Baker v Campbell

Baker v Campbell - [1983] HCA 39 - HCA 1982 case summary — Zoe

[116]

Unless there is some ground of distinction between the effect and operation of a notice issued under the provision there under consideration and the effect and operation of a search warrant issued under s. 10(b) of the Crimes Act, O'Reilly requires that an affirmative answer be given to the question asked in the case stated. The suggested grounds of distinction are twofold. First, it is submitted that the operation of a search warrant under s. 10 of the Crimes Act, unlike the operation of a s. 264 notice, is not outside the field of judicial or quasi-judicial proceedings. The issue of a search warrant under this section is said to be a judicial act, as Fox J. held in Reg. v. Tillett; Ex parte Newton [44] and as the Supreme Court of Canada held in relation to a similar statutory provision (Attorney-General (Nova Scotia) v. MacIntyre [45] ). Let it be accepted for present purposes that the function of issuing a search warrant is judicial. We are not here concerned with the effect of professional privilege upon the performance of that function. The question asked in the case does not relate to the production or admission of evidence on the application for a warrant. The question is whether a justice of the peace, by issuing his warrant, can authorize a search for and seizure of privileged documents, that is to say, documents for which legal professional privilege might be claimed in judicial or quasi-judicial proceedings other than the application for the warrant. The categories of documents which might be the subject of a search warrant do not depend upon the character of the function performed by the issuing justice or the procedure which he must follow in exercising his power, but upon the scope of the power reposed in him by the statute. If there be a difference between the character of a proceeding which leads to the issue of a s. 264 notice and the character of a proceeding which leads to the issue of a search warrant, the difference is immaterial to the categories of documents which might be the subject of either of those instruments. Unless s. 10(b) expressly or by implication limits the justice's power so that he may not issue a warrant to search for or seize privileged documents "that will afford evidence as to the commission of any such offence", his power extends to the issuing of a warrant authorizing search for and seizure of all such documents. There is no term of the warrant annexed to the case stated which would exclude privileged documents from search and seizure; nor does the statute expressly exclude such documents from the categories of documents which may be made the subject of a search warrant.

[124]

If the privilege which protects a document from production prior to its seizure under a warrant does not exclude its admission in evidence at a subsequent trial when it is tendered by the prosecution, privilege furnishes no reason for excluding such documents from the ambit of a search warrant under s. 10(b). It follows that, in order to adopt the Canadian view, it is necessary to postulate a trial while the document is still in the hands of the solicitor or client; only at that time is the document incapable of affording evidence. And so Dickson J. in Solosky v. The Queen [4] , thought that the Canadian cases "can be rationalized as merely shifting the time at which the privilege can be asserted", the time being no later than the seizure of the document under the warrant. However, I am unable to construe s. 10(b) as fixing a time no later than the seizure of the document as the relevant time for determining admissibility of the thing to be seized. The provision refers to grounds for believing (and the belief must be held by both the issuing justice and the constable executing the warrant) that the thing to be seized will afford evidence, not that it does afford evidence, as to the commission of an offence. The thing to be seized in execution of a warrant is a thing in respect of which the relevant belief is held. One of the purposes of s. 10(b) is to authorize the search for and seizure of a thing which can become evidence as to the commission of an offence when it is tendered at a trial occurring after execution of the warrant, and the belief that the thing seized will afford evidence is to be held in reference to such a trial. Though I respectfully acknowledge that the reasons advanced in the Canadian cases have a certain attraction, I am unable to accept them as governing the construction of s. 10(b). It will be necessary presently to consider whether any rule of evidence renders a privileged document inadmissible when produced after seizure under a warrant, but for the moment it is sufficient to note that the phrase "will afford evidence" does not exclude from the scope of a search warrant all documents which, prior to seizure, would be inadmissible because of legal professional privilege.

