Privelege Flashcards
Rationale for legal privilege and case?
Grant v Downs (1976)
“It promotes public interest because it assists and enances the administration of justice by facilitating the represenation of clients by legal advisers… thereby inducing the client to retain Solicitor to seek his advice”.
Two categories of privilege?
Public interest privilege -
Where the Crown claims privilege re matters whose confidentiality is essential to functioning of public service.
Private privilege
Divided into two areas, privelege against self-incrimination and legal professional privilege.
What is Confidential communication and where is it defined?
117 Evidence Act
A communication between persons made under an obligation not to disclose contents.
118 Evidence Act?
Evidence not to be adduced if CLIENT objects, and Court finds that adduing would result in disclosure of
a) Confidential communication between lawyer and client
b) Confidential communication between 2+ lawyers
c) Contents of confidential document prepared by client, lawyer or other person.
If for dominant purpose of providing legal advice to client.
What does Dominant purpose mean? Case?
Dyno Nobel Asia Pacific v Sunny Shore Shipping Finance Inc
“The way dominant purpose test is approached is by asking what the intention of the client or lawyer was at the time of making the communication or document.”
Is it a Dominant Purpose test or Sole purpose test?
Dominant purpose test.
s 119?
Evidence not to be adduced on objection from client, if Court finds evidence would result in disclosure of;
a) Confidential communication between client and another person or clients llawyer and another person or
b) confidential document
For Dominant purpose of providing professional legal services relating to overseas or Australian proceedings.
119 Basically?
Provides privilege for communications between client and another person or clients solicitor and another person.
For purpose of preparing for an actual or contemplated hearing.
Two ways to lose privilege? Section?
122.
(1) Defendant gives consent (express or implied.
(2) + (3) Defendant has told people about the information.
Basically acting inconsistently with their claim of privilege.
Religious confessions 3 rules.
- Confession must be made to a member of clergy.
- Privilege lost if made for criminal purpose
- It is not the client but the member of clergy who has the privilege.
128 certificate limitation?
128 (7)
Does not apply to a criminal proceeding in respect of the falsity of the evidence.
Doesn’t protect against lying under oath.
s 130?
Public interest immunity. Balancing Act on Public interest in having document adduced in evidence to Public interest in having it remain confidential.
s 130 (4)?
Things which Public interest immunity relates to.
a) Prejudice security, defence or international relations of Australia.
c) Prejudice the prevention, investigation or prosecution of an offence
e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State,
What must party calling for Subpoena show, prior to claim of immunity being made?
There is a legitimate forensic purpose for the Subpoena.
How does 128 cert work?
Person can object to giving evidence that may incriminate them. Certificate issued to protect them from being prosecuted for the offence.
