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CONSTANTINE THEOPHILOPOULOS[*]
Traditional geo-political and economic barriers have shrunk in today’s complex and people mobile world. The twenty-first century is the new age of ‘internationalism’. The porous nature of political borders has helped in the emergence of sophisticated international crime and a corresponding increase in the number of co-operative crime prevention agreements between nations. A new term ‘co-operative internationalism’ has been coined to describe the incentives and methods by which a domestic government aids in facilitating foreign criminal prosecutions.
The purpose of this article is to determine the extent to which a suspect, wanted for crimes in another country, may make use of the common law, statutory or constitutional due process procedures of a typical accusatorial-adversarial criminal justice system. In particular, the article addresses the question of invoking the privilege against self-incrimination[1] on the basis that testimony in a domestic court will result in the reasonable risk of a criminal prosecution within a foreign jurisdiction.
In Australia, for example, international terrorists, organised crime syndicate members, cross-border drug traffickers, money launderers, multinational corporate fraudsters, war crime suspects and illegal economic aliens seeking refuge in a first world country are increasingly being targeted for prosecution, deportation or extradition. It is reasonable to assume that Australian authorities may sometimes provide transcripts of self-incriminating testimony to foreign governments and Australian courts may inadvertently become good sources of information which assist foreign authorities in securing criminal convictions. Therefore the same rationales which allow for the application of the privilege against self-incrimination within the domestic forum may equally apply to the fear of a foreign prosecution.
Aliens in a domestic criminal proceeding may frustrate the prosecution’s attempt to establish a prima facie case by refusing to answer questions on the ground that there is a real and appreciable (the common law standard) or a real and substantial (the United States standard) risk of a foreign prosecution upon forcible repatriation to the country of origin. The privilege against self-incrimination creates a strong evidentiary barrier and has an inhibiting effect on the state’s ability to compel witness testimony in court. The invocation of the privilege may sometimes present a formidable obstacle to the successful prosecution of organised crime and trans-border white collar crime. An example would be directors of a United States company who bribe Australian officials and who find themselves facing criminal prosecution in both the United States and Australia. The successful invocation of the Fifth Amendment privilege against self-incrimination before a United States court may effectively halt a white-collar prosecution and also prevent the perpetrators from testifying against co-perpetrators in Australia.
A review of the law in various Anglo-American jurisdictions reveals a paucity of both case precedent and statutory regulation. The inevitable reference to the English common law is unsatisfactory as it is vague, antiquated and somewhat contradictory. The present English position statutorily limits the privilege against self-incrimination to the domestic forum in civil matters[2] and the common law will probably follow the same approach in criminal cases. Canada[3] and the United States[4] follow the English approach, while the matter remains open in South Africa[5] and Scotland.[6] Similarly, case precedent and the statutes governing criminal and civil procedure in other accusatorial jurisdictions such as India, Malaysia, Singapore, Myanmar and Sri Lanka are silent on self-incrimination under foreign law.
In Australia the weight of case precedent appears to support an extra-territorial extension of the privilege, especially when the foreign law is a ‘fact established by the evidence’[7] and the content is proved by ‘foreign expert evidence’[8] and is ‘uncontradicted’.[9] However recent decisions tend to leave the matter open[10] and the High Court has not yet made an authoritative determination. In the Capital Territory and New South Wales, in terms of the Evidence Act 1995 (Cth) and (NSW) s128 (1), a statutory defined privilege may now be triggered when the evidence tends to prove the commission of an offence under the law of a foreign country.
The accusatorial privilege against self-incrimination[11] (hereafter referred to as ‘the privilege’) may be invoked within the domestic forum during a criminal or a civil proceeding,[12] whenever there is a reasonable risk of a possible future criminal prosecution.[13] The privilege applies to any person,[14] whether a suspect, accused, witness, citizen, legal or illegal resident. The privilege must be expressly invoked either by the individual or the individual’s nominated legal representative.[15] The privilege does not provide a blanket ban and must be claimed on a question-by-question basis.[16] The invocation must be made timeously at the point when the incriminating question is asked and may not be made by an individual who has already been convicted of the offence, where the crime has prescribed or where the individual is no longer at the risk of prosecution.[17] The privilege is said to flow naturally from an accusatorial type criminal justice system and is an important instrumental element of the fair trial principle. It is also said to protect the individual’s dignity, privacy and personal autonomy during the criminal process.
The risk of self-incrimination must be real, appreciable and not a mere remote and naked possibility of legal peril. This is a matter of judicial discretion and the court may test the validity and substance of the claim.[18] R v Boyes[19] sets out the test as:
... [t]he danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law ... not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.[20]
A mere invocation without some form of substantiation, even on oath, is not sufficient. It must be shown to the court from the circumstances and the nature of the testimony that there is a reasonable danger. The inquiry must make an obvious contrast between a real and appreciable risk and a remote and unsubstantial one.[21] Once the risk is regarded as real, and in the absence of mala fides, the individual may claim the privilege, even though a possible criminal prosecution is rare or unlikely.[22] A claim of privilege will not be allowed where the basis is a minor offence of no real concern to the defendant.[23] Viscount Dilhorne in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation[24] explains the test as follows:
Once it appears that the risk is not fanciful, then it follows that it is real. If it is real, then there must be a reasonable ground to apprehend danger, and, if there is, great latitude is to be allowed to the witness ...[25]
The court is not called upon to assess the precise measure or degree of risk to the witness.[26] Essentially the invocation must be made (a) in good faith (bona fides), (b) in terms of a genuine apprehension by the witness, (c) under an objective measure of risk and in which (d) the witness bears the onus of proof.
