4. Testimony - Privilege Flashcards
What is a privliege in relation to giving evidence?
Must Know
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.
What are the types of privilege outlined in EA06?
Must Know
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
what other privileges exist?
Must Know
- privilege against self-incrimination – section 60
- informer privilege – section 64.
Outline Effect and protection of privilege in S53 EA 06?
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.
What does S53(4) deal with?
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.
What is legal professional privilege as outlined in R v Derby Magistrates Court?
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.”
What is privileged under S54?
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).
What is privileged under S56?
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).
What are circumstances in which such legal privilege may be claimed?
Must Know
- 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.
When does privilege apply?
Must Know
- 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.
S58 EA06 relates to the protection of communication with ministers of religion. What does it cover?
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.
Outline S58 EA06?
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.
What is required for protection under S58?
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.
What is the rationale behind S59 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.
Define self-incrimination in S4 EA06?
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.
