Privilege 2

Question 1

What is the rationale behind Section 59?

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

Answer 1

To encourage drug addicts and people with disorders resulting in criminal behaviour to obtain assistance.

Question 2

Who must made the disclosure for the information to be privileged under Section 59?

Answer 2

It must be personally made by the person disclosing to the medical professional, not their representative.

Question 3

Explain when privilege will not apply in respect of Section 59(1)(b)

Answer 3

When the interaction between the individual and health care professional was required by an order or a Judge or by some other lawful authority

Question 4

Define “self incrimination”:

Answer 4

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

Question 5

When does the privilege against self incrimination apply?

Answer 5

If a person required to give information..

• in the course of a proceeding
• by a person exercising statutory power
• by a police officer

and

the information would likely incriminate the person

the person has privilege and cannot be prosecuted (whether or not they’ve claimed privilege)

Question 6

Explain when someone can claim privilege for another person:

Answer 6

Only when they are a legal adviser

Question 7

Can privilege against self incrimination be asserted on behalf of a body corporate?

Answer 7

No

Question 8

Can someone claim privilege of self incrimination when giving evidence about the matter for which the defendant is being tried?

Answer 8

No, privilege can only be asserted when the information sought poses a risk of conviction for a different offence

Question 9

Define an informer:

Answer 9

Someone who has supplied, gratuitously or for reward, information to an enforcement agency or representative of enforcement agency, concerning 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.

Question 10

When can privilege be disallowed under Section 64 (Privilege for informers)

Answer 10

When there is a prima facie case that the information was given for a dishonest purpose or to enable or aid anyone to commit or plan to commit an offence

Question 11

In what circumstances would jury deliberations be given in evidence?

Answer 11

If the judge is satisfied that the circumstances are so exceptional that there is a sufficiently compelling reason to allow the evidence to be given.

Question 12

In deciding whether to allow jury deliberations to be given as evidence what must the judge weigh up?

Answer 12

• The public interest in protecting the confidentiality of jury deliberations and
• The public interest in ensuring that justice is done in those proceedings

Question 13

When will the protection of journalists sources not apply?

Answer 13

When a High Court Judge has made an order that the protection will not apply if they are satisfied by a party to the proceeding that the public interest in the disclosure of the identity of the informant outweighs:

• any likely adverse effect on the informant of the disclosure and
• the public interest in the communication of facts and the opinion to the public by the news to access sources f facts

Question 14

In relation to Section 69 - Overriding discretion as to confidential informant, when deciding whether to give a direction the Judge may have regard to what?

Answer 14

• the likely extent of harm that may result from the disclosure
• the nature of the communication and it’s likely importance in the proceeding
• the nature of the proceeding
• the availability of other means of obtaining evidence
• the sensitivity of the evidence