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them; but he may claim his privilege as sufficient cause for refusing to answer them.1
A witness may waive his privilege and answer at his peril. He cannot refuse to answer any question, relevant to the issue, on the ground that his answer would expose him to a civil action.2 But the privilege extends to cases in which an answer might subject him to penalties or forfeitures.3
Many difficulties have arisen and still exist in the application of the general rule in consequence of the special limitations which have been put on it by several statutes, which have enacted expressly that a witness cannot refuse to answer matters to which they refer, on the ground that the answers would criminate him ; but that such answers shall not be used against him in a criminal proceeding arising out of the same transaction. This compulsion and indemnity apply to witnesses on prosecutions for unlawful combinations of work men; to disclosures on oath in a judicial proceeding, and before indictment, of any act done by any banker, merchant, broker, factor, attorney, or other agent; to prosecutions against gaming-house keepers;6 and to actions for penalties under the Corrupt Practices at Elections Act.7 So by the Fraudulent Trustees Act, no person can refuse, in any civil proceeding, to answer any question on the ground that it would expose him to an indictment under the Act; but the answer cannot be given in evidence against him on a prosecution under the act.
The object of the Legislature in these special enactments has been to combine the necessary discovery of truth with the due protection of the witness; and
1 Chester v. Wortley, 25 L. J. 117, C. P.
2 46 Gec. 3, c. 37.
3 Cates v. Hardacre, 3 Taunt. 424.
46 Geo. 4, c. 129, s. 6.
5 7 Geo. 4, c. 29, s. 52; 5 & 6 Vict. c. 39, s. 6.
68 & 9 Vict. c. 109, s. 9.
7 17 & 18 Vict. c. 102, s. 35.
8 20 & 21 Vict. c. 54, s. 11.
therefore while it compels him to answer, it makes the answer in all cases harmless to him, and in some beneficial; for in most of the above cases, not only cannot the answer be used against him in any criminal proceeding, but he cannot be convicted subsequently by any evidence whatever of any offence provable by the extorted answer. But when the original proceedings are under the Bankruptcy Acts, the extent of a witness's privilege has been a subject of much controversy, and is still one of some uncertainty. Where the bankrupt answers without claiming his privilege his answer may be given in evidence against him on a criminal charge, precisely as any voluntary statement is at all times admissible against a prisoner.1 And even when the answer is clearly compulsory, or where it was obtained from the bankrupt by a threat of the commissioner that he would commit him if he did not answer a clearly criminatory question; it was held by a majority of judges that as such a question may be put to him lawfully under the Bankruptcy Act,2 by which a bankrupt may be examined touching all matters relating to his trade, dealings, or estate; therefore, the privilege of the witness is removed by statute, and therefore the answer may be used against him on a criminal charge. "The result seems to be that a question cannot be put to a bankrupt which does not touch his trade, dealings, or estate, or the direct object of which is to show that he has committed a criminal act; yet that he cannot refuse to answer a question which does touch his trade, dealings, or estate, although the answer may seem to show that he has concealed his effects or been guilty of any other offence connected with his bankruptcy." 993 This doctrine was dissented from by Coleridge, J.,4 and has been doubted since.5 In the latest case the prisoners had been
1 R. v. Sloggett, 25 L. J. 93, M. C.
2 12 & 13 Vict. c. 106, s. 117.
3 Per Lord Campbell, C. J.: R. v. Scott, 7 Cox Crim. Cas. 164. + Ib. 133. 5 R. v. Skeene, 28 L. J. 91, M. C.
indicted under 5 & 6 Vict. c. 39, for embezzlement as brokers and agents, and relied on the 6th section, which provides "that no agent shall be liable to be convicted by any evidence whatsoever in respect of any act done by him if he shall at any time previously to his being indicted for such offence have disclosed the same in any examination or deposition before any commissioner in bankruptcy." After committal the prisoners stated facts before the commissioner, which had been proved already before the magistrate, and on which they were subsequently convicted. They relied on their depositions before the commissioner as a statutory defence. A majority of the court held against a large minority that a statement by the prisoners of facts which were known previously aliunde was not a disclosure within the statute, and that therefore, the prisoners were properly convicted. But the judgment of the minority is remarkable for a strong disapproval of the judgment in R. v. Scott; and although the law must be held to be at present as settled by that case, it is not unlikely that it will be again brought in question.