The privilege encompasses answers which directly incriminate the witness but it also applies to initially innocent answers which may, by a causal chain of reasoning, eventually lead to incriminating evidence and the risk of a criminal charge. In R v Slaney,[27] Lord Tenterden CJ holds:
[A witness] would go from one question to another, and though no question might be asked the answer of which would directly incriminate the witness, yet they would get enough from him whereon to found a charge against him.[28]
While the Commonwealth[29] privilege against self-incrimination is generally a common law or statutory defined principle, the United States Fifth Amendment is constitutionally entrenched[30] and is identified with a prohibition against the state coerced disclosure of oral testimony.[31] The American privilege applies narrowly to the risk of a future criminal prosecution and does not prohibit coerced testimony which will subject the witness to disgrace, infamy or the fear of reprisal.[32]
Hoffman v United States[33] holds that a witness response will only be considered incriminatory when it furnishes ‘a link in the chain of evidence needed to prosecute’.[34] The establishment of a link or nexus in the chain of evidence is assessed both qualitatively (does the causal connection extend to all or only certain kinds of testimony which place the witness in danger?) and quantitatively (how close must the causal connection be?). The danger of a criminal prosecution must be real, practical, substantial and realistic.[35] The privilege may only be claimed for testimony which tends to prove guilt or would lead to evidence that tends to prove guilt[36] and is based on a genuine fear going beyond a mere fanciful possibility. To be privileged the compelled testimony need not amount to a prima facie case but one which merely furnishes a probable link in the chain of evidence. According to Emspak v United States:[37]
It is enough ... that the trial court be shown by argument how conceivably a prosecutor, building on the seemingly harmless answer, might proceed step-by-step to link the witness with some crime[38]
When the witness invokes the privilege because of the fear of a future foreign criminal prosecution, two essential questions need to be asked. Firstly, the domestic court must concentrate on the threshold question of the reasonability of the foreign prosecution. It has been suggested that the threshold standard ought to be higher than the normal domestic standard when a foreign jurisdiction is at issue. Secondly, only once the threshold question has been answered will the court entertain the issue of justifying the extra-territorial reach of the privilege.
Whether or not the privilege may be claimed by a witness who fears the risk of a foreign criminal conviction is uncertain in most Commonwealth jurisdictions. This is largely due to the ambiguity of the original English common law precedents.[39] The earliest case, East India Co v Campbell,[40] a 1749 Court of Exchequer decision,[41] allowed the defendant to invoke the privilege because the disclosure of information would subject the defendant to a foreign prosecution in India. The court set out the initial precedent as:
... [t]his court shall not oblige one to discover that which, if he answers in the affirmative, will subject him to punishment of a crime... and it appears that the defendant is punishable in Calcutta, although not punishable here.[42]
Although the East India decision appears to be authority for the extra-territorial reach of the privilege, it has been persuasively argued that British India, at that time, was not a foreign jurisdiction but an East India Company administered colony.[43] The Calcutta courts were staffed by English professionals and its procedures were governed by the English common law.
A hundred years later the Court of Chancery in King of Two Sicilies v Willcox[44] held that the privilege could not be invoked despite a substantial risk of a criminal prosecution in Sicily. According to the court, the privilege was part of British municipal law and therefore had jurisdiction exclusively within British borders and only to those acts made penal by British law.[45] The court emphasised the difficulty for an English judge in determining the criminal implications of specific acts in a foreign nation, especially on the basis of testimony given in England.[46] The court also made the practical observation that the defendants would face prosecution only if they left the protection of British law and intentionally moved to the foreign jurisdiction.[46]
The precedent established in King of Two Sicilies was overturned in 1867 by the seminal decision in United States v McRae.[48] The Court of Appeal in Chancery specifically extended the privilege to all individuals fearing prosecution outside England.[49] The privilege is extended when the probability of a foreign prosecution is proved and the content of foreign law is clearly laid out. In the words of Lord Chelmsford:
[The privilege may apply] where the presumed ignorance of the judge as to foreign law is completely removed by the admitted statements upon the pleadings, in which the exact nature of the penalty or forfeiture incurred by the party objecting to answer is precisely stated ... .[50]
Lord Chelmsford goes on to state:
... I cannot distinguish the case in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law.[51]
However, in the early twentieth century, the precedent was once again reversed by the Kings Bench in Re Atherton.[52] According to Phillimore J:
Crimes committed abroad are not, with few exceptions, crimes at home ... I know of no principle which will enable a man to protect himself on the ground that he fears criminal proceedings in some other country.[53]
The matter has finally been settled in England by the Civil Evidence Act 1968 s14(1)(a) which expressly confines the privilege, at least in civil law, to the fear of criminal offences ‘under the law of any part of the United Kingdom and penalties provided for by such a law’.[54] However the courts do retain discretion, in terms of the Supreme Court Act 1981 s37, in respect to discovery and interlocutory injunctions and a disclosure order may well be influenced by a real probability of incrimination under foreign law.[55] The present position in Canada is also to limit the privilege to the domestic forum.[56] In Australia recent cases leave the issue open,[57] but in FF Seeley Nominees Pty Ltd v El Ar Initiations (UK) Ltd,[58] Zelling AJ casts doubt on the existence of a foreign law privilege, at least on the facts before him, by arguing that:
No amount of ad hoc tuition can put me in the position of the Greek magistrate who tries the case, no one can predict with certainty the twists and turns of evidence, no one can judge, who is not peritus in the law of Greece ....[59]
Despite Zelling AJ’s opinion, the majority of court precedent does appear to support the notion of a foreign witness privilege. A privilege with an extra-territorial dimension is defined in the Evidence Act 1995 (Cth) and (NSW) s128 (1) read together with ss128 (2) and (5). However with the exceptions of the Capital Territory, New South Wales and the possible exceptions of Tasmania and Victoria, the nature and scope of a foreign influenced privilege continues to be governed by the common law.
Academic commentators in Australia[60] and South Africa[61] suggest that the issue of extending the privilege should be evaluated on a case-by-case basis taking into account the type of foreign system and the content of the foreign law. The privilege may be given an extra-territorial reach when the criminal sanction in the foreign court is reasonably clear and there is a real risk that the witness’s answers will lead to self-incrimination and a criminal conviction under the foreign law.
In the seminal decision Murphy v Waterfront Commission,[62] the United States Supreme Court held that the Fifth Amendment privilege had no internal jurisdictional limitation. The privilege protected both the state witness at the federal level and the federal witness at the state level.[63] According to the principle of ‘co-operative federalism’, the privilege could be triggered by the fear of a possible prosecution in another state jurisdiction within the United States.[64] While not directly addressing the issue of foreign prosecution, Murphy does refer to the English common law, especially to the decision in United Sates v McRae,[65] which it approvingly termed the ‘settled English rule’.[66] Murphy has served as the principal authority for proponents who seek to justify the extra-territorial reach of the privilege.
In Zicarelli v New Jersey State Commission of Investigation[67] the Supreme Court was for the first time directly faced with the question of the application of the Fifth Amendment to the fear of a foreign prosecution. The Supreme Court stated that the Fifth Amendment ‘protects against real dangers, not remote and speculative possibilities’[68] and found it unnecessary to decide the question, because on the facts, the danger of such a foreign prosecution was remote.[68]
As a result of the Supreme Court’s initial ambivalence, the lower circuit and district courts differed widely in their interpretation of the privilege’s foreign scope. In in Re Trucis[70] and in Re Cardassi,[71] the district courts of Pennsylvania and Connecticut respectively, awarded the Fifth Amendment an extra-territorial reach on the basis that the essential justification for the Fifth Amendment was to restrict the excessive actions and overreach of government. The constitutional right against self-incrimination limited the activities of government organs by providing the individual with a protection against state coercion. The need to protect individual rights had no jurisdictional limitations and justified the extension of the Fifth Amendment to the fear of a foreign prosecution.
