LAW OF EVIDENCE. Alex Kuklik. LEC 2015/2016 Summer

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1 LAW OF EVIDENCE Alex Kuklik LEC 2015/2016 Summer

2 Alexander Kuklik 12 Wentworth Selborne Chambers (02)

3 Today (Part 5) Client legal privilege (KOP Chapter 14) EA ss Esso Australian Resources Ltd v Federal Commissioner of Taxation (2000) 168 ALR 123 (KOP [14.30]) Mann v Carnell (1999) 168 ALR 86 (KOP [14.70]) Kang v Kwan [2001] NSWSC 698 (KOP [14.100]) Miscellaneous (KOP Chapter 14) EA ss126a I, , 187 Director General, DOCS v D[2006] NSWSC 827 (KOP [14.120]) R v Lodhi(2006) 1999 FLR 328 (KOP [14.170]) Negotiations (KOP Chapter 14) EA s 131 Field v Commissioner for Railways (NSW) (1955) 99 CLR 827 (KOP [14.280]) State Rail Authority for NSW v Smith (1998) 45 NSWLR 382 (KOP [14.280])

4 Public interest (KOP Chapter 14) Today (Part 5) EA ss Sankey v Whitlam (1978) 142 CLR 1 (KOP[14.210]) Attorney- General v Kaddour[2001] NSWCCA 456 (KOP[14.240])

5 Privilege Evidence Act - Chapter 3.10

6 Section Definitions Client legal privilege (1) In this Division: "client" includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client-a manager, committee or person so acting,

7 Section Definitions Client legal privilege (e) if a client has died-a personal representative of the client,(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made. "confidential communication"means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

8 Client legal privilege Section Definitions "confidential document"means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. "lawyer"means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. "party" includes the following: (a) an employee or agent of a party,

9 Client legal privilege Section Definitions (b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party-a manager, committee or person so acting, (c) if a party has died-a personal representative of the party, (d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made. (2) A reference in this Division to the commission of an act includes a reference to a failure to act.

10 Client legal privilege Section 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

11 Client legal privilege Section 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

12 Client legal privilege Esso Australian Resources Ltd v Federal Commissioner of Taxation (2000) 168 ALR 123 (KOP [14.30]) Old common law test in Australia was sole purpose test : Grant v Downs. Test in UEL is dominant purpose. Because the UEL only applies to adducing evidence in proceedings, this can lead to two conflicting tests at different stages of litigation. Court reconsidered decision in Grant v Downs: common law test is now the same as that in the UEL dominant purpose

13 Client legal privilege In the matter of Southland Coal Pty Ltd (2006) 203 FLR 1(KOP [14.0]) Uncontested principles: (a)rule of substantive law-(daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission[2002] HCA 49;(2002) 213 CLR 543, at [9] per Gleeson CJ, Gaudron, Gummowand Hayne JJ). The "rule of substantive law" is, of course, affected by the terms of theevidence Act where the Act applies. (b)two-stage process-assessing a claim for privilege unders 118ors 119is a two-stage process. The first step is for the court to be satisfied that the communication or contents, disclosure of which is sought to be prevented, satisfies the requirements set out ins 118ors 119or both sections. The second step is for the court to be satisfied that the production of the document or the unredactedpart of it would result in the disclosure of a confidential communication or the confidential contents of a document.

14 Client legal privilege In the matter of Southland Coal Pty Ltd (2006) 203 FLR 1(KOP [14.0]) Uncontested principles: (c)onus-the party claiming privilege bears the onus of establishing the basis of the claim and the party seeking production does not bear the onus of excluding privilege (Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority[2002] VSCA 59. The party claiming privilege must establish the facts from which the court can determine that the privilege is capable of being asserted (National Crime Authority v S(1991) 100 ALR 151at 159). The facts are to be proved on the balance of probabilities (Evidence Act,s 142). (d)legal advice-in this context, "legal advice" is understood in a pragmatic sense. InGeneral Manager, WorkCover Authority of NSW v Law Society of NSW[2006] NSWCA 84, at [77] to [78]: "legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context". This assumes, of course, that the advice is professional advice given by a lawyer in his or her capacity as such.

15 Client legal privilege In the matter of Southland Coal Pty Ltd (2006) 203 FLR 1(KOP [14.0]) Uncontested principles: (e)whether disclosure would result from adducing the evidence-the question is whether what is disclosed by adducing the evidence explicitly reveals the confidential communication or the contents of the confidential document, or supports an inference of fact as to the content of the confidential communication or document, which has a definite and reasonable foundation. Disclosure does not occur if what is adduced in evidence merely causes the reader to "wonder or speculate whether legal advice has been obtained and what was the substance of that advice" (AWB Ltd v Coleat [133], per Young J). (f)communications between third party andclient-communications by a third party with a client, not directed to the client's lawyers, may be protected by legal advice privilege, if the function of the communications is to enable the client to obtain legal advice and the third party is so implicated in communications made by the client to its legal adviser as to bring the third party's work product within the rationale of the privilege (Pratt Holdings Pty Ltd v Commissioner of Taxation[2004] FCAFC 122;(2004) 136 FCR 357, at [41] per Finn J and [105] per Stone J).

16 Client legal privilege In the matter of Southland Coal Pty Ltd (2006) 203 FLR 1(KOP [14.0]) Uncontested principles: (g)purpose is a question of fact-the purpose for which a communication is made or a document is created is a question of fact (Esso Australia Resources Ltd v Commission of Taxation(1999) 201 CLR 49;Waterford v Commonwealth[1987] HCA 25;(1987) 163 CLR 54;Bauhausat [24]). Purpose and intended use must be determined objectively, having regard to all of the evidence (AWB Ltd v Coleat [122]). Purpose cannot be proved by mere assertion by a third party. Normally (but not always) the relevant purpose is that of the maker of the communication for which privilege is sought.

17 Client legal privilege In the matter of Southland Coal Pty Ltd (2006) 203 FLR 1(KOP [14.0]) Uncontested principles: (h)dominant purpose-the dominant purpose of the communication must be determined objectively, having regard to all the circumstances in which the communication was made and its nature (Grant v Downs[1976] HCA 63;(1976) 135 CLR 674at 689, per Stephen, Mason and Murphy JJ). What is required is an objective view of all of the evidence, taking into account the evidence not only of the author of the communication but of the person or authority under whose direction the document was prepared. If the document would have been prepared irrespective of the intention to obtain professional legal services, it will not satisfy the test (Grant v Downs, at 688, per Stephen, Mason and Murphy JJ). The existence of an ancillary purpose is not fatal to a claim for privilege, but if there are two purposes of equal weight, it is unlikely that one would dominate the other -Stephen Odgers,Uniform Evidence Law, 6th ed at [ ] to [ ].

18 Client legal privilege In the matter of Southland Coal Pty Ltd (2006) 203 FLR 1(KOP [14.0]) Uncontested principles: (i)a claim for privilege will not succeed if all that emerges is that the document is a commercial document or has been brought into existence in the ordinary course of business-in these circumstances, unless the court is satisfied that the dominant purpose is that identified inss118or119, no privilege applies. It is necessary to distinguish between documents brought into existence to communicate legal advice, and documents brought into existence to allow the party seeking to maintain privilege to invite comment on commercial alternatives available to it or to allow it to make a decision in the ordinary course of its insurance business as to whether or not to grant indemnity. The former may be privileged, but the latter is not, as it does not satisfy the dominant purpose test (seeseven Network Ltd v News Ltd[2005] FCA 1342at[27]). (j)failure to call relevant witnesses-if the party asserting privilege over a communication has the capacity to call direct evidence on the issue of purpose, but does not do so, the tribunal of fact is entitled to infer that this evidence would not have assisted the person's case (Hov Powell[2001] NSWCA 168;(2001) 51 NSWLR 572at 576;Hawksfordv Hawksford[2005] NSWSC 796at[19], per Campbell J).

19 Client legal privilege In the matter of Southland Coal Pty Ltd (2006) 203 FLR 1(KOP [14.0]) Uncontested principles: (k)inspection by the court-the court has the power to inspect the document itself to determine a claim for privilege, especially where differing kinds of claim about the basis of privilege are made (Grant v Downs(976)135 CLR 679at 689;Hawksford v Hawksford[2005] NSWSC 796at[21], per Campbell J). It should not be hesitant to exercise that power (Esso Australia Resources Ltd v FCT(1999) 201 CLR 49 at 70, per Gleeson CJ, Gaudronand GummowJJ). That is especially the case where the judge hearing the application relating to privilege is not the trial judge.

20 Section 120 Unrepresented parties Client legal privilege (1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the party and another person, or (b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party, for the dominant purpose of preparing for or conducting the proceeding.

21 Client legal privilege Section 121 Loss of client legal privilege: generally (1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died. (2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court. (3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.

22 Client legal privilege Section 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

23 Client legal privilege Section 122 Loss of client legal privilege: consent and related matters (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law, or (iv) if the client or party is a body established by, or a person holding an office under, an Australian law-to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or

24 Client legal privilege Section 122 Loss of client legal privilege: consent and related matters (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).

25 Client legal privilege Mann v Carnell (1999) 168 ALR 86 (KOP [14.70]) Mann was a surgeon who sued ACT board of health for defamation and breach of contract. Settled for $400,000. He then wrote to his member saying that the suit was a waste of funds. The member wrote to the ACT Chief Minister asking for a response. Carnell wrote back to the member, including legal advice obtained. The member was told the advice was confidential and so returned it without copying it. Mann found out and asked for preliminary discovery (thought he could sue Carnell for republishing the defamatory imputations). Judge said privilege did not apply. Court of Appeal said it did. Appealed to High Court.

26 Client legal privilege Mann v Carnell (1999) 168 ALR 86 (KOP [14.70]) Sections deal with waiver or loss of CLP. But as these provisions only apply to evidence adduced in proceedings (not for example pre-trial production), Mann v Carnell provides common law test for waiver in these situations. Held that there was no derivative application of the statute. Waiver occurs when there is inconsistency between the conduct of the client and the maintenance of the confidentiality in the communication. Even if they do not intend to waive. Waiver can be express or implied Was the particular conduct in consistent with the maintenance of the confidentiality which the privilege is intended to protect?

27 Client legal privilege Mann v Carnell (1999) 168 ALR 86 (KOP [14.70]) If so, the waiver is imputed by law the law recognises the inconsistency and determines its consequences, even though those consequences may not reflect the subjective intention of the client who has lost privilege. Here no inconsistency arose because conveying the advice to a member of Legislative Assembly to consider the reasonableness of the Territory in relation to the litigation was not inconsistent with the purpose of the privilege, being to protect the Territory from subsequent disclosure of its legal advice it received concerning the litigation.

28 Client legal privilege Section 123 Loss of client legal privilege: defendants In a criminal proceeding, this Division does not prevent a defendant from adducing evidence unless it is evidence of: (a)a confidential communication made between an associated defendant and a lawyer acting for that person in connection with the prosecution of that person, or (b)the contents of a confidential document prepared by an associated defendant or by a lawyer acting for that person in connection with the prosecution of that person. Note : "Associated defendant" is defined in the Dictionary.

29 Client legal privilege Section 124 Loss of client legal privilege: joint clients (1)This section only applies to a civil proceeding in connection with which 2 or more parties have, before the commencement of the proceeding, jointly retained a lawyer in relation to the same matter. (2) This Division does not prevent one of those parties from adducing evidence of: (a) a communication made by any one of them to the lawyer, or (b) the contents of a confidential document prepared by or at the direction or request of any one of them, in connection with that matter.

30 Client legal privilege Section 125 Loss of client legal privilege: misconduct (1) This Division does not prevent the adducing of evidence of: (a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or (b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power. (2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:

31 Client legal privilege Section 125 Loss of client legal privilege: misconduct (a) the fraud, offence or act, or the abuse of power, was committed, and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power, the court may find that the communication was so made or the document so prepared. (3) In this section:"power"means a power conferred by or under an Australian law.

32 Client legal privilege Kang v Kwan [2001] NSWSC 698 (KOP [14.110]) Fraud exception The plaintiff was a creditor of the second and third defendants. He sought to enforce a lien over the proceeds of sale of a house in Castlecrag. The proceeds were used to pay a mortgage to Kwan. Kang claimed that the transaction was designed to defraud him. A subpoena was issued for the sale file of one of the solicitors. Privilege was claimed over the documents. It was argued that some of the communications were made in furtherance of a fraud. The Court set out principles in relation to the application of s 125.

33 Kang v Kwan [2001] NSWSC 698 Principles in relation to s 125: Client legal privilege 1. Section 118of theevidence Actwill operate to bestow legal privilege to confidential communications between a lawyer and client if the dominant purpose of those communications is to acquire legal advice. This is so even if the client intends to use the legal advice obtained, in furtherance of a fraud or some other improper purpose: per Hodgson CJ inidoportpty Limited & Anor v National Australia Bank Limited & Ors[2001] NSWSC 222at para[60]. However that privilege does not prevent the adducing of such evidence where the conditions ins125of theevidence Actare made out. 2. However,s 118will not operate where the improper purpose of the client is not to be pursued through the legal advice which is being sought. In those circumstances the claim for privilege fails at the threshold ofs118.thus it fails where legal advice is not obtained for the utility of that advice in furtherance of the improper purpose but instead for the sake of appearance, as by cloaking an illegal step with the appearance that things are being done properly: per Hodgson CJ in Idoport Pty Limited

34 Client legal privilege Kang v Kwan [2001] NSWSC 698 (KOP [14.100]) Principles in relation to s 125: 3. A person who alleges that legal professional privilege does not apply to a communication raises an issue for decision and has the onus of proving it. 4. At common law a party seeking to resist a claim for legal professional privilege, based on the communication being to facilitate crime or fraud, need show reasonable grounds for believing that the communication between solicitor and client was one made in furtherance of an illegal or improper purpose, including fraud. That is the standard ins125(2), namely that there are reasonable grounds for finding the fraud, offence, or act, or the abuse of power was committed and a communication was made or document prepared in furtherance thereof 5. Thus where it is alleged that the communication falls outside the ambit of protection for legal professional privilege it is not sufficient for the party seeking to resist the claim for legal privilege merely to state or assert that the communication was made in furtherance of a fraud or other illegal purpose but must adduce admissible evidence: Commr of AFP v Propend Finance Pty Limited

35 Client legal privilege Kang v Kwan [2001] NSWSC 698 (KOP [14.100]) Principles in relation to s 125: 6. Although the standard of proof is not required to the level of proof on the balance of probabilities that the communication was made in the commission of a fraud or other improper purpose, there must be something to give colour to the charge, some evidence at a prima facie level that has foundation in fact grounding such a claim: per McHugh J inpropendat 587; Hill J inzemanek(supra) at Consistent with the reasoning inpropend, the standards for establishing reasonable grounds will depend on the circumstances, though must still be sufficient to give colour to the charge, that is at a prima facie level. Thus if a person challenging privilege is clearly not in a position to lead very much evidence concerning purpose, as where the other party has exclusive access to that evidence, the Court may be satisfied with relatively less evidence. In contrast, much more evidence may be required where the party challenging improperly obtained access to that evidence:watson v McLearnon[2000] NSWSC 19, Hodgson CJ in Eq, 1 February 2000.

36 Client legal privilege Kang v Kwan [2001] NSWSC 698 (KOP [14.100]) Principles in relation to s 125: 8. Nor must it be overlooked that the court, bys133, may inspect the documents the subject of the claim for privilege, for the purpose of determining a question that arises under the relevantpart 3.Such questions include not only the question of the application ofs118but also questions concerning whether the client legal privilege has been lost or whether the evidence may nonetheless be adduced as under s I would follow the view, though expressed as tentative, that "fraud", as used ins.125, requires an element of dishonesty; per Hodgson CJ in Eq inidoportpara [63]. I would however use that term to include the kind of sharp practice often associated with equitable fraud encompassed by the Shorter Oxford Dictionary sense of dishonesty, namely lack of probity; disposition to deceive, defraud or steal. I would agree also that an abuse of power which is dishonest would be caught bys125(1)(b)as is clear from the requirement that there be a deliberate abuse of power. It is difficult to imagine a deliberate abuse of power that does not involve some element of dishonesty but I leave open that possibility for future decision.

37 Client legal privilege Kang v Kwan [2001] NSWSC 698 (KOP [14.100]) Principles in relation to s 125: 10. It follows that the use of the word "deliberate" ins125(1)(b)requires that the client know that the acts in question are an abuse of power, not merely that the client unknowingly but deliberately commit acts that constitute an abuse of power: per Hodgson CJ in Idoport para [64]. 11. The range of instances of fraud are not limited to legal fraud in the narrow sense, but as is said in Cross on Evidence by J D Heydon(Butterworths, 1996) at 25,148: all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances,for example an employee who schemes to take other employees and customers into a business competing with the employer s after termination of the employment, or the effecting of transactions at an under value with the purpose of prejudicing a creditor s interests.

38 Client legal privilege Kang v Kwan [2001] NSWSC 698 (KOP [14.100]) Principles in relation to s 125: 12. A communication which is made in furtherance of an abuse of the processes of the Court is not of itself fraud, involving dishonesty or a deliberate abuse of a power in the sense used ins125(1)(b).however, a dishonest communication to the Court, in furtherance of a purpose standing outside the (legitimate) scope of the relevant legal process so as to amount to an abuse of process, would invokes125(1)(b), as constituting a deliberate abuse of a power. This is because the bringing of (or defending) legal proceedings is the exercise of a power which is conferred by or under an Australian law, within the definition of power ins125(3). Here it did not matter that neither client nor lawyer need appreciate the fraudulent purpose public policy issue. Action to deliberately frustrate a judgment by dissipating assets is itself dishonest and constitutes fraud under s 125

39 Client legal privilege Section 126 Loss of client legal privilege: related communications and documents If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document. Example: A lawyer advises his client to understate her income for the previous year to evade taxation because of her potential tax liability as set out in my previous letter to you dated 11 August In proceedings against the taxpayer for tax evasion, evidence of the contents of the letter dated 11 August 1994 may be admissible (even if that letter would otherwise be privileged) to enable a proper understanding of the second letter.

40 Professional relationship privilege Not really a privilege, but a discretion in relation to confidential relationships. 126A 126F are only found in the following Evidence Acts: NSW Tasmania (see also s 127A re communications to doctors) Australian Capital Territory Therefore not found in: Commonwealth Victoria Northern Territory

41 Professional relationship privilege Section 126A Definitions (1) In this Division: "harm"includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). "protected confidence"means a communication made by a person in confidence to another person (in this Division called the"confidant"): (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant. "protected confider" means a person who made a protected confidence. "protected identity information"means information about, or enabling a person to ascertain, the identity of the person who made a protected confidence.

42 Professional relationship privilege Section 126A Definitions (2) For the purposes of this Division, a communication may be made in confidence even if it is made in the presence of a third party if the third party s presence is necessary to facilitate communication.

43 Professional relationship privilege Section 126B Exclusion of evidence of protected confidences (1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose: (a) a protected confidence, or (b) the contents of a document recording a protected confidence, or(c) protected identity information. (2) The court may give such a direction: (a) on its own initiative, or (b) on the application of the protected confider or confidant concerned (whether or not either is a party). (3) The court must give such a direction if it is satisfied that:

44 Professional relationship privilege Section 126B Exclusion of evidence of protected confidences (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters: (a) the probative value of the evidence in the proceeding, (b) the importance of the evidence in the proceeding, (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,

45 Professional relationship privilege Section 126B Exclusion of evidence of protected confidences (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed, (g) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor, (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person, (i) the public interest in preserving the confidentiality of protected confidences, (j) the public interest in preserving the confidentiality of protected identity information.

46 Professional relationship privilege Section 126B Exclusion of evidence of protected confidences (k) the public interest in preserving the confidentiality of protected identity information. (5) The court must state its reasons for giving or refusing to give a direction under this section.

47 Professional relationship privilege Section 126C Loss of professional confidential relationship privilege: consent This Division does not prevent the adducing of evidence given with the consent of the protected confider concerned.

48 Professional relationship privilege Section 126D Loss of professional confidential relationship privilege: misconduct (1) This Division does not prevent the adducing of evidence of a communication made or the contents of a document prepared in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty. (2) For the purposes of this section, if the commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that: (a) the fraud, offence or act was committed, and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act, the court may find that the communication was so made or document so prepared.

49 Professional relationship privilege Section 126E Ancillary orders Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of a protected confidence or protected identity information, the court may: (a)order that all or part of the evidence be heard in camera, and (b)make such orders relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, are necessary to protect the safety and welfare of the protected confider.

50 Professional relationship privilege Section 126F Application of Division (1)This Division does not apply in relation to a proceeding the hearing of which began before the commencement of this Division. (2)This Division applies in relation to a protected confidence within the meaning of this Division whether made before or after the commencement of this Division. (3)This Division does not apply in relation to a protected confidence within the meaning of Division 1B or Division 2 of Part 5 of Chapter 6 of thecriminal Procedure Act Note : The Commonwealth Act does not include this subsection.??? (4) The court may give a direction under this Division in respect of a protected confidence or protected identity information whether or not the protected confidence or protected identity information is privileged under another section of this Part or would be so privileged except for a limitation or restriction imposed by that section.

51 Professional relationship privilege Director General, DOCS v D[2006] NSWSC 827 (KOP [14.120]) Mother opposed to production of documents on subpoena which disclosed her communications with community health centreon the basis that they disclosed communications made in confidence to a confidant acting in a professional capacity where there was an obligation not to disclose the contents of the documents. Section 126B concerned with adducing evidence in Court, but if production under subpoena would defeat operation of the section, the relevant to exercise of the discretion. It would be inappropriate to allow the documents to be disclosed, but then disallow them at the hearing. (c.f. previous Mann v Carnell) Section 126B does not create a privilege, but gives a judge the discretion to refuse to adduction of evidence. The mere fact of confidentiality gives rise to the discretion, but does not create an entitlement to its exercise. The Court must weigh up the factors.

52 Professional relationship privilege Director General, DOCS v D[2006] NSWSC 827 (KOP [14.120]) Here all but one factor weigh in favour of allowing the evidence to be adduced. Refused direction under s 128B and refused to withhold the documents: The defendant was calling the Dr who would be indirectly making use of the documents, so it was fair that they be made available to scrutinise his evidence. No evidence of harm caused by disclosure. Confidential nature of the proceedings will minimise their disclosure. The proceedings concerned the welfare of a child.

53 Sexual assault privilege 126G 126I are only found in the NSW Evidence Acts and not in the other UEL jurisdictions. But Tasmania has a privilege for communications to counsellors regarding sexual assault.

54 Section 126G Definitions Sexual assault privilege In this Division: "criminal proceeding"has the same meaning as criminal proceedings has in Division 2 of Part 5 of Chapter 6 of thecriminal Procedure Act1986. "principal protected confider"has the same meaning as it has in Division 2 of Part 5 of Chapter 6 of thecriminalprocedure Act "protected confidence"has the same meaning as it has in Division 2 of Part 5 of Chapter 6 of thecriminalprocedure Act "sexual assault offence"has the same meaning as it has in Division 2 of Part 5 of Chapter 6 of thecriminalprocedure Act 1986.

55 Sexual assault privilege Section 126H Exclusion of evidence of protected sexual assault communications (1)This section applies only in a civil proceeding in which substantially the same acts are in issue as the acts that were in issue in relation to a criminal proceeding. (2) If evidence was found to be privileged in a criminal proceeding under Division 2 of Part 5 of Chapter 6 of thecriminalprocedure Act 1986, the evidence may not be adduced in a civil proceeding to which this section applies Div2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986deals with communications with sexual assault counsellors, reporting of sexual assault

56 Sexual assault privilege Section 126I Application of Division (1)This Division does not apply in relation to a civil proceeding the hearing of which began before the commencement of this section. (2)This Division applies, subject to subsection (1), in respect of a protected confidence whether made before or after the commencement of this section.

57 Journalist privilege 126J 126L are found in the following Evidence Acts: NSW Australian Capital Territory 126J 126K (but not 126L) are found in the following Evidence Acts: Commonwealth Victoria The privilege doesn t appear at all in: Northern Territory Tasmania

58 Section 126J Definitions Journalist privilege In this Division: "informant"means a person who gives information to a journalist in the normal course of the journalist s work in the expectation that the information may be published in a news medium. "journalist"means a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium. "news medium"means a medium for the dissemination to the public or a section of the public of news and observations on news.

59 Journalist privilege Section 126K Journalist privilege relating to identity of informant (1) If a journalist has promised an informant not to disclose the informant s identity, neither the journalist nor his or her employer is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained. (2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in the proceeding, the public interest in the disclosure of the identity of the informant outweighs: (a) any likely adverse effect of the disclosure on the informant or any other person, and (b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts. (3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.

60 Section 126L Application of Division Journalist privilege (1)This Division extends to information given by an informant before the commencement of this Division. (2) This Division does not apply in relation to a proceeding the hearing of which began before the commencement of this Division. (3) This Division (as applied by section 131A) does not apply to a disclosure requirement referred to in that section made before the commencement of this Division.

61 Section 127 Religious confessions Religious confessions (1) A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy. (2) Subsection (1) does not apply if the communication involved in the religious confession was made for a criminal purpose. (3) This section applies even if an Act provides: (a) that the rules of evidence do not apply or that a person or body is not bound by the rules of evidence, or (b) that a person is not excused from answering any question or producing any document or other thing on the ground of privilege or any other ground. (4) In this section:"religious confession"means a confession made by a person to a member of the clergy in the member s professional capacity according to the ritual of the church or religious denomination concerned.

62 Self-incrimination Section 128 Privilege in respect of self-incrimination in other proceedings (1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty. (2) The court must determine whether or not there are reasonable grounds for the objection. (3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness: (a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and (b) that the court will give a certificate under this section if:

63 Self-incrimination Section 128 Privilege in respect of self-incrimination in other proceedings (i) the witness willingly gives the evidence without being required to do so under subsection (4), or (ii) the witness gives the evidence after being required to do so under subsection (4), and (c) of the effect of such a certificate. (4) The court may require the witness to give the evidence if the court is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence.

64 Self-incrimination Section 128 Privilege in respect of self-incrimination in other proceedings (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence. (6) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence: (a) evidence given by a person in respect of which a certificate under this section has been given, and

65 Self-incrimination Section 128 Privilege in respect of self-incrimination in other proceedings (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. Note :This subsection differs from section 128 (7) of the Commonwealth Act. The Commonwealth provision refers to an Australian Court instead of a NSW court. (8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned. (9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence. (10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:

66 Self-incrimination Section 128 Privilege in respect of self-incrimination in other proceedings (a) did an act the doing of which is a fact in issue, or (b) had a state of mind the existence of which is a fact in issue. (11) A reference in this section to doing an act includes a reference to failing to act. (12) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by a person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section. (13) For the purposes of subsection (12), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of that subsection. (14) Subsection (12) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth.

67 Self-incrimination Section 128 Privilege in respect of self-incrimination in other proceedings. Notes : 1 Bodies corporate cannot claim this privilege. See section Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty. 3 Section 128 (12)-(14) of the Commonwealth Act give effect to certificates in relation to self-incriminating evidence under the NSW Act in proceedings in federal and ACT courts and in prosecutions for Commonwealth and ACT offences. 4 Subsections (8) and (9) were inserted as a response to the decision of the High Court of Australia in Cornwell v The Queen[2007] HCA 12(22 March 2007).

68 Self-incrimination Section 128A Privilege in respect of self-incrimination-exception for certain orders etc (1) In this section: "disclosure order"means an order made by a NSW court in a civil proceeding requiring a person to disclose information as part of, or in connection with, a freezing, search or other order under Part 25 of theuniform Civil Procedure Rules 2005but does not include an order made by a court under theproceeds of CrimeAct 2002of the Commonwealth or theconfiscation of Proceeds of Crime Act 1989orCriminal Assets Recovery Act 1990 of New South Wales. "relevant person" means a person to whom a disclosure order is directed. (2) If a relevant person objects to complying with a disclosure order on the grounds that some or all of the information required to be disclosed may tend to prove that the person: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty,

69 Self-incrimination Section 128A Privilege in respect of self-incrimination-exception for certain orders etc the person must: (c) disclose so much of the information required to be disclosed to which no objection is taken, and (d) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken (the"privilege affidavit") and deliver it to the court in a sealed envelope, and (e) file and serve on each other party a separate affidavit setting out the basis of the objection. (3) The sealed envelope containing the privilege affidavit must not be opened except as directed by the court. (4) The court must determine whether or not there are reasonable grounds for the objection.

70 Self-incrimination Section 128A Privilege in respect of self-incrimination-exception for certain orders etc (5) Subject to subsection (6), if the court finds that there are reasonable grounds for the objection, the court must not require the information contained in the privilege affidavit to be disclosed and must return it to the relevant person. (6) If the court is satisfied that: (a) any information disclosed in the privilege affidavit may tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and (b) the information does not tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (c) the interests of justice require the information to be disclosed, the court may make an order requiring the whole or any part of the privilege affidavit containing information of the kind referred to in paragraph (a) to be filed and served on the parties.