Privilege Flashcards
Grant v Downs gives what reason for Privilege?
It promotes public interest and enhances the administration of justice by facilitating the use of legal representatives by clients, to retain them and seek advice.
What are the two categories of privilege?
Public interest immunity - secrets of the state.
Private Privilege
Section 118 Legal advice not related to any particular court proceedings talks about what?
It is privilege for general advice.
The dominant purpose of the communication or prepared document was providing legal advice.
Dyno Nobel Asia Pacific v Sunny Shore Shipping Finance says what about dominant purpose?
Dominant purpose can be determined by asking what the intention of the client or lawyer was at the time of making the communication or document.
Grant v Downs also said what in relation to the dominant purpose test?
It is no longer the sole purpose test and should be the dominant purpose test.
Section 119 relates to contemplation of proceedings what does the section go into?
If an objection is raised defence must show there is anticipated or current proceedings.
And the communication or document had the dominant purpose of providing professional legal services.
What are the differences between section 118 and 119?
119 can relate to a third party.
The comms are protected if they are made while preparing for an actual or anticipated court proceeding.
Third party could be witness statements taken by the defence.
Section 121 provides generally what will cause a loss of client legal privilege what are the three?
They have died.
Court would be prevented from enforcing an order otherwise.
Or if it affects a right of a person.
Section 122 provides further ways to lose legal privileges what are they?
Consent.
Party has acted inconsistent with the objections.
If they have knowingly and voluntarily disclosed the substance of the evidence to another person.
Employee is authorized to disclose.
Not taken to have disclosed if it was in the course of a confidential communication. Or result of deception or duress.
What is the standard of proof for establishing a party has lost privilege?
Balance of Probabilities.
What are the two points on Religious confessions?
Member of clergy is entitled to refuse to divulge that a confession was made or the contents.
Unless the confessions was for a criminal purpose.
Applies to clergy receiver not the confessor.
Section 128 certificate for protection against self incrimination does not apply it what circumstance?
It does not apply if the evidence given is a lie. Lies do not empower the certificate.
What are the general points of Section 128 certificates?
Witness must object, can be facilitated through rep.
Object before evidence comes out.
Ask for section 128 certificate.
No privilege for defendant regarding an act or statement that is part of actus reus or state of mind.
PII under section 130 outlines a non exhaustive list of circumstances what are they?
Prejudice defence forces Damages commonwealth or states. Prejudice investigations. Prejudice civil proceedings. Protection of sources. Prejudice function of the government.
Give an example of three circumstances where PII would may appear?
Prejudice investigations - Defence asking whether there were any other suspects or targets of the investigation.
Prejudice a function of the government, state or commonwealth - being required to disclose location of a listening device in a persons house which divulges methodology.
Divulge identity of sources - cause great risk to human life if sources’ identity is revealed.