In Moses v Allard,[72] a Michigan district court held that state abuse occurred when individuals were compelled to testify against themselves, regardless of the place of prosecution. If the right against self-incrimination did not extend to the risk of non-US. prosecution, the policies underlying the privilege would be defeated.[73] The existence of a fair trial system in which the individual made no unwilling contribution to a conviction was more valuable than punishing the guilty. Such a system should logically extend the Fifth Amendment protection to the risk of a foreign prosecution.[74]
In strong contrast to the district courts, a number of federal circuit courts have refused to extend the privilege on the practical ground that it would erode the effectiveness of domestic law enforcement without giving the witness a tangible or material protection within the foreign forum. In addition United States courts would find it difficult to interpret the content of foreign law and the witness invoking the privilege would find it difficult to demonstrate how a foreign government might prosecute or gain access to the testimonial records of the domestic forum. The Tenth Circuit Court of Appeals in in Re Parker [75] refused to extend the privilege’s scope because protecting individuals for an act which might not be criminal in the United States would frustrate the purpose of the Fifth Amendment.[76]
The Supreme Court of North Dakota in Phoenix Assurance Co of Canada v Runck [77] emphasised that non-US law should not prevail over the needs of the United States government.[78] In United States v (Under Seal)[79] the Fourth Circuit introduced a ‘dual sovereignty’ principle whereby the scope of the privilege could only be extended when both the sovereign compelling the witness’s testimony and the sovereign using the testimony were constrained by the Fifth Amendment.[80] The Eleventh Circuit Court of Appeals in United States v Gecas [81] argued that the Fifth Amendment was a limitation upon the powers of the United States and not upon foreign governments; consequently the privilege did not apply to foreign courts that were not bound by the United States Constitution.[82]
In United States v Flanagan,[83] the Second Circuit Court of Appeals attempted to establish a middle ground between Cardassi and Phoenix by suggesting that, although the privilege does protect against a fear of a foreign prosecution, the witness must show a greater danger of incrimination than is ordinarily required before claiming the privilege. The court required claimants to show a greater-than-ordinary danger of foreign prosecution otherwise the privilege would become ‘a virtual license to frustrate almost any criminal investigation having international consequences, however peripheral’.[84]
The split between the lower courts has finally been resolved by the United States Supreme Court in United States v Balsys,[85] which holds that a witness may not invoke the fifth amendment privilege with regard to a prosecution taking place outside of the United States.[86] The Fifth Amendment is a wide protection, offering a due process guarantee, a defence against double jeopardy and a compensation for government taking.[87] However, these wide protections have never been interpreted as being binding on governments other than the United States. It would be inconsistent to take a broader view of the Fifth Amendment protection absent a legislative directive to do so. There is no legislative history to the contrary and the court cannot remove the privilege from the ‘same-sovereign’ context of the Fifth Amendment’s language.[88] The Constitution applies only to the government, which created it and cannot be used to bind those sovereigns that do not fall under its command.[89] The Supreme Court also rejected the notion of ‘co-operative internationalism’ as a justification for the extra-territorial reach of the Fifth Amendment. It was an illogical misinterpretation of Murphy’s notion of ‘co-operative federalism’. While ‘co-operative internationalism’ might become determinative at some point in the future the court was not prepared to put much weight on such a notion at the present time.[90]
The Personality and the Instrumental rationales (both based on a due process model)[91] reason that the privilege is a fundamental shield against state interference with the individual’s natural and human rights. Personality-based theories operate on the philosophical premise that the individual, much like the state, has a sovereign existence. The state and the citizen are equals and neither may exert an undue influence upon the other. The state has no right to compel the sovereign individual to surrender or to impair the right to self-defence. The privilege against self-incrimination has been extended beyond its traditional confines as an ordinary evidentiary rule and elevated to the status of a constitutional right in the United States,[92] Canada[93] and South Africa.[94] In these countries, the prohibition against compulsory self-incrimination is defined as one of the qualifications of a fundamental human personality.[95] The right not to testify against oneself is also entrenched in article 14(3)g of the International Covenant on Civil and Political Rights.[96]
A privilege defined in terms of a natural or human rights philosophy places the individual interest above the government interest. Consequently, the state infringes the natural ‘higher’ law or the human rights order when it compels testimony from individuals who are at risk of a foreign prosecution. In the words of an Australian commentator:
In principle, if the privilege is regarded as a fundamental human right, then the place of prosecution is not of importance. If a real risk of prosecution under foreign law is apparent, so that the claim is bona fide, then the privilege ought to be granted.[97]
The definition of the privilege in the language of human rights finds expression in New Zealand[98] and Australia. The Commonwealth justification for a privilege based on natural human rights is ably expressed by Murphy J in Pyneboard Pty Ltd v Trade Practices Commission:[99]
The privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity ... It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society’s acceptance of the inviolability of the human personality. [Emphasis added]
The American rationale is encapsulated by Goldberg J in Murphy v Waterfront Commission,[100] who advances a bundle of various justifications including, ‘our unwillingness to subject those suspected of crime to the cruel “trilemma”[101] of self-accusation, perjury or contempt’; ‘our fear that self-incriminating statements will be elicited by inhumane treatment and abuses’ and ‘our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life’.
From these common law and constitutional guarantees, a number of justifications for the extra-territorial reach of the privilege may be extrapolated. The notion of human dignity[102] justifies the privilege’s extra-territorial reach because it would be inherently cruel to compel self-incriminating testimony from the individual either in the domestic or the foreign forum. The cruel ‘trilemma’ of perjury, contempt or self-incrimination exists regardless of the defendant’s fears of prosecution within the domestic forum or outside its borders. The inviolability of human personality applies equally to the fear of a foreign prosecution.[103]
The notions of privacy[104] and personal autonomy suggest that state compulsion improperly infringes the personal space surrounding each individual. The privilege guarantees individual integrity and privacy by protecting against unwanted state intrusions. The fundamental objection against compelled self-incrimination is that law enforcement authorities treat the individual as a mere ‘thing’ for the impersonal extraction of evidence. The invocation of the privilege amounts to the exercise of an affirmative right and, according to Cartesian principles,[105] excludes the exploitative state from the mind and soul of the human being.[106] Such a justification has no territorial limitation.
