Privilege Flashcards
Privilege explained
Even when a witness is eligible to give evidence and chooses or is compelled to do so, he or she may still be able to refuse or be prevented from answering particular questions on the grounds of privilege. A privilege in relation to the giving of evidence is the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible. Privileged evidence can arise from the contents of the evidence, the class of the evidence, or because of the nature of a particular relationship.
Since the effect of a claim of privilege is that information is withheld from the court which might be of assistance in determining the case, the particular public interest underlying the claim must be a significant one, and one which outweighs the interests of justice in having all the relevant evidence before the court. The most important interest in this respect is the preservation of important social relationships which depend for their effectiveness on confidentiality.
Types of privilege
A number of privileges are outlined in the Evidence Act 2006, including privilege for:
- communications with legal advisors – section 54
- solicitors’ trust accounts – section 55
- preparatory materials for proceedings – section 56
- settlement negotiations or mediation – section 57
- communications with ministers of religion – section 58
- information obtained by medical practitioners and clinical psychologists –
section 59.
Other privileges
- privilege against self-incrimination – section 60
- informer privilege – section 64.
Note that there is no longer marital privilege – if any protection of disclosure is desired, this will be assessed under s69 (overriding discretion as to confidential information).
Effect and protection of privileges
Section 53 outlines the effect and protection of various privileges:
53 Effect and protection of privilege
(1) A person who has a privilege conferred 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.
(2) A person who has a privilege conferred by section 60 or 64 in respect of information has the right to refuse to disclose in a proceeding the information.
(3) A person who has a privilege conferred by any of sections 54 to 59 and 64 in respect of a communication, information, opinion, or document may require that the communication, information, opinion, or document 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.
Where a claim of privilege is made
When a claim of privilege is made, it is important to enquire if the material in question, whether communication, information, opinion, or document, is within the scope of the privilege in question, as these can differ (for example, some protect “information”, others protect “communications”).
Judge has wide discretion to prevent disclosure of privileged material
Section 53(4) deals with the situation where privileged material comes into the possession of a person who does not have appropriate authorisation to possess it.
Before the Evidence Act 2006, there was uncertainty as to whether privilege was lost when a privileged communication was surreptitiously intercepted, or when one of the parties to a privileged communication made an unauthorised disclosure of its contents. Section 53(4) grants the judge a wide discretion to prevent disclosure of the material.
Waiving privilege
Privilege may be waived at any time by the person who is entitled to rely on it, but this does not necessarily mean that privilege has been waived for all purposes.
Waiver ends the privilege holder’s rights over the material (for example, the right to require that the material not be disclosed in a proceeding).
Despite a waiver, under s52, an “interested person” may still apply for an order that the privileged material remains inadmissible. This reflects the fact that sometimes someone other than the privilege holder wants to prevent privileged material being given in evidence.
“Legal professional privilege”
In R v Derby Magistrates’ Court28 the legal professional privilege has been described as “more than an ordinary rule of evidence … it is a fundamental condition on which the administration of justice as a whole rests.”
The matter of B v Auckland District Law Society29 discussed the matter of privilege further. The Law Lords cautioned that legal privilege was not to be balanced against competing public interests; a lawyer must be able to give a client an absolute and unqualified assurance that what they reveal will not be disclosed without their consent.
In New Zealand, the privilege therefore takes primacy over all other public interests.
Under s54, any communication between a person and his or her legal adviser for the purposes of seeking or obtaining professional legal services, is privileged (this was termed “solicitor-client privilege” under the previous law). Under s56, communications between the person or legal adviser and witnesses who have been communicated with regarding any contemplated proceeding, are also privileged (this was termed “litigation privilege” under the previous law).
The following highlight a number of points about the circumstances in which such legal privilege may be claimed:
Communications with legal advisers
- The communication must be intended to be confidential.
- The communication must be made for the purposes of obtaining or giving legal services. Communications that would be privileged if carried out directly between client and legal adviser will remain privileged if carried out between the “authorised representatives” of either or both of these parties, if those communications were made for the purpose of obtaining legal advice or could be said to be part of communication between client and solicitor.
- The privilege is vested in the person seeking or receiving the legal
services. However, under s52(1), where the person waives the privilege, the judge may still order that evidence of the communication must not be given, either on his or her own initiative, or on the application of an interested person other than the person who has the privilege. - The privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence.
- Provided that it was intended that the communication be confidential, the fact that the conversation was inadvertently overheard by others does not necessarily abrogate the privilege, even if no precautions to preserve confidentiality were taken. The protection of confidentiality where a person possesses information or communications without authority of the privilege is possible under s53(4), whereby the judge may order that the information or communication not be disclosed.
Preparatory materials for proceedings
- The privilege applies to a communication or information made, received, compiled, or prepared for the primary purpose of preparing for a proceeding or an apprehended proceeding.
- A person has a privilege if they are, or on reasonable grounds contemplate becoming, a party to the proceeding or apprehended proceeding.
- The privilege can be in respect of:
* a communication between the party and any other person
* a communication between the party’s legal adviser and any other
person
* information compiled or prepared by the party or the party’s legal
adviser
* information compiled or prepared at the request of the party, or the party’s legal adviser, by any other person. - Communications will still be protected if they were actually undertaken by an “authorised representative” of the privilege holder or his or her legal adviser.
- Documents which are in themselves not privileged become so when “compiled”. This is because the compilation may disclose tactics planned for the litigation.
Communication with ministers of religion
Section 58 of the Evidence Act 2006 expands the previous law in its
protection of communications with ministers of religion. It covers religious and spiritual communications, whether or not they involve atonement for sin, and is regardless of whether they are made within a structured religious community. It focuses on advice, benefit or comfort of a “spiritual” nature, but does not extend to communities that do not depend on the belief in some god, divine force or other spiritual basis for life.
