Privilege Flashcards
Define 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.
Discuss why Privilege is important
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.
List the types of privilege
- 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.
- privilege against self-incrimination – section 60
- informer privilege – section 64.
S53 Effects 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.
What must happen when 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”).
Judges Discretion of Privilege material
Section 53(4) grants the judge a wide discretion to prevent disclosure of the material. When 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.
Discuss 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
Discuss Legal Professional Privilege.
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. Under s56, communications between the person or legal adviser and witnesses who have been communicated with regarding any contemplated proceeding, are also privileged.
What was held in case law R v Derby Magistrates Court in relation to privilege
“more than an ordinary rule of evidence … it is a fundamental condition on which the administration of justice as a whole rests.”
What was held in case law B v Auckland District Law Society in relation to privilege
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.
List the conditions of privilege with Legal Advisors.
- 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
S58 EA 06 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.
Define a minister of religion
minister of religion” is defined by looking to the religious or spiritual community to determine who plays a pastoral role in that community
S59 EA 06 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.
What is the purpose for S59 EA 06 Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists?
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.