The Instrumental theory views the privilege as a necessary procedural device which reinforces the panoply of fair trial rights and preserves the accusatorial nature of the criminal justice system.[107] The instrumental privilege derives its philosophical reasoning from a Hobbes-Lockean concept of interlinking sovereign, social and contractual relationships.[108] The privilege represents a basic factor in the balance of powers and rights which exist between the state and the individual. By preventing the compulsion of involuntary testimony, the privilege encourages the witness to testify, guards against unreliable testimony, strengthens the presumption of innocence and guarantees that the burden of proof is borne by the state, thereby ensuring a fair trial process.[109]
The privilege is primarily conceived of as a protection against government abuse and as a guarantee of fair trial procedures.[110] Goldberg J in Murphy v Waterfront Commission [111] speaks of ‘our preference for an accusatorial rather than an inquisitorial system of criminal justice’ based on a ‘sense of fair play which dictates a fair state-individual balance’ and the ‘realisation that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent’. The focus of the privilege is on a balanced justice system in which the individual has a fundamental right to be free of government overreach and excess, wherever that may occur. The instrumental interests of the witness, within a fair justice system, outweigh any potential burden that an extra-territorial application of the privilege would have on law enforcement practices.[112]
English criminal procedure is currently characterised by a crime control philosophy[113] and this tendency is illustrated by a number of statutory limitations on the accused’s right to silence and the witness’s privilege against self-incrimination. The accused’s tactical use of silence at both the pre-trial and the trial stage has been curtailed by the Criminal Justice and Public Order Act 1994.[114] The witness privilege is subject to a large number of statutory abrogations and its influence in civil procedure has been criticised. Lord Templeman in Istel Ltd v Tully states:
... I regard the privilege against self-incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the past ... . [114]
A number of arguments, grounded on a utilitarian pragmatism, have been advanced against the extra-territorial extension of the privilege. If the privilege was to be extended to a fear of foreign prosecution, no domestic court could possibly guarantee the witness immunity against prosecution within the foreign jurisdiction. Dressing the privilege up as a human right might protect the individual in the domestic forum but does not give the witness stronger or additional protection in a foreign forum. A foreign court has no legal obligation to respect the domestic witness’s claim to silence. It is an accepted principle of public international law that a domestic constitution cannot protect its nationals against criminal acts committed within a foreign jurisdiction, nor may sovereign entities interfere in the domestic affairs of a foreign state. Awarding the privilege an extra-territorial reach would be tantamount to such interference.
The practical effect of an extra-territorial dimension to the privilege would be to give the witness an unfair advantage in the domestic court but no benefit at all in the foreign court. The government’s ability to enforce domestic law would then be dependent on issues of foreign law outside of its control.[116] It would inhibit state officials in the collection of relevant evidence and negatively impact on domestic law enforcement.[117] Unfairness would also result if the privilege protected the witness against foreign acts which are not considered criminal in the domestic court.[118] A number of American commentators[119] would limit the scope of the privilege:
[The courts] as they become conversant with the history of the privilege will see that it is a survival that has outlived the context that gave it meaning and that its application today is not to be extended under the influence of a vague sentimentality but is to be kept within the limits of realism and common sense.[120]
A domestic court is handicapped by a lack of knowledge about foreign law. The real and appreciable test for the application of the privilege within the domestic forum has no suitable application in the international context. It is difficult for a domestic court to assess the probability of a foreign prosecution. In the short period at its disposal in which to rule on the issue, a domestic court will be unable to develop a functional understanding of the foreign law, especially when the foreign law is alien to the Anglo-American accusatorial system.[121] A witness may be tempted to cry incrimination under foreign law without any good faith basis. Sophisticated international criminals could easily manufacture evidence of a probable foreign prosecution in order to avoid testifying in the domestic court.[122]
The domestic forum may well lose the power to trade a grant of indemnity[123] for essential testimony because the domestic court cannot rely on the foreign sovereignty to honour grants of indemnity.[124] The grant of indemnity is a rational accommodation between the imperatives of the privilege and the legitimate demand of the state to compel individuals to testify.[125] Awarding the privilege an extra-territorial reach would destabilise the rational accommodation and deal a heavy blow to domestic law enforcement.[126]
American commentators have advanced a number of plausible theories which avoid being interpreted either in the language of natural law or according to utilitarian rules. It has been argued that awarding the privilege an extra-territorial dimension is theoretically consistent with modern day developments which have reduced the world to a global village. The judgement in Murphy v Waterfront Commission [127] illustrates this evolution by marking the end of the ‘separate state sovereignties’ doctrine and the beginning of a practical ‘co-operative federalism’. Arguably the next logical step is a natural extension to a type of ‘co-operative internationalism’. In United States v Balsys,[128] the defendant argued that the government now has a significant interest in seeing individuals convicted abroad for their crimes, and is therefore subject to the same overreach incentives that has necessitated the application of the privilege within the domestic forum. Reciprocity between the federal and state governments within the United States contributed to the decision in Murphy, so why should international reciprocity between nations not result in the extension of the privilege to the fear of a foreign prosecution? Balsys did not rule out the idea of ‘co-operative internationalism’ but was not ready to place much weight on it at the present time.[129] Co-operative internationalism could exist, if at some point the domestic forum joined forces with foreign governments in creating joint mechanisms, joint ventures or joint agencies for the prosecution of international criminals.
In United States v (Under Seal)[130] the court held that the privilege would have extra-territorial reach when the relationship between domestic and foreign officials became one of a close and continuing agency. These foreign agents would then be used by domestic officials to compel evidence in the foreign forum which it could not compel in the domestic forum.
A possible substitute protection against the fear of a foreign prosecution is to grant the witness immunity from extradition.[131] A witness usually does not face the possibility of extradition, and is not confronted by a real risk of foreign prosecution, unless the ‘act’ is punishable under both Australian and foreign law. Preventing the seizure and delivery of the witness to a foreign forum will negate the need for the witness to invoke the privilege. However, immunity from extradition is at best a half-measure[132] as it does not protect the witness against seizure of foreign assets nor does it protect against a trial and conviction in ‘absentia’. Immunity from extradition may be a personal protection but it cannot protect family members from reprisals in the foreign forum, nor does it protect the witness who travels abroad and is extradited from a country which does not recognise the domestic forum’s grant of immunity.
International co-operative treaties in which the foreign government agrees not to use testimony compelled by domestic authorities is another possible approach. This type of agreement is dependent on the foreign state whose administrative processes are not reviewable by the domestic court. The absence of reciprocity may be a problem with many nations. It also requires substantial co-operation on the part of the executive which may not be forthcoming for various political reasons.
