[Home] [Databases] [WorldLII] [Search] [Feedback] New Zealand Law Commission

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

Draft Provisions and Commentary

Draft Privilege Against Self-incrimination Sections for the Evidence Code PRIVILEGE AGAINST SELF-INCRIMINATION 1 Definitions In this Division civil penalty means a penalty imposed in a proceeding, other than a criminal proceeding, the primary purpose of which is to punish the person on whom it is imposed, but does not include compensatory or punitive damages; incriminate means to provide information that is reasonably likely to lead to the criminal prosecution of a person, or the imposition of a civil penalty on a person, under New Zealand law, but does not include the provision of information that may lead only to liability to ecclesiastical censure or forfeiture of an interest in property; information means a statement of fact or opinion which is given, or is to be given, orally, or by non-verbal conduct intended as an assertion, or in a document that is prepared or created after and in response to a requirement from the person requiring the information, but not for the principal purpose of avoiding criminal prosecution or a civil penalty under New Zealand law; self-incrimination means the provision by a person of information that is reasonably likely to lead to the criminal prosecution of the person, or the imposition of a civil penalty on the person, under New Zealand law, but does not include the provision of information that may lead only to liability to ecclesiastical censure or forfeiture of an interest in property.	Section 1 – Definitions C1 The exclusion of compensatory and punitive damages from the definition of “civil penalty” reflects existing case law to the effect that damages awarded against a defendant in civil proceedings do not comprise a civil penalty (E L Bell Packaging Pty Ltd v Allied Seafoods Ltd (1990) 8 ACLC 1135, 1144). Punitive damages of any kind, be they aggravated, nominal, treble etc, are not included within the term “civil penalty”. The words “a penalty imposed in a proceeding” are intended to encompass penalties imposed by tribunals, as well as those imposed by courts. Examples of civil penalties imposed in disciplinary or civil court proceedings could include striking off, fines, revoking of a licence etc. C2 According to the definition of “information”, the privilege will apply only to oral statements, and to newly created documents, including video and audio-tapes, admitted as testimonial statements, rather than as exhibits. The definition of “information” is intended to exclude the following from the privilege’s ambit: real evidence, admitted in evidence as an article rather than a statement; documents already in existence at the time of the demand that the information be given; and documents created in response to a requirement from a person that the information be given, but created to avoid detection of offending or culpability. The privilege may be claimed for oral statements, newly created documentary statements (including audio and video-taped statements), and non-verbal conduct which is intended as an assertion (eg, producing an article when the act of production is itself incriminating). C3 The definitions of “incriminate” and “self-incrimination” expressly exclude liability to ecclesiastical censure and forfeiture of an interest in property. Neither has ever, to the Commission’s knowledge, been claimed in New Zealand. However, the definition precludes any future, if unlikely, claims based upon them.
2 Privilege in respect of self-incrimination (1) A person who is required to provide specific information (a) in the course of a court proceeding, or (b) by the exercise of a statutory power or duty, or (c) by a police officer or other person holding a public office in the course of an investigation into a criminal offence or a possible criminal offence, has a privilege in respect of that information and cannot be required to provide that information if to do so would incriminate that person. (2) A person who has a privilege against self-incrimination in respect of specific information may not be prosecuted or penalised for refusing or failing to provide that information whether or not the person claimed the privilege when he or she refused or failed to provide the information. (3) Subsections (1) and (2) apply (a) unless an enactment explicitly removes the privilege against self-incrimination; and (b) to the extent that an enactment does not explicitly remove the privilege against self-incrimination.	Section 2 – Privilege in respect of self-incrimination C4 Subsection (1) indicates the contexts in which the privilege will be claimable, in the absence of legislation to the contrary. These reflect the fact that the common law privilege has always been a privilege against compelled, rather than voluntary, self-incrimination. The requisite element of compulsion is present in the following situations: a person is required by law to make self-incriminating disclosures (eg, via a subpoena, judicial order, an official’s exercise of statutory powers etc); or a person is under pressure to make self-incriminating disclosures in response to questioning by the police or other officials exercising criminal investigation powers, where the very purpose of the questioning is to establish whether an offence has been committed or who the offender is. C5 Section 2 goes wider perhaps than orthodox notions envisage of what an Evidence Code should contain, in that it refers to information-gathering at an investigative stage, as well as to testimony in court proceedings. This broader approach is consistent with the importance of the privilege – as a fundamental right reflected in the New Zealand Bill of Rights Act 1990: see ss 23(4), 25(d) and 27(1). It would also be somewhat artificial to separate the treatment of the privilege in investigative contexts from its application in proceedings (because investigation leads to admissibility issues). In Evidence Law: Privilege (NZLC PP23, 1994), the issue has been dealt with differently, excluding consideration in the code of privilege issues at an investigative stage. The Commission has previously discussed the scope of its proposed Evidence Code, in Evidence Law: Principles for Reform (NZLC PP13, 1991), and will be coming back to these issues as it completes the evidence reference. C6 The references to “specific information” in subss (1) and (2) preclude blanket claims of privilege, rather than a claim in response to a particular question or request for a newly created document or testimonial act. For example, a person is prevented from claiming the penalty privilege to avoid discovery of all the documents in civil proceedings. C7 Subsection (2) reinforces the right contained in subs (1), by providing that when a person legitimately claims the privilege, he or she cannot be prosecuted for failing to provide information. Subsections (1) and (2) are subject to subs (3), which envisages that when a statute bestows information-gathering powers on a person and explicitly removes the privilege in a particular context, the person will be required to provide the information and may be prosecuted for refusing or failing to do so. Removing or limiting provisions in other statutes should be cross-referenced to these provisions in the Evidence Code, avoiding unnecessary duplication or inconsistencies with the Evidence Code provisions. The requirement that limitations on the privilege should be explicit reflects the idea that the privilege is a fundamental right, reinforced in the Bill of Rights Act, and as such should not be removed or limited unless legislation explicitly says so. C8 Subsection (2) reflects case law which has held that a person facing a charge of refusing to answer an inquiry need not at the time of the refusal have alluded to or contemplated the privilege as a justification for the refusal (Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 402).
