Australia: The Privilege Against Self‐incrimination in Australian Civil Proceedings — The Decision in Reid v Howard
| Date | 01 February 1996 |
| Published date | 01 February 1996 |
| DOI | https://doi.org/10.1108/eb025745 |
| Pages | 400-402 |
| Author | John Cotton |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 3 No. 4 — International
Australia: The Privilege Against Self-incrimination
in Australian Civil Proceedings — The Decision in
Reid v Howard
John Cotton
Courts around the world have, in recent years,
spent much time and effort in trying to solve the
problem of the privilege against self-incrimination
in civil proceedings. In Reid v Howard,1 the High
Court decided that, in Australia at least, this was
time and effort wasted and that only legislators can
address the problem. The judgments arc notable
for their brevity and clarity, but to appreciate this,
it is necessary to understand the complex nature of
the problem.
THE PROBLEM
The privilege against self-incrimination ('the privi-
lege') protects a person from being forced to dis-
close oral or written evidence which may lead to
his conviction for a criminal offence. This creates
obvious tensions in civil proceedings where there
is not the same need, as in criminal proceedings, to
protect the rights of the individual against the state.
The civil court seeks to make a decision between
the parties with all the information before it. This
is achieved by the disclosures of both sides
through procedures such as discovery and inter-
rogatories. The tensions are even more evident in
interlocutory civil proceedings: for example, where
the privilege is claimed to avoid making disclosures
necessary for the enforcement of Mareva injunc-
tions.
TWO JUDICIAL APPROACHES
Undoubtedly the privilege can be removed by
clear statutory provisions, but the question has
been whether the courts can remove it without
statutory assistance. In civil proceedings they have
made various attempts, which broadly follow one
of two approaches: either replacing the privilege
with equivalent protection of their own devising
('partial abrogation'); or deciding that the privilege
does not apply at all, because the situation comes
within an exception established by the common
law ('total abrogation').
THREE QUESTIONS
The judicial attempts raise three fundamental
questions. The first two arise when there is partial
abrogation: first, whether the substitute mechan-
isms really provide as much protection as the priv-
ilege; and secondly, whether the courts in principle
have the power to replace the privilege with such
mechanisms, even if they do work. The third
question relates to total abrogation: do the courts
have the power to find exceptions to the privilege?
The High Court in Reid v Howard answered all
three questions simply and forcefully in the nega-
tive.
THE FACTS
The case involved an accountant who was being
sued by his former clients for misappropriation of
funds.
They obtained a Mareva injunction and an
order against him to provide affidavits relating to
his assets. The New South Wales Court of Appeal
tried to avoid his claim of privilege by a compli-
cated series of orders, designed to keep the infor-
mation in the affidavits away from the prosecuting
authorities.2 The orders included requirements
that the affidavits should be kept in scaled envelpes
and undertakings of confidentiality should be given
by those concerned with the civil proceedings. The
High Court upheld the accountant's appeal and his
claim of privilege, and ordered the destruction of
the affidavits. The decision was unanimous, with
only one point of disagreement between Deane J
and the other four judges, who gave a joint judg-
ment.
THE QUESTION OF EQUIVALENT
PROTECTION
There have been numerous English decisions at all
levels on this subject, but Reid v Howard is the first
reported case in which an Australian appellate
court has considered the use of substitute protec-
Page 400
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