Report No. 69

62.8. Balancing.-

It is clear that every matter raising an issue of privilege involves an examination and balancing of competing interests:

"This privilege, as do all evidentiary privileges effected and adjustment between important but competing interests", so observed Judge Robinson of the Court of Appeals for the District of Columbia :1

1. Judge Robinson cited in Nixon v. Sirica.s

62.9. Wider importance.-

Although, in the field of the law of evidence, privileges operate merely as exclusionary rules, they also have a wider importance, namely, that they represent a right to be let alone, a right to unfettered freedom, in certain narrowly prescribed relationships, from the coercive or supervisory powers of the State and from the nuisance of its evesdropping.1

It would be of interest to know that the California Evidence Code, section 911, expressly codifies the rule of law that privileges are not recognised in the absence of statute.

1. Uouisell, Confidentiality Privileges in Federal Court Today, (1956) 31 Tulane LR 101, 109, reproduced in Louisell and Others Principles of Evidence and Proof, (1972), 467, 468.

62.10. Source of privilege.-

It should be noted that as the position is now understood, the only legally recognised source of a privilege in relation to the law of evidence is a specific statutory provision or rule of common law which recognises a privilege. The fact that the parties have, as a matter of agreement or of honour, stipulated that certain matters shall not be disclosed, is not in itself enough for a successful claim to privilege in a court of law. The particular situation or relationship must have been regarded by the laws as one conferring such privilege.

It is for this reason that even where the circumstances may be such that there can be inferred or implied an obligation to maintain confidence-as in the case of a doctor and a patient-that obligation cannot, in itself, be put forth as an excuse for claiming protection from disclosure in obedience to a summons of the court for giving evidence. Such an obligation will-unless an evidentiary privilege is specifically recognised-be a ground only for prohibiting disclosure elsewhere than in a Court of law.

62.11. The argument that the rules of the employer forbid the disclosure of the name of the informant cannot succeed in a Court. In People ex rel. Phelps v Fancher, 2 Hun 226 (NY 1874),- an American case-a newspaper editor called as a witness before a grand jury refused to disclose the name of the author of an article on the ground that to do so would be to violate a regulation of the newspaper. The court held:

"As the law now is, and has for ages existed, no court could possibly hold that a witness could legally refuse to give the name of the author of an alleged libel, for the reason that the rules of a public journal forbade it."

62.12. In England, in some trials in the 17th century, the obligation of honour among gentlemen was argued successfully as sufficient ground for silence.1 This doctrine, known as "Point of Honour", was formally abandoned in the Duches of Kingston's2 cases involving a trial by the House of Lords for bigamy. Invoking his honour, a witness who was a long-time friend of the accused, refused to disclose whether the Duchess had ever admitted to the first marriage. The Judges, after much heated discussion, stated: "It is the judgment of this House that you are bound by law to answer all such questions as shall be put to you". One year later, in Hill's Tria.3 the doctrine was further repudiated when the court said:

"If this point of honour was to be so sacred as that a man who comes by knowledge of this sort from an offender was not to be at liberty to disclose it, the most atrocious criminals would every day escape punishment; and, therefore, it is that the wisdom of the law knows nothing of that point of honour."

1. H.J. Wigmore Evidence, section 2286 (537), n. 13 (3rd Edn. 1940).

2. Duchess of Kingston (1776) 20 Howard ST 586, Notable British Trials Series (Melville ed. 1927), p. 256.

3. Hill's Trial, (1771) 20 Howard ST 1318 (1362).

62.13. Privilege under the Act.-

Reverting to our Act, the matters which, under the Act, are privileged from disclosure are-

(1) matters relating to conduct of judges or coming to the knowledge of judges etc. in their judicial capacity (section 121);

(2) communications which are made to spouse during marriage (section 122);

(3) State secrets (sections 123-124);

(4) communications between a legal adviser and a client (section 126 and 129);

(5) certain title deeds (sections 129, 131); and

(6) certain incriminating matters (section 132).

After these introductory remarks, the sections proper can be considered.

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