In addition there may already exist, within the laws of the foreign forum, certain procedural protections which bar the use of compelled testimony. The domestic witness may be adequately protected by a foreign statute of limitations prohibiting prosecution of the witness or foreign procedural rules which exclude the admissibility of coerced testimony, irrespective of where it was obtained.
Finally, in some circumstances, the witness may edit or qualify self-incriminatory testimony in the domestic court in such a way that it does not disclose information which might be incriminating under foreign law.
It would appear that equally good arguments can be advanced for both limiting the privilege to the domestic forum and for extending it to the fear of a foreign prosecution. This, and the ambiguity of common law precedent, is probably the reason why so many Commonwealth courts have shied away from directly addressing the matter. A compromise is therefore suggested, one which will allow the witness to invoke a privilege with an extra-territorial dimension but only in very specific and limited circumstances. A reasonable approach would be to apply a basic balancing test which takes into account the individual’s social imperative in securing a wide protection against self-incrimination and the government’s interest in gathering prima facie evidence.[133]
The suggested approach is influenced by the wording and the intention of the Evidence Act 1995 (Cth) and (NSW) ss 128(1), (2) and (5).[134] The suggested approach advances a number of plausible guidelines as to the manner in which the statutory defined extra-territorial privilege is likely to be interpreted in future. Similarly the approach is also highly relevant to those Australian States which presently retain the complete or partial common law definitions of the privilege against self-incrimination.
This solution would allow the witness to invoke the privilege but establishes a higher than ordinary standard or a real and appreciable risk which will ‘concretely’ or ‘immediately’ lead to a foreign criminal prosecution. It is reasonable to distinguish foreign prosecutions from domestic prosecutions because analysing foreign claims in terms of the ordinary domestic standard would (a) inhibit the evidence gathering ability of domestic authorities, (b) allow the foreign forum a measure of control over the domestic court and (c) enable the witness to fabricate evidence of a foreign prosecution in order to avoid testifying. The higher benchmark would be defined as a ‘greater than ordinary danger’, an ‘actual likelihood’ or a ‘near certain probability’ of a foreign prosecution. Essentially, raising the threshold standard will reduce the number of witnesses who can successfully invoke the privilege, while increasing the government’s ability to collect evidence. The invocation of the privilege would only occur when the witness clearly faces extradition and prosecution in a foreign forum. The witness would be required to supply the court with certified and translated copies of the pertinent foreign law. The court could also order documentary presentation of foreign judicial opinions, academic writings and expert testimony. The witness would have to clearly establish that the compelled self-incriminatory testimony would impose a foreign criminal sanction rather than a mere civil penalty.[135]
A number of practical considerations will heavily influence the higher threshold standard. In order for the witness to be placed in danger, the foreign forum must (a) obtain custody of the witness, (b) gain access to the domestically compelled self-incriminating testimony, (c) criminally prosecute the witness and (d) use the witness’s testimony to further the prosecution. If any of these four factors is missing, the likelihood of a testimony driven foreign prosecution is low and the domestic court may properly refuse the witness’s privilege claim.
In summary, a four part test is advocated. The test is discretionary and founded on an objective evaluation of the witness’s reasonable fear of a foreign prosecution. The objective test is set out as follows:
a) The domestic court must ascertain whether the witness faces a ‘near certain probability’ of a prosecution or merely the fear of a possible foreign prosecution. Will the witness’s self-incriminating testimony initiate the foreign prosecution?
b) The domestic court must determine the nature of the feared foreign prosecution and the type of criminal sanction. The witness bears the burden of persuasion in this regard and the onus of adducing evidence to establish the nature of the prosecution and the type of sanction.
c) The interests of the domestic government must be assessed. How essential is the witness’s testimony for the domestic authority? Is the required information available from an independent source?
d) The court must take into account the probability of the witness’s extradition or deportation and the subsequent likelihood of the incriminating testimony falling into the hands of the foreign forum.
Finally, an analysis of the relevant case law reveals that most Commonwealth courts have assumed that a witness fearing foreign prosecution, rather than the prosecution seeking the witness’s testimony, bears the burden of persuasion. The allocation of a primary burden of proof upon the witness’s shoulders, instead of the prosecution, conflicts with accepted common law practice. However placing the burden of proof upon the shoulders of the prosecution is unrealistic and impractical. In this unique circumstance a reverse onus is justifiable. A burden should be placed on the witness to produce evidence of the specific ways in which foreign prosecution is feared and the type of criminal sanction likely in such an event, thereby narrowing the facts-in-issue. The prosecution would subsequently be called upon to rebut each specific fact-in-issue.
The objective balancing test is a reasonable compromise, which widens the scope of the protection offered by the privilege without unnecessarily inhibiting the government’s law enforcement ability. The solution not only takes into account the increasing number of international co-operative state agreements but also protects the witness’s human dignity, privacy and the panoply of fair trial rights without unduly infringing upon the local rights and international interests of the domestic society.
[*] Attorney of the High Court of South Africa.
[1] In the accusatorial system the witness’ privilege against self-incrimination is distinguished from the accused’s right to silence, which is a blanket immunity against answering questions. The privilege is a narrow immunity against the compulsory production of oral or documentary testimony. It is a selective immunity awarded to the suspect, accused, and defendant or more commonly to the non-party witness, Glanville Williams, The Proof of Guilt: A Study of the English Criminal Trial (3rd ed, 1963) at 37–38.
[2] Civil Evidence Act 1968 s14(1)(a).
[3] Spencer v R (1985) 21 DLR (4th) 756.
[4] United States v Balsys [1998] USSC 82; 118 S Ct 2218 (1998).
[5] Leonard H Hoffmann & David T Zeffertt, The South African Law of Evidence (4th ed, 1996) at 242.
[6] Fiona E Raitt, Evidence (3rd ed, 2001) at 259; Iain D MacPhail, Evidence: A Revised Version (1987) Ch 18–23.
[7] Adsteam Building Industries Pty Ltd v Queensland Cement & Lime Co Ltd (No 4) [1985] 1 Qd R 127 at 141 ( McPherson J).
[8] Ibid.
[9] Ibid.
[10] Jackson v Gamble [1983] VicRp 51; [1983] VR 552; Commissioner of Australian Federal Police v Cox (1989) 87 ALR 163; Sharp v Australian Builders Labourers’ Federated Union of Workers (WA) (1989) WAR 138.
[11] Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385 at 393.
[12] The privilege applies to judicial, quasi-judicial and other administrative proceedings. It may be claimed at discovery and during interlocutory processes including Anton Pillar orders and Mareva injunctions. The privilege extends to penalties and is either abolished or has fallen into disuse in respect to forfeitures.
