AW -v- RAYNEY [2010] WASCA 161 (6 August 2010)

Procedural fairness - Magistrate permitted person claiming legal professional privilege to rely on affidavits and written submissions that were, in part, redacted - Redacted parts of affidavits and written submissions were known to the magistrate and the claimant but withheld from the party opposing the claim of privilege - Magistrate held private hearings with the claimant about the redactions from which the other party was excluded - Whether the party opposing the claim was denied procedural fairness

Privilege - Legal professional - Person claiming privilege covertly recorded conversations on digital dictaphones - Claimant made copies of the original recordings - Claimant deliberately threw out the dictaphones after making the copies - Whether privilege existed in relation to the originals - Whether privilege existed in relation to the copies

Covert recordings of conversations - Person making the recordings a party to the conversations - Whether recordings made in breach of s 5(1)(b) of the Surveillance Devices Act 1998 (WA) - Whether the use of a listening device was 'reasonably necessary for the protection of the lawful interests' of the person making the covert recordings within s 5(3)(d) of the Act

Privilege - Legal professional - Whether names of the parties to covertly recorded conversations and the dates on which the conversations occurred were privileged - Whether the disclosure of the names and the dates would reveal the content of a privileged communication

Appeal - Point not raised before the magistrate - Whether the party who did not raise the point below should be permitted to advance it as a new case on appeal

Criminal Investigation Act 2006 (WA), s 151

Surveillance Devices Act 1998 (WA), s 5, s 9

Adams v Anthony Bryant & Co Pty Ltd (1986) 15 FCR 513

Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167

Attorney-General (Northern Territory) v Kearney [1985] HCA 60; (1985) 158 CLR 500

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526

Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547

AW v Rayney [2009] WASC 250

AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382

Bailey v Director-General, Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333

Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52

Balabel v Air India [1988] Ch 317

Banque Commerciale SA, en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279

Bullivant v Attorney-General (Vic) [1901] AC 196

Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649; (2005) 223 ALR 284

Carbone v National Crime Authority [1994] 52 FCR 516

Carter v Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121

Chao v Chao [2008] NSWSC 584

China National Petroleum Corporation v Fenwick Elliott & Techint International Construction Co [2002] EWHC 60 (Ch)

Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501

Commissioner of Taxation v Coombes [1999] FCA 842; (1999) 92 FCR 240

Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543

Deputy Commissioner of Taxation v Nicholls (No 3) [2009] FCA 785

Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49

Findlay v State of Victoria [2009] VSCA 294

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

Gunns Ltd v Marr [2008] VSC 464

Haj-ismail v The Minister for Immigration (No 2) [1982] FCA 231; (1982) 45 ALR 379

Harris Scarfe Ltd (receivers and managers appointed) (in liq) v Ernst & Young [2006] SASC 325; (2006) 204 FLR 165

Health & Life Care Ltd v Price Waterhouse [1997] SASC 6306; (1997) 69 SASR 362

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 84 ALJR 31

Jefferson Ford Pty Ltd v Ford Motor Co of Australia Pty Ltd [2007] VSC 450

Latham v Latham [2008] Fam CA 877

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

Menkens v Wintour [2006] QSC 342; [2007] 2 Qd R 40

Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332

Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181

National Crime Authority v S (1991) 29 FCR 203

National Employers' Mutual General Insurance Association Ltd v Waind [1979] HCA 11; (1979) 141 CLR 648

Osland v Secretary to the Department of Justice [2008] HCA 37; (2008) 234 CLR 275

Parkin v O'Sullivan [2009] FCA 1096

Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357

Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279

Public Trustee v Alvaro [1995] SASC 5183

R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141

R v Le [2004] NSWCCA 82; (2004) 60 NSWLR 108

Rayney v AW [2009] WASCA 203

Re ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) [2008] FCA 964

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Re Southland Coal Pty Ltd (Receivers and Managers Appointed) (in liq) [2006] NSWSC 899; (2006) 203 FLR 1

Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335

Schreuder v Murray [No 2] [2009] WASCA 145

Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108

Southwark Water Co v Quick (1878) 3 QBD 315

State of New South Wales v Jackson [2007] NSWCA 279

Sugden v Sugden [2007] NSWCA 312; (2007) 70 NSWLR 301

Telebooth Pty Ltd v Telstra Corporation Ltd [1994] VicRp 21; [1994] 1 VR 337

Telstra Corporation v Australis Media Holdings (Unreported, NSWSC, Library No 97001041, 10 February 1997)

The Queen v Bebic (Unreported, NSWCCA, 27 May 1982)

The Queen v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141

Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307

Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244

University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481

Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529

WorkCover Authority (NSW), (General Manager) v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502

Z v New South Wales Crime Commission [2007] HCA 7; (2007) 231 CLR 75

1 McLURE P: These appeals are from orders made by Magistrate Flynn on 17 December 2009 relating to Mr Lloyd Rayney's claim of legal professional privilege for documents seized from Mr Rayney and his family lawyer. All the necessary background is set out in the reasons for judgment of Buss JA. It is sufficient to note the following.

2 On 7 August 2007 Corryn Rayney, the wife of Mr Rayney, was killed. Her body was located on 18 August 2007. Mr Rayney is a practising barrister with significant criminal law experience. He claimed legal professional privilege for records seized from his home and business premises and from the offices of Carr & Co, his family law solicitors. The records were seized by Western Australian police pursuant to search warrants issued under s 42 of the Criminal Investigation Act 2006 (WA) (the Act).

3 In accordance with s 151 of the Act, AW (who I will refer to in these reasons as the appellant), a member of the Western Australian police force, made applications to the Magistrates Court at Perth for the determination of Mr Rayney's claims of legal professional privilege.

4 Magistrate Flynn appointed a computer forensic expert to assist him in identifying relevant records contained in electronic records seized from Mr Rayney's premises. Audio recordings were located within the electronic records. The audio recordings included 81 items which are referred to as the 'Tranche 1 Files'.

5 On 18 and 19 November 2009 the learned magistrate heard Mr Rayney's claim of legal professional privilege over the Tranche 1 Files and a file note dated 6 August 2007 made by Mr Carr during a conference with Mr Rayney on that date (the Carr file note).

6 The magistrate categorised the items in the Tranche 1 Files as follows:

ID 1 - 9, identified as being copies of audio recordings of conversations between Mr Rayney and his wife;

ID 10 - 29; ID 52 - 73 and ID 75 - 81, identified as copies of recordings of telephone conversations between Mr Rayney and third parties made without the knowledge or consent of those parties;

The whole of ID 51 and 74, parts of which contained information about the computer files in Categories 1 and 2.

7 The magistrate found that the Category 1 files were not privileged; with the exception of items 12, 13, 54 and 55, the Category 2 files were privileged; and those parts of ID 51 and ID 74 that would disclose privileged information the subject of the Category 2 files were also privileged.

8 For the purposes of the determination of his claim, Mr Rayney was permitted to file and rely on affidavits and written submissions, significant portions of which were redacted. The affidavits and written submissions in redacted form were served on the appellant.

9 This is the second appeal to this court arising out of the applications for the determination of Mr Rayney's claims of legal professional privilege. The appellant appealed against orders made by the magistrate relating to the extent of the permitted redactions to the affidavit evidence and written submissions filed on behalf of Mr Rayney. The appeal was ordered to proceed as an application for review under s 36 of the Magistrates Court Act 2004 (WA) and the primary judge ordered that the affidavits and submissions filed on behalf of Mr Rayney be served in unredacted form on counsel for AW, subject to the provision of confidentiality undertakings. There was no issue in that appeal as to the propriety of the procedure adopted by the magistrate for determining the claim to legal professional privilege or the merits of the rulings he made on the permissible redactions: Rayney v AW [2009] WASCA 203 [41] (the first appeal). In the course of the hearing of the first appeal on 22 October 2009, the court made observations about the usual procedure for determining claims of legal professional privilege.

10 The hearing before the magistrate occupied one and half days during which five witnesses were called to give evidence, including Mr Rayney, his family lawyer (Mr W Carr) and his criminal lawyer (Ms Amanda Blackburn). The magistrate imposed time limits on the cross-examination and re-examination of witnesses. As a result of court related time constraints, the parties did not make closing submissions.

11 The six grounds of appeal on which the appellant relies are directed at the successful claim of privilege in relation to the Category 2 files, and those parts of the Category 3 files that would disclose the content of the Category 2 files. Mr Rayney appeals against the dismissal of his privilege claim over the Category 1 files.

12 I propose to commence with the appellant's grounds 2 and 3 which claim the magistrate erred in ruling that the original recordings of the discussions and the Category 2 files were privileged. In order to ensure that any appeal from the decision of this court is not rendered nugatory, the content of the communications in issue are summarised in schedules to the reasons of Buss JA which will remain confidential to Mr Rayney until further order.

13 Following this court's observations during the hearing of the first appeal, the magistrate ordered Mr Rayney to provide relevant non-privileged information about each item in the Category 2 files. The information provided by Mr Rayney for each item was identical and in the following terms:

Recorded telephone discussion made after 7 August 2007 between [Mr Rayney] and another person for the purpose of seeking legal advice in respect of potential litigation, use in such potential litigation and seeking legal advice in relation to the discussion.

14 The statement is unhelpfully general. It does not disclose whether the record was an original or a copy; when the original was made; when the copy was made; who created, or caused to be created, the original and/or copy; whether the claim to privilege derived from the privileged status of the telephone discussion or because the record of the discussion was for communication to his lawyers; the name of the third party, or the general category into which they would fall (eg possible witness); whether and if so when the Category 2 files were communicated to a lawyer; and the subject matter of the anticipated litigation.

15 Mr Rayney contended that the date of the original recordings and the name or other details of the 'other person' could not be revealed without disclosing the content of the privileged material. Assuming for the moment that is correct, it provides no excuse for the failure to provide the balance of the information to which I have referred. However, even if that information had been provided, the nature and extent of the properly redacted information (that which would, directly or indirectly, disclose the nature or content of the confidential communications the subject of the privilege claim) was such as to effectively exclude the appellant from meaningful involvement in the identification and determination of a number of issues arising out of the claim of privilege. Mr Rayney was able to advance and advocate for fundamental aspects of his privilege claim in secret and on unchallenged evidence. That is particularly unfortunate because the claim raises challenging legal and factual issues.

16 Section 151 of the Act provides for the procedure to be followed when records seized under the Act are the subject of a claim of, inter alia, legal professional privilege. By s 151(7) the applicant and any person entitled to possession of the records are entitled to be heard on the application. Nothing in s 151 displaces or alters the scope or application of the common law principles relating to legal professional privilege.

17 Mr Rayney's claim in relation to the Category 2 files rests on both limbs of legal professional privilege, being advice privilege and litigation privilege. Advice privilege attaches to confidential communications made for the dominant purpose of obtaining or giving legal advice. The traditional formulation of litigation privilege is that it applies to confidential communications passing between a client, the client's legal adviser and third parties for the dominant purpose of use in litigation which is either pending or in contemplation. There must be a real prospect of litigation as distinct from a mere possibility: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59.

18 Legal professional privilege extends to material prepared for the dominant purpose of communication to the legal adviser even if the communication has yet to occur: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 690.

19 Legal professional privilege ordinarily protects communications rather than documents; the test for privilege is anchored to the purpose for which the document was brought into existence: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. Thus, legal professional privilege can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test: Propend (507) (Brennan CJ), (544) (Gaudron J), (553 - 554) (McHugh J), (571 - 572) (Gummow J) and (587) (Kirby J).

20 There is a qualification to the general rule. Legal professional privilege also protects from disclosure documents that record legal work carried out by the lawyer (such as research and file notes) for the benefit of the client whether or not they are, or are intended to be, provided to the client: Propend (550) (McHugh J); Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244, 245 - 246 (Lockhart J); Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325, 333 - 334 (Anderson J).

21 Communications with an adversary or a person with an adverse interest are not ordinarily confidential for the purposes of the privilege: Sugden v Sugden [2007] NSWCA 312; (2007) 70 NSWLR 301 [63] - [64]; Telebooth Pty Ltd v Telstra Corporation Ltd [1994] VicRp 21; [1994] 1 VR 337, 339.

22 The question whether the relevant communication must be confidential in order to attract litigation privilege is not finally settled. The authorities are discussed in Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279. The balance of authority is that confidentiality is required but is satisfied if it is intended that the relevant communication be and remain private until the client elects to disclose the content: Public Transport Authority [35].

23 The party resisting disclosure carries the onus of proving that legal professional privilege applies: Grant v Downs (689).

24 A dominant purpose is one that predominates over other purposes; it is the prevailing or paramount purpose: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 [35]. Where the question involves a document, the relevant purpose is the purpose for bringing into existence the document containing or comprising part of the confidential communications: Grant v Downs (688, 694).

25 The purpose for which a communication is undertaken or a document is brought into existence is a question of fact that must be determined objectively; evidence of the intention of the person who made, or caused to be made, the document is not conclusive: Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 [30].

26 It is not suggested that Mr Rayney was at any material time acting in his capacity as a lawyer representing himself. He had retained Ms Blackburn to act for him; his position was that of client, he being the defendant in anticipated criminal proceedings relating to the death of his wife. Nor is there any suggestion that Mr Rayney recorded the conversations on behalf of or at the direction of his lawyers.

27 Mr Rayney made the original recordings with a handheld dictaphone. The Category 2 files were created by Mr Rayney in mid-September 2007. I propose to commence with the question whether the original recording (on the dictaphone) of each conversation is privileged. The proper starting point is the status of the conversations themselves, most of which were initiated by the 'other person' (the third party).

28 Having regard to the position and capacity in which each third party acted and the content of the discussions, there is no arguable basis for a claim that any of those communications are privileged. Thus, the original recordings cannot derive privilege by reference to the communications recorded.

29 The original recordings can only attract legal professional privilege if, at the time of their creation, Mr Rayney intended to provide those recordings to his lawyer for legal advice or for use in the anticipated litigation. In those circumstances, the only relevant (intended) 'communication' is between Mr Rayney and his lawyer and the only potential confidential information to be protected is that Mr Rayney intended to seek legal advice in relation to the contents of the original recordings or to use that information in the anticipated litigation.

30 That being the case, the third parties can and should previously have been identified generically as police officers and the subject matter of the discussion broadly identified as being in connection with the investigation of the disappearance and death of Mrs Rayney. That information is in sufficiently general terms to prevent the appellant and other police officers from identifying the particular communications in issue. In particular, there is no evidence that the Category 2 files contain all the conversations between Mr Rayney and police recorded on the dictaphone or that Mr Rayney recorded all his telephone conversations with police from 7 August 2007 to 20 September 2007.

31 The disclosure of the limited information reveals that the third parties were acting in the performance of their public duties and would be entitled, indeed bound, to seek and use relevant information from Mr Rayney in any way necessary or desirable in the proper exercise of their duties. Neither participants to the conversations in question could reasonably infer that their discussions would be confidential in the sense required to sustain a claim of legal professional privilege. The communications bear no similarity to obtaining a proof of evidence from a potential witness.

32 For the sake of completeness, I should make explicit what is implicit in this analysis which is that save for the privilege against self-incrimination, the right to silence (a shorthand expression covering a number of distinct rules) does not limit the statutory power under s 42 of the Act or modify or reduce the obligations associated with establishing a claim of legal professional privilege.

33 As previously noted, the original recordings could only be privileged if they were created with the intention of providing them to a lawyer for legal advice or use in litigation. There is no proper foundation in the evidence for a finding that at the time of recording each separate conversation Mr Rayney intended to provide the original recording (on the dictaphone) to his lawyer for any purpose that would attract privilege. As the relevant intention had to exist prior to Mr Rayney acquiring knowledge of the content of the discussions (which were largely instituted by police on a variety of matters), the evidence is incapable of supporting such a finding. The best that can be said is that he might have done so. However, adverse inferences are also objectively open on the evidence as a whole. I discuss those matters below. Accordingly, the magistrate erred in finding that the original recordings were privileged.

34 Mr Rayney's evidence was that he created the Category 2 files with the intention of providing them to his lawyer. The Category 2 files, created by Mr Rayney in mid-September 2007, are contained on a compact disc (with the words '5.9 - 18.9' written on the outside) and on each of the computers seized from Mr Rayney's residential and business premises [51]. The only reasonable inference to be drawn is that, even if one of the copies of the Category 2 files was intended for provision to Mr Rayney's lawyer, Mr Rayney would remain in possession of the other copies of the Category 2 files. That raises for consideration the question whether the Category 2 copies on Mr Rayney's computers (which it can be inferred were intended to remain in Mr Rayney's possession) are not privileged.

35 As the conversations the subject of the covert recordings and the original recordings are not themselves privileged, it is arguable that the Category 2 copies which were intended to remain in Mr Rayney's possession are also not privileged. However, these matters were not raised by the parties (the appellant would not have known they were an issue) and need not be decided. I will proceed on the assumption that if the relevant dominant purpose existed at the time of making the Category 2 files, all copies thereof will attract privilege.

36 The magistrate found that the Category 2 files were created for the dominant purpose of obtaining legal advice or for use in the anticipated criminal proceedings against Mr Rayney. The appellant challenges that finding.

37 This court is in as good a position as the magistrate to decide on the proper inferences to be drawn from the evidence concerning Mr Rayney's purpose, in which event if it considers that the magistrate erred, this court must give effect to its own judgment: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. This court is in the position to draw its own inferences because purpose is to be objectively determined and because the evidence on that subject could not be adequately tested in cross-examination as a result of the procedure adopted for determining the privilege claim. Moreover, the magistrate's finding concerning the Category 2 files is informed by his erroneous finding that the original recordings were privileged.

38 Having regard to all the relevant evidence, I am not satisfied that Mr Rayney made the copies of the original recordings of the communications between Mr Rayney and the third parties (the Category 2 files) for the predominant purpose of providing them to his lawyer to seek or obtain legal advice or for use in litigation. I have reached that conclusion for the following reasons.

39 It is apparent from the content of the Category 2 files that the original recording was 'at large' in the sense it was driven by the position (status) of the third parties rather than any expectation on reasonable grounds that the conversation would be on a subject of relevance to Mr Rayney in his capacity as a defendant in potential criminal proceedings relating to the death of his wife, rather than in his capacity as husband or father. A covert sweep of that breadth is bound to, and did, produce material of no significance or relevance from a legal advice or litigation perspective. The content of the Category 2 files supports the inference that the original recordings were copied without reference to their individual legal significance or relevance.

40 That inference is supported by Mr Rayney's failure to communicate the content of any of the recorded conversations to Ms Blackburn. That is, Mr Rayney did not provide the original recordings or the Category 2 files to his lawyer nor did he seek or obtain legal advice from her about the content of those recordings. Moreover, although the Category 2 files were seized on 20 September 2007, Mr Rayney still had the original recordings on his dictaphone and thus had the means to provide the original or a copy of the recordings to his lawyer. Rather than take that course, Mr Rayney disposed of the dictaphone. At best, Mr Rayney's objectively determined purpose in copying the original recordings was to enable him to assess at a later stage whether the communications should be referred to his lawyer for advice or for use in the event the anticipated litigation materialised. That purpose does not attract privilege.

41 At worst, there is evidence to suggest Mr Rayney acted for an improper purpose or purposes. The disposal of the dictaphone containing the original recordings of the Category 2 files was not adequately explained. That conduct must be assessed against the background of Mr Rayney's oral evidence concerning his dealings with the (different) dictaphone used to record conversations with his wife prior to her death, which he also disposed of.

42 Mr Rayney's evidence was to the following effect. After the execution of the search warrant on 20 September 2007, Mr Rayney left the dictaphone containing the original recordings of the conversations with his wife in the offices of his criminal lawyer in a file together with his papers (ts 33). The file was not provided to his lawyer but simply placed on a desk in her offices. He returned sometime later to collect the file and subsequently disposed of the dictaphone. It is open to infer that Mr Rayney put the dictaphone (and the files) into the possession of his lawyer for the dominant purpose of protecting them from seizure and compulsory disclosure rather than for the purpose of obtaining advice or for use in litigation. Clearly that purpose would not attract privilege.

43 Against that background, it is also open to infer that at the time Mr Rayney made the Category 2 files he believed (correctly in my view) the original recordings were not privileged. Notwithstanding that the relevant search warrant entitled police to seize the dictaphone from the search premises, Mr Rayney kept the dictaphone on his person during the execution of the search warrant. That search occurred on 20 September 2007, shortly after Mr Rayney created the Category 2 files. The dictaphone was disposed of shortly after that search. The search on 20 September 2007 was preceded by an earlier search of Mr Rayney's residence on 22 August 2007.

44 Having a belief that the original recordings were not privileged, it may be further inferred that Mr Rayney made the Category 2 files with the intention of ensuring that the dictaphone with the original recordings was placed out of reach of the authorities. Clearly that purpose cannot attract privilege. As this dictaphone was not placed with his lawyer, it can be inferred that he intended to dispose of it.

45 Having regard to all the matters canvassed above, I am not satisfied that Mr Rayney created the Category 2 files for the dominant purpose of providing them to his lawyer for legal advice or for use in litigation.

46 The appellant also contended that, Mr Rayney having disposed of the unprivileged original recordings and there being no other admissible evidence to prove the contents of the original, the otherwise privileged copy lost its protection: Propend (512) (Brennan CJ). Chief Justice Brennan relied on the principle of implied waiver of privilege by reason of unfairness in coming to this position (511). However, the fairness principle has now been rejected as the rationale or basis for the test of waiver: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [29]: Osland v Secretary to the Department of Justice [2008] HCA 37; (2008) 234 CLR 275, [35], [44] - [46], [48] - [50]. Moreover, the position of Brennan CJ is inconsistent with that of McHugh J (555) and Gummow J (570 - 571) in Propend. Their position is that a copy of a non-privileged document will not be protected by privilege if the party copied the non-privileged document with the intention of destroying the original. Having regard to modern authority, I would follow the law as stated by McHugh and Gummow JJ.

47 However, it is unnecessary for the disposition of this appeal to make positive adverse findings against Mr Rayney as to his actuating purposes in making the Category 2 files. In circumstances where there were significant restrictions on the ability of the appellant to properly cross-examine Mr Rayney on all relevant matters, I would decline to do so. However, the content of the Category 2 files and the fact that the adverse findings identified earlier are objectively open, causes me to conclude that it was not reasonably open to the magistrate to make a positive finding that Mr Rayney's dominant purpose in making the Category 2 files was to provide them to his lawyer for legal advice or for use in litigation.

48 The magistrate having erred in finding that Mr Rayney's dominant purpose in making the original recordings and the Category 2 files attracted legal professional privilege, grounds of appeal 2 and 3 must be upheld.