(4) Subsections (1) and (2) do not enable a claim of privilege to be made (a) on behalf of a body corporate; or (b) on behalf of any person other than the person required to provide the information (except by an adviser on behalf of a client who is so required); or (c) by a defendant in a criminal proceeding in relation to information about a matter in issue in that proceeding. (5) A claim of privilege against self-incrimination can be made only by a person who is liable to be prosecuted or subjected to a civil penalty in New Zealand in respect of the information concerned.	C9 Subsection (4) reflects the following of the Commission’s proposals: Bodies corporate, or individuals on their behalf, should not be able to claim the privilege against self-incrimination. However, corporate employees or officers may claim the privilege on their own behalf when they are personally liable to self-incrimination. A person required to give incriminating information cannot claim the privilege unless he or she is the person who will be incriminated. This means that the privilege against self-incrimination cannot be invoked by a person on behalf of his or her spouse, or friend, or any other person. There is an exception within para (b) – allowing a claim of privilege to be made by legal counsel, or other similar advisers, on behalf of the person represented. Criminal defendants should not be able to claim the privilege in proceedings for matters in issue in those proceedings. Subsection (4)(c) does not prevent a criminal suspect from claiming the privilege at an investigative stage, nor a criminal defendant from claiming the privilege in proceedings when the information sought poses a risk other than of conviction in the immediate proceedings for the particular offence. For example, the risk could be one of prosecution for a completely separate offence or of disciplinary proceedings for matters other than those which are the subject of the trial. C10 Subsection (5) prevents claims of privilege from being made in New Zealand when the risk of prosecution or civil penalty arises overseas. However, if there is also a risk of prosecution or civil penalty arising in New Zealand, the person will not be required to provide the self-incriminating information.
3 Application of privilege to civil penalties An enactment which confers or preserves the privilege against self-incrimination (however described) in circumstances specified in that enactment is to be taken, in the absence of express provision to the contrary, to confer or preserve the same privilege in respect of liability to a civil penalty.	Section 3 – Application of privilege to civil penalties C11 Section 3 provides that references in legislation (existing or proposed) to the privilege or to self-incrimination (etc) should be interpreted as encompassing the privilege against liability to a civil penalty, unless the legislation expressly provides otherwise. The legislation in question may bestow or remove or limit the privilege against self-incrimination. The Commission has also proposed that provisions expressly distinguishing between the two privileges should be re-examined, with a view to combining the two, if practicable.
