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High Court of Australia |
BAKER v. CAMPBELL [1983] HCA 39; (1983) 153 CLR 52
Legal Practitioners
High Court of Australia
Gibbs C.J.(1), Mason(2), Murphy(3), Wilson(4), Brennan(5), Deane(6)
and Dawson(7) JJ.
CATCHWORDS
Legal Practitioners - Solicitors - Legal professional privilege - Whether confined to judicial and quasi-judicial proceedings - Search warrant - Attempt to seize documents held by solicitors on behalf of client - Whether documents protected by legal professional privilege subject to search warrant - Crimes Act 1914 (Cth),s. 10.
HEARING
1983, February 10, 11; October 26. 26:10:1983DECISION
October 26.2. In about February 1979 the plaintiff in the present proceedings retained a member of a firm of solicitors to act as his solicitor to advise him in relation to certain aspects of a scheme which he had devised to minimize liability for sales tax. The defendant is a member of the Australian Federal Police, and therefore a constable within the meaning of the Crimes Act: see s. 3 of that Act and s. 5(1) of the Australian Federal Police Act 1979 (Cth). On 7 July 1982 the defendant, acting pursuant to a search warrant granted to him on the preceding day, attempted to seize documents held by the firm of solicitors at their office. The documents were all brought into existence for the purpose of obtaining or giving legal advice, and include documents created solely for the purpose of tendering professional advice to the plaintiff otherwise than in relation to any civil or criminal proceedings then existing or in contemplation. The documents do not relate to any particular transaction that was entered into. The warrant, which was issued under s. 10 of the Crimes Act, recited that the justice issuing it was satisfied by information on oath placed before him that there were reasonable grounds for suspecting that there were, in a place, namely the premises occupied by the firm of solicitors, things, being the original or copies of certain documents, all of which had been produced or held by, for, or in respect of the plaintiff and certain other named persons, and as to which there were reasonable grounds for suspecting that the same would afford evidence as to the commission by the plaintiff and other persons of offences against the Sales Tax Assessment Acts (Cth) and the Crimes Act, and went on to authorize the defendant to enter the said place and to seize the said documents. The plaintiff contends that the documents are the subject of legal professional privilege whereas the defendant contends that legal professional privilege does not attach to the documents because of the purposes for which the plaintiff consulted the firm. Having regard to the form of the question asked, it is unnecessary to resolve that dispute. The defendant further contends, but the plaintiff disputes, that even if legal professional privilege attaches to the documents they may lawfully be seized under the search warrant. On or about 5 October 1982 the plaintiff and certain other persons were charged with offences against s. 86(1)(e) of the Crimes Act (conspiracy to defraud the Commonwealth), s. 86(1)(b) of the Crimes Act (conspiracy to prevent or defeat the execution or enforcement of a law of the Commonwealth, namely s. 9 of the Sales Tax Assessment Act (No. 3) 1930) and s. 86(1)(b) of the Crimes Act (conspiracy to prevent or defeat the execution or enforcement of a law of the Commonwealth, namely s. 9 of the Sales Tax Assessment Act (No. 7) 1930). (at p58)
3. In these circumstances the Court is asked the following question:
"In the event that legal professional privilege attaches to and is
maintained in respect of the documents held by the firm, can
those documents
be properly made the subject of a search warrant issued under s. 10 of the
Crimes Act." (at p58)
4. Section 10 of the Crimes Act reads as follows:
"If a Justice of the Peace is satisfied by information on oath that there is
reasonable ground for suspecting that there is in
any house, vessel, or place
-
(a) anything with respect to which any offence against any law of the
Commonwealth or of a Territory has been, or is suspected on
reasonable grounds
to have been, committed;
(b) anything as to which there are reasonable grounds for believing that it
will afford evidence as to the commission of any such
offence; or
(c) anything as to which there is reasonable ground for believing that it is
intended to be used for the purpose of committing any
such offence,
he may grant a search warrant authorizing any constable named therein, with
such assistance as he thinks necessary, to enter at any
time any house,
vessel, or place named or described in the warrant, if necessary by force, and
to seize any such thing which he may
find in the house, vessel or place." (at
p59)
5. The words of s. 10 are expressed quite generally; a warrant, when granted,
authorizes the constable named therein to enter "any.
. . place" named or
described in the warrant, and to seize "any such thing", i.e. "anything" of
the kind described in pars. (a)-(c).
The section does not exempt from its
operation, or from the effect of a warrant granted under it, a solicitor's
office or documents
which would be privileged from production in legal
proceedings. However, it was contended on behalf of the plaintiff that if the
section authorized the seizure of documents as to which legal professional
privilege exists, it would (as Gresson J. said in Commissioner
of Inland
Revenue v. West-Walker (1954) NZLR 191, at p211 ) "operate to extinguish a
privilege which has existed for many centuries
and which has been recognized
to be, and has been supported as being, in the public interest", and that it
cannot be supposed that
the Parliament could have intended such a result
unless it had used words which clearly revealed such an intention; the general
words
of the section should therefore not be understood as intended to destroy
the valuable privilege which the common law conferred. This
contention meets
an initial difficulty in that it flies in the teeth of decided authority in
Australia. It was held by the Full Court
of the Federal Court in Crowley v.
Murphy [1981] FCA 31; (1981) 52 FLR 123; 34 ALR 496 that the doctrine of legal professional
privilege applies
only in judicial or quasi-judicial proceedings
and does not
prevent a constable, acting under the authority of a warrant issued under
s.
10 of the Crimes Act, from making a reasonable search of the office of a
solicitor and seizing documents which relate to the affairs
of a client, even
though the documents would be privileged from production in legal proceedings.
That decision was approved in this
Court in O'Reilly
v. State Bank of Victoria
Commissioners [1983] HCA 32; (1983) 152 CLR 1 , where it was held, by a majority, that
a
solicitor was
not excused from producing to the Commissioner of Taxation,
as
required by a notice given under s. 264 of the Income Tax Assessment Act 1936
(Cth) as amended, evidence and documents received or created by him while
acting for his clients solely for the purpose of tendering
professional legal
advice and assistance to them, even if that evidence and those documents would
have been privileged from production
in judicial or quasi-judicial
proceedings. However, since the present case has been argued before a Full
Court of seven justices,
I would not rest on authority, but would proceed to
consider the question afresh. (at p60)
6. The nature of legal professional privilege is described as follows in
Halsbury's Laws of England (4th ed.), vol. 13, par. 71:
". . . communications made to and from a legal adviser for the purpose of
obtaining legal advice and assistance are protected from
disclosure in the
course of legal proceedings, both during discovery and at the trial. . . . Any
other communications as are reasonably
necessary in order that the legal
advice may be safely and sufficiently obtained are also protected, but in the
case of communications
to or from a non-professional agent or third party,
such as a person who witnessed some event, the privilege only arises if
litigation
is threatened or contemplated."
For completeness it should be added that it was held in Grant v. Downs [1976] HCA 63; [1976] HCA 63; (1976)
135 CLR 674 that legal professional
privilege is confined
to documents which
are brought into existence for the sole purpose
of their being submitted to
legal advisers
for advice or for use
in legal proceedings. The manner in which
the rule is stated in
Halsbury suggests that it is a rule which applies
only
in legal proceedings
and in Minter v. Priest (1930) AC 558, at p 579 , Lord
Atkin said that "this protection is part of the
law of evidence". In
Parry-Jones
v. Law Society (1969) 1 Ch 1, at p9 , Diplock L.J.
(as he then
was) said:
". . . privilege, of course, is irrelevant when one is not concerned with
judicial or quasi-judicial proceedings because, strictly
speaking, privilege
refers to a right to withhold from a court, or a tribunal exercising judicial
functions, material which would
otherwise be admissible in evidence."
This was the view accepted in Crowley v. Murphy and O'Reilly v. State Bank of
Victoria Commissioners. (at p60)
7. As a statement of historical fact, at least, the view of Lord Diplock was certainly correct. The principles relating to legal professional privilege were developed in relation to the giving of testimony and the production of documents in legal proceedings, and we have not been referred to any English or Australian case in which the privilege has been held to protect confidential communications between solicitor and client from production under a lawful requirement made otherwise than in the course of judicial or quasi-judicial proceedings. However, until quite recent times, it has been unnecessary for the courts to consider whether the privilege could have any application outside legal proceedings. At common law there existed no power to compel a solicitor (or anyone else) to divulge information or produce documents, whether privileged or otherwise, except in legal proceedings, and no power to obtain a search warrant except to search for stolen goods, which would in any case not have been the subject of privilege. For many years after statutory powers were first conferred to grant search warrants, no question of privilege seems to have arisen, possibly because the nature of the things for which the warrant authorized a search to be made (such as things with which a crime was committed, or which were the fruits of a crime or evidence of the commission of a crime) made it unlikely that they would be found in a solicitor's office. Perhaps because social conditions have changed, the question whether legal professional privilege was an answer to a warrant which authorized a search of a solicitor's office arose for consideration in reported cases in England or Australia for the first time during the last decade. (at p61)
8. In 1953, the Court of Appeal for New Zealand had been called on to decide an analogous question - whether legal professional privilege entitled a solicitor to decline to furnish information and produce documents sought by the Commissioner of Inland Revenue in the exercise of an administrative power conferred on him by statute. In Commissioner of Inland Revenue v. West-Walker (1969) 1 Ch, at p 8 the question was answered in the affirmative. The court gave to the rules relating to privilege a wider operation than was warranted by any previous authority. The justification which may be suggested for the decision is that the extension was both logical and necessary to enable the purposes for which the privilege is granted to be fully achieved. However, the decision is difficult to reconcile with the later decision of the English Court of Appeal in Parry-Jones v. Law Society (1969) 1 Ch 1 . It was there held that a rule made under the Solicitors Act 1957 (U.K.), which enabled the council of the Law Society to require a solicitor to produce his books, "overrides any privilege or confidence which might otherwise subsist between solicitor and client": per Lord Denning M.R. (1969) 1 Ch, at p 8 . The judgments show that the members of the Court of Appeal considered that privilege was irrelevant when an administrative requirement was made for the production of documents. Lord Denning M.R. (1969) 1 Ch, at p 6 described legal professional privilege as a "privilege relating to legal proceedings", and described it as follows: "A solicitor must not produce or disclose in any legal proceedings any of the communications between himself and his client without the client's consent." The remarks of Lord Diplock have already been cited. (at p61)
9. In 1976 and 1977 in two cases the courts in England considered the question whether a claim that documents were privileged was an answer to a warrant issued under the Forgery Act 1913 (U.K.). By s. 16(1) of that Act, it is provided that "(i) if it shall be made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or possession without lawful authority or excuse" (inter alia) any forged document, the justice may grant a warrant to search for the same, and if it shall be found on search it shall be lawful to seize it. In Frank Truman Ltd. v. Police Commissioner (1977) 1 QB 952 the police executing a warrant removed from the office of the plaintiff's solicitor, with the solicitor's tacit consent, all the plaintiff's documents, so that they could search them for forgeries. Subsequently the plaintiff sought an injunction ordering the defendant to return the documents including some which were not forgeries, and so not within the terms of the warrant, but which were claimed by the police to be material evidence, and which were claimed by the plaintiff to be privileged. Swanwick J. held that the documents were "privileged, at least until handed over" (1977) 1 QB, at p 965 but he refused an injunction on the ground that the police, who had acted reasonably, were on the balance of public policy entitled to retain the documents and use them as evidence. Although the headnote suggests that his Lordship held that the police could not have removed the privileged documents if the solicitor had not consented, it is by no means clear from the judgment that this is so, although the learned judge did say that "documents which are clearly both privileged and inadmissible" could not be seized (1977) 1 QB, at p 966 . In Reg. v. Peterborough Justices; Ex p. Hicks (1977) 1 WLR 1371; (1978) 1 All ER 225 a solicitor sought to resist the seizure of a forged document on the ground, inter alia, that he had custody of it with lawful excuse, namely, as solicitor for his client, and that if privilege in the strict sense did not apply, nonetheless there was an analogous position which gave rise to an explanation of lawful authority or excuse (1977) 1 WLR, at p 1374; (1978) 1 All ER, at p 228 . It was held that the solicitor could have no greater protection than his client, and that since the client himself could have no lawful authority or excuse that would prevent the seizure of the document, the solicitor could be in no better position. The court did not decide whether or not the document would have been privileged in legal proceedings. Parry - Jones v. Law Society was not cited in either of these cases. (at p62)
10. In Australia, Parry - Jones v. Law Society was followed by Bowen C.J. in Eq. in Brayley v. Wilton (1976) 2 NSWLR 495 , where it was held that a solicitor was bound to produce his client's files to an inspector acting under the Legal Practitioners Act 1898 (N.S.W.). In Morse and Thompson v. Harlock (1977) WAR 65 the Full Court of the Supreme Court of Western Australia left open the question whether s. 711 of the Criminal Code (W.A.) gave authority for the issue or execution of a search warrant against documents protected by legal professional privilege, but Burt J. (as he then was) (1977) WAR, at p 73 drew attention to the serious implications, from a practical point of view, of accepting that a warrant could not validly issue in such a case. Finally it was decided in Crowley v. Murphy [1981] FCA 31; [1981] FCA 31; (1981) 52 FLR 123; 34 ALR 496 that the fact that the documents would have been privileged in legal proceedings was no answer to the issue or execution of the warrant. (at p63)
11. In the meantime, the question had been discussed in Canada in a series of
cases which were not cited in Crowley v. Murphy or
O'Reilly v. State Bank of
Victoria Commissioners [1983] HCA 32; (1983) 152 C L R 1 . It was at first said that the rule
governing
legal professional
privilege "is a rule of evidence, not a rule
of
property", and that a search warrant will not be quashed merely
because the
material
to which it refers might be privileged: Reg.
v. Colvin; Ex parte
Merrick (1970) 3 OR 612, at p 617 . These remarks,
which were obiter,
were not
followed in later cases, which
have proceeded on a view similar to that
expressed in Commissioner of
Inland Revenue v. West-Walker.
In Re Director of
Investigation
and Research and Shell Canada Ltd. (1975) 55 DLR (3d) 713 it was
held
by the Federal Court of Appeal
that s. 10(1) of the Combines
Investigation Act 1970 (which gives the Director of Investigation and
Research
wide power to enter
premises and seize documents)
was not intended to abrogate
the doctrine of legal professional privilege.
Jackett C.J. (1975) 55 DLR
(3d),
at pp 721-722 , gave
the conventional explanation of the purpose of the
privilege when he said "that
the protection, civil
and criminal, afforded to
the
individual by our law is dependent upon his having the aid and guidance of
those
skilled in the law
untramelled by any apprehension
that the full and
frank disclosure by him of all his facts and thoughts to his
legal advisor
might
somehow become available to third
persons so as to be used against him".
He then continued (1975) 55 DLR (3d),
at p 722:
"I fully realize that the protection of the confidentiality of the
solicitor-and-client relationship has, heretofore, manifested
itself mainly,
if not entirely, in the privilege afforded to the client against the
compulsory revelation of communications between
solicitor and client in the
giving of evidence in Court or in the judicial process of discovery. In my
view, however, this privilege
is a mere manifestation of a fundamental
principle upon which our judicial system is based, which principle would be
breached just
as clearly, and with equal injury to our judicial system, by the
compulsory form of pre-prosecution discovery envisaged by the Combines
Investigation Act as it would be by evidence in Court or by judicial
discovery."
Jackett C.J. concluded (1975) 55 DLR (3d), at p 723 :
"The result of construing s. 10 of the Combines Investigation Act as putting
aside any protection of the solicitor-and-client relationship
of
confidentiality would, therefore, undermine that relationship even more
effectively than abolishing the privilege against giving
evidence in open
Court."
The decision in that case has been followed in other courts in Canada, and in
some cases it has been held that search warrants may
be quashed if they
authorize the seizure of documents which in the view of the court are subject
to the privilege: see Re Borden
and Elliott and The Queen (1975) 70 DLR (3d)
579; 30 CCC (2d) 337 and In re B.X. Development Inc. and The Queen (1976) 70
DLR (3d)
366; 31 CCC (2d) 14 . These cases were considered in the Supreme
Court of Canada in Solosky v. The Queen (1979) 105 DLR (3d) 745
where Dickson
J., delivering a judgment with which the other members of the Court concurred,
said (1979) 105 DLR (3d), at p 757 :
"Recent case law has taken the traditional doctrine of privilege and placed it
on a new plane. Privilege is no longer regarded merely
as a rule of evidence
which acts as a shield to prevent privileged materials from being tendered in
evidence in a courtroom. The
Courts, unwilling to so restrict the concept,
have extended its application well beyond those limits."
He went on to say (1979) 105 DLR (3d), at p 758 that the judgments in these
cases "can be rationalized as merely shifting the time
at which the privilege
can be asserted". The Supreme Court of Canada in that case frankly recognized
that the Canadian decisions
have placed the law "on a new plane". In
Descoteaux v. Mierzwinski (1982) 141 DLR (3d) 590, at p 604; 70 CCC (2d) 385,
at p 399 also
a decision of the Supreme Court of Canada, it was said that the
court in Solosky v. The Queen had "applied a substantive rule, without
actually formulating it, and consequently, recognized implicitly that the
right to confidentiality, which had long ago given rise
to a rule of evidence,
had also since given rise to a substantive rule". The court formulated this
substantive rule as follows (1982)
141 DLR (3d), at p 605, 70 CCC (2d), at p
400 :
"1. The confidentiality of communications between solicitor and client may
be raised in any circumstances where such communications
are likely to be
disclosed without the client's consent.
2. Unless the law provides otherwise, when and to the extent that the
legitimate exercise of a right would interfere with another
person's right to
have his communications with his lawyer kept confidential, the resulting
conflict should be resolved in favour
of protecting the confidentiality.
3. When the law gives someone the authority to do something which, in the
circumstances of the case, might interfere with that
confidentiality, the
decision to do so and the choice of means of exercising that authority should
be determined with a view to not
interfering with it except to the extent
absolutely necessary in order to achieve the ends sought by the enabling
legislation.
4. Acts providing otherwise in situations under para. 2 and enabling
legislation referred to in para. 3 must be interpreted restrictively."