49 The appellant also contended that the magistrate erred in finding that the original recordings were made at a time when there was a real prospect of litigation. The magistrate said at [55] that the evidence of Ms Blackburn and the steps she took in anticipation of Mr Rayney being charged and the contents of some of the files (eg ID 20) supports a finding that, as at mid-September 2007, there was a real prospect of litigation, as distinct from a mere possibility. This finding is not challenged.

50 However, the magistrate did not make an express finding that there was a real prospect of litigation at the time the original recordings were made although he does find that Mr Rayney's purpose in making the original recordings was the litigation he anticipated and that the original recordings are privileged. This gives rise to an ambiguity about whether there was an implied finding. The dates of the original recordings are disclosed in Schedule 4 to the judgment of Buss JA. I have examined the evidence of Ms Blackburn and Mr Rayney on the subject. The evidence relied on by the magistrate supports a finding that there was a reasonable apprehension of criminal proceedings from the date of the first recorded conversation.

51 The appellant claims in ground 4 that the magistrate erred in ruling that the appellant was prohibited from knowing the names of the third parties to the recorded conversations and the dates on which the original recordings took place. Ground 6 is also based on the failure to provide this information.

52 As noted in the first appeal at [43], the orthodox procedure for determining a claim of legal professional privilege reflects the general rule that the date or dates of a communication and the identities of the persons involved in the communication are ordinarily not protected by the privilege. It was also noted that such information may be privileged in exceptional circumstances. This is one of those occasions. The redacted evidence establishes that disclosure of the date of the conversations (and thus the date of the original recordings) and the names of the third parties would, in combination with other material in the appellant's possession, have the consequence of disclosing the content of the material to be communicated to lawyers for purposes claimed to be privileged. Thus if the Category 2 files were privileged, it was proper to redact the names and dates. Grounds 4 and 6 should be dismissed.

53 The appellant contends the magistrate erred in finding that the original recordings of the conversations were made because they were reasonably necessary for the protection of Mr Rayney's lawful interests and therefore were recorded in compliance with s 5(3)(d) of the Surveillance Devices Act 1998 (WA) (SDA).

54 I understand the appellant's contentions to be that the original recordings were not privileged because the covert recording was an offence under s 5(1)(b) of the SDA with the consequence that the Category 2 files (the copies) ceased to be privileged because the copies were tainted by the illegality of the original recordings.

55 Section 5(1)(b) provides that subject to subs (3) a person shall not use a listening device to record a private conversation to which that person is a party. There is no challenge to the magistrate's findings that the dictaphone used by Mr Rayney was a listening device as defined in s 3 of the SDA and that conversations the subject of the Category 2 files were private conversations (as defined in the SDA).

56 Section 5(3)(d) relevantly provides that subs (1)(b) does not apply to the use of a listening device by or on behalf of a person who is a party to a private conversation if a principal party to the private conversation consents to the use and the use is reasonably necessary for the protection of the lawful interests of that principal party.

57 The only live issue in the appeal is the correctness of the magistrate's finding that the covert recording was reasonably necessary for the protection of Mr Rayney's lawful interests. I agree with Buss JA's construction of s 5(3)(d) of the SDA.

58 In concluding that the covert recording of the conversations was reasonably necessary to protect Mr Rayney's lawful interests, the magistrate relied on the following: (1) Mr Rayney reasonably anticipated that he was the subject of investigation of a serious criminal offence; (2) objectively, there was a likelihood that the subject matter of the conversations would be canvassed by him with his lawyers for the purpose of receiving legal advice; (3) it was not reasonably practical for Mr Rayney to protect his interests by seeking the assistance of the police; and (4) the alternative of making notes was not reasonably practicable having regard to the number of conversations, their length and complexity of the content of many of them. The evidence supports the findings in (1), (3) and (4) but not (2).

59 Whether the use of a listening device is reasonably necessary is to be judged on the circumstances that existed at the time of its use. It is contended on behalf of Mr Rayney that the content of what is recorded is not relevant to an assessment of what is reasonably necessary because the content is not disclosed until after the decision to use the listening device and the implementation of that decision. The contention is too broadly stated. Previous dealings and contact are likely to inform an assessment as to likely topics. Moreover, any intended 'positioning' by the party using the listening device can come as no surprise.

60 However, I accept that the unchallenged finding that Mr Rayney believed on reasonable grounds that he was a suspect in the murder of his wife provides a strong foundation for concluding that the covert recording of his conversations with police by means of a dictaphone was reasonably necessary to protect his lawful interests. The situation was complicated by Mr Rayney's multiple 'capacities' which increased the justification for an accurate record. I am not persuaded the magistrate erred in concluding that the Category 2 files were reasonably necessary to protect Mr Rayney's lawful interests.

61 As the matter was fully argued, I propose to address the question whether a breach of s 5 of the SDA would bring the original recordings and/or any copies thereof within the crime/fraud 'exception' to the scope of legal professional privilege. That issue was considered by Hill J in Carbone v National Crime Authority [1994] 52 FCR 516 who answered the question in the affirmative. Hill J said:

The legislature had seen fit to proscribe the taping of intercepted conversations without the authority of the person whose conversations are taped ... A significant point is that the communications, in respect of which it is alleged privilege attaches, were themselves obtained in breach of Parliament's proscription. To permit privilege to attach in such circumstances, in my view, would be to impede and indeed discourage the due administration of justice and observance of the law with the consequence that I would hold that privilege does not attach to the transcripts (528 - 529).

62 It was contended on behalf of Mr Rayney that the observations of Hill J in Carbone disclose an error of principle because he asked himself the wrong question; the question is not whether the document or record is tainted by its nexus with an illegal act, but whether the privileged communications were in furtherance of, or part of some criminal or unlawful proceeding.

63 Legal professional privilege does not attach to a communication made as part of a criminal or unlawful proceeding or in furtherance of an illegal object: Propend (563) (Gummow J); The Queen v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141, 145 (Gibbs J). The application of the statement of general principle is not without its difficulties.

64 The facts in Propend provide some guidance. Copies of documents were seized pursuant to a search warrant. The 'communication' in issue was the provision of the copy documents to a lawyer. The copies were provided to the lawyer for the dominant purpose of obtaining legal advice. There was hearsay evidence that the non-privileged originals of the documents were brought into existence for or in furtherance of illegal purposes, namely tax evasion. The relevant issue in Propend was the sufficiency of the evidence to support the claim that the original documents were tainted by illegality. However, the High Court appeared to accept that if the evidence relating to the original documents was sufficient, the communication of the copies to the lawyer on the facts in Propend may not be protected by privilege.

65 Of course, the crime/fraud exception would not apply if a person provided an illegal product to his lawyer for the purpose of obtaining legal advice in relation to the lawfulness or otherwise of his or her conduct, for example, in creating the product in question. However, there was no evidence that such was Mr Rayney's purpose in relation to the Category 2 (or Category 1) files. His focus was on obtaining legal advice relating to the content of the recordings, not the circumstances in which the recordings came into existence.

66 There would be a close connection between any illegal recording and the intended communication to the lawyer in this case; the illegally obtained document was to be the source of the information to be communicated to the lawyer for advice. To protect the communication from disclosure in those circumstances would be inconsistent with the rationale for the privilege, which is to assist and enhance the administration of justice: Propend (508) (Brennan CJ). This conclusion is consistent with the reasoning in Carbone where the illegal taping resulted in the disclosure of the otherwise privileged transcript. The transcript was in substance a copy of the tape. That the illegality of an original record can infect a copy is also consistent with the reasoning in Propend. Thus if the original records of the conversations between Mr Rayney and the third parties were obtained in breach of the SDA, the Category 2 files would not be protected by legal professional privilege.

67 The particulars to ground 1 limit the scope of the challenge. In summary, the substance of the complaints are that (1) the magistrate held a private hearing about the redactions with the representatives of Mr Rayney; (2) the extent of the redactions were such as to deprive the appellant of natural justice; (3) parts of the redacted evidence was first made known to the appellant at the hearing; (4) parts of the redacted evidence was first made available to the appellant in the magistrate's reasons for decision; (5) the magistrate declined to hear closing submissions; and (6) the magistrate failed to hear submissions from the appellant about whether there were exceptional circumstances that justified upholding the claim to privilege in relation to the names of the third parties to the conversations the subject of the Category 2 files.

68 There is no 'in principle' challenge by the appellant to the procedure permitting Mr Rayney to rely on evidence and submissions when material portions thereof were not disclosed to the appellant. However, I propose to comment on the appropriateness of that course. This approach has been used and approved in the determination of claims of public interest immunity: Parkin v O'Sullivan [2009] FCA 1096 [28]; The Queen v Bebic (Unreported, NSWCCA, 27 May 1982), 4; Haj-ismail v The Minister for Immigration (No 2) [1982] FCA 231; (1982) 45 ALR 379, 389.

69 Neither party is aware of any case applying or approving this approach to the determination of a claim of legal professional privilege. There are some significant differences between public interest immunity and legal professional privilege which may explain the divergent procedures. First, in a claim of public interest immunity, the court is required to undertake a balancing of competing public interests in its determination. Legal professional privilege on the other hand is a substantive common law right which is itself the product of a balancing exercise between competing public interests; given the application of the privilege, no further balancing exercise is required: Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49, 64 - 65. Secondly, it is likely that a court will be in a much better position to make a determination on legal professional privilege, by examining the documents if necessary, than in making a value judgment about the variety of matters that can attract public interest immunity. Thirdly, a claim of public interest immunity is usually made by a third party with no interest, direct or indirect, in the outcome of existing or pending litigation.

70 As is clear from my consideration of the substantive grounds, there are very significant disadvantages in the procedure adopted by the magistrate, not only to the party who is deprived of access to relevant evidence and submissions but to the court. The procedure should not be used in determining a claim of legal professional privilege unless there is no reasonable alternative. If adopted, any redactions must be confined to the absolute minimum essential to ensure the protection of the communications claimed to be privileged. That did not occur in this case with the consequence that the appellant was denied procedural fairness. Having regard to the litigation history and the unambiguous position of the magistrate, it cannot be said that the appellant's failure to seek further information prior to the commencement of the hearing constituted acquiescence.

71 Moreover, the appellant should not have been excluded from any hearings and the parties should have been given the opportunity to make closing submissions to reflect the evidence adduced at the hearing and on the subject of the non-disclosure of the names of the third parties. These also constitute denials of procedural fairness.

72 But for the appellant's success in the appeal, the cumulative effect of the denials of procedural fairness could have affected the outcome below and required the grant of relief: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 88. The other matters of which the appellant complains are not of that character.

73 Mr Rayney appeals from the decision of the magistrate dismissing his claim of legal professional privilege for the Category 1 files (copies of audio recordings of conversations between Mr Rayney and his wife) and the Carr file note.

74 In order to succeed in the appeal relating to the Category 1 files, Mr Rayney must overturn the magistrate's findings that those files:

(1) were not made for the dominant purpose of obtaining legal advice or use in litigation (ground 2(b));

(2) were not confidential communications (ground 2(c)); and

(3) were not privileged because the original recording:

(b) was not reasonably necessary for the protection of the lawful interests of Mr Rayney (ground 2(a)).

75 The conversations between Mr Rayney and his wife the subject of the Category 1 files took place between May and July 2007 after Mrs Rayney had made allegations in emails of improper conduct by Mr Rayney. Mr Rayney used a handheld dictaphone to record the conversations. The contents of the dictaphone were copied onto a disc within a few days of the conversations and the disc remained in Mr Rayney's chambers until seized by police on 20 September 2007. The magistrate rejected Mr Rayney's evidence that his wife had consented to the recording of the conversations.

76 The Category 1 files were not provided to Mr Carr. However, on 6 August 2007, Mr Rayney played to Mr Carr a recording of a conversation between himself and his wife. Neither Mr Rayney nor Mr Carr were able to recall the content of the recording played on that date. The magistrate found that the content of the Category 1 files did not correspond with Mr Carr's file note describing the content of the recording that was played and that the Category 1 files did not contain a record of all the telephone conversations between Mr Rayney and his wife which he caused to be recorded.

77 Mr and Mrs Rayney and their children were residing in the same house in the period in which the conversations were recorded. The magistrate characterised the conversations as prosaic (dull, common place). This description of the content is not challenged.

78 The magistrate was not satisfied that Mr Rayney's dominant purpose in creating the Category 1 files (that is, copying the original recordings onto a disc) was to obtain legal advice. He relied on two matters. First, he was not satisfied that one of the Category 1 files had been played to Mr Carr on 6 August 2007 and secondly, the content of the recordings were not linked to emails said by Mr Rayney to be the motive for making the recordings. Mr Rayney's failure to provide the Category 1 files or play them to Mr Carr and the subject matter of their content provide a proper foundation for refusing to make a positive finding that Mr Rayney's dominant purpose was to obtain legal advice.

79 In considering whether Mr Rayney's dominant purpose in creating the Category 1 files was for their use in litigation, the magistrate focused on the conduct of Mr Rayney that would have disqualified him from adducing the Category 1 files into evidence. That is a relevant consideration but it does not exhaust the range of relevant 'uses' in litigation: Grant v Downs (677); Trade Practices Commission v Sterling (246). However, any error in failing to consider broader considerations does not affect the outcome. The matters on which the magistrate relied in refusing to make a finding of dominant purpose of obtaining legal advice are equally applicable to the claim based on litigation privilege.

80 I would dismiss ground 2(b). Accordingly, Mr Rayney's appeal against the rejection of his claim of legal professional privilege must fail. However, I will briefly deal with the remaining grounds.

81 The magistrate found that the Category 1 files were not confidential communications and thus were not privileged because the conversations which were recorded were not confidential. There is no doubt that the communications between Mr Rayney and his wife, who were potential opponents in the anticipated litigation, were not relevantly confidential for the purposes of legal professional privilege. However, the 'communication' on which Mr Rayney relied to claim privilege was the claimed intention to communicate the Category 1 files to his lawyer for legal advice and for use in litigation. The fact that a person is seeking legal advice on non-privileged information or is to provide that information to his lawyer for use in litigation is itself confidential. I would uphold ground 2 (c).

Consequence of original recording being in breach of SDA (ground 1)

82 I agree with Buss JA for the reasons he gives that the original recordings of the Category 1 files breached s 5 of the SDA. I have addressed the legal issues associated with this ground above and concluded that where the original recordings were made in breach of s 5 of the SDA, a copy of those recordings (in this case the Category 1 files) also loses any privilege it would otherwise have. I would dismiss ground 1.

Whether covert record reasonably necessary (ground 2(a))

83 I agree that ground 2(a) should be dismissed for the reasons given by Buss JA.

84 I agree that ground 3 should be dismissed for the reasons given by Buss JA.

85 I would allow the appellant's appeal and order that the magistrate's decision concerning the Category 2 files (except items 12, 13, 54 and 55) be set aside and the claim for privilege be dismissed.

87 BUSS JA: Lloyd Patrick Rayney and Corryn Veronica Ann Rayney were husband and wife.

88 On or about 7 August 2007, Mrs Rayney was killed. Her body was discovered on 18 August 2007. No-one has been charged in connection with her killing.

89 Mr Rayney is a barrister. He was admitted to practice on 3 April 1986.

90 On 22 August 2007 and 20 September 2007, the Western Australian police (WA police) executed search warrants under s 42 of the Criminal Investigation 2006 (WA) (the CIA) at 6 Monash Avenue, Como, being Mr Rayney's residential address, and at Francis Burt Chambers, 77 St Georges Terrace, Perth, being Mr Rayney's business address.

91 During the execution of the search warrants, the WA police seized numerous items including non-electronic and electronic records. The electronic records comprised computers and other electronic media.

92 Mr Rayney notified the WA police that he claimed legal professional privilege over all of the records seized from Francis Burt Chambers and, amongst other things, all of the information contained on the computers and other electronic media seized under the search warrants.

The history of the litigation between the parties

93 On 24 August 2007 and 24 September 2007, in accordance with s 151 of the CIA, AW, who is a member of the WA police, made two applications to the Magistrates Court at Perth to determine the claims of legal professional privilege (Applications 3 and 6 of 2007).

94 AW is a delegate of the police officer in charge of the investigation into the suspected unlawful killing of Mrs Rayney.

95 Magistrate Flynn, who determined the applications, appointed a computer forensic expert to assist him in identifying relevant records contained in the electronic records. The expert located various audio recordings within the electronic records.

96 The audio recordings are included in 81 items. Some of these items are: copies of recordings of conversations between Mr Rayney and his wife contained on a compact disc; copies of recordings of conversations between Mr Rayney and a person or persons whose name or names had been redacted, contained on a compact disc; and copies of these recordings contained on computers and associated metadata.

97 Pursuant to orders made by the magistrate, Mr Rayney notified the Magistrates Court and AW of the withdrawal of his claim of privilege over item 35 and over parts of the computer forensic analysis associated with this item. He maintained his claim of privilege over all or part of the other items (being items 1 - 34 and 36 - 81), which were referred to by the magistrate and the parties as the 'Tranche 1 files'.

98 On 23 January 2009, the magistrate made orders for the filing of affidavits and written submissions in relation to Mr Rayney's claim of legal professional privilege. Order 10 provided:

[Mr Rayney] may, before serving any document required to be served by these orders, redact those portions of the document which reveal the nature or content of a communication or information which is the subject of the claim of legal professional privilege ('the Redacted Service Copy') and may serve the Redacted Service Copy in place of the document required to be served.

99 Pursuant to order 10, Mr Rayney filed written submissions and three affidavits on which he intended to rely in support of his claim of legal professional privilege. Mr Rayney served on AW copies of the affidavits and submissions, but significant parts of them had been redacted to remove information in respect of which Mr Rayney claimed privilege.

100 AW wrote to the magistrate asserting that he was unable to proceed with any substantive hearing on the claim of legal professional privilege because the extent of the redactions did not permit him to participate meaningfully in the proceedings.

101 On 18 March 2009, the magistrate published reasons for ruling on the extent of the redactions. He upheld certain redactions, and ruled that other information no longer be redacted and be made available to AW. There were, relevantly, two schedules, B and C, to the reasons. These schedules contain extracts of redacted information the subject of the magistrate's rulings. On 26 August 2009, the magistrate made orders, by consent, giving effect to his reasons.

102 The magistrate upheld redactions where he determined that there was a serious issue to be tried on whether the redacted information was privileged. Information in this category included:

(b) the names of persons (other than Mrs Rayney) with whom Mr Rayney had telephone conversations that he had recorded;

(c) the content of audio recordings (including those with Mrs Rayney);

(d) the names of potential witnesses and the dates of communications with those witnesses;

(e) the name of a solicitor with whom Mr Rayney had dealt; and

(f) computer files said to disclose the parties for whom Mr Rayney had acted, their addresses, the matters on which he had acted and the names of the solicitors who had instructed him.

103 AW filed an appeal notice in the Supreme Court against the orders foreshadowed in the magistrate's reasons dated 18 March 2009. He asserted that the magistrate had erred in law in ruling that Mr Rayney could rely on affidavit evidence that was redacted and on submissions that were redacted 'when the extent and effect of those redactions was to deny [AW] natural justice in that it severely prejudiced [AW's] entitlement to be heard under section 151(7) of [the CIA], by depriving [AW] of the opportunity to test [Mr Rayney's] evidence and present [his] own evidence in relation to [Mr Rayney's] claim of legal professional privilege'.

104 Murray J heard and determined the appeal. His Honour held that an order which permits redaction does not constitute a denial of procedural fairness. See AW v Rayney [2009] WASC 250 [27] - [28]. He also concluded that the magistrate had not made any error, and certainly no error which would have enlivened the court's discretion under s 36(1) of the Magistrates Court Act 2004 (WA) to make a review order [60]. Despite Murray J's conclusion that the magistrate had made no error, he held nevertheless that the Supreme Court had power to make a consequential order under s 36(4) of the Magistrates Court Act. He then ordered that the un-redacted affidavits and un-redacted written outlines of submissions be served on the solicitor and counsel for AW upon the solicitor and counsel giving undertakings as to confidentiality [61].

105 Mr Rayney appealed to this court against Murray J's order. See Rayney v AW [2009] WASCA 203 (Rayney No 1). This court allowed the appeal. McLure JA (Buss & Newnes JJA agreeing) decided, relevantly, that Murray J did not have the power to make the disclosure order [34]. As her Honour noted, the issues before this court on the appeal did not raise the propriety of the procedure adopted by the magistrate for determining the claim of legal professional privilege or the merits of the rulings he had made on the permissible redactions [41].

106 On 19 March 2009, the WA police executed a search warrant under s 42 of the CIA at the offices of Carr & Co, solicitors. Mr Rayney had retained the firm to provide legal services.

107 During the execution of the search warrant, the WA police seized one lever arch file containing documents, three white manila folders and one DVD copied from a computer hard drive. These items were located by William Michael Carr, a partner of the firm.

108 Mr Carr notified the WA police that he claimed legal professional privilege over the documents and the DVD.

109 On 2 April 2009, in accordance with s 151 of the CIA, a police officer made an application to the Magistrates Court at Perth to determine the claim of legal professional privilege (Application 10 of 2009).

110 On 26 June 2009, the WA police executed another search warrant under s 42 of the CIA at the offices of Carr & Co. Records were seized. Mr Carr notified the WA police that he claimed legal professional privilege over the records. Once again, in accordance with s 151 of the CIA, a police officer made an application to the Magistrates Court at Perth to determine the claim (Application 16 of 2009).

111 On 18 and 19 November 2009, there was a hearing before Magistrate Flynn to determine Mr Rayney's claim of legal professional privilege over the Tranche 1 Files and a file note dated 6 August 2007 made by Mr Carr during a conference with Mr Rayney on that date. The file note was seized by the police on 19 March 2009 and was one of the documents the subject of Application 10 of 2009.

The magistrate's decision on the matters heard on 18 and 19 November 2009

112 On 17 December 2009, the magistrate delivered his decision on the matters heard on 18 and 19 November 2009, and published written reasons. Each of AW and Mr Rayney was successful in part and unsuccessful in part.

Tranche 1 from Application Nos 3 and 6 of 2007

1. Subject to Order 2, the Expert Court Assistant shall, as soon as practical but not before 24 December 2009, deliver to [AW], copies of the Records associated with the following ID numbers appearing in the Tranche 1 Hyperlinked List and Files:

(a) ID1 - ID9 (Category 1)

(b) ID12 - ID13; ID54 - ID55 (Category 2)

(c) ID30; ID31; ID33; ID36 - ID50 (Category 3 Client Material) and, after redacting any text that appears in the file name of ID10 - ID11 or ID14 - ID29, the following files: ID51; ID74 (Category 3 Audio Material).

