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Endnotes

[1] Herman, "The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination and the Involuntary Confession Rule (Part II)" (1992) 53 Ohio State Law Journal 497, 543.

[2] Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination (2nd ed, Macmillan, New York, 1986), 23_24 and Wigmore on Evidence (McNaughton rev Little, Brown & Co, Boston, 1961), vol 8 para 2250_2253.

[3] Langbein, "The Historical Origins of the Privilege Against Self-Incrimination at Common Law" (1994) 92 Michigan Law Review 1047, 1066_1067.

[4] See the competing viewpoints of Levy, 339_340 and Moglen, "Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination" (1994) 92 Michigan Law Review 1086, 1087. In any case, Benjamin Franklin hailed the privilege as one of the "common Rights of Mankind" in 1735; although for some time it was honoured more in the breach than the observance (Levy, 383).

[5] The Covenant and Optional Protocol were adopted by the General Assembly of the United Nations on 16 December 1966. The New Zealand Instrument of Ratification was deposited on 28 December 1978. The International Covenant came into force in New Zealand on 28 March 1979.

[6] For a discussion of the extent of the protection against self-incrimination provided, see Judge Harvey's article "Silence and Self-Incrimination Protections in the Children, Young Persons, and Their Families Act" (1995) 1 Butterworths Family Law Journal 247.

[7] See Adams on Criminal Law (Robertson ed, Brooker & Friend, Wellington, 1992), 2.27.03 for a discussion of corporate liability for criminal offences.

[8] Traditionally, there were two other limbs to the privilege against self-incrimination which have never applied or are obsolete in New Zealand _ forfeiture of estates or interests in land, and ecclesiastical censure. In relation to forfeiture, see Earl of Mexborough v Whitwood Urban District Council [1897] 2 QB 111, 115, where the English Court of Appeal upheld the privilege in an action to enforce a forfeiture of a lease for breach of covenant. For a discussion of ecclesiastical censure, see Bowen LJ's comments in Redfern v Redfern [1891] P 139, 147; Blunt v Park Lane Hotel Ltd [1942] 2 KB 253, 257; Nast v Nast & Walker [1923] 1 All ER 1171. Because there is no established church in New Zealand, it is doubtful whether a witness could ever claim the privilege against ecclesiastical censure.

[9] Section 8A of the Evidence Act 1908 is similar to the common law position:

A witness shall not be excused from answering any question relevant to the proceedings on the sole ground that to answer the question may establish or tend to establish that the witness owes a debt, or otherwise subject the witness to any civil liability.

[10] Dripps, "Self-Incrimination and Self-Preservation: A Skeptical View" (1991) 2 University of Illinois Law Review 329.

[11] Article 14(3)(g) says that every person facing a criminal charge shall have the right "[not] to be compelled to testify against him or to confess guilt." The Bill of Rights Act provisions are discussed fully in chapter 5.

[12] For the privilege to be effective in preventing abuses, those from whom self-incriminating disclosures are sought need to be aware of it: see the discussion in chapter 12 on this issue.

[13] This case is discussed in Gilchrist, "Crime Reporter", Solicitors Journal 14 October 1994, 1046. In an earlier case, Funke v France (1993) 16 EHRR 297, the European Court of Human Rights also held that article 6(1) includes the right of anyone charged with a criminal offence to remain silent and not to contribute to incriminating himself or herself.

[14] Large corporations may sometimes have advantages over the State because of the human and financial resources at their disposal, as might influential and wealthy individuals.

[15] Dennis, "Instrumental Protection, Human Rights or Functional Necessity? Reassessing the Privilege Against Self-Incrimination" (1995) 54 Cambridge Law Journal 342, 357.

[16] See, for example, Mirfield, Confessions (Sweet & Maxwell, London, 1985), 63_68, and s 20 of the Evidence Act 1908 which aims to prevent unreliable confessions as a result of interrogative suggestibility or pressure.

[17] See chapter 4 concerning Mäori suspects.

