Privilege

Question 1

Under S59 what is a drug dependency?

Answer 1

drug dependency means the state of periodic or chronic intoxication produced by the repeated consumption, smoking, or other use of a controlled drug which is detrimental to the user, and involving a compulsive desire to continue consuming, smoking, or otherwise using the drug or a tendency to increase the dose of the drug.

Question 2

What is the effect and protection of privilege?

Answer 2

53
Effect and protection of privilege

A person who has a privilege conferred on them by

-any of sections 54 to 59 in respect of a communication or any information has the right to refuse to disclose in a proceeding—
(a)
the communication; and
(b)
the information, including any information contained in the communication; and
(c)
any opinion formed by a person that is based on the communication or information.

-section 60 or 64 in respect of information has the right to refuse to disclose in a proceeding the information.

-any of sections 54 to 59 and 64 in respect of a communication, information, opinion, or document may require that it not be disclosed in a proceeding—
(a)
by the person to whom the communication is made or the information is given, or by whom the opinion is given or the information or document is prepared or compiled; or
(b)
by any other person who has come into possession of it with the authority of the person who has the privilege, in confidence and for purposes related to the circumstances that have given rise to the privilege.

(4)
If a communication, information, opinion, or document, in respect of which a person has a privilege conferred by any of sections 54 to 59 and 64, is in the possession of a person other than a person referred to in subsection (3), a Judge may, on the Judge’s own initiative or on the application of the person who has the privilege, order that the communication, information, opinion, or document not be disclosed in a proceeding.

(5)
This Act does not affect the general law governing legal professional privilege, so far as it applies to the determination of claims to that privilege that are made neither in the course of, nor for the purpose of, a proceeding.

Question 3

What is the definition of an informer?

Answer 3

Someone who has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed

An informer may be a member of the Police working undercover.

Question 4

What section relates to informers and what is contained in that section?

Answer 4

64
Informers
(1)
An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity.
(2)
A person is an informer for the purposes of this section if the person—
(a)
has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed; and
(b)
is not called as a witness by the prosecution to give evidence relating to that information.
(3)
An informer may be a member of the Police working undercover.

Question 5

Is a communication contained in a document to a minister covered as a communication under S58?

Answer 5

Yes

Question 6

Under S59(6) what is a clinical psychologist?

Answer 6

(6)
In this section,—
clinical psychologist means a health practitioner who is, or is deemed to be, registered with the Psycholgists Board and who is by his or her scope of practice permitted to diagnose and treat persons suffering from mental and emotional problems

Question 7

What section relates to claiming privilege against self-incrimination in court proceedings and what is contained in that section?

Answer 7

62
Claiming privilege against self-incrimination 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 self-incrimination in a court proceeding must offer sufficient evidence to enable the Judge to assess whether self-incrimination is reasonably likely if the person provides the required information.

Question 8

Privilege for communications with ministers of religion, what is contained in the section?

Answer 8

58
Privilege for communications with ministers of religion
(1)
A person has a privilege in respect of any communication between that person and a minister of religion if the communication was—
(a)
made in confidence to or by the minister in the minister’s capacity as a minister of religion; and
(b)
made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.
(2)
A person is a minister of religion for the purposes of this section if the person has a status within a church or other religious or spiritual community that requires or calls for that person—
(a)
to receive confidential communications of the kind described in subsection (1); and
(b)
to respond with religious or spiritual advice, benefit, or comfort.

Question 9

When does the privilege of an informer not apply to an informer?

Answer 9

If they are called as a witness.

In relation to undercover officers their identity may still be protected under s108 or s109.

Question 10

When MAY a judge disallow the privilege of an informer?

Answer 10

When the judge is of the opinion that the evidence of the informant is necessary to enable the defendant to present an effective defence.

Question 11

Under the preparatory materials for proceedings (s56) what can the privilege be in respect of?

Answer 11

• Communication between party and any other person
• Communication between the party’s legal advisor and any other person
• Info compiled or prepared by the party or the party’s legal advisor
• Info compiled or prepared at the request of the party or the party’s legal advisor, by any other person

Question 12

Is the communication between person and their legal advisor privileged?

