Contents

Chapter 9
The penalty privilege

Commission view

9.9The Law Commission recommends that individuals should have the benefit of the penalty privilege when faced with possible pecuniary penalty proceedings. The Commission recognises that some existing enforcement agencies may have concerns about this recommendation. However, we are persuaded that the basis is sound, both in law and principle, for this protection to apply.

9.10The protection should not be absolute. There will be regimes where the privilege should be limited because of the greater public interest in the effective and efficient oversight of the statute. Our recommendations make it clear that, like the privilege against self-incrimination, individual statutes should be able to exclude the application of the penalty privilege either expressly or by necessary implication.167 However, the nature of pecuniary penalties as a potentially grave State penalty clearly supports a presumption in favour of the penalty privilege.

9.11In the criminal sphere, the rationales for the privilege against self-incrimination are:

9.12These same rationales may be applied to investigations and proceedings that can give rise to pecuniary penalties. The potential penalty can be very significant, indeed it can be substantially larger than many criminal monetary penalties. While pecuniary penalties cannot result in conviction or imprisonment, they can still result in stigma and reputational harm, as we explained in Chapter 4.

9.13While some defendants to pecuniary penalty proceedings might be very large and well-resourced corporate actors, pecuniary penalties can be used against a wide range of more vulnerable people. Therefore the imbalance between the State and defendant might sometimes be just as acute in pecuniary penalty proceedings as it is in criminal proceedings.

9.14To investigate potential statutory breaches punishable by pecuniary penalties, State enforcement bodies can use intrusive investigatory powers. Pecuniary penalty breaches can be investigated by officials in much the same way as criminal offences. It follows that the same concerns about coercion and the reliability of evidence obtained in those circumstances can be present.

9.15At present, New Zealand is out of step with Australia on this issue. In Rich v Australian Securities Investment Commission,168 the High Court of Australia confirmed that the common law privilege applies to pecuniary penalties there. In response to that decision, the Federal Parliament amended the Corporations Act 2001 (Cth) to abrogate the privilege in proceedings for disqualification orders, but retained it for pecuniary penalties. In its 2002 report on civil and administrative penalties, the Australian Law Reform Commission also recommended statutory expression of the penalty privilege, saying:169

It is apparent that some civil and administrative penalties carry consequences that are just as serious as traditional criminal punishments. ... [T]he conventional common law readiness to remove the privilege more easily in relation to non-criminal penalties may require reassessment in light of the convergence of the severity of criminal punishments and non-criminal penalties.

9.16A general penalty privilege is also recognised by section 14 of the United Kingdom’s Civil Evidence Act 1968 (emphasis added):

14 Privilege against incrimination of self or spouse or civil partner
(1) The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty
(a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law; and
(b) shall include a like right to refuse to answer any question or produce any document or thing if to do so would tend to expose the spouse or civil partner of that person to proceedings for any such criminal offence or for the recovery of any such penalty .
(2) In so far as any existing enactment conferring (in whatever words) powers of inspection or investigation confers on a person (in whatever words) any right otherwise than in criminal proceedings to refuse to answer any question or give any evidence tending to incriminate that person, subsection (1) above shall apply to that right as it applies to the right described in that subsection; and every such existing enactment shall be construed accordingly.
9.17The conclusions we have drawn in Chapter 6 of this Report about the manner in which pecuniary penalties statutes need to be designed with the New Zealand Bill of Rights Act 1990 in mind reinforces the need for the privilege. Provision for the privilege (with the potential for it to be limited where justifiable) is preferable because it minimises the risk that the rights in that Act will be breached. The penalty privilege creates perhaps the most fertile ground for rights-based challenges to pecuniary penalties, which may also be strengthened by the Australian case law. An argument could be made under section 27(1) of the Act that a defendant in quasi-criminal proceedings such as those for a pecuniary penalty is entitled to the protection of the privilege. The fact that the Evidence Act 2006 never expressly abrogated the privilege may further increase the likelihood of a challenge.170
9.18There may also be grounds for challenge where pecuniary penalty regimes are supported by investigatory powers. Where such powers exist, section 21 of the New Zealand Bill of Rights Act, which guarantees the right to be free from unreasonable search, will be relevant. Section 6 of that Act requires that, where possible, legislation should be interpreted consistently with the rights contained in it. Arguably, the privilege needs to be afforded to those subject to the exercise of those powers to ensure that the search is considered to be reasonable under section 21. This is particularly so where there is a criminal offence for failure to comply with the exercise of the search power.171
9.19Finally, we note that, on its face, this recommendation departs from the Law Commission’s conclusions in its 1996 review of the privilege. However, there is no evidence that the removal of the privilege by the Evidence Act 2006 was undertaken in the light of specific consideration of pecuniary penalties. In a 1996 discussion paper on the privilege against self-incrimination, the Law Commission favoured retaining the broad penalty privilege for the reasons set out above.172 However, submitters argued against the codification of the privilege on two grounds: first, that it is difficult to determine whether some existing legislative sanctions amount to a “penalty” in law; and secondly, that the existence of the privilege is difficult to justify when no protection exists for other serious civil orders, such as loss of custody of a child, injunctive orders or substantial damages. Based on these submissions, the Commission did not recommend the inclusion of the penalty privilege in the Evidence Code.

