Privilege Flashcards
Privilege defined?
Types and sections (8)
The right to refuse to disclose, or to prevent disclosure, of what would otherwise be admissible.
-communications with legal advisors (54)
-solicitor’s trust accounts (55)
-preparatory materials for proceedings (56)
-settlement negotiations or mediation (57)
-communications with ministers of religion (58)
-information obtained by medical practitioners and clinical psychologists (59)
-privilege against self-incrimination (60)
-informers (64)
S 53 (1) - right to refuse to disclose…?
(a) - (c)
S 53(1) - a person who has a privilege conferred by any of S 54 - 59 in respect of a communication or any information has the right to refuse to disclose in a proceeding-
(a) the communication
(b) the information, including any information contained in the communication
(c) any opinion formed by a person that is based on the communication or information.
S 53(2) - regarding 60 and 64, a person has the right to…?
S 53(2) - a person who has a privilege conferred by S 60 or 64 in respect of information has the right to refuse to disclose in a proceeding the information.
Waiver
The person entitled to rely on the privilege may waive it and end their rights over the material.
Under S 52, an “interested person” may still apply for the material to remain inadmissible.
Communications with legal advisers (54) - 5 points
-communication must have been intended to be confidential.
-communication must be made for purposes of obtaining or giving legal services.
-the privilege is vested in the person seeking or receiving legal services.
-privilege doesn’t extend to comms made for any dishonest purpose.
-Provided it was intended to be confidential, the fact that the conversation was inadvertently overheard by others does not necessarily abrogate the privilege.
Preparatory Material for Proceedings (56) - 5 points
-for communication or information made, received, compiled or prepared for the primary purpose of preparing for a proceeding.
-a person has a privilege if they are a party to the proceeding.
-privilege can be in respect comms between party and another person, party’s legal adviser and another person, info compiled or prepared by legal adviser or compiled or prepared by another at the request of the party or the legal adviser.
-comms will still be protected if they were actually undertaken by an “authorised representative”
-documents which are in themselves NOT protected become so when compiled.
Privilege for communication with ministers of religion (58)
(1) person has a privilege if the communication was
(a) MADE IN CONFIDENCE to or by the minister in the minister’s capacity as a minister of religion.
(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 if they have status within a church etc that requires or calls for that person -
(a) to receive confidential comms of the kind described in (1)
(b) to respond with religious or spiritual advice, benefit or comfort.
Information obtained by medical practitioners and clinical psychologists (59)
Rationale for S 59?
(1)(a) applies to a person who consults or is examined for DRUG DEPENDENCY or any other condition/behaviour that may manifest itself in criminal conduct.
(b) does NOT apply to a person who has been required by a judge/lawful authority to submit himself for any exam, test or other purpose.
To encourage drug addicts and people with disorders resulting in criminal behaviour to obtain assistance and communicate candidly with those from whom they seek help. If not covered by 59, can be protected by 69 (court discretion).
Clinical Psychologist
Drug Dependency
A health practitioner
(a) who is, or is deemed to be, registered with the psychologists board etc as a practitioner of the profession of psychology.
(b) who is by his scope of practice permitted to diagnose and treat persons suffering from mental or emotional problems.
The state of periodic or chronic intoxication produced by the repeated consumption, smoking or other use of a controlled drug.
Privilege against self-incrimination (60)
(1) 60 applies if
(a) a person is required to provide specific information
(i) in a proceeding
(ii) by a person exercising a statutory power or duty
(iii) by a police officer or other person holding a public office in the course of an investigation into a criminal offence, AND
(b)the information would, if so provided, be likely to incriminate the person under NZ law for and offence punishable by fine or imprisonment.
(2) person has a privilege. Cannot be required to provide it. Cannot be prosecuted or penalised for refusing.
(3) In effect unless an enactment removes the privilege against self-incrimination.
Informers (64)
When must/may this privilege be disallowed?
(1) An informer has a privilege in respect of information that would disclose, or is likely to disclose their identity.
(2) A person is an “informer” if
(a) has supplied, gratuitously or for reward, information to an enforcement agency or representative, concerning the possible or actual commission of an offence, in circumstances in which the person has a reasonable expectation that his 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 Police working undercover.
Must: when there is a prima facie case that the information was given for a dishonest purpose or to enable offending.
May: where the judge is of the opinion that evidence of the information is necessary for the defendant to make an effective defence.