When the question is merely degrading to the witness, and its object is to discredit his testimony by showing him to be of a disreputable character, the authorities are conflicting as to the privilege of the witness in refusing to answer. Generally, it appears to be clear that such a question may be asked; but that where it is not material to the issue, and its object is merely to degrade the character of the witness, he is not compellable to answer it. Thus, on a charge of rape, the prosecutrix cannot be compelled to say whether she has had connection with other men, or particular persons; nor can evidence of such connection be received. So, in an action of seduction, the woman is not compellable to say whether she has had connection with other men previous to the alleged
1 R. v. Hodgson, 1 Russ. & R. 211.
seduction; but the defendant may prove such previous connection in reduction of damages.1
Counsel, solicitors, and attorneys cannot be compelled to disclose communications which have been made to them in professional confidence by their clients.2
When the relation of attorney and client, or of counsel and client, has been established, then this rule operates; and neither the attorney nor counsel can be compelled or permitted,3 without the consent of the client, to make any disclosure or admission which may be fairly presumed to have been communicated by the client, with reference to the matter in issue, under an implied promise of secrecy.
When an attorney holds a document for his client, he cannot, against the will of his client, be compelled to produce it by a person who has an equal interest in it with his client.4 But an attorney may be asked whether he has papers of his client in court; and if by his answer, which is compulsory, he admit the fact, secondary evidence of their contents may be given if the originals are not produced.5 But if an attorney be subpoenaed to produce a document which he holds for a client, he may, in his discretion, refuse to produce it, and to answer any question as to its contents; and the judge ought not to examine it to ascertain whether it ought to be withheld.6
In a recent case' an attorney had been subpoenaed to produce a deed which, at the trial, he refused to produce by the express instruction of his client. The
1 Dodd v. Norris, 3 Camp. 519.
2 R. v. Duchess of Kingston, 20 How. St. Tr. 612. 3 Wilson v. Rastall, 4 T. R. 759.
Newton v. Chaplin, 19 L. J. 374, C. P.
Dwyer v. Collins, 21 L. J. 225, Ex.
• Volant v. Soyer, 22 L. J. 83, C. P.
Phelps and another v. Drew, 23 L. J. 140, Q. B.
party by whom he was subpoenaed then called another witness to give secondary evidence of the deed, by means of a copy. The second witness stated that he had a copy of a deed, but that he did not know whether it was a copy of the deed in question unless he was suffered to look at the deed. It was then suggested that he should be allowed to look at the names of the parcels and the parties to the deed, in order to identify it. The first witness still objected, and it was also contended on the opposite side, that the first witness's client ought to have been called to show that he had given the prohibition, and that all sources of primary evidence had been exhausted. The judge, however, ordered that the second witness should be allowed to look at the indorsement of the deed; and when the latter had thus identified it, the judge received the copy as secondary evidence. An application for a new trial was made, on the ground that this evidence was improperly admitted; but the court upheld the ruling of the Nisi Prius judge on both points. Coleridge, J., said:
"It is said that secondary evidence of the deed is not admissible, because all was not done to exhaust the means of obtaining primary evidence; the facts being that the defendant being desirous of the production of the deed in evidence, the attorney of the party interested was served with a subpoena duces tecum, and was present at the trial with the deed, and on being called on to produce the deed, he stated that it was the title deed of his client, and that he had received instructions from his client not to produce it. It is admitted that, where an original instrument is properly withheld on the ground of privilege, secondary evidence of the contents of the instrument is receivable; but here it is said, that the privilege, though properly put forward by the attorney, might have been waived by the client if he had been in Court, and therefore this cannot be considered as an instrument properly withheld on the ground of privilege, because no steps had been taken to procure the attendance of