9.20In contrast, the question in our review is whether a penalty privilege should be in place specifically and only for those investigated and pursued in court for a pecuniary penalty. We are not concerned with the wider, pre-existing common law penalty privilege.

9.21We think that, on this question, there are strong arguments that counter the concerns raised by submitters to the 1996 review and that those arguments were not given adequate attention in that review. This is not surprising given that there were very few pecuniary penalty provisions on the statute book at that time, and the statutes that did provide for them in 1996 dealt specifically themselves with the question of privilege.173

9.22We have no difficulty in determining that pecuniary penalties are penalties in law. In addition, they clearly differ from the examples used by submitters to the 1996 review, which have as their purpose resolving issues around family separation, and the protection from or reparation of harm. It is our strong view that the nature of pecuniary penalties, when combined with the justifications for the privilege against self-incrimination, mean that the privilege should be afforded to those faced by them. In reaching this decision, we do not take issue with the view reached by the Commission on the penalty privilege in its original review of the law of evidence. Rather, that review was undertaken against the background of a different legislative environment.

Impact of the privilege on regulatory efficiency and effectiveness

9.23Concerns about the general impact of the privilege on regulatory regimes are illustrated by the Financial Markets Authority’s (FMA) observation in its submission that its:

… application in the context of financial markets legislation would create practical difficulties for FMA in carrying out its functions as they relate to civil penalty enforcement and other civil remedies. We do not think that there is, in terms of their public policy objectives, so sharp a distinction between civil penalties and other civil remedies that FMA may pursue. Ultimately the full range of actions is designed to provide incentives to encourage compliance – or to deter non-compliance in a fair and proportionate manner.

9.24A key finding of this Report is that, while public policy objectives are relevant to the way a penalty is designed, procedural safeguards must also reflect the true nature and impact of that penalty on the full range of potential defendants.

9.25We have signalled clearly that regulatory efficiency and effectiveness should be a guiding principle where the design of pecuniary penalties is concerned. We have also suggested that regimes will be best protected from challenge under the New Zealand Bill of Rights Act if section 5 of that Act is used as the benchmark for when procedural safeguards can justifiably be limited. Clearly, on some occasions the public policy objectives referred to by the FMA will be such that they demonstrably justify the reasonable limitation of the penalty privilege. The ability to limit the privilege in this manner, we consider, addresses concerns that the privilege will impede regulatory efficiency and effectiveness. We think there will be adequate justification to limit the application of the penalty privilege in some existing pecuniary penalty regimes, and we would support its limitation where that justification exists.