[13] Blunt v Park Lane Hotel Ltd [1942] 2 KB 253 at 257 (Lord Goddard CJ).
[14] In England the privilege includes both the natural and the juristic person, Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547. In Canada, R v Nova Scotia Pharmaceutical Society (1990) 73 DLR (4th) 184; Australia, Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 and the United States, Braswell v United States [1988] USSC 134; 487 US 99 (1987), 105, 110, 115 the privilege may only be claimed by a natural person.
[15] C v National Crime Authority (1987) 78 ALR 338.
[16] Warman International Ltd v Envirotech (Aust) Pty Ltd (1986) 67 ALR 253 at 265; Spokes v Grosvenor Hotel Co [1897] UKLawRpKQB 99; [1897] 2 QB 124 and in South Africa Waddel v Eyles and Welsh 1939 TPD 198.
[17] A–G v Cunard Steamship Co (1887) 4 TLR 177.
[18] Triplex Safety Glass Co Ltd v Lancegaye Safety Glass Ltd [1939] 2 KB 395; S v Heyman, 1966 (4) SA 598 (A) at 608C.
[19] [1861] EngR 626; (1861) 121 ER 730 and Renworth Ltd v Stephansen [1996] 3 All ER 244.
[20] Id at 738 (Cockburn CJ).
[21] Re Westinghouse Uranium Contract [1978] 2 WLR 81 at 104 (Viscount Dilhorne).
[22] Triplex Safety Glass Co Ltd, above n18.
[23] Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 441, 445. See also Brebner v Perry [1961] SASR 177 (Mayo J).
[24] Rio Tinto Zinc Corporation, above n14.
[25] Id at 628.
[26] Id at 581 (Shaw LJ).
[27] [1832] EngR 452; (1832) 5 C & P 213, 172 ER 944.
[28] Id at 214, 945.
[29] The label ‘Commonwealth’, does not refer to the Australian Commonwealth but generically to the loose political and cultural alliance of ex-British administered colonies and protectorates. The procedural laws of these countries are based on an adversarial-accusatorial system of justice.
[30] Fifth Amendment to the Federal Constitution of the United States (1791) ‘... and not to be compelled in any criminal case to be a witness against himself’.
[31] The Commonwealth privilege applies to documents and interrogatories, R v Associated Northern Collieries (1910) 11 CLR 738 at 747. In contrast the United States has adopted a required records doctrine and can compel individuals to provide documents, Shapiro v United States, [1948] USSC 104; 335 US 1 (1948), 33.
[32] Brown v Walker, [1896] USSC 83; 161 US 591 (1896), 599
[33] [1951] USSC 64; 341 US 479 (1951).
[34] Id at 486.
[35] Heike v United States, [1913] USSC 37; 227 US 131 (1913), 144.
[36] McCarthy v Arndstein, [1924] USSC 161; 266 US 34 (1920), 40.
[37] [1955] USSC 53; 349 US 190 (1955), 198–199 n18.
[38] Id at 198.
[39] Colin Tapper, Cross and Tapper on Evidence (8th ed, 1995) at 460; Peter Murphy, Evidence (7th ed, 2000) at 476. See also the Law Reform Committee, Sixteenth Report, Cmd 3472, No 113 (1967) at 7.
[40] [1749] EngR 83; (1749) 27 ER 1010. The defendant, a captain of the East India Company refused to answer questions in a criminal suit brought by the Attorney–General in England on a charge of the fraudulent and violent acquisition of goods from indigenous Indians.
[41] See also Brownsword v Edwards [1750] EngR 51; (1750) 28 ER 157 at 158 in which the Court of Exchequer allowed the witness to invoke the privilege for fear of a future prosecution, on a charge of marital infidelity, in the Ecclesiastical Court.
[42] East India Co, above n40 at 1011.
[43] The East India Company under charter from Britain and in terms of a treaty with the local Indian sovereign administered the trade enclaves of Madras, Bombay and Calcutta.
[44] [1851] EngR 134; (1851) 61 ER 116. The defendants, representatives of a revolutionary Sicilian republican government were sued in England by the lawful monarch of the Two Sicilies. One of the defendants refused to produce documents, claiming exposure to a criminal prosecution in Sicily.
[45] Id at 128 (Lord Cranworth).
[46] Ibid.
[47] Ibid.
[48] [1867] UKLawRpCh 113; (1868) LR 3 Ch App 79. The United States government instituted an action in England against the defendant for money deposited in English banks during the American Civil War. The defendant claimed that a law had been passed in the United States allowing for the confiscation of property belonging to ex-Confederate agents and if compelled to answer would be subject to confiscation proceedings in the United States.
[49] Id at 85, 87. The McRae court noted that the King of Two Sicilies was distinguishable on the facts. The defendants in King of Two Sicilies had failed to satisfy the real and appreciable risk requirement set out by R v Boyes.
[50] Id at 85.
[51] Id at 87.
[52] [1912] UKLawRpKQB 45; [1912] 2 KB 251. It has been argued that Re Atherton is not authoritative as it deals with bankruptcy issues, and the privilege has been statutorily abrogated in bankruptcy proceedings.
[53] Id at 255–256.
[54] Since the European Communities Act 1972 and the Human Rights Act 1998 (incorporated August 2000), European Union law forms part of domestic English law. Fines and penalties imposed by the European Commission are recoverable in an English court. Decisions of the European Court of Human Rights are enforceable in English courts.
[55] Arab Monetary Fund v Hashim [1989] 3 All ER 466 compare Levi Strauss & Co v Barclays Trading Corporation Inc [1993] FSR 179.
[56] Spencer v R (1985) 21 DLR (4th) 756; Campbell v Bell [1979] 5 WWR 411 (BCCA) 420; Summa Corporation (formerly Hughes Tool Company) v Meier (1981) 30 BCLR 69 (BCCA); MacDonald v Briant (1982) 35 OR (3d) 161.
[57] Above n10.
[59] Id at 473.
[60] Suzanne B McNicol, Law of Privilege (1992) at 223; Andrew Ligertwood, Australian Evidence (1993) at para 5.76.
[61] Hoffmann & Zeffertt, above n5 at 242.
[62] [1964] USSC 136; 378 US 52 (1964).
[63] Id at 77–78.
[64] Id at 56.
[65] Above n48.
[66] Id at 63. Murphy overruled an earlier case United States v Murdock [1931] USSC 179; 284 US 141 (1931), 146–149 which had held that the King of Two Sicilies represented the true English rule.
[67] [1972] USSC 109; 406 US 472 (1972). The defendant refused to answer questions concerning organised crime, racketeering and political corruption in New Jersey, claiming that the compelled answers would create a real and substantial risk of prosecution in Canada, Venezuela and the Dominican Republic.