4 Privilege against self-incrimination in court proceedings (1) This section does not (a) limit the application of section 2; or (b) apply in respect of the evidence of a defendant in a criminal proceeding in relation to information about a matter in issue in that proceeding. (2) If in a court proceeding it appears to the court that a party or witness may have grounds to claim a privilege against self-incrimination in respect of specific information required to be provided by that person, the court must satisfy itself (if there is a jury, in the absence of the jury) that the person is aware of the privilege and its effect. (3) A person who claims a privilege against self-incrimination in a court proceeding must offer sufficient evidence to enable the court to assess whether self-incrimination is reasonably likely if the person provides the required information.	Section 4 – Privilege in court proceedings C12 This section provides a certification procedure in court proceedings, whereby a witness or party to the proceedings voluntarily gives self-incriminating evidence in return for a certificate guaranteeing immunity from the admissibility of the information (or of derivative information) in other proceedings. A use and use fruits immunity is provided (ie, immunity from the use of the information, and any information derived from it, in proceedings). Subsection (1) indicates that although the certification process in s 4 is limited to court proceedings, this does not restrict the wider application of s 2 (ie, to tribunals, in investigations etc). There is also nothing in s 4 to prevent legislation which bestows information-gathering powers and removes the privilege in a particular context from providing a use and use fruits immunity in the privilege’s stead at that investigative stage. C13 Subsection (1)(b) is consistent with s 2(4)(c), and together the provisions indicate that criminal defendants who elect to testify in proceedings against them cannot claim the privilege under s 2, nor be given a certificate under s 4. This is distinct from criminal suspects, who can claim the privilege at the investigative stage and may, provided this is authorised, be given a use and use fruits immunity at that stage for any subsequent proceedings against them. C14 Subsection (2) requires a court to inform a party or witness in court proceedings that he or she may have grounds to claim the privilege against self-incrimination for specific information, if there appears to be a risk of self-incrimination. It is within the court’s inherent jurisdiction to regulate its own procedure in determining how it goes about assessing whether the risk is present. The judge might, for example, adjourn proceedings until the witness has consulted a lawyer, or simply inform the witness of the privilege’s existence and effect. In some instances, where the court is satisfied from the outset that the risk is “reasonably likely” to occur (see subs (3)), it may combine the information contemplated in subs (2), with that specified in subs (3), and proceed to explain the effect of a certificate issued under the section. Subsection (2) is modelled on s 132 of the Evidence Act 1995 (Aust). C15 According to subs (3), a witness or party must claim the privilege before he or she is entitled to it, or to a certificate in its stead. He or she must also present sufficient evidence to the court to enable it to assess whether the risk of self-incrimination is reasonably likely if the specific information is required to be given. This is consistent with case law which says that, in order for the court to make an assessment of the degree of risk, some degree of damning material may have to be disclosed to the court (Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395, 403–4). In other words, it is not sufficient for a witness or party to baldly assert his or her right to the privilege or a certificate, without elaborating on the nature of the risk.
(4) If the court is satisfied that self-incrimination is reasonably likely if the person provides the required information, the court must inform the person (a) that the person need not provide the information; and (b) that, if the witness does provide the information, the court will give a certificate under this section; and (c) of the effect of a certificate under this section.	C16 Under subs (4), once the court is satisfied that self-incrimination is “reasonably likely” if the party or witness gives the required information, it must inform him or her that the information need not be given. In other words, if the person insists on his or her legitimate privilege, this will be respected by the court. The court must also inform the person that if he or she gives the information, the court will provide a certificate under the section, and the court will explain the effect of the certificate. In order to comply with the subsection, and to ensure the person is given all the relevant material to make a decision (with or without the assistance of counsel), the courts should give the following standard form direction proposed by the Law Commission: You have what is called a privilege against self-incrimination in respect of the specific information that you have been required to provide, and the effect of that privilege is that you cannot be required to provide the information in this court. You cannot be prosecuted or subjected to a civil penalty (eg, a fine in disciplinary proceedings) if you refuse to provide it. If you do provide the information, the court will give you a certificate which is issued under section xx of the Evidence Code 199x. The effect of the certificate is that the information you provide cannot be used against you in any other civil or criminal proceeding in the High Court or a District Court in New Zealand. It could be used though if you were to be prosecuted because the information is false. In deciding whether to provide the information in return for a certificate of the kind I have described, you should take into account that its effect is limited to other proceedings in the High Court or a District Court in New Zealand. It does not extend to the use of the information by officials exercising statutory investigative powers or to tribunals. If you do provide the information, it could possibly be used by people who become aware of it as a basis for making further inquiries and investigations. Perhaps some people might be able to use the information against you in some way not involving the High Court or a District Court. You should consider those possibilities. If you do not understand what I have said, you should say so now and I will explain further.
(5) If a person does provide information after being informed in accordance with subsection (4), the court must give the person a certificate in the prescribed form. (6) Information given by a person for which a certificate was given under this section and evidence of any information, document, or thing obtained directly or indirectly as a result of the person having given that information, cannot be used against the person in any other court proceeding in New Zealand except in a criminal proceeding concerning the falsity of the information given. (7) In this section, court proceeding means a civil or criminal proceeding in the High Court or a District Court (including a Family Court or a Youth Court).	C17 If after being informed by the court of the effect of a certificate given under s 4 the person chooses to “waive” the privilege and accept the certificate, the court is required to issue the certificate. There is no discretion about whether to do so according to subs (5). C18 Subsection (6) requires that the certificate issued under s 4 should comprise a binding use and use fruits immunity in return for the specific incriminating information provided by the person in the proceedings. Subsection (6) is modelled on s 128(7) of the Evidence Act 1995 (Aust). The immunities do not extend beyond court proceedings (eg, they have no application in tribunal hearings). Nor will the immunities extend to criminal proceedings for the falsity of the evidence. A person who gives deliberately false self-incriminating information cannot rely on any certificate issued in good faith under the section. C19 Subsection (7) limits the application of s 4 to court proceedings, meaning civil or criminal proceedings in the High Court or a District Court, including Family and Youth Court proceedings. Tribunals, investigating officials or organisations, and courts martial etc are not included within s 4’s scope. Whether or not the privilege, or a statutorily prescribed immunity, applies in those contexts will depend on the particular legislation governing those contexts. Under the Commission’s proposals, when the particular legislation is silent about whether the privilege is claimable, it will be available, if the person satisfies the requirements of s 2.