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.
