Testimony: Privilege

Question 1

Definition of privilege

Answer 1

in relation to giving evidence, is the right to refuse to disclose or prevent disclosure of what would otherwise be admissable.

Question 2

Types of privilege

Answer 2

• communications with legal advisors
• solicitors trusts accounts
• preparatory materials for proceedings
• settlement negotations or mediation
• communications with ministers of religion
• information from medical practitioners
• privilege against self-incrimination
• informer privilege.

Question 3

Judges’ discretion with privilege

Answer 3

Section 53(4) grants the judge a wide discretion to prevent disclosure of material.

Question 4

Waiving privilege

Answer 4

• privilege may be waived at any time by the person who is entitled to rely on it
• does not mean privilege has been waived for all purposes
• despite waiver, an “interested person” may still apply for an order that the privileged material remains inadmissable.

Question 5

Definition of “legal professional privilege”

Answer 5

“more than an ordinary rule of evidence … it is a fundamental condition on which the administration of justice as a while rests”

Question 6

Circumstances in which legal privilege may be claimed:

Answer 6

1. the communication must be intended to be confidential
2. communication made for the purposes of obtaining or giving legal services
3. privilege is vested in the person seeking or receiving the legal services
4. privilege does not extend to communications made for dishonest purpose, or to aid in the commission of an offence
5. inadvertently overhearing does not repeal privilege

Question 7

Preparatory materials for proceedings

Answer 7

The privilege applies to a communication made, received, compiled, or prepared for the primary purpose of preparing a proceeding

Question 8

Communication with ministers of religion

Answer 8

Covers religious and spiritual communication, whether or not they involve atonement for sin.

extends to “all communication”

requires that the communication was made in confidence and within the ministers capacity as a minister of religion

Question 9

Rationale behind s59

Answer 9

s59: privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists

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

Question 10

Definition of “self-incrimination”

Answer 10

“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 11

Definition of “informer”

Answer 11

someone who has supplied, gratuitously, or for rewrd, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possibly 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 12

Privilege can be disallowed for informers

Answer 12

by the judge where 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.