Privilege

Question 1

What is the rationale for Legal Professional Privilege as per Grant v Downs (1976)?

Answer 1

“.. it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of Clint’s by legal advisers …. thereby inducing the client to retain the solicitor and seek his advice”.

Question 2

What are the two categories of Privilege?

Answer 2

Public Interest Privilege and Private Privilege

Question 3

What is Public Interest Privilege?

Answer 3

Where the crown claims privilege regarding matters whose confidentiality is essential to functioning of public service (eg: secrets of the State).

Question 4

What is private privilege?

Answer 4

Divided into 2 areas - privilege against self incrimination and legal professional privilege

Question 5

Which section of the Evidence Act relates to privilege for general legal advice?

Answer 5

Section 118 relates to legal advice not related to any particular court proceedings eg: general advice.

An objection may be made by a client if the court can find that adducing evidence results in disclosure of confidential communication between client and lawyer or between two lawyers acting for client

OR

contents of a confidential document prepared by client or lawyer for dominant purpose of providing legal advice to the client.

Any third party communication with the lawyer or client is not subject to privilege under this section.

118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer, or
(b) a confidential communication made between 2 or more lawyers acting for the client, or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

Question 6

For dominant purpose, at what point do you determine what the dominant purpose was? Cite caselaw.

Answer 6

The dominant purpose was the intention at the time of creating the document.

Dyno Nobel Asia Pacific Ltd 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”.

Question 7

Is the test for Privilege the dominant purpose test or the sole purpose test?

Answer 7

It is the dominant purpose test.. NOT the sole purpose test.

Common law used to be the sole purpose test however the dominant purpose test was later incorporated into the Evidence Act.

Question 8

What does Section 118 protect?

Answer 8

Confidential documents and confidential communications.

Question 9

What is the burden of proof for privilege and who bears the onus?

Answer 9

As the client is asserting that he has privilege, the burden relies on the client. The standard is the balance of probabilities (S142). Admissibility will be determined on a voir dire.

Question 10

Which Section of the Evidence Act relates to privilege for legal advice in contemplation of proceedings?

Answer 10

Section 119 of the Evidence Act provides privilege for communications between the client and another person or the solicitor and another person where proceedings are in contemplation.

For the purpose of preparing for an actual or a contemplated hearing.

Question 11

How does Section 119 operate?

Answer 11

Defence must show two things:

1. Communication is made in anticipation of current or pending legal proceedings.
2. Communication is made for dominant purpose of client providing professional legal services relating to proceedings.

Question 12

What are the differences between 118 and 119?

Answer 12

The advice in relation to Section 119 relates to specific proceedings and applies to confidential communication with another person/a third party (ie: if lawyer is making enquiries on behalf of the client).

The communications are protected if they are made while preparing for an actual or anticipated court proceeding. (For example: witness statements taken by the Defendant).

Question 13

Which section of the Evidence Act relates to unrepresented parties in contemplation of proceedings?

Answer 13

Section 120 relates to unrepresented parties where proceedings are in contemplation.

An object may be made by an unrepresented party if the court can find adducing the evidence results in disclosure of confidential communication between unrepresented party and another OR contents of confidential document prepared by or at the request of unrepresented party for dominant purpose of preparing for/conducting the proceeding.

As they do not have the benefit of professional legal advice, they are given special caution eg: advice from Magistrate that may be subject to privilege.

Question 14

Section 120?

Answer 14

Unrepresented parties where proceedings in contemplation.

On objection by unrepresented party
- Court finds addicting evidence results in disclosure of
- confidential communication between unrepresented party and another, or
- contents of confidential document prepared (whether delivered or not) prepared by or at request of unrepresented party
For DOMINANT PURPOSE of preparing/conducting the proceeding

Question 15

When can legal client privilege be lost generally? Cite Section.

Answer 15

Section 121. Loss of client legal privilege generally:

(1) . Does not prevent adducing evidence relevant to a question concerning intentions and competence in law of a client or party who has died
(2) Does not prevent the adducing of Evidence if, were the evidence not adduced, the court would be prevented from enforcing an order of an Australian Court
(3) Does not prevent the adducing of evidence of a communication or document that affects the right of a person.