1. Upon [Mr Rayney], on or before 23 December 2009, filing and serving a minute requesting the suspension of identified parts of Order 1, those parts of Order 1 shall be suspended until the later of:

(a) 4 February 2010; and

(b) if an appeal is commenced on or before 4 February 2010, the determination of the appeal.

1. The description of each file in Schedules C and D to the Reasons for Ruling on Privilege on Tranche 1 shall not be published, except:

(a) to [Mr Rayney];

(b) upon [AW] becoming entitled to a copy of a file pursuant to Orders 1 and 2, the description of that file may be published.

19 March 2009 Documents from Application 10 of 2009

1. Subject to Order 2, the Registrar shall, as soon as practical but not before 24 December 2009, make available for collection by [AW], the Records identified in paragraph 6 of Schedule D of the Reasons for Ruling on Prima Facie Privilege as a file note made by William Carr.
2. Upon [Mr Rayney], on or before 23 December 2009, filing or serving a minute requesting the suspension of Order 1, that order shall be suspended until the later of:

(a) 4 February 2010; and

(b) if an appeal is commenced on or before 14 January 2010, the determination of the appeal.

114 Each of AW and Mr Rayney has appealed against the magistrate's orders. On 19 February 2010, Martin CJ ordered that the appeals be referred to, and heard and determined by, this court.

115 AW relies on six grounds of appeal. The grounds, without supporting particulars, read:

1. The Magistrate erred in law and in fact by failing to afford [AW] natural justice in respect of the hearing of [Mr Rayney's] claim of legal professional privilege over the Category 2 Files in Tranche 1.
2. The Magistrate erred in law and fact in ruling that the original recordings of the Category 2 Files in Tranche 1 contained on a handheld Dictaphone were privileged.
3. The Magistrate erred in law and in fact in ruling that the Category 2 Files in Tranche 1 (save for ID 12 and 13) were privileged.
4. The Magistrate erred in law and fact in ruling that [AW] was prohibited from knowing the names of the parties whose conversations were recorded by [Mr Rayney] and the dates upon which the recordings took place, referred to in the Category 2 Files of Tranche 1.
5. The Magistrate erred in law and in fact in ruling that the original recordings of the conversations comprising the Category 2 Files in Tranche 1 were made because they were 'reasonably necessary for protection of [Mr Rayney's] lawful interests', and therefore recorded in compliance with section 5(3)(d) of the Surveillance Devices Act 1998 (WA).
6. The Magistrate erred in law and in fact in ruling that the parts of ID 54 [sic 51] and 71 [sic 74] in the Category 3 Files of Tranche 1 would disclose the content of a privileged communication relevant to the Category 2 Files in Tranche 1 ruled by the Magistrate as privileged.

116 On 19 February 2010, Martin CJ granted leave to appeal on each of these grounds.

If the Appeal succeeds on either grounds 2, 3, or 5, then:

1. The appeal is allowed.
2. The decision of the Magistrates Court concerning the Category 2 Files in Tranche 1 (except for items 12, 13, 54 and 55) be set aside.
3. The Category 2 Files in Tranche 1 be released to [AW].
4. [Mr Rayney] pay [AW's] costs of the appeal to be taxed.

If the Appeal succeeds on ground 4 or 6, then:

1. The appeal is allowed.
2. The decision of the Magistrates Court concerning the names of the other parties to the conversations recorded by [Mr Rayney] in the Category 2 Files in Tranche 1 be set aside.
3. The names of the other parties to the conversations recorded by [Mr Rayney] and the dates upon which the conversations occurred, contained in the Category 2 Files in Tranche 1, be released to [AW].
4. [Mr Rayney] pay [AW's] costs of the appeal to be taxed.

If the Appeal succeeds on ground 1 only, then:

1. The appeal is allowed.
2. The decision of the Magistrates Court concerning the Category 2 Files in Tranche 1 (except for items 12, 13, 54 and 55) be set aside.
3. All material that does not disclose a confidential communication, as determined by the Court of Appeal, be provided to [AW].
4. The matter be re-heard on an expedited basis by the Court of Appeal, or otherwise remitted to another Magistrate for re-hearing.
5. [Mr Rayney] pay [AW's] costs of the appeal to be taxed.

Mr Rayney's grounds of appeal, as amended, provide:

1. His Honour erred in law in holding that a document brought into existence for the purpose of communication to a legal adviser (a copy of a recording) could not be privileged if there was evidence showing, prima facie, that the original recording was made in circumstances that breached the Surveillance Devices Act 1988.
2. His Honour erred in law and in fact in holding that copies of recordings of conversations between [Mr Rayney] and his wife were not privileged:
   1. His Honour erred in law in determining whether [Mr Rayney] had installed and used a listening device in the reasonable protection of his own interests (Surveillance Devices Act 1988, s 5(3)) by reference to the content of the recording and not the circumstances in which the recordings were made, including, in particular, the allegations made by [Mr Rayney's] wife and the pending litigation between them;
   2. His Honour erred in law and in fact in determining that the recordings were not made for the dominant purpose of obtaining legal advice when the findings that
      1. the content of the recording (or recordings) which was played to [Mr Rayney's] solicitor on one occasion did not correspond to the content of the recordings for which privilege was claimed; and
      2. the content of the recordings was not linked to the emails from [Mr Rayney's] wife

1. His Honour erred in law in holding that a recording made by [Mr Rayney] of a conversation with his wife which was made for the purpose of confidential communication to [Mr Rayney's] solicitor could not attract privilege if it did not disclose material from which the content of a privileged communication between [Mr Rayney] and his solicitor might be inferred.

1. His Honour erred in law in holding that a file note made by [Mr Rayney's] solicitor at a conference in which a recording was played was tainted by illegality and not privileged if the recording was made in breach of the Surveillance Devices Act 1988.

118 On 19 February 2010, Martin CJ granted leave to appeal on each of these grounds.

1. The appeal be allowed.
2. Order 1 of the Magistrates Court of Western Australia at Joondalup made 17 December 2009 be varied by deleting paragraph (a).
3. In lieu of Order 1(a), it is declared that the records identified in Order 1(a) are privileged.
4. In the alternative to Order 3 of these orders, the application under section 151 of the Criminal Investigation Act 2006 be remitted to the Magistrates Court of Western Australia for determination in relation to the records identified in Order 1(a) of the Orders made 17 December 2009.

1. The appeal be allowed.
2. Order 1 of the Magistrates Court of Western Australia at Joondalup made 17 December 2009 be set aside.
3. In lieu it is ordered that the file note made by William Carr on 6 August 2007 is privileged.

1. [AW] pay [Mr Rayney's] costs of the appeal.

The organisation of the balance of these reasons

120 It is convenient, first, to consider AW's appeal by reference to his grounds, and then to consider Mr Rayney's appeal by reference to his grounds.

121 AW alleges in ground 1 of his appeal that the magistrate erred in law and fact by failing to afford him procedural fairness at the hearing of Mr Rayney's claim of legal professional privilege in respect of the Category 2 Files in Tranche 1.

AW's ground of appeal no 1: the statutory framework and applicable legal principles

122 Section 151 of the CIA establishes the procedure for determining a claim of, relevantly, legal professional privilege made in respect of 'records' (as defined in s 3(1) of the CIA) seized or produced in accordance with the CIA. The term 'record' means, relevantly, any record of information, irrespective of how the information is recorded or stored or able to be recovered.

123 By s 151(4), where a record is seized or produced and, relevantly, a person entitled to possession of the record claims that all or some of the information in it is privileged, the officer in charge of the investigation must apply to the court to decide whether the information is privileged and must deliver the record into the custody of the court.

124 Section 151(9) provides that if the court decides that all of the information is not privileged, the court must make the record available to be collected by the applicant. By s 151(10), if the court decides that all of the information is privileged, the court must make the record available to be collected by the person from whom it was seized. By s 151(11), if the court decides that some of the information is privileged, the court must make orders to enable the applicant to have access to the information in the record that is not privileged.

125 Section 151(7) provides that the applicant, and any person entitled to possession of the record, are entitled to be heard on the application for a decision by the court on whether the information is privileged.

126 Procedural fairness lies at the heart of the judicial function. As French CJ observed in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 84 ALJR 31:

It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it [54].

127 His Honour then noted that, according to the circumstances, the content of the requirements of procedural fairness may vary. He gave, as an example, the procedure that a court may adopt when an ex parte application for interlocutory relief is made:

[T]he court, in the ordinary course, has a discretion whether or not to hear the application without notice to the party to be affected. In exercising that discretion it will have regard to the legitimate interests of the moving party which have to be protected, whether there is likely to be irrevocable damage to the interests of the affected party if the order is made, and what provision can be made for the affected party to be heard to have the order discharged or varied after it has been made [54].

128 In International Finance Trust, Heydon J also emphasised that one of the primary principles on which the Australian judicial process operates is that before any judicial decision is made which has substantive consequences there generally should be a 'hearing'. His Honour explained:

A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party. At it both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow.

One justification is that the forensic system employed in the courts of this country in civil proceedings for remedies having substantive consequences is adversarial. Ex hypothesi, it is not possible for a court to operate an adversarial system without the court having the evidence and arguments which each adversary wants to have considered. If the hearing rule were different, the system would be internally contradictory.

Another justification is that to act only on the version advanced by one adversary is to risk reaching unsound conclusions, and thus to risk both injustice and inefficiency. Experience teaches that commonly one story is good only until another is told. Where a judge hears one side but not the other before deciding, even if the side heard acts in the utmost good faith and makes full disclosure of all that that side sees as relevant, there may be considerations which that side had not entertained and facts which that side did not know which, if brought to the attention of the judge, would cause a difference in the outcome [141] - [143].

129 In my opinion, there is no doubt that the magistrate was bound to accord procedural fairness to AW (in particular, an opportunity to be heard) in relation to the determination of the applications under s 151 of the CIA. Section 151(7) conferred on each of Mr Rayney and AW an entitlement to be heard. Section 151 does not modify or abrogate the common law principles of procedural fairness. The relief claimed in the applications, if granted, would have substantive consequences for each of Mr Rayney and AW. The determination of the applications involved the exercise of judicial power, and the proceedings before the magistrate were adversarial in character. The critical point raised by ground 1 of the appeal is the content of the hearing rule in the particular circumstances of this case.

130 The requirements of procedural fairness are flexible. Proceedings before a court may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the applicable legal principles, the matters in dispute, the circumstances of the particular litigants, and whether the application of any principle governing the proceeding or its outcome may conflict, wholly or in part, with the hearing rule.

131 Legal professional privilege is a rule of substantive law. It reflects an important common law immunity. See Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 [9] - [11] (Gleeson CJ, Gaudron, Gummow & Hayne JJ); [44] (McHugh J).

132 A person claiming legal professional privilege must prove that the information or documents in question are privileged. See Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 689 (Stephen, Mason & Murphy JJ).

133 A claim of legal professional privilege is not established conclusively by the use of a verbal formula. See Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49 [52] (Gleeson CJ, Gaudron & Gummow JJ). A person claiming the privilege must properly identify the basis on which it is claimed. A court may, in an appropriate case, permit cross-examination of a deponent of an affidavit claiming privilege. See Esso [52]; Grant (689).

134 Order 26 r 4(2) of the Rules of the Supreme Court 1971 (WA) provides, in the context of discovery and inspection between parties to litigation, that if it is claimed that any documents are privileged from production, the claim must be made in the list of documents made in compliance with O 26 r 1, and with a sufficient statement of the grounds of the privilege. The list of documents must be verified by an affidavit in Form No 18. The purpose of the requirement in the rule for identification and description of documents in respect of which privilege is claimed, is explained in Kendall C and Curthoys J, Civil Procedure Western Australia (at 2 July 2009) [26.4.6]:

Where a claim of privilege is made, it is necessary that any documents for which privilege is claimed be properly described. Unless such documents are sufficiently described, it will be impossible for the other party to discern whether the claim of privilege is properly made. It is not sufficient merely to assert that the documents are privileged, which is a statement of law. The facts relied upon as giving rise to the privilege must be set out so the claim for privilege can be tested, although the facts should not be set out in such detail as would enable the contents of the documents to be ascertained indirectly: Gardiner v Irvine [1879] 4 Ex D 49 at 53. That is, an adequate description is required of each of the documents for which privilege is claimed, but not one which indirectly reveals its contents: Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223 at 265; [1980] 3 All ER 475; [1980] 3 WLR 668.

See also the observations of McLure JA in Rayney No 1 [42] - [44].

135 In my opinion, the procedure for claiming legal professional privilege which applies in the context of discovery and inspection between parties to litigation should ordinarily be applied, by analogy, to proceedings relating to a claim for privilege in respect of 'records' (as defined in s 3(1) of the CIA) seized or produced in accordance with the CIA. In particular, the person claiming the privilege should, ordinarily:

(a) list each record in respect of which privilege is claimed;

(c) state whether the record is an original or a copy, and the date on which it came into existence;

(d) identify the person who brought the record into existence;

(e) identify the persons between whom any communication or communications embodied in the record were made; and

(f) state the basis on which the privilege is claimed, and provide any evidence necessary to substantiate the claim.

136 This procedure should not involve the disclosure, directly or indirectly, of any communication the subject of the claim for privilege.

137 A court may examine records where there is a disputed claim of legal professional privilege. In Esso, Gleeson CJ, Gaudron and Gummow JJ said that a court 'should not be hesitant to exercise' this power [52].

138 Although a court should not be hesitant to exercise its power of inspection, ordinarily this power is exercised after the court has examined the material filed by the person claiming the privilege and served on the other party or parties, and the court entertains a doubt as to whether the claim for privilege has been made out or wishes to inspect the documents for the purpose of confirming its view.

139 The discretionary nature of the power of inspection was referred to by Giles JA (Mason P & Beazley JA agreeing) in State of New South Wales v Jackson [2007] NSWCA 279:

In ruling on a claim to legal professional privilege or client legal privilege the court may inspect the relevant documents (Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 677 and 688-9; Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 246-7; Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 at 541-2; Esso Australia Resources Ltd v Commissioner of Taxation at [52]; AWB Ltd v Cole (2006) 152 FCR 382 at 391; see also s 133 of the Act). Inspection is discretionary (Grant v Downs at 688-9; Mallalla District Council v Livestock Markets Ltd [2006] SASC 80; (2006) 94 SASR 258 at [30]), for such assistance as it may provide in arriving at the documents' status. In Esso Australia Resources Ltd v Commissioner of Taxation at [52] Gleeson CJ and Gaudron and Gummow JJ said, after observing that a claim for privilege is not conclusively established by use of a verbal formula, that a court 'should not be hesitant to exercise' its power to examine documents. Where the parties have put evidence before the court, however, beyond the use of a verbal formula, I respectfully remain of the view expressed in Woollahra Municipal Council v Westpac Banking Corporation at 542, that the court should not unnecessarily pay regard to material which can not be known to the party challenging the claim to privilege [24].

140 The view expressed by Giles J in Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 concerned the relevance to the court's exercise of its discretion to inspect the records in question of the fact that the party challenging the claim of privilege cannot inspect them. His Honour observed:

I have considered whether I should inspect the documents in dispute, or some of them, for the purpose of reaching these conclusions. In Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689, the power to do so was recognised and it was said that 'in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence'. Inspection should not be undertaken unless there is good reason to do so. The Court should be able to proceed upon evidence describing the documents and the circumstances of their creation, and should not unnecessarily pay regard to material which can not be known to the party challenging the claim to privilege (541 - 542). (emphasis added)

141 More recently, in Bailey v Director-General, Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333 [61] - [62], Tobias JA (Allsop P & Hodgson JA relevantly agreeing) referred to this passage from the reasons of Giles J in Woollahra Municipal Council and said that the critical word in the passage was 'unnecessarily'. If the court is unable to proceed upon the evidence then there is no impediment to the court exercising its discretion to order that the document(s) be produced and inspected for the purpose of determining whether privilege attaches or not. How the court exercises its power of inspection will depend on the circumstances of each case. His Honour did not consider that the objection of the party challenging the claim of privilege to the court exercising its power of inspection was, of itself, a legitimate reason to refuse to inspect [62].

142 It is well-established, in the context of discovery and inspection between parties to litigation, that a party giving inspection of a discovered document may seal up or mask parts of the document which are irrelevant to the proceeding if there is a legitimate basis for redacting the irrelevant parts. See Harris Scarfe Ltd (receivers and managers appointed) (in liq) v Ernst & Young [2006] SASC 325; (2006) 204 FLR 165 [22], [24] (Debelle J); Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649; (2005) 223 ALR 284 [53] - [54] (Lee J); Menkens v Wintour [2006] QSC 342; [2007] 2 Qd R 40 [12] (McKenzie J); Jefferson Ford Pty Ltd v Ford Motor Co of Australia Pty Ltd [2007] VSC 450 [11] (Hollingworth J); Gunns Ltd v Marr [2008] VSC 464 [30] - [31] (Kaye J).

143 As Kaye J noted in Gunns, where there is a dispute as to the right of a party to redact part of a discovered document, the court must determine whether the redaction is permissible or not [32]. See also Harris Scarfe [26] - [28]; Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 [24] - [26] (Sundberg J). The party resisting production of the whole of the discovered document must prove that there is a proper basis for the redaction. See Jefferson Ford [19]; Rio Tinto [25]; Gunns [33].

144 Where there is a dispute as to the entitlement of a party to redact part of a discovered document, the court may examine the document, in its un-redacted form, in order to determine the propriety of the redaction. See Harris Scarfe [26] - [28]; Candacal [55]; Gunns [31]. The redaction of irrelevant parts of a discovered document must not render the remaining parts of the document unintelligible or obscure their meaning. See Telstra Corporation v Australis Media Holdings (Unreported, NSWSC, Library No 97001041, 10 February 1997) (3) (McLelland CJ in Eq); Gunns [31].

145 It appears that the basis for permitting the redaction of irrelevant parts of discovered documents is to avoid injustice to the party discovering the document by the 'infringement, for no legitimate purpose, of interests of privacy and confidentiality': Telstra Corporation (3 - 4); Gunns [35].

AW's ground of appeal no 1: the information provided to AW

146 A summary of the information provided to AW before, during and after the hearing to determine Mr Rayney's claim of legal professional privilege over the Tranche 1 Files and the file note dated 6 August 2007, which was conducted on 18 and 19 November 2009, is contained in schedule 1 to these reasons.

AW's ground of appeal no 1: the general nature and extent of the redactions

147 The general nature and extent of the material redacted from the affidavits filed and relied on by Mr Rayney in the proceedings, in accordance with the magistrate's ruling on the redactions, was summarised in Mr Rayney's written submissions to this court. The summary is reproduced, in substance, in schedule 2 to these reasons.

148 In my opinion, the content of the hearing rule, in the context of AW's entitlement to be heard in relation to the determination of the applications under s 151 of the CIA, required that he be provided with all documents and other information (including affidavits and written submissions) relied on by Mr Rayney, in their un-redacted form, except to the extent that the documents or information contained or reproduced material that was itself privileged from production.

149 As I have mentioned, schedule 1 to these reasons contains a summary of information provided to AW before, during and after the hearing to determine Mr Rayney's claim of privilege over the Tranche 1 Files and the file note dated 6 August 2007. In particular, schedule 1 outlines the information relating to the Category 2 Files (items 10 to 29 and their respective copies):

(a) known to AW before the hearing on 18 and 19 November 2009;

(b) which was disclosed to AW during the course of that hearing; and

(c) which became known to AW as a result of receiving the magistrate's reasons for decision.

150 AW had a statutory entitlement to appear at the hearing and be heard. This entitlement included a right to cross-examine Mr Rayney and the other witnesses called by his counsel.

It is also apparent to me from the content of Mr Rayney's contribution to the subject matter of some of the conversations that he is aware of the potential significance of the subject matter and that he is endeavouring to 'position himself' so that the contents of the conversation may assist him in any hearings (eg ID 15) [53].

152 I am satisfied that there were breaches of the rules of procedural fairness in the course of the magistrate's determination of Mr Rayney's claim of legal professional privilege. These breaches occasioned material prejudice to AW. A miscarriage of justice has occurred. My reasons are as follows.

153 In par 36 of his affidavit sworn 2 February 2009, Mr Rayney stated the purposes for which he created the Category 2 Files by copying the original recordings. Then, in pars 37 - 40 of the affidavit he explained why he believed it was necessary for him to create the Category 2 Files. I am satisfied, based in part on my perusal of pars 36 - 40 in their unredacted form and in part on my reasons in relation to grounds 2, 3 and 5 of AW's appeal, that pars 36 - 40 in their unredacted form do not contain or reveal any communication which is privileged. AW should have been provided with pars 36 - 40 in their unredacted form before the hearing. In part A of schedule 3 to these reasons, I have set out pars 36 - 40 in their redacted form. In part B of schedule 3, I have set out pars 36 - 40 in their unredacted form.

154 In my opinion, if AW had been provided with pars 36 - 40 of Mr Rayney's affidavit in their unredacted form before the hearing, his counsel would have been able to explore in cross-examination of Mr Rayney why he believed it was necessary secretly to record the conversations. Also, counsel would have been able to explore with Mr Rayney how and why he was seeking to 'position himself'. These were legitimate areas of inquiry. The absence of the redacted evidence materially prejudiced the exercise of AW's right to challenge the evidentiary basis for Mr Rayney's contention as to his 'dominant' purpose in creating the Category 2 Files, and occasioned a miscarriage of justice.

155 It is unnecessary, in the context of ground 1, to refer to any of the other affidavit material or any of the written submissions that were redacted.

156 Further, there was a breach of the rules of procedural fairness in that:

(a) the magistrate held private hearings with Mr Rayney about the redactions from which AW was excluded; and

(b) his Honour declined to hear closing submissions from AW when AW had only responded in writing to Mr Rayney's redacted submissions and had not been given an opportunity to make submissions with respect to material and information concerning the Category 2 Files that was made available to AW for the first time during the hearing.

157 The traditional procedure for determining claims of legal professional privilege, which should have been adopted in the present case, does not undermine an accused's right to silence. This procedure does not involve the disclosure, directly or indirectly, to the other party of any communication the subject of the claim for privilege. The accused's rights and interests are not jeopardised or adversely affected.

158 It was argued by counsel for Mr Rayney that AW had, in effect, acquiesced in the adoption by the magistrate of an unusual procedure for dealing with Mr Rayney's claim of privilege and, in consequence, he could not now complain.

159 In my opinion, there was no acquiescence by AW. As I have mentioned, in Rayney No 1 this court decided, relevantly, that Murray J did not have the power to make the disclosure order. The issues before this court did not raise the propriety of the procedure adopted by the magistrate or the merits of the rulings he had made. McLure JA, in her reasons, merely made some general observations on those issues [41] - [45]. AW was bound by the procedural and other rulings made by the magistrate and he was not obliged, after this court's reasons in Rayney No 1 were published on 13 November 2009, to make application to his Honour for the rescission or variation of any of the orders he had made.