Answer 12

Yes and a lawyer must not disclose anything without the persons consent as privilege takes primacy over all other public interests.

Question 13

When can’t the privilege to not self-incriminate be claimed?

Answer 13

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.

Question 14

What is a privilege in relation to giving evidence?

Answer 14

the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.

Question 15

Besides s54 - 59, what are two other privileges?

Answer 15

• Privilege against self-incrimination (s60)

- Informer privilege (s64)

Question 16

.How was legal professional privilege described in R v Derby Magistrates court?

Answer 16

more than an ordinary rule of evidence… it is a fundamental condition on which the administration of justice as a whole rests.

Question 17

How does the privilege to not self-incriminate apply to body corporates?

Answer 17

The privilege can only be asserted by a natural person so does not apply.
But it does not prevent a person within the body corporate claiming the privilege if they are personally liable.

Question 18

What are examples of types of privilege? (section 54 - 59)

Answer 18

• Communications with legal advisors
• solicitors trust accounts
• preparatory materials for proceedings
• settlement negotiations or mediation
• communications with ministers of religion
• information obtained by medical practitioners and clinical psychologists

Question 19

When does a person have privilege under the preparatory materials for proceedings? (s56)

Answer 19

If they are, or on reasonable grounds contemplate becoming, a party to the proceedings

Question 20

When MUST a judge disallow the privilege of an informer?

Answer 20

Where there is a prima facie case that the information was given for a dishonest purpose or to enable anyone to commit or plan to commit an offence.

Question 21

When does the privilege against self-incrimination apply?

Answer 21

When information is sought in response to certain questions or requests

• in the course of a proceeding
• by a person exercising a statutory power or duty
• by a police officer or other person holding a public office in the course of an investigation into a criminal or possible criminal offence.

Question 22

Under S60(1)(b) what is relevant about the word likely?

Answer 22

It was held that the word likely in this section confines the privilege to circumstances where he potential to incriminate is ‘real and appreciable’ and not ‘merely imaginary and fanciful’

Question 23

What are the circumstances where legal privilege can be claimed?

Answer 23

• The communication must be intended to be confidential
• The communication was made for the purpose of obtaining or giving legal services
• The privilege is vested in the person seeking or receiving legal services
• The communication is not made for any dishonest purpose of to enable anyone to commit an offence
• The privilege stands even if the communication is overheard by a third party

Question 24

What can privileged evidence arise from?

Answer 24

• the contents of evidence
• class of the evidence
• because of the nature of a particular relationship

Question 25

If there is no compulsion to provide information, can a person claim privilege under section 60?

Answer 25

No

Question 26

Under s58, how is a minister of religion defined?

Answer 26

They are determined by looking to the religious or spiritual community to determine who plays a pastoral role in that community

Question 27

What is the section relating to privilege against self-incrimination?

Answer 27

60
Privilege against self-incrimination
(1)
This section applies if—
(a)
a person is (apart from this section) required to provide specific information—
-in the course of a proceeding; or
-by a person exercising a statutory power or duty; or
-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.

Question 28

Can privilege be waived?

Answer 28

Yes, by the person who is entitled to rely on it. But this does not mean the privilege is waived for all purposes as an interest party may still be able to apply for an order to have the privileged information withheld.

Question 29

How does the privilege of not self-incriminating relate to defendants who testify in their own defence?

Answer 29

It can’t be claimed if it is in relation to the matter before the courts, only if the information being sought poses a risk of conviction for a different offence to that being tried.

Question 30

Privilege for information obtained by medical practitioners and clinical psychologists, what is contained in the section?

Answer 30

59
Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists
(1)
This section—
(a)
applies to a person who consults or is examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct; but
(b)
does not apply in the case of a person who has been required by an order of a Judge, or by other lawful authority, to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or for any other purpose.

Question 31

What is the privilege for the preparatory materials for a proceeding relate to? (s56)

Answer 31

Any communication or information made, received, compiled or prepared for the primary purpose of preparing for a proceeding.

Question 32

Under s58 if the communication is for a dishonest purpose what must the judge do?

Answer 32

Disallow the privilege