Privilege Flashcards
What is Privilege?
- Refers to the right of a person or class of persons to decline to give evidence.
- The effect of allowing a claim of privilege is to withhold relevant information from the court.
What is the rationale for Legal Prof Privilege?
Grant v Dows (1976)
‘…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.’
What are the two categories of Privilege?
- Public interest Privilege: where the crown claims privilege re matters whose confidentiality is essential to functioning of public service. E.g.. Secrets of state.
- Private Privilege: divided into 2 areas, privilege against self-incrimination and legal professional privilege.
What is confidential communication?
When made under obligation not to disclose contents
What section is Client Legal Privilege and what is it for?
Section 118 - relates to legal advice not related to any particular court proceedings e.g.. general advice
For DOMINANT purpose of providing legal advice to client
What is the case for the dominant purpose of the lawyer providing legal advice to the client?
Dyno Nobel
‘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.’
What is the test?
Dominant purpose test
What is the difference between Section 118 and Section 119?
- Section 119 relates to third persons.
- The comms are protected if they are made while preparing for an actual or anticipated court proceeding.
- For example - Witnesses statements taken by the def.
What is Section 122?
Loss of client privilege:
(1) Privilege lost by consent of the party or client
(2) Privilege lost if the party or client has acted in a way inconsistent with an objection under section 118, 119, or 120
(3) Without limitation a client is taken to have acted in as described in ss(2) 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.
What are religious confessions?
- Person who is or was member of clergy of any church or religious denomination
- Entitled to refuse to divulge that a religious confession was made to the person while a member of the clergy or to refuse to divulge the contents of such confession
- This does not apply if the confession was made for a criminal purpose
- The applies regardless of whether:
- an Act says the rules of evidence do not apply
- or a person/body is not bound by the rules of evidence
- or that a person is to excused from producing evidence on ground of privilege or any other ground
What is Section 128(7)?
(7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence:
(A) evidence given by a person in respect of which a certificate under this section has been given, and
(B) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
What is Section 130(1)?
Balancing test to be undertaken by the court in weighing up the public interest in admitting the evidence and the public interest in excluding the evidence.
What is Section 130(4)?
(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.
What is Section 130(5)?
(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.
What is important to know if a party is calling for the documents under a subpoena?
Prior to any claim for immunity the party must show the court that they have a legitimate forensic purpose for calling the documents.