161 AW alleges in ground 2 of his appeal that the magistrate erred in law and fact in ruling that the original recordings, of which the Category 2 Files are copies, contained on a handheld digital dictaphone were privileged.

AW's ground of appeal no 2: the contents of the original recordings of which the Category 2 Files are copies

162 The contents of the original recordings, of which the Category 2 Files are copies, were summarised in schedule D to the magistrate's reasons. Schedule D was not published with the reasons on 17 December 2009. It has, however, been made available to this court.

163 It is appropriate, in consequence of my opinion as to the merits of ground 2 of AW's appeal, to set out in schedule 4 to these reasons the magistrate's summary as recorded in schedule D.

AW's ground of appeal no 2: the magistrate's findings and reasoning

164 It is convenient now to recount the magistrate's findings and reasoning in relation to the original recordings (which are the subject of ground 2 of AW's appeal) and the Category 2 Files (which are the subject of ground 3 of AW's appeal) including his Honour's findings and reasoning on the 'crime/fraud exception' to legal professional privilege (which are the subject of ground 5 of AW's appeal).

165 The magistrate noted in his reasons that the Category 2 Files, ID 10 - 29, ID 52 - 73 and ID 75 - 81, were said by Mr Rayney to be copies of recordings of telephone conversations between himself and third parties. Mr Rayney said that he made the recordings in August/September 2007 for the purpose of defending himself in anticipated criminal proceedings and for the purpose of receiving legal advice about such proceedings. The recordings were made without the knowledge or consent of the third parties [7].

Mr Rayney has discharged the onus of proving that all of these conversations were recorded for the dominant purpose of receiving legal advice or in reasonable anticipation of litigation. The contents of the recordings reveal to me a likelihood of the subject matter of the conversations being canvassed in hearings of any criminal charges. Except for the recording of conversations per ID 12-13 (and copies), I am satisfied that recordings fall within the 'reasonably necessary for protection of lawful interests' protection of the law and no issue arises as to the application of the crime/fraud exception [7].

Later in his reasons, he elaborated upon these conclusions.

167 His Honour summarised the evidence from Mr Rayney and from a solicitor, Amanda Blackburn, in relation to the Category 2 Files, as follows:

Mr Rayney. Mr Rayney deposed to having retained DG Price & Co in August 2007 when he instructed Amanda Blackburn of that firm 'in matters arising from the murder of Mrs Rayney'. He states the reasons for his belief, formed on the basis of events that he describes, that police 'intended to unfairly charge' him in relation to Mrs Rayney's murder. The Category 2 Files evidence discussions made after 7 August 2007 for 'the purposes of seeking legal advice in respect of potential litigation, using in such potential litigation and seeking legal advice in relation to the discussion'. The recordings were made by Mr Rayney 'holding a handheld dictaphone near his mobile telephone or his mobile phone answering service'. He identifies the other party to each recorded conversation. He describes the significance of the conversation to the potential litigation, deposing to his belief that the content of the conversations may be relevant to issues that he identifies and that he may wish to raise in answer to any criminal charges. In cross-examination, Mr Rayney stated that: the handheld dictaphone that he used to make the original recordings was purchased by him after the discovery of Mrs Rayney's body in August 2007; he did not recall the details of the type of dictaphone or the place of purchase except that the dictaphone was similar to the one used to make the recordings that became the Category 1 Files and he acquired the dictaphone from a similar retailer; the contents of the dictaphone were copied onto a disc in mid-September 2007; the dictaphone was thrown away after the copies were made; he could not recall the place the dictaphone was thrown away or the date of disposal except that it was after 20 September 2007 (the date of execution of the warrants) [48].

Amanda Blackburn. Ms Blackburn deposed to being retained in August 2007 by Mr Rayney 'in relation to issues arising from the murder of' Mrs Rayney. She stated that she had been told by Mr Rayney 'in August and September 2007' that, as a result of his belief that 'police intended to unfairly charge him [in] relation to Mrs Rayney's death', he had used 'a hand held digital dictaphone near the telephone' to record calls with persons he identified to Ms Blackburn. The recordings had not been played to her. Ms Blackburn describes some legal work done by her in anticipation of Mr Rayney being charged over Mrs Rayney's death [49].

168 The magistrate found that Mr Rayney made recordings on a handheld digital dictaphone, and copied the recordings onto a disc on his computer. As a result, there were identical recordings on the disc and on either or both Mr Rayney's computer at his chambers and his computer at home [51].

169 Mr Rayney's claim of legal professional privilege was in relation to the copies on the disc and his computer. The original recordings were 'lost' as a result of Mr Rayney having 'thrown out' the dictaphone.

170 His Honour was satisfied that, when the Category 2 Files were created in mid-September 2007, Mr Rayney had, since an unknown date in August 2007, been in communication with Ms Blackburn 'for the purpose of receiving advice on the possibility that he would be subject to criminal charges arising from Mrs Rayney's death' [52]. His Honour said that Ms Blackburn's evidence as to her having had conversations with Mr Rayney in about August 2007, and the steps she took in anticipation of Mr Rayney being charged, supported this finding [52].

171 The magistrate was also satisfied that Mr Rayney's dominant purpose in creating the Category 2 Files in mid September 2007 was to put the copied recordings before his lawyers to obtain legal advice on their contents [53]. His Honour noted, in support of this conclusion, that there was, in addition to Mr Rayney's evidence, the contents of the recordings themselves. His Honour then said in relation to the contents:

The contents reveal to me a likelihood of the subject matter of some of the conversations being canvassed in hearings of any criminal charges (eg ID10, ID15, ID20). They also reveal a likelihood that the other party to the conversations (except the party to ID12 - ID13) would give evidence in hearings of any criminal charges. The contents also reveal the utility of having a 'complete record' of conversations. Thus, although some conversations are very brief and some are insignificant in content, the chronology of the conversations, however brief and insignificant any one may be, is of significance. It is also apparent to me from the content of Mr Rayney's contribution to the subject matter of some of the conversations that he is aware of the potential significance of the subject matter and that he is endeavouring to 'position himself' so that the contents of the conversation may assist him in any hearings (eg ID15). It is surprising that Mr Rayney has not adduced evidence that enables me to be satisfied that he told his lawyers about the recordings before the execution of the warrant seizing the Category 2 Files on 20 September 2007. However, given my assessment of the contents of the recordings, I do not infer from this 'gap' that his purpose in creating the Category 2 Files was other than related to obtaining legal advice [53].

172 Next, the magistrate considered the significance of the fact that, more than a week after he created the Category 2 Files, Mr Rayney destroyed the original recordings by 'throwing out the dictaphone'. His Honour said that if the original recordings on the digital dictaphone were unprivileged, and the copies which became the Category 2 Files were made with the intention of destroying the original recordings, his dominant purpose in creating the Category 2 Files was not a privileged purpose. His Honour held, however, that the original recordings contained on the dictaphone were privileged in that they were made for the same purpose as the Category 2 Files. He decided that it would be fallacious to infer, from the fact of the subsequent destruction of the original privileged record, that a copy of that record was not made for the purpose of receiving legal advice [54].

173 The magistrate held that Mr Rayney reasonably anticipated that he would be subject to criminal charges arising from Mrs Rayney's death. He said that the evidence of Ms Blackburn on the steps she took in anticipation of Mr Rayney being charged, and the contents of some of the files (for example, ID 20), supported a finding that, as at mid-September 2007, there was a real prospect of litigation, as distinct from a mere possibility. His Honour was satisfied that one purpose in making the copies that became the Category 2 Files was to use those recordings in any litigation [55].

174 His Honour also held that Mr Rayney's express purpose in making the original recordings, and the copies which became the Category 2 Files, was the litigation that he anticipated. The original recordings and the Category 2 Files were made secretly. Mr Rayney always intended that the Category 2 Files would be kept confidential for use in the litigation [57]. His Honour was therefore satisfied that, 'notwithstanding that the parties to the conversations contained in the Category 2 Files [were] not subject to any obligation of confidentiality ... the requisite degree of confidentiality [existed] in respect of the Category 2 Files' [57].

175 The magistrate then focussed on the 'crime/fraud exception' to legal professional privilege. His Honour said that the real issue in this context was whether making the recordings was of itself criminal conduct. He noted that under the Surveillance Devices Act 1998 (WA) it is an offence to use a listening device secretly to record a private conversation unless the recording was 'reasonably necessary to protect the lawful interests' of Mr Rayney: s 5(1) and s 5(3)(d). His Honour said that a dictaphone of the type described by Mr Rayney as having been used by him was 'equipment capable of being used to record a private conversation', and therefore a listening device for the purposes of the Act: s 3. The conversations, being conversations in which the party to the conversation (other than Mr Rayney) reasonably expected that the conversation would not be overheard, except under compulsion of law, were 'private conversations' for the purposes of the Act: s 3.

176 The magistrate decided that, except for recordings ID 12 - 13 and the copies of those files, ID 54 - 55, each recording was reasonably necessary to protect Mr Rayney's lawful interests. His Honour's reasoning in support of this conclusion was as follows:

The recordings reveal that Mr Rayney reasonably anticipated he was the subject of investigation of a serious criminal offence. Objectively, there was a likelihood that the subject matter of the conversations would be canvassed by him with his lawyers for the purpose of receiving their legal advice. It was not reasonably practical for Mr Rayney to protect his interests by seeking the assistance of the police. The alternative of making notes of the conversations was not reasonably practical having regard to the number of conversations, their length and the complexity of the content of many of them [60].

177 His Honour was satisfied that recordings ID 12 - 13, and the copies of those files, ID 54 - 55, were not reasonably necessary to protect Mr Rayney's lawful interests. Although, in broad terms, the fact of having had the conversation with the other party might be canvassed by Mr Rayney with his lawyers for the purpose of receiving their legal advice, the content of the conversations was little more than Mr Rayney stating that he was not available for a conversation. In the circumstances, his Honour concluded that it was not reasonably necessary to make a recording of these conversations.

AW's ground of appeal no 2: applicable legal principles

178 A person may invoke legal professional privilege to resist giving information or producing documents that would reveal confidential communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or providing legal services (including representation in legal proceedings). See Daniels [9] - [11] (Gleeson CJ, Gaudron, Gummow & Hayne JJ); Esso [35], [61], [62] (Gleeson CJ, Gaudron & Gummow JJ), [167] (Callinan J).

179 Legal professional privilege comprises two categories, namely, legal advice privilege and litigation privilege. Legal advice privilege can be claimed in respect of information or documents which contain or reveal confidential communications between a client and his or her lawyer made for the dominant purpose of giving or receiving legal advice, whether or not litigation is subsisting or within the reasonable contemplation of the client. Litigation privilege can be claimed where litigation is subsisting or within the reasonable contemplation of the client, and applies to confidential communications passing between a lawyer and his or her client or between the lawyer and third parties, and confidential information or documents brought into existence, for the dominant purpose of preparing for the litigation. See Schreuder v Murray [No 2] [2009] WASCA 145 [59] (Buss JA, McLure JA agreeing).

180 It is unnecessary, in the present case, to consider whether the law in Australia recognises any distinction in scope or rationale between legal advice privilege and litigation privilege. See, however, Grant (677) (Barwick CJ), (682, 688) (Stephen, Mason & Murphy JJ); Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, 94 - 95 (Wilson J); Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 [85] (Stone J, Merkel J agreeing); Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151; (2007) 34 WAR 279 [22] (McLure JA, Steytler P & Miller JA agreeing).

181 There has been some controversy as to the necessity for confidentiality in the context of litigation privilege. See, for example, Jackson [37]; Public Transport Authority [20]. In Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547, Mansfield, Kenny and Middleton JJ said:

As to confidentiality, we would have thought that the scope of the confidentiality arising from litigation privilege is different from advice privilege. We say this because when dealing with third parties, such as potential witnesses, unless there is a separate confidentiality agreement with such third parties, then, subject to the principle in Harman [1983] 1 AC 280 (as explained in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 (Hearne) at [109] per Hayne, Heydon and Crennan JJ), such potential witnesses would be free to discuss with others their potential evidence. Of course, the position would be different if there was a confidentiality agreement with such a potential witness, because in that case the client might seek to enforce the obligation of confidentiality arising out of such an agreement [35].

It is unnecessary, in the present case, to resolve this issue.

182 The person claiming legal professional privilege must point to the nature of the information or document itself or to evidence describing the circumstances in which the information was obtained or the document was brought into existence. In other words, the claimant must establish the facts giving rise to the privilege. See Grant (689); National Crime Authority v S (1991) 29 FCR 203, 211 (Lockhart J, Keely J agreeing); Deputy Commissioner of Taxation v Nicholls (No 3) [2009] FCA 785 [26] (Mansfield J).

183 The dominant purpose, in the context of a claim of legal advice privilege or litigation privilege, is to be ascertained objectively. A finding of fact must be made.

184 In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332, Batt JA (Charles JA agreeing & Callaway JA relevantly agreeing) explained the meaning of 'dominant' in the formulation of legal advice privilege and litigation privilege. His Honour said that the 'dominant' purpose is that purpose which was the ruling, prevailing or most influential purpose [10].

185 The evidence of the intention of the person who obtained the information or brought the document into existence, or of the person who authorised or procured the obtaining of the information or the bringing of the document into existence, is not conclusive of purpose. See Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526, 544 - 546 (Goldberg J); Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 [30] (Kenny J).

186 The dominant purpose for obtaining information or creating a document is to be determined as at the time the information was obtained or the document was produced. See Australian Safeway Stores (556 - 558); Pratt Holdings (2005) [30] (Kenny J).

187 Where information that has been obtained or a document that is brought into existence is provided subsequently to a lawyer for advice or use in subsisting or reasonably contemplated litigation, the provision to the lawyer is not decisive of the dominant purpose for which the information was obtained or the document was produced. See National Employers' Mutual General Insurance Association Ltd v Waind [1979] HCA 11; (1979) 141 CLR 648, where Mason J (Barwick CJ, Stephen, Jacobs & Aickin JJ agreeing) said in relation to the argument in that case:

[T]he argument did not always make clear the distinction between the purpose for which information is obtained and the purpose for which a document recording information is brought into existence. It is the latter purpose with which the law of professional legal privilege is concerned (654).

See also Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501, where Brennan CJ observed:

The test is anchored to the purpose for which the document was brought into existence; the use to which a document is put after it is brought into existence is immaterial (508).

188 In Pratt Holdings (2004), there was a claim for legal professional privilege in respect of a written report prepared by an accountant for a corporation. The report valued the corporation's losses. After receiving the report, the corporation sent it to its lawyer. Finn J (Merkel J agreeing) said:

[N]otwithstanding the principal's stated purpose in having a documentary communication brought into existence, the principal may have so conducted himself or herself in the matter as to indicate that the intended use of the document authored by the third party was not its communication to the legal adviser as the principal's communication, but rather it was to advise and inform the principal concerning its subject matter, with the principal then determining (a) in what manner, if at all, the whole or part of the document would be used by the principal in making its own communication or (b) the purpose(s) for which the document could or should be used. The less the principal performs the function of a conduit of the documentary information to the legal adviser, the more he or she filters, adapts or exercises independent judgment in relation to what of the third party's document is to be communicated to the legal adviser, the less likely it is that that document will be found to be privileged in the third party's hands. This will be because the intended use of the document is more likely to be found to be to advise and inform the principal in making the principal's communication to the lawyer (whether or not that communication embodied wholly or substantially the content of the document) and not to record the communication to be made [47].

189 Where legal advice privilege is sought to be invoked, 'legal advice' has a broad connotation. It includes legal advice as to what should, in the relevant legal context, prudently and sensibly be done. See Balabel v Air India [1988] Ch 317, 330 (Taylor LJ, Lord Donaldson MR & Parker LJ agreeing); WorkCover Authority (NSW), (General Manager) v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502 (McColl JA, Handley & Hodgson JJA agreeing).

190 Where litigation privilege is sought to be invoked, litigation will be reasonably anticipated or in contemplation if it is likely or reasonably probable that it will be commenced. In general, there must be a real prospect, as distinct from a mere possibility, of litigation. However, it is not necessary that the commencement of litigation be more likely than not. See Mitsubishi Electric [17], [19].

191 In Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244, 246, Lockhart J observed that the communications to which legal professional privilege extends include communications between the party or client on the one hand and a third party, as follows:

Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See Wheeler v Le Marchant (1881) 17 Ch D 675; Cork v Union Steamship Co (1904) 23 NZULR 933, and In Re Holloway (1887) 12 PD 167. (emphasis added)

192 The passages I have emphasised in the observations of Lockhart J involve the party and the third person acting as principals and not agents. No lawyer is involved in the relevant communications.

193 Earlier in his reasons in Sterling, Lockhart J said that the communications to which the privilege attaches include any document prepared with a view to its being used as a communication between a party and his lawyer if it is confidential and made to or by the lawyer in his professional capacity and with a view to obtaining or giving legal advice or assistance, although not in fact so used (245). His Honour cited Southwark Water Co v Quick (1878) 3 QBD 315.

194 Mr Rayney's case was not put, either before the magistrate or this court, on the basis that he was at any material time acting as a lawyer on his own behalf or recording any of the conversations in question at the request or on behalf of his lawyers.

195 The critical issues raised in relation to ground 2 of AW's appeal are whether the magistrate erred in deciding, on the basis of the evidence before him (including the contents of the recordings themselves), that:

(a) Mr Rayney had proved that his dominant purpose in making the recordings was to submit the recordings to his lawyer with the object of seeking legal advice on them or preparing for or using them in litigation within his reasonable contemplation (namely, the defence of reasonably anticipated criminal proceedings against him in connection with the death of his wife).

(b) At the material time, litigation (being the defence of anticipated criminal proceedings against Mr Rayney in connection with the death of his wife) was within Mr Rayney's reasonable contemplation.

(c) The communications between Mr Rayney on the one hand and third parties on the other were capable of attracting legal professional privilege and were, in the circumstances, privileged.

196 I am satisfied that the magistrate erred in relation to the first and third of these issues, but not the second.

197 As to the first issue concerning dominant purpose, my reasons for finding error are these. First, Mr Rayney did not give or play any of the original recordings to his lawyers, and he did not seek or obtain legal advice on them. This is of significance in that, despite the Category 2 Files having been seized by the police on 20 September 2007, Mr Rayney retained the original recordings until he destroyed them by deliberately throwing out the dictaphone 'over a week after he created the Category 2 Files' [54]. Secondly, the contents of the original recordings, which are summarised in schedule 4 to these reasons, do not reveal any statements by any party to any recorded conversation, or any discussion between the parties to any recorded conversation, in respect of which Mr Rayney could reasonably have sought legal advice, either in the defence of anticipated criminal proceedings against him in connection with the death of his wife or at all. The content of each original recording (in particular, the subject matter and any issues raised by Mr Rayney or his responses to the third party) is relevant in determining Mr Rayney's dominant purpose when the communication in question occurred. Thirdly, the conversations appear to have been recorded without any discrimination as to the possible significance or relevance of each conversation. This is important because most of the conversations were with police officers and there was no evidence that Mr Rayney recorded all of his telephone conversations with the police between 7 August 2007 and 20 September 2007. Fourthly, the matters to which I have referred indicate, objectively, that Mr Rayney's dominant purpose in participating in the conversations and recording them was not to put them before a lawyer with the object of obtaining legal advice or for preparation or use in the defence of anticipated criminal proceedings against him. Rather, the objective probabilities, based on the matters to which I have referred, and the fact that Mr Rayney knew the conversations were being recorded but the other parties did not, are that Mr Rayney's dominant purpose in participating in the conversations and recording them was to assess later whether anything said by any party might be useful or advantageous to him, as matters developed in the course of the police investigation into his wife's death.

198 As to the second issue concerning whether litigation was within Mr Rayney's reasonable contemplation, the original recordings were made between 7 August 2007 and mid-September 2007. The magistrate expressly found that from mid-September 2007 there was 'a real prospect of litigation, as distinct from a mere possibility' [55]. He did not make an express finding in relation to any earlier time or period. However, his Honour did state that he was satisfied that when the Category 2 Files were created in mid-September 2007, 'Mr Rayney had, since an unknown date in August 2007, been in communication with Ms Blackburn for the purpose of receiving advice on the possibility that he would be subject to criminal charges arising from Mrs Rayney's death' [52]. He added that Ms Blackburn's evidence as to her having had conversations with Mr Rayney at about this date, and the steps she took in anticipation of Mr Rayney being charged, supported this finding [52]. In my opinion, the correct conclusion, based on the observations of the magistrate at [52] and the relevant evidence of Mr Rayney and Ms Blackburn, is that there was 'a real prospect of litigation, as distinct from a mere possibility' as from about 7 August 2007 and not merely as from mid-September 2007. The original recordings were therefore of conversations which occurred at a time when litigation was reasonably in contemplation.

199 As to the third issue concerning third party communications, for the reasons I have given, the communications between Mr Rayney on the one hand and the third parties on the other were not privileged because:

(a) The contents of the communications do not reveal any statements or discussions in respect of which Mr Rayney could reasonably have sought legal advice.

(b) Mr Rayney's dominant purpose in participating in the conversations and recording them was not to put them before a lawyer with the object of obtaining legal advice or preparation for or use in the defence of anticipated criminal proceedings against him. Rather, the objective probabilities are that Mr Rayney's dominant purpose in participating in the conversations and recording them was to assess later whether anything said by any party might be useful or advantageous to him.

(c) Each of Mr Rayney and the third parties acted as a principal (and not as a lawyer or on behalf of a lawyer) and, when the communications occurred, Mr Rayney did not engage in them for the dominant purpose of the communications being put before a lawyer with the object of obtaining legal advice or facilitating the prosecution or defence of any subsisting or reasonably contemplated litigation.

201 AW alleges in ground 3 of his appeal that the magistrate erred in law and fact in ruling that the Category 2 Files (save for ID 12 and 13) were privileged. This ground is concerned with the copies of the original recordings.

AW's ground of appeal no 3: the magistrate's findings and reasoning

202 The magistrate found that the Category 1 Files were not a complete record of the original recordings of conversations between Mr Rayney and Mrs Rayney [44]. The only evidence that the Category 2 Files were a complete copy of the original recordings of conversations between Mr Rayney and third parties, came from Mr Rayney.

203 The magistrate's findings and reasoning in relation to the Category 2 Files are summarised, together with his findings and reasoning in relation to, amongst other things, the original recordings, at [164] - [177] above.

AW's ground of appeal no 3: applicable legal principles

204 A document or recording may be the subject of legal professional privilege even though it is a copy of a non-privileged document or recording. See Propend Finance (509) (Brennan CJ), (543 - 544) (Gaudron J), (554) (McHugh J).

205 The salient facts of Propend Finance were these. During the execution of a search warrant, police officers seized documents from the office of a solicitor. The solicitor asserted the existence of legal professional privilege in respect of the documents on behalf of his clients. The documents seized included copies of documents, the originals of which were not privileged. The High Court held (Brennan CJ, Gaudron, McHugh, Gummow & Kirby JJ; Dawson & Toohey JJ dissenting) that legal professional privilege attached to a copy document that was provided to a lawyer if the copy was made for the 'sole' purpose (now, following later decisions of the High Court, the 'dominant' purpose) of obtaining legal advice or for the 'sole' purpose (now, the 'dominant' purpose) of use in legal proceedings, even where the original document was not privileged.

206 A critical basis for the decision in Propend Finance was that legal professional privilege protects communications rather than documents or recordings. The dominant purpose for which the copy document or copy recording is brought into existence may be different from the dominant purpose for which the original document or original recording was made. See Propend Finance (507) (Brennan CJ), (544) (Gaudron J), (553 - 554) (McHugh J), (571) (Gummow J), (587) (Kirby J). See also AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 [103] (Young J).

207 Further, the relevant purpose is the purpose for which the copy document or copy recording was brought into existence, and not the purpose for which the information embodied in it was obtained. See Waind (654); Propend Finance (508).

208 In Propend Finance, Brennan CJ said that where privileged copies of original documents are seized under a search warrant, 'some qualification of the privilege is required to ensure that the person executing the warrant should have access to the contents of an unprivileged original to the same extent at least as a party to litigation can obtain access to the contents of an unprivileged original against a party who has or has had the unprivileged original in his or her possession or power' (512). His Honour stated the qualification, as follows:

[I]f an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the person seeking to execute the warrant and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege. The loss of privilege can be avoided by the production of a copy of the original (which might be produced by copying the privileged copy) the accuracy of which is verified by a person having knowledge of the contents of the original. So long as a copy of the unprivileged original (with verification if necessary) or other secondary evidence of its contents is available to be tendered to prove the contents of the original, the privilege attaching to any copy of the original can and should be maintained. Otherwise, I would hold the privilege of the privileged copy to be lost (512).

209 McHugh J considered in Propend Finance whether a copy document brought into existence for the 'sole' (now 'dominant') purpose of obtaining legal advice or for confidential use in litigation would be privileged if the original document was unprivileged, and the original was copied with the intention of destroying the original. His Honour said:

[T]he question of privilege for a copy document has no bearing on litigation where the original non-privileged document is in the hands of the party required to make discovery. That party must produce the original, whether or not any copy of it is privileged. Moreover, if a party copied a non-privileged document with the intention of destroying the original, the copy would not be privileged even if it was also made for the sole purpose of obtaining legal advice or for confidential use in litigation. In that situation, the conclusion is inevitable that one of the purposes of making the copy was to ensure that the maker could safely destroy the original yet at the same time retain a record of the underlying transaction. Similarly, if a party copied a document and placed the non-privileged original in the custody of a lawyer, there would probably be no privilege for either document (555).

210 In Propend Finance, Gummow J observed (similarly to McHugh J):

In the course of argument, it was said that there would be an anomaly if a photocopy of a publicly registered document, made solely for a privileged communication, were protected whereas a certified copy of the original might readily be obtained and put into evidence. Other curiosities or apprehensions were suggested. One was the fear that copy documents might be brought into existence to enable destruction of the original whilst the copy was employed in obtaining legal advice and thus became part of a privileged communication. Yet, given the gross impropriety that this would involve, it surely would be difficult to sustain an argument for the subsistence of privilege. To uphold the privilege in such a case would be to allow the 'privilege to be used for a purpose alien to its whole purpose and history' (R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at 154). Further, as McHugh J points out in his reasons for judgment, on these assumed facts the copy documents would not have been made for the sole purpose of obtaining legal advice (570 - 571).

211 Mr Rayney did not, in creating the Category 2 Files, act as a lawyer on his own behalf or at the request or on behalf of his lawyers.

212 The critical issues raised in relation to ground 3 of AW's appeal are whether the magistrate erred in deciding, on the basis of the evidence before him (including the contents of the Category 2 Files themselves), that:

(a) Mr Rayney had proved that his dominant purpose in making the copies of the original recordings was to submit the copies (being the Category 2 Files) to his lawyer and seek legal advice on them.

(b) Mr Rayney had proved that his dominant purpose in making the copies of the original recordings was preparing for litigation within his reasonable contemplation (namely, the defence of anticipated criminal proceedings against him in connection with the death of his wife).

213 I am satisfied that the magistrate erred in relation to each of these issues. My reasons are as follows.

214 Mr Rayney admitted deliberately disposing of two dictaphones, which contained the original recordings, of which the Category 1 Files and the Category 2 Files are copies, after the execution of the search warrants at his residence and business premises on 20 September 2007. He disposed of the dictaphones, notwithstanding that:

(a) a search warrant executed at 6 Monash Avenue, Como on 22 August 2007 (Application 3 of 2007) sought, amongst other things, 'Computer hard drives, floppy discs, compact discs, any other electronic storage media, and all associated cables, power supplies, manuals, and other items required for the operation of that media, including passwords and locking devices';

(b) the search warrants executed at 6 Monash Avenue, Como and Francis Burt Chambers on 20 September 2007 (Application 6 of 2007) sought, amongst other things, '2x Sony 256Mb Digital Notetaker's (sic), model number ICDB500' and 'Computer hard drives, floppy discs, compact discs, any other electronic storage media, and all associated cables, power supplies, manuals, and other items required for the operation of that media, including passwords and locking devices'; and

(c) on 20 September 2007, Mr Rayney was charged with an offence under the Surveillance Devices Act, which was later discontinued and substituted with an offence under section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth).

215 There was evidence before the magistrate that the two dictaphones were in Mr Rayney's pocket when the search warrants were executed and that the police did not have power to search him. For the purposes of these appeals, I proceed on the basis that when the search warrants were executed the dictaphones were in the clothes then being worn by Mr Rayney and that the warrants merely authorised the police to search his premises.

216 The magistrate found that Mr Rayney destroyed the original recordings, of which the Category 2 Files are copies, by deliberately throwing out the dictaphone 'over a week after he created the Category 2 Files' [54].

217 When Mr Rayney deliberately threw out the dictaphone, and thereby destroyed the original recordings, he knew that the non-electronic and electronic records sought by the police under the search warrants included dictaphones. Also, when he deliberately threw out the dictaphone he knew what conversations and other information were contained on it.

218 The rationale for legal professional privilege was explained by Brennan J in Carter v Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121, 127 - 128:

The justification for the privilege is satisfaction of a public interest rather than enforcement of a private right, though there is no dichotomy between the two. As the Earl of Halsbury LC said in Bullivant v Attorney-General (Vict) ([1901] AC 196 at 200-201; see also per Lord Lindley, at 206; Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 62, 64):

'for the perfect administration of justice, and for the protection of the confidence which exists between a solicitor and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production.'

In my opinion, the basic justification for allowing the privilege is the public interest in facilitating the application of the rule of law.

Administration of the law is not the function of the courts alone. The law is administered more frequently and more directly by legal advisers than it is by judges. Legal professional privilege ensures that the law's writ can run effectively whenever a legal problem arises or a person seeks to chart a course of conduct in conformity with the law. The point was made by Advocate General Warner in AM & S Europe Ltd v Commission of the European Communities ([1983] QB 878 at 913):

'Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.'

See also the observations of Gleeson CJ, Gaudron and Gummow JJ in Esso [35].

219 The observations of McHugh J and Gummow J in Propend Finance, which I have reproduced at [209] - [210] above, support the proposition that if a person makes a copy of an original document or other record (the original being unprivileged) with the intention of obtaining legal advice in respect of the copy and destroying the unprivileged original, and this intention is carried into effect, privilege does not attach to the copy even if it would otherwise have been privileged.

220 In my opinion, as to intention, on the facts as found by the magistrate and the facts that were not seriously in contest, the objective probabilities require the ultimate finding or conclusion that Mr Rayney made copies of the original, unprivileged, recordings (the Category 2 Files being the copies) with the intention of destroying the original recordings by throwing away the dictaphone, so that the original, unprivileged, recordings would not be available to anyone (including, in particular, the police) for any purpose (including, in particular, the investigation of Mrs Rayney's killing). This intention is inconsistent with the public policy rationale on which legal professional privilege is based.

221 Further and in any event, as to dominant purpose, on the facts as found by the magistrate and the facts that were not seriously in contest, Mr Rayney has not established, objectively, the ultimate fact or conclusion, namely, that his dominant purpose in making the copies of the original recordings (the Category 2 Files being the copies) was to submit the copies to a lawyer with the object of obtaining legal advice or preparation for or use in litigation within his reasonable contemplation. Mr Rayney did not give or play the Category 2 Files to his lawyers, and he did not seek or obtain legal advice on them. The contents of the Category 2 Files do not reveal any statements or any discussion in respect of which Mr Rayney could reasonably have sought legal advice. The Category 2 Files appear to have been created without any discrimination as to the significance or relevance of the content of each conversation. The objective probabilities, based on the matters to which I have referred, and the fact that Mr Rayney knew the conversations were being recorded but the other parties did not, are that Mr Rayney's dominant purpose in creating the Category 2 Files was to assess later whether anything said by any party might be useful or advantageous to him, as matters developed in the course of the police investigation into his wife's death. The dominant purpose criterion for the application of legal professional privilege is therefore not satisfied.

AW's grounds of appeal nos 4 and 6: general

223 It is convenient to consider grounds 4 and 6 of AW's appeal together.

224 AW alleges in ground 4 that the magistrate erred in law and fact in ruling that AW was prohibited from knowing the names of the parties whose conversations were recorded by Mr Rayney, and the dates upon which the recordings took place, as referred to in the Category 2 Files.

225 AW alleges in ground 6 that the magistrate erred in law and fact in ruling that the parts of ID 51 and 74 in the Category 3 Files would disclose the content of a privileged communication relevant to the Category 2 Files which his Honour had determined was privileged.

226 The Category 3 Files comprised those parts of the balance of the Tranche 1 Files over which Mr Rayney claimed legal professional privilege. In particular, the privilege claim in Category 3 was over:

(a) the parts of the Tranche 1 Files quoted by Mr Rayney and said to disclose information about computer files created and accessed by him for the purpose of preparing for litigation in which he acted as a barrister; and

(b) the whole of ID 51 and 74, being information about computer files in Category 1 and Category 2.

AW's grounds of appeal nos 4 and 6: the magistrate's reasons

227 The magistrate found that there were 'exceptional circumstances' that justified the non-disclosure to AW of the names of the other parties to the telephone conversations recorded by Mr Rayney, without their consent, as referred to in the Category 2 Files [56]. His Honour's reasoning was as follows:

These reasons are opaque to the extent that the identity of the other party to each recorded conversation is not identified and have not been identified in Mr Rayney's material served upon the WA Police. However, 'not only can a party assert litigation privilege in relation to proofs of evidence obtained from witnesses, but he can also assert it over the very identity of the witness he has approached': Bankim Thanki The Law of Privilege OUP (2006), 127. As was observed by Sir Andrew Morritt V-C about litigation privilege and interviews by a party with potential witnesses, 'both the information given [by a potential witness] and the identity of the person supplying it are confidential and privileged unless and until the privilege is waived by that person giving evidence in the proceedings or some other equivalent action': China National Petroleum Corporation v Fenwick Elliott; Techint International Construction Company [2002] EWHC 60 (Ch), [45]; cf Re Ronald Edward Adams v Anthony Bryant & Co Pty Limited [1986] FCA 263 (Wilcox J). In a context where Mr Rayney's claim includes a claim to litigation privilege, I consider that 'exceptional circumstances' (Rayney v AW [2009] WASCA 203 [43]) exist that justify non-disclosure to the WA Police of the identity of the other party to the conversations with Mr Rayney. Those circumstances are that the identity of [the] other party is itself privileged. The name of the computer file discloses the identity of the other party to the conversation and that information must also remain confidential [56].

228 In his reasons, the magistrate made these comments about the content of ID 51 and 74 in the Category 3 Files:

The Category 3 Files include ID51 and 74. The claim to privilege is over the whole of these files. Mr Rayney contends that these files contain 'metadata relating solely to audio files from Tranche 1 which are subject to privilege claims'. I understand this to mean that the content of these files is related to the content of the Category 1 Files or the Category 2 Files and, on the assumption that the Category 1 Files and the Category 2 Files are privileged, these files are also said to be privileged. I will refer to ID51 and 74 as Category 3 Audio Related Files.

My examination of the Category 3 Audio Related Files reveals that ID 51; ID74 are files which, when opened, contain what appears to be a technical report headed 'Deleted File Information' and, on the face of the report, contains information about activity on: the Dell computer tower seized from Francis Burt Chambers on 20 September 2007 (ID51) and also on the Hewlett Packard computer tower from 6 Monash Ave Como on 20 September 2007 (ID74). The report, on a number of files some of which have the same file name as files in Category 1 Files and Category 2 Files, appears to include the date and time that those files were 'deleted' from an identified computer. Other technical information appears in the report. Apart from what I have summarized in this paragraph, the significance of the other information is not apparent from the report itself and, in the absence of expert evidence, is impossible for me to determine [65] - [66].

229 The magistrate's findings in relation to ID 51 and 74 in the Category 3 Files were, relevantly, these:

The Category 3 Audio Files are privileged only to the extent that their disclosure would reveal the content of the Category 1 Files and the Category 2 Files that I have ruled are privileged. I have ruled that a number of the Category 2 Files are privileged and that the content of those file names, revealing the name of a party to a conversation, is also privileged. Parts of the Category 3 Audio Files include reference to the same names. Where a person's name appears in the file name of a privileged Category 2 File, the name should be removed from the Category 3 Audio Files. After removing that privileged information, the balance of the file contains unprivileged material (including the date and time of the deletion from Mr Rayney's computer of a copy of a privileged communication between him and an unknown party) and must be disclosed [74].

AW's grounds of appeal nos 4 and 6: the decision in China National Petroleum

230 In China National Petroleum Corporation v Fenwick Elliott & Techint International Construction Co [2002] EWHC 60 (Ch), the claimants alleged, relevantly, that there was a strong prima facie case to the effect that a party to arbitration proceedings had obtained confidential information from a potential witness. Sir Andrew Morritt V-C, in the course of considering an application for a disclosure order, said:

Litigation privilege exists because it is in the public interest that litigants should seek and obtain confidential advice in respect of actual or contemplated litigation. There is no such privilege where the communications are not made in the usual course of the solicitor's retainer because, for example, they are made in furtherance of a crime or fraud. The extent of the privilege and the exceptions to it were comprehensively examined by the Court of Appeal in Barclays Bank plc v Eustace [1995] EWCA Civ 29; [1995] 1 WLR 1238 and by Rix J in Dubai Aluminium Co Ltd v AI Alawi [1998] EWHC 1202; [1999] 1 WLR 1964. I note, in particular, that inducing a breach of duty is not, without more, within the exception. Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 553.

In the normal course of proceedings a solicitor will interview and obtain proofs of evidence from all manner of potential witnesses for use in actual or prospective litigation. Both the information given and the identity of the person supplying it are confidential and privileged unless and until the privilege is waived by that person giving evidence in the proceedings or some other equivalent action. This was and is recognised in the common form claim to privilege contained in the former affidavit of documents as well as in the present disclosure statement in neither of which was or is the name of the witness who has given the proof revealed [44] - [45].

231 The authors of B Thanki QC (ed), The Law of Privilege (Oxford UP, (2006)) state:

Not only can a party assert litigation privilege in relation to proofs of evidence obtained from witnesses (see paragraph 3.17 above), but he can also assert it over the very identity of the witness he has approached. The principle that there is no property in a witness means in essence that any witness can be summoned to give evidence about what he or she can recollect - the underlying facts cannot be the subject of privilege (see paragraph 3.13 above). The witness's identity and relevance to the case may be known to both parties, but the witness may be reluctant to assist either. In such circumstances the fact that a party has obtained the co-operation of that witnesses would seem to be privileged on the 'identity' principle, notwithstanding there is no confidentiality per se in that identity [3.29].

232 The authors cite China National Petroleum, [19] - [20], as authority for the proposition that 'a party [can] assert litigation privilege ... over the very identity of the witness he has approached' [3.29]. The reference to [19] - [20] appears to be an error, and the intended reference should have been to [45] - [46].

233 In my opinion, the Vice-Chancellor's observations in these passages relate to litigation privilege under English law where a lawyer has interviewed and obtained proofs of evidence from potential witnesses for use in actual or prospective litigation. His Lordship's observations did not concern direct communications between a 'client' (who has not yet retained a lawyer) and a third party, with the 'client' and the third party each acting as a principal.

AW's grounds of appeal nos 4 and 6: their merits

234 In Z v New South Wales Crime Commission [2007] HCA 7; (2007) 231 CLR 75, Gleeson CJ said, in the context of whether the disclosure by a lawyer of the name of his or her client would be protected by legal professional privilege:

As a general rule, a requirement that a lawyer disclose the identity of a client will not necessitate disclosure of a confidential communication. There are, however, exceptional circumstances in which there is such a connection between a confidential communication and a retainer that disclosure by a lawyer of the identity of a client will disclose that confidential communication [4].

235 In Commissioner of Taxation v Coombes [1999] FCA 842; (1999) 92 FCR 240, a Full Court of the Federal Court (Sundberg, Merkel & Kenny JJ) reviewed the authorities (including numerous decisions of courts in the United States of America) concerning whether the disclosure of a client's identity is protected by legal professional privilege. Their Honours distilled a number of propositions from the cases including, relevantly, the following:

• As a general rule, the identity of a client will not be privileged, as the privilege belongs to the client, and the retainer between the lawyer and the client must be demonstrated in order to establish the privilege. This requires disclosure of the client's identity.
• Disclosure of the client's identity is necessary before the privilege can arise even if the client's name was given in confidence, and it was a condition of the lawyer's retainer that the client's identity be kept confidential. The client cannot by contract extend the area of privilege.
• Some of the cases support an exception to this general rule when so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication. This will be the case when the client's identity is so intertwined with the confidential communication that to disclose the identity would be to disclose the communication [31].

236 In Adams v Anthony Bryant & Co Pty Ltd (1986) 15 FCR 513, Wilcox J said that, in principle, information as to proposed witnesses cannot be a matter which is subject to legal professional privilege. His Honour explained:

The rationale of the doctrine of legal professional privilege is that it protects communications between a client and his or her legal advisers, enabling the client to seek and to receive advice and to give instructions without the fear that the communication will subsequently be used in evidence. A letter from a client to his or her solicitor containing suggestions or instructions as to witnesses to be called in pending legal proceedings would undoubtedly be privileged. A request for information from the solicitor of a party regarding the witnesses to be called does not require the solicitor to divulge the instructions given by the client. The names supplied may or may not coincide with any specific instructions given to the solicitor by the client. Indeed, it will be a rare case in which the client has given specific instructions as to witnesses; most litigants sensibly leave the decision as to witnesses to their lawyers (519).

237 Disclosure of confidential information does not occur merely because of the disclosure of other information which merely causes the reader to 'wonder or speculate whether legal advice had been obtained and what was the substance of that advice': AWB Ltd v Cole [133]. See also Re Southland Coal Pty Ltd (Receivers and Managers Appointed) (in liq) [2006] NSWSC 899; (2006) 203 FLR 1 [14](e) (Austin J).

238 The magistrate's decisions which are challenged in grounds 4 and 6 are premised on the correctness of his Honour's finding that the Category 2 Files are privileged. For the reasons I have given, in the context of examining ground 3, that finding of privilege was erroneous.

239 It is therefore unnecessary to make a separate determination in relation to grounds 4 and 6 of AW's appeal.

240 AW alleges in ground 5 of his appeal that the magistrate erred in law and fact in ruling that the original recordings of the conversations, of which the Category 2 Files are copies, were made because they were 'reasonably necessary for protection of [Mr Rayney's] lawful interests' and, therefore, were recorded in compliance with s 5(3)(d) of the Surveillance Devices Act.

AW's ground of appeal no 5: the 'crime/fraud exception'

241 Communications in furtherance of a crime or fraud are not protected by legal professional privilege because the privilege never attaches to them. Although such communications are frequently described as 'exceptions' to the privilege, they are not exceptions in that the illegal object of such communications precludes the privilege from attaching. See Propend Finance (556) (McHugh J). See also Bullivant v Attorney-General (Vic) [1901] AC 196, 201. Public policy precludes the application of the privilege in such circumstances.

242 As Finkelstein J noted in Re ACN 005 408 462 Pty Ltd (formerly TEAC Australia Pty Ltd) [2008] FCA 964 [16], the word 'fraud' in the context of the 'crime/fraud exception' is sufficiently broad to include 'fraud on justice' (Attorney-General (Northern Territory) v Kearney [1985] HCA 60; (1985) 158 CLR 500, 514) or conduct that would 'frustrate the processes of law' (R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141, 156).

243 Legal professional privilege does not attach to a communication made 'as part of a criminal or unlawful proceeding or in furtherance of an illegal object': Propend Finance (563) (Gummow J). Further, the privilege does not attach where the claimant seeks 'legal assistance as a step in, or preparatory to, the commission of a crime or fraud', notwithstanding that the lawyer did not know of the purpose of the communication when it was made: Propend Finance (563 - 564) (Gummow J). See also R v Bell (145) (Gibbs J).

[D]ifferent expressions are to be found in the cases to explain what is meant by crime or fraud in the present context: 'any unlawful or wicked act' (Annesley v Anglesea ((1743) 17 St Tr 1139, at p 1229)); 'a criminal or unlawful proceeding', 'fraudulent contrivance, or ... any illegal proceeding', 'an improper or an illegal act', 'illegality or fraud or trickery' (Bullivant v Attorney-General (Vict) ([1901] AC 196 at pp 201, 203, 205, 206)); 'crime or civil fraud', 'wrong-doing', 'illegal object' (Varawa v Howard Smith & Co. Ltd ((1910) [1910] HCA 11; 10 CLR 382 at pp 386, 387, 390)); 'any illegal or improper purpose', 'to frustrate the processes of law', 'taint of illegality', (Reg v Bell; Ex parte Lees ((1980) [1980] HCA 26; 146 CLR 141 at pp 145, 156, 162)); 'crime or fraud or civil offence' (Baker v Campbell ((1983) 153 CLR 52 at p 86)). Despite their apparent breadth, these expressions have, I think, been used more to explain the nature of the exception rather than to restrict the scope of the privilege.

AW's ground of appeal no 5: the relevant statutory framework

245 The Surveillance Devices Act regulates, amongst other things, the use of listening devices in respect of private conversations. The Act establishes an integrated scheme for the protection of privacy. See Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108 [111] (Johnson J, McClellan CJ at CL & Hislop J agreeing).

246 Section 5(1) of the Act prohibits a person from using a listening device to record a private conversation, including a conversation to which that person is a party. A breach of s 5(1) constitutes a criminal offence.

247 The term 'listening device' is defined in s 3(1) of the Act to mean, relevantly, 'any instrument, apparatus, equipment, or other device capable of being used to record, monitor or listen to a private conversation or words spoken to or by any person in private conversation'. Section 3(1) contains other relevant definitions, as follows:

party means -

(a) in relation to a private conversation -

(i) a person by or to whom words are spoken in the course of the conversation; or

(ii) a person who, with the express or implied consent of any of the persons by or to whom words are spoken in the course of the conversation, records, monitors or listens to those words;

...

principal party means -

(a) in relation to a private conversation, a person by or to whom words are spoken in the course of the conversation;

...

private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard;

record, in relation to a private conversation, includes a statement prepared from such a record and to record includes visual and sound recording;

report, in relation to a private conversation, includes a report of the substance, meaning or purport of the conversation.

(1) Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device -

(a) to record, monitor, or listen to a private conversation to which that person is not a party; or

(b) to record a private conversation to which that person is a party.

(a) for an individual: $5 000 or imprisonment for 12 months, or both;

(b) for a body corporate: $50 000.

249 The exceptions in s 5(2) are not relevant for the purposes of these appeals.

250 Section 5(3)(d) provides that s 5(1)(b) does not apply to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if:

a principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance and the installation, use, or maintenance is reasonably necessary for the protection of the lawful interests of that principal party.

251 Section 9(1) prohibits a person from, relevantly, knowingly publishing or communicating a private conversation, or a report or record of a private conversation, that has come to the person's knowledge as a direct or indirect result of the use of a listening device. A breach of s 9(1) constitutes a criminal offence. Section 9(2) contains specified exceptions to the prohibition in s 9(1). By s 9(2)(a), those exceptions include where the publication or communication is made:

(vi) for the protection of the lawful interests of the person making the publication or communication;

(vii) in the case of the use of a listening device ... in the circumstances referred to in section 5(3)(d) ... in the course of reasonable action taken to protect the lawful interests of the principal party to the conversation or activity who consented to the use of the device; or

...

(ix) in the course of any legal proceedings.

252 Section 9(3) is a significant provision in that it qualifies the exceptions specified in s 9(2). Relevantly, s 9(3)(a) states that s 9(2) only provides a defence if the publication or communication is not more than is reasonably necessary:

(i) in the public interest;

(ii) in the performance of a duty of the person making the publication or communication; or

(iii) for the protection of the lawful interests of the person making the publication or communication.

253 The critical issue, in the context of ground 5 of AW's appeal, is not merely whether the original recordings were made with a listening device, but whether they were made with a listening device in circumstances that are not within s 5(3)(d) of the Act.

254 The resolution of this critical issue requires an analysis of the content and ambit of the phrase 'reasonably necessary for the protection of the lawful interests of that principal party' in s 5(3)(d), and the application of that phrase, properly construed, to the facts and circumstances of the present case.

255 It is not in dispute that the digital dictaphone used by Mr Rayney was a 'listening device' as defined in s 3(1) of the Act.

256 Also, it is plain that Mr Rayney was a 'principal party', as defined in s 3(1), to the conversations in question.

(a) The word 'necessary' connotes, in the context of s 5, 'appropriate or adapted' rather than 'essential or indispensible'. See, generally, Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 [39] (Gleeson CJ). See also Sepulveda [116] - [117].

(b) The word 'reasonably' imports an objective test. That is, the installation, use, or maintenance of the listening device must, objectively, be reasonably appropriate or adapted. See Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167 [20] - [22]; Sepulveda [118].

(c) The determination of whether something is 'reasonably necessary' involves the exercise of judgmental evaluation. See, generally, Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 [20] - [27] (Gleeson CJ).

(d) The determination of whether the use of a listening device is 'reasonably necessary' is to be undertaken by reference to the facts and circumstances, and upon the bases or grounds, existing at the time of the recording. See Marsden [20] - [22]; Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580 [23]; Sepulveda [118].

(e) The word 'protection', in the context of s 5, connotes defending, preserving or safeguarding the lawful interests of the principal party in question. See Sepulveda [120].

(f) What constitutes a person's 'lawful' interests must be ascertained from the facts and circumstances of the particular case. It may be said, generally, however that the word 'lawful' connotes, in the context of s 5, a right or interest which is not contrary to statute or general law. See, generally, Violi [28] and also the discussion in Sepulveda [121] - [126].

(a) the recordings were reasonably necessary to protect Mr Rayney's lawful interests because Mr Rayney reasonably anticipated that 'he was the subject of investigation of a serious criminal offence' and that, objectively, there was a likelihood that the subject matter of the conversations would be the subject of legal advice [60];

(b) it was not reasonably practical for Mr Rayney to protect his interests by seeking the assistance of the police [60]; and

(c) it was not reasonably practical for Mr Rayney to make notes of the conversations because of the number of conversations, the length of some of them, and the complexity of some of their contents [60].

259 I am satisfied that the magistrate was in error in deciding that Mr Rayney's use of the listening device was 'reasonably necessary' for the protection of his lawful interests. My reasons are as follows.

260 First, there was no objective basis for any belief by Mr Rayney that any of the other parties to the conversations would or may have been:

(a) untruthful as to their recollection of the matters discussed (compare Chao v Chao [2008] NSWSC 584 [8]);

(b) likely to have asserted that Mr Rayney was being dishonest in his recollection of the matters discussed (compare Public Trustee v Alvaro [1995] SASC 5183);

(c) unwilling to provide a witness statement, including a statement as to the content of the conversations;

(d) uncooperative with the police if the police had sought to interview them; or

(e) likely to have asserted that Mr Rayney had fabricated his account of the conversations (Latham v Latham [2008] Fam CA 877 [13], [27]).

261 Secondly, Mr Rayney was at the material time a very experienced barrister with extensive experience in the practise of criminal law, and there was no reason or justification (beyond mere convenience) as to why he could not have made adequate notes of the material substance of the conversations. I am satisfied that neither the number of conversations nor their length or complexity made it reasonably impractical for Mr Rayney to protect any lawful interest he may have had by making notes of the material substance of the conversations. The notes could readily have been made by hand during and after each conversation. Alternatively, the notes could have been made after each conversation by use of a dictaphone. Mr Rayney was well-acquainted with the operation of a dictaphone.

262 Thirdly, the objective probabilities are that Mr Rayney, a very experienced criminal lawyer, would have been familiar with the statutory provisions which have been enacted to overcome the problem of admissions by a suspect to the police and the perceived problem of the police 'verbal'. See s 570D of the Criminal Code (repealed) and pt 11 (in particular, s 118) of the CIA.

263 The original recordings with the third parties were therefore made with a listening device in circumstances that are not within s 5(3)(d) of the Act.

264 It is unnecessary to determine whether any interest that Mr Rayney was endeavouring to protect was a 'lawful interest' within s 5(3)(d).

265 I am satisfied that Mr Rayney, in using a listening device to make the original recordings without the knowledge or consent of the third parties, breached s 5(1)(b) of the Act. As I have mentioned, a breach of s 5(1)(b) constitutes a criminal offence. Mr Rayney's conduct was within the 'crime/fraud exception', and the communications in question were not protected by legal professional privilege.

AW's appeal and the appropriate orders to be made: conclusions

267 AW has made grounds 1, 2, 3 and 5 of his appeal.

268 I would therefore allow the appeal, and order that:

(a) the magistrate's decision concerning the Category 2 Files in Tranche 1 (except for items 12, 13, 54 and 55) be set aside; and

(b) the Category 2 files in Tranche 1 be released to AW.

Mr Rayney's appeal: overview of the evidence before the magistrate

269 Mr Rayney filed, relevantly, an affidavit of himself dated 2 February 2009 and an affidavit of Mr Carr dated 2 February 2009. Pursuant to the orders made by the magistrate on 18 March 2009, a redacted version of each affidavit was served on AW.

(a) he retained Mr Carr from April 2007 in respect of family law matters (pars 5 - 6);

(b) he believed that litigation in the Family Court of Western Australia would have commenced (par 7);

(c) his wife had engaged a legal firm to act for her (par 8);

(d) he made recordings of conversations for the purpose of seeking legal advice and, possibly, use of the recordings in litigation (par 16);

(e) the recordings were made with a handheld digital dictaphone, which was visible, and his wife was aware of the recording (par 19);

(f) the recordings, copies of which comprise the Category 1 Files, were made for the purpose of playing them to Mr Carr so he would be able to provide legal advice in respect of family law matters (par 24);

(g) the recordings were copied from the digital dictaphone to a compact disc for the purpose of playing the disc to Mr Carr at his offices to obtain legal advice in the family law proceedings (par 25).

(a) confirmed that since April 2007 he had acted for Mr Rayney in family law matters including matters relating to his marriage, separation and children (par 4);

(b) said that he discussed potential litigation in the Family Court with Mr Rayney in conferences and telephone conversations (par 7) and he believed that litigation would have commenced (par 11);

(c) Mr Rayney advised him that he had recorded conversations with his wife, and on one occasion Mr Rayney played him such recordings (par 12).

272 Mr Rayney filed a privilege claim schedule. It asserted litigation privilege and legal advice privilege with regard to each of the Category 1 Files, and stated that, in each case, the record was a recorded discussion made for the purposes of seeking legal advice and for use in Family Court litigation.

273 Mr Rayney's affidavit stood as his evidence-in-chief and he was cross-examined. Allegations which had been made by Mrs Rayney were raised in cross-examination (ts 14 - 16). Mr Rayney said that those allegations were matters of great concern and that he was concerned those matters would be relied on to discredit him in Family Court proceedings (ts 17). He was making the record of the conversations for the purpose of legal advice and, possibly, for use in litigation (ts 22 - 23). He wanted to show Mr Carr what was being discussed and get advice on it (ts 26).

274 As to the conversation played to Mr Carr on 6 August 2007, Mr Rayney said it was in relation to a particular matter. He was hoping to talk to Mr Carr about several conversations, but his (Mr Carr's) time was limited (ts 29). The conversation was then still on the digital dictaphone (ts 30).

275 Mr Rayney gave evidence that he copied everything from the dictaphone to a compact disc (ts 39). The copies on the disc were in a format that could be used easily by Mr Carr (ts 39). The copies were made before Mrs Rayney's death (ts 39).

(a) Detective Senior Sergeant Timothy Justin Thomas dated 6 February 2009, going to issues of computer analysis;

(b) Sharon Ann Marie Coutinho (Mrs Rayney's sister) dated 10 November 2009, referring to the allegations being made by Mr Rayney's wife about him (par 13);

(c) Detective Senior Sergeant Gregory Alan McDonald dated 11 November 2009, regarding search and seizure of items from the offices of Mr Carr;

(d) Gillian Margaret Anderson (Mrs Rayney's solicitor) dated 11 November 2009, regarding her acting for Mrs Rayney and including reference to matters in contention between Mr Rayney and his wife; and

(e) Timothy Matthew Pearson dated 12 November 2009, in relation to the installation of telephone interception equipment (found by the magistrate not to have been used in relation to the Category 1 Files).

Mr Rayney's appeal: the grounds which must be made out to affect the result

277 Mr Rayney must succeed on both grounds 1 and 2 of his appeal to affect the result.

278 Ground 3 of Mr Rayney's appeal, in relation to the solicitor's file note, is independent. The sole basis for denying privilege to the file note was its connection to a criminal purpose.

279 Mr Rayney alleges, in essence, in relation to ground 1 that the magistrate erred in law in holding that a record brought into existence for the purpose of communication to a legal adviser (being, in the present case, a copy of an original recording) could not be privileged if there was evidence showing, on the face of it, that the original recording was made in breach of s 5(1) of the Surveillance Devices Act.

Mr Rayney's ground of appeal no 1: the magistrate's reasons

280 The magistrate stated the principles of law relating to the 'crime/fraud exception' to legal professional privilege, as follows:

Legal professional privilege does not attach to communications made by a client so that he or she might better undertake or continue criminal or fraudulent conduct: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. Similarly, criminal or fraudulent conduct of a party in obtaining material for use in litigation will result in a determination that the material is not privileged: Carbone (1994) 75 A Crim R 353 at [61]; Derby & Co Ltd v Weldon (No 7) [1990] 1 WLR 1156, 1173.

There is an evidentiary burden upon a party alleging criminal or fraudulent conduct to adduce prima facie evidence that the allegation has some foundation in fact: Commissioner Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Brennan CJ at 514; Dawson J at 521; Toohey J at 534; Gaudron J at 546; McHugh J at 556; and Kirby J at 592. The party must show 'reasonable grounds for believing that the communication effected by the document for which legal professional privilege is claimed was made for some illegal or improper purpose': Commissioner Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 514 (Brennan CJ) [26] - [27].

281 The magistrate found that the original recordings of the conversations between Mr Rayney and Mrs Rayney, copies of which comprised the Category 1 Files, were obtained in contravention of s 5(1)(b) of the Surveillance Devices Act. His process of reasoning was as follows:

(a) the magistrate did not accept Mr Rayney's evidence that Mrs Rayney expressly or impliedly consented to the recording of their conversations in person or their telephone discussions [35];

(b) there was an inexplicable inconsistency in Mr Rayney's stated purpose in recording the conversations for use in family law litigation in circumstances where Mrs Rayney's alleged consent to the original recordings was not recorded [36];

(c) it was inherently unlikely that Mrs Rayney would omit to mention (as she did) the existence of consensual audio recordings to her family lawyer, Ms Anderson [37];

(d) it was inherently unlikely that Mr Rayney would seek the consent of Mrs Rayney to the recording of the conversations in the Category 1 Files and, thereafter, make arrangements (as he did), in July 2007, for the installation, without Mrs Rayney's knowledge, of a telephone recording device in their home [38]; and

(e) the magistrate concluded that Mrs Rayney did not consent to the making of the original recordings [39] - [40].

282 The magistrate also found that a file note dated 6 August 2007 made by Mr Rayney's family lawyer, Mr Carr, was not subject to legal professional privilege in that it was tainted by Mr Rayney's criminal conduct in relation to the secret recording of his conversations with Mrs Rayney [45].

283 The magistrate held that the nexus between the original recordings (which were made in contravention of s 5(1)(b)) and the Category 1 Files (being copies of the original recordings) was 'sufficiently close' that he was satisfied of 'criminal conduct in obtaining the Category 1 Files' [41]. The Category 1 Files were therefore not privileged.

Mr Rayney's ground of appeal no 1: Mr Rayney's submissions

284 Counsel for Mr Rayney submitted that the second sentence in [26] of the magistrate's reasons (see [280] above) discloses an error in principle.

285 According to counsel, the observations of Hill J in Carbone v National Crime Authority (1994) 52 FCR 516 [61], on which the magistrate relied, are 'inconsistent with principle'. It was submitted that the question is not whether the document or record is tainted by its nexus with an illegal act, but whether the privileged communications were in furtherance of, or were themselves part of, some criminal or unlawful proceeding. See Propend Finance (572) (Gummow J).

286 Counsel contended that, on the findings made by the magistrate, and the evidence before him, Mr Rayney's communications (and intended communications) with Mr Carr were not in furtherance of, or part of, any crime or fraud or other improper purpose.

Mr Rayney's ground of appeal no 1: its merits

287 In Propend Finance, Brennan CJ said that, in determining whether a claim of legal professional privilege has been made out, it is open for the party resisting the claim to show reasonable grounds for believing that the relevant communication in respect of which privilege is claimed was made for some illegal or improper purpose; that is, some purpose contrary to the public interest (514). His Honour elaborated:

I state the criterion as 'reasonable grounds for believing' because (a) the test is objective and (b) it is not necessary to prove the ulterior purpose but there has to be something 'to give colour to the charge' (O'Rourke v Darbishire [1920] AC 581 at 604, 633; Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 516, 517, 525, 527), a 'prima facie case' that the communication is made for an ulterior purpose (Butler v Board of Trade [1971] Ch 680 at 689). The purposes that deny the protection of privilege for a communication (Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 515; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 163) (whether documentary or oral) between a client and the client's solicitor or counsel include (Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 516, 528 - 529) the furthering of the commission of an offence (R v Cox and Railton (1884) 14 QBD 153 at 175; O'Rourke v Darbishire [1920] AC 581 at 613, 632; Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382 at 385, 386, 389-390; Butler v Board of Trade [1971] Ch 680 at 689).

288 In Carbone, the first applicant (Carbone) was an inquiry agent employed by the second applicant's (Perre's) solicitor to investigate the circumstances of the bombing of the National Crime Authority in Adelaide. Perre had been charged with murder and attempted murder in relation to the death of one person and injuries to another caused by the bomb. Carbone interviewed, and took statements from, potential witnesses, including a Mr Chamberlain. The Authority obtained a warrant under s 22 of the National Crime Authority Act 1984 (Cth) to search and seize documents from Carbone's premises. The applicants alleged, relevantly, that a number of documents seized pursuant to the warrant were the subject of legal professional privilege attaching to Perre. The documents in respect of which privilege was claimed were, primarily, transcripts of a number of telephone conversations between Carbone and Mr Chamberlain and witness statements taken by Carbone. It appeared that Carbone had recorded the conversations without Mr Chamberlain's knowledge, contrary to the Telecommunications (Interception) Act 1979 (Cth).

289 In the Federal Court, Hill J held that the warrant was invalid. Although it was not essential to his decision in the case, his Honour observed:

This raises a difficult question as to whether the fact that the conversations were taped contrary to the provisions of the Telecommunications (Interception) Act has the consequence that no privilege attaches to those transcripts where the privilege would otherwise have attached if the transcripts had legally been obtained.

Senior counsel for the NCA referred me to the decision of the High Court in R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141, not because the situation that arose in that case was in any way comparable but because of the discussion of principle there contained.

The issue in R v Bell was whether a communication to a solicitor by his client of her address in circumstances where the client, in breach of an order of the Family Court of Australia, had absconded with a child over whom the client's husband had interim custody was the subject of legal professional privilege. It was held that it was not.

As the judgment of Gibbs J in that case points out there are certain cases in which the privilege will not exist even though the communication was made in circumstances of confidence. One example is where the communication was part of a criminal or unlawful proceeding or made in furtherance of an illegal object: Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382. So if the communication in respect of which privilege is claimed is itself a step in the commission of a crime or a civil fraud, the privilege will be found not to exist and it will be immaterial that the solicitor is not a party to the illegal object.

The reason why legal professional privilege is denied in such circumstances is that the maintenance of the privilege in the face of the illegal object would operate to impede the administration of justice rather than to further it: cf per Stephen J in Bell at 151 - 152.

The legislature had seen fit to proscribe the taping of intercepted conversations without the authority of the person whose conversations are taped. It is not necessary in the present case to determine whether Mr Carbone was, in the circumstances, liable to a penalty where it seems he was advised by Mr Waye that what he was doing was not illegal. A significant point is that the communications, in respect of which it is alleged privilege attaches, were themselves obtained in breach of Parliament's proscription. To permit privilege to attach in such circumstances, in my view, would be to impede and indeed discourage the due administration of justice and observance of the law with the consequence that I would hold that privilege does not attach to the transcripts (528 - 529).

290 Carbone was decided before Propend Finance.

291 In my opinion, the correctness of the magistrate's decision, which is challenged in ground 1 of Mr Rayney's appeal, must be determined by reference to the applicable principles enunciated in Propend Finance and in the context of the relevant provisions of the Surveillance Devices Act.

292 Ground 1 raises an issue of legal principle. It is not concerned with the application of the law to the specific facts of the present case.

293 In my opinion, the magistrate was in error in holding that a record brought into existence for the purpose of communication to a legal adviser (being, relevantly, a copy of an original recording) cannot be privileged if there is evidence showing, on the face of it, that the original recording was made in breach of s 5(1) of the Surveillance Devices Act. My reasons for finding the existence of an error of principle are these.

294 First, as I have mentioned in the course of examining ground 3 of AW's appeal, a document or recording may be the subject of legal professional privilege even though it is a copy of a non-privileged document or recording.

295 Secondly, as I have mentioned in the context of ground 3 of AW's appeal, the dominant purpose for which the copy document or copy recording is brought into existence may be different from the dominant purpose for which the original document or original recording was made.

296 Thirdly, s 5 of the Surveillance Devices Act is relevant to whether the original recordings were made lawfully or not. Section 5 is not, however, concerned with the knowing publication or communication of the original recordings or copies of the original recordings.

297 Fourthly, knowing publication or communication is dealt with in s 9 of the Surveillance Devices Act. I have reproduced the relevant parts of this provision and relevant definitions at [247] - [252] above. The magistrate did not mention s 9 in his reasons. It appears the parties did not refer to s 9 before his Honour. Section 9 was not referred to in the written submissions to this court, but it was mentioned by counsel for AW in oral argument. As to s 9:

(a) the creation of the Category 1 Files involved the making of a 'record', within the ordinary meaning of that term, of the private conversations between Mr Rayney and his wife (see also the extended definitions of 'record' and 'to record' in s 3(1));

(b) Mr Rayney's alleged purpose in making the Category 1 Files (namely, to obtain legal advice) would have involved the knowing publication or communication of the private conversations embodied in the Category 1 Files to his lawyer, Mr Carr; and

(c) the 'record' of the private conversations would have come to Mr Rayney's knowledge as a direct or indirect result of the use of a listening device.

298 Fifthly, a record brought into existence for the purpose of communication to a legal adviser (being, relevantly, a copy of an original recording) may, but will not necessarily, be privileged if the actual communication of the copy does not contravene s 9 of the Act (for example, because the communication was within s 9(2)), even though there is evidence showing, on the face of it, that the original recording was made in breach of s 5(1).

299 Sixthly, the actual communication of the copy to a legal adviser in circumstances which do not contravene s 9 of the Act may, but will not necessarily, be within the 'crime/fraud exception' to legal professional privilege.

300 Ground 1 of Mr Rayney's appeal has been made out.

Mr Rayney's ground of appeal no 2(a): general

301 Mr Rayney alleges, in essence, in relation to ground 2(a) that the magistrate erred in law and fact in holding that copies of recordings of conversations between Mr Rayney and his wife were not privileged in that he determined whether Mr Rayney had installed and used a listening device in the reasonable protection of his own interests (s 5(3) of the Surveillance Devices Act) by reference to the content of the recordings, and not the circumstances in which they were made, including, in particular, by reference to the allegations made by Mr Rayney's wife and the pending litigation between them.

Mr Rayney's ground of appeal no 2(a): the issue which Mr Rayney seeks to agitate in ground 2(a) was not raised at the hearing before the magistrate

302 Mr Rayney did not rely on s 5(3)(d) of the Surveillance Devices Act at the hearing before the magistrate in relation to the Category 1 Files. He relied on s 5(3)(d) in relation to the Category 2 Files, but not the Category 1 Files. This is plain from Mr Rayney's 'confidential' written submissions to the magistrate.

303 Mr Rayney's case before his Honour, in the context of the Category 1 Files, was that Mrs Rayney knew of and consented to the recording of their conversations. As I have mentioned, his Honour rejected Mr Rayney's evidence that his wife knew of and consented to the recording.

304 Nevertheless, the magistrate proceeded to deal with s 5(3)(d) in relation to the Category 1 Files.

305 The magistrate approached s 5(3)(d) in relation to the Category 1 Files on the basis of the following assumptions:

(a) allegations of improper conduct by Mr Rayney contained in emails sent by Mrs Rayney between May and July 2007 constituted a threat to his 'lawful interests'; and

(b) to protect those interests, it would be 'reasonably necessary' for Mr Rayney to make a covert recording of a conversation that shed some light on the truth of those insinuations [40(e)].

306 His Honour went on to reject the applicability of s 5(3)(d) to the Category 1 Files.

307 The principles relating to the advancing of a new case on appeal are well-established.

308 An appellant is bound by the conduct of his or her case at trial. In University of Wollongong v Metwally [No 2] [1985] HCA 28; [1985] HCA 28; (1985) 59 ALJR 481, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so (483). (emphasis added)

309 The substance of this statement was reiterated in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 by Gibbs CJ, Wilson, Brennan and Dawson JJ (7 - 8):

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd ((1950) [1950] HCA 35; 81 CLR 418, at 438); Bloemen v The Commonwealth ((1975) 49 ALJR 219). (emphasis added)

310 The High Court returned to this issue in Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491. Mason CJ, Wilson, Brennan and Dawson JJ emphasised that a point cannot be raised for the first time on appeal 'when it could possibly have been met' by calling evidence at the trial (497) (emphasis added). Their Honours allowed only these limited exceptions:

Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied (see Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950), 81 CLR 418, at p 438; University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985), 59 ALJR 481, at p 483; [1985] HCA 28; 60 ALR 68, at p 71; Coulton v Holcombe [1986] HCA 33; (1986), 162 CLR 1, at pp 7 - 8; O'Brien v Komesaroff [1982] HCA 33; (1982), 150 CLR 310, at p 319) (497).

311 In Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, Gleeson CJ, McHugh and Gummow JJ restated the applicable principles and elaborated upon their rationale [51] - [52]:

It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial (University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481 at 483; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 8 - 9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 496 - 497; cf R v Birks (1990) 19 NSWLR 677 at 683-685). Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action (Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 - 646). Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.

As Water Board v Moustakas ((1988) [1988] HCA 12; 180 CLR 491 at 498) makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is 'necessary to look to the actual conduct of the proceedings' (Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497) (emphasis added).

312 The juridical basis of the principles I have been discussing appears to derive, in part, from public policy considerations directed to ensuring finality in litigation and, in part, from the doctrine of estoppel by election in the conduct of litigation. However, to the extent that some aspects have their origin in estoppel by election, the relevant consideration is not that the other party is put in a worse position, but that he or she may have been put in a worse position. See Banque Commerciale SA, en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279, 284 (Mason CJ & Gaudron J).

313 Finally, in this context, if an appellate court is satisfied that the appellant is seeking to advance a new case on appeal, there is no residual discretion under which the court may permit the new case to be run 'in the interests of justice'. See Findlay v State of Victoria [2009] VSCA 294 [169] (Ashley JA & Hollingworth AJA, Maxwell P agreeing). The interests of justice are embodied within the principles formulated by the High Court in the authorities I have discussed. See Findlay [169].

314 In my opinion, Mr Rayney should not be permitted to advance on appeal the proposed new case in ground 2(a).

315 Mr Rayney is bound by the conduct of his case before the magistrate. It is immaterial whether the failure to rely on s 5(3)(d) in relation to the Category 1 Files at that hearing was a deliberate decision or due to inadvertence. I am satisfied that if the proposed new case had been run at the original hearing then AW would have cross-examined Mr Rayney on questions of fact relevant to whether the use of the digital dictaphone to record the conversations with his wife was 'reasonably necessary' for the protection of any lawful interests he may have had. The proposed new case is materially inconsistent with the case which he ran on this issue before the magistrate and represents an attempt to establish a new argument as a result of his having lost on the issue in contest at the original hearing.

316 In any event, however, ground 2(a) is without merit. Counsel for the parties made submissions before this court on the substantive issues raised by ground 2(a) and I will, for completeness, express my opinion on them.

Mr Rayney's ground of appeal no 2(a): the magistrate's reasons

317 As I have mentioned, the magistrate assumed, without deciding, that allegations of improper conduct against Mr Rayney constituted a threat to his lawful interests, and that it was reasonably necessary, to protect those interests, for Mr Rayney to make recordings of conversations that shed some light on the truth of them. His Honour referred to the allegations of improper conduct set out in various emails from Mrs Rayney to Mr Rayney.

318 The magistrate found, however, that none of the conversations concerned Mrs Rayney's allegations. All of them were mundane, and Mr Rayney had not sought to introduce into the conversations the allegations of improper conduct. His Honour found on this basis that the recordings were not reasonably necessary to protect Mr Rayney's lawful interests [40(f)].

Mr Rayney's ground of appeal no 2(a): the allegations made by Mrs Rayney

319 I have set out in schedule 5 to these reasons a summary of the principal allegations made by Mrs Rayney against Mr Rayney in the emails passing between them during May, June and July 2007.

Mr Rayney's ground of appeal no 2(a): Mr Rayney's submissions

320 According to counsel for Mr Rayney, the magistrate should have found that:

(a) Mr Rayney had a lawful interest in protecting his reputation;

(b) the allegations made against Mr Rayney by his wife constituted a threat to his lawful interests; and

(c) the use of a listening device to record conversations with his wife was reasonably necessary to protect those interests.

321 It was submitted that the magistrate erred in confining the exception in s 5(3)(d) to conversations that concerned (or into which Mr Rayney introduced) the allegations made by his wife. According to counsel, the question is whether the use of the device was reasonably necessary, and his Honour made an error in determining that question, apparently exclusively, by reference to the content of what was recorded. Also, the magistrate erred, so it was submitted, in finding that Mr Rayney had committed an offence under s 5(1). It was that offence which resulted in his Honour holding that the 'crime/fraud exception' applied.

Mr Rayney's ground of appeal no 2(a): its merits

322 At the hearing before the magistrate, Mr Rayney gave evidence in relation to his purpose in making the original recordings:

(a) 'I wanted to show my family lawyer what was being discussed and get some advice on it. That's what I wanted' (ts 26).

(b) He informed Mrs Rayney that the purpose of the recordings was to make an accurate record (ts 27).

(c) He informed Mrs Rayney of the reasons why he wanted to make the recordings, which were set out in his affidavit (ts 27).

(d) 'I wanted a record of it and I told her the topic or topics that I wanted to discuss with her' (ts 27).

(e) He never told Mrs Rayney why it was that he wanted a recording of the conversations (ts 27).

323 In my opinion, it is not reasonably open, on the magistrate's findings of fact and on the evidence that was not seriously in contest, to conclude that Mr Rayney recorded the conversations in order to protect his reputation. Mr Rayney did not give any evidence to that effect. Rather, he said in evidence that his purpose in recording the conversations was to show his family lawyer what was being discussed between him and Mrs Rayney on topics he told her he wanted to discuss (ts 26 - 27).

324 Further and in any event, it is not reasonably open, on the magistrate's findings of fact and on the evidence that was not seriously in contest, to conclude that the use of the dictaphone was 'reasonably necessary' for the protection of any lawful interest Mr Rayney may have had. I am of that opinion for the following reasons.

325 First, the recorded conversations between Mr Rayney and Mrs Rayney were mundane in character and content, and occurred in the context of day-to-day living in a domestic relationship. It was not reasonable or necessary to record such conversations based on nothing more than the possibility that something might be mentioned that might prejudice a lawful interest of Mr Rayney. During the conversations Mr Rayney did not raise any issue which might conceivably have drawn a response from Mrs Rayney that could have prejudiced any lawful interest he may have had.

326 Secondly, Mr Rayney did not identify in evidence any lawful interest that he wanted to protect.

327 Thirdly, as a general proposition, the recording of a conversation, by a party to the conversation, merely to ensure there is an irrefutable record of it, does not, of itself, bring the recording within s 5(3)(d). See R v Le [2004] NSWCCA 82; (2004) 60 NSWLR 108 [79] (Hulme J, Adams J agreeing).

328 Fourthly, there was no evidence that Mr Rayney had a reasonable belief that any lawful interest he may have had would be endangered if he did not record the conversations. For example, there was no evidence that he believed that Mrs Rayney would have:

(a) been untruthful, or likely to have been untruthful, as to her recollection of any conversation;

(b) been likely to assert that Mr Rayney was lying about the content of any conversation; or

(c) accused Mr Rayney of fabricating any conversation.

329 The points I have made in the context of the fourth reason I have advanced are underscored by the following:

(a) Mrs Rayney made various allegations in writing, sent by email, to Mr Rayney, which he responded to in writing, by email;

(b) Mrs Rayney sent the allegations in writing, by email, to her family lawyer, Ms Anderson; and

(c) Mr Rayney's family lawyer, Mr Carr, wrote to Ms Anderson referring to the content of the emails sent by Mrs Rayney to Mr Rayney.

330 Fifthly, as I have mentioned in the context of ground 5 of AW's appeal, Mr Rayney was at the material time a very experienced criminal lawyer and there was no reason or justification (beyond mere convenience) as to why he could not have made adequate notes of the material substance of the conversations. The notes could have been made during or after each conversation. Alternatively, Mr Rayney could have dictated the material substance of each conversation after its conclusion. He had a dictaphone and was familiar with its operation.

331 Sixthly, given that Mr Rayney was directing the topics of the conversations and the fact that (based on the magistrate's findings) only mundane matters were discussed, it was not reasonably open to conclude that Mr Rayney had a reasonable belief that it was necessary to record the conversations to protect any lawful interest he may have had.

332 Finally, in the context of ground 2(a), the content of the conversations in question will, at least sometimes, be relevant to the application of s 5(3)(d). For example, the content of the recorded conversations between Mr Rayney and Mrs Rayney (in particular, the subject matter and any issues raised by Mr Rayney or his responses to Mrs Rayney) was relevant in determining whether Mr Rayney's conduct in recording them was 'reasonably necessary' for the protection of any lawful interest he may have had. See [325] above.

333 In the circumstances, I am satisfied that the magistrate was correct to reject the application of s 5(3)(d).

Mr Rayney's ground of appeal no 2(b): general

335 Mr Rayney alleges, in essence, in relation to ground 2(b) that the magistrate erred in law and fact in holding that copies of recordings of conversations between Mr Rayney and his wife were not privileged in that he determined that the recordings were not made for the dominant purpose of obtaining legal advice, when the findings that:

(i) the content of the recording(s) played to Mr Rayney's solicitor on one occasion did not correspond to the content of the recording(s) for which privilege was claimed; and

(ii) the content of the recording(s) was not linked to the emails from Mr Rayney's wife

Mr Rayney's ground of appeal no 2(b): the magistrate's reasons

336 The magistrate was not satisfied that the dominant purpose of copying the original recordings to a disc was to obtain legal advice [44].

337 The magistrate made these findings in relation to dominant purpose and legal advice:

In support of a conclusion that the dominant purpose of Mr Rayney in making the audio recordings was to obtain legal advice is the evidence of Mr Rayney that he played 1 or 2 of the recordings to Mr Carr as well as Mr Carr's evidence that, on 6 August 2007, Mr Rayney played to him a recording of a conversation between Mr Rayney and Mrs Rayney. A weakness in this evidence is the inability of Mr Rayney or Mr Carr to recall the content [of] the recording played on 6 August 2007. The weakness is exacerbated by three factors: (1) Mr Pearson's evidence reveals that, as at 6 August 2007, Mr Rayney was in possession of recordings of telephone conversations made at 6 Monash Ave giving rise to the possibility that it was one of these recordings rather than a Category 1 File that was played to Mr Carr; (2) I have already noted that the content of the audio recordings are prosaic, reducing the likelihood of Mr Rayney, an experienced lawyer, needing advice on their contents (3) Mr Carr's file note of 6 August 2007, among records seized on 19 March 2009 and which is also the subject of this ruling (see paragraph 15 above), describes the content of the recording in terms which do not correspond with the contents of any of the Category 1 Files. I am not satisfied that it was one of the Category 1 Files that was played on 6 August 2007. In light of this finding and the content of the recordings (not linked to emails said by Mr Rayney to be the motive for making the original recordings), I am not satisfied that his dominant (ie prevailing or paramount) purpose in copying the original recordings onto a disc, was to obtain legal advice [44].

338 The magistrate made these findings in relation to Mr Carr's file note dated 6 August 2007:

I have noted that I am unable to reconcile the content of the Category 1 Files with Mr Carr's description of the content of a recording played to him by Mr Rayney on 6 August 2007. There is no evidence on the circumstances of the making of the recording that was played to Mr Carr. The only evidence of the circumstances of the recordings of conversations involving Mr Rayney at about this time is the evidence concerning the Category 1 Files and the evidence of Mr Pearson concerning recordings made at the house where the Rayney's [sic] lived. The evidence of non-consent of Mrs Rayney to each of these categories of recordings is sufficient, in my view, for the WA Police to have discharged the evidentiary burden of prima facie evidence of criminal conduct in obtaining a recording that was played to Mr Carr at about the same time as the other categories of recordings were made ie 6 August 2007. The file note is tainted by the criminal conduct. It cannot be privileged [45].

Mr Rayney's ground of appeal no 2(b): Mr Carr's file note

339 I have reproduced, in schedule 6 to these reasons, Mr Carr's file note dated 6 August 2007.

Mr Rayney's ground of appeal no 2(b): Mr Rayney's submissions

340 Counsel for Mr Rayney submitted that the copies on compact disc of the recorded conversations were privileged, even if the original recordings were not, if the copies were made for the dominant purpose of obtaining legal advice or for use in legal proceedings.

341 According to counsel, the magistrate, in holding that the Category 1 Files were not the subject of litigation privilege, confined himself to whether Mr Rayney's purpose was to put them before a court in litigation [43]. It was submitted that it is not necessary, to attract privilege, that the document is to be used in evidence. The privilege attaches if a document is produced or brought into existence for the dominant purpose 'of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect': Grant (677) (Barwick CJ).

342 Further, according to counsel, the magistrate held that the copying of the recordings to the disc was not for the dominant purpose of obtaining legal advice. His Honour gave two reasons:

(a) the recording played to Mr Carr (which was on a dictaphone, not on a compact disc) was not one of the Category 1 Files; and

(b) the content of the recordings was not linked to the emails containing allegations against Mr Rayney.

It was submitted that neither of these reasons supports the conclusion.

343 Counsel argued that, on the evidence, Mr Rayney did seek advice from Mr Carr on a taped conversation with his wife, and the conversation was not linked to the allegations in the emails. Mr Rayney said that he was confined to playing a particular conversation (or, perhaps, more than one) because of time constraints on the occasion he saw Mr Carr.

344 Also, it was submitted that the issues raised in the Family Court proceedings were not limited. It was contended that Ms Anderson's affidavit indicated the scope of the issues that were in dispute between Mr Rayney and his wife.

Mr Rayney's ground of appeal no 2(b): its merits

345 Mr Rayney did not, in creating the Category 1 Files, act as a lawyer on his own behalf or at the request or on behalf of his lawyers.

346 Mr Rayney did not give the Category 1 Files to Mr Carr or any other lawyer.

347 The magistrate's finding in relation to the dominant purpose of copying the original recordings to a compact disc was based on the following:

(a) The inability of Mr Rayney or Mr Carr to recall the content of the recording played on 6 August 2007.

(b) Three factors which exacerbated the significance of their inability to recall the content of the recording, namely:

(i) Mr Pearson's evidence to the effect that as at 6 August 2007 Mr Rayney was in possession of recordings of telephone conversations made at 6 Monash Avenue, Como, which gave rise to the possibility that it was one of these recordings, rather than a Category 1 File, that was played to Mr Carr;

(ii) the content of the recordings was prosaic, and this reduced the likelihood that Mr Rayney, an experienced lawyer, needed legal advice as to their content; and

(iii) Mr Carr's file note dated 6 August 2007 described the content of a recording in terms which did not correspond with the contents of any of the Category 1 Files.

(c) The magistrate's further finding that he was not satisfied that the recording played by Mr Rayney to Mr Carr was one of the Category 1 Files in the context of the fact that the content of the recording was inconsistent with Mr Rayney's stated purpose in making copies of the original recordings [44].

348 The magistrate therefore concluded that Mr Rayney had not discharged the onus of establishing that the dominant purpose in making the copies was to obtain legal advice.

349 The magistrate's conclusion, which is attacked in ground 2(b), must be viewed against the background that the benign nature of the original recordings cast doubt on why an experienced lawyer would copy them to obtain legal advice in circumstances where he failed to provide the copies to his lawyer, even though he had an opportunity to do so.

350 Also, the magistrate's conclusion must be viewed against the following facts:

(a) The disc containing the Category 1 Files was not a copy of all of the conversations between Mr Rayney and Mrs Rayney. For example, on 6 August 2007, Mr Rayney played to Mr Carr at least one conversation recorded on a dictaphone that was not copied to the disc containing the Category 1 Files [45].

(b) Mr Carr said in evidence that he believed that on 6 August 2007 Mr Rayney played one recording of a conversation between Mr Rayney and Mrs Rayney on a handheld dictaphone (ts 14).

(c) Mr Rayney said in evidence that he made the copies comprised in the Category 1 Files because they 'were in a format that if they were ever relevant they could be used. The copies were in a format that when Mr Carr wasn't so busy [Mr Rayney] could give them to him; he at his leisure could listen to them in his office, if he worked from home, at his home. It was a safer way to do it; it was hard to get appointments with him' (ts 39).

(d) Mr Rayney said in evidence that he made the copies of the original recordings before Mrs Rayney's death, although he could not state when he made them (ts 39).

351 Further, the magistrate's conclusion must be viewed against these facts:

(a) Mr Rayney disposed of the two dictaphones containing the original recordings of the Category 1 Files and the Category 2 Files after the execution of the search warrants on 22 August 2007 and 20 September 2007 (ts 38, 55 and 56).

(b) Before disposing of the dictaphone containing the original recordings of which the Category 1 Files are copies, Mr Rayney deposited the dictaphone with his lawyer 'after the police named [him] as the prime suspect and after they named [him] as the sole suspect in [his] wife's murder' (ts 32).

(c) Later, Mr Rayney recovered the dictaphone from his lawyer after the Category 1 Files were seized by the police and were 'secure and safe with the court' (ts 35).

(d) Less than a week after recovering the dictaphone from his lawyer, Mr Rayney disposed of it (ts 38).

(e) Mr Rayney deliberately threw the dictaphone away as it 'had no more use, no purpose' (ts 23).

(f) Mr Rayney stated that he obtained Mrs Rayney's oral consent (evidence that was rejected by the magistrate) immediately before recording two telephone conversations, but he did not record her consent on the dictaphone.

(g) Mr Rayney did not provide Mr Carr with a copy of the conversations between Mr Rayney and his wife (ts 15, 16). He did not give or play the Category 1 Files to Mr Carr or any other lawyer.

352 In my opinion, when all of the relevant facts and circumstances to which I have referred are evaluated (including Mr Rayney's evidence that the Category 1 Files were made for the purpose of obtaining legal advice), it was reasonably open to the magistrate not to be satisfied that Mr Rayney's dominant purpose in creating the Category 1 Files was to obtain legal advice. By parity of reasoning, Mr Rayney did not establish that he created the Category 1 Files for the dominant purpose of preparation for or use in anticipated legal proceedings.

353 Further, as I have concluded in relation to the Category 2 Files in the course of considering ground 3 of AW's appeal, on the facts as found by the magistrate and the facts that were not seriously in contest, the objective probabilities are that:

(a) Mr Rayney made copies of the original, unprivileged, recordings (of which the Category 1 Files are copies) with the intention of destroying the original recordings by throwing away the dictaphone, so that the original, unprivileged, recordings would not be available to anyone (including, in particular, the police) for any purpose (including, in particular, the investigation of Mrs Rayney's killing); and

(b) further and in any event, Mr Rayney's dominant purpose in making the copies of the original recordings (the Category 1 Files being the copies) was to assess later whether anything said by Mrs Rayney might be useful or advantageous to him.

354 The dominant purpose criterion for the application of legal professional privilege was not satisfied.

Mr Rayney's ground of appeal no 2(c): general

356 Mr Rayney alleges, in essence, in relation to ground 2(c) that the magistrate erred in law and fact in holding that copies of recordings of conversations between Mr Rayney and his wife were not privileged in that he held that a recording made by Mr Rayney of a conversation with his wife, made for the purpose of confidential communication to his solicitor, could not attract privilege if it did not disclose material from which the content of a privileged communication between Mr Rayney and his solicitor might be inferred.

Mr Rayney's ground of appeal no 2(c): the magistrate's reasons

357 The magistrate found, in effect, that the Category 1 Files were not 'confidential communications' [46]. He referred to the following matters:

(a) The Category 1 Files were copies of audio recordings between opposite parties, being 'at most a record of a communication': Sugden v Sugden [2007] NSWCA 312; (2007) 70 NSWLR 301 [52] (McDougall J, Mason P & Ipp JA agreeing) [46].

(b) The Category 1 Files did not, of themselves, reveal anything about any communication between Mr Rayney and his lawyer or disclose material from which the content of a privileged communication may be inferred [46].

Mr Rayney's ground of appeal no 2(c): its merits.

358 In Sugden, it was held that communications between parties to litigation are not to be treated, without more, as confidential for the purposes of the common law relating to legal professional privilege [64].

359 In Australian Safeway Stores, Goldberg J said:

A document recording or containing a witness statement can be regarded as a document privileged from production if it is brought into existence for the dominant purpose of use in anticipated legal proceedings, even though it may be said that the communication of the information recorded in the document by the witness to the maker of the document (in this case Mr Eva) is not confidential because, for example, it is a communication between two parties with adverse interests. Propend is authority for the proposition that a document can become privileged from production even if it is a copy of a non-privileged document ...

If a copy of a non-privileged document can become privileged from production because of the purpose for which it has come into existence it seems to me that the recording of a non-confidential conversation in a document can similarly be protected from production if the document was brought into existence for the dominant purpose of apprehended proceedings.

In the circumstances of intended use in apprehended proceedings I consider that the context in which a document comes into existence and its proposed use makes it a confidential document. It is hardly to be expected that at the stage the draft witness statements came into existence the Commission would be prepared for any person to see the statements. I consider that confidentiality should be inferred from the nature of the activities being undertaken by Mr Eva (563).

360 The comments of Goldberg J were referred to with approval in Sugden. McDougall J observed:

I agree with his Honour's reasoning, and accept that the purpose for which a document is created may cast light on the issue of its confidentiality. That is because the question is whether the person who prepared the document, or the person for whom it was prepared, was under an express or implied obligation not to disclose its contents. The reference to 'implied obligation' directs attention to all relevant circumstances, including the context in which and the purposes for which the document was prepared. It does not fall to be answered solely by reference to the character of the contents [66].

361 I am satisfied that the magistrate was in error in deciding, in effect, that the Category 1 Files did not satisfy the 'confidential communication' test because they did not reveal anything about any communication between Mr Rayney and his lawyer or disclose material from which the content of a privileged communication may be inferred.

362 The subject matter of a communication between a client and his or her lawyer need not be confidential in order to attract legal professional privilege. Privilege may attach to the communication of non-privileged, including publically available, information. The circumstances of the communication between a client and his or her lawyer must involve confidentiality, but the subject matter of the communication need not be. See Australian Safeway Stores (563); Health & Life Care Ltd v Price Waterhouse [1997] SASC 6306; (1997) 69 SASR 362, 369 (Lander J, Doyle CJ generally agreeing).

363 Ground 2(c) of Mr Rayney's appeal has been made out.

364 Mr Rayney alleges, in essence, in relation to ground 3 that the magistrate was in error in holding that the file note dated 6 August 2007, made by Mr Carr at the conference in which a recording was played, was tainted by illegality, and not privileged, if the recording was made in breach of the Surveillance Devices Act.

Mr Rayney's ground of appeal no 3: its merits

365 As Gummow J observed in Propend Finance, the law relating to legal professional privilege enables a client to obtain legal advice in respect of his or her illegal conduct. The 'crime/fraud exception' does not apply to a communication between a lawyer and his or her client concerning a document or record that was unlawfully obtained merely because a copy of the unlawfully obtained document or record is submitted by the client to the lawyer for legal advice. The copy may be privileged even though the original is not.

366 However, in the present case and on the characterisation of the facts and events which is most favourable to him, Mr Rayney committed the

offence against s 5(1) of the Surveillance Devices Act, and brought the original recording into existence, for the very purpose of enabling him to submit the original or a copy of it to his lawyer for advice. Legal professional privilege is grounded in public policy. It reflects the public interest that confidential communications between lawyer and client should be uninhibited by any fear of disclosure. It would, however, be extraordinary if the privilege extended to protect a communication in the circumstances I have described.

367 I am of the opinion that the reasoning of Brennan J in Carter, to which I have referred at [218] above, and the reasoning of Hill J in Carbone, to which I have referred at [289] above, require the conclusion that it would be inimical to the public policy considerations which underpin the law of professional privilege to permit a claim of privilege to be made in respect of the file note made by Mr Carr.

369 Mr Rayney has made out grounds 1 and 2(c) of his appeal. However, the remaining grounds are without merit. The establishment of grounds 1 and 2(c) is insufficient for Mr Rayney to succeed in his appeal against any of the orders made by the magistrate.

371 NEWNES JA: I would allow the appeal by AW for the reasons given by McLure P.

372 I would dismiss the appeal by Mr Rayney for the reasons given by McLure P in respect of grounds 1, 2(b) and 2(c), and for the reasons given by Buss JA in respect of grounds 2(a) and 3.

INFORMATION KNOWN TO AW

CATEGORY 2 FILES

Located by Expert Court Assistant on CD Rom 3 seized by Police

Located by Expert Court Assistant on computer seized from 6 Monash Ave, Como on 22 August 2007

Located by Expert Court Assistant on computer seized from Francis Burt Chambers on 20 September 2007

Located by Expert Court Assistant on computer seized from 6 Monash Ave, Como on 20 September 2007

Are copies of items 10 to 29 located by the Expert Court Assistant on Mr Rayney's computers

Mr Rayney's affidavit filed on 11 November 2009 (schedule). Magistrates reasons for ruling dated 18 March 2009

Recorded telephone discussions made after 7 August 2007 between Mr Rayney and another person for the purposes of seeking legal advice in respect of potential litigation, use in such potential litigation and seeking legal advice in relation to the discussion.

Mr Rayney's affidavit filed on 11 November 2009 (schedule)

The recordings were made by holding a handheld Dictaphone near Mr Rayney's mobile telephone during the telephone conversation.

Mr Rayney's revised redacted affidavit filed on 14 April 2009, para 32

Recorded telephone messages from a person other than Mr Rayney or Mrs Rayney made after 7 August 2007 for the purposes of seeking legal advice in respect of potential litigation, use in such potential litigation and seeking legal advice in relation to the recording.

Mr Rayney's affidavit filed on 11 November 2009 (schedule)

The recordings were made by holding a handheld Dictaphone near Mr Rayney's mobile telephone and recording messages left on the mobile telephone answering service

Mr Rayney's revised redacted affidavit filed on 14 April 2009, para 33

Were made for the purpose of seeking advice in respect of potential, but known, litigation, using them in any such proceedings and communicating the contents of the recordings to an unknown person by playing them, in order for the unknown person to provide Mr Rayney with legal advice in relation to the conversations.

Mr Rayney's revised redacted affidavit filed on 14 April 2009, para 36

Were copied onto a compact disc in order to seek legal advice in respect of them and so that they could be used in proceedings.

Mr Rayney's revised redacted affidavit filed on 14 April 2009, para 43

The compact disc was kept in Mr Rayney's room in chambers. He did not make any attempt to destroy or conceal the compact disc.

Mr Rayney's revised redacted affidavit filed on 14 April 2009, para 44

The compact disc containing items 10 to 29 was seized by Police on 20 September 2007.

Mr Rayney's revised redacted affidavit filed on 14 April 2009, para 45

Mr Rayney engaged Amanda Blackburn to act on his behalf in August 2007.

Amanda Blackburn's revised affidavit filed on 11 November 2009,

Amanda Blackburn has the conduct of Applications 3 and 6 of 2007, and also acts for Mr Rayney in respect of his criminal charges and in relation to issues arising from the murder of the Mr Rayney's wife.

Amanda Blackburn's revised affidavit filed on 11 November 2009,

Mr Rayney did not play the Category 2 File recordings to her.

Amanda Blackburn's revised affidavit filed on 11 November 2009,

Mr Rayney was taken into police custody as an arrested suspect and he was told that police wish to speak to him in regard to alleged illegal recording of telephone calls and the murder of Mrs Rayney.

Amanda Blackburn's revised affidavit filed on 11 November 2009,

Mr Rayney made the recordings without the knowledge of the other party or parties to the conversation.

The recordings were created with the lawful purpose of seeking legal advice and for an unknown use.

Mr Rayney was a principal party to the conversations and was collecting material for the purpose of seeking legal advice and for use as evidence at trial. The collection of the recordings was an act to safeguard his lawful interests.

Other than for the purposes of Applications 3 and 6 of 2007, Mr Rayney's legal representative had not previously listened to or been provided with the recordings.

Oral evidence of Amanda Blackburn, 19 November 2009 page 6

The only time Mr Rayney sought legal advice from his legal representative in relation to the content of the recordings was after the Expert Court Assistant provided her with a copy of the recordings.

Oral evidence of Amanda Blackburn, 19 November 2009 page 6

Mr Rayney informed his legal representative in September 2007 that he had tape recorded persons described in his affidavit.

Oral evidence of Amanda Blackburn, 19 November 2009 page 8

Mr Rayney used a different Dictaphone to record the conversations at items 10 to 29 to that used to record the conversations between him and Mrs Rayney at items 1 to 9.

Mr Rayney used the same type of Dictaphone to record the conversations at items 10 to 29 to that used to record the conversations between him and Mrs Rayney at items 1 to 9.

Mr Rayney acquired the Dictaphone used to record the conversations at items 10 to 29 after Mrs Rayney's death.

The purpose of buying the Dictaphone to record the conversations at items 10 to 29 was for the purpose of seeking legal advice in respect of potential litigation against me in relation to the death of Mrs Rayney and communicating the contents of recordings to Ms Blackburn by playing them to her in order for her to provide me [Mr Rayney] with legal advice in relation to the conversations.

Mr Rayney threw away the Dictaphone used to make the Category 2 File recordings. He threw it in the same place as the Dictaphone used to make the Category 1 File recordings. He disposed of the Dictaphone after the Police executed the search warrant at his home on 20 September 2007.

Mr Rayney made the copies of the item 10 to 29 recordings in around mid September 2007

The Dictaphone was on Mr Rayney's person at the time the search warrants were executed and was on his person during the time the police executed the search warrant at his home on 20 September 2007.

Mr Rayney denied giving his Dictaphone to his legal representatives at the time of the execution of the search warrants.

Mr Rayney confirmed that he did not tell the person who he was speaking to that he was recording the conversations.

Mr Rayney confirmed that at the time the compact discs were seized by police from his chambers (ie the copies of the original recordings) the Dictaphone used to record the original conversations were on his person.

Mr Rayney stated the reasons for [an unknown] belief, formed on the basis of events he describes, that police 'intended to unfairly charge him' in relation to Mrs Rayney's murder.

Mr Rayney deposed to [an unknown] belief that the content of the conversations may be relevant to issues that he identifies and that he may wish to raise in answer to any criminal charges.

Amanda Blackburn stated that she had been told by Mr Rayney 'in August and September 2007' that 'police intended to unfairly charge him [in] relation to Mrs Rayney's death', he had used 'a hand held digital Dictaphone near the telephone' to record calls with person he identified to her.

Copies of the original recordings were made by Mr Rayney on the computers at his chambers or his home. The Magistrate inferred that the copying was done by Mr Rayney.

Mr Rayney was endeavouring to 'position himself' so that the contents of the conversation may assist in any hearing.

Mr Rayney reasonably anticipated that he would be subject to criminal charges arising from Mrs Rayney's death

Mr Rayney was in a different position to that described in R v Le [2004] NSWCCA 82.

It was not reasonably practical for Mr Rayney to make notes of the conversations or to seek the assistance of the police.

The general nature and extent of the redactions

the identity of the other party to conversations with Mr Rayney

paragraphs 3(c) and (d) - his Honour subsequently ruled the record referred to in (d) was not privileged

material relating to Mr Rayney's instructions to Mr Carr in anticipated proceedings in the Family Court of Western Australia

material relating to Mr Rayney's instruction of Ms Blackburn (her identity was concealed in the affidavit but disclosed at the hearing)

paragraphs 30, 31, 34, 35, parts of 36 and 37, 38, part of 39, 40, 41, 42, 43 (identity subsequently disclosed), and 47

identifying the source of particular records on which Mr Rayney sought legal advice

the dates on which Mr Rayney sought advice from Mr Carr

the affidavit was redacted to conceal the identity of Ms Blackburn and her firm and when she started acting for Mr Rayney. She was, however, called as a witness

the discussions between Ms Blackburn and Mr Rayney, including when those discussions occurred

the content of records prepared for the purpose of disclosure to the solicitor

Mr Rayney's affidavit sworn 2 February 2009: redacted

1. The recordings in Schedule 3 and 4 were made for the purposes of:

(a) seeking advice in respect of potential litigation REDACTED;

(b) using them in any such proceedings, if it became necessary to do so; and

(c) communicating the contents of recordings to REDACTED by playing them to REDACTED, in order for REDACTED to provide me with legal advice in relation to the conversations.

1. I believed that the recordings in Schedule 3 might be relevant in REDACTED proceedings REDACTED including in respect of REDACTED.
2. REDACTED.
3. I believed that the recordings in Schedule 4 might be relevant REDACTED proceedings REDACTED in respect of whether REDACTED.
4. In relation to the recording of the telephone discussion with REDACTED (ID 12 and ID 13), REDACTED. It was important to have an accurate record of the communications between REDACTED and myself in order to allow REDACTED to hear the content of the discussion, for the reasons set out in paragraph 36.

Mr Rayney's affidavit sworn 2 February 2009: unredacted

1. The recordings in Schedule 3 and 4 were made for the purposes of:

(a) seeking advice in respect of potential litigation against me in relation to the death of Mrs Rayney;

(b) using them in any such proceedings, if it became necessary to do so; and

(c) communicating the contents of recordings to Ms Blackburn by playing them to her, in order for her to provide me with legal advice in relation to the conversations.

1. I believed that the recordings in Schedule 3 might be relevant in any criminal proceedings against me in respect of police conduct, whether police had deceived me in the course of their investigation and whether police had conducted a thorough and impartial investigation into Mrs Rayney's death.
2. I was fearful that I would be wrongly charged with the murder of Mrs Rayney. I expressed to my solicitors that I was fearful of 'evidence' being planted in some way to implicate me, and of police 'verballing' me by claiming that I had said something which I did not. The recording of telephone discussions with police ensured I had a record of what was said, to counter any later claim that I had either said something that I had not, or I had not said something which, in fact, I had said.
3. I believed that the recordings in Schedule 4 might be relevant in any criminal proceedings against me in respect of whether police had leaked information regarding their investigation of me to the media.
4. In relation to the recording of the telephone discussion with Alana Buckley-Carr (ID 12 and ID 13), I was concerned that police had worked closely with some members of the media to portray me in an unfavourable light for the purposes of their investigations. Ms Buckley-Carr was not a person from the media whom I knew, and I was concerned that she may have been a person to whom police had leaked information. It was important to have an accurate record of the communications between Ms Buckley-Carr and myself in order to allow Ms Blackburn to hear the content of the discussion, for the reasons set out in paragraph 36.

Parties: Telephone call from Officer Mark MacKenzie (MM) to LR (Lloyd Rayney).

MM asking about obtaining signature of LR and his children on statements. LR asking questions about progress on identified lines of investigation. LR complains about MM conduct in his capacity as 'victim liason office', noting request has been made that MM be replaced. MM disputes complaints and says LR request denied.

Parties: Telephone call from Officer Carlos Careira (CC) to LR.

CC introduces himself as 'running the investigation'. LR lists complaints about MM conduct as 'victim liason officer' and requests replacement. Discussion ensues. CC denies request.

Parties: Telephone call from Alana Buckley-Carr (ABC) ('The Australian') to LR.

(1) 070918_1509\A004 Wed 5.9.07 (0' 40) Alana Aust Newspaper.TSH

Parties: Telephone call from Alana Buckley-Carr (ABC) ('The Australian') and LR.

Recording commences after conversation has commenced. LR states that he does not wish to say anything and that he is not aware whether CR sister or father wish to say anything.

(1) 070918_1509\A005 Thu 6.9.07 (0' 56) Mark MacKenzie.TSH

Parties: Telephone call from LR to Officer Mark MacKenzie (MM).

MM complains about 'feedback' and LR says he will call on 'landline'.

(1) 070918_1509\A006 Thu 6.9.07 (19' 52) Mark MacKenzie.TSH

Parties: Telephone call from LR to Officer Mark MacKenzie (MM).

MM agrees that better quality line. MM updating LR on lines of investigation. MM advises LR that police want to speak to LR to 'expand' on his statement and to interview LR children. Discussion about whether statements are 'evidence'. LR says he will consider request.

(1) 070918_1509\A007 Fri 7.9.07 (2' 56) Paul Robinson.TSH

Parties: Telephone call from Officer Paul Robinson (PR) to LR.

PR arrange for LR to collect his personal documents and statement of his daughter, Sarah, from police.

(1) 070918_1509\A008 Mon 10.9.07 (0' 38) M MacKenzie message.TSH

Recording of advice that telephone message received followed by a recorded message.

Unable to identify parties or contents because of distortion, except able to discern phrase 'expand on your statement'.

(1) 070918_1509\A009 Wed 5.9.07 (0' 35) M MacKenzie message.TSH

Recording of advice that telephone message received followed by a recorded message.

Unable to identify parties or contents because of distortion.

(1) 070918_1509\A011 Thu 6.9.07 (1' 02) message.TSH

Recording of advice that telephone message received followed by a recorded message.

Unable to identify parties or contents because of distortion.

(1) 070918_1509\A012 Mon 10.9.07 (23' 26) Mark MacKenzie.TSH

Parties: Telephone call from LR to Officer Mark McKenzie (MM).

MM updating LR on lines of investigation. LR requesting return of some documents. MM request to meet LR to 'expand on statement' over 'a couple of hours'. LR asks MM to identify areas to be covered. LR asks who will conduct interview. Discussion about whether a video of interview is preferable. LR questions relevance of some areas identified by LR.

(1) 070918_1509\A014 Tue 11.9.07 (0' 23) M MacKenzie message.TSH

Recording of advice that telephone message received followed by a recorded message from Officer McKenzie requesting his call be returned.

(1) 070918_1509\A015 Tue 12.9.07 (0' 38) M MacKenzie message.TSH

(1) 070918_1509\A016 Wed 12.9.07 (2' 55) Mark MacKenzie.TSH

Parties: Telephone call from LR to Officer Mark McKenzie (MM).

Arrange for LR to meet MM at LR office on Friday (14/9/07) regarding LR statement. LR notes 'my family is unhappy' with your role as victim support officer.

(1) 070918_1509\A017 Wed 12.9.07 (1' 39) Mark MacKenzie.TSH

Parties: Telephone call from Officer Mark McKenzie (MM) to LR.

LR clarifys that 'family' who is unhappy with MM is LR and his children. Discussion who conduct interview.

(1) 070918_1509\A018 Thu 13.9.07 (2' 07) Mark MacKenzie.TSH

Parties: Telephone call from LR to Officer Mark McKenzie (MM).

At LR request, reschedule appointment with MM from Friday (14/9/07) to following Tuesday (18/9/07).

(1) 070918_1509\A019 Tue 18.9.07 (0' 35) Mark MacKenzie.TSH

Parties: Telephone call from LR to Officer Mark McKenzie (MM).

LR states that he calling to cancel appointment and will not re-schedule.

(1) 070918_1509\A020 Tue 18.9.07 (0' 26) M MacKenzie message.TSH

Recording of advice that telephone message received followed by a recorded message from Officer McKenzie requesting his call be returned.

(1) 070918_1509\A021 Tue 18.9.07 (1' 10) Mark MacKenzie.TSH

Parties: Telephone call from Officer Mark McKenzie (MM) to LR.

MM confirming LR not giving statement and asks whether LR daughters will be giving statement. LR says will call back.

(1) 070918_1509\A022 Tue 18.9.07 Carlos Careira.TSH

Recording of recorded telephone message from Officer Careira requesting his call be returned.

D:\My Voice\A004 Wed 5.9.07 (0' 40) Alana Aust Newspaper.TSH

D:\My Voice\A005 Thu 6.9.07 (0' 56) Mark MacKenzie.TSH

D:\My Voice\A006 Thu 6.9.07 (19' 52) Mark MacKenzie.TSH

D:\My Voice\A007 Fri 7.9.07 (2' 56) Paul Robinson.TSH

D:\My Voice\A008 Mon 10.9.07 (0' 38) M MacKenzie message.TSH

D:\My Voice\A009 Wed 5.9.07 (0' 35) M MacKenzie message.TSH

D:\My Voice\A012 Mon 10.9.07 (23' 26) Mark MacKenzie.TSH

D:\My Voice\A014 Tue 11.9.07 (0' 23) M MacKenzie message.TSH

D:\My Voice\A015 Tue 12.9.07 (0' 38) M MacKenzie message.TSH

D:\My Voice\A016 Wed 12.9.07 (2' 55) Mark MacKenzie.TSH

D:\My Voice\A017 Wed 12.9.07 (1' 39) Mark MacKenzie.TSH

D:\My Voice\A018 Thu 13.9.07 (2' 07) Mark MacKenzie.TSH

D:\My Voice\A019 Tue 18.9.07 (0' 35) Mark MacKenzie.TSH

D:\My Voice\A020 Tue 18.9.07 (0' 26) M MacKenzie message.TSH

D:\My Voice\A021 Tue 18.9.07 (1' 10) Mark MacKenzie.TSH

D:\RECYCLER\S-1-5-21-570604633-4097804719-1471561500-1006\A001.TSH

Last part is identical to ID23. Distortion at start.

D:\RECYCLER\S-1-5-21-570604633-4097804719-1471561500-1006\A010 (0' 24) M MacKenzie message.TSH

Distortion throughout recording. Unable to identify parties.

D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\10 Fri 7.9.07 Paul Robinson.TSH

10 Fri 7.9.07

D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\11 Mon 10.9.07 Mark MacKenzie.TSH

D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\12 Mon 10.9.07 Mark MacKenzie.TSH

D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\5 Wed 5.9.07 Mark MacKenzie.TSH

D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\6 Thu 6.9.07 Mark MacKenzie.TSH

Recording of recorded telephone message from Officer McKenzie.

D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\7 Thu 6.9.07 Mark MacKenzie.TSH

Recording of recorded telephone message; parties unclear.

D:\RECYCLER\S-1-5-21-590556439-2196337968-1958721477-1006\9 Thu 6.9.07 Mark MacKenzie.TSH

Summary of the principal allegations made by Mrs Rayney against Mr Rayney

The principal allegations made by Mrs Rayney against Mr Rayney in the emails passing between them during May, June and July 2007 were as follows:

(a) Mr Rayney had not been attending to family obligations in relation to the children because he was 'forgetting' or 'busy'.

(b) Mr Rayney had not behaved 'honourably' because he had not informed Mrs Rayney of a medical procedure involving his father.

(c) Mr Rayney had not been making a fair contribution towards family expenses, and had been 'stashing away' money, unbeknown to Mrs Rayney, for a long time.

(d) Mr Rayney was being deceitful, evasive and obstructive in relation to family matters. He had perfected the art of being 'sly and evasive' over many years.

(e) Mr Rayney had been 'aggressive and abusive' to Mrs Rayney in front of their children.

(f) Mrs Rayney demanded that Mr Rayney not fall asleep with their younger daughter in the daughter's bed or 'find himself' in the bathroom, when she was showering.

The file note dated 6 August 2007 made by Mr Carr

Lloyd Rayney attended the office on 6 August 2007 in response to his request for an urgent appointment. He came armed with some tapes of recordings with his wife in which she made certain threats about doing physical harm to him. I suggested to him that she was simply venting her anger and there was nothing much in them.

He also said that he would be available to attend counselling and would let me have his available dates depending upon his commitments with the CCC.