#9233 - Privilege - Evidence Law

Privilege

Once a competent and compellable witness is in the witness box, they may claim privilege over some pieces of evidence. Privileges are fundamental common law rights. One must prove each fact over which they are claiming privilege. Privileged evidence is inadmissible (s134 EA)

Privileges apply to pre-trial procedures 131A(1)(a)

If the Court believes that a witness or party may have grounds for making an application under a provision of this part, the court must satisfy itself that they are aware of this 132

Evidence that, because of this part, must not be adduced or given in a proceeding is not admissible 134

Self-incrimination

1. A witness in a civil or criminal proceeding can object to giving evidence on the ground that it may tend to prove that the witness has committed an offence or is liable to a civil penalty

2. Identify that an objection has been or could be raised by an individual to avoid self-incrimination

   1. Section 128(1) EA

      1. Section 128 applies to a witness who objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove the witness

         1. committed an offence arising under Australian law or a law of a foreign country; or

         2. is liable for a civil penalty

      2. 128(10) Does not apply in relation to the giving of evidence by a defendant, the evidence being that the D

         1. did an act the doing of which is a fact in issue; or

         2. had a state of mind the existence of which is a fact in issue

      3. Only for testimonial evidence, not physical evidence Sorby. Physical evidence is incriminating, but not self-incriminating

      4. Applies for derivative evidence (evidence which may set in train a process which may lead to incrimination) Sorby

      5. Applies to non-judicial proceedings Sorby v Cth

      6. Only can protect oneself, not others Controlled Consultant v Commissioner for Corporate Affairs

      7. Cannot be claimed by corporations s 187 EA, Environment Protection Authority v Caltex Refining Co Pty Ltd

   2. Under s 128(10), a person in a criminal trial cannot object to giving evidence to facts in issue about that trial if they have given evidence in chief (and are thereby competent)

3. Assess whether the witness has “reasonable grounds” for the objection

   1. S 128(2) The Court must determine if there are reasonable grounds for the objection

      1. Common law factors may come into play here, but realise that the statute is the starting points

         1. Brebner v Perry: There must be a real and appreciable danger they be found guilty of an offence/penalty; objection must be for a bona fide purpose

         2. Sorby v Cth: consider the gravity of the offence, the circumstances, and the nature of the evidence

         3. If the time limit on claims has already expired, unlikely to be unreasonable

   2. 128(3) If the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform he witness:

      1. That they don’t have to give evidence unless required by the court under (4)

      2. That they will get a certificate if they give evidence under (4)

      3. The effect of the certificate

   3. A party who wishes to give evidence but only with an immunity certificate see s128(5) does not “object” Cornell v R, Song v Ying

      1. This is because there is no element of compulsion or potential compulsion when they are being examined in chief by their own counsel

4. Apply the test in s 128(4)

   1. The court may requires a witness to give evidence if satisfied:

      1. The evidence does not tend to prove the witness has committed an offence or is liable for civil penalty under the law of a foreign country, and

      2. The interests of justice require it

   2. Factors to consider in determining the “interest of justice” R v Lodhi

      1. The nature of the proceedings (civil or criminal). It is more likely the evidence will be allowed if criminal (interests if public)

      2. If criminal, whether the evidence is called by the defence or prosecution. It is more likely the evidence will be allowed if brought by the Crown (interests of public)

      3. The importance of the evidence

         1. Desirability of admitting the evidence and whether that consideration outweighed the desirability of admitting the evidence

         2. Would it contribute in a significant way? Does it bear on the physical elements of the offence?

      4. The likelihood of prosecution/imposition of a penalty – how real is the danger

         1. Will the certificate be adequate protection?

         2. Certificates don’t extend to protect people from disciplinary proceedings e.g. professional misconduct

5. 128(5) If the evidence is given under (4), note that the witness may be given a certificate

   1. A witness is given a certificate if they willingly give the evidence, they are required under (4) or the court later realises reasonable grounds did not exist for an objection

   2. Effect of the certificate:

      1. Can’t be used against the person in a Victorian Court unless it is a criminal proceeding in respect of the falsity of the evidence 128(7)

      2. Has effect despite any challenges to its validity 128(8)

      3. Does not apply to a retrial 128(9)

Client Legal Privilege

1. Applies to pre-trial proceedings 131A and also applies to discovery and is not limited to just judicial or quasi-judicial proceedings Esso Australia Resources Ltd v Commissioner of Taxation

2. D will argue that the communication need not be disclosed as it is protected by legal professional privilege under section:

   1. Legal Advice (Lawyer/Client or Lawyer/Lawyer Communication) Section 118 EA: Evidence is not to be adduced if, objection by a client, the court finds that adducing the evidence would result in disclosure of:

      1. A confidential communication between lawyer and client (see below)

      2. A confidential communication between 2 or more lawyers acting for a client; or

      3. The contents of a confidential document prepared by the client, lawyer or another person

For the dominant purpose of the lawyer providing legal advice to the client

• “Legal advice” means independent advice given professionally as to what should prudently and sensibly be done in the relevant legal context

  1. Litigation (3^rd party/Lawyer or 3^rd party/Client) Section 119 EA: Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in a disclosure of:

     1. A confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

     2. The content of a confidential document whether delivered or not) that was prepared –

For the dominant purpose of the client being provided with professional legal services relating to actual or anticipated proceedings

• Enough that it is anticipated (must be more than a mere apprehension of possible litigation) Must be a live issue

  1. Unrepresented third party/third party: Section 120 EA Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of

     1. a confidential communication between the party and another person

     2. the contents of a confidential document (whether delivered or not) that was prepared, at the request of the party

for the dominant purpose of preparing for or conducting the proceeding

3. Assess whether the information is a “confidential communication” or a “confidential document”

   1. Confidential communication or document – a communication or document made in such circumstances where it is expressed or implied that its contents should not be disclosed s117 EA

   2. Document – includes any part of a document or any copy or part of it. Dictionary, part 2, cl 8 A copy of non-privileged communication can become privileged if it was prepared for the dominant purpose of legal advice (for privileged purposes) Commissioner Australia FP v Propend Finance

4. For a confidential communication, identify the relationship between the communicating parties. If it was a confidential document, identify who it was prepared by

   1. To satisfy s 118, the communication must be between a lawyer and client or between 2 lawyers.

      1. Definition of lawyer: s 117

         1. An Australian lawyer (someone admitted to the legal profession under the Legal Profession Act 2004 (Vic) or corresponding law); and

         2. An Australian-registered foreign lawyer; and

         3. An overseas-registered foreign lawyer or a natural person who, under the law of a foreign country is permitted to engage in legal practice in that county; and

         4. An employee or agent of a lawyer referred to in (a) (b) or (c)

      1. In-house lawyers

         • An in-house lawyer can have a lawyer-client relationship with their employer so long as they are qualified and maintain independence Rich v Harrington;

         • Need to be qualified, be listed on a roll of current practitioners, hold a current practising certificate or work under the supervision of such a person Waterford v Cth

         • The professional independence of government lawyers is protected by statute, thus they can claim privilege if they can prove independence Waterford

         • Don’t look at whether they ordinarily had the necessary independence, but rather whether they could give independent advice concerning the current allegations Rich

         • Are they likely to be personal rather than professional

      2. Definition of client

1. A person or body who engages a lawyer to provide legal services or who is an employer a lawyer

2. An employee or agent of a client

3. An employer of a lawyer if the employer is

   1. The cwth or state/territory

   2. Body established by law of cwt/state/territory

4. A person acting on behalf of someone of unsound mind

5. A personal representative of a client who has died

6. A successor to the...