Privilege Flashcards
General points about privilege
- Evidence that his privileged is not admissible (134).
- If under a disclosure requirement (summons, subpoena, pre-trial discovery, nonparty discovery, notice to produce, request to produce, search warrant) party objects to disclosing something subject to client legal privilege, journalist privilege, or public interest, the court is to determine objections by applying part 3.10 with any necessary modifications.
-  The court is to inform a witness or a party of the rights to object if it appears that the witness may have grounds for objection – court to satisfy its self that witness aware (132).
- The court may inspect documents for the purpose of determining question re privilege (133).
Different types of privilege - list
- Client legal privilege
- PASI
- Matters of state
- Journalist privilege
- Religious confessions
- Evidence of judicial reasons
- Evid of settlement negotiations (civil)
CLP - two key questions
- Is the communication or document privileged?
- Has the privilege been lost?
CLP - first question - is the communication or document privileged?
(a) is there a confidential communication or doc? I.e. made in such circumstances that the maker or recipient was under an express or implied obligation not to disclose its contents.
(b) Has there been an objection to admission by the client (includes employee/ agent of client)?
(c) Was the communication or document:
- between client and lawyer or two lawyers acting for a client, or prepared by one of them, for the dominant purpose of providing legal advice? (legal advice - 118)
- a confidential comm between a client and another person, or between a lawyer acting for client and another person or a confidential doc that was made/ prepared for the dominant purpose of providing professional legal services in relation to a proceeding (or anticipated) (litigation - 119)
- between an unrepresented party and another, or a doc prepared by or at the request of the party, for the dominant purpose of preparing for or conducting the proceeding (120).
CLP - second question - has the privilege been lost? (List)
- Division does not prevent adducing evidence concerning the intentions or competence of a person who has died, if were the evid not adduced the court would be prevented from enforcing an order or of communication or doc that affects the right of a person (eg acceptance of offer) (121).
- party consents to evidence being admitted (122).
- privilege waived (122(2)-(5)).
- evidence used to try to revive memory (122(6)).
- division does not prevent A from adducing evidence (unless it’s a conf comm/doc of an associated accused (123)
- division does not prevent evidence being led by one of joint clients in a civil proceeding between any one of the clients and lawyer, or a doc prepared by or on request of any one of them, in connection with the matter (124).
- if the comm/doc was made in furtherance of a fraud/offence/ deliberate abuse of power (125).
- is the comm/ doc necessary to understand another doc over which privilege has been lost? (126)
Has privilege been waived (drill down)
Has the person acted inconsistently with a claim of privilege?
Privilege can only be waived by client not lawyer (barrister owes a duty of confidence to client).
Taken to have so acted if knowingly and voluntarily disclosed the substance of the evid (doesn’t include disclosure by employee or agent) or the substance of the evid has been disclosed with the express or implied consent of the client.
Not taken to have so acted merely because the substance of the evidence has been disclosed while making a confidential communication or doc, as a result of duress or deception, or under compulsion of law.
Not taken to have so acted merely because of a disclosure by a client to another person represented by the same lawyer in the same matter, or because of a disclosure to a person with whom the client had a common interest in the proceeding.
PASI
- Objection
W may object to giving evid (or evid on a particular matter) on the ground that it may tend to prove that they committed an offence (Au or foreign) or are liable to a civil penalty. - Reasonable grounds?
The court must then determine whether there are reasonable grounds for the objection. If no reasonable grounds, PASI will not apply. - Info given
If court determines there are reasonable grounds for the objection, the court must not require W to give evid and must inform W that they do not need to give evid but that if they do so willingly, or if they’re required to under (4), the court will give a certificate (and the effect of cert) (3). - Compel?
Court may require W to give evid if satisfied that the evid does not tend to prove that W committed an offence/ liable to a civil penalty under foreign law AND the IoJ require that W gives evid.
If W either willingly or is required to give evid, the court must give a certificate.
- Evid given by in respect of which a cert has been given, or evid of any info, doc or thing obtained as a direct or indirect result of such evid cannot be used against W in a Vic proceeding (other than a proceeding in respect of the falsity of the evid). Doesn’t apply to a retrial.
Matters of state - general rule
If the public interest in admitting info or a doc that relates to matters of state is outweighed by the public interest in preserving confidentiality in relation to the info or doc, the court may direct that the info or doc not be adduced (130(1)). 
