Privilege Flashcards
Privilege
The right to refuse to disclose or to prevent disclosure of what otherwise would be admissible
Types of privileges
- Comms with legal advisors (section 54)
- Solicitors trust accounts (section 55)
- Preparatory materials for proceedings (section 56)
- Settlement negotiations or mediation (section 57)
- Comms with ministers of religion (section 58)
- Information obtained by medical practitioners and clinical psychologists (section 59)
- Privileges against self-incrimination (section 60)
- Informer privileges (section 64)
Section 53(1), Evidence Act 2006
(Privilege)
A person who has a privilege conferred by section 54-59 in respect of a communication or any information has the right to refuse to disclose -
(a) the communication, and
(b) the information (including information contained in communication), and
(c) any opinion formed by a person that is based on the communication or information
Section 53(2), Evidence Act 2006
(Privilege - section 60/64)
A person who has privilege conferred by section 60 or 64 in respect of information has the right to refuse to disclose that information in a proceeding
Section 53(3), Evidence Act 2006
(Privilege - requirement of non-disclosure)
A person who has privilege under s54-59 or s64 in respect of a communication, information, opinion or document may require said thing not to be disclosed in a proceeding -
(a) by the person to whom the thing is made or information given etc, or
(b) by any other person who has come into possession of it without the authority of the person who has the privilege
Section 53(4), Evidence Act 2006
(Privilege - Judge orders non-disclosure)
If such communication, information, opinion or document is in the possession of a person other than the person referred to that holds a privilege status, a Judge may order it not to be disclosed in a proceeding
Circumstances in which legal privilege may be claimed
(1) Comms must be intended to be confidential
(2) Comms made for the purposes of obtaining or giving legal services
(3) The privilege is vested in the person seeking or receiving legal services
(4) Privilege does not extend to comms made for any dishonest purpose or to enable or aid anyone to commit or plan to commit an offence
(5) Provided that it was intended to be confidential, the fact that the comms was overheard by other does not necessarily revoke the privilege
Section 58(1), Evidence Act 2006
(Privilege - Ministers of Religion)
A person has 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 of religion, and
(b) made for the purpose of the person obtaining or receiving religious or spiritual advice, benefit or comfort from the minister
Section 58(2), Evidence Act 2006
(Privilege - Ministers of Religion - “minister”)
A person is a minister of religion 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 for the purpose of the person obtaining or receiving religious or spiritual advise, benefit or comfort
(b) to respond with religious or spiritual advice, benefit or comfort
Section 59(1), Evidence Act 2006
(Privilege - medical practitioners, clinical psychologists)
(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 to a person who has been required to submit himself by an order of a Judge or other lawful authority
Section 59 (2) - (5), Evidence Act 2006
Privilege - extended to
(2) Any communication made by the person to med pract/clinical psych, that the person believes necessary to examine, treat, care for them
(3) Information obtained by a med pract/clinical psych as a result of consultation or examining
(4) Information consisting of a prescription or notes of a prescription for treatment prescribed by med pract/clinical psych
(5) Includes persons acting in a professional capacity on behalf of med pract/clinical psych
Self incrimination
The provision by a person of information that could reasonably lead to, or increase the likelihood of, the prosecution of that person for a criminal offence
Section 60(1), Evidence Act 2006
(Privilege - Self-incrimination)
This section applies if -
(a) a person (apart from this section) is required to provide specific information -
(i) in the course of a proceeding, or
(ii) by a person exercising a statutory power or duty, or
(iii) by a police officer in the course of an investigation into criminal offence or possible criminal offence, and
(b) the information would, if so provided, be likely to incriminate the person under NZ law for an offence punishable by a fine or imprisonment
Section 60(2), Evidence Act 2006
(Privilege - Self-incrimination - non-disadvantage)
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
Section 64(1), Evidence Act 2006
(Privilege - Informers)
An informer has a privilege in respect of information that would disclose, or is likely to disclose, the informer’s identity