Limiting or removing the privilegeTop

9.26Circumstances that may justify the modification or removal of the privilege are:

9.27As set out above, the Commerce Act 1986 provides that the privilege against self-incrimination is not available to those investigated under that Act. In its place, section 106(5) provides for immunity against the use of statements made in answer to questions put by or before the Commerce Commission in both criminal and pecuniary penalty proceedings.

9.28Where a case can be made to limit the privilege, a question arises as to whether the approach taken in the Commerce Act should be repeated. An alternative formulation might be that individuals cannot refuse to answer questions or provide information to the enforcement agency, but that “specific information” provided in response to those questions or requests for information cannot be used against them in subsequent pecuniary penalty proceedings. This approach would be consistent with the Evidence Act.

9.29Ultimately, however, the approach in each statute must be justified on a case-by-case basis. Any limitation of the penalty privilege will need to be context-specific and, we recommend, done in a manner that adopts the approach in section 5 of the New Zealand Bill of Rights Act.

Impact of the privilege on regimes with associated civil ordersTop

9.30Some submitters raised a practical concern that under certain regimes the privilege will impair the ability of enforcement bodies and private plaintiffs to pursue actions for compensation and other orders. Under a number of statutes, a finding of liability in proceedings taken by the enforcement body can form the basis both for the imposition of a pecuniary penalty in favour of the Crown, and for compensation orders in favour of those who have suffered loss. Nine existing statutes provide for this, in a variety of ways. One example is section 124D of the Hazardous Substances and New Organisms Act 1996, which provides:174
Other orders instead of or in addition to pecuniary penalty order
(1) At the conclusion of proceedings for an order for the payment of a pecuniary penalty under section 124B, the court may, instead of or in addition to making the order, make—
(a) an order that the person mitigate or remedy any adverse effects on people or the environment—
(i) caused by or on behalf of the person; or
(ii) relating to any land that the person owns or occupies; or
(b) an order to pay the costs of mitigating or remedying the adverse effects specified in paragraph (a).
(2) At the conclusion of proceedings for an order for the payment of a pecuniary penalty under section 124B, the court may, instead of or in addition to making the order, make an order for the destruction of the new organism involved in the breach.
(3) To avoid doubt, the court may make an order under either or both of subsections (1) and (2) against the same person in respect of the same breach.

9.31This aspect of the design of pecuniary penalty statutes provides considerable benefits. For example, victims of a finance company collapse can rely on the Financial Markets Authority’s liability proceedings to obtain compensation. This enables savings for victims, enforcement bodies and the court system. It also preserves defendants’ funds for meeting compensation claims rather than defending further litigation.

9.32Difficulty arises because any protection afforded by a penalty privilege, in the investigation and pursuit of pecuniary penalty proceedings, might inhibit findings of liability and so impede the award of compensation orders under those particular provisions. Some of those consulted emphasised their concerns about this.

9.33In addressing this concern, it is necessary to consider the scope of the proposed privilege.

Scope of the penalty privilege

9.34We propose that the penalty privilege should have the same scope as the privilege against self-incrimination. This makes sense from a principled point of view if the rationale for both forms of the privilege is the same. It is also the most straightforward approach. Varying the scope of the two privileges would pose practical difficulties for agencies administering Acts that provide for both criminal offences and pecuniary penalties for the same conduct.

9.35The privilege against self-incrimination is provided for by section 60 of the Evidence Act:

(1) This section applies if—
(a) a person is (apart from this section) required to provide specific information—
(i) in the course of a proceeding; or
(ii) by a person exercising a statutory power or duty; or
(iii) by a Police officer or other person holding a public office in the course of an investigation into a criminal offence or possible criminal offence; and
(b) the information would, if so provided, be likely to incriminate the person under New Zealand law for an offence punishable by a fine or imprisonment.
(2) The person—
(a) has a privilege in respect of the information and cannot be required to provide it; and
(b) cannot be prosecuted or penalised for refusing or failing to provide the information, whether or not the person claimed the privilege when the person refused or failed to provide the information.
(3) Subsection (2) has effect—
(a) unless an enactment removes the privilege against self-incrimination either expressly or by necessary implication; and
(b) to the extent that an enactment does not expressly or by necessary implication remove the privilege against self-incrimination.
(4) Subsection (2) does 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 a legal adviser on behalf of a client who is so required); or
(c) by a defendant in a criminal proceeding when giving evidence about the matter for which the defendant is being tried.
(5) This section is subject to section 63.