[18] For a discussion of the causes of false confessions, see Gudjonsson & MacKeith "Retracted Confessions: Legal, Psychological and Psychiatric Aspects" (1988) 28 Med Sci Law 190.

[19] For a discussion of the "rules of attribution" whereby the actions of a company's agent are attributed to the company, see Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 NZLR 7 (PC).

[20] For a more comprehensive list of reasons, see the comments of Jeffries J in R v Andrews [1992] 3 NZLR 62, 70_71 and Criminal Evidence: Police Questioning (NZLC PP21, 1992), para 27.

[21] We cannot say that the defendants' silence caused their conviction, but there is a significant correlation between silence and conviction. The results will be discussed more fully in the Commission's final report on the right of silence and confessions. However, a brief account of the surveys' methodology and design is contained in Appendix C.

[22] Sections 34 to 37 of the Criminal Justice Act 1994 (UK) provide that the exercise of the right of silence, either before or during trial, can lead to adverse inferences being drawn. However, it is too soon to ascertain what effect, if any, this has had on crime and conviction rates. Some two months after the Act came into force, it was suggested that suspects were relying on the right of silence less frequently (Enright, "Crime Notes" (1995) June, New Law Journal Practitioner 64). Whether or not this enabled the police to prosecute more guilty people is unclear.

For recent New Zealand cases on the extent of the jury's right to draw inferences from a refusal to provide self-incriminating evidence, see R v Martin [1992] 1 NZLR 313, R v McRae (1993) 10 CRNZ 61, and R v Andrews [1992] 3 NZLR 62, 66.

[23] Sopinka, The Law of Evidence in Canada (Butterworths, Canada, 1992), 736.

[24] Under s 5(b) of the Law Commission Act 1985, the Law Commission must "take [ ] into account te ao Mäori (the Mäori dimension)" in making its recommendations.

[25] This stems from article 3 of the Treaty of Waitangi, which contains a double-limbed guarantee of legal equality between Mäori and other citizens, and of actual enjoyment of social benefits (Department of Justice, Principles for Crown Action on the Treaty of Waitangi, 1989, 10).

[26] The hui was held at the Commission on 21 November 1994.

[27] M Jackson, The Mäori and the Criminal Justice System, He Whaipaanga Hou _ A New Perspective (Department of Justice, Wellington, 1988), 134.

[28] However, it should be noted that there are Western-Christian legal concepts which reflect ideas of collective responsibility. For example, in tort law, vicarious liability imposes liability on one person for the conduct of another. Thus, an employer is liable for the wrong done by an employee if the latter was acting in the course of his or her employment.

[29] Patterson, Exploring Mäori Values (Dunmore Press, Palmerston North, 1992), 149.

[30] Jackson, 134.

[31] "Manäki" is often translated as "to entertain or befriend, to show respect or kindness". In the present context, it is used to express something deeper _ namely, the generosity and help relatives owe to each other (Patterson, 149).

[32] The Commission arranged for the collation of information about the effect ethnicity has on the exercise of the right of silence in police stations. Unfortunately, the data collected on this was not reliable, due to spasmodic recording and categorisation.

[33] Tate, "The Unseen World" (1990) 5 New Zealand Geographic 90_91.

[34] "Self-Incrimination: Removing the Coffin Nails" (1989) 35 McGill Law Journal 73, 103.

[35] On s 11(c), there is a long line of cases flowing from R v Herbert (1991) 57 CCC (3d)

1 (SCC).

[36] Cotton, "Company Directors and the Privilege Against Self-Incrimination in Civil Proceedings: Is Use Immunity the Answer? Part 1" (1994) 15 The Company Lawyer 99, 100.

[37] For a more recent English case on Anton Piller orders, see IBM United Kingdom Ltd v Prima Data International Ltd [1994] 4 All ER 748.

[38] For a discussion of some other options for preventing abuses, such as restrictions on the mode of service, attendance of a solicitor etc, see Wilkinson, "Recent Developments Affecting Anton Piller Orders" (1993) 23 Hong Kong Law Journal 79.

