and
(g)
society’s interest in protecting the privacy of victims of offences and, in particular, victims of sexual offences.

Question 14

Is the judge limited to the consideration detailed in s 69(3)?

Answer 14

No, under S69(4) the judge can have regard to any other matters that they consider relevant.

Question 15

Under S69(5) how does this section affect privileged information?

Answer 15

(5)
A Judge may give a direction under this section that a communication or information not be disclosed whether or not the communication or information is privileged by another provision of this subpart or would, except for a limitation or restriction imposed by this subpart, be privileged.