This decision accepts that any person has a right to communicate in confidence
with his legal adviser, and holds that the established
rule of evidence which
protects privileged communications from disclosure is only one way of giving
effect to that right. This is
a new development, which goes beyond any
decision in England or Australia. (at p65)
12. Although the relationship between solicitor and client imposes on the solicitor a duty (subject to certain exceptions) to keep inviolate his client's confidences, that in itself has not been held to be a sufficient reason for holding that legal professional confidences are privileged from disclosure. It is well established that no obligation of confidence, of itself, entitles the person who owes the duty to refuse to answer a question or to produce a document in the course of legal proceedings. Recent recognition that this is so appears in D. v. N.S.P.C.C. [1977] UKHL 1; (1978) AC 171, at pp 218, 230, 237-239,242 ; Smorgon v. Australia and New Zealand Banking Group Ltd. [1976] HCA 53; [1976] HCA 53; (1976) 134 CLR 475, at pp 487-489 ; Federal Commissioner of Taxation v. Australia and New Zealand Banking Group Ltd. (1979) 143 CLR 499, at p 521 . The public interest in discovering the truth prevails over the private duty to respect confidence: cf. McGuinness v. Attorney-General (Vict.) [1940] HCA 6; (1940) 63 CLR 73, at pp 102-103 . The reason why privilege is extended to confidential communications made by a client to his solicitor, and not to confidential communications made, e.g., by a patient to a doctor, a penitent to a priest, or a customer to a banker, is that the view has been taken that in the first-mentioned case the public interest requires that the private obligation of confidentiality be fulfilled, for a reason which has been explained in many cases, of which Grant v. Downs (1976) 135 CLR, at p 685 is one of the most recent in Australia. It is necessary for the proper conduct of litigation that the litigants should be represented by qualified and experienced lawyers rather than that they should appear for themselves, and it is equally necessary that a lawyer should be placed in full possession of the facts to enable him to give proper advice and representation to his client. The privilege is granted to ensure that the client can consult his lawyer with freedom and candour, it being thought that if the privilege did not exist "a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case": Greenough v. Gaskell (1833) 1 My & K 98, at p 103 [1833] EngR 333; (39 ER 618, at p 621) . Notwithstanding the trenchant criticism of the privilege made by Bentham in his Rationale of Judicial Evidence (cited in Wigmore on Evidence, McNaughton rev. (1961), vol. viii, par. 2291) the strong tendency of judicial opinion until recent times has been to regard the protection of communications between solicitor and client as "fundamental to the due administration of justice", to use the words of Stephen J. in Smorgon v. Australia and New Zealand Banking Group Ltd. (1976) 134 CLR, at p 488 . More recently, doubts have been expressed as to the value of the privilege (see Grant v. Downs (1976) 135 CLR, at pp 685-686 ; and O'Reilly v. State Bank of Victoria Commissioners Ante, p. 26. ) and greater emphasis has been laid on the fact that it conflicts with another important principle of public policy, namely that all relevant evidence should be adduced to the court when it makes its decision: see also Waugh v. British Railways Board [1979] UKHL 2; (1980) AC 521, at pp 531-532, 535-536 . Nevertheless, confidentiality does tend to promote candour, and it would be a very great change in long established practice if a party were bound to reveal to the court such things as an advice on evidence given to him by counsel and statements taken from witnesses for the purpose of a pending action, and such a change could not be made without the fullest examination of its possible consequences. (at p66)
13. It can be seen that there are arguments in favour of the view that the privilege should be extended to cases where documents are sought under the authority of a search warrant, or under statutory authority such as that conferred by s. 264 of the Income Tax Assessment Act, so that the confidentiality which the privilege is designed to protect should be effectively preserved. On the other hand, the privilege exists for practical reasons, rather than to give effect to any basic principle such as that which supports the privilege against self-incrimination. Moreover, under the existing law, the confidentiality of communications between solicitor and client, even when made solely for the purpose of professional advice or assistance in legal proceedings, is not absolute. There are a number of circumstances in which evidence of the confidential communication will be received. One may perhaps put aside for present purposes the rules that the privilege may be waived by the client (although not by his solicitor) and that communications between solicitor and client are not privileged if made for the purpose of committing or furthering a crime or fraud. One cannot, however, ignore the rather remarkable rule that if the privileged document, or a copy of it, has been obtained by the opposing party, by accident, trickery, or even by theft, it may given in evidence although the party entitled to the privilege or his solicitor could not have been compelled to produce it: see Lloyd v. Mostyn (1842) 10 M & W 478, at p 482 [1842] EngR 973; (152 ER 558, at p 560) ; Calcraft v. Guest (1898) 1 QB 759 ; Bell v. David Jones Ltd. (1948) 49 SR (NSW) 223, at p 227 ; Kuruma v. The Queen (1955) AC 197, at pp 203-204 ; Butler v. Board of Trade (1971) Ch 680, at p690 ; Reg. v. Tompkins (1977) 67 CrAppR 181, at p184 ; Waugh v. British Railways Board (1980) AC, at p 536 . This rule has recently been recognized in Canada (see Descoteaux v. Mierzwinski (1982) 141 DLR (3d), at pp 601-602, 605; 70 CCC (2d), at pp 396-397,400 ) but rejected by the Court of Appeal in New Zealand. In Reg. v. Uljee (1982) 1 NZLR 561 it was held that a constable who happened to overhear a confidential discussion between an accused person and his solicitor which was taking place for the purpose of obtaining legal advice should not be allowed to give evidence of the conversation unless the accused waived the privilege. The court declined to follow the English authorities, which it regarded as "of limited cogency in New Zealand in 1982" (see per Cooke J. (1982) 1 NZLR, at pp 566-567 ), and derived some support for its conclusion from the provisions of a New Zealand statute which revealed a legislative policy that evidence of communications which would otherwise have been privileged should not be given by a person who had lawfully intercepted them (1982) 1 NZLR, at pp569,571 . There are some qualifications to the rule stated in the English cases and recognized in Australia in Bell v. David Jones Ltd. (1948) 49 SR (NSW) 223 : the owner of the document which has been improperly obtained may secure an injunction prohibiting the use of the document, including its use in evidence, provided that he does so in separate proceedings and before the document has been put in evidence: Ashburton v. Pape (1913) 2 Ch 469 ; and in some circumstances the document may not be admitted because it was obtained by means which amounted to a contempt of court (e.g. by stealth or trickery within the precincts of the court): I.T.C. Ltd. v. Video Exchange Ltd. (1982)Ch431 . Further, it has been held that if a privileged communication would tend to establish the innocence of a person charged with a crime, the requirements of natural justice override the privilege and the document must be produced: Reg. v. Barton (1973) 1 WLR 115; (1972) 2 All ER 1192 . Finally, although a report prepared by a proposed medical witness for the purpose of a pending action will be privileged from production by the defendant for whom it was prepared, it will not be privileged in a subsequent action for libel brought against the doctor who prepared the report: Schneider v. Leigh (1955) 2 QB 195 . In that case the denial of the privilege did not destroy the confidentiality as between solicitor and client, and may be explained because the privilege was that of the litigant and not of his witness, but it shows that the rule of confidentiality which is necessary in order to inspire candour is only carried so far. (at p68)
14. At the time when the Crimes Act was enacted, it had not been held or suggested that the rules governing legal professional privilege were other than rules relating to the giving of evidence and the production of documents in the course of legal proceedings. The duty of confidence which the solicitor owed to his client of course was more general, and meant that the solicitor could not, consistently with his duty, make a disclosure of a professional confidence under any circumstances unless authorized or compelled by law to do so, but the privilege was not co-extensive with the duty of confidence. The fact that advice given before litigation was begun or apprehended might be privileged did not mean that the privilege excepted either the solicitor or the client from the operation of any statutory provision which required the disclosure or production of such advice otherwise than in the course of legal proceedings. The rule of construction that the Parliament is presumed not to intend, by merely general words, to derogate from an existing privilege recognized by the common law does not assist in answering the present question, since the common law did not recognize legal professional privilege except in legal proceedings. It would seem to me impermissible to hold that the existing rules as to legal professional privilege should be given an entirely new operation, for the very purpose of reading down the words of a statutory provision. I am strengthened in that view by the consideration that the privilege is in conflict with another principle of equal importance, namely, that all evidence which reveals the truth should be available for presentation to the court, and by the further consideration that the privilege is not available without exception even in legal proceedings. There is nothing in the terms of s. 10 which suggests that it was intended to recognize a privilege analogous to legal professional privilege. It seems clear enough that it could not have been intended that the things described in s. 10(a) or s. 10(c) (namely, things with respect to which an offence has been, or is suspected on reasonable grounds to have been, committed, and anything as to which there is reasonable ground for believing that it is intended to be used for the purpose of committing any offence) should be privileged from seizure. If any implied exception were to be admitted, it could only be to s. 10(b), but I can see no sufficient ground for regarding the provisions of s. 10(b) as intended to be inapplicable to documents that would be privileged in legal proceedings. The Parliament may well have considered that the public interest which requires that communications between lawyer and client made for the purpose of legal advice or representation should be kept confidential should yield to the higher public interest in the suppression of crime, which requires that evidence of the commission of a crime should be available to those charged with the detection of crime, and if necessary should be placed before the court before which the alleged offender is to be tried. In my opinion the common law rules as to privilege should not be extended for the purpose of introducing into s. 10 an exception which its terms do not express and do not necessarily require. This conclusion is supported by the fact that the section provides no machinery for determination of the disputed question as to whether the privilege exists. When a claim for privilege is made in judicial or quasi-judicial proceedings no such difficulty arises. (at p69)
15. Two subsidiary and alternative arguments which were advanced on behalf of the plaintiff may be disposed of quite shortly. It was said that s. 10(b), which refers to "anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence" cannot refer to privileged documents, since they will not be available to be given in evidence. This argument cannot be accepted. The rule as to legal professional privilege is not a rule which governs admissibility. The privilege entitles a party to refuse to produce a privileged document, but it does not render such document inadmissible, and original or secondary evidence may be given of its contents (assuming them to be otherwise admissible) if the privilege is waived or (as the cases cited above show) if the opposing party has somehow obtained the document or a copy of it. In other words, if documents were once properly seized under a warrant issued under s. 10 they would (assuming them to be otherwise relevant and admissible) afford evidence of the commission of the offence within the meaning of the section. Secondly it was said that the issue of a search warrant is a judicial act and that the rules as to privilege accordingly apply. A sufficient answer to this contention is that, assuming that the justice issuing the warrant is obliged to act judicially, the execution of the warrant and the seizure of documents under it are nevertheless purely ministerial. (at p70)
16. For these reasons, in my opinion, a constable acting under the authority of a proper search warrant issued under s. 10 is entitled to seize documents which are covered by the authority of the warrant notwithstanding that they have been given to a solicitor in professional confidence and that they would have been privileged from production in legal proceedings. (at p70)
17. I need not consider whether it would be permissible to use the powers given by s. 10 to search for and seize documents that had been brought into existence solely for the purpose of enabling the client to obtain legal assistance and representation at a criminal trial which was pending or threatened. That question raises other issues with which we are not now concerned. (at p70)
18. I cannot accept the argument that to decide the case in this way will have a dramatic effect on the nature and quality of the services which barristers and solicitors can render to their clients. It is not to be expected that the occasion will often arise to search a solicitor's office pursuant to a warrant under s. 10. It must be acknowledged, however, that the execution of a search warrant in a solicitor's office does create some practical difficulties and calls for tact and consideration. Any search must be conducted reasonably and, particularly when there is no suggestion that the solicitor himself has been guilty of complicity in any offence, the officer executing the warrant should ensure that it is executed in a way that will cause the least possible inconvenience and embarrassment. As at present advised I agree with the view expressed in Crowley v. Murphy [1981] FCA 31; (1981) 52 FLR 123; 34 ALR 496 that the constable is not entitled to conduct a "negative" search, i.e., a search of papers relating to the affairs of persons not mentioned in the warrant for the purpose of ensuring that there are no relevant documents amongst them. The difficulties which the situation creates should be very much reduced if, as Lord Widgery suggested in Reg. v. Petersborough Justices; Ex parte Hicks (1977) 1 WLR, at p1376; (1978) 1 All ER, at p229 both sides display "a little elementary good sense and courtesy". (at p71)
19. The present case does not raise for our consideration the question whether, apart from any question of privilege, the defendant was entitled to seize the particular documents held by the solicitor; I assume, but do no decide, that he was so entitled. (at p71)
20. Since I have written what appears above, I have read the report of the judgment of the European Court of Justice in A.M. & S. Europe Ltd. v. Commission of the European Communities (1983) QB 878 . That judgment is of course of no direct assistance in the present case, since it lays down community law, which, as I understand it, is a synthesis or distillation of what is best in the laws of the member States. The judgment recognizes that the preservation of the observance of the confidentiality of certain communications between lawyer and client "serves the requirement . . . that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it", a requirement which itself contributes towards the maintenance of the rule of law (1983) QB, at p949; see also pp 913, 941 . It recognizes also the possibility that legal professional privilege may be abused - a possibility that will be reduced if the proper standards of professional ethics are observed and enforced (1983) QB, at pp 927, 951 . However, it seems to me to have been critical to the decision finally reached that some procedure should be available for the independent verification of claims to privilege. The European Court of Justice, in moulding the law of the Community, was able to provide such a procedure, under which, in the end, disputes as to the production of documents would be decided by the court itself (1983) QB, at pp951-952 . This strengthens my view that s. 10 of the Crimes Act, which provides no such procedure, leaves no room for any extension of the doctrine of privilege. Nevertheless, if the opinion which I hold had prevailed, I should have thought it right to suggest that the time is ripe for Parliament to give consideration to such sections as s. 10 of the Crimes Act and s. 264 of the Income Tax Assessment Act with the purpose of at once extending the doctrine of privilege to documents sought under such provisions and providing a procedure under which an independent authority, whether judicial or administrative, might determine claims that any documents so sought are privileged from production. If, as I now understand, a majority of the Court takes the view that documents which would be privileged cannot properly be made the subject of a search warrant issued under s. 10 of the Crimes Act, it is all the more necessary that a means should be made available for the prompt and independent determination of disputes as to whether the privilege exists in the case of particular documents sought to be seized under a warrant. (at p72)
21. For the reasons I have given I would answer the question asked in the stated case: "Yes." (at p72)
Mason J. This case which has been stated by Wilson J. pursuant to s. 18 of the Judiciary Act 1903 (Cth), as amended, raises a question as to the availability of legal professional privilege in answer to a search warrant. (at p72)
2. According to the facts recited in the case the plaintiff retained Mr. O'Connor, who is a member of Stone, James & Co., barristers and solicitors, of Perth, as solicitors to advise him in relation to aspects of a scheme which he had devised with a view to minimizing his liability to sales tax. It was a term of the retainer that the firm would not disclose to any other person any information or documents obtained by him in confidence while acting for the plaintiff. It was agreed between the parties that it was the duty of the firm not to disclose to any other person, unless compelled by law or upon the instructions of the plaintiff, any information or documents provided to the firm in confidence for the purpose of tendering legal advice to the plaintiff. (at p72)
3. On 6 July 1982 a magistrate issued a search warrant to the defendant, who is a member of the Federal Police, pursuant to s. 10 of the Crimes Act 1914 (Cth), as amended. The search warrant authorized the seizure on premises occupied by Stone, James & Co. of the original or copies of the following documents: "correspondence, prospectuses, notes, opinions of counsel, contracts, agreements, and other documents and instruments all of which have been produced or held by, for, or in respect of," the plaintiff and/or certain other named persons, companies and a trust. The warrant recited that there were reasonable grounds for suspecting that the documents would afford evidence as to the commission "of any offence" against s. 49 of the Sales Tax Assessment Acts (No. 1) 1930 (Cth), in itself and as applied by Sales Tax Assessment Acts (Nos. 2- 9) 1930 (Cth) respectively, by the plaintiff and the persons named in the warrant jointly or severally, and offences against s. 86(1)(b) and (e) of the Crimes Act by the plaintiff and the persons already named "in any combination and with any other person or persons unknown". (at p73)
4. On 7 July 1982 the defendant, acting pursuant to the search warrant, attempted to seize the documents held by Stone, James & Co. The documents held by that firm were all brought into existence for the purpose of obtaining or giving legal advice, and included opinions given by the plaintiff's solicitor and senior counsel. They included documents created solely for the purpose of tendering legal advice to the plaintiff otherwise than in relation to then existing or contemplated civil or criminal proceedings. Stone, James & Co. held no documents relating to any particular transaction entered into. (at p73)
5. On or about 5 October 1982 the plaintiff was charged with the following offences: (1) conspiring with others to defraud the Commonwealth contrary to s. 86(1)(e) of the Crimes Act; (2) conspiring with others to prevent or defeat the execution or enforcement of a law of the Commonwealth, namely s. 9 of the Sales Tax Assessment Act (No.3) 1930, contrary to s. 86(1)(b) of the Crimes Act; and (3) conspiring with others to prevent or defeat the execution or enforcement of a law of the Commonwealth, namely s. 9 of the Sales Tax Assessment Act (No. 7) 1930, contrary to s. 86(1)(b) of the Crimes Act. (at p73)
6. The plaintiff contends that the documents held by Stone, James & Co. are the subject of legal professional privilege and cannot properly be made the subject of a search warrant or seized under it. (at p73)
7. The defendant contends that legal professional privilege does not attach to the documents by reason of the purpose for which the plaintiff consulted the firm and also contends that in so far as it may attach to them they may lawfully be seized under the warrant. (at p73)
8. The question asked in the case stated is:
"In the event that legal professional privilege attaches to and is maintained
in respect of the documents held by the firm can those
documents be properly
made the subject of a search warrant issued under s. 10 of the Crimes Act?"
(at p73)
9. Having regard to the importance of the question presented by the case
stated the Court granted leave to the plaintiff to present
a case which in
some respects at least might prove to be inconsistent with the recent decision
of the Court in O'Reilly v. State
Bank of Victoria Commissioners [1983] HCA 32; (1983) 152
CLR 1 , and might require a reconsideration of the correctness of that
decision. It will
be recalled that in O'Reilly
the Court by majority (Gibbs
C.J., Mason and Wilson JJ., Murphy J. dissenting) held
legal professional
privilege was not available
in answer to a notice issued under s. 264 of the
Income Tax Assessment Act 1936 (Cth), as amended, requiring production of
documents to a designated officer of the Australian Taxation Office. (at p74)
10. O'Reilly recognized that the privilege extends to the protection in judicial and quasi-judicial proceedings of communications between lawyer and client made in contemplation of litigation and for legal advice. O'Reilly also recognized that the privilege reflects as an underlying policy the perceived value of promoting the public interest by assisting the administration of justice in "facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline" (Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674, at p 685 , per Stephen, Mason and Murphy JJ.). At an earlier stage of its development the privilege applied only to communications made in relation to the litigation in which the privilege was claimed. Had the development stopped at this point the privilege might well have reflected a more acceptable balance between the two competing public interests - one supporting the privilege, the other favouring the availability of all the relevant documents for use in litigation. Subsequently the privilege was extended so as to apply to communications made in relation to actual or prospective litigation generally. Then the limited policy on which the privilege was based was that of promoting freedom of consultation between lawyer and client for the purpose of representation in, and conduct of, legal proceedings. The later extension of the privilege to cover communications relating to advice unrelated to legal proceedings, actual or prospective, entailed a declaration that the underlying policy was more broadly based - that it involved the promotion of freedom of consultation generally between lawyer and client. (at p74)
11. Despite this, the majority in O'Reilly considered that the privilege was not available outside the realm of judicial and quasi-judicial proceedings - proceedings in which, generally speaking, the rules of evidence are applied - because the privilege is a rule of evidence and because the underlying policy which it serves did not demand such an extension. (at p74)
12. Notwithstanding strong judicial assertions of the value of the public interest said to be promoted by the privilege - for the most part assertions made a century ago - of which Greenough v. Gaskell (1833) 1 My & K 98, at p 103 [1833] EngR 333; (39 ER 618, at p 621) is an example, it is by no means self-evident that the value of this public interest is greater than the public interest in facilitating the availability of all relevant materials for production in litigious disputes. If we nonetheless continue to accept that the privilege applies to communications in aid of litigation and communications made for the purpose of obtaining and giving legal advice, an evaluation of the competing considerations which lurk beneath the surface of the privilege indicates that the application of the privilege should not be extended outside the area in which it has thus far been recognized in Australian law. (at p75)
13. It is one thing to say that the privacy or secrecy of lawyer-client communications made in aid of litigation, especially in aid of the litigation in which the privilege is claimed, shall prevail over an obligation to produce or disclose all materials relevant to the issues in the litigation. To take but one example: to compel the parties to disclose such communications made in the conduct of that litigation would be unfair to them, hamper the preparation of their cases and protract the determination of the litigation. But it is quite another thing to say that communications for advice, the purpose of which is unrelated to actual or prospective litigation, shall prevail over an obligation to produce or disclose materials relevant to the issues in litigation. Why such communications should be privileged, when communications for advice between client and accountant or marriage counsellor, which have taken place with litigation in view, are not privileged, does not admit of convincing explanation. There is also the striking contrast between the privileged lawyer-client communications made for the purpose of obtaining and giving advice and the non-privileged doctor-patient and priest-penitent communications. Each of the three relationships is highly confidential and in each the need for candour is a necessary element. The need for preservation of doctor-patient and priest-penitent confidentiality seems to be as strong as the need for preservation of lawyer-client confidentiality in the area of advice. Consequently the public interest in preserving the secrecy of the latter seems to be no stronger than the public interest in preserving the secrecy of the former. (at p75)
14. When we move beyond the arena of curial proceedings to the realm of administrative and investigatory procedures the desirability of preserving the confidentiality of lawyer-client communications is not opposed by the public interest in facilitating the production of relevant materials in litigation, except in those cases (a) in which the investigatory procedures are designed as a preliminary to litigation, and (b) in which the disclosure of the communications in the administrative or investigatory procedures would impair the exercise of the privilege in pending or future litigation. However, other countervailing considerations then arise. The nature and force of these considerations depend on the object and purpose of the procedures for which the relevant statute makes provision. But it may be deduced from the very existence of the statutory obligation to answer questions, provide information or produce documents that there is a strong public interest in obtaining the materials the provision of which is the object of the statute. (at p76)
15. Quite apart from the force of these considerations there is the problem which I mentioned in O'Reilly [1983] HCA 32; (1983) 152 CLR 1 and Brennan J. referred to in Pyneboard Pty. Ltd. v. Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328, at pp 355-356 , that of imposing upon unqualified persons the task of deciding difficult questions of legal professional privilege. Their decision of such a question would not be conclusive. A decision of a court (a) on a prosecution for contravention of the statutory obligation, or (b) in proceedings for a declaration as to the existence of the privilege, would be required in order to provide a conclusive answer. (at p76)
16. In this respect it is scarcely to be supposed that Parliament, when it imposes the obligation to furnish information, intends that the course of an administrative inquiry or investigation should be delayed or interrupted by the necessity to obtain a final decision of a court on the question whether a claim for legal professional privilege can be sustained in relation to a particular answer or particular documents. This, of course, would be relevant to the existence of a statutory intention to abrogate the privilege, assuming it to be otherwise inherently available. Nonetheless, it is a material factor to be considered in deciding whether the privilege is capable of being claimed in administrative or investigatory procedures. The determination of a claim for privilege in curial proceedings stands in sharp contrast because it entails no similar delay or interruption. (at p76)
17. It was for the reasons outlined above that I concluded in O'Reilly that the privilege is a rule of evidence which is available in judicial and quasi-judicial proceedings only. (at p76)
18. An unqualified acceptance of the values which are said to sustain the privilege might well have led to a different result in O'Reilly. In conformity with the approach adopted in the United States, to which I shall shortly refer, it may be said that logic demands that the policy basis of the privilege, as it is now recognized, requires the protection from involuntary disclosure of lawyer-client communications in all administrative and investigatory procedures for two reasons: (1) in order to give effect to the policy of promoting freedom of consultation between client and lawyer; and (2) to foreclose the possibility that the benefit of the privilege in judicial proceedings would be destroyed by an antecedent disclosure of the relevant communications in administrative or investigatory procedures. And, as we have seen, in procedures of this kind the policy of promoting freedom of consultation is, subject to the exceptions already mentioned, not at odds with the object of facilitating the availability of relevant materials for production in litigious disputes, though it will be opposed by other countervailing considerations. (at p77)
19. In considering the question which arises we now have the advantage, which we lacked in O'Reilly, of an extensive examination of the judicial decisions in Canada and in the United States so far as they relate to claims of legal professional privilege in proceedings which are not curial proceedings. (at p77)
20. In Solosky v. The Queen (1979) 105 DLR (3d) 745, at pp 755-756 , Dickson
J. (with whom the other members of the Supreme Court
of Canada concurred),
after briefly summarizing the history of the privilege, quoted the well-known
remarks of Lord Brougham L.C.
in Greenough v. Gaskell (1833) 1 My & K, at p
103 (39 ER, at p 621) :
"'. . . it is out of regard to the interests of justice, which cannot be
upholden, and to the administration of justice, which cannot
go on, without
the aid of men skilled in jurisprudence, in the practice of the Courts, and in
those matters affecting rights and
obligations which form the subject of all
judicial proceedings. If the privilege did not exist at all, every one would
be thrown
upon his own legal resources. Deprived of all professional
assistance, a man would not venture to consult any skilful person, or
would
only dare to tell his counsellor half his case.'" (at p77)
21. Speaking of the current situation in Canada Dickson J. said (1979) 105
DLR (3d), at p 757 :
"Privilege is no longer regarded merely as a rule of evidence which acts as a
shield to prevent privileged materials from being tendered
in evidence in a
courtroom. The Courts, unwilling to so restrict the concept, have extended its
application well beyond those limits.