[39] Bowen LJ, Redfern v Redfern [1891] P 139, 147.

[40] In Bell, the Victorian Supreme Court held that proceedings by the plaintiff for debts owed to it by a defendant company under s 556 of the Companies (Victoria) Code were not proceedings for a penalty. Murphy J stated:

[T]he action, in my opinion, is clearly not an action for a penalty. It is an action, given it is true by statute, to recover money lost by a third party, in circumstances specified in which a director of an allegedly insolvent company has authorised or permitted it to continue to trade to the direct detriment of the third party. (1130)

[41] New Zealand courts are also likely to apply the common law privilege to audio and video tapes put in evidence as a statement.

[42] For example, McMullin J said:

There may be cases where permission to examine an object would involve a person in a testimonial disclosure of an incriminating nature eg, if possession of a specific class of fruit constitutes an essential element of an offence, the act of allowing such fruit to be examined in response to a request to do so may be taken as an admission by the person complying that he has possession of it. But in the present case one of the respondent's directors had already admitted that there were red delicious apples in its cool store. Therefore, any permission granted to inspect them could be seen simply as a response to the inspection request brought about by that admission, not as an independent testimonial assertion of possession. (195)

[43] Mathieson, 10.

[44] For a discussion of this case see Tarallo, "The Fifth Amendment Privilege Against Self-Incrimination: The Time Has Come for the United States Supreme Court to End its Silence on the Rationale Behind the Contemporary Application of the Privilege" (1992) 27 New England Law Review 137, 155.

[45] In recommending that the privilege should remain for newly created documents, we emphasise that the category does not include documents created independently of the investigator's specific request (eg, documents created to conceal evidence).

[46] As already cited, the Privy Council has considered the agency relationship between a company and officers acting on its behalf in Meridian Global Funds Management Asia v Securities Commission [1995] 3 NZLR 7 (PC).

[47] See McNicol, 161, where these issues are thoroughly canvassed.

[48] See R v Amway Corp (1989) 56 DLR (4th) 309 and B C Securities Commission v Branch (1995) 123 DLR (4th) 462 (SCC).

[49] Letter from S Kos to the Commission dated 1 February 1995.

[50] See Mason CJ's and Toohey J's comments to this effect in Caltex at 137 and the discussion in chapter 2.

[51] For a discussion of the effect on the burden of proof of removing the right of silence, see Criminal Evidence: Police Questioning (NZLC PP21, 1992), paras 15_25.

[52] Lord Diplock in Rio Tinto Zinc Corporation Ltd v Westinghouse Electric Corporation Ltd [1978] AC 547, 637: see also Murphy J's comments in Rochfort v Trade Practices Commission (1983) 57 ALJR 31, 37.

[53] 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.

[54] Ciardiello, "Seeking Refuge in the Fifth Amendment: The Applicability of the Privilege Against Self-Incrimination to Individuals Who Risk Incrimination Outside the United States" (1992) 15 Fordham International Law Journal 722, footnote 3.

[55] In 1994, the Social Services Select Committee initiated an inquiry into the privilege provisions of s 11 of the Social Security Act 1964. The Social Welfare Reform Bill (No 3), together with s 11, was also the subject of a submission by the Legislation Advisory Committee in 1994. Proposed s 11(4) only protected people suspected of the offences specified in the section. The common law privilege has no such qualification. The Select Committee decided that the broader scope of the privilege should be reflected in s 11.

[56] The Commissions of Inquiry Act was amended in 1995 to bestow upon retired judges, appointed as members of Commissions of Inquiry, the same powers, privileges and immunities applicable to judges of the High Court under the Judicature Act 1908. These include the power to order that a witness who refuses to attend or disclose information is in contempt: see, in particular, s 13A.

[57] At first sight, s 17 of the Evidence Act 1908 contains a transactional immunity, but the intent behind the provision, and how the immunity works, is difficult to grasp.

[58] "Company Directors and the Privilege Against Self-Incrimination in Civil Proceedings: Is Use Immunity the Answer? Part 3" (1994) 15 The Company Lawyer 163.

