Privilege

Question 1

Explain privilege in relation to giving evidence:

Answer 1

The right to refuse to disclose or to prevent disclosure of what would otherwise be admissible.

Question 2

When can privileged evidence arise?

Answer 2

From the contents of the evidence, the class of the evidence, or because of the nature of a particular relationship

Question 3

List what privileges are outlined in the Evidence Act 2006: (8)

Answer 3

S54: Communications with legal advisors

S55: Solicitors trust accounts

S56: Preparatory materials for proceedings

S57: Settlement negotiations or mediation

S58: Communications with ministers of religion

S59: Information obtained by medical practitioners

S60: Privilege against self in-crimination

S61: Informer privilege

Question 4

Explain when privilege may be waived:

Answer 4

Privilege may be waived at any time by the person who is entitled to rely on it.

Waiver ends the privilege holder’s rights over the material.

Question 5

Can privileged material still be inadmissible even if it has been waived by the holder?

Answer 5

Under S52 an “interested person” may still apply for an order that the privileged material remain inadmissible

Question 6

Explain the 5 things communications must be to be considered comms with legal advisors:

Answer 6

1) The comms must be intended to be confidential

2) The comms must be made for the purposes of obtained or giving legal services

3) The privilege is vested in the person seeking or receiving legal services

4) The privilege does not extend to comms made for dishonest purpose

5) Provided that it was intended that the comms be confidential, the fact that the conversation was inadvertently overheard does not repeal the privilege

Question 7

What does the privilege apply to in terms of preparatory materials

Answer 7

1) The privilege applies to a communication or information made, received, compiled or prepared for the purpose of preparing for a proceeding

Question 8

Who has a privilege in relation to preparatory materials?

Answer 8

2) A person has privilege if they are, or on reasonable grounds contemplate becoming, a party to the proceeding

Question 9

In relation to preparatory materials, what can the privilege be in respect of?

Answer 9

• A communication between the party and another
• The comms between the party’s legal advisor and another person
• Information compiled by the party or their legal advisor
• Information compiled at the request of the party, or their legal advisor

Question 10

Are communications still privileged if they were undertaken by an “authorised representative”?

Answer 10

Yes

Question 11

Are documents that would not otherwise be privileged become privileged if they are ‘compiled’?

Answer 11

Yes, this is because the compilation may disclose tactics planned for the litigation.

Question 12

Explain privilege for communication with ministers of religion:

Answer 12

Section 58

Privilege if communication was

a) made in confidence

b) made for purpose of the person obtaining or receiving spiritual advice, benefit or comfort

Question 13

When must the Judge disallow privilege in relation to communication with ministers of religion?

Answer 13

Where the communication is for a dishonest purpose or for the purpose of enabling or aiding an offence to be committed.

Question 14

Who does Section 59 apply to?

(Privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists)

Answer 14

Applies to a person who:

• consults or is examined by a medical practitioner/clinical psychologist for drug dependency