[68] Id at 478.
[69] Id at 479. The court held that as the prosecution sought answers to local rather than international activities, the defendant was able to frame and edit testimony in order to avoid any foreign danger.
[70] 89 FRD 671 (ED Pa 1981), 673. The government sought to revoke the defendant’s certificate of naturalisation for concealing a history of Nazi collaboration which would have resulted in a denial of naturalisation.
[71] 350 F Supp 1080 (D Conn 1972), 1085–1086. The defendant was granted immunity from prosecution and subpoenaed to testify before a grand jury investigating drug smuggling between Mexico and the United States. The defendant refused to testify, despite the immunity, on the ground that the testimony might be incriminating under Mexican law.
[72] 779 F Supp 857 (ED Mich 1991), 873–882. The defendant debtor, a Swiss national, invoked the privilege during a bankruptcy hearing for fear of prosecution in Switzerland.
[73] The policies behind the privilege are based on a fear of government abuse, at 873–874, and the fundamental unfairness of compelled self-incrimination, at 871. See also JH Langbein & Richard H Helmholz The Privilege Against Self-incrimination, its Origins and Development (1997).
[74] Id at 874–875. A fundamental right would be defeated if a witness could be ‘whipsawed’ into incrimination in a foreign jurisdiction.
[75] [1969] USCA10 178; 411 F 2d 1067 (10th Cir 1969). The defendant, charged with sabotage and destruction of war materials in terms of 18 USC § 2153, refused to answer questions before a grand jury hearing for fear of criminal prosecution in Canada. The court held that a sealing order, Federal Rule 6(e) which prevents publication of testimony, was an adequate protection against the fear of a foreign prosecution.
[76] Id at 1071.
[77] 317 NW 2d 402 (ND), cert denied 459 US 862 (1982). An American insurance company sought to claim damages from three defendants who had made a fraudulent insurance claim on a building in Canada which they had burnt down. The defendants attempted to suppress discovery of testimony made before a grand jury on the basis that it would expose them to an arson charge in Canada.
[78] Id at 412. Non-US law should not prevail over the needs of the United States Government and as the language of the Fifth Amendment did not mention non-US law, the privilege was not intended to apply to the risk of non-US prosecutions.
[79] [1986] USCA4 1055; 794 F 2d 920 (4th Cir) cert denied 479 US 924 (1986). The defendants, relatives of F Marcos, former president of the Philippines, refused to testify before a grand jury on the basis that it would expose them to corruption charges in the Philippines.
[80] Id at 924, 926, 928. The court found the fear of a real and substantial risk of foreign prosecution to be valid but held that the Fifth Amendment does not protect against such fears.
[81] [1997] USCA11 1957; 120 F 3d 1419 (11th Cir 1997), 1422. The defendant, a Lithuanian national and alien resident in the United States, was refused the privilege even in the face of a real risk of prosecution for Nazi war crimes in Israel, Germany and Lithuania, see below n85. See also Daniel J Lindsay, ‘Comment: Tied Up in a Gordian Knot’ (1998) 82 Minnesota LR 1297.
[82] Id at 1430–1433.
[83] [1982] USCA2 902; 691 F 2d 116 (2d Cir 1982), 118–121. The defendant was granted immunity and requested to give evidence on gun smuggling between the United States and the IRA in Ireland. The defendant refused to testify, fearing prosecution in Northern Ireland and Ireland.
[84] Ibid at 121. The privilege should not run counter to the policy that the public has a right to every man’s evidence.
[85] [1998] USSC 82; 118 SCt 2218 (1998) cert granted [1998] USSC 82; 524 US 666 (1998). The defendant, a Lithuanian national and alien resident of the United States, had omitted to mention a history of Nazi collaboration when applying for immigration to the United States. See Stacy BeLisle, ‘Notes: US v Balsys’ (2000) U of Detroit Mercy LR 341 and Scott E Rice, ‘The Fifth Amendment Privilege Against Self-incrimination and Fear of Foreign Prosecution’ (2000) 25 Southern Illinois U LJ 215.
[86] Balsys, above n85 at 2222.
[87] Id at 2223.
[88] Id at 2223–4.
[89] Ibid.
[90] Id at 2233.
[91] Herbert L Packer, ‘Two Models of Criminal Process’ (1964) 113 U of Pennsylvania LR 1. The due process model emphasises individual procedural and human rights by placing limitations on official power. Its validation requires an appeal to supra-legislative and constitutional law.
[92] Above n30.
[93] S11(c) and s13 read together with s7 of the Canadian Charter of Rights and Freedoms, Constitution Act 1982, Part 1. See also s2(d) of the Canadian Bill of Rights RSC 1985 App III.
[94] The accused’s right against self-incrimination is entrenched in s35(3) of the Final Constitution 1996. The non-party witness privilege against self-incrimination remains a statutory definition in s203 of the Criminal Procedure Act 1977 and s14 of the Civil Proceedings Evidence Act 1965. See also Ferreira v Levin 1996 (1) SA 984 (CC).
[95] R v Amway (1989) 1 SCR 21 at 40, 56 DLR (4th) at 323 (Sopinka J) (Canada) ‘I am of the opinion that it [privilege] was intended to protect the individual against the affront to dignity and privacy inherent in a practice [of coerced self-incrimination]’; Braswell v United States [1988] USSC 134; 487 US 99, 119 (1988) the privilege is an explicit right of ‘a natural person, protecting the realm of human thought and expression’.
[96] Although international law has no force in Australian domestic law, it does play a persuasive role in the development of the common law, especially in relation to human rights, Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 42. See also the schedule to the Human Rights Commission Act 1981 (Cth).
[97] Ligertwood, above n60 at 5.76.
[98] New Zealand Apple and Pear Marketing Board v Master and Sons Ltd [1986] 1 NZLR 191.
[99] (1983) 152 CLR 328 at 346. See also Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 311 (Murphy J), Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 at 507–508 (Mason CJ & Toohey J); Rochfort v Trade Practices Commission [1982] HCA 66; (1982) 153 CLR 134 at 150 (Murphy J).
[100] Above n62 at 55
[101] John T McNaughton, ‘The Privilege Against Self-Incrimination: Its Constitutional Affectation, Raison d’Etre and Miscellaneous Implications’ (1960) 51 J of Crim L Criminology and Police Science 138 at 147 ‘the choice is one amongst the three horns of the triceratops, harmful disclosure-contempt-perjury’.
[102] Cohen v Hurley [1961] USSC 69; 366 US 117 (1961) ‘our high regard for human dignity’. Ullmann v United States [1956] USSC 31; 350 US 422 (1956), 446 ‘[the privilege] protects the conscience and dignity of man’.
