New Zealand Law Commission
|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
New Zealand Law Commission |
|
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
What the history of the English common law privilege does show is that the privilege was broadly conceived and applied. . . . it was not originally limited to incrimination, but protected against loss of reputation; it was not limited to defendants, but protected witnesses; and it was not limited to judicial proceedings, but came to restrict all of the agencies which then engaged in interrogation. It was asserted in adjudicative proceedings, pre-adjudicative examinations, and even in pre-charge inquiries. It was used as a defense against the Oath ex Officio, but also to fend off unsworn examination.[1]
14 THERE IS DISAGREEMENT about the precise origins of the privilege against self-incrimination. Some commentators maintain that the privilege arose in the wave of opposition to two modes of questioning citizens in medieval England – namely, questioning under the inquisitional oath in the ecclesiastical courts and incriminating questioning in the Star Chamber. Opposition began in the thirteenth century and gathered momentum in the sixteenth century.[2]
15 Generally, the inquisitional oath consisted of a sworn statement by a defendant promising to tell the truth in response to any questions put by the court. A refusal to respond or give a sworn statement was regarded as tantamount to a confession of guilt. The sworn statement was frequently demanded without informing the defendant of the substance of the complaint, the incriminatory evidence, or the identity of his or her accusers (Levy, 46–47). The purpose behind the oath was to extract a confession and it was used most notably for religious dissenters, such as the Puritans. By the close of the seventeenth century, defendants began refusing to take the oath on the basis that “no man is bound to incriminate himself on any charge . . . in any court . . .”, and the inquisitional oath was abolished (Wigmore, 2250).
16 An alternative view of the privilege’s origins is that it arose with the adversarial criminal process and the emergence of defence counsel, at the end of the eighteenth century.[3] One of the principal features of the adversarial process is that equal parties come before an independent fact-finder who listens to the allegations and responses. The rules of evidence, including the privilege against self-incrimination, are designed to maintain this equality between the respective parties.
17 The debate about when the privilege originated has carried over to North America. It is said that the Puritans, escaping religious persecution, brought the idea with them from England. Another view is that the privilege’s development was linked to the role of trial by jury and the presumption of innocence in limiting governmental power.[4]
18 After the 1776 revolution, all the American states with a bill of rights incorporated a privilege against self-incrimination. The Federal Bill of Rights was ratified on 15 September 1791 and included a prohibition against compulsory self-incrimination in the Fifth Amendment to the United States Constitution. The Fifth Amendment provides that “No person . . . shall be compelled in any criminal case to be a witness against himself.”
19 References to the privilege in a civil context can be found in the New Zealand law reports of last century. In Holmes v Furness (1884) 3 NZLR 417, for example, a claim to the privilege arose in the course of delivering interrogatories (ie, a set of questions put formally to a party in proceedings) and, in Roskruge v Ryan (1897) 15 NZLR 246, a claim arose in the context of discovery (ie, the process by which both parties disclose the existence and contents of documents relevant to the proceedings).
20 In more recent times, article 14(3)(g) of the International Covenant on Civil and Political Rights has upheld the right of silence and, in criminal investigative contexts, it largely encompasses the privilege.[5] It provides that every person facing a criminal charge shall have the right “[not] to be compelled to testify against himself or to confess guilt.” As far as it relates to investigations and proceedings involving offences or suspected offences, the privilege is also reflected in ss 23(4) and 25(d) of the New Zealand Bill of Rights Act 1990: see chapter 5 for a discussion of the relevant provisions of that Act.
21 The privilege must be claimed: it does not automatically apply. There is no duty at common law for the person requesting information, or for a judge in the course of proceedings, to warn the person being questioned of his or her right to invoke it (R v Goodyear-Smith, unreported, High Court, Auckland, 26 July 1993, T 332/92, Anderson J).
22 When a witness has justifiably claimed the privilege but the claim has wrongly been disallowed in previous proceedings, the incriminating evidence should not be used in subsequent criminal proceedings (Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461, 470). Therefore, when self-incriminating documents have been seized under an Anton Piller order and wrongly admitted in the court proceedings, the judge presiding in later criminal proceedings should refuse to allow the admission of the incriminating documents.
