Legal Professional Privilege

Question

  • Can a prior out of Court statement which is made by an accused for the purpose of instructions to his or her Solicitor be objected to on the grounds of Legal Professional Privilege if he or she subsequently discloses it in Court to prove an alibi?
Issues
  • Does the communication satisfy the legal professional privilege test? That is, is the confidential communication brought into the existence for the dominant purpose of the lawyer providing legal advice to the client?
  • If so, is there a waiver or loss of that privilege?
  • Is there a disclosure of facts?

 Legislation

  • Part 3.10, Division 1 – Client legal privilege (ss 117-126) of the Evidence Act 1995 (NSW) deals with the issue only in the context of the adducing of evidence.

Common Law

 It is not only the lawyer's advice which is privileged, it is also the instructions to the lawyer.[1] A party is not in general bound to reveal to the court statements taken from witnesses for the purposes of litigation.[2]

Mann v Carnell [1999] HCA 66; 201 CLR 1

This case deals with the question of how privilege can be waived or lost in certain circumstances.

Per Gleeson CJ, Gaudron, Gummow, and Callinan JJ:

[28] “It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.[3] Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication[4]…”

[29] “Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law"[5]. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank[6], the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.” (Emphasis added).

Benecke v National Australia Bank (1993) 35 NSWLR 110

The appellant, being engaged in certain legal proceedings, had a discussion with senior counsel representing her on the matter of a possible settlement of those proceedings. Later, after the court had been informed that the proceedings had been settled, and judgment had been entered in accordance with the terms of settlement signed by the appellant's representatives, the appellant instituted further proceedings based upon the allegation that the settlement was not authorised by her. In the course of the second proceedings the appellant, in her originating process, and in evidence, supported her claim that the first proceedings had been settled without her consent by giving a detailed account of her discussions with senior counsel. The appellant's version of those discussions was disputed. Nevertheless, the appellant contends that it was not open to the other party to seek to contradict her by calling senior counsel to give evidence. It is argued that the communications between the appellant and her counsel were covered by legal professional privilege, that the privilege belonged to the appellant, and that the appellant had never consented to senior counsel disclosing the terms of the communications between them.

On this claim for legal professional privilege, Gleeson CJ stated as follows: 

“The law permits the search for the truth in legal proceedings to yield, in certain circumstances, to the public interest in preserving the secrecy of communications between lawyer and client. In the present case, however, the appellant herself lifted the veil of secrecy by giving her version of the communications. Thereafter, there was no reason in principle why the pursuit of the truth should not take its course, or why the court should be inhibited in seeking to ascertain the true facts concerning those communications.” (Emphasis added). 

Applying Facts to the Law

  • The accused’s statement containing the accused’s instructions is subject to legal professional privilege as it is a confidential communication between the accused and his solicitor that was brought into existence for the dominant purpose of the solicitor providing legal advice to the client. However, the legal professional privilege has been an implied waiver that is imputed by operation of law based on the following:
  • The accused himself has lifted the veil of secrecy by giving his version of the communications. That is, the accused revealed that his disclosure to his solicitor of the alibi was first made to his solicitor a few weeks after he was charged and it was recorded in the form of a statement by his solicitor.
  • The accused’s intentional act of revealing the first mention of the alibi to his solicitor is inconsistent with defence counsel’s claim for legal professional privilege.
  • Accordingly, based on the above circumstances, the defence’s objection to the statement to be produced to the court on the basis of legal professional privilege has failed.
  • Alternatively, the statement can still be produced to the court on the basis that any “privileged instructions” contained in the statement be masked and any reference to the alibi not be masked.


[1] Bolton v Corporation of Liverpool (1833) 1 My & K 88 at 94; 39 ER 614 at 617.

[2] Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63; 91 ALR 239, where Pincus J discusses the authorities for and the merits of the rule.

[3] Cross on Evidence, 5th Aust ed (1996), par 25005; Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 497-498.

[4] Benecke v National Australia Bank (1993) 35 NSWLR 110.

[5] eg Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 95.

[6] (1993) 35 NSWLR 110.

If you seek further legal advice on this issue or need a lawyer, please do not hesitate to contact John Fasha by email to john.fasha@lexfori.com.au or by telephone (02) 9610 6677 or 0450 217 901.