[103] Gecas, above n81 at 1461–2; Moses, above n72 at 874.
[104] Miranda v Arizona [1966] USSC 143; 384 US 436 (1966), 460. See also the European Court of Human Rights decision in Saunders v UK [1996] ECHR 65; (1997) 23 EHRR 313 at para 9 (Martens J, dissenting).
[105] René Descartes, Meditations and Passions of the Soul in the Philosophical Works of Descartes, translated by ES Haldane and GRT Ross (1911).
[106] Robert S Gerstein, ‘Punishment and Self-Incrimination’ (1971) 16 American J of Juris 84.
[107] Gecas, above n81 at 1456; (Under Seal), above n79 at 926.
[108] John H Wigmore, ‘A Treatise on the Anglo-American System of Evidence’ in John McNaughton (ed), 1961 vol 8 para 2251 at 318, ‘... the individual is sovereign and the proper rules of battle between government and individual require that the individual not be bothered for less than good reason and not be conscripted by his opponent to defeat himself ...’.
[109] Woolmington v DPP (1935) AC 462 at 481, to allow the prosecution to take up silence and to use it as a sword against the accused would be a violation of a basic principle of adversarial justice. See (USA) Tehan v Shott [1966] USSC 41; 382 US 406 (1966), 415; (Canada) R v Noble (1997) DLR (4th) 385, 418, 43 CRR (2d) 233 and (South Africa) S v Zuma 1995 (2) SA 652 (CC) at para 33.
[110] See also the European Court of Human Rights which has characterised the privilege in Murray v UK [1996] ECHR 3; (1996) 22 EHRR 29 as an ‘international standard which lies at the heart of the notion of a fair trial’. The European Court has not yet ruled on whether a defendant may invoke the privilege on fear of a foreign prosecution.
[111] Above n62 at 55.
[112] Cardassi, above n71 at 1086, ‘constitutional privileges do not disappear or lose vitality simply because they may hinder law enforcement activities’.
[113] Packer, above n91. Crime control emphasises administrative efficiency by reforming unnecessary protective procedural rules. Its validating authority is usually a legislative process.
[114] The Criminal Justice and Public Order Act 1994 s34 and s35 place a number of restrictions on the accused’s tactical use of silence during the criminal process. Similar restrictions exist in Australia, the Evidence Act 1995 (NSW) and (Cth) s20. The South African Law Commission in a discussion paper, project 73 of 2001, has suggested amending the Criminal Procedure Act 1977 by the insertion of provisions identical to the English statute.
[115] [1993] AC 45 at 53; Spedley Securities Ltd (in liq) v Bond Brewing Investments Pty Ltd (1991) 9 ACLC 522 at 535–6 (Cole J), ‘the privilege is a mere procedural rule from a time when defendants were less able to protect themselves’.
[116] (Under Seal), above n79 at 926; Phoenix, above n77 at 411.
[117] Phoenix, above n77 at 412.
[118] Parker, above n75 at 1070; Wigmore, above n108 at § 2258.
[119] David Dolinko, ‘Is There a Rationale for the Privilege Against Self-Incrimination?’ (1986) 33 UCLA LR 1063; Henry J Friendly, ‘The Fifth Amendment Tomorrow: The Case for Constitutional Change’ (1968) 37 U of Cincinnati LR 671.
[120] Charles McCormick, ‘Some Problems and Developments in the Admissibility of Confessions’ (1946) 24 Texas LR 239 at 277.
[121] FF Seeley Nominees, above n58 at 473.
[122] Gecas, above n81 at 1422.
[123] The United States Federal Immunity Act 18 USC § 6002 (1976) provides for a ‘derivative use immunity’; s204 of the South African Criminal Procedure Act 1977 ‘transactional immunity’. The privilege has a common law basis in all Australian jurisdictions, although it has been variously modified or abrogated by state legislation. These modifications are sometimes coupled with ‘use immunity’ or ‘personal immunity’ provisions, i.e. Evidence Act 1958 (Vic) s30; Evidence Ordinance Act 1971 (ACT) s57(5), Evidence act 1906 (WA) s13 and the Criminal Procedure Act 1986 (NSW) s14. In Canada s5(1) of the Canada Evidence Act RSC 1985 revokes the privilege and replaces it with a limited ‘use immunity’ in terms of s5(2). S13 of the Charter of Rights and Freedoms, Constitution Act 1982 also provides for use immunity.
[124] Balsys, above n85 at 2232; Phoenix, above n77 at 412.
[125] Kastigar v United States [1972] USSC 160; 406 US 441 (1972), 453.
[126] Wigmore, above n108 § 2269 at 342 ‘a rule which recognises incrimination under foreign law as a basis for privilege denies the forum sovereignty the power to grant immunity as broad as its privilege and thus denies it the power by any means to compel such testimony’.
[127] Above n62.
[128] Above n85 at 2232–33.
[129] Id at 2235.
[130] Above n79.
[131] In most Commonwealth countries extradition is not permitted in the absence of an extradition agreement; United Kingdom Extradition Act 1989; South African Extradition Act 1988. For example, Australia-South Africa extradition agreement (RSA) Reg SR 1988 no 301; Australia-US treaty May 14, 1974, 27 UST 957.
[132] In the United States extradition is usually an executive-political decision and it is unlikely that the courts would have the authority to block the government from responding to extradition requests.
[133] The proposed balancing test is only applicable to Commonwealth jurisdictions and not to the United States. The US Fifth Amendment is strictly interpreted in near absolute terms, Fisher v United States [1976] USSC 65; 425 US 391 (1976), 400 ‘when the constitutional privilege arises in its most pristine form, interest balancing is unnecessary and impermissible. The Fifth Amendment, unlike the Fourth, does not give way before reasonableness’.
[134] The threshold standard set by the Act is quite strict. A literal interpretation of the wording of s128(1) requires that the privilege may only be invoked when the evidence ‘tends to prove’ that the witness ‘has committed an offence’ or ‘is liable to a civil penalty’ [Emphasis added.].
[135] The criminal sanction must involve some form of incarceration or a capital punishment. Mere fines, penalties or forfeitures are insufficient. Exceptionally and subject to the court’s discretion, particularly onerous criminal fines or penalties may serve to trigger the privilege. In this regard the burden of persuasion rests on the witness to convince the court of the near certainty of an onerous fine or penalty. The Evidence Act 1995 (Cth) & (NSW) s 128 (1)(b) refers specifically to liability for a civil penalty as a reasonable ground for invoking the privilege.
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