23 Generally, the privilege applies only to testimonial evidence (ie, evidence which comprises a statement, rather than evidence admitted as an object). Wigmore describes the testimonial evidence rule as follows:
Unless some attempt is made to secure a communication – written or oral or otherwise – upon which reliance is to be placed as involving his consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one. (para 2265)
Testimonial evidence has been described as “the assertion of a human being offered as proof of the truth of that which is asserted” (Mathieson, 10): see chapter 8, para 194, for discussion of the application of the testimonial evidence rule.
24 In New Zealand, the privilege can be claimed for the contents of documents produced by the claimant (Taranaki Co-operative Dairy Co Ltd v Rowe [1970] NZLR 895). However, if a document’s contents can be proved by independent means, such as a lawful search and seizure, the privilege will not apply. This is because the privilege does not protect against incrimination, but rather against self-incrimination. In other words, the privilege can have no application when documents are seized independently of any compelled assistance by the person incriminated.
25 Although the Commission is not aware of any New Zealand case law directly on point, it appears that a person cannot invoke the privilege for documentary evidence when the document is put in evidence as an object, rather than as a statement. However, audio and video tapes come within the definition of “document” in s 2 of the Evidence Amendment Act (No 2) 1980. New Zealand courts are likely to apply the common law privilege to tapes when they are put in evidence as a statement.
26 In limited circumstances, the privilege will extend to the compelled production of real evidence (ie, an object), rather than to the real evidence itself. The Court of Appeal remarked in New Zealand Apple and Pear Marketing Board v Master & Sons Ltd [1986] 1 NZLR 191, 194, that the act of producing an object might carry a sufficiently testimonial aspect to enable a claim of privilege to be made (eg, the act of producing a document might in some situations authenticate its existence, whereabouts, or validity).
27 Although the matter is not entirely beyond dispute, Mathieson suggests that the privilege does not permit samples of body fluids or substances to be withheld (242). In King v McLellan [1974] VR 773, the Supreme Court of Victoria, rejected an argument that the privilege entitled the withholding of a breath sample for alcoholic analysis. An analogy was drawn with fingerprints, rather than with self-incriminatory statements. As in Victoria, fingerprint evidence cannot be the subject of a privilege claim in New Zealand (s 57 Police
Act 1958).
28 In other areas of the law, the privilege against self-incrimination is regarded as a relevant matter, although not applied directly, in determining the admissibility of non-testimonial evidence. In R v Mei [1990] 3 NZLR 16, for example, the admissibility of identification evidence, resulting from an improperly conducted identification parade, was in question. Although the court ultimately admitted the evidence, one of the factors it took into account, in concluding that the evidence was unfairly or oppressively obtained, was the spirit of the provisions which had been breached. Doogue J, delivering the judgment of the court, said:
There is no doubt s 344B is designed to give a person charged certain basic protections in respect of identification parades conducted by the police. Section 344B(1) and (2) appear to be consistent with the principles that no person charged with an offence can be required to self-incriminate him or her self and is entitled to remain silent. In addition, the subsections appear to be designed to help protect the person charged from the risk of mistaken identification and to ensure there is no risk of unfair treatment in the absence of a solicitor. (23)
29 The privilege against self-incrimination is a privilege against compelled self-incrimination, rather than against self-incrimination itself. Justice Frankfurter’s comments in Culombe v Connecticut 367 US 568 (1961), concerning the Fifth Amendment, suggest that there is not a generally accepted view of what constitutes compulsion:
The self-incrimination clause is premised on a model of human conduct that views us as free will actors with fixed, pre-existing preferences – actors capable of exercising choice in the absence of coercion. Thus, it provides a defendant the right to choose whether to take the witness stand in his criminal case. But the right is broader than that, for it also forbids the use of out-of-court statements when the choice to speak was sufficiently constrained. How to find that point is susceptible to no precise solution . . .