9.36Three points should be made. First, the privilege against self-incrimination only applies to “specific information”. “Information” is defined in the section 51(3) of Evidence Act as:

… a statement of fact or opinion given, or to be given,—
(a) orally; or
(b) in a document that is prepared or created—
(i) after and in response to a requirement to which any of those sections applies; but
(ii) not for the principal purpose of avoiding criminal prosecution under New Zealand law.
9.37The privilege against self-incrimination does not, therefore, protect pre-existing documents. Nor does it apply to “things”.175 Use of the term “specific” in section 60 is intended to make it clear that the privilege cannot be used as the basis for blanket refusals to provide information. It can only be claimed in relation to specifically identified information.

9.38Secondly, the privilege relates only to compelled self-exposure. Use of the words “in response to a requirement” within the definition of “information” connotes the requirement of compulsion.

9.39Thirdly, the privilege does not extend to bodies corporate. One of the most compelling reasons for this is that bodies corporate, as distinct from their officers, cannot be pressured into making unreliable statements, nor are they affected by abuses of power of a direct physical or psychological nature.176
9.40The result is that the protection afforded by the privilege against self-incrimination, by virtue of the Evidence Act, is relatively narrow. It is intentionally narrower than under the pre-existing common law.177

9.41Concern about the impact of the proposed penalty privilege on pecuniary penalty statutes with associated compensatory orders must be seen in this light. It will only impede access to statutory compensation orders where:

In other words, it would only impact where the success of the proceedings hinged on having access to evidence that could only be obtained through compelled disclosure of “specific information” by the individual defendant.

9.42The extent to which this will be materially problematic depends on the context of the regime and conduct it targets. For example, we understand that in its investigations into unsolicited electronic messages, the Department of Internal Affair’s anti-spam unit relies most heavily on evidence such as pre-existing records of email traffic to establish whether a breach has occurred, rather than compelled self-disclosure.

9.43However, where the regime or conduct at hand is such that investigations and access to statutory compensatory orders would be materially impeded by the privilege, this will be a factor to be taken into account when deciding whether the privilege should be limited.

9.44Other matters further reduce the concern about the impact the privilege might have on pecuniary penalty/compensatory regimes. First, wherever a pecuniary penalty statute contains criminal offences for the same or similar conduct, an enforcement body’s investigation would in any event be inhibited by the privilege against self-incrimination. For example, all breaches of the Anti-Money Laundering and Countering the Financing of Terrorism Act 2009 can be punished by a pecuniary penalty or, if done knowingly or recklessly, by a criminal offence. Any investigation under that Act could potentially lead to prosecution, and so an individual could rely on the privilege against self-incrimination. Application of the penalty privilege in these circumstances would not place any greater impediment on the enforcement body at the investigatory stage.

9.45Secondly, victims will still have available to them the usual avenue of taking their own proceedings for compensation. This reflects the position with the award of compensatory orders in relation to criminal offending. It is true that criminal courts can order reparation under section 32 of the Sentencing Act 2002. Reparation is intended to provide “a simple and speedy means of compensating those who suffer loss from criminal activities” so that they do not need to seek a civil remedy.178 However, it can only be ordered after a finding of criminal guilt, meaning that the defendant will have had the benefit of the privilege against self-incrimination. Whether or not guilt is established, the victim still has the option of seeking compensation through the civil courts.

9.46In short, we do not view the concern about the practical impediment to obtaining compensation orders as a basis for defeating the point of principle that the penalty privilege should be available to those facing pecuniary penalties. However, it might be a factor that favours the limitation of the privilege in certain statutes.

