5194LAW Lecture Notes - Lecture 4: Loans Affair, Private Prosecution, Fide
20 Jun 2018
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1. PRIVILEGE
1.1. Introduction to privilege
-Competence, compellability: whether Witness can/must testify
-Privilege: whether witness must answer questions or tender docs
- Various common law privileges
oAgainst self-incrimination
oLegal professional privilege
Seek out advice from lawyer without being handed to other parties
o‘Without prejudice’ privilege
Negotiations
oPublic interest immunity
Important state documents
- Privilege applies to testimony & docs – not real evidence
oEg knife wont be privilege only documents and testimony
- Privilege is a right of the privilege holder
oChoose to give up or not
- Must be specifically claimed by privilege holder
- Can be waived by privilege holder
- Effect is that probative evidence will be withheld from the court
1.2. ACC v Stoddart [2011] HCA 47 per French CJ and Gummow J:
- [The distinctions between competence, compellability and privilege] are stated as follows
in the eighth Australian edition of Cross on Evidence:
o"It is necessary to distinguish between three separate, though closely related,
concepts – the competence, compellability and privilege of a witness. A person is
competent if that person may lawfully be called to give evidence. Nowadays, most
people are competent witnesses, but under the law which applied to civil cases
down to the middle of the nineteenth century, and to criminal trials until the end of
that century, many of those who could give relevant evidence were not allowed to
do so."
o"A person is compellable if that person can lawfully be obliged to give evidence. The
general rule is that all competent witnesses are compellable, but there are a few
exceptions which will have to be mentioned in due course. The essential difference
between competence and compellability on the one hand, and privilege on the
other, is that the two former matters must be resolved before the witness begins to
testify. Once the witness has entered the witnessbox and has been sworn, has
affirmed or is permitted by law to give unsworn evidence, the witness must answer
all questions put unless excused or unless the refusal to answer is based upon a
privilege conferred by law. Competence and compellability therefore attach to the
witness and not to the evidence the witness may give."
1.3. Privilege and lawyers ethical duties
- Privilege is a completely separate issue from lawyers’ ethical duty of confidentiality
- Privilege:
oBetween witness and court, tribunal or government investigators – not about
lawyer or duty
oWitness does not have to give up information which would otherwise be compelled
to produce
oPrivilege a right of the witness and is for witness to claim or waive.
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oLawyer’s role is to advise client about privilege and then to act on client
instructions (e.g. claim it for client or waive as agent for client)
oLawyer cannot claim privilege to force a client to hide a document or information
that the lawyer would like to keep secret. Only client/witness gets to decide
oA lawyer can only claim this privilege for themselves when they are another
lawyer’s client (i.e. they are acting as the client/witness not as a lawyer)
- Lawyers’ ethical duties:
oArise from fiduciary & contractual relationship between lawyer and client plus
professional ethical standards
oLawyer has duty to client to keep client information and documents confidential
oAll documents and client information must be treated as confidential unless
exceptions apply under rule 9 Australian Solicitors Conduct Rules
oAll documents and client information means everything, not just those that would
normally be privileged
oUp to client to provide documents (if you tell them they should disclose and if
necessary and then you can choose to not act for them but cannot provide)
oNot governed by the same rules as privilege
1.4. Legal Professional Privilege
- Protects communications between lawyers & clients
- Privilege of the client
-If made for dominant purpose of seeking legal advice or preparing for actual or
contemplated litigation Baker v Campbell
- Applies to civil & criminal matters
- Effect: communications cannot be disclosed or adduced into evidence
-Baker v Campbell
oProper functioning of legal system depends on uninhibited lawyer / client
communications
oPrivilege assists admin of justice by giving clients confidence to make full & frank
disclosure so lawyers can run case and give proper advice.
oPrivilege applies to judicial proceedings & executive functions (e.g., execution of
search warrants)
oParliament can abrogate privilege but only by express words or necessary
implication (self-incrim)
Anti terrorism eg
oPrivilege doesn’t apply to all lawyer / client communications, only:
Communications made for dominant purpose of giving or obtaining legal
advice
Communications made for dominant purpose of preparing for actual or
contemplated litigation (inc 3rd parties)
oPrivilege protects communications, inc docs, but not real evidence
oDominant purpose test replaced sole purpose test from Grant v Downs
-Daniels Corp v ACCC
oLPP can be abrogated by statute by express words or necessary implication:
Legislation must do so in unambiguous terms
Only by implication if provisions rendered inoperative or purposes of Act
otherwise frustrated
-Comm AFP v Propend
oCopies can be privileged even if original is not taken copy was brought into
existence for dominant purpose of legal advice or for prep of case
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oEspecially important where original been destroyed
-AWB v Cole
oPublic relations advice led to a meeting which included lawyers and led to drafting
and circulation of a draft “over apology”. Australian wheat board had given money
and other items in breach of international law and supposedly done so knowing it
was illegal. Claimed to be possible admission so shouldn’t be given. But judge didn’t
believe it was privileged because it was not brought into existence with legal
advice. Document brought in for the public relations matter to attempt to reduce
the scandal.
oAt 3 in the Explanatory Statement:
On the evidence before me, I have reached the following conclusions:
(1) I am not satisfied that Exhibit 665 was brought into existence,
and circulated by email, for the dominant purpose of obtaining legal
advice.
(2) Exhibit 665 would not, if disclosed, allow a reader to know or
infer the nature, content or substance of any legal advice given by
Mr Zwier to Mr Lindberg and AWB; nor would the disclosure of
Exhibit 665 result in any waiver of the privilege inhering in that legal
advice.
(3) The litigation limb of legal professional privilege does not extend
to documents brought into existence for use in relation to a
commission of inquiry. Further, Exhibit 665 was not brought into
existence for the dominant purpose of being used in connection with
litigation which might follow from the report of the Commissioner.
1.5. Privilege against self-incrimination
- Privilege holder cannot be forced to answer questions or produce docs
- This privilege applies if there is risk that person would be exposed to criminal or civil
penalty
- Privilege applies in criminal & civil proceedings
- Does not apply to third party liability
- Does not extend to protect incrimination of spouse: Stoddart
oCalled to give evidence in husband’s case. No privilege against incriminating a
spouse only self-incrimination.
- Claim of privilege must be bona fide to protect privilege holder: Brebner v Perry
oCan’t use it to just cover someone else when there’s no actual possibility of self-
incrimination
- Privilege can be abrogated by statute expressly or by necessary implication: Pyneboard v
TPC.
oForced to give evidence that would self-incriminate
oIn the statute there was a provision that required them to give evidence but if it can
be interpreted so this is not the case then don’t apply.
-Need to consider:
oCharacter & purpose of the legislation
oWhether necessary evidence lies peculiarly within knowledge of people unlikely to
make it available unless legally obliged to do so
oWhether statute can be used without it
- Privilege applies not only to judicial proceedings but to investigative (executive) powers as
well
oPolice and other bodies seeking documents under subpoena or warrant
- Privilege also applies to indirect incrimination: Sorby v Cwth.
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