Exclusion of relevant evidence: Privilege Flashcards
Rationale for privilege against self-incrimination
compelling someone to give evidence that will incriminate them goes against the right to dignity and guards against bad police practices
When does privilege against self-incrimination apply?
Pre-trial: S35 of constitution - requires detained, arrested and accused persons to be advised of their right to remain silent and their right to legal rep.
During trial.
Does privilege against self-incrimination apply for suspects?
Unclear:
Sebejan: took purposive approach and said that the right to a fair trial starts at the investigative stage of the criminal process.
Khan took it literally, saying s35 ≠ apply to suspects.
What happens when accused waives their rights to silence and right against self-incrimination?
May not refuse to answer a question on the basis that it may incriminate them.
Do witnesses other than the accused have privilege against self-incrimination?
CPA: they may refuse to answer if it exposes them to a criminal charge but fear of civil liability ≠ excuse them from answering.
CPEA echoes this.
May inferences be drawn from silence?
No inference may be drawn from pre-trial silence but negative consequences may logically follow if state establishes a prima facie case and A lacks contrary evidence.
Exception to rule re inferences from silence?
Alibi defence only raised at trial.
Thebus
Cannot draw inferences from pre-trial silence.
Late disclosure = merely something to take into account when determining the weight of evidence.
Can one draw inference from silence in a civil trial?
Yes - because there is no constitutional issue. But this inference must only be drawn once plaintiff establishes PF case.
NB re PF case
Ascertainment of bodily features: infringement on right to remain silent?
Huma: fingerprints ≠ testimonial utterance.
Levak: compulsion to submit voice same ≠ infringe.
Case: fingerprints ≠ testimonial utterance ?
Huma
Case: compulsion to submit voice sample ≠ infringe.
Levak
Define legal professional privilege
Communications between lawyers and their clients may not be disclosed without client’s consent.
NB: consent
Rationales to go against the truth seeking function and deprive court of relevant evidence [by allowing legal privilege]?
Fair settlement of disputes; receipt of sound legal advice; proper functioning of legal system - legal professional privilege is a fundamental principle to proper functioning (safatsa)
Safatsa
legal professional privilege is a fundamental principle to proper functioning.
Case: legal professional privilege is a fundamental principle to proper functioning
Safatsa
Requirements for legal professional privilege
- Communication is made to legal advisor acting in their professional capax
- Made in confidence
- For purposes of obtaining professional legal advice or for purpose of pending litigation.
- Privilege is claimed by client.
Contango trading
assumed if litigation is not a substantial possibility its not in confidence for purposes of LPP.
Explain requirements for LPP
- Communication is made to legal advisor acting in their professional capax
- Coms made in presence of clerks etc are also seen as privileged.
- determined on case-by-case basis, but if there is payment between parties there is an inference that its in professional capax.
- Made in confidence
- c-by-c basis; but if client allowed info to be known by 3P its likely not in confidence.
- for purpose of pending litigation / obtaining professional advice
- assumed if litigation is not a substantial possibility its not in confidence (Contango trading)
Explain marital privilege and cite legislation for it
Spouses are entitled to refuse to disclose communications from other spouse when married.
CPA
Exception to marital privilege?
Where spouse wishes to disclose.
State privilege def?
Government may claim privilege on basis that it is against the public interest to disclose.
Duncan.
Difference between public and private privilege?
Public: concerned with competing public interests (hard to waive)
Private: more concerned with individual autonomy.
Can state privilege be waived?
CL position is unclear.
Duncan says that courts have no power to override state assertion of state privilege made by the appropriate official.
Van der linde: Courts have final say on whether to uphold.
Court should scrutinise in private and discretion should be exercised exceptionally with circumspection.
Constitutional position: [PJS SUGGESTION]
1. Court must have power to reject ministerial objection.
2. Courts must have access to determine if disclosure is against pub interest
3. Courts must balance public interest in justice vs non-disclosure.
4. State should have onus to show its refusal constitutes a justified limitation on the constitution.
Note: case law ≠ require onus.