Impact of the privilege on court procedureTop

9.47If the penalty privilege is to apply to pecuniary penalty proceedings, a question arises as to what, if any, impact it should have on court procedure, both at the pre-trial stage (because of the information that is required to be disclosed), and at trial (if a defendant is required to take the stand and give evidence).

Pre-trial

9.48The privilege has had an impact on the manner in which pecuniary proceedings are run in Australia. There, defendants are not generally required to file a detailed defence, other than indicating whether allegations in the statement of claim are admitted, not admitted or denied. However, orders may be made requiring defendants to identify any positive defence or statutory ground of dispensation to be relied upon. Courts have also inhibited enforcement bodies’ ability to counteract the limits on defence disclosure, by taking a narrow approach to when enforcement bodies can adduce additional evidence after their case is closed. In Rich v Australian Securities Investment Commission,179 the High Court of Australia noted that the privilege has its origins in the rules of equity relating to discovery. Equity’s principle was that an order for discovery or for the administration of interrogatories in favour of the prosecutor, whether the prosecutor was the Crown, a common informer or some other person, should not be made where the proceeding was of such nature that it might result in a penalty or forfeiture.180
9.49The objective of the New Zealand High Court Rules is to “secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application”.181 The Rules are designed for the determination of civil proceedings. The procedure for criminal cases in the High Court is dictated by the Criminal Procedure Act 2012 and Criminal Procedure Rules 2012.

9.50Some High Court rules demand that both parties to proceedings must disclose full information, including information that is adverse to their case. Examples are:

(a) that the interrogatory does not relate to a matter in question between the parties involved in the interrogatories:
(b) that the interrogatory is vexatious or oppressive:
(c) that the information sought is privileged:
(d) that the sole object of the interrogatory is to ascertain the names of witnesses.
9.51On their face, it is possible that each of these rules may impinge on the proposed penalty privilege for pecuniary penalty hearings. However, the High Court Rules may already provide the court with adequate flexibility to vary procedure in pecuniary penalty proceedings, where it is required to give effect to the privilege. For instance, rules 8.8 and 8.9 provide for tailored discovery, which “must be ordered when the interests of justice require an order involving more or less discovery than standard discovery would involve”.183 Under rule 8.36, a judge may order that answers to interrogatories under rule 8.34 are not required, or need only be given to specified interrogatories or classes of interrogatories, or to specified matters that are in question in the proceeding.

9.52Most notably, rule 1.4(4) provides:

If in any civil proceedings any question arises as to the application of any provision of these rules, the court may, either on the application of a party or on its own initiative, determine the question and give any directions it thinks just.

9.53Our impression is that judges are alert to the punitive nature of pecuniary penalty proceedings and do vary procedures where necessary. On balance we consider that rule 1.4(4), in particular, may provide judges with adequate flexibility to give due recognition to the penalty privilege. However, we note the growing number of existing and proposed forms of coercive or punitive orders that are imposed through the civil courts. Questions of privilege and fairness arise equally in relation to those orders. If such orders continue to be introduced, we suggest that there may be a case for the Rules Committee to consider whether more tailored processes and rules are required.

At trial

9.54Under section 73(1) of the Evidence Act, a defendant in a criminal proceeding cannot be compelled to be a witness in that proceeding.184 Once giving evidence, a criminal defendant cannot claim any protection from the privilege against self-incrimination.185 In essence, he or she waives the privilege by choosing to give evidence. However, this lack of protection is compensated for by the defendant’s non-compellability.

9.55Defendants in civil proceedings can be compelled to give evidence. If they are summoned to do so, such a defendant may be able to refuse to answer a question on the grounds of the privilege against self-incrimination, since section 62 of the Evidence Act provides:

62 Claiming privilege against self-incrimination in court proceedings
(1) If in a court proceeding it appears to the Judge 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 Judge must satisfy himself or herself that the person is aware of the privilege and its effect.
(2) A person who claims a privilege against self-incrimination in a court proceeding must offer sufficient evidence to enable the Judge to assess whether self-incrimination is reasonably likely if the person provides the required information.

