Carter v Managing Partner, Northmore Hale Davy & Leake

It is true that a principle expressed in those terms leaves questions unanswered. That is inevitable. Doubtless it has difficulties, both in principle and practice. The exception speaks of a person facing trial and therefore says nothing as to summary proceedings. It does not define proper objection though clearly that includes self-incrimination. It is arguable that the notion of a fair trial involves the interests of the Crown as well as the accused so that any such exception should be available to the Crown. But, as suggested earlier, an accused does stand in a special position since he or she is the one in jeopardy. There are undoubtedly problems where a co-accused is involved [120] . As formulated, the exception throws the onus on the accused of satisfying the court that the documents are necessary for the proper conduct of the defence though the accused may be at a disadvantage in satisfying that onus. In that respect, if some onus is not placed on the accused, there is a real risk that the curial process may be frustrated by fishing expeditions. These matters serve to show the need for expressing the principle no more widely than is necessary to meet the circumstances of the present case.

1. See R v Dunbar and Logan (1982) 138 DLR (3d) 221 at 251 where the Ontario Court of Appeal suggested that one limitation of the principle in R v Barton is that "an accused ought not to be required to disclose privileged information, the disclosure of which might assist a co-accused to the detriment of the accused who is required to disclose the privileged communication".

On a practical level the court can protect the interests of the person who is required to produce documents the subject of privilege by controlling access to the documents [121] and by ordering the accused to deliver up all the material produced at the end of the proceedings and restraining the use of the material for any purpose other than the proceedings [122] . Clearly enough, if the principle is accepted there will have to be a working out of its implementation.

1. See R v Saunders (unreported; Henry J; English Central Criminal Court; 10 January 1990). 2. See British Coal Corporation v Dennis Rye Ltd [No 2] [1988] 1 WLR 1113; [1988] 3 All ER 816.

Any qualification to legal professional privilege inevitably gives rise to a concern as to the effect on the openness of discussions between lawyer and client. This is not something capable of assessment though it must be taken into account in the working out of any such qualification. But, in such general terms, it can hardly stand as a reason in itself for refusing access to material which may be crucial to the defence of an accused person.

What of the second question? It is true that in Grant v Downs [123] Stephen, Mason and Murphy JJ said that legal professional privilege was not to be exorcised by judicial decision. But recognition of the exception for which Mr Carter contends is not destructive of legal professional privilege. It requires the privilege to yield in particular circumstances. And, as the authorities referred to in this judgment make abundantly clear, there is a public interest in courts having all relevant material. Furthermore, as many of those authorities make equally clear, legal professional privilege should be confined within strict limits and from time to time it has been required to yield to some more important interest. While acknowledging the force of the argument that legislative action is the appropriate way to deal with any change to the scope of legal professional privilege, this Court is required to answer the question posed by the ground of appeal. It must do so in a context where there is tension between two important strands in the development of the common law. It is consistent with the function of this Court in the development of that law to answer the question in the way indicated.

I would therefore allow the appeal to the extent of setting aside the orders of the Full Court and of Seaman J upholding the respondents' objection to production of the documents subpoenaed. I would remit the matter to a judge of the Supreme Court of Western Australia to deal with the subpoenas in the light of this judgment.

I agree with Toohey J, for the reasons his Honour gives, that it should now be recognised that there is an exception to legal professional privilege in favour of an accused person in a criminal trial. It follows that I agree with the order which his Honour proposes. I wish, however, to add some remarks on the exception which, in his Honour's view, covers "documents necessary for the proper conduct of [the accused's] defence".

I would prefer to express the exception in terms of documents the withholding of which would impede the conduct of the defence, as was done with respect to the public interest privilege considered in The Commonwealth v Northern Land Council [124] . It seems to me that this formulation is required by the presumption of innocence; the fact that, in our adversarial system of criminal justice, the prosecution bears the onus of proving guilt beyond reasonable doubt; and, as well, by the various matters which necessitate the recognition of the exception.

1. (1993) 176 CLR 604 at 618. The case was concerned with documents evidencing the deliberations of Cabinet on matters which remained current or controversial.

There is a further reason for expressing the exception in terms of impeding the conduct of the defence. Inevitably, it will be for the accused to show that the documents that he or she wants are within the exception. That is a formidable task when, as will inevitably be the case, the contents of the documents are not known. The position was put succinctly by La Forest J in Carey v Ontario [125] in relation to a suggested requirement that the plaintiff show "some concrete ground for belief" that privileged documents would assist his case. His Lordship said of that requirement where the documents were admittedly relevant and were covered by public interest privilege [126] :

What troubles me about this approach is that it puts on a plaintiff [the] burden of proving how the documents, which are admittedly relevant, can be of assistance. How can he do that? He has never seen them; they are confidential and so unavailable. To some extent, then, what the documents contain must be a matter of speculation. But they deal with precisely the subject matter of the action and what one party was doing in relation to the relevant transactions at the time. The task will be even more difficult if, as can be expected in most criminal trials, the documents deal with some matter in issue or some matter relevant to a matter in issue, and not with the precise matter charged. Accordingly, no more should be required of an accused than that he or she show that the conduct of the defence will be impeded if the documents are not made available. And that will be done if he or she establishes some basis for an inference that the documents can be put to some forensic use in the defence case. 1. [1986] 2 SCR 637; (1986) 35 DLR (4th) 161. 2. Carey [1986] 2 SCR 637 at 678; (1986) 35 DLR (4th) 161 at 192. This passage was quoted by Toohey J in The Commonwealth v Northern Land Council (1993) 176 CLR 604 at 635. McHugh J.

The question in this appeal is whether a document recording a communication that is otherwise protected from production by legal professional privilege must be produced for the purpose of a criminal trial if the communication may establish the innocence of the accused or materially assist the furtherance of that person's defence. The appellant, who contends that this question should be answered in the affirmative, accepts that no decision of this Court or in this country establishes such a proposition. But, relying on decisions in other countries [127] , he contends that this Court should now declare a new exception to the doctrine of legal professional privilege that would enable an accused person to obtain documents that were otherwise protected from disclosure by that doctrine. In my opinion, this contention should be rejected. A communication that is protected by legal professional privilege is not required to be disclosed to the court or to the accused even if the communication will establish the innocence or materially assist the defence of an accused person unless it falls within one of the established "exceptions" to the privilege.

1. R v Barton [1973] 1 WLR 115; [1972] 2 All ER 1192; R v Craig [1975] 1 NZLR 597; R v Ataou [1988] QB 798.

Communications between legal advisers and their clients concerning contemplated or pending litigation cannot be disclosed without the consent of the client [128] . Similarly, communications made to obtain or to give legal advice cannot be disclosed without the consent of the client [129] . "Legal professional privilege" is the shorthand description of the right that protects these communications from being disclosed without the consent of the lay client. The right is a substantive rule of law and not a mere rule of evidence [130] . Courts in this country have held that legal professional privilege is available as an answer to the production of documents even in