It provides that:
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.
Section 58 also extends to all communication, including “a communication … contained in a document”, and extends the term “minister of religion” beyond people recognised as such under the traditional structures of organised faith.
Instead, “minister of religion” is defined by looking to the religious or
spiritual community to determine who plays a pastoral role in that
community. For example, the definition applies to certain “kaumatua”
(elders) in the New Zealand Māori community whose role is to offer spiritual guidance or advice within that group.
Protection under s58 requires that communications are made in confidence and within the minister’s capacity as a minister of religion. The person must be at least partly impelled to speak to a minister of religion by his or her own religious or spiritual belief or practice, must seek out the minister for spiritual communication, and must be aiming to receive spiritual advice, benefit or comfort.
Also under s58, communications must occur personally between the privilege holder and the minister of religion. However, a confidential communication between an individual and a minister of religion not falling within the s58 definition of “spiritual advice, benefit or comfort” may be protected from disclosure under a court’s overriding discretion to deal with confidential information (s69).
Where the communication is for a dishonest purpose or for the purpose of enabling or aiding an offence to be committed, the judge must disallow the privilege.
Information obtained by medical practitioners and clinical psychologists (criminal proceedings)
Limited privilege protecting information obtained by medical practitioners and clinical psychologists is allowed for under s59 of the Evidence Act 2006.
It provides that:
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.
(2) A person has a privilege in a criminal proceeding in respect of any communication made by the person to a medical practitioner or clinical psychologist that the person believes is necessary to enable the medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or
behaviour that may manifest itself in criminal conduct.
(3) A person has a privilege in a criminal proceeding in respect of information obtained by a medical practitioner or clinical psychologist as a result of consulting with or examining the person to enable the medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.
(4) A person has a privilege in a criminal proceeding in respect of information consisting of a prescription, or notes of a prescription, for treatment prescribed by a medical practitioner or clinical psychologist as a result of consulting with or examining the person to enable the medical practitioner or clinical psychologist to treat or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.
(5) A reference in this section to a communication to or information obtained by a medical practitioner or a clinical psychologist is to be taken to include a reference to a communication to or information obtained by a person acting in a professional capacity on behalf of a medical practitioner or clinical psychologist in the course of the examination or treatment of, or care for, the person by that medical practitioner or clinical psychologist.
(6) In this section,—
clinical psychologist means a health practitioner—
(a) who is, or is deemed to be, registered with the Psychologists Board continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of psychology; and
(b) who is by his or her scope of practice permitted to diagnose and treat persons suffering from mental and emotional problems
drug dependency means the state of periodic or chronic intoxication produced by the repeated consumption, smoking, or other use of a controlled drug (as defined in section 2(1) of the Misuse of Drugs Act 1975) 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.
Rationale behind s59
The rationale behind s59 is 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. It can be invoked by any person involved in a criminal proceeding, such as a witness called to testify for the Crown.
The privilege applies to disclosures made by the patient to the medical practitioner (including a psychiatrist) or clinical psychologist and their staff, but not the reverse.
Disclosures made to a practitioner’s representative will be covered by the privilege, but the person must make the disclosure personally; disclosures by the person’s representative to the practitioner or staff will not attract s59 privilege.
Privilege will not apply if the interaction between the individual and a health professional, whether it be for an “examination, test, or … any other purpose”, was “required by an order of a judge, or by some other lawful authority” (s59(1)(b)).
It will not attach to statements made or information obtained during medical or psychological treatment for conditions that result from a person’s unlawful conduct, or are the by-product of criminal behaviour (for example, when seeking treatment for a wound, the person discloses that the injury was received during the course of criminal conduct).
If not covered by s59, communications made and information generated in the course of treatment or communication with health professionals may be protected from disclosure under a court’s overriding discretion to deal with confidences (s69).
Privilege against selfincrimination
The Act defines “self-incrimination” as “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” (s4). This will apply not only to information directly admitting criminal acts, but also to matters forming links in the chain of proving such acts.
60 Privilege against self-incrimination
(1) This section applies if—
(a) a person is (apart from this section) 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 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.
(4) 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.
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.
Section 60(2)(a) provides that, where the privilege applies, the privilege holder cannot be compelled to provide information that legal rules would otherwise require him or her to supply.
The word “likely” in s60(1)(b) has been held as confining the privilege to circumstances where the potential for incrimination is “real and appreciable” and not “merely imaginary and fanciful”: Singh v R [2010] NZSC 161 at [31], quoting Cooke J in Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461 at 469.
The privilege will apply if a person is “required to provide specific
information”, which means particularised items of information sought in response to certain questions or requests for information (s60(1)):
- in the course of a proceeding
- 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.
If there is no compulsion to produce the information, s60 will not apply.
One person cannot claim the privilege against self-incrimination on behalf of another, except for the situation where a legal adviser asserts the privilege on behalf of a client.
The privilege can only be asserted by natural persons and not on behalf of a body corporate. This does not preclude the employees or officers of a body corporate from claiming the privilege on their own behalf when they are personally liable to self-incrimination.
A defendant cannot assert the privilege when giving evidence about the matter for which the defendant is being tried. If a person on trial for a criminal act chooses to testify in his or her defence, privilege can only be asserted when the information sought poses a risk of conviction for a different offence to that being tried.
Section 61 of the Act codifies a judicial discretion to safeguard an individual from self-incrimination under foreign law.
Information that is likely to disclose the identity of a police informer or undercover officer
To encourage the reporting and detection of serious crime and protect the safety of those who assist in this regard, s64 provides a privilege that protects of the identities of police informers and undercover officers. It extends to information likely to disclose that identity.
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.
