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Introduction

1 WE CANNOT BE REQUIRED by the State to provide information which may expose us to criminal liability. That is the essence of the privilege against self-incrimination, the subject-matter of this paper.

2 In this paper, the privilege against self-incrimination is kept distinct from two related concepts. The first is our general freedom to refuse to answer any questions and the second is the right of silence available to those suspected of or charged with crime.

3 To begin with the first and broadest idea, we are all generally free to refuse to say anything to anybody, especially to the State. That freedom is, however, subject to many limits, mainly imposed by statute. Therefore, in the public interest, we are required to provide information to protect the border (immigration, customs and agriculture forms), the revenue (tax returns), public health (communicable disease notifications) and financial and commercial probity (company returns), to give just a few examples. This paper does not in any general way scrutinise the various statutory powers compelling people to provide information in the public interest. It is concerned solely with the common law privilege against self-incrimination and the situations in which legislation reflects, removes or restricts that privilege.

4 The second idea referred to above, the right of silence, is often linked with, but is different from, the privilege against self-incrimination. The right of silence allows a suspect in a criminal investigation to refuse to answer questions, incriminating or not, put to him or her by a law enforcement officer. In addition, at trial, the existence of the right means that a defendant can choose not to testify at all. In New Zealand, the right largely precludes adverse comment being made at trial on the defendant’s exercise of the right. Section 366 of the Crimes Act 1961 permits only judicial comment on the defendant’s exercise of his or her right not to give evidence at trial.

5 In one sense, the right of silence is broader than the privilege, because it can be invoked in response to any question in a criminal context, whether self-incriminating or otherwise. In another sense, the right of silence is narrower than the privilege. The former applies only in the context of criminal investigations and proceedings, enabling a suspect or defendant to remain silent at the investigative stage and decline to testify in the proceedings against him or her. The privilege can be claimed in a variety of contexts, including civil discovery, disciplinary proceedings, before commissions of inquiry, and under examination on oath by a judicial officer. The privilege, like the right of silence, cannot be claimed by a criminal defendant who chooses to testify in the proceedings against him or her concerning a particular matter in issue in those proceedings (s 5(4)(a) Evidence Act 1908).

6 In some instances, legislation imposes an obligation on a person to provide information or answer questions (removing the right of silence), while expressly retaining the privilege against self-incrimination: see the discussion on legislation referring to the privilege in chapter 12. The privilege extends to the production of documents and, in limited circumstances, to other tangible evidence (although the situation varies from jurisdiction to jurisdiction). It is unlikely that the right of silence could legitimately be claimed in response to a demand for documents. In addition, while a sworn witness cannot invoke the right of silence, he or she may generally claim the privilege against self-incrimination as a reason for withholding testimony. In these particular contexts, there is an obvious difficulty in placing reliance on the right of silence as a support for the privilege.

7 When legislation removes or restricts the common law privilege, the courts or the legislature may prevent the use of the self-incriminating information disclosed. For example, s 49(3) and (4) of the Gas Act 1992 provides that no person shall be excused from disclosing incriminating information and replaces the privilege with protection from the use of the information in other proceedings against him or her. For other examples of provisions which explicitly remove or restrict the privilege, see the chart in Appendix B and the discussion in chapter 12.

8 There are many more provisions which may, depending on how they are interpreted by the courts, impliedly remove or restrict the privilege. For example, s 17 of the Securities Act 1978 gives the Securities Commission information-gathering powers, including the power to summons witnesses to appear before it to answer questions: see the discussion about that provision in chapter 14, beginning at para 373.

9 This separate study of the privilege against self-incrimination offers the opportunity to explore issues of criminal procedure which could not be considered in the Commission’s paper on the general law of privilege (Evidence Law: Privilege (NZLC PP23, 1994), while taking in issues of wider scope than those discussed in the Commission’s papers on the right of silence, confessions and police questioning, (Criminal Evidence: Police Questioning (NZLC PP21, 1992) and Police Questioning (NZLC R31, 1994).

10 To describe the privilege against self-incrimination as a “privilege” is itself somewhat misleading. It in fact confers a right to protection, and should be distinguished from other “privileges” discussed in NZLC, PP23 (for example, legal professional privilege), on the basis that it is a safeguard recognised in the New Zealand Bill of Rights Act 1990: see chapter 5.

11 The legislative proposals in the Commission’s previous paper on the general law of privilege did not deal with the privilege’s application at an investigation stage. In this paper, however, we look at the privilege against self-incrimination in investigations and proceedings. This is a reflection of the fundamental nature of the privilege. In addition, decisions made at an investigation stage impact upon the admissibility of evidence in proceedings.

12 A glossary follows this introduction, to assist the reader with some of the more technical language in the area. The reform issues considered in the paper are summarised following this introduction, and again at the beginning of each relevant chapter. The paper is organised into three parts: general considerations, the common law privilege, and legislation and the privilege.

13 In chapter 1, we examine the historical origins and common law applications of the privilege in various contexts. The interests said to justify the privilege are assessed in chapter 2. Chapter 3 gives consideration to an alternative to the common law approach – complete abrogation and replacement with a use immunity. In chapters 4 and 5, Mäori dimensions and the Bill of Rights Act are considered. Chapters 6 to 11 consider contextual issues about the application of the common law privilege. These include the application of the privilege in civil contexts, to civil penalties, documentary and other evidence, to corporations and a claimant’s spouse, and to incrimination arising under foreign law. Chapters 12 to 15 analyse statutory developments in New Zealand affecting the common law privilege in particular contexts, and should not be confused with the more fundamental discussion in earlier chapters about whether the privilege should be completely removed in all contexts. Draft provisions and an accompanying commentary follow. Finally, there are appendices, a bibliography, and an index.