Privilege Flashcards
What is privilege?
Privilege is the right of a person or class of person’s to decide to decline to give evidence or the right to withhold relevant information from the court.
What is the rationale behind legal professional privilege?
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
What are the two categories of privilege?
- Public interest immunity (state secrets)
2. Private privilege (self incrimination/legal professional privilege)
Under part 3.10 evidence act what is the definition of client?
Employer of a lawyer (e.g. defendant)
Under part 3.10 evidence act what is the definition of confidential communication
When made under obligation not to disclose contents.
Under part 3.10 evidence act what is the definition of confidential document?
When prepared under obligation not to disclose contents.
What privilege attaches to legal advice?
Section 118 evidence act- legal advice not related to court proceedings
Sextion 119 evidence act - legal advice where proceedings are in contemplation
What must the court be satisfied of for privilege to attach under section 118 Evidence Act?
Confidential communication between client and lawyer OR
Confidential communication between 2 or more lawyers acting for client OR
Contents of confidential documentation prepared by client or lawyer (whether delivered or not
FOR dominant purpise of providing legal advice to the client.
What is required for privilege to attach pursuant o section 119 Evidence Act?
Defence must show
- Communication made in anticipation of current or pending legal proceedings
- Communication made for dominant purpose of providing client with professional client services
What is dominant purpose test?
Dyno Nobel Asia Pacific Pty Ltd v Sunny Shore shipping finance Inc “the way the dominant purpose test is approached is by askinf what the intention of the client oe lawyer was at tge time or making the communicafion or document.
What is the difference between section 118 and 119 evidence act?
Section 118 Evidence Act relates to the lawyer and client and doesn’t have to be prepared in anticipation of court proceedings.
S119 Evidence Act relates to third person’s. The communications are protected if they are made while preparing for an actual or anticipated court proceeding. E.g..witness statement taken by defendant
Who has the burden and standard of proof?
The burden of proof is on the party seeking to prove that the privilege has been lost. Standard of proof is the balance of probabilities s142 evidence act.
How do you lose client legal privilege?
Section 122 Evidence Act:
- When the defendant gives consent
- Defendant has told people about the information
Is religious confession privileged?
Yes. Section 127 Evidence Act provides that a person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made to the person or to refuse to divulge the contents of such confession.
Its not the client but member of thr clergy who has privilege.
What is section 128 Evidence Act?
Privilege against self incrimination. A section applies when a person objects to givinh particular evidence on the grounds that the evidence may tend to prove that the witbess had committed an offence.
The court must determine whether there are reasonable grounds for an objection if the grounds are established the witness can give evidence under the protection of a certificate.
What are the different types of public interest immunity?
- Police informers
- Use of pseudonyms (witnesses not revealing identity)
- Current and future police investigstion and confidential police methodology
When a claim of public interest immunity is raise what is being argued?
A party is asserting to the court that it would not be in the public interest for these documents to be made available.
What is the test to be applied to public interest immunity?
S130(1) evidence act: 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 factors are to br considered when weighing up public interest immunity
S130(4)(a) Evidence Act prejudice the security defence or international relations of Australia,
B) damage relations between commonwealth and a state or between 2 or more states
C) prejudice the prevention, investigation or prosecution of an offence
D) prejudice the prevention investigation of or conduct of proceedings for recovery of civil penalties
E) disclose or enable a person to ascertain the existence or identity of a confidential source of information
F) prejudice the proper functioning of the government of the commonwealth or a state.
S130(5) Evidence Act- the importance of the information or documentation in the proceeding
B) if the proceeding is a criminal proceeding whether the party seeking to adduce the evidence act defendant or prosecutor
C) the nature if thr offence
D) the likely affect of adfuvinh the information
E) whether the substance.of the information or documentation has already been published.
F) if the direction is to be made subject to the condition that the prosecution be stayed.
What is t he importance of section 134A Evidence Act?
Extends section 130 Evidence Act and public interest immunity to preliminary proceedings such as subpoenas and notices to produce. It only applies to an objection by the person required to disclose information.
Derbas v the Queen (2012) s134A does not apply to third parties. Police are not subpoenaed party then no standing. Common law applies to interested 3rd parties.
Prior to any claim for immunity being made what does the party calling for the documents have to show?
A legitimate forensic purpose.
Saleam:a trial judge must be satisfied when access to documents is being sought is he 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 nsw: it is open to a party subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceedings. That is an impermissible fishing expedition.
What did HT v the Queen (2019)?
Relates to disclosure and affidavits of assistance
What are the key points from Bradley v Senior Constable CHILBY (2020)
There is a duty on a prosecutor to disclose material which fits in one of these three categories
- Category 1 - it is or might be relevant to an issue in a case
- It raises a new (unknown) issue
- It holds out a real out a real prospect of providing a lead on evidence