. . . "
Rejecting the notion that the privilege was a rule of property, he cited
various decisions in which the solicitor-client privilege
has been held to be
available in pre-prosecution procedures, viz., in response to a search warrant
and to compulsory disclosure.
He suggested that the judgments could be
rationalized "as merely shifting the time at which the privilege can be
asserted" (1979)
105 DLR, at p 758 . (at p77)
22. One such judgment was Re Director of Investigation and Research and Shell
Canada Ltd. (1975) 55 DLR (3d) 713 , where the Director
of Investigation and
Research was authorized by s. 10(1) of the Combines Investigation Act 1970
(Can.) to enter into premises on
which he believed there might be evidence
relevant to matters being inquired into and to examine anything on those
premises. The
Federal Court of Appeal held that legal professional privilege
was applicable to investigations by the Director. Jackett C.J. (with
whom the
other members of the Court agreed) considered that the value of the privilege
would be impaired if its operation were confined
to judicial proceedings and
if disclosure and confidential communications were permitted outside judicial
proceedings. His Honour
said (1975) 55 DLR (3d), at p 722 :
"I fully realize that the protection of the confidentiality of the
solicitor-and-client relationship has, heretofore, manifested
itself mainly,
if not entirely, in the privilege afforded to the client against the
compulsory revelation of communications between
solicitor and client in the
giving of evidence in Court or in the judicial process of discovery. In my
view, however, this privilege
is a mere manifestation of a fundamental
principle upon which our judicial system is based, which principle would be
breached just
as clearly, and with equal injury to our judicial system, by the
compulsory form of pre-prosecution discovery envisaged by the Combines
Investigation Act as it would be by evidence in Court or by judicial
discovery." (at p78)
23. Recently, in Descoteaux v. Mierzwinski (1982) 141 DLR (3d) 590 , the
Supreme Court considered the effect of legal professional
privilege in
relation to the issue of a search warrant pursuant to s. 443(1)(b) of the
Criminal Code (Can.). Lamer J., who delivered
the judgment of the Court, said
(1982) 141 DLR (3d), at pp 604-605 that the Court in Solosky v. The Queen
implicitly recognized that
the right to confidentiality, which had given rise
to the rule of evidence that confidential communications passing between a
client
and his legal adviser may not be disclosed in a judicial proceeding
without the client's consent, had also given rise to a substantive
rule which
would apply in all circumstances where such communications were likely to be
disclosed without the client's consent. That
rule requires that, in the
absence of contrary provisions, any conflict between the right of a client to
have his communications
with his lawyer kept confidential and the right of a
person to interfere should be resolved in favour of protecting
confidentiality.
Where legislation does give a person authority to do
something which might interfere with confidentiality, the decision to do so
and the choice of the means of exercising that authority should be determined
with a view to interfering with confidentiality only
to the extent absolutely
necessary in order to obtain the end sought by the legislation. Moreover, any
legislation which may infringe
confidentiality must be interpreted
restrictively. (at p79)
24. Applying this analysis to s. 443(1)(b), Lamer J. (1982) 141 DLR (3d), at pp 612-614 said that the rule of evidence deprived a justice of the peace of jurisdiction to order the seizure of documents that would not be admissible in evidence in court on the ground that they are privileged. In this connexion he quoted Southey J. in the Supreme Court of Ontario in Re Borden and Elliott and The Queen (1975) 70 DLR (3d) 579, at pp 583-586; 30 CCC (2d) 337, at pp 340-343 to the effect that if privilege could not be invoked it would lead to the absurd result that the Crown would be free to seize and examine any of the documents in the defence files in a criminal case leaving the rule against the introduction of those documents into evidence of little comfort to the accused. Where, however, jurisdiction to authorize the search exists because, for example, the relevant documents fall within an exception to the rule of evidence, the substantive rule will require a justice of the peace to satisfy himself that there is no reasonable alternative to the search and, when issuing the warrant, to attach terms designed to protect the right of confidentiality of the lawyer's clients as much as possible. (at p79)
25. In the United States it is firmly established that the privilege is
available in administrative proceedings and in investigatory
procedures in the
absence of legislation abrogating the privilege. Thus the privilege is
available in investigations by the Internal
Revenue Service (Colton v. United
States [1962] USCA2 251; (1962) 306 F (2d) 633 ; United States v. Summe (1962) 208 FSupp 925, at
pp 926-927 ; United
States v. Schmidt (1973) 360 FSupp 339,
at p 350 ; United
States v. Schenectady Sav. Bank (1981) 525 FSupp 647, at p 654 ). The
discussion
in the cases has been complicated
by another problem which has no
relevance for us, that is, whether the privilege is grounded in
State or
federal law (see, e.g. Bouschor
v. United States [1963] USCA8 98; (1963) 316 F (2d) 451 ).
However it is clear enough that the availability
of the privilege rests at
bottom on the statement of principle
expressed by Wigmore on Evidence,
McNaughton rev. (1961), vol. 8,
par. 2291, p. 545, in these terms:
"In order to promote freedom of consultation of legal advisers by clients, the
apprehension of compelled disclosure by the legal
advisers must be removed;
hence the law must prohibit such disclosure except on the client's consent."
(at p79)
26. I am not persuaded by the Canadian and United States authorities that we
should now depart from the majority decision in O'Reilly
[1983] HCA 32; (1983) 152 CLR 1 .
There are theoretical problems in drawing or holding the line at the point
where legal professional
privilege
is treated as a rule of evidence available
only in judicial and quasi-judicial proceedings. But the problems of policy
and practice
in extending the privilege beyond its accepted role in
proceedings of this kind are to my mind altogether too formidable.
Adherence
to the rule adopted in O'Reilly will produce greater certainty than the
adoption of a case by case approach in which the
Court seeks
to balance
opposing public interest considerations in the quest for a statutory intention
to abrogate the privilege.
In some instances
the O'Reilly rule may result in
the effective loss of the benefit of the privilege which would otherwise be
claimed
in litigation,
but this is unlikely to be of frequent occurrence. (at
p80)
27. According to authority, it seems that the availability of the claim for privilege is lost once the document passes into the possession of another who may then tender it in evidence (Waugh v. British Railways Board [1979] UKHL 2; (1980) AC 521, at p 536 ). The same holds true for a copy (see generally Bell v. David Jones Ltd. (1948) 49 SR (NSW) 223, at pp 227-228 ; Kuruma v. The Queen (1955) AC 197, at pp 203-204 ; Calcraft v. Guest (1898) 1 QB 759 ). These rules have been criticized and the decisions on which they are based may perhaps require some qualification, particularly in relation to documents obtained by illegal means or by deception (see I.T.C. Film Distributors Ltd. v. Video Exchange Ltd. (1982) Ch 431, at pp 440-441 ; G. L. Peiris, "Legal Professional Privilege in Commonwealth Law", The International and Comparative Law Quarterly, vol. 31 (1982), 609, esp. at pp. 630-633; Polyvios G. Polyviou, Search & Seizure (1982), pp. 325 et seq.). And in a very recent decision the New Zealand Court of Appeal has held that a third party who overheard a communication made between a solicitor and an accused person for the purpose of giving or obtaining legal advice or assistance in confidence should not be allowed to give evidence of it unless the client waived the privilege (Reg. v. Uljee (1982) 1 NZLR 561 ). In arriving at its decision the New Zealand Court of Appeal, acknowledging that Calcraft v. Guest seemed to point in a contrary direction, held that no valid distinction could be drawn between oral and documentary evidence in this context. However, it is not necessary for us to resolve all these difficulties in the present case. (at p80)
28. Legal professional privilege stands well apart from the privilege against self-incrimination, which rests on a more enduring foundation, one which has a pervasive presence in our system of criminal justice. There is, therefore, a strong reason for treating the privilege against self-incrimination differently and regarding it as inherently available outside the arena of judicial and quasi-judicial proceedings (cf. Pyneboard (1983) 152 CLR, at pp 340-341 ). (at p81)
29. The question which remains is whether consistently with O'Reilly we should regard the search and seizure of documents under a search warrant as having such a close relationship with, and impact upon, any subsequent trial arising out of the investigation in which the search and seizure takes place that any claim to legal professional privilege which would be available at the trial is available as an answer to the search warrant or to search and seizure under a warrant. In this respect the circumstance that the issue of the warrant has been considered to be a judicial act (Reg. v. Tillett; Ex parte Newton (1969) 14 FLR 101 ; Bridgeman v. Macalister (1898) 8 QLJ 151, at p 152 ; Hope v. Evered (1886) 17 QBD 338, at p 340 ; Bowden v. Box (1916) GLR (NZ) 443, at p 444 ; Mitchell v. New Plymouth Club (Inc.) (1958) NZLR 1070, at p 1073 ; Seven Seas Publishing Pty. Ltd. v. Sullivan (1968) NZLR 663, at p 666 ; see also Ex parte Qantas Airways Ltd.; Re Horsington (1969) 71 SR (NSW) 291 ) means no more than that the justice has a duty to act judicially. To characterize the ex parte application for the warrant as a quasi-judicial proceeding does not advance the matter for the question is whether the justice has jurisdiction to issue his warrant in relation to privileged documents and, if so, whether privilege is an answer to the warrant. (at p81)
30. Likewise, search and seizure under the authority of a warrant is not a form of discovery in an action; nor is it a proceeding ancillary to the trial in the sense in which an interlocutory application is a proceeding ancillary to the action itself. (at p81)
31. The search warrant has been described as "part of the investigative pre-trial process of the criminal law, often employed early in the investigation and before the identity of all of the suspects is known" (Attorney-General (Nova Scotia) v. MacIntyre (1982) 132 DLR (3d) 385, at p 397 , per Dickson J.) Its function is to authorize a search and seizure of materials which will implicate a person in the commission of the offence. The search and seizure which it authorizes is designed, among other things, to yield evidence which can be tendered by the prosecution in the subsequent trial of a person for the offence described in the warrant. (at p81)
32. For present purposes the important characteristics of the search warrant procedure are that its foundation is the making of an order by a judicial officer and that the warrant which issues by virtue of the order authorizes the search and seizure of documents in the possession of another for use in the investigation and in any subsequent trial arising out of the investigation. The end result of the procedure, though it is achieved by different means, is relevantly similar to that of discovery and of the subpoena duces tecum which make available to a party to litigation then on foot documents in connexion with that litigation. For this reason there is a case for saying that a privilege which is available in answer to production on discovery and under a subpoena should likewise be available in answer to a search warrant, even though the procedure which follows the issue of a warrant is in no sense a judicial or quasi-judicial procedure. This argument is much stronger in its application to documents brought into existence for the purpose of any contemplated trial arising out of an investigation in which the search and seizure is an element, not being communications made in furtherance of a criminal offence, because execution of the search warrant in relation to the documents may constitute an interference with the contemplated trial. But in the present case it is not suggested that the claim of privilege applies to documents of this kind. (at p82)
33. At this point it is necessary to look to s. 10(b) of the Crimes Act. This provision enables the justice, if satisfied by information on oath that there is reasonable ground for suspecting that there is in any place "anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission" of any offence against a law of the Commonwealth or a Territory, to grant a warrant. The section authorizes the grant of a warrant which extends to the seizure of "any such thing" which the person executing the warrant may find. The words "any such thing" no doubt refer back to the things referred to in pars. (a), (b) and (c) of s. 10: see Auckland Medical Aid Trust v. Taylor (1975) 1 NZLR 728, esp at p 738 , per McCarthy P.; Tillett (1969) 14 FLR, at p 112 . (at p82)
34. I doubt whether the expression "will afford evidence" in par. (b) denotes "evidence which will be admitted at a subsequent trial" or "admissible evidence" in the strict sense of that term. And I reject the view that the expression excludes documents which at a subsequent trial would be protected by legal professional privilege. That would be to ignore the traditional distinction between the concepts of admissibility and privilege. (at p83)
35. In approaching the scope of the authority given by the warrant we must keep practical considerations steadily in mind. It is simply impossible for a police officer executing a warrant to make an instant judgment on the admissibility, probative value or privileged status of the documents which he may encounter in his search. Generally speaking, it is in the course of the subsequent investigation following seizure of the documents that informed consideration can be given to the documents and an assessment made of their worth or significance in the respects already mentioned. These considerations suggest that par. (b) and the concluding words of the section, in so far as they relate back to par. (b), are looking to documents as to which there are reasonable grounds for believing that they will in some way implicate the persons named in the warrant, or, if no person is named, someone in the commission of the offence. To say that the section excluded documents the subject of legal professional privilege from the scope of the authority given by the warrant would unduly inhibit the investigation of crime and lead to the institution of legal proceedings before trial which would require a determination of the existence of the privilege because the Crown's right to retain the documents would depend on the resolution of this issue. In the case of production on discovery and under subpoena duces tecum there is a court or tribunal already exercising jurisdiction in the matter which could determine questions of relevance and privilege. It is otherwise in the case of search and seizure under a warrant. This indicates that it was unlikely that Parliament intended to import some limitation of the kind suggested into the authority given by a warrant granted under s. 10(b). (at p83)
36. In the present case the warrant describes the categories of documents as to which there were reasonable grounds for believing that they would afford evidence of the commission of the offences mentioned in the warrant and it authorizes seizure of those documents. In the light of what has already been said the authority given by the warrant, stemming from the statute itself, extends to documents even though they are the subject of legal professional privilege. The claim of legal professional privilege is no answer to the warrant. (at p83)
37. Whether legal professional privilege attaching to documents prepared in connexion with a trial for the offence mentioned in the warrant would constitute an answer to a warrant is a question which should be reserved for later consideration. It does not arise for decision in this case. (at p83)
38. My attention has been drawn to the decision of the European Court of Justice in A.M. & S. Europe Ltd. v. Commission of the European Communities (1983) QB 878 , in which that Court exercised its power to mould procedures for the independent verification of claims to privilege or confidentiality affecting communications relating to legal advice. Section 10 of the Crimes Act makes no provision for such a procedure and this Court has no power to prescribe one. (at p84)
39. I would answer the question asked in the affirmative. (at p84)
MURPHY J.The Issue. (at p83)
2. The issue is whether the common law principle of client's legal privilege
operates outside judicial or quasi-judicial proceedings
so as to protect from
seizure documents otherwise covered by a federal search warrant. Section 10 of
the Crimes Act 1914 ("the Act")
authorizes a justice of the peace to grant a
search warrant if satisfied that there is "reasonable ground for suspecting"
that
there
is in any place "anything as to which there are reasonable grounds
for believing that it will afford evidence as to the commission
of any . . .
offence" against a law of the Commonwealth or of a Territory; the warrant may
authorize any named constable (with assistance)
to enter the place, if
necessary by force, and to seize any such thing which he or she may find
there.
Client's Legal Privilege. (at p84)
3. The concept of client's legal privilege is ancient. It has existed for over 400 years in English law (see Berd v. Lovelace [1576] EngR 9; (1577) Cary 62 (21 ER 33) ; Dennis v. Codrington [1579] EngR 24; (1580) Cary 100 (21 ER 53) ; Greenough v. Gaskell [1833] EngR 333; (1833) 1 My & K 98 (39 ER 618) ; Anderson v. Bank of British Columbia (1876) 2 ChD 644, at p 649 ; Holdsworth A History of English Law, vol. 9 (1966), pp. 201-202). It is well established in the United States (see Hunt v. Blackburn [1888] USSC 264; (1888) 128 US 464, at p 470 (32 Law Ed 488, at p 491) ; United States v. Louisville & Nashville Railroad Co. [1915] USSC 62; (1915) 236 US 318, at p 336 [1915] USSC 62; (59 LawEd 598, at p 607) ; Upjohn Co. v. United States [1981] USSC 7; (1981) 449 US 383, at p 389 (66 LawEd (2d) 584, at p 591) ; Wigmore on Evidence, McNaughton rev., (1961), vol. 8, par. 2290) and in many other countries such as Belgium, Denmark, Germany, France, Greece, Italy, Luxembourg and Holland (see opinion of Advocate General, Sir Gordon Slynn, A.M. & S. Europe Ltd. v. Commission of the European Communities (1983) 3 WLR 17, at pp 26-28 ). (at p84)
4. The privilege is commonly described as legal professional privilege, which is unfortunate, because it suggests that the privilege is that of the members of the legal profession, which it is not. It is the client's privilege, so that it may be waived by the client, but not by the lawyer (Reg. v. Davies (1921) 21 SR (NSW) 311, at pp 313-314 ; Re Golightly (1974) 2 NZLR 297, at p 303 ; People v. Doyle (1977) 74 Cal App (3d) 691, at p 692; 141 Cal Rptr 639 at p 640 ). Its rationale is no longer the oath and honour of the lawyer as a gentleman (see Radin "The Privilege of Confidential Communication Between Lawyer and Client", California Law Review, vol. 16 (1928), p. 487). It is now supported as "a necessary corollary of fundamental, constitutional or human rights" (see A.M. & S. Europe Ltd. v. Commission of the European Communities (1983) QB, at 941 ). In Reg. v. Uljee (1982) 1 NZLR 561, at p 569 , Cooke J. referred to "a strong sense that any person charged or in peril of a charge has a fundamental human right to professional advice - which may not be effectively given if facts are withheld". (at p85)
5. In the United States the client's legal privilege has been based on constitutional grounds - the fourth amendment guarantee against unreasonable searches and seizures and the fifth amendment guarantee against self-incrimination (see Couch v. United States [1973] USSC 4; (1973) 409 US 322, at pp 343-344 (34 Law Ed (2d) 548, at pp 562-563) ; and Granello v. United States (1967) 386 US 1019 (18 Law Ed (2d) 458) ; Douglas J.; and Fisher v. United States [1976] USSC 65; [1976] USSC 65; (1976) 425 US 391 (48 Law Ed (2d) 39) , Brennan and Marshall JJ. affirming the "private papers" doctrine of Boyd v. United States [1886] USSC 48; (1886) 116 US 616 (48 Law Ed (2d) 39) ). It has also been based on the sixth amendment right to counsel in criminal cases (see United States v. Rosner [1973] USCA2 568; (1973) 485 F (2d) 1213, at p 1214 ; United States v. Levy [1978] USCA3 567; (1978) 577 F (2d) 200, at pp 208-210 ; In re Terkeltoub (1966) 256 FSupp 683, at p 685 ; Caldwell v. United States (1953) 205 F (2d) 879 ) which has been held to include the right to consult privately with counsel (Caldwell v. United States; Coplon v. United States (1951) 191 F (2d) 749 ; Marsh v. Moore (1971) 325 FSupp 392 ; People v. Brown (1974) 368 NYS (2d) 645 , but see Weatherford v. Bursey [1977] USSC 25; [1977] USSC 25; (1977) 429 US 545 (51 Law Ed (2d) 30) ). Inroads made upon these rights by recent Supreme Court decisions expanding the reach of search warrants (see Warden v. Hayden [1967] USSC 141; (1967) 387 US 294 (18 Law Ed (2d) 782) ; Andresen v. Maryland [1976] USSC 154; (1976) 427 US 463 (49 Law Ed (2d) 627) ; Zurcher v. Stanford Daily [1978] USSC 182; (1978) 436 US 547 (56 Law Ed (2d) 525) ), have produced strong criticism: "To insist that one has an unqualified right to effective counsel in criminal cases, and yet to take away the security that one's words to an attorney will not be used in evidence against him, is to make a cynical formality of a precious and inalienable right. To grant privacy in the narrowest sense of being left alone at the time of consultation, only to allow police officers to search the premises immediately thereafter for any written notation of what was said, is to manipulate words to fashion subtle traps instead of meaningful safeguards" ("Commentary - Search of the Lawyer's Office - Court-Sanctioned Threat to Confidential Communications", Alabama Law Review, vol. 32 (1980), at p. 130). (at p86)
6. In civil cases the client's privilege has also been referred to the
guarantee of fairness under the due process clause of the
fourteenth amendment
(see "Commentary - Search of the Lawyer's Office - Court-Sanctioned Threat to
Confidential Communications",
p.128).