[59] Para 4.2, cited in Cotton, "Company Directors and the Privilege Against Self-Incrimination in Civil Proceedings: Is Use Immunity the Answer? Part 2" (1994) 15 The Company Lawyer 131.

[60] For a recent report discussing the Australian Securities Commission's powers, see Senate Legal and Constitutional References Committee, Investigatory Powers of the Australian Securities Commission (Canberra, 1995).

[61] Department of Justice, Report to the Justice and Law Reform Select Committee: Serious Fraud Office Bill (Wellington, 6 April 1990).

[62] In a letter dated 14 August 1995 from the Director of the Serious Fraud Office.

[63] Meeting with the Serious Fraud Office on 17 June 1996.

[64] Department of Justice Report, 19.

[65] For discussion of spousal privilege in the context of serious fraud, see Hawkins v Sturt [1992] 3 NZLR 602. As already noted in chapter 10, spousal privilege should not be confused with the privilege against self-incrimination's possible application to protect a witness's spouse.

[66] This is often because the Office uncovers more minor offending in the course of a much longer investigation.

[67] In referring to the minimum monetary limit required before the United Kingdom Serious Fraud Office will investigate, we are not advocating that monetary amounts alone should determine whether fraud is serious or complex in New Zealand.

[68] Section 49(1) authorises gas inspectors to request information to ensure gas fittings are in a safe condition, and s 15 deals with questioning in civil or criminal proceedings as distinct from investigations.

[69] Letter from the Director of the Serious Fraud Office, 19 June 1996.

[70] "The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination and the Involuntary Confession Rule (Part II)", 550.

[71] The Judges' Rules are rules originally formulated by English judges in 1912 (and supplemented and clarified in 1918 and 1930, although now no longer in operation in England) to provide guidance to police officers conducting investigations. Rule 2 of the Judges' Rules says that whenever a police officer has made up his or her mind to charge a person with a crime, a caution should first be given before the person is asked any questions or further questions. Rule 3 provides that "persons in custody should not be questioned without the usual caution being first administered". An explanatory note to rule 3 indicates that the rule was never intended to encourage or authorise the questioning or cross-examination of a person in custody after cautioning.

[72] Letter from the Chairman, Mr P McKenzie, dated 21 December 1994, and discussion with members of the Securities Commission on 15 March 1995.

[73] As we have seen in chapter 2, claims of privilege may also enhance the discovery of the truth because of the privilege's role in screening out unreliable compelled disclosures.

[74] Lord Browne-Wilkinson quoted by Frommel "The Right to Silence and the Powers of the Serious Fraud Office" (1992) 15 The Company Lawyer 227.

[75] Letter to the Commission from L Goddard, Deputy Solicitor-General, dated 3 August 1995.

[76] See also MAF v Imlach (unreported, District Court, Wellington, 8 October 1993, CRN 03 5469327): Jaine DCJ's notes on sentencing.

[77] Letter to the Commission from L Doubleday, National Taxpayer Audit, dated 10 August 1995.

[78] Letter to the Commission from J Singh, dated 2 May 1995.

[79] Corns has recently looked at the types of indemnities given by prosecution agencies in "The `Big Four': Privileges and Immunities" (1994) 27 The Australian and New Zealand Journal of Criminology 133, 148.

[80] Quoted by Corns, 148.

[81] The courts exercising federal jurisdiction include the High Court, federal court, industrial relations court and family court. The Evidence Regulations 1995 prescribe a form of certificate under s 128: see Appendix D.

[82] In the situation where a defendant gives evidence against a co-defendant in return for a certificate of immunity, the immunity prevents the evidence from being used against the defendant who gives the evidence.

[83] Commonwealth of Australia Parliamentary Debates, Standing Committee on Legal and Constitutional Affairs Hansard, Evidence Bill 1993, 4 March 1994.

[84] Attorney-General's Department, "Commonwealth Evidence Law: Evidence Act 1995" (AGPS, Canberra, 1995), para 128.8.