Privilege Flashcards
What is Privilege?
Refers to the rights of a person or class of persons to decline to give evidence.
What is the rationale for legal profession privilege?
Grant v Downs - “it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of client by legal advisers… thereby inducing the cline to retain the solicitor and seek his advice”.
What are the two categories of privilege?
Public interest privilege - where the crown claims privilege in relation to matters whose confidentiality is essential
Private privilege - divided into two areas: privilege against self-incrimination and legal professional privilege
What are three relevant definition under s117 in relation to privilege?
Client - employer of a lawyer
Confidential communication - under obligation not to disclose
Confidential document - prepared under obligation not to disclose
Which section of the Evidence Act applies to privilege for general legal advice?
S118 - On objection by the client, the court finds that adducing evidence results in disclosure of confidential communication between client and lawyer or between two lawyers or confidential document prepared by client or lawyer for DOMINANT PURPOSE of providing legal advice to the client -
DOES NOT RELATE TO THIRD PARTIES
What is a ‘dominant purpose’?
Dyno Nobel - Dominant purpose test is asking what the intention of the client or lawyer was AT THE TIME OF MAKING the communication or document.
Adopted in s118.
Who bears the onus of asserting privilege?
As the client is asserting that he has privilege, burden lies on the client on the balance of probabilities
Which section applies to privilege for legal advice in contemplation of proceeding?
S119 - On objection by the client, the court finds that adducing the evidence results in disclose of confidential communication between a client and another or between a lawyer acting for the client and another or contents of a confidential documents prepared for dominant purpose of professional legal advice in relation to the proceedings
What is the key difference in relation to s118 and s119 privilege?
The advice in relation to proceedings in s119 extends to confidential communication with another person for the purpose of the lawyer making enquiries in relation to those proceedings of the clients behalf.
Which section relates to privilege for unrepresented parties in contemplation of proceedings?
S120 - An objection made by an unrepresented party if the court finds adducing evidence results in disclosure of confidential communication between unrepresented party and another or contents of confidential communication prepared by or for unrepresented party for dominant purpose of preparing for/conducting proceedings.
How is client legal privilege lost generally?
S121 - Loss of client legal privilege generally if:
(1) If adducing evidence in relation to intentions and competence in law of a client or party who has DIED
(2) If the evidence was not adduced, would prevent the ENFORCING OF AN ORDER by a court
(3) If evidence was not adduced, would effect the RIGHTS of a person
In what specific circumstances is client privilege lost?
S122 - Loss of client legal privilege if:
(1) Lost by consent
(2) Lost if party acted in a way inconsistent with an objection under s118, s119, s120
(3) provides that in relation to (2), acted in a way inconsistent if knowingly and voluntarily disclosed evidence to another person
What is public interest immunity?
S129 - Exclusion of evidence in relation to judge/jury decision
S130 - (1) Balance between public interest in admitting/excluding
(2) anyone can make application (3) court informs itself as it sees fit (4) list of matters relating to state (5) list of considerations
What is a ‘legitimate forensic purpose’ in relation to subpoenas?
Party calling for subpoena must show legitimate forensic purpose.
Saleam - “on the cards” that documents will assist defence
Carroll - Cannot call mere to determine whether or not relevant
Ali Tastan - “fishing expedition” is impermissible
What are the different types of public interest immunity?
Informers - police informers who provide valuable information
Pseudonyms - Reluctance to disclose identity due to fear
Investigation - Protect ongoing investigation from being impeded or frustrated by disclosure resulting in concealment/destruction of incriminating evidence