Scope of the Privilege. (at p86)
7. Under common law as recently declared for Australia, client's legal privilege protects from disclosure any oral or written statement, or other material, which has been created solely for the purpose of advice, or for the purpose of use in existing or anticipated litigation (Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674, at p 682 ; see also National Employers' Mutual General Insurance Association Ltd. v. Waind [1979] HCA 11; (1979) 141 CLR 648 ). This defines the scope of the privilege more narrowly than elsewhere. In the United Kingdom it is enough if the dominant purpose for coming into existence of the material is legal advice or litigation (Waugh v. British Railways Board [1979] UKHL 2; (1980) AC 521 ). (at p86)
8. The privilege does not attach to documents which constitute or evidence
transactions (such as contracts, conveyances, declarations
of trust, offers or
receipts) even if they are delivered to a solicitor or counsel for advice or
for use in litigation. It is not
available if a client seeks legal advice in
order to facilitate the commission of crime or fraud or civil offence (whether
the adviser
knows or does not know of the unlawful purpose) (see Reg. v. Cox
and Railton (1884) 14 QBD 153 ; Bullivant v. Attorney-General (Vict.)
(1901)
AC 196 ; R. v. Smith (1915) 11 Cr AppR 229, at p 238 ); but is of course
available where legal advice or assistance is sought
in respect of past crime,
fraud or civil offence. Hence the subject matter of the privilege is closely
confined: in brief it extends
only to oral or other material brought into
existence for the sole and innocent purpose of obtaining legal advice or
assistance.
Should the Privilege Apply Outside the Courtroom? (at p87)
9. Should a federal common law rule be recognized attaching the privilege to federal statutory powers of search and seizure unless excluded expressly or by necessary implication? The existence of such a federal common law rule is not merely a question of statutory interpretation. I said in Australian Broadcasting Commission v. Industrial Court (S.A.) [1977] HCA 51; (1977) 138 CLR 399, at p 420 "Federal common law completes the statutory patterns enacted by the Parliament and is as necessary for the effective operation of those laws as the common law of the Constitution is for the effective operation of the Constitution." The common law in the various States is not decisive of the content of federal common law but is an aid to ascertaining an appropriate federal common law rule. A federal common law rule can be adopted even if the common law in the States in analogous fields has been altered (see "The Federal Common Law", Harvard Law Review, vol. 82 (1969), p. 1512). (at p87)
10. In O'Reilly v. State Bank of Victoria Commissioners [1983] HCA 32; (1983) 152 CLR 1 , this Court decided Gibbs C.J., Mason and Wilson JJ.; Murphy J. dissenting) that legal privilege was available to protect evidence from disclosure only in the actual course of judicial or quasi-judicial proceedings. The correctness of O'Reilly is now being reconsidered. (at p87)
11. Unfortunately the majority in O'Reilly's Case relied to some extent on Crowley v. Murphy [1981] FCA 31; (1981) 52 FLR 123; 34 ALR 496 (Mason J. [1983] HCA 32; (1983) 152 CLR 1 ; Wilson J. [1983] HCA 32; (1983) 152 CLR 1 ), which in turn relied on the judgment of Osler J. in the Canadian case of Reg. v. Colvin (1970) 3 OR 612 , the only relevant Canadian case on this aspect cited to the Court in O'Reilly. I say unfortunately because, even before Crowley v. Murphy [1981] FCA 31; (1981) 52 FLR 123; 34 ALR 496 was decided, Osler J. had stated that the view he had expressed in Colvin (1970) 3 OR 612 (that the privilege was a rule of evidence to be applied only at the time material was tended or demanded for evidentiary use) had been overruled by such authorities as Re Director of Investigation and Research and Shell Canada Ltd. (1975) 55 DLR (3d) 713 , and was now in his view "erroneous" (Re Presswood v. International Chemalloy Corp. (1975) 65 DLR (3d) 228, at p 230 ). The authorities disposing of Colvin (1970) 3 OR 612 were approved by the Canadian Supreme Court in Solosky v. The Queen (1979) 105 DLR (3d) 745, at p 757 . But this was not brought to the attention of this Court in O'Reilly's Case. (at p88)
12. The privilege should not be confined to protecting evidence from
disclosure only in judicial or quasi-judicial proceedings.
As I said in
O'Reilly's Case [1983] HCA 32; (1983) 152 CLR 1 , "The important public policy which
justifies the privilege would
often be defeated
if the privilege were not
generally available." The availability of the privilege against extra-judicial
searches
and seizures has
been recognized in the United
States (see Burrows v.
Superior Court (1974) 529 P (2d) 590, at p 598 and O'Connor
v. Johnson (1979)
287 NW (2d) 400 ). In Canada
the courts have strongly asserted that the
privilege is not restricted to judicial
or quasi-judicial
proceedings (see
Solosky v.
The Queen (1979) 105 DLR (3d) 745 and Descoteaux v. Mierzwinski
(1982) 141 DLR (3d)
590; 70 CCC 385 ).
The privilege applies against
a search
warrant (see Re Borden and Elliott and The Queen (1975) 70 DLR (3d) 579,
at pp
584-585; 30
CCC (2d) 337, at p 342 and In
re B.X. Development Inc. and The
Queen (1976) 70 DLR (3d) 366; 31 CCC (2d) 14 ).
In Shell Canada Jackett
C.J.
stated (1975) 55 DLR
(3d), at p 722 :
". . . this privilege is a mere manifestation of a fundamental principle upon
which our judicial system is based, which principle
would be breached just as
clearly, and with equal injury to our judicial system, by the compulsory form
of pre-prosecution discovery
envisaged by the Combines Investigation Act as it
would be by evidence in Court or by judicial discovery." (at p88)
13. In New Zealand also the privilege has been held to apply outside judicial
or quasi-judicial proceedings. Its Court of Appeal
held the privilege to be
available despite s. 12 of the Finance Act (No. 2) 1948 (N.Z.) which required
"Every person" to "furnish
in writing any information or produce any books or
documents" in his or her "knowledge, possession, or control" which the
Commissioner
considered necessary or relevant for any purpose relating to the
administration or enforcement of the revenue legislation (Commissioner
of
Inland Revenue v. West-Walker (1954) NZLR 191 ). There North J. rejected the
claim that the privilege was only a rule of evidence
or of limited
application, and held that it rests "on the wider ground of public policy and,
therefore, applies generally unless
the terms of a particular statute either
expressly or by necessary implication remove the protection" (1954) NZLR, at p
219 ; see
also Uljee's Case (1982) 1 NZLR 561 . Although the New Zealand Court
of Appeal is an intermediate court of appeal (still subject
to the Privy
Council) and its decisions are therefore not of the same persuasive authority
as those of final courts such as the Supreme
Court of Canada, nevertheless
they are evidence of a firm trend in common law countries against restriction
of the privilege to judicial
or quasi-judicial proceedings. In Rosenberg v.
Jaine [1983] NZHC 6; (1983) NZLR 1 , Davison C.J. found that s. 198 of the Summary
Proceedings Act
1957 (N.Z.) did not "authorise the issue of a search warrant
abrogating the common law privilege in relation to the solicitor-client
relationship" (see also Reg. v. Uljee). (at p89)
14. The client's legal privilege is essential for the orderly and dignified conduct of individual affairs in a social atmosphere which is being poisoned by official and unofficial eavesdropping and other invasions of privacy. The individual should be able to seek and obtain legal advice and legal assistance for innocent purposes, without the fear that what has been prepared solely for that advice or assistance may be searched or seized under warrant. Denying the privilege against a search warrant would have a minimal effect in securing convictions but a major damaging effect on the relationship between the legal profession and its clients. It would engender an atmosphere in which citizens feel that their private papers are insecure and that relationships they previously thought confidential are no longer safe from police intrusion. As Douglas J. stated in Couch v. United States [1973] USSC 4; (1973) 409 US 322, at p 344 (34 Law Ed (2d) 548, at p 563) , "The constitutional fences of law are being broken down by an ever-increasingly powerful Government that seeks to reduce every person to a digit." (at p89)
15. Many commentators have criticized the increasing threat to the confidentiality of the lawyer-client relationship brought about by a weakening of the privilege: "At stake is more than an evidentiary privilege; the relationship of attorney and client, based on trust, is not so strong that it can withstand the gradual erosion of public confidence that would necessarily accompany an increase in governmental intrusions" ("Commentary - Search of the Lawyer's Office - Court Sanctioned Threat to Confidential Communications" Alabama Law Review, vol. 32 (1980), at p. 134; see also Bloom "The Law Office Search: An Emerging Problem and Some Suggested Solutions", Georgetown Law Journal, vol. 69 (1980), p. 1; Charles "Legal Professional Privilege: Continued Erosion", Law Institute Journal, vol. 57 (1983), p. 832; Nyman "Search Warrants and Legal Professional Privilege", Law Society Journal, vol. 18 (1980), p. 423; Gurfein "The Assault on the Citadel of Privilege Proceeds Apace: The Unreasonableness of Law Office Searches", Fordham Law Review, vol. 49 (1981), p. 708). (at p90)
16. Parties should be able to prepare for litigation without that preparation being subject to search and seizure. This protection should apply not only to client-lawyer communications, but also to preparation by a litigant in person, and to communications between the litigant and others. In so far as client's legal privilege extends to material which was created for legal advice unassociated with pending or anticipated litigation, there is some force in the argument that legal advice should not be elevated above other professional evidence, such as medical or financial advice. However, in Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 the privilege was held to extend to communications for advice and the question whether it should so extend has not been agitated in the present case. Further the privilege is necessary so that persons may confidently seek and receive advice about conduct which has, or may have, constituted crime, fraud or a civil offence. (at p90)
17. If the privilege does not avail outside the courts why should it continue to be available in the courts? Courts would have less access than non-judicial authorities to that which can expose the truth; thus lowering the authority of judicial findings and decisions in contrast with those of non-judicial bodies. The long term tendency would be for law enforcement authorities to press for extra-judicial methods of investigation and decision-making. Further, search and seizure is really a pre-trial investigative process closely connected with judicial proceedings. (at p90)
18. The Crimes Act, s. 10 should be interpreted so that it applies uniformly despite any differences in the various State laws which have arisen by statutory modification of the common law. The appropriate common law rule is one that attaches legal privilege to the statutory powers of search and seizure so as to protect those documents or other material created solely and innocently for the purpose of legal advice or for use in existing or anticipated litigation. Contrary to what was held in O'Reilly [1983] HCA 32; (1983) 152 CLR 1 the privilege should apply to any form of compulsory seizure or production of documents, unless Parliament unmistakably excludes or confines it. There is not the slightest indication that Parliament intended to do so. (at p90)
19. The question in the case stated "In the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm can those documents be properly made the subject of a search warrant issued under s. 10 of the Crimes Act?" should be answered, "No". (at p91)
WILSON J. This is a case stated in proceedings arising out of an attempt by
the defendant to execute a search warrant issued, pursuant
to s. 10(b) of the
Crimes Act 1914 (Cth), as amended, in respect of documents held by the
plaintiff's firm of solicitors and claimed to be the subject of legal
proffessional
privilege. The question which the case asks the Court to answer
is the following:
"In the event that legal professional privilege attaches to and is maintained
in respect of the documents held by the firm can those
documents be properly
made the subject of a search warrant issued under s. 10 of the Crimes Act?"
It will be noted that the question assumes the propriety of the claim to
privilege so far as concerns the character of at least some
of the documents
themselves. We are not concerned, therefore, with the question whether any and
if so which documents would in any
event not be privileged. It is solely the
threshold question of the relevance of legal professional privilege to the
execution of
a search warrant under s.10 of the Crimes Act that is in issue.
So far as is material to that question, s. 10 of the Crimes Act reads
as
follows:
"If a Justice of the Peace is satisfied by information on oath that there is
reasonable ground for suspecting that there is in
any house, vessel, or place
-
(a) anything with respect to which any offence against any law of the
Commonwealth or of a Territory has been, or is suspected on
reasonable grounds
to have been, committed;
(b) anything as to which there are reasonable grounds for believing that it
will afford evidence as to the commission of any such
offence; or
(c) . . .
he may grant a search warrant authorizing any constable named therein, with
such assistance as he thinks necessary, to enter at any
time any house,
vessel, or place named or described in the warrant, if necessary by force, and
to seize any such thing which he may
find in the house, vessel or place."
The search warrant in this case was granted in respect of documents falling
within par. (b). (at p91)
2. The plaintiff contends that the question should be answered, "No". His counsel, Mr. Bennett, is confronted at the outset by the recent decision of this Court in O'Reilly v. State Bank of Victoria Commissioners [1983] HCA 32; (1983) 152 CLR 1 . In that case, it was held by the majority (Gibbs C.J., Mason and Wilson JJ., Murphy J. dissenting), that legal professional privilege is relevant only to judicial or quasi-judicial proceedings. In consequence of this ruling, a solicitor to whom a notice had been given under s. 264 of the Income Tax Assessment Act 1936 (Cth), as amended, was held to be bound to produce documents to which the notice referred notwithstanding that in the context of judicial or quasi-judicial proceedings they may have been the subject of the privilege. (at p92)
3. By way of answer to O'Reilly, Mr. Bennett relies on three submissions, each independent of the others: (a) O'Reilly is distinguishable because of the use of the word "evidence" in s. 10(b) of the Crimes Act, which must be taken to mean "admissible evidence"; (b) O'Reilly is distinguishable because the issue of a search warrant is a judicial act unlike the ministerial act of the Commissioner of Taxation in that case; and (c) O'Reilly is wrong in so far as it held that legal professional privilege is confined in its operation to judicial and quasi-judicial proceedings. (at p92)
4. As to the first submission, it is plain that in using the term "admissible evidence" counsel intended merely to identify evidence which would in the ordinary course of events be available to the Court. Strictly speaking, legal professional privilege concerns only the compellability of a person to produce evidence to the Court; it has no bearing on the admissibility of evidence. In any event, the words "afford evidence" in s. 10(b) are used, in my opinion, in their ordinary sense of "make manifest" or "reveal". It cannot be supposed that by using the word "evidence" the legislature intended to inject into the process of executing a search warrant a whole range of hypothetical questiosn touching admissibility and compellability, questions which ordinarily can be determined only when the evidence is sought to be adduced. (at p92)
5. The second argument is also untenable because even though in issuing a search warrant a justice is obliged to act judicially (Reg. v. Tillett; Ex parte Newton (1969) 14 FLR 101 ), such a description merely describes the nature and quality of that particular act. Although the form in which the case stated asks the question may on one view be thought to focus attention on the issue of the warrant, it is when the warrant comes to be executed that the question of privilege, if it can be raised at all, becomes relevant because that is the time when the claim to privilege must be made. Clearly, no judicial or quasi-judicial proceedings are involved in the execution of the warrant: it is a purely ministerial act. (at p92)
6. The third submission, advanced by leave of the Court, invites reconsideration of the decision in O'Reilly. It is a submission which has given me cause for much anxious thought, in the course of which my opinion has fluctuated from one conclusion to another. In the end, I have arrived at the only result which affords me lasting satisfaction. That result is that in O'Reilly I took too narrow a view of the problem. In my reliance upon English authority, culminating in Parry-Jones v. Law Society (1969) 1 Ch 1 , I allowed the public interest which supports the privilege to be confined too closely to the context in which the relevant common law has evolved. Naturally enough, that context was supplied by judical and quasi-judicial proceedings. I therefore expressed the opinion that the privilege is available to be claimed only in such proceedings. In the present case, the arguments of counsel ranged over a wide field and embraced Canadian and American decisions which had not received attention in the earlier case. In addition, since the conclusion of the hearing, reports have come to hand of cases involving the further consideration of aspects of the problem by the Supreme Court of Canada (Descoteaux v. Mierzwinski (1982) 141 DLR (3d) 590 and the Court of Appeal of New Zealand (Reg. v. Uljee (1982) 1 NZLR 561 . The European Court of Justice has also undertaken recently a comprehensive review of the problem in the European context in A.M. & S. Europe Ltd. v. Commission of the European Communities (1983) QB 878 . All this has provided rich material for further reflection. (at p93)
7. It may be accepted that the basic reason why the law has come to respect professional confidences between lawyer and client is the belief that in so doing the client will be encouraged to be entirely open and candid in telling his story to the lawyer - to bare his breast to his lawyer, as Sir George Jessel M.R. said in Anderson v. Bank of British Columbia (1876) 2 Ch D 644, at p 649 . Conversely, the cloak of secrecy may encourage the lawyer to be completely frank in the expression of his advice. But confidentiality alone cannot supply the reason for the privilege. Originally it may have done so, in common with the protection which the law at that time afforded to other confidential relationships. In the sixteenth and seventeenth centuries the privilege was based in the duty of the solicitor to respect professional confidences. It was a matter of honour and consequently the privilege belonged to him rather than to the client: Wigmore on Evidence, McNaughton rev. (1961) vol. 8, par. 2290. However, in the eighteenth century the law moved decisively away from this approach, with the Duchess of Kingston's Case (1776) 20 State Tr 355 providing the turning point. The public interest, not merely the protection of confidentiality, became the reason for the rule. Thereafter, the only profession to have the privilege of non-disclosure was the legal profession. The historical evolution of the privilege is described by Lord Simon of Glaisdale in D. v. National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1978) AC 171, at pp 237-239 . (at p94)
8. The public interest which led the common law to favour the relationship
between solicitor and client over other confidential
relationships was the
recognition that the involvement of representatives skilled in the law who had
been fully instructed was indispensable
to the proper functioning of the legal
system, the law "being a complex and complicated discipline": Grant v. Downs
[1976] HCA 63; (1976) 135 CLR
674, at p 685 . The breadth of that interest found expression
in many of the cases in the last century. In Russell
v. Jackson [1851] EngR 955; (1851)
9 Hare
387, at p 391 [1851] EngR 955; (68 ER 558, at pp 559-560) Turner V.C. said:
"It is evident that the rule which protects from disclosure confidential
communications between solicitor and client does not rest
simply upon the
confidence reposed by the client in the solicitor . . . but upon the necessity
of carrying it out. Lord Brougham
in Greenough v. Gaskell [1833] EngR 333; (1833) 1 My & K 98
(39 ER 618) gives, I think, the true foundation of it."
The well-known statement of Lord Brougham referring to "the interests of
justice, which cannot be upholden, and to the administration
of justice, which
cannot go on, without the aid of men skilled in jurisprudence" (1833) 1 My &
K, at p 103 (39 ER 621) is then
cited.