30 The requisite element of compulsion appears to be generally present when a person
31 A consequence of the privilege being a privilege only against compelled self-incrimination is that it will not be claimable in contexts in which the person is a wholly voluntary participant, although there is a risk of subsequent prosecution or penalty. For example, the requisite element of compulsion may not be present when a person makes self-incriminating disclosures at a marae meeting, in the course of a dispute being arbitrated, or in a family meeting. However, in relation to family meetings, under s 37 of the Children, Young Persons, and Their Families Act 1989, admissions made in a Family Group Conference are privileged.[6]
32 The privilege against self-incrimination is most often encountered when a witness is testifying, whether in a civil action or a criminal prosecution. It can also be claimed in the course of some other proceedings, such as commissions of inquiry or under examination on oath by a judicial officer (Pyneboard Ltd v Trade Practices Commission (1983) 45 ALR 609).
33 In the absence of legislation to the contrary, the privilege is a valid reason for refusing to respond to demands from government officials for information, even well before any proceedings (Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 402). Cooke J said:
I respectfully agree with the majority view now prevailing in Australia that the privilege against self-incrimination is capable of applying outside Court proceedings. The common law privilege favours the liberty of the citizen, and, if a Court is not satisfied that a statutory power of questioning was meant to exclude the privilege, it is in accordance with the spirit of the common law to allow the privilege.
34 Some commentators have suggested that the compelled production of pre-existing documents (ie, documents existing before the demand for self-incriminating information) does not amount to compulsion to be a witness or confess guilt. This is because there is no compulsion to disclose information at the time when the contents of the document were prepared: see the majority decision in Andresen v Maryland, 427 US 463 (1976) to this effect. Others, such as the dissenting judge in Andresen, Justice Brennan, have said that this is an overly narrow interpretation of compulsion:
The door to one’s house . . . is as much the individual’s resistance to the intrusion of outsiders as his personal efforts to prevent the same. To refuse recognition to the sanctity of that door and, more generally, to confine the domination of privacy to the mind . . . den[ies] to the individual a zone of physical freedom necessary for conducting one’s affairs. (486–487)
The application of the privilege to pre-existing documents is discussed further in para 88 and chapter 8.
35 In New Zealand, the courts have made no distinction between pre-existing and newly created documents. The privilege applies to both (New Zealand Apple and Pear Marketing Board, 191).
36 The privilege can be claimed by a person when there is a risk of self-incrimination arising from information he or she gives. However, once a defendant chooses to give evidence in his or her own criminal proceedings, the defendant cannot claim the privilege against self-incrimination in response to questions about the charges which are the subject of the proceedings (s 5(4)(a) Evidence Act 1908). Witnesses in criminal or civil proceedings can claim the privilege when they are at risk of self-incrimination, but only in response to a specific question or request for other testimonial evidence.
37 The privilege cannot generally be claimed by one person on the ground that another person may be incriminated. Depending on the particular jurisdiction in which the privilege is claimed, there may be two departures from this stance – incrimination of a claimant’s spouse and incrimination of a body corporate.
38 The privilege may apply to protect the claimant’s spouse from incrimination. In New Zealand, it is unclear whether the common law privilege provides such protection. There is fairly old authority which suggests that the privilege extends to a claimant’s spouse: see Bayley J’s observations in R v Inhabitants of All Saints, Worcester (1817) 6 M & S 194, 200, and the more detailed discussion on the issue in chapter 10.
39 In New Zealand, the common law privilege extends to information supplied by a person representing a corporation (eg, the executive director) which is incriminating for the corporation, although not necessarily incriminating for the person (New Zealand Apple and Pear Marketing Board, 191). In practice, when a question of a corporation’s ability to claim the privilege arises, the answer is often a matter of statutory interpretation. The application of the privilege to bodies corporate is discussed in chapter 9.
40 There is a wide range of legal entities potentially able to claim the privilege. Section 6 of the Acts Interpretation Act 1924 defines “person”, when used in a summary or indictable offence, as including a body corporate (except when the contrary intention appears).[7] Section 2 of the Crimes Act 1961 is broader still, defining “person” as including “any board, society or company, and any other body of persons, whether incorporated or not.”
41 The privilege can be claimed by a person when there is a risk of criminal charges being laid against him or her likely to result from any information the person gives. The term “criminal charge” is given a very wide meaning in this context. The privilege can apply to regulatory offences, not traditionally thought of as criminal (eg, see New Zealand Poultry Board, 394, where the Court of Appeal considered offences under the Poultry Board Regulations 1980).