[125]

The plaintiff then grasps the nettle of O'Reilly [5] and seeks a reconsideration of that case. This Court has not regarded itself as bound by its previous decisions, but it would be wrong to depart from an earlier decision, albeit a majority decision, merely on the ground that a different conclusion now commends itself to a majority of the Court. I respectfully adopt what Lord Wilberforce said in Fitzleet Estates v. Cherry [6] in reference to a departure by the House of Lords from a previous decision: " doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it." This approach was recently confirmed by their Lordships: see Paal Wilson & Co. v. Partenreedere [7] . To regard the judgments of this Court as open to reconsideration whenever a new argument is found more attractive than the principle expressed in a standing decision is to overlook the function which a final court of appeal must perform in defining the law. In difficult areas of the law, differences of legal opinion are inevitable; before a final court of appeal, the choice between competing legal solutions oftentimes turns on the emphasis or weight given by each of the judges to one factor against a countervailing factor, as the judgments in the present case illustrate. In such cases, the decision itself determines which solution is, for the purposes of the current law, correct. It is not to the point to argue in the next case that, leaving the particular decision out of account, another solution is better supported by legal theory. Such an approach would diminish the authority and finality of the judgments of this Court. As the function of defining the law is vested in the Court rather than in the justices who compose it, a decision of the Court will be followed in subsequent cases by the Court, however composed, subject to the exceptional power which resides in the Court to permit reconsideration.

[137]

Adherence to O'Reilly leads inevitably, in my opinion, to an affirmative answer to the question asked in the stated case subject to two important exceptions. These exceptions depend upon the phrase "will afford evidence". As s. 10(b) authorizes the issue of a warrant to search for and to seize things as to which there are reasonable grounds for believing that they will afford evidence as to the commission of an offence, a warrant cannot authorize a search for and seizure of documents which, even if they be produced by and out of the custody of the prosecution, would not be admissible in evidence. A solicitor's file of privileged documents will frequently contain two classes of documents which will not afford evidence as to the commission of an offence and which are therefore not liable to search and seizure under a s. 10(b) warrant. The first class comprises mere expressions of legal opinion, of the kind properly given by barristers and solicitors when advising a client professionally. In the generality of cases, such opinions would not afford evidence of the facts upon which the opinions are based. Their content would not ordinarily be probative of an issue in a prosecution (cf. Varawa v. Howard Smith & Co. Ltd. [18] ). Accordingly they would not ordinarily be subject to search and seizure under a s. 10(b) warrant. Should it appear that a legal opinion was a communication between solicitor and client in furtherance of crime or fraud, and not an opinion given in the ordinary course of professional practice, the opinion might afford evidence of the commission of that crime or fraud or of a conspiracy or attempt to commit it. In that event, of course, the opinion would be subject to search and seizure; it would also be outside the scope of legal professional privilege (Reg. v. Cox and Railton [19] ; Crescent Farm Sports v. Sterling Offices [20] ; Day v. Dalton [21] ). It is unnecessary to consider in this case what has to be shown before legal protection of a confidential communication between solicitor and client is lost, for the question asked by the stated case relates only to documents to which legal professional privilege attaches.

[141]

Even if the prosecution were authorized to gain custody of documents which had come into existence "merely as the materials for the brief", a court before which such documents might be tendered in evidence would be bound to reject them lest its own adversary procedures be subverted. Although the confidential relationship of solicitor and client is not immune from being prised open by the execution of a warrant under s. 10(b), it does not follow that all the evidentiary pearls which might be discovered can be added to the string which the prosecution is permitted to tender in evidence. Section 10(b) can be accorded its proper operation without affecting the operation of the evidentiary rules by which adversary litigation is conducted. A court is bound, especially in its criminal jurisdiction, to reject evidence if its admission would damage the public interest. It would be damaging to the public interest to admit in evidence a document that has been brought into existence solely for use in litigation that is pending, intended or reasonably apprehended, or a copy of such a document unless the consent of the person entitled to the privilege is given to the tender. The tender of such a document in evidence should be rejected not so much because it affects the interests of the person entitled to the privilege, but because it subverts the court's procedure for conducting adversary litigation. Usually it is a matter for the court's discretion whether it will reject relevant evidence on the ground that its admission would damage the public interest. Accordingly, the court weighs in favour of admission the desirability in the public interest of ensuring that the court has access to all relevant evidence (Sankey v. Whitlam [28] ) and of bringing the wrongdoer to conviction (Bunning v. Cross [29] ) against other considerations tending to the exclusion of the evidence. But there is no consideration favouring the admission of evidence if its admission subverts the court's procedure for conducting adversary litigation. Ordinarily, the admission of evidence serves the public interest by enhancing the court's capacity for determining the controversy before it. Where that capacity is impaired by the admission of evidence, there is no public interest favouring its admission. It follows that documents which come into existence "merely as the materials for the brief" are not admissible in evidence and they are exempt from search and seizure under a s. 10(b) warrant.

[152]

Until comparatively recent times, the main area in which the prima facie entitlement to silence and retention of information and documents had been significantly displaced was the arena of judicial proceedings. As the testimony of witnesses came to be a common source of proof in the courts and testimonial compulsion and the compulsory production of documents became an accepted part of judicial proceedings, the occasion arose for the recognition of a special common law privilege exempting certain communications between a person and his legal advisers from the ordinary obligations to give evidence and to produce documents for inspection. This privilege, ordinarily described as legal professional privilege, protects a person from disclosure of oral or written confidential communications, between himself and his solicitor or barrister, made or brought into existence for the sole purpose of seeking or giving advice or for the sole purpose of use in existing or anticipated litigation (see Grant v. Downs [38] ; O'Reilly v. State Bank of Victoria Commissioners [39] and, as to the absence of any requirement that advice be in the course of or anticipation of litigation, Foster v. Hall [40] ; Greenough v. Gaskell [41] ; per Brett M.R. in Pearce v. Foster [42] ). It is the privilege of the client and protects him from being compelled to make disclosure of such communications either in testimony or by the production of documents for inspection. It also protects him from such disclosure, in the absence of his consent, by his legal adviser. The privilege does not extend to protect communications which are in themselves part of a criminal or fraudulent proceeding or course of conduct or which constitute the whole or part of an actual dealing or transaction (see O'Reilly's Case [43] ). Nor does it extend to protect things lodged with a legal adviser for the purpose of obtaining immunity from production. The privilege may be lost by waiver and, arguably, by the content of the communication ceasing to be confidential (Lloyd v. Mostyn [44] ; Calcraft v. Guest [45] ; but cf. Ashburton (Lord) v. Pape [46] ).

[161]

It is true that the above statements were made in cases which were concerned with an invocation of legal professional privilege in the context of legal proceedings. There is, however, no warrant for restricting the broad statements of the principle of the confidentiality of legal professional communications to the particular privilege against being compelled to give evidence or produce documents in judicial (or quasi-judicial) proceedings. That that is so appears clearly enough from what was said by Fletcher Moulton L.J. in Rakusen v. Ellis, Munday & Clarke [17] where, speaking generally and not in the context of compulsion to give evidence or produce documents in judicial or quasi-judicial proceedings, his Lordship described the confidentiality which the law accords to communications between solicitor and client as "the very highest - so high that the solicitor is absolutely privileged and cannot be made to state what passed between him and his client. To that extent the solicitor is made, as it were, a part of his client for the purpose of those communications". Once one recognizes that the principle underlying legal professional privilege is that a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications and that the privilege is not confined to such communications as are made in the course of or in anticipation of litigation but extends generally to confidential communications of a professional nature between a person and his lawyer made for the purpose of obtaining or giving legal advice, common sense points to a conclusion that the principle should not be seen as restricted to compulsory disclosure in the course of such proceedings. Indeed, the doctrine of legal professional privilege would represent an aberration of the common law if it withheld from the courts information or documents which were material in the search for truth in circumstances where the disclosure thereof could be compelled as a matter of course by any administrative officer with a relevant and general statutory mandate to require the provision of information or the production of documents. Moreover, if the privilege were confined to disclosure in judicial (or quasi-judicial) proceedings, it is difficult to explain why, logically, the lawyer who fails voluntarily to disclose the wrongdoing of his client to the appropriate administrative officer does not, in the absence of some particular justification, stand guilty of the felony of misprision of felony (see Reg. v. King (Joseph) [18] , where it was held that "the cardinal principle of English law that a man is not bound to incriminate himself" (per Lord Parker C.J. [19] ) provided an overriding answer to a prosecution for misprision of felony and cf. Sykes v. Director of Public Prosecutions [20] ; Gifford, Legal Profession Law and Practice in Victoria (1980), p. 337; Tuckiar v. The King [21] ).