The Vice-Chancellor's remarks were
approved by the Court of Crown Cases Reserved in Reg. v. Cox and Railton
(1884) 14 QBD
153 . (at
p94)
9. In earlier times, of course, it has been the demands of the adversary system which enlivened the principle and nourished the notion that the privilege was a rule of evidence confined to judicial and quasi-judicial proceedings. However, I do not now think that the conception can be so limited. In Bullivant v. Attorney-General (Vict.) (1901) AC 196, at pp 200-201 , the Earl of Halsbury L.C. declared "the perfect administration of justice" as an object of the public policy underlying the privilege. The perfect administration of justice is not confined to legal proceedings. The object and indeed the result of consulting a solicitor will often be the settlement of a dispute which otherwise may have had to be fought out in court. The fostering of a professional relationship which obviates recourse to litigation is very much in the public interest. Cf. D. v. National Society for the Prevention of Cruelty to Children (1978) AC, at pp 231-232 ; Waugh v. British Railways Board [1979] UKHL 2; (1980) AC 521, at pp 531, 535-537 . (at p95)
10. Furthermore, the extension of the privilege more than a century ago (as described by Lord Selborne L.C. in Minet v. Morgan (1873) LR 8 Ch App 361, at p 366 ) beyond communications between the client and his professional adviser in relation to pending or anticipated litigation to embrace any communications undertaken with the object of seeking or giving legal advice serves, in my opinion, to emphasize that the public interest involved extends beyond legal proceedings. In fostering the confidential relationship in which legal advice is given and received the common law is serving the ends of justice because it is facilitating the orderly arrangement of the client's affairs as a member of the community. Furthermore, in promoting the faithful discharge of his responsibilities and the enjoyment of his rights under the law the ends of justice are being served. It is in the public interest to encourage the service of such ends. (at p95)
11. The multiplicity and complexity of the demands which the modern state makes upon its citizens underlines the continued relevance of the privilege to the public interest. The adequate protection according to law of the privacy and liberty of the individual is an essential mark of a free society and unless abrogated or abridged by statute the common law privilege attaching to the relationship of solicitor and client is an important element in that protection. (at p95)
12. It is not only a matter of protection of the client. The freedom to consult one's legal adviser in the knowledge that confidential communications will be safeguarded will often make its own contribution to the general level of respect for and observance of the law within the community: see an article by Charles A. Miller, "The Challenges to the Attorney-Client Privilege", Virginia Law Review, vol. 49 (1963), p. 262. (at p95)
13. Finally, I have been burdened by the consideration that to deny the relevance of a valid claim to legal professional privilege in the face of a search warrant would effectively deny the availability of the privilege in any prosecution that followed. The same is probably true in the case of other forms of legislation which provide statutory authority to extra-judicial measures requiring compulsory disclosure. The very existence of the privilege as providing any significant protection and thereby making its contribution to the public welfare must be threatened unless as a matter of principle the protection extends to all forms of compulsory disclosure: cf. the words of Thurlow J. quoted below. (at p96)
14. It must be recognized that competing public interest may be involved. New forms of criminal activity pose a clear threat to the public welfare and may call for new measures of criminal investigation and law enforcement. The dictates of good administration of complex social and commercial legislation may require increasing resort to compulsory procedures. But it is for the legislature, not the courts, to curtail the operation of common law principles designed to serve the public interest. In any event, the limited range of communications to which the privilege extends will of itself ensure that the area of possible conflict is strictly confined. (at p96)
15. For these reasons I now respectfully accept as correct the statement of
Jackett C.J., with whom the other members of the Federal
Court of Appeal
agreed, in Re Director of Investigation and Research and Shell Canada Ltd.
(1975) 55 DLR (3d) 713, at p 722 . After
referring to the privilege afforded
to the client against the compulsory revelation of communications between
solicitor and client
in the giving of evidence in court or in the judicial
process of discovery, his Honour continued:
"In my view, however, this privilege is a mere manifestation of a fundamental
principle upon which our judicial system is based,
which principle would be
breached just as clearly, and with equal injury to our judicial system, by the
compulsory form of preprosecution
discovery envisaged by the Combines
Investigation Act as it would be by evidence in Court or by judicial
discovery."
I also agree, with respect, with the statement by Thurlow J. in the same case,
as follows (1975) 55 DLR (3d), at p 723 :
"Secondly, it appears to me that the confidential character of such
communications, whether oral or in writing, comes into existence
at the time
when the communications are made. As the right to protection for the
confidence, commonly referred to as legal professional
privilege, is not
dependent on their" (sic) "being litigation in progress or even in
contemplation at the time the communications
take place, it seems to me that
the right to have the communications protected must also arise at that time
and be capable of being
asserted on any later occasion when the confidence may
be in jeopardy at the hands of anyone purporting to exercise the authority
of
the law." (at p96)
16. It is now necessary to decide whether resort to the privilege has been
abrogated by s. 10(b) of the Crimes Act. The principle
is clear. A statute
will not be construed to take away a common law right unless a legislative
intent to do so clearly
emerges whether
by express words or necessary
implication: Sorby v. The Commonwealth [1983] HCA 10; (1983) 152 CLR 281, at pp 309-310 , and
the
authorities there
cited. Here we have a perfectly general law empowering a
justice of
the peace to authorize the entry of premises
named in the warrant
and the seizure of things described in the warrant, being things
relating to
the commission of offences against
laws of the Commonwealth
or of a Territory.
In R. v. Bishop of Salisbury (1901) 1
KB 573, at p 579 , Channell J. said:
"A general Act must not be read as repealing the common law relating to a
special and particular matter unless there is something
in the general Act to
indicate an intention to deal with that special and particular matter."
I do not think there can be any doubt about the matter. The statute does not
evince any intention to oust the privilege. Indeed,
I do not think that a
contrary view was advanced by counsel for the defendant. The whole thrust of
the argument was directed to a
determination of the scope of the privilege at
common law. (at p97)
17. It is asserted that a claim of privilege in circumstances where the proceedings in respect of which it is made have not begun immediately raises procedural difficulties if the claim is contested. There is no judge already seized of jurisdiction in the matter to determine the disputed claim. The interests of all parties must be protected pending a determination of the dispute. In my experience the procedural difficulties can be overcome consistently with that objective if the members respectively of the police force and the legal profession co-operate in a reasonable and responsible way. I do not think that it is necessary for the purposes of the stated case to explore the problem. (at p97)
18. It remains to say two things. The first is that I have refrained from a detailed discussion of the recent decisions in Canada, New Zealand and elsewhere in the interests of brevity and because they are sufficiently canvassed in the judgments of my brethren. The second is to acknowledge my indebtedness to, and concurrence with, the reasons for judgment prepared by my brother Dawson. (at p97)
19. I would answer the question in the stated case in the negative. (at p97)
BRENNAN J. A case stated by Wilson J. asks whether documents to which legal
professional privilege attaches can properly be made
the subject of a search
warrant issued under s. 10 of the Crimes Act 1914 (Cth). The warrant annexed
to the case was purportedly issued under s. 10(b) of that Act, and the
question which the case asks may
be answered by reference to s. 10(b) alone.
The section provides:
"If a Justice of the Peace is satisfied by information on oath that there is
reasonable ground for suspecting that there is in any
house, vessel, or place
-
(a) anything with respect to which an offence against any law of the
Commonwealth or of a Territory has been, or is suspected on
reasonable grounds
to have been, committed;
(b) anything as to which there are reasonable grounds for believing that it
will afford evidence as to the commission of any such
offence; or
(c) anything as to which there is reasonable ground for believing that it is
intended to be used for the purpose of committing any
such offence,
he may grant a search warrant authorizing any constable named therein, with
such assistance as he thinks necessary, to enter at any
time any house,
vessel, or place named or described in the warrant, if necessary by force, and
to seize any such thing which he may
find in the house, vessel, or place." (at
p98)
2. In O'Reilly v. State Bank of Victoria Commissioners [1983] HCA 32; (1983) 152 CLR 1 it
was held by the majority (Gibbs C.J.,
Mason and Wilson
JJ.), Murphy J.
dissenting, that legal professional privilege
does not qualify the obligation
of a solicitor to
whom a notice is
given under s. 264 of the Income Tax
Assessment Act 1936 (Cth) to produce documents falling within the terms of the
notice. Mason J., referring to factors indicating the scope of the privilege,
said [1983] HCA 32; (1983) 152 CLR 1 :
"To me these factors indicate that the privilege should be limited to judicial
and quasi-judicial proceedings. The fact that Grant
(i.e. Grant v. Downs
[1976] HCA 63; (1976) 135 CLR 674 ) has narrowed the ambit of legal professional privilege in
judicial proceedings
is not a
persuasive reason for
giving the privilege an
application outside the field of judicial and quasi-judicial proceedings."
And Wilson J. (1983) 152 CLR1 expressed the opinion that "the privilege is
available to be claimed only in judicial or quasi-judicial
proceedings". The
Chief Justice (1983) 152 CLR1 concurred with their Honours on this aspect of
the case. Accordingly it was held
that the privilege, having no operation
except in judicial and quasi-judicial proceedings, created no exemption from
the statutory
obligation imposed by s. 264. (at p98)
3. Unless there is some ground of distinction between the effect and operation of a notice issued under the provision there under consideration and the effect and operation of a search warrant issued under s. 10(b) of the Crimes Act, O'Reilly requires that an affirmative answer be given to the question asked in the case stated. The suggested grounds of distinction are twofold. First, it is submitted that the operation of a search warrant under s. 10 of the Crimes Act, unlike the operation of a s. 264 notice, is not outside the field of judicial or quasi-judicial proceedings. The issue of a search warrant under this section is said to be a judicial act, as Fox J. held in Reg. v. Tillett; Ex parte Newton (1969) 14 FLR 101 and as the Supreme Court of Canada held in relation to a similar statutory provision (Attorney-General(Nova Scotia) v. MacIntyre (1982) 132 DLR (3d) 385 ). Let it be accepted for present purposes that the function of issuing a search warrant is judicial. We are not here concerned with the effect of professional privilege upon the performance of that function. The question asked in the case does not relate to the production or admission of evidence on the application for a warrant. The question is whether a justice of the peace, by issuing his warrant, can authorize a search for and seizure of privileged documents, that is to say, documents for which legal professional privilege might be claimed in judicial or quasi-judicial proceedings other than the application for the warrant. The categories of documents which might be the subject of a search warrant do not depend upon the character of the function performed by the issuing justice or the procedure which he must follow in exercising his power, but upon the scope of the power reposed in him by the statute. If there be a difference between the character of a proceeding which leads to the issue of a s. 264 notice and the character of a proceeding which leads to the issue of a search warrant, the difference is immaterial to the categories of documents which might be the subject of either of those instruments. Unless s. 10(b) expressly or by implication limits the justice's power so that he may not issue a warrant to search for or seize privileged documents "that . . . will afford evidence as to the commission of any such offence", his power extends to the issuing of a warrant authorizing search for and seizure of all such documents. There is no term of the warrant annexed to the case stated which would exclude privileged documents from search and seizure; nor does the statute expressly exclude such documents from the categories of documents which may be made the subject of a search warrant. (at p99)
4. However, the search for and seizure of documents in execution of a warrant issued under s. 10(b) is or may be a step in the assembly of evidence intended for use in a prosecution for an offence. It may be argued that the power to issue a search warrant is analogous to the power to order discovery in judicial proceedings and that is exercise is qualified by the privilege in the same way as the power to order discovery is qualified by the privilege. But the analogy is false. A search warrant is not a form of discovery: it is a creature of statute, without antecedents in equity or (except in respect of stolen goods) in common law. Though documents seized under a search warrant issued under s. 10(b) may be tendered in evidence in subsequent proceedings, neither the issue nor the execution of a search warrant is in any sense a step in or incidental to those proceedings. Indeed, the things obtained by executing a warrant may determine whether or not a prosecution should be commenced. (at p100)
5. The second suggested ground of distinction depends upon the meaning of the phrase "will afford evidence" in s. 10(b). That phrase does not appear in s. 264 of the Income Tax Assessment Act. It is submitted that "evidence" must be taken to mean "admissible evidence" and that, as a client cannot be compelled and a legal adviser will not be allowed without his client's consent to produce privileged documents in a judicial proceeding, and as such documents produced in breach of the privilege are not admissible in evidence, privileged documents are incapable of affording evidence and thus fall outside the ambit of a search warrant. By reference to what judicial proceeding is the question of admissibility for the purposes of s. 10(b) to be determined? Not by reference to the proceeding for the issue of the warrant, for that proceeding is complete on the issue of the warrant before any documents are searched for or seized. Admissibility must be referable to proceedings in which "the commission of any such offence" is in issue; only in such a proceeding is it possible to identify the issues to which the thing seized may be relevant and may therefore afford evidence "as to" the commission of the offence. It is arguable that, as privileged documents cannot afford admissible evidence in proof of the commission of "any such offence" at the time when a warrant is issued, they fall outside the ambit of s. 10(b). (at p100)
6. There is a strand of reasoning which supports this submission running through recent Canadian cases dealing with search warrants issued under s. 443(1)(b) of the Canadian Criminal Code 1953, a provision in terms similar to s. 10(b) of the Crimes Act. In Re Borden and Elliott and The Queen (1975) 70 DLR (3d) 579, at p 584 Southey J. referred to the Canadian statutory requirement that the justice issuing the warrant must have reasonable ground to believe that anything to be seized under the warrant will afford evidence with respect to the commission of an offence and upheld a submission that "As documents covered by the solicitor-and-client privilege would not be admissible at trial, the justice could not believe that such documents would afford evidence of the offence". A similar opinion was expressed in Re Steel and The Queen (1974) 21 CCC (2d) 278 ; Re B.X. Development Inc. and The Queen (1976) 70 DLR (3d) 366 ; Re B. and The Queen (1977) 36 CCC(2d) 235 . Of course, so long as a privileged document remains in the hands of a client or his solicitor, a claim of privilege denies it a capacity to afford evidence. And so the view of Southey J. is supportable if the hypothesis is adopted of a trial which takes place prior to seizure of the relevant document under a warrant: upon that hypothesis, the solicitor or his client still has custody of the document and production of the document could not be compelled out of the hands of the solicitor or his client. The document would not be available to be tendered except on behalf of the client or upon his waiver of the privilege. But if the hypothesis is adopted of a trial which takes place after the document is seized under the warrant, so that the document may be produced at a trial by the person then having custody of it, the privilege is ineffectual to preclude its admission in evidence. (at p101)
7. Legal professional privilege precludes the making of a judicial order to
compel the production of a privileged document in the
hands of the solicitor
or client, and it also precludes the admission of the document in evidence
when it is produced by the solicitor
without the client's consent in breach of
the confidentiality of the client's communications with him (Wilson v. Rastall
[1792] EngR 3089; (1792) 4
TR 753, at p 759 [1792] EngR 3089; (100 ER 1283, at p 1286) ; Sandford v. Remington
(1793) 2 VesJun189(30 ER 587) . But once the document (or a copy
of the
document) is in the hands of and is tendered by the opposing party, the tender
will not necessarily be rejected on the ground
that the document is
privileged. Ormrod L.J. in Tompkins (1977) 67 CrAppR181, at p 184 , speaking
for the Court, said:
"Privilege, in this context, relates only to production of a document; it
does not determine its admissibility in evidence. The
note, though clearly
privileged from production, was admissible in evidence once it was in the
possession of the prosecution: Butler
v. Board of Trade (1971) Ch680 ." (at
p101)
8. If the privilege which protects a document from production prior to its
seizure under a warrant does not exclude its admission
in evidence at a
subsequent trial when it is tendered by the prosecution, privilege furnishes
no reason for excluding such documents
from the ambit of a search warrant
under s. 10(b). It follows that, in order to adopt the Canadian view, it is
necessary to postulate
a trial while the document is still in the hands of the
solicitor or client; only at that time is the document incapable of affording
evidence. And so Dickson J. in Solosky v. The Queen (1979) 105 DLR (3d) 745,
at p 758 , thought that the Canadian cases "can be rationalized
as merely
shifting the time at which the privilege can be asserted", the time being no
later than the seizure of the document under
the warrant.-However, I am unable
to construe s. 10(b) as fixing a time no later than the seizure of the
document as the relevant
time for determining admissibility of the thing to be
seized. The provision refers to grounds for believing (and the belief must
be
held by both the issuing justice and the constable executing the warrant) that
the thing to be seized will afford evidence, not
that it does afford evidence,
as to the commission of an offence. The thing to be seized in execution of a
warrant is a thing in
respect of which the relevant belief is held. One of the
purposes of s. 10(b) is to authorize the search for and seizure of a thing
which can become evidence as to the commission of an offence when it is
tendered at a trial occurring after execution of the warrant,
and the belief
that the thing seized will afford evidence is to be held in reference to such
a trial. Though I respectfully acknowledge
that the reasons advanced in the
Canadian cases have a certain attraction. I am unable to accept them as
governing the construction
of s. 10(b). It will be necessary presently to
consider whether any rule of evidence renders a privileged document
inadmissible when
produced after seizure under a warrant, but for the moment
it is sufficient to note that the phrase "will afford evidence" does not
exclude from the scope of a search warrant all documents which, prior to
seizure, would be inadmissible because of legal professional
privilege. (at
p102)
9. The plaintiff then grasps the nettle of O'Reilly (1983) 152 CLR1 and seeks a reconsideration of that case. This Court has not regarded itself as bound by its previous decisions, but it would be wrong to depart from an earlier decision, albeit a majority decision, merely on the ground that a different conclusion now commends itself to a majority of the Court. I respectfully adopt what Lord Wilberforce said in Fitzleet Estates v. Cherry (1977) 1 WLR 1345, at p 1349; (1977) 3 ALL ER 996, at p 998 in reference to a departure by the House of Lords from a previous decision: " . . . doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it." This approach was recently confirmed by their Lordships: see Paal Wilson & Co. v. Partenreedere (1983) AC 854, at p 912 . To regard the judgments of this Court as open to reconsideration whenever a new argument is found more attractive than the principle expressed in a standing decision is to overlook the function which a final court of appeal must perform in defining the law. In difficult areas of the law, differences of legal opinion are inevitable; before a final court of appeal, the choice between competing legal solutions oftentimes turns on the emphasis or weight given by each of the judges to one factor against a countervailing factor, as the judgments in the present case illustrate. In such cases, the decision itself determines which solution is, for the purposes of the current law, correct. It is not to the point to argue in the next case that, leaving the particular decision out of account, another solution is better supported by legal theory. Such an approach would diminish the authority and finality of the judgments of this Court. As the function of defining the law is vested in the Court rather than in the justices who compose it, a decision of the Court will be followed in subsequent cases by the Court, however composed, subject to the exceptional power which resides in the Court to permit reconsideration. (at p103)
10. A party who seeks reconsideration of one of this Court's decisions, particularly a decision recently given, has a heavy burden to discharge. It is not possible to identify in advance the circumstances in which it is proper to depart from an earlier decision, though it can be said that departure is an exception to be allowed only with great caution and in clear cases (Perpetual Executors and Trustees Association of Australia Ltd. v. Federal Commissioner of Taxation (Thomas' Case) [1949] HCA 4; (1949) 77 CLR 493, at p496 . Even in constitutional cases the Court does not readily depart from precedent: see Queensland v. The Commonwealth [1977] HCA 60; [1977] HCA 60; (1977) 139 CLR 585, at pp 602-603, 620-630 and The Commonwealth v. Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49 . Nevertheless, where a broad issue of great importance is involved and the issue has not been considered by a Court composed of all justices, reconsideration of an earlier decision may be warranted (cf. Reg. v. National Insurance Commissioner; Ex parte Hudson (1972) AC 944, at p 966 ). When the opinion of two or three members of the Court prevails as a majority opinion in a particular case, the authority of the decision is no less than the authority of a decision by a full bench of the Court, but the Court may, in its own discretion, give leave to re-argue the issue by a bench of all justices available to sit. The justices then sitting are free to reconsider the earlier decision in order that the whole Court may settle the current law. That procedure was followed in the present case and I turn to the arguments without any constraint arising from the majority opinion in O'Reilly. (at p104)
11. It is submitted that policy considerations favour the application of legal professional privilege to search warrants and to other statutory powers of seizure in the absence of express provision to the contrary, and that O'Reilly wrongly restricts the application of the privilege to the field of judicial and quasi-judicial proceedings. In my opinion, that submission mistakes the true approach to be followed in statutory interpretation. One must look first to the words which Parliament has used and ascertain whether the scope or operation of a fundamental principle would be affected by construing Parliament's words in their natural sense and in their context. If the scope or operation of a fundamental principle would be affected, it is right to consider a presumption (though the strength of the presumption is variable) that the Parliament intended to give effect to the fundamental principle and did not intend the words of the statute to be given their natural or widest meaning: see the cases to which I referred in Sorby v. The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 . (at p104)
12. When the presumption applies, the courts read down the general words used by Parliament to give effect to the applicable legal principle, not to give effect to the policy which underlies the principle, however cherished or important the policy may be. The reciprocal functions of legislation by Parliament and interpretation by the courts could hardly be separated if the courts were to modify the natural meaning of what Parliament has said in order to give effect to what the courts thought to be desirable policy or thought to be the policy underlying the development of legal principles in earlier times. Of course, if Parliament uses terms of uncertain connotation, Parliament reposes in the courts the function of choosing which meaning is to be preferred among the various meanings which the term reasonably bears; but where general terms are used, the courts have no mandate to narrow the natural meaning of those terms unless the rules of statutory interpretation so require. Those rules, sometimes stigmatized as harsh or unresponsive to change, are part of the language of communication between the Parliament elected by the people and the unelected courts; they deny to the judiciary the capacity to frustrate the will of Parliament as Parliament chooses to express it; they leave the responsibility for major modification of the law with the Parliament, for that is where that responsibility must chiefly rest in a democracy. The areas of judicial creativity are nowadays recognized, but those areas are confined by the binding rules of statutory interpretation. The relevant rule requires a presumption that Parliament does not intend to exclude the operation of a fundamental principle of law unless it says so, but that rule neither requires nor authorizes the court to ascertain and apply a policy. (at p105)
13. The occasion for applying the presumption is when the scope or operation of a fundamental common law principle would be cut down by attributing to the general terms of a statute their natural meaning; there is no occasion for applying the presumption to qualify the general terms of a statute creating a power unless an analogous common law power is so qualified. There is no power of search and seizure of the kind for which s. 10 provides at common law or in equity. There was no occasion for the common law to develop a principle affecting powers of search and seizure. The rules of legal professional privilege had no application to powers of search and seizure. The statute created the powers of search and seizure, and it did so without any presently relevant qualification. There is no rule of statutory interpretation which permits the reading down of the words of s. 10(b) by reference to the privilege applicable in judicial proceedings. (at p105)
14. If the privileges which affect the obligation to testify or to produce documents in judicial proceedings are to be engrafted upon and to modify powers conferred on investigative agencies, some procedure for determining the validity of a claim of privilege has to be devised. The European Court of Justice prescribed such a procedure in A.M. & S. Europe Ltd. v. Commission of the European Communities (1983) QB 878, at pp 951-952 , utilizing for the purpose the Commission's power to impose fines. But it is quite beyond the power of an Australian court to prescribe such procedures. If the power of search and seizure conferred by a s. 10(b) warrant does not extend to privileged documents, there is no judicial procedure prescribed to resolve contested claims. Declaratory relief or prosecution seem to be the only avenues of judicial resolution. (at p105)
15. The Court's primary function in the present case is not to mould a common law rule of evidence, but to construe a statute which confers an investigative power. The courts, when moulding the rule of legal professional privilege, considered that the administration of justice by the courts would be enhanced and the public interest would be advanced by according privilege to certain communications between a client and his legal advisers: see Greenough v. Gaskell [1833] EngR 333; (1833) 1 My & K 98 (39 ER 618) . The privilege trenched upon the principle that all relevant evidence be available to resolve the issues for decision in litigation, a principle which also serves the public interest. The courts resolved the priority between these competing public interests by giving paramountcy to the privilege (Grant v. Downs (1976) 135 CLR, at p 685 ). But it is not open to the courts to decide whether the public interest served by the privilege should be given paramountcy over the public interest served by exercise of a statutory power to search for and seize things that are reasonably believed to afford evidence of an offence. The priority between those competing public interests was for the legislature, not for the courts, to determine and there is no indication in s. 10 that the legislature intended the interest served by the privilege to prevail. Paramountcy cannot be given to the privilege by judicial determination. If the generality of the power conferred by s. 10(b) is to be limited in order to protect the confidentiality of the relationship between client and solicitor, the limit must be imposed by the legislature. (at p106)
16. It was submitted that reconsideration of O'Reilly is warranted in order
to take account of the enlargement of the scope of legal
professional
privilege in the Canadian decisions cited above. In Canada, the privilege has
been held to modify the operation of statutes
conferring investigative powers;
it has not been confined to judicial and quasi-judicial proceedings. Dickson
J. in Solosky (1979)
105 DLR (3d), at p 757 , observed:
"Recent case law has taken the traditional doctrine of privilege and placed it
on a new plane. Privilege is no longer regarded merely
as a rule of evidence
which acts as a shield to prevent privileged materials from being tendered in
evidence in a courtroom. The
Courts, unwilling to so restrict the concept,
have extended its application well beyond those limits . . . ."