The burden of proof is on the party seeking to prove that the privilege has been lost on the balance of probabilities

Question 16

How do you lose privilege? Cite legislation.

Answer 16

Section 122 of the EA.

• Privilege can be lost by consent of the party or client.
• Privilege is lost if the party or client has acted in a way inconsistent with an objection under sections 118, 119 or 120

(Without limitation, a client is taken to have acted as described in ss2 above if:

* . The client or party has KNOWINGLY and VOLUNTARILY DISCLOSED THE SUBSTANCE of the evidence to another person, or
* . The substance of the evidence has been disclosed with the express or implied consent of the client or party.

Question 17

What are the definitions of Protected Confidences. Cite legislation.

Answer 17

Section 126A

Protected confidence means: a communication made by a person in confidence to another person (called the “confidant”)

Protected confided means: a person who made a protected confidence.

Question 18

Cite the section where the exclusion for protected confidences is found?

Answer 18

Section 126B

Protected confidences
126B

Question 19

What is public interest immunity? Cite legislation.

Answer 19

Section 129 - Exclusion of evidence of reasons for judicial and jury decisions

Section 130 - Exclusion of evidence of matters of state

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality court may direct that the information or document not be adduced as evidence.
(2) Anyone can make application or court may do so on it’s own motion.
(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:

(a) prejudice the security, defence or international relations of Australia, or
(b) damage relations between the Commonwealth and a State or between 2 or more States, or
(c) prejudice the prevention, investigation or prosecution of an offence, or
(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or
(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, or
(f) prejudice the proper functioning of the government of the Commonwealth or a State.
(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:
(a) the importance of the information or the document in the proceeding,
(b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication,
(e) whether the substance of the information or document has already been published,
(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed.
(6) A reference in this section to a State includes a reference to a Territory.

Question 20

What is the rationale for legal profession privilege? What is the caselaw.

Answer 20

Grant v Downs - “it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers… thereby inducing the client to retain the solicitor and seek his advice”.

Question 21

What is Privilege?

Answer 21

Refers to the right of a person or class of persons to decline to give evidence.

Question 22

What are some of the relevant definitions under Section 117?

Answer 22

Client: employer of a lawyer
Confidential communication: when made under obligation not to disclose contents
Confidential document: when prepared under obligation not to disclose contents.

Question 23

What is a legitimate forensic purpose? Cite relevant caselaw.

Answer 23

Prior to any claim for immunity being made, the party calling for the document under subpoena must show the court that they have a legitimate forensic purpose for calling the document.

• Saleam - court must be satisfied that it is “on the cards” that the documents would materially assist the accused in his defence.
• . Carroll v the Attorney General for NSW - It is not open to a party to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case.
• . Ali Tastan - this is an impermissible fishing expedition.

Question 24

What are the different types of public interest immunity?

Answer 24

Informers: Police informers provide valuable information to police which would be difficult if not impossible to obtain by other sources.

Use of pseudonyms - If a witness was scared and fearful for their safety, they may be reluctant to give evidence if it involved the revealing of their identity.

Police investigation - Public interest immunity may protect ongoing and future criminal investigations from being impeded or wholly frustrated by steps being taken to conceal or destroy incriminating evidence.

Question 25

Religious Confessions

Answer 25

C

Question 26

Protection against self incrimination

Answer 26

Section 128

Question 27

Section 130(4) - what are the factors?

Answer 27

130 Exclusion of evidence of matters of state
(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:
(a) prejudice the security, defence or international relations of Australia, or

(b) damage relations between the Commonwealth and a State or between 2 or more States, or
(c) prejudice the prevention, investigation or prosecution of an offence, or
(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or
(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, or
(f) prejudice the proper functioning of the government of the Commonwealth or a State.

The court is to take into account:

(a) the importance of the information or the document in the proceeding,
(b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication,
(e) whether the substance of the information or document has already been published,
(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed.