#7506 - Privilege - Evidence and Criminal Procedure

Client Legal Privilege

X will argue that [evidence] is privileged under section 118 and 119 of the Evidence Act.

Under this section [evidence] is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of a confidential communication made between [client and lawyer/2 or more lawyers acting for the client] or the contents of a confidential document prepared by the [client/lawyer or other person].

This information, in order to be subject to privilege must be for the dominant purpose of [the lawyer/one or more of the lawyers] providing legal advice to [client]. Dominant purpose will mean the purpose which was the ruling, prevailing or most influential purpose (Fed. Comm. Tax v Spotless Services).

Confidential communication means a communication which was made when the person who made it or the recipient was under an express or implied obligation not to disclose its contents.

Has the lawyer sought advice of a third party?

In situations where a lawyer seeks advice from a third party in order to provide legal advice for their client, if the communication is for the dominant purpose of legal advise then it is privileged.

Carter v Managing Partner (1995) 153 CLR 500

Held: The principle reason the law recognises this privilege is to protect the frankness of the relationship between a client and a lawyer. It is there to encourage clients to be honest with their lawyers and to encourage lawyers to be honest with their clients. The High Court held that the defendant on a criminal charge cannot compel the production of privileged documents even though they may establish his innocence or materially assist his defence. McHugh J said at 166: "It is the communication and not the document that needs and is given protection."

Kennedy v Wallace (2004) FCAFC 337

Facts: The client in this case made notes when he was outside of Australia. He was going to seek advice from a lawyer in Switzerland.

Held: At first instance the Federal Court held that this was not privileged as the notes were not made for the dominant purpose of legal advice. The Federal Court also held that communication with foreign lawyers was not privileged. On appeal to the full federal court it was upheld that whilst the notes were not made for the dominant purpose of legal advise they disagreed that communication with a foreign lawyer was not privileged. They held that this privilege is not limited to communication with Australian lawyers

Is the client self-represented?

Under section 120, the same applies to a litigant who is self-represented in that the communication between the litigant and another person will be privileged where the dominant purpose is for preparing for or conducting the proceeding.

Has client legal privilege been waived?

Under section 122, the client legal privilege can be waived by the client if:

1. [Client] waives privilege knowingly or voluntarily

2. [Client] acts inconsistent with the privilege

However, a mistaken disclosure does not waive the privilege.

Has the client died?

Under section 121, client legal privilege can be lost or partially revoked by the death of a client. The death of a client is a factor in the end of the privilege but it is not an absolute end. It is also lost if the privilege prevents the enforcement of a court order. If the privilege is inconsistent or prevents a right of another party being enforced, provided the other right is of greater importance, the legal privilege will be lost.

Fraud, crime, abuse of power

Under section 125 client legal privilege does not exist when the communication is made in the pursuit of a fraud, crime or abuse of power.

Professional Confidential Relationship privilege (NSW Only)

NOTE: In the Commonwealth, there is only one protected relationship, that of journalist.

In NSW only, under section 126A privilege will be owed in the course of a relationship in which the confidant was acting in a professional capacity, and when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.

Under section 126B the court may direct that evidence not to be adduced if it finds that it would disclose a protected confidence, the contents of a document relating to protected confidence or protected identity information.

The court has discretion to give a direction to uphold privilege where the court is satisfied that it is likely harm would or might have been caused to a protected confider and the nature and extent of such harm outweighs the desirability of the evidence being given. To determine this, the court will look at the following matters:

1. the probative value of the evidence in the proceeding,

2. the importance of the evidence in the proceeding,

3. the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,

4. the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,

5. the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,

6. the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed,

7. if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,

8. whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person.

Sexual assault counsellors

As a response to R v Young, sections 295 to 298 create protections for certain confidences in sexual assault prosecutions. Under section 295-298 of the Criminal Procedure Act, the court has the discretion to consider whether the harm in disclosing such information will outweigh its probative value. The judge will look at the notes themselves and make a determination.

R v Young (1999) 26 NSWLR 681

Facts: Young was on trial for the sexual assault of a young girl. As well as...