Recently the Supreme Court of Canada has reaffirmed in powerful terms its
opinion that the rule in Canada has been judicially expanded
from its original
common law scope as a rule of evidence to a substantive rule which gives
effect to a fundamental civil and legal
right to communicate in confidence
with one's legal adviser: Descoteaux v. Mierzwinski (1982) 141 DLR (3d) 590 .
Although the Canadian
cases were not referred to in O'Reilly, this Court
considered the issues of policy raised in those cases and resolved against
enlarging
the common law scope of the privilege. A divergence of opinion
between this Court and the courts of another country is not a sufficient
ground by itself for inviting this Court to reconsider a judgment which
addresses and determines the precise question that other
courts have answered
differently. Moreover, when the Commonwealth Parliament enacted s. 10 of the
Crimes Act, it can hardly be taken
to have intended that that section would be
read subject to the Canadian doctrine of privilege, now newly
restated. There
is no warrant
for expanding the common law scope of the privilege in this
country in order to provide a foundation
for reading down statutes conferring
powers of a kind not previously qualified by the privilege. No grounds for
departing from the
judgment in O'Reilly can be found in
the Canadian cases;
nor in cases from Australia, England and New Zealand that were expressly
mentioned in O'Reilly. (at p107)
17. Adherence to O'Reilly leads inevitably, in my opinion, to an affirmative answer to the question asked in the stated case subject to two important exceptions. These exceptions depend upon the phrase "will afford evidence". As s. 10(b) authorizes the issue of a warrant to search for and to seize things as to which there are reasonable grounds for believing that they will afford evidence as to the commission of an offence, a warrant cannot authorize a search for and seizure of documents which, even if they be produced by and out of the custody of the prosecution, would not be admissible in evidence. A solicitor's file of privileged documents will frequently contain two classes of documents which will not afford evidence as to the commission of an offence and which are therefore not liable to search and seizure under a s. 10(b) warrant. The first class comprises mere expressions of legal opinion, of the kind properly given by barristers and solicitors when advising a client professionally. In the generality of cases, such opinions would not afford evidence of the facts upon which the opinions are based. Their content would not ordinarily be probative of an issue in a prosecution (cf. Varawa v. Howard Smith & Co. Ltd. [1910] HCA 11; (1910) 10 CLR 382, at p 385 ). Accordingly they would not ordinarily be subject to search and seizure under a s. 10(b) warrant. Should it appear that a legal opinion was a communication between solicitor and client in furtherance of crime or fraud, and not an opinion given in the ordinary course of professional practice, the opinion might afford evidence of the commission of that crime or fraud or of a conspiracy or attempt to commit it. In that event, of course, the opinion would be subject to search and seizure; it would also be outside the scope of legal professional privilege (Reg. v. Cox and Railton (1884) 14 QBD 153 ; Crescent Farm Sports v. Sterling Offices (1972) Ch 553 ); Day v. Dalton (1981) WAR 316 ). It is unnecessary to consider in this case what has to be shown before legal protection of a confidential communication between solicitor and client is lost, for the question asked by the stated case relates only to documents to which legal professional privilege attaches. (at p108)
18. The second class of privileged documents which will not be permitted to
afford evidence as to the commission of an offence comprises
documents that
are brought into existence by or on behalf of a party to litigation for the
sole purpose of use in litigation, whether
present or reasonably anticipated
(Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 ). The legal professional privilege
attaching
to such documents
ordinarily ensures that they are not tendered
in
evidence. The purpose of the privilege is the facilitation of
access to legal
advice,
the inducement to candour in statements
prepared for the purposes of
litigation, and the maintenance of the
curial procedure for
the determination
of justiciable controversies
- the procedure of adversary litigation (see
Grant v. Downs (1976)
135 CLR, at p 685
; Waugh v. British Railways Board [1979] UKHL 2;
(1980) AC 521, at p 531 ). If the prosecution, authorized to
search for
privileged documents, were
able to open up the accused's
brief while its own
stayed tightly tied, a fair trial could hardly
be obtained; in a criminal
trial,
to give the prosecution such
a right would virtually eliminate the
right to silence. It would deprive
an accused of such right to
an acquittal as
he has by reason
of a weakness in the Crown case which could be, but must not
be, remedied
by disclosure of the accused's
instructions to his legal
advisers: see Tuckiar v. The King [1934] HCA 49; (1934) 52 CLR 335, at
p 346 . Lord Simon in
Waugh v. British Railways
Board (1980) AC, at p 537 made the point:
"But the exception which most nearly touches the issue facing your Lordships
was cogently invoked in this very connection by James
L.J. in Anderson v. Bank
of British Columbia (1876) 2 Ch D 644, at p 656 : '. . . as you have no right
to see your adversary's brief,
you have no right to see that which comes into
existence merely as the materials for the brief.' The adversary's brief will
contain
much relevant material; nevertheless, you cannot see it because that
would be inconsistent with the adversary forensic process based
on legal
representation." (at p108)
19. Even if the prosecution were authorized to gain custody of documents
which had come into existence "merely as the materials
for the brief", a court
before which such documents might be tendered in evidence would be bound to
reject them lest its own adversary
procedures be subverted. Although the
confidential relationship of solicitor and client is not immune from being
prised open by the
execution of a warrant under s. 10(b), it does not follow
that all the evidentiary pearls which might be discovered can be added
to the
string which the prosecution is permitted to tender in evidence. Section 10(b)
can be accorded its proper operation without
affecting the operation of the
evidentiary rules by which adversary litigation is conducted. A court is
bound, especially in its
criminal jurisdiction, to reject evidence if its
admission would damage the public interest. It would be damaging to the public
interest
to admit in evidence a document that has been brought into existence
solely for use in litigation that is pending, intended or reasonably
apprehended, or a copy of such a document unless the consent of the person
entitled to the privilege is given to the tender. The
tender of such a
document in evidence should be rejected not so much because it affects the
interests of the person entitled to the
privilege, but because it subverts the
court's procedure for conducting adversary litigation. Usually it is a matter
for the court's
discretion whether it will reject relevant evidence on the
ground that its admission would damage the public interest. Accordingly,
the
court weights in favour of admission the desirability in the public interest
of ensuring that the court has access to all relevant
evidence (Sankey v.
Whitlam (1978) 142 CLR 1 ) and of bringing the wrongdoer to conviction
(Bunning v. Cross [1978]
HCA 22; (1978) 141 CLR 54, at
p 74 ) against other considerations
tending to the exclusion of the evidence. But there is no consideration
favouring the admission
of evidence if its admission subverts the court's
procedure for conducting adversary litigation. Ordinarily,
the admission of
evidence
serves the public interest by enhancing the court's capacity for
determining the controversy before it.
Where that capacity is impaired
by the
admission of evidence, there is no public interest favouring its admission. It
follows that
documents which come into existence
"merely as the materials for
the brief" are not admissible in evidence and they are exempt from
search and
seizure under a s. 10(b)
warrant. (at p109)
20. This conclusion is inconsistent with the decision of Lindley M.R. in Calcraft v. Guest (1898) 1 QB 759 , where his Lordship with the concurrence of Rigby and Vaughan Williams L.JJ. held that a copy of a relevant document is admissible although the original stays in the hands of a solicitor and is privileged in his hands and a copy of the document is tendered in evidence by another who has obtained possession of it by some means, either legal or illegal. The authority of that decision has not remained unimpaired in England (see I.T.C. Ltd. v. Video Exchange Ltd. (1982) Ch 431, at pp 440-441 ) or in New Zealand (Reg. v. Uljee (1982) 1 NZLR 561, at pp 566-567, 572-574 ) despite the Privy Council's favourable reference to that case in Kuruma v. The Queen (1955) AC 197, at p 204 . In my opinion, Calcraft v. Guest should not be followed in this country so far as it requires the admission of a document or of a copy of a document which is privileged because it has come into existence "merely as the materials for the brief". It is unnecessary to consider, in the context of a valid s. 10(b) warrant, whether Calcraft v. Guest would require a court to ignore any illegality in the means by which a document tendered in evidence has been obtained. If that question were to arise, it would be necessary to consider the judgments of this Court in Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1 and Bunning v. Cross [1978] HCA 22; [1978] HCA 22; (1978) 141 CLR 54 . (at p110)
21. It is also unnecessary to consider the circumstances in which the court's power may be exercised to restrain by injunction the use of documents obtained in breach of confidence: see Ashburton (Lord) v. Pape (1913) 2 Ch 469 ; Butler v. Board of Trade (1971) Ch 680 . That power could not be exercised to restrain the use in evidence of documents seized under a warrant if s. 10(b), upon its true construction, authorized their seizure. (at p110)
22. I would answer the question raised by the stated case: "Yes", except in respect of documents - (a) which are merely expressions of legal opinion; or (b) to which legal professional privilege attaches by reason of their having been brought into existence solely for use in litigation that is pending, intended or reasonably apprehended. (at p110)
DEANE J. Mr. Robert O'Connor is a partner in a Perth firm of barristers and solicitors ("the firm"). His professional clients include the plaintiff who retained him to act as a solicitor to advise in relation to certain aspects of a scheme to minimize liability to tax under the Sales Tax Assessment Acts 1930 (Cth). The firm holds a number of documents on the plaintiff's behalf. Those documents ("the documents") were brought into existence for the purpose of obtaining or giving legal advice to the plaintiff otherwise than in relation to then existing or contemplated civil or criminal proceedings. They include opinions prepared for the tendering of advice to the plaintiff by Mr. O'Connor and by Victorian senior counsel. The stated case records that the firm "holds no documents relating to any particular transaction entered into". (at p110)
2. On 7 July 1982, the defendant, who is a member of the Federal Police,
attempted to seize the documents from the firm. In so doing,
he relied upon
the terms of a "search warrant" issued in Perth over the hand of a stipendiary
magistrate purportedly pursuant to
s. 10 of the Crimes Act 1914 (Cth) ("the
Act"). That warrant states that the magistrate, who was a justice of the peace
for the purposes of s. 10, was satisfied
by information
on oath that there
were reasonable grounds for suspecting that there were in the firm's Perth
premises "things being
the original
or copies of: correspondence, prosectuses,
notes, opinions of Counsel, contracts, agreements, and other documents and
instruments
all of which have been produced or held by, for, or in respect of"
the plaintiff "and/or" ten other named individuals
and companies.
The search
warrant states that there were reasonable grounds for suspecting that the
documents in question would afford
evidence
as to the commission of "any"
offence against the Sales Tax legislation by the plaintiff and the other
"named persons jointly
or
severally" and of offences against s.86(1)(b) and
(e) of the Act by the plaintiff and the other "named persons in any
combination
and with any other person or persons unknown". It purported to
authorize
the defendant, with such assistance as he may think necessary,
to
enter the firm's premises at any time and to seize the said:
"correspondence, contracts, agreements, notes, opinions of counsel, and other
documents and instruments as to which there are reasonable
grounds for
believing that it will afford evidence as to the commission of any such
offence...." (at p111)
3. The plaintiff asserts that the documents are protected from seizure under
the search warrant for the reason that they are the
subject of legal
professional privilege which has not been lost by waiver or otherwise. The
defendant asserts that he is entitled
to seize all documents of the type
described in the search warrant regardless of whether they are the subject of
such privilege.
The question asked by the stated case is whether, in the event
that legal professional privilege attaches to and is maintained in
respect of
the documents held by the firm, those documents can properly be made the
subject of a search warrant issued under s.10
of the Act. (at p111)
4. A person is obliged to disclose or yield his information or property only to the extent that he is compelled so to do by some applicable common law principle or statutory provision. Where no such compulsion exists, there is no need for any special privilege protecting particular types of information or property from disclosure or seizure. The ordinary entitlement to remain silent and to retain one's information or property only constitutes a special privilege where it is preserved as an exception in circumstances where disclosure or cession would otherwise be compelled. In the absence of any such general compulsion, that entitlement represents no more than the ordinary position of the ordinary citizen under the common law. (at p111)
5. Until comparatively recent times, the main area in which the prima facie entitlement to silence and retention of information and documents had been significantly displaced was the arena of judicial proceedings. As the testimony of witnesses came to be a common source of proof in the courts and testimonial compulsion and the compulsory production of documents became an accepted part of judicial proceedings, the occasion arose for the recognition of a special common law privilege exempting certain communications between a person and his legal advisers from the ordinary obligations to give evidence and to produce documents for inspection. This privilege, ordinarily described as legal professional privilege, protects a person from disclosure of oral or written confidential communications, between himself and his solicitor or barrister, made or brought into existence for the sole purpose of seeking or giving advice or for the sole purpose of use in existing or anticipated litigation (see Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674, at p 688 ; O'Reilly v. State Bank of Victoria Commissioners [1983] HCA 32; (1983) 152 CLR 1 and, as to the absence of any requirement that advice be in the course of or anticipation of litigation, Foster v. Hall (1831) 12 Pick 39, at p 98 ; Greenough v. Gaskell [1833] EngR 333; (1833) 1 My & K 98, at p 103 [1833] EngR 333; (39 ER 618, at p 621) ; per Brett M.R. in Pearce v. Foster (1885) 15 QB 114, at p 121 ). It is the privilege of the client and protects him from being compelled to make disclosure of such communications either in testimony or by the production of documents for inspection. It also protects him from such disclosure, in the absence of his consent, by his legal adviser. The privilege does not extend to protect communications which are in themselves part of a criminal or fraudulent proceeding or course of conduct or which constite the whole or part of an actual dealing or transaction (see O'Reilly's Case [1983] HCA 32; [1983] HCA 32; (1983) 152 CLR 1 ). Nor does it extend to protect things lodged with a legal adviser for the purpose of obtaining immunity from production. The privilege may be lost by waiver and, arguably, by the content of the communication ceasing to be confidential (Lloyd v. Mostyn (1842) 10 M & W 478 (152 ER 558) ; Calcraft v. Guest (1898) 1 QB 759 ; but cf. Ashburton (Lord) v. Pape (1913) 2 Ch 469 ). (at p112)
6. Much of the argument in the present case was directed to whether legal professional privilege is a mere rule of evidence restricted to judicial or quasi-judicial proceedings. In O'Reilly's Case, Mason J. [1983] HCA 32; (1983) 152 CLR 1 and Wilson J. [1983] HCA 32; (1983) 152 CLR 1 , with whose judgments on the relevant questions the Chief Justice indicated his general agreement [1983] HCA 32; (1983) 152 CLR 1 , expressed a view that legal professional privilege was a rule of evidence which was restricted to such proceedings. Both quoted, with approval, the statement of Diplock L.J. in Parry-Jones v. Law Society (1969) 1 Ch 1, at p 9 that that "privilege, of course,is irrelevant when one is not concerned with judicial or quasi-judicial proceedings because, strictly speaking, privilege refers to a right to withhold from a court, or a tribunal exercising judicial functions, material which would otherwise be admissible in evidence". That statement of Diplock L.J. had been cited with approval in other cases in Australian courts (see, e.g., Crowley v. Murphy [1981] FCA 31; (1981) 52 FLR 123, at pp 127, 145-149; 34 ALR at pp 500-501, 517-520 ; Brayley v. Wilton (1976) 2 NSWLR 495, at p 497 ). On the other hand, Murphy J. dissented in O'Reilly's Case Ante, p. 27. from the majority view that legal professional privilege was confined to judicial or quasi-judicial proceedings. The view that the privilege is not so confined derives support from the decision of the New Zealand Court of Appeal in Commissioner of Inland Revenue v. West-Walker (1954) NZLR 191 and from a chain of Canadian cases (see Solosky v. The Queen (1979) 105 DLR (3d) 745, at pp 755-757 ). (at p113)
7. As has been mentioned, the doctrine of legal professional privilege arose and developed as a common law privilege protecting relevant communications between a person and his legal advisers from the consequences of the ordinary obligations of giving evidence and producing documents. In that context, the doctrine can properly be seen as a rule of evidence operating in judicial or quasi-judicial proceedings. So to see the doctrine does not, however, involve the conclusion that the fact that the confidentiality of a document or information would be protected by the doctrine of legal professional privilege in the courts of the land is irrelevant when one is considering whether statutory administrative powers should be construed as authorizing the destruction or impairment of that confidentiality. To the contrary, it leads to the inquiry whether the doctrine of legal professional privilege is an emanation of a more fundamental and general common law principle. (at p113)
8. The explanation of legal professional privilege was initially seen, when
the doctrine was recognized during the reign of Elizabeth
I, as being the
professional obligation of the barrister or attorney to preserve the secrecy
of the client's confidences (see Wigmore
on Evidence, McNaughton rev. (1961),
vol. viii, par. 2290; Radin, "The Privilege of Confidential Communication
Between Lawyer and
Client", California Law Review, vol.16 (1928), p. 487).
From at least the eighteenth century however, it has been generally accepted
that the explanation of the privilege is to be found in an underlying
principle of the common law that, subject to the above-mentioned
qualifications, a person should be entitled to seek and obtain legal advice in
the conduct of his affairs and legal assistance in
and for the purposes of the
conduct of actual or anticipated litigation without the apprehension of being
thereby prejudiced (see
Wigmore, par. 2291). The fact that the privilege is
not restricted to the particular legal proceedings for the purposes of which
the relevant communication may have been made or, for that matter, to
proceedings in which the party entitled to the privilege is
a party plainly
indicates that the underlying principle is concerned with the general
preservation of confidentiality. That is also
made clear by the rationale of
the underlying principle which was explained by Stephen, Mason and Murphy JJ.
in Grant v. Downs (1976)
135 CLR, at p 685 in words which I would respectfully
adopt:
"The rationale of this head of privilege, according to traditional doctrine,
is that it promotes the public interest because it assists
and enhances the
administration of justice by facilitating the representation of clients by
legal advisers, the law being a complex
and complicated discipline. This it
does by keeping secret their communications, thereby inducing the client to
retain the solicitor
and seek his advice, and encouraging the client to make a
full and frank disclosure of the relevant circumstances to the solicitor.
The
existence of the privilege reflects, to the extent to which it is accorded,
the paramountcy of this public interest over a more
general public interest,
that which requires that in the interests of a fair trial litigation should be
conducted on the footing
that all relevant documentary evidence is available.
As a head of privilege legal professional privilege is so firmly entrenched
in
the law that it is not to be exorcised by judicial decision."
(See, also, Greenough v. Gaskell (1833) 1 My& K, at p 103 (39 ER, at pp
620-621) ; Russell v. Jackson [1851] EngR 955; (1851) 9 Hare 387, at p
391(68
ER 558, at pp
559-560) ; Anderson v. Bank of British Columbia (1876) 2 ChD 644, at pp
648-649 ; Pearce
v. Foster (1885) 15
QB, at
pp 119-120 ; Jones v. Great
Central Railway (1910) AC 4, at p5 .) (at p114)
9. The importance of the principle that a person should be able to seek
relevant legal advice and assistance without apprehension
of prejudice has
been recognized in many cases. Thus in Pearse v. Pearse (1846) 1 De G & Sm 12,
at pp 28-29 [1846] EngR 1195; (63 ER 950, at p
957)
, Knight Bruce V. C. pointed out, in a
judgment which Lord Selborne L.C. was subsequently to describe as "one
of the
ablest
judgments
of one of the ablest Judges who ever sat in this Court"
(Minet v. Morgan (1873) 8 Ch App 361, at p 368 ,
that it could
not even be
sacrificed to promote the main purpose of the existence of courts of justice,
namely, the discovery, vindication
and
establishment
of truth. The
Vice-Chancellor added (1846) 1 De G & Sm, at p 29 (63 ER at p 957) :
"And surely the meanness and the mischief of prying into a man's confidential
consultations with his legal adviser, the general evil
of infusing reserve and
dissimulation, uneasiness, and suspicion and fear, into those communications
which must take place, and which,
unless in a condition of perfect security,
must take place uselessly or worse, are too great a price to pay for truth
itself."
To the same effect was the comment made, in the same year, by Lord Langdale
M.R. in Reece v. Trye [1846] EngR 475; [1846] EngR 483; (1846) 9 Beav 316, at p 319 (50
ER 365, at p 366) :
"The unrestricted communication between parties and their professional
advisers, has been considered to be of such importance as
to make it advisable
to protect it even by the concealment of matter without the discovery of which
the truth of the case cannot
be ascertained" (italics added). (at p115)
10. It is true that the above statements were made in cases which were
concerned with an invocation of legal professional privilege
in the context of
legal proceedings. There is, however, no warrant for restricting the broad
statements of the principle of the confidentiality
of legal professional
communications to the particular privilege against being compelled to give
evidence or produce documents in
judicial (or quasi-judicial) proceedings.
That that is so appears clearly enough from what was said by Fletcher Moulton
L.J. in Rakusen
v. Ellis, Munday & Clarke (1912) 1 Ch 831, at p 840 where,
speaking generally and not in the context of compulsion to give evidence
or
produce documents in judicial or quasi-judicial proceedings, his Lordship
described the confidentiality which the law accords
to communications between
solicitor and client as "the very highest - so high that the solicitor is
absolutely privileged and cannot
be made to state what passed between him and
his client. To that extent the solicitor is made, as it were, a part of his
client for
the purpose of those communications". Once one recognizes that the
principle underlying legal professional privilege is that a person
should be
entitled to seek and obtain legal advice without the apprehension of being
prejudiced by subsequent disclosure of confidential
communications and that
the privilege is not confined to such communications as are made in the course
of or in anticipation of litigation
but extends generally to confidential
communications of a professional nature between a person and his lawyer made
for the purpose
of obtaining or giving legal advice, common sense points to a
conclusion that the principle should not be seen as restricted to compulsory
disclosure in the course of such proceedings. Indeed, the doctrine of legal
professional privilege would represent an aberration
of the common law if it
withheld from the courts information or documents which were material in the
search for truth in circumstances
where the disclosure thereof could be
compelled as a matter of course by any administrative officer with a relevant
and general statutory
mandate to require the provision of information or the
production of documents. Moreover, if the privilege were confined to
disclosure
in judicial (or quasi-judicial) proceedings, it is difficult to
explain why, logically, the lawyer who fails voluntarily to disclose
the
wrongdoing of his client to the appropriate administrative officer does not,
in the absence of some particular justification,
stand guilty of the felony of
misprision of felony (see Reg. v. King (Joseph) (1965) 1 WLR 706; (1965) 1 All
ER 1053 , where it was
held that "the cardinal principle of English law that a
man is not bound to incriminate himself" (per Lord Parker C.J. (1965) 1 WLR,
at p 708; (1965) 1 All ER, at p 1055 ) provided an overriding answer to a
prosecution for misprision of felony and cf. Sykes v. Director
of Public
Prosecutions (1962) AC 528, at p 564 ; Gifford, Legal Profession Law and
Practice in Victoria (1980), p. 337; Tuckiar v.
The King [1934] HCA 49; (1934) 52 CLR 335, at
p 346 ). (at p116)
11. It is a settled rule of construction that general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary intendment. As has been seen, the underlying principle that a person should be entitled to preserve the confidentiality of relevant communications between himself and his attorney is regarded as of such importance by the common law that the courts themselves do not require disclosure of the content of such communications even if it appears that such disclosure would be conducive to justice in a particular case and even if the proceedings be between parties neither of whom is entitled to claim the protection of the privilege as regards the relevant documents or information. Both logic and authority support the present-day acceptance of the preservation of that confidentiality as a fundamental and general principle of the common law. It is to be presumed that if the Parliament intended to authorize the impairment or destruction of that confidentiality by administrative action it would frame the relevant statutory mandate in express and unambiguous terms. (at p117)
12. Section 10 of the Act provides:
"If a Justice of the Peace is satisfied by information on oath that there is
reasonable ground for suspecting that there is in
any house, vessel, or place
-
(a) anything with respect to which any offence against any law of the
Commonwealth or of a Territory has been, or is suspected on
reasonable grounds
to have been, committed;
(b) anything as to which there are reasonable grounds for believing that it
will afford evidence as to the commission of any such
offence; or
(c) anything as to which there is reasonable ground for believing that it is
intended to be used for the purpose of committing any
such offence;
he may grant a search warrant authorizing any constable named therein, with
such assistance as he thinks necessary, to enter at any
time any house,
vessel, or place named or described in the warrant, if necessary by force, and
to seize any such thing which he may
find in the house, vessel, or place."
In the context of the exclusion from legal professional privilege of
communications which are themselves part of a criminal or fraudulent
proceeding and of things lodged with a legal adviser for the purpose of
obtaining immunity from production, it is unlikely that any
valid claim to
privilege could exist in relation to the matters mentioned in pars. (a) and
(c) of s. 10. Any claim to legal professional
privilege in respect of
documents the subject of a search warrant will ordinarily be restricted to
documents coming within par. (b).
The claim to legal professional privilege is
so limited in the present case since the search warrant was restricted to
documents
and instruments which were suggested to come within that paragraph.
(at p117)
13. As can be seen, s. 10 contains no express reference to communications between a person and his legal advisers. It neither expressly includes them in, nor expressly excludes them from, the things to which it refers. There is nothing in either s. 10 or in any other provision of the Act which indicates either that the Parliament directed its attention to the particular matter of modifying or destroying the confidentiality of relevant communications between a person and his legal advisers or that there existed a legislative intention to modify the common law principle that the confidentiality of such communications should be preserved. In accordance with the ordinary principles of construction, the section should be construed as not including, in the things which it authorizes to be inspected or seized, documents whose confidentiality would be protected in the courts of the land by the doctrine of legal professional privilege. That construction of s. 10 is also supported by the consideration that it is scarcely likely that Parliament would have intended to authorize an administrative seizure of documents on the ground that they would afford "evidence as to the commission" of an offence either in circumstances where legal professional privilege would be applicable to prevent the documents being received in evidence on a prosecution for that offence or in circumstances where the administrative seizure of the documents would destroy that privilege on the hearing of such a prosecution. The consequence of that construction of the section is that the search warrant in the present case should be read as not referring to documents to which legal professional privilege attaches. (at p118)
14. I am conscious of the fact that my conclusion that the common law principle underlying legal professional privilege is not restricted to judicial or quasi-judicial proceedings does not lie well with the reasoning of the majority of the Court in O'Reilly's Case [1983] HCA 32; (1983) 152 CLR 1 or, possibly, with the actual decision on the relevant questions in that case. I have, however, come to a firm view on the matter and I consider that I should give effect to it. In that regard, I am influenced by the fact that the matter has been heard by a Court of seven justices and that leave was given by the Court to senior counsel for the plaintiff to attack the correctness of the decision in O'Reilly's Case on the relevant questions. I am also influenced by the fact that I am persuaded that the general and substantive principle underlying legal professional privilege is of fundamental importance to the protection and preservation of the rights, dignity and equality of the ordinary citizen under the law in that it is a precondition of full and unreserved communication with his lawyer. (at p118)
15. After the above had been written, the reports of the decisions of the
Canadian Supreme Court in Descoteaux v. Mierzwinski (1982)
141 DLR (3d) 590
and of the New Zealand Court of Appeal in Reg. v. Uljee (1982) 1 NZLR 561
became available in this country. In each
of those cases, a unanimous Full
Court emphatically reaffirmed the fundamental nature and broad scope of the
general and substantive
principle underlying legal professional privilege. Of
no less significance is the equally recent decision of the European Court of
Justice in A. M. & S. Europe Ltd. v. Commission of the European Communities
(1983) QB 878 . The Report to the Court by the Advocate
General (Sir Gordon
Slynn) in that case contains a helpful summary of the laws of the member
states of the European Economic Community
in relation to legal professional
privilege (1983) QB, at pp 910-914 . As that summary indicates, there are
significant variations
between the laws of the member states as to the
communications to which the privilege attaches. In the case of all of those
States
however, the doctrine of legal professional privilege constitutes a
general principle or rule which extends to protect privileged
documents from
production and seizure in the course of an administrative inquiry as distinct
from being a mere rule of evidence restricted
to judicial or quasi-judicial
proceedings: "there exists in all the member states a recognition that the
public interest and the
proper administration of justice demand as a general
rule that a client should be able to speak freely, frankly and fully to his
lawyer" (1983) QB 914, at p 28 (italics added). In their "Decision", the
eleven judges of the Court explained the Court's function
as involving the
identification of "the principles and concepts common to the laws of (member)
states concerning the observance of
confidentiality, in particular, as regards
certain communications between lawyer and client" (1983) QB, at pp 949-950 .
To some extent,
that identification amounted to a search for the highest
common factor in the various laws and resulted in the documents to which
legal
professional privilege was held to attach being restricted to documents "made
for the purposes and in the interests of the
client's rights of defence"
(1983) QB, at p 950 . Such a restriction is not acceptable in Australia (see
above) or, indeed, in the
law of most of the member European Sstates (e.g.,
United Kingdom, Ireland, Germany, Belgium, Denmark and Greece) where the
protection
of the privilege is accepted as ordinarily attaching to
confidential communications between a person and his lawyer for the purpose
of
obtaining or giving legal advice whether or not in connection with pending or
contemplated legal proceedings and "without any
other reference to litigation
generally than all human affairs have, in so far as every transaction may, by
possibility, become the
subject of judicial inquiry" (per Lord Brougham L.C.,
Greenough v. Gaskell (1833) 1 My & K, at p 102 (39 ER, at p 620) ). What
is
important for present purposes, however, is that the doctrine of legal
professional privilege was plainly accepted by the European
Court as a general
principle which effectively protects privileged documents from production or
seizure by administrative compulsion
or in the course of an administrative
inquiry. In words reminiscent of what had been said by Knight Bruce V. C. in
Pearse v. Pearse
(1846) 1 De G & Sm 12, at pp 28-29 [1846] EngR 1195; (63 ER 950, at p 957) ,
the members of the European Court explained the rationale of the general
principle which they held to be
part of the law of all member States (1983)
QB, at p 949 :
"That confidentiality serves the requirement, the importance of which is
recognized in all of the member states, that any person
must be able, without
constraint, to consult a lawyer whose profession entails the giving of
independent legal advice to all those
in need of it."
That general principle represents some protection of the citizen -
particularly the weak, the unintelligent and the ill-informed
citizen -
against the leviathan of the modern state. Without it, there can be no
assurance that those in need of independent legal
advice to cope with the
demands and intricacies of modern law will be able to obtain it without the
risk of prejudice and damage
by subsequent compulsory disclosure on the demand
of any administrative officer with some general statutory authority to obtain
information
or seize documents. (at p120)
16. The question in the stated case should be answered, "No". (at p120)
DAWSON J. This case stated raises the question whether documents held by a firm of solicitors, which were all brought into existence for the purpose of obtaining or giving legal advice, can be seized under a search warrant issued pursuant to s. 10 of the Crimes Act 1914 (Cth). The documents, according to the case stated, include opinions given by a member of the firm of solicitors and by counsel. They include documents created solely for the purpose of tendering professional legal advice to the plaintiff otherwise than in relation to existing or comtemplated civil or criminal proceedings but none of them is a document relating to an actual transaction. The documents relate to some aspects of a scheme which was devised to minimize liability for sales tax. (at p120)
2. The plaintiff, who is a client of the firm of solicitors, contends that the documents held by the firm are the subject of legal professional privilege and, in the absence of waiver or other loss of that privilege, cannot properly be made the subject of the search warrant or seized under it. (at p120)
3. The defendant, who is a member of the Federal Police to whom the search warrant was issued, contends that legal professional privilege does not attach to the documents because of the purposes for which the plaintiff consulted the firm but says that even if it did, the documents might lawfully be seized under the search warrant. (at p121)
4. It is unnecessary to decide between the rival contentions as to the existence of the privilege because the question which is asked of the Court is whether, in the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm, they can properly be made the subject of a search warrant issued under s. 10 of the Crimes Act. For the purposes of the question, privilege is assumed. (at p121)
5. In O'Reilly v. State Bank of Victoria Commissioners [1983] HCA 32; (1983) 152 CLR 1 (O'Reilly's Case) it was held by this Court (Gibbs C.J., Mason and Wilson JJ., Murphy J. dissenting) that legal professional privilege is a rule of evidence only, so that the doctrine is confined in its application to judicial and quasi-judicial proceedings. It did not, so it was held in that case, afford any ground for failing to disclose to officers of the Australian Taxation Office, who were conducting an investigation and exercising powers under the Income Tax Assessment Act 1936 (Cth), documents to which privilege attached because they were brought into existence for the purpose of the giving or receiving of advice or for the purpose of use in existing or anticipated litigation. Leave was given in these proceedings to reargue this aspect of O'Reilly's Case and it is necessary, therefore, to re-examine the question whether legal professional privilege has an application beyond judicial and quasi-judicial proceedings. (at p121)
6. Section 10 of the Crimes Act provides the context in which the extent of
legal professional privilege falls to be re-examined
in this case. That
section, so far
as is relevant, provides:
"If a Justice of the Peace is satisfied by information on oath that there is
reasonable ground for suspecting that there is in
any house, vessel, or place
-
(a) anything with respect to which any offence against any law of the
Commonwealth or of a Territory has been, or is suspected on
reasonable grounds
to have been, committed;
(b) anything as to which there are reasonable grounds for believing that it
will afford evidence as to the commission of any . .
. offence (against any
law of the Commonwealth or of a Territory); or
(c) anything as to which there is reasonable ground for believing that it is
intended to be used for the purpose of committing any
such offence,
he may grant a search warrant authorizing any constable named therein . . . to
enter at any time any house, vessel, or place named
or described in the
warrant, if necessary by force, and to seize any such thing which he may find
in the house, vessel, or place."
(at p122)
7. Putting to one side the arguments that the reference in s. 10(b) to
"evidence" is a reference to evidence admissible in judicial
proceedings and
that the issue of a search warrant is a judicial act, if the privilege is no
more than a rule of evidence, confined
in its application to judicial or
quasi-judicial proceedings, then s. 10 may be construed without regard to it.
The section will,
if that is so, apply uninhibited by any claim to privilege.
If, on the other hand, the rule which gives rise to the privilege is
not so
confined, the question arises whether s. 10, upon the ordinary principles of
construction which apply to the statutory modification
of basic common law
rights, is intended to diminish or curtail the extent of the privilege. (at
p122)
8. The problem, although one of basic principle, should not be seen to have a greater significance than it in fact has. In the first place, those communications to which legal professional privilege attaches are closely confined and the extent to which the privilege could constitute an impediment to administrative or executive investigations is limited. And if the privilege does extend beyond judicial proceedings to administrative inquiries, the question is not whether the legislature has power to abrogate the privilege by appropriate legislation; clearly it has. See Smorgon v. Australia and New Zealand Banking Group Ltd. [1976] HCA 53; (1976) 134 CLR 475, at p 487 ; Federal Commissioner of Taxation v. Australia and New Zealand Banking Group Ltd. (1979) 143 CLR 499, at pp 521,540 . It is merely whether the legislature has done so, having regard to the rule which requires the general words of statutes to be construed, if possible, so as not to effect an alteration of common law doctrines or a denial of common law rights. (at p122)
9. Legal professional privilege attaches only to communications made for the purpose of giving or receiving advice or for use in existing or anticipated litigation. Moreover, if the communication in question is in the form of a document submitted by a client to his solicitor for use in existing or anticipated litigation, privilege will attach to it only if it comes into existence solely for that purpose. The privilege cannot operate to put beyond the reach of the law documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of litigation. See Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 . There is no privilege for physical objects other than documents and there is no privilege for documents which are the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice or part of the conduct of actual or anticipated litigation. Communications which would otherwise be privileged lose their immunity from disclosure if they amount to participation in a crime or a fraud. The compass within which the doctrine of legal professional privilege operates is, therefore, narrow having regard to the principle which it protects. (at p123)
10. In the interpretation of statutes there is a presumption that there is no intention to interfere with basic common law doctrines unless the words of the statute expressly or necessarily require that result. See Potter v. Minahan [1908] HCA 63; (1908) 7 CLR 277, at p 304 ; Bishop v. Chung Bros. [1907] HCA 23; (1907) 4 CLR 1262, at p 1273 ; Hocking v. Western Australian Bank [1909] HCA 68; (1909) 9 CLR 738, at p 746 ; R. v. Salisbury (Bishop of) (1901) 1 KB 573 ; Duke of Newcastle v. Morris (1870) LR 4 HL 661 Noakes v. Doncaster Amalgamated Collieries Ltd. (1940) AC 1014 ; Black-Clawson Ltd. v. Papierwerke A.G. [1975] UKHL 2; (1975) AC 591, at p 650 . Cf. Maunsell v. Olins (1975) AC 373, at p 394 . Legal professional privilege, whatever the extent of its application, is clearly a doctrine which falls within the presumption. The not dissimilar privilege against self-incrimination is not to be abrogated by statue except in the clearest terms. See Sorby v. The Commonwealth (1983) 152 CLR, at pp 289, 309-310, 316 . (at p123)
11. At common law there was no compulsory search and seizure; search warrants were only issued to search for stolen goods. Section 10 of the Crimes Act extends the ambit of search warrants but the general words of the section take no account of any specific immunity, such as that conferred by legal professional privilege. If that privilege has an application outside judicial or quasi-judicial proceedings, there can be no real doubt that the general words of s. 10 are not sufficient to curtail the privilege. Of course, if the legislature were to see the need to achieve that result it could do so by express words, but the Court should not assist that result by reading that intention into the general words of the statute. It may, perhaps, be added that s. 10 is not a new provision and the fact that it is only now that the present question falls to be determined by this Court is some indication of the measure of acceptance of the view that the power of search and seizure which the section confers in general terms does not extend to documents to which legal professional privilege attaches. It is implicit in such a view that the privilege extends beyond judicial or quasi-judicial proceedings and it is that proposition which is questioned in this case. (at p124)
12. In O'Reilly's Case the majority was of the view that the law was
correctly stated by Diplock L.J. in the Court of Appeal in
Parry-Jones v. Law
Society (1969) 1 Ch 1, at p 9 , where he said:
"So far as Mr. Parry-Jones' point as to privilege is concerned, privilege,
of course, is irrelevant when one is not concerned with
judicial or
quasi-judicial proceedings because, strictly speaking, privilege refers to a
right to withold from a court, or a tribunal
exercising judicial functions,
material which would otherwise be admissible in evidence."
Parry-Jones v. Law Society is, I think, but slender authority for the
proposition that legal professional privilege is relevant only
in judicial or
quasi-judicial proceedings. The matter does not appear to have been argued at
length and was argued by the appellant
in person. The decision was not
reserved. The point involved was whether the appellant, who was a solicitor,
was obliged to produce
for inspection by the Law Society documents relating to
his practice as a solicitor. The Law Society required production of the
documents
pursuant to rules made under the Solicitors' Act 1933. Lord Denning,
M.R. held that the rules overrode any privilege or confidence
which otherwise
might have subsisted between solicitor and client. He did not deal with the
question whether, apart from the rules,
the solicitor was entitled to claim
privilege for any documents. Diplock L.J. did not develop his observation that
privilege was
irrelevant "because, strictly speaking, privilege refers to a
right to withhold from a court, or a tribunal exercising judicial functions,
material which would otherwise be admissible in evidence" and the remaining
member of the Court, Salmon L.J., agreed with both the
Master of the Rolls and
Diplock L.J. (at p124)
13. In Frank Truman Ltd. v. Police Commissioner (1977) QB 952 , the decision in Parry-Jones v. Law Society was not cited and it appears to have been assumed that a solicitor might lawfully withhold from police attempting to seize documents under a search warrant those documents, otherwise within the scope of the warrant, to which legal professional privilege attached. In Reg. v. Peterborough Justice; Ex parte Hicks (1977) 1 WLR 1371; (1978) 1 All ER 225 , it does not appear to have been questioned that in a proper case legal professional privilege could validly be claimed against the production of documents to police acting under a search warrant. Again, Parry-Jones v. Law Society does not appear to have been cited. (at p124)
14. In this country, the proposition in Parry-Jones v. Law Society that the doctrine of legal professional privilege is a rule of evidence and applies only in judicial or quasi-judicial proceedings was accepted by Bowen C.J. in Eq. in Brayley v. Wilton (1976) 2 NSWLR 495 and by the Federal Court in Crowley v. Murphy [1981] FCA 31; (1981) 52 FLR 123; 34 ALR 496 . (at p125)
15. On the other hand, there are in New Zealand and Canada decisions which
constitute a body of authority contrary to the decision
in Parry-Jones v. Law
Society. In Commissioner of Inland Revenue v. West-Walker (1954) NZLR 191 ,
the Court of Appeal held that the
general words of s. 163 of the Land and
Income Tax Act 1923 (N.Z.) should be read restrictively so as not to require a
solicitor
to furnish information or produce documents to which legal
professional privilege attached when required to do so by the Commissioner
of
Taxes. That section provided in general terms that every person should when
required to do so furnish in writing any information
or produce any books or
documents which the Commissioner considered relevant for certain specified
purposes. Fair J. (1954) NZLR,
at p 206 , after considering the authorities,
pointed out that, although legal professional privilege had hitherto only been
invoked
as an immunity from the production of evidence in court, the basis of
the privilege was public interest and that it extended logically
to protect
the communications to which it attached from all compulsory disclosure with
the exception of those amounting to participation
in crime or fraud. He
expressed his approach, which was that generally adopted by the majority, in
these words (1954) NZLR, at p
208 :
"It seems to me (to quote from Stradling v. Morgan (1560) 1 Plow 199 (75 ER
305) 'consonant with reason and good discretion' (1560)
1 Plow, at p 205 (75
ER, at p 315) to consider that this general principle affording special
protection in respect of legal advice
was not intended to be invaded by the
general provision in s. 163. At best, it is doubtful whether its wide terms
were intended to
extend to nullify, in effect, the general rule of public
policy expressed by the recognition of this privilege, and so it cannot
be
held to have done so." (at p125)
16. In Re Director of Investigation and Research and Shell Canada Ltd. (1975)
55 DLR (3d) 713 , the Federal Court of Appeal considered
s. 10 of the Canadian
Combines Investigation Act 1970. That section gave to the Director of
Investigation and Research wide powers
of search and seizure for the purposes
of obtaining evidence relevant to matters of inquiry under the Act. The Court
concluded that
the section should not be construed in such a way that it
derogated from the doctrine of legal professional privilege. Jackett C.J.
said
(1975) 55 DLR (3d), at p 722
"I fully realize that the protection of the confidentiality of the
solicitor-and-client relationship has, heretofore, manifested
itself mainly,
if not entirely, in the privilege afforded to the client against the
compulsory revelation of communications between
solicitor and client in the
giving of evidence in Court or in the judicial process of discovery. In my
view, however, this privilege
is a mere manifestation of a fundamental
principle upon which our judicial system is based, which principle would be
breached just
as clearly, and with equal injury to our judicial system, by the
compulsory form of pre-prosecution discovery envisaged by the Combines
Investigation Act as it would be by evidence in Court or by judicial
discovery."
This approach, which is to be found in a number of other Canadian cases, was
summarized in Solosky v. The Queen (1979) 105 DLR (3d)
745, at p 757 by
Dickson J., who delivered the judgment of the Supreme Court:
"Recent case law has taken the traditional doctrine of privilege and placed
it on a new plane. Privilege is no longer regarded
merely as a rule of
evidence which acts as a shield to prevent privileged materials from being
tendered in evidence in a court-room.
The Courts, unwilling to so restrict the
concept, have extended its application well beyond those limits."
See also Re Director of Investigation and Canada Safeway Ltd. (1972) 26 DLR
(3d) 745 ; Re Borden and Elliott and The Queen (1975)
70 DLR (3d) 579; 30 CCC
(2d) 337 ; In re B.X. Development Inc. and The Queen (1976) 70 DLR (3d) 366;
31 CCC (2d) 14 ; Descoteaux
v. Mierzwinski (1982) 141 DLR (3d) 590; 70 CCC
(2d) 385 . Cf. Re Gowling and Henderson and The Queen (1982) 136 DLR (3d) 292
. (at
p126)
17. The view that legal professional privilege is based upon fundamental principle is not confined to common law countries. In A.M. & S. Europe Ltd.v. Commission of the European Communities (1983) QB 878 the European Court of Justice regarded it as a concept common to the laws of member states of the European Economic Community that there should be that degree of confidentiality which is necessary to enable any person, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it (1983) QB, at pp 949-950 (at p126)
18. The common law doctrine of legal professional privilege emerged in the sixteenth century as a natural exception to the then novel right of testimonial compulsion. See Holdsworth, A History of English Law, vol. 9, pp. 201-202. The history of the doctrine is traced in Wigmore, vol. viii, McNaughton rev. (1961), pars. 2290 et seq. In its origins it was concerned with the duty of the attorney - his oath and his honour - arising out of his professional relationship with his client rather than with the broader consideration of public interest in the effective working of the legal system. The modern theory that the doctrine is necessary to promote freedom of consultation of legal advisers by clients did not clearly emerge until the nineteenth century. Not surprisingly, since the doctrine represents a curtailment of the judicial search for truth, it had its critics from the beginning (e.g., Jeremy Bentham, "An Introductory View of the Rationale of Evidence for the Use of Non Lawyers as well as Lawyers" (1827), The Works of Jeremy Bentham, pp. 473 et seq., Bowring ed. (1843)). But it became firmly established in the modern form in which it is expressed, not merely as a rule of evidence, but as a matter of public policy with a natural application wherever compulsory disclosure of evidence is involved, whether in judicial proceedings or not. (at p127)
19. The law came to recognize that for its better functioning it was necessary that there should be freedom of communication between a lawyer and his client for the purpose of giving and receiving legal advice and for the purpose of litigation and that this entailed immunity from disclosure of such communications between them. The expression of this expanded concept of confidentiality has in the past been found only in cases dealing with evidence in judicial proceedings. This is not surprising because in the past it was only in the courts that evidence was given under compulsion and any exception to the compulsion was naturally in the form of a rule of evidence or of discovery. (at p127)
20. That is not to say that the reason for the exception does not involve a fundamental principle. The rule against self-incrimination may be regarded as a rule of evidence, but underlying it is a right which the law considers to be basic. This was recognized by the majority in Pyneboard Pty. Ltd. v. Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 which was not prepared to hold that privilege against self-incrimination was inherently incapable of application in non-judicial proceedings, having regard to the view that the rule of the common law nemo tenetur seipsum accusare is too fundamental a bulwark of liberty to be categorized simply as a rule of evidence (1983) 152 CLR, at pp 339-340 . So also does legal professional privilege find expression in a rule of evidence, but it stems from a right which is no less fundamental than that which supports the rule against self-incrimination. Indeed, the extension of the privilege against self - incrimination "is not wholly unconnected with the ideas which originally gave rise to the second of the leading exceptions to the rule of compulsion - the privilege given to legal advisers with respect to communications passing between themselves and their clients": Holdsworth, op cit., at pp. 201,202. If in the past it has been sufficient to do no more than apply a rule of evidence in order to enforce that right effectively, it does not mean that when attempts are made outside the courts to compel the disclosure of evidence the law must ignore there what it regards as so important in the courts. (at p128)
21. Whilst legal professional privilege was originally confined to the maintenance of confidence pursuant to a contractual duty which arises out of a professional relationship, it is now established that its justification is to be found in the fact that the proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients which would not exist if either could be compelled to disclose what passed between them for the purpose of giving or receiving advice. This is why the privilege does not extend to communications arising out of other confidential relationships such as those of doctor and patient, priest and penitent or accountant and client. See D. v. N.S.P.C.C. [1977] UKHL 1; (1978) AC 171, at pp 238-239 . The restriction of the privilege to the legal profession serves to emphasize that the relationship between a client and his legal adviser has a special significance because it is part of the functioning of the law itself. Communications which establish and arise out of that relationship are of their very nature of legal significance, something which would be coincidental in the case of other confidential relationships. It has been found necessary that professional guidance in the complex processes of the law should be uninhibited by the possibility that what is said to enable advice to be sought or given might later be used against the person seeking the advice. See Greenough v. Gaskell [1833] EngR 333; (1833) 1 My & K 98, at p 105 [1833] EngR 333; (39 ER 618, at p 621) . (at p128)
22. As was pointed out by Lord Selborne L.C. in Minet v. Morgan (1873) 8 Ch App 361, at p 366 , the law did not at once "reach a broad and reasonable footing, but reached it by successive steps, founded upon that respect for principle which usually leads the Court arights". The cover of legal professional privilege was extended from communications relating to actual litigation to communications in anticipation of litigation and it is now "sufficient if they pass as professional communications in a professional capacity". See Lawrence v. Campbell [1859] EngR 385; (1859) 4 Drew 485, at p 490 [1859] EngR 385; [1859] EngR 385; (62 ER 186, at p 188) ; Minet v. Morgan (1873) 8 Ch App, at p 368 . (at p128)
23. The conflict between the principle that all relevant evidence should be disclosed and the principle that ocmmunications between lawyer and client should be confidential has been resolved in favour of the confidentiality of those communications. It has been determined that in this way the public interest is better served because the operation of the adversary system, upon which we depend for the attainment of justice in our society, would otherwise be impaired. See Waugh v. British Railways Board [1979] UKHL 2; (1980) AC 521, at pp 535-536 . Even if it were otherwise possible (and I do not think that it is), it is too late now to suggest that the public interest would have been better served by restricting legal professional privilege to communications relating to actual or even anticipated litigation. (at p129)
24. The privilege extends beyond communications made for the purpose of litigation to all communications made for the purpose of giving or receiving advice and this extension of the principle makes it inappropriate to regard the doctrine as a mere rule of evidence. It is a doctrine which is based upon the view that confidentiality is necessary for proper functioning of the legal system and not merely the proper conduct of particular litigation. It is inconsistent with that view to conclude that the compulsory disclosure of communications between legal adviser and client is in the public interest merely because the compulsion is for administrative rather than judicial purposes. (at p129)
25. No doubt there are exceptions to the principle that confidentiality should prevail in relation to professional communications in the law. For example, the privilege may be waived and it has no application if the communications are in furtherance of a crime or fraud. Moreover, there is authority for the proposition that the privilege may be lost if a document to which it attaches comes into the hands of someone other than the legal adviser or his client, even dishonestly, so that secondary evidence of it may be given. See Lloyd v. Mostyn (1842) 10 M & W 478, at p 482 [1842] EngR 964; [1842] EngR 973; (152 ER 558, at pp 560-561) ; Calcraft v. Guest (1898) 1 QB 759 ; Waugh v. British Railways Board (1980) AC, at p 536 . But see Ashburton (Lord) v. Pape (1913) 2 Ch 469 ; I.T.C. Ltd. v. Video Exchange Ltd. (1982) Ch 431 ; Reg. v. Uljee (1982) 1 NZIR 561 . The exceptions do no more, however, than demonstrate that the basic principle is not absolute; they do not justify any general conclusion that the principle of confidentiality should yield to the principle that all relevant evidence should be disclosed. (at p129)
26. It was suggested in O'Reilly's Case [1983] HCA 32; (1983) 152 CLR 1 that the doctrine of legal professional privilege may do little to promote the policy which it is supposed to serve, namely, candour on the part of the client to his legal adviser so that he may be properly advised and properly represented. Speaking for myself, and with the greatest of respect, I should have thought it evident that if communications between legal advisers and their clients were subject to compulsory disclosure in litigation, civil or criminal, there would be a restriction, serious in many cases, upon the freedom with which advice or representation could be given or sought. If a client cannot seek advice from his legal adviser confident that he is not acting to his disadvantage in doing so, then his lack of confidence is likely to be reflected in the instructions he gives, the advice he is given and ultimately in the legal process of which the advice forms part. Moreover, the same reasoning must apply to the compulsory disclosure of the same communications in the course of administrative proceedings which may ultimately result in disadvantage to the client. As a matter of principle or practice it does not seem to me to matter whether the compulsion is at the hands of the executive or at the hands of the judiciary if what is placed in jeopardy is the right to seek guidance in the processes of the law without fear of harm as a consequence. (at p130)
27. The present case may serve as an illustration. After an attempt was made to execute the search warrant, the plaintiff, together with others, was charged with conspiracy to defraud the Commonwealth and two separate conspiracies to prevent or defeat the execution or enforcement of two separate laws of the Commonwealth relating to sales tax. See Crimes Act, s. 86(1)(b) and (e). The complexity of revenue laws is such that the availability of legal advice in relation to them is as necessary and desirable as it is in any other area of the law. Hitherto it has been thought that such advice could be given without fear that it, or the instructions upon which it is given, might be the subject of compulsory disclosure. But the protection which is unquestionably afforded by legal professional privilege in judicial proceedings (in this case criminal proceedings), would be set at nought if by executive or administrative processes revelation of professional confidences could be compelled, particularly if by this means evidence of them might subsequently be given in any subsequent judicial proceedings. It is obvious, to my mind, that any person seeking advice such as must have been sought in this case would be seriously hampered in giving full instructions, as would his legal adviser be in giving advice, by the prospect that the instructions or the advice might have to be disclosed under compulsion and so become available for use, in one way or another, to his disadvantage. Clearly, those instructions and the consequent advice would be likely to be relevant in establishing at least the fact of agreement, which is a necessary part of any conspiracy, and the nature of the agreement. And yet, it is just such relevant evidence that the law excludes in judicial proceedings because of its overriding regard for the confidentiality of communications between a legal adviser and his client and it does so at the expense of the availability of the whole of the relevant evidence. It is hardly to be supposed that the principle which lies behind that exclusion is so narrow in its application as to be confined to judicial or quasi-judicial proceedings with the result that it may be thwarted by executive or administrative processes. (at p131)
28. It is clear to my mind that the power to compel the disclosure in an administrative inquiry of professional confidences is as likely to destroy the freedom of communication, which the law seeks to protect, between legal adviser and client as effectively as would compulsory disclosure of those confidences in judicial proceedings. It is the possible consequences which are significant and there can be little doubt that nowadays the penalties (and I use the term in a broad sense) which may be imposed administratively are in many instances as disadvantageous as those which may flow from civil or criminal litigation. (at p131)
29. The legislature may, of course, if it sees fit to do so, cut across the doctrine of legal professional privilege on occasions when it considers that it is more important to obtain information than to preserve the privilege and no doubt the inclination to do so will be greater in administrative proceedings where the principle has not been seen to operate as it has in judicial proceedings. The legislative imposition of an obligation to disclose professional confidences to the executive is relatively recent, although of increasingly frequent occurence. But it does not seem to me that the law should ease the way for the legislature to expand the practice nor should it disguise the fact that a principle which the law regards as fundamental is involved. (at p131)
30. It is necessary only to add a few words about one justification which is put forward for restricting the application of the doctrine of legal professional privilege to judicial or quasi-judicial proceedings. It is said that there is no appropriate means by which a question of privilege might be tested in a context other than that of judicial or quasi-judicial proceedings and that this is a factor indicating that the privilege should be limited to those proceedings. See, e.g., O'Reilly's Case [1983] HCA 32; (1983) 152 CLR 1 . I am bound to say, with respect, that in my view this would be an entirely inadequate reason, even if it existed, for restricting the application of a fundamental principle. However, it does not seem to me that there is any real difficulty. In the first place, the doctrine of legal professional privilege is not ordinarily difficult to apply and there is no reason to suppose that its application in a non-judicial context is any less appropriate than the application of the many other rules of law which must frequently be applied in proceedings other than judicial proceedings. Moreover, should any dispute arise, the means exist whereby a judicial determination of the dispute may be obtained as is indicated by this and the other cases in which such a dispute has arisen. Such a reason was not thought to justify the exclusion of the privilege against self-incrimination from extra-judicial proceedings (See Sorby v. The Commonwealth [1983] HCA 10; [1983] HCA 10; (1983) 152 CLR 281 ), nor should it do so in the case of legal professional privilege. (at p132)
31. To view legal professional privilege as being no more than a rule of evidence would, in my view, be to inhibit the policy which supports the doctrine. Indeed, now that there appears to be a tendency to compel the disclosure of evidence as an adjunct to modern administrative procedure (see, e.g. Commissioners of Customs and Excise v. Harz (1967) 1 AC 760, at pp 809-810 ), it may well be necessary to emphasize the policy lest it be effectively undermined. For there can be no doubt that freedom of communication between a legal adviser and his client may be greatly diminished by a requirement that the instructions or the advice be disclosed with the consequence that the information might eventually be used in some action against the client, whether in administrative or judicial proceedings. (at p132)
32. In my view, the doctrine of legal professional privilege is, in the absence of some legislative provision restricting its application, applicable to all forms of compulsory disclosure of evidence. Section 10 of the Crimes Act does not expressly or by necessary implication restrict the application of the doctrine and the section should, therefore, be construed as being not intended to affect it. The only relevant paragraph of s. 10 would appear to be par. (b), but nothing which appears in the section as a whole would lead to any different conclusion. That conclusion makes it unnecessary to consider the other submissions in this case, including the submission that the evidence to which s. 10(b) refers is confined to evidence admissible in judicial proceedings. (at p132)
33. I would answer the question in the negative. (at p132)
ORDER
Order that the question referred by the case stated be answered as follows:Question: In the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm can those documents be properly made the subject of a search warrant issued under s. 10 of the Crimes Act?
Order that the defendant pay the plaintiff's costs of and incidental to the case stated to be taxed.
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