9.56At present, defendants have no such protections when they are at risk of exposing themselves to a pecuniary penalty. In those circumstances, they may be both compelled to give evidence and required to disclose information that exposes them to a pecuniary penalty.

9.57In Australia, the Evidence Act 1995 (Cth) deals with this matter by providing:186
128 Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b) is liable to a civil penalty.
(2) The court must determine whether or not there are reasonable grounds for the objection.
...
(4) The court may require the witness to give the evidence if the court is satisfied that:
(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b) the interests of justice require that the witness give the evidence. ...

As in New Zealand, bodies corporate cannot claim this privilege.

9.58In our view, defendants to pecuniary penalty proceedings should not be compelled to expose themselves to a penalty when they give evidence at trial. To allow this would clearly defeat the protection afforded by the privilege.

9.59This position should not be achieved by making defendants non-compellable witnesses in pecuniary penalty hearings. Instead, we propose that such defendants should be able to refuse to answer questions that might expose them to a pecuniary penalty. The protection afforded by this should be the same in scope as that proposed for the penalty privilege. As such, it should not allow blanket refusals to answer. As under section 62(2) of the Evidence Act, and section 128 of the Australian Evidence Act, the judge hearing the proceedings should determine whether the claim of privilege is valid.

How should the penalty privilege be provided for?Top

9.60There are two options for providing for the penalty privilege for pecuniary penalties. Each pecuniary penalty statute could be amended to allow specifically for it. Alternatively, the Evidence Act could be amended. We prefer the latter approach. Inclusion of the privilege in the Evidence Act would have the benefit of setting a clear standard for pecuniary penalties that is distinct from any of the regimes in which they are used. It would make the default rule clear, irrespective of regimes that take a modified approach. It would also mean any proposal to depart from it would have to be clearly signalled, and so more likely to be the subject of appropriate debate. As in section 60(3) of the Evidence Act, the new provision should state that the penalty privilege has effect:

(a) unless an enactment removes the privilege, either expressly or by necessary implication; and
(b) to the extent that an enactment does not expressly, or by necessary implication, remove the privilege.

9.61Work towards amendment of the Evidence Act to provide for the penalty privilege must be done alongside work to identify the existing regimes where limitation of the privilege will be justifiable. Those Acts will require amendment to give effect to any such limitation.

Recommendations

R5 The Evidence Act 2006 should be amended:
(a) To provide for a privilege against self-exposure to a pecuniary penalty. The scope of the privilege should be the same as the scope of the privilege against self-incrimination.
(b) To make it clear that an enactment can remove the privilege either expressly or by necessary implication.
(c) To provide that defendants in pecuniary penalty proceedings can, when giving evidence in court, refuse to answer questions on the grounds of the privilege against self-exposure to a pecuniary penalty.

R6 If the limitation or removal of the penalty privilege can be justified under any of the existing pecuniary penalty statutes, those statutes should be amended to give effect to that limitation at the same time that the Evidence Act 2006 is amended.

GUIDELINE

G6 People investigated or proceeded against for a pecuniary penalty should have the benefit of a privilege against compelled self-exposure to a pecuniary penalty

A statute may limit or remove the privilege against self-exposure to a pecuniary penalty if the limit is reasonable and can be demonstrably justified. Individual rights will be best protected by the adoption of the approach in section 5 of the New Zealand Bill of Rights Act 1990.

Where a case can be made to limit the privilege, the form of the limitation should be context specific. It should balance appropriately the particular needs of the regime at hand with fairness to the individual.