42 The privilege against self-incrimination has more than one limb: see chapter 7 for discussion of the other limbs.[8] The privilege not only protects the witness from self-incrimination leading to criminal prosecution, but also provides protection from liability to a civil penalty. The thinking behind the penalty privilege is revealed by Lord Esher’s comments in Martin v Treacher (1886) 16 QBD 507, 512:
[A]lthough the penalty is not in strict law a criminal penalty, yet the action is in the nature of a criminal charge against the defendant . . .
43 As the name suggests, the penalty privilege arises when there is a risk of penalty in civil actions (R v Association of Northern Collieries (1910) 11 CLR 738). The purpose of the penalty is “to punish the defendant for the alleged wrongdoing, rather than to provide a means of compensation for loss suffered by a plaintiff” (E L Bell Packaging Pty Ltd v Allied Seafoods Ltd (1990) 8 ACLC 1135, 1144). Liability to the imposition of a penalty in disciplinary proceedings will attract the penalty privilege, but liability to damages or the payment of compensation (including punitive damages) will not.[9] Chapter 7 discusses the origins of the penalty privilege and whether the continued exclusion of damages from its ambit is justified.
44 In the House of Lords case, Rio Tinto Zinc Corporation Ltd v Westinghouse Electric Corporation Ltd [1978] AC 547, 581, Shaw LJ (in the Court of Appeal) discussed the degree of risk of self-incrimination required for the privilege to apply:
The question is, whether there is a recognisable risk? The principle which protects a witness from obligatory self-incrimination is not to be qualified by or weighed against any opposing principle or expedient consideration so long as the risk of self-incrimination is real in the sense that what is a potential danger may reasonably be regarded as one which may become actual if the witness is required to answer the questions or to produce the documents for which privilege is claimed.
45 As the above statement implies, the privilege against self-incrimination extends protection beyond information given that would directly incriminate a person to include information which might be used as a step towards obtaining evidence (Mathieson, 256). Information constituting a link in a chain of causation, or an individual element of a given offence, can be privileged (Rank Film Distributors v Video Information Centre [1982] AC 380, 412).
46 New Zealand follows the United Kingdom approach, as illustrated by Cooke J in Busby, 469:
The test generally applied has been whether answers may place the defendant in real and appreciable, not merely imaginary or fanciful, peril.
47 In order for the court to assess the degree of risk, some degree of damning material may have to be disclosed to it (Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395, 403–4). If the claim is upheld, any such compelled disclosure will be inadmissible in that or any later criminal prosecution (Mathieson, 256).
48 The “real risk” threshold which must be reached before the privilege arises may be determined in retrospect. The Court of Appeal has held that the person subsequently facing a charge of refusing to answer an inquiry need not have alluded to or contemplated the privilege at the time of the refusal. The privilege may nevertheless be relied on at trial as a justification for refusing to give evidence in response to a specific request (New Zealand Poultry Board, 402).
49 A witness cannot refuse to answer a question which tends to show that he or she committed a crime, if conviction and punishment are not possible (eg, because of a pardon or immunity from prosecution (Sorby v Commonwealth (1983) 46 ALR 237).
50 Overseas authorities are divided on the question whether the privilege can validly be claimed when the risk of self-incrimination arises in a foreign jurisdiction. In chapter 11, the issue is discussed in detail.
51 The New Zealand Court of Appeal recently considered the issue in Controller and Auditor-General v Sir Ronald Davison [1996] 2 NZLR 278. The Court of Appeal dismissed the appellants’ argument that compliance with the request of the Commissioner of the Winebox Inquiry to produce documentation relating to the Cook Islands tax haven would leave them exposed to the risk of prosecution in the Cook Islands (McKay J dissenting).
52 At the time of publication, the Privy Council had confirmed the Court of Appeal’s decision but no written decision has been produced. The Privy Council decision, dismissing the appeal by the three former European Pacific executives, was announced on 4 July 1996.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/nzlc/pp/PP25/PP25-1.html