[171]

After the above had been written, the reports of the decisions of the Canadian Supreme Court in Descoteaux v. Mierzwinski [23] and of the New Zealand Court of Appeal in Reg. v. Uljee [24] became available in this country. In each of those cases, a unanimous Full Court emphatically reaffirmed the fundamental nature and broad scope of the general and substantive principle underlying legal professional privilege. Of no less significance is the equally recent decision of the European Court of Justice inA. M. & S. Europe Ltd. v. Commission of the European Communities [25] . The Report to the Court by the Advocate General (Sir Gordon Slynn) in that case contains a helpful summary of the laws of the member states of the European Economic Community in relation to legal professional privilege [26] . As that summary indicates, there are significant variations between the laws of the member states as to the communications to which the privilege attaches. In the case of all of those States however, the doctrine of legal professional privilege constitutes a general principle or rule which extends to protect privileged documents from production and seizure in the course of an administrative inquiry as distinct from being a mere rule of evidence restricted to judicial or quasi-judicial proceedings: "there exists in all the member states a recognition that the public interest and the proper administration of justice demand as a general rule that a client should be able to speak freely, frankly and fully to his lawyer" [27] (italics added). In their "Decision", the eleven judges of the Court explained the Court's function as involving the identification of "the principles and concepts common to the laws of [member] states concerning the observance of confidentiality, in particular, as regards certain communications between lawyer and client" [28] . To some extent, that identification amounted to a search for the highest common factor in the various laws and resulted in the documents to which legal professional privilege was held to attach being restricted to documents "made for the purposes and in the interests of the client's rights of defence" [29] . Such a restriction is not acceptable in Australia (see above) or, indeed, in the law of most of the member European States (e.g., United Kingdom, Ireland, Germany, Belgium, Denmark and Greece) where the protection of the privilege is accepted as ordinarily attaching to confidential communications between a person and his lawyer for the purpose of obtaining or giving legal advice whether or not in connection with pending or contemplated legal proceedings and "without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibility, become the subject of judicial inquiry" (per Lord Brougham L.C., Greenough v. Gaskell [30] ). What is important for present purposes, however, is that the doctrine of legal professional privilege was plainly accepted by the European Court as a general principle which effectively protects privileged documents from production or seizure by administrative compulsion or in the course of an administrative inquiry. In words reminiscent of what had been said by Knight Bruce V.-C. in Pearse v. Pearse [31] , the members of the European Court explained the rationale of the general principle which they held to be part of the law of all member States [32] :

[217]

The present case may serve as an illustration. After an attempt was made to execute the search warrant, the plaintiff, together with others, was charged with conspiracy to defraud the Commonwealth and two separate conspiracies to prevent or defeat the execution or enforcement of two separate laws of the Commonwealth relating to sales tax. See Crimes Act, s. 86(1)(b) and (e). The complexity of revenue laws is such that the availability of legal advice in relation to them is as necessary and desirable as it is in any other area of the law. Hitherto it has been thought that such advice could be given without fear that it, or the instructions upon which it is given, might be the subject of compulsory disclosure. But the protection which is unquestionably afforded by legal professional privilege in judicial proceedings (in this case criminal proceedings), would be set at nought if by executive or administrative processes revelation of professional confidences could be compelled, particularly if by this means evidence of them might subsequently be given in any subsequent judicial proceedings. It is obvious, to my mind, that any person seeking advice such as must have been sought in this case would be seriously hampered in giving full instructions, as would his legal adviser be in giving advice, by the prospect that the instructions or the advice might have to be disclosed under compulsion and so become available for use, in one way or another, to his disadvantage. Clearly, those instructions and the consequent advice would be likely to be relevant in establishing at least the fact of agreement, which is a necessary part of any conspiracy, and the nature of the agreement. And yet, it is just such relevant evidence that the law excludes in judicial proceedings because of its overriding regard for the confidentiality of communications between a legal adviser and his client and it does so at the expense of the availability of the whole of the relevant evidence. It is hardly to be supposed that the principle which lies behind that exclusion is so narrow in its application as to be confined to judicial or quasi-judicial proceedings with the result that it may be thwarted by executive or administrative processes.

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