167See Evidence Act 2006, s 63(3).
168Rich v Australian Securities and Investment Commission [2004] HCA 42, (2004) 209 ALR 271.
169Australian Law Reform Commission Principled Regulation: Federal Civil and Administrative Penalties in Australia (ALRC R95, 2002) at [18.20]. The Regulatory Powers (Standard Provisions) Bill 2014 (Cth), currently before the Australian House of Representatives, does not refer to the privilege.
170See in particular the discussion on the impact of ss 10 and 12 of the Evidence Act 2006 in Law Commission Civil Pecuniary Penalties 
(NZLC IP33, 2012) [Issues Paper] at [6.57]–[6.67].
171See for example s 103 of the Commerce Act 1986.
172Law Commission The Privilege Against Self-Incrimination (NZLC PP25, 1996).
173Those being the Commerce Act 1986 and Takeovers Act 1993.
174See also Financial Markets Conduct Act 2013, ss 487, 489 and 498; Takeovers Act 1993, ss 33L, 33M and 33N; Unsolicited Electronic Messages Act 2007, s 19; Overseas Investment Act 2005, s 48; Commerce Act 1986, ss 80, 82 and 82A; Financial Advisers Act 2008, ss 137K and 137L (those provisions are replicated in the Financial Service Providers (Registration and Dispute Resolution) Act 2008); and Securities Trustees and Statutory Supervisors Act 2011, ss 41 and 42.
175This reflects the Law Commission’s view in its 1996 Preliminary Paper that “real evidence” should not be protected because of its comparative reliability, the absence of a communicative aspect coming from the person supplying the evidence and, pragmatically, the importance of such evidence as a means of detecting offenders: Law Commission The Privilege Against Self-Incrimination, above n 172, at [199]‒[202]. In Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [47], the Court said of the privilege against self-incrimination:
The privilege is now dealt with by s 60 of the Evidence Act 2006. The definition of “information” in s 51(3) restricts the privilege to a right not to provide information that is in the form of an oral or documentary “statement”. A refusal to produce real evidence emanating from a person in the form of a urine sample does not engage the privilege.
176Law Commission The Privilege Against Self-Incrimination, above n 172, at 71.
177The Law Commission has noted that in New Zealand, the privilege had expanded (by justifying a refusal to provide an object or document that existed before the demand for the information was made) beyond its original historical origins as a reaction to the inquisitorial oath: see Law Commission Evidence: Reform of the Law (NZLC R55, 1999) at [279]. See also at [282] for discussion about the removal of the privilege from bodies corporate.
178R v O’Rourke [1990] 1 NZLR 155 (CA) at 158.
179Rich v Australian Securities Investment Commission, above n 168.
180​A common informer was a person who took proceedings for breaches of certain statutes solely for the penalty which, according to the statute, was paid to the one who gave information of the breach. When a common informer sued for a penalty, the courts refused to assist in any way, and allowed the person sued to avoid giving any evidence at all. See Law Commission The Privilege Against Self-Incrimination, above n 172, at [177].
181High Court Rules, r 1.2.
182Rule 8.40.
183However, under r 8.9:
… it is to be presumed, unless the Judge is satisfied to the contrary, that the interests of justice require tailored discovery in proceedings—
(a) where the costs of standard discovery would be disproportionately high in comparison with the matters at issue in the proceeding; or
(b) that are on the commercial list; or
(c) that involve 1 or more allegations of fraud or dishonesty; or
(d) in which the total of the sums in issue exceeds $2,500,000; or
(e) in which the total value of any assets in issue exceeds $2,500,000; or
(f) in which the parties agree that there should be tailored discovery.
These standard requirements do not expressly touch on matters of fairness or privilege, although it might be inferred that this is the reason for the reference to “allegations of fraud or dishonesty”. Otherwise, tailored discovery appears to be directed at cost and efficiency concerns.
184See also s 25(d) of the New Zealand Bill of Rights Act 1990, which affirms the right of a person charged with an offence “not to be compelled to be a witness or to confess guilt”.
185Section 60(4)(c) provides that if a defendant in a criminal proceeding chooses to give oral evidence in his or her defence, he or she is not able to claim the privilege while giving that evidence.
186See also s 128A in relation to privilege in respect of self-incrimination where the court makes a “disclosure order” (“an order made by a federal court or an ACT court in a civil proceeding requiring a person to disclose information, as part of, or in connection with a freezing or search order, but [not including] an order made by a court under the Proceeds of Crime Act 2002”).