Exclusionary rule: Privilege Flashcards
Does marital privilege still apply?
no - abolished in s 8(2) QEA and modified in s 18 CEA.
Spouses are both component and compellable to give evidence in both civil and criminal proceedings.
What is Crown or public interest privilege?
s 590AQ criminal code the disclosure of material may not be allowed where for example it would…impact proper functioning of governmentetc
What is privilege against self incrimination ?
s 10 QEA no person shall be required to self incriminate, however s 15 QEA an accused person who elects to give evidence shall not refuse to answer a question on the ground it tends to incriminate subject to ss(3)
What does legal professional privilege attach to? (hint 3)
(1) lawyer client communication where the dominate purpose is legal advice (see 118 CEA)
(2) without prejudice negotiations
(3) material prepared in anticipation of litigation
Where a party claims legal professional privilege regarding lawyer client communications…who bares the onus to establish the privilege and what must be shown ?
The party claiming privilege must demonstrate the dominate (substantial) purpose of the communication is getting or obtaining legal advice (Esso v FCT). This must be supported by specific evidence for each communication rather than a generalised assertion. There must be a legit lawyer client relationship.
NB commutation’s between in house lawyer and gov org may LPP apply if the lawyer enjoys proper professional independence and holds current practicing certificate.
Question: Criminal proceeding - tax offending. A witness claims LPP over communications between himself and his accountant with a law degree. The prosecution wish to rely upon admissions made in the document by the defendant. Can the witness claim LPP?
The lawyer client communications will only attached LPP where the dominate purpose of the communication is obtaining or getting legal advice…the accountant does not hold a practicing certificate therefore cannot provide legal advice no LPP
What is the rationale for LPP?
The rationale for LPP is that without it people could determine and protect their legal rights as they would be in fear of providing full and frank instructions…
Question: Civil proceeding. A witness is claiming legal LPP over a document between himself and his lawyer. The plaintiff asserts the document contains admission by the respondent which are relevant to a fact in issue. The document contains information which is merely commercial in nature and contains information about how to handle the public relations fall out of the proceeding. Does LPP attach to the doc?
No - LPP will only attract to a lawyer client communications where the dominate purpose of the communication is the obtaining or giving of legal advice (esso v fct) this does not extend to commercial advice,
Does getting or giving of legal advice include: Commercial advice given by a lawyer, public relations advice given by a lawyer, non legal information, or a client providing directions to a lawyer without asking for advice?
No
Medina v The Queen (1990) 3 WAR 21
In Medina v The Queen (1990) 3 WAR 21, the prosecution claimed the defendant displayed a consciousness of guilt (flight) by suddenly leaving the jurisdiction.
To show why the accused left, the prosecution called his lawyer as a witness and asked “…did you telephone your client and tell him the police have taken out a warrant for your arrest?”.
An objection was taken that the answer was covered by legal professional privilege and could not be answered.
The court held the question must be answered.
It was held that it must be answered because the communication was neither instructions nor legal advice, but simply a statement of fact. The mere fact that legal advice was obtained does not meant it was covered by privilege.
“…legal advice is not confined to telling the client the law; it may include advice as to what should prudently be done in the relevant legal context” true or false?
True
Question: A lawyer takes a statement from a witness to use in potential proceedings. Can the client claim privilege?
yes because the statement is going to be used for the purpose of litigation
Can legal professional attach to advice given which seeks to advice the client how to commit an offence? Is there a section of the CEA which applies?
Professional privilege can not apply when the client seeks advice in aid of an unlawful purpose (See s 125 CEA).
What is “without prejudice” correspondence and does LPP apply? and what is the rationale for the rule?
Correspondence which contains admissions sent to opposing party with a genuine intent to settle the civil proceedings is not admissible during the proceeding but is as to the question of costs (see UCPR). It is not essential that the words without prejudice are attached to the corro.
The rationale for the rule is that it encourages parties to resolve matters to conserve private and public resources.
Is material prepared for the purpose of pending or anticipated litigation covered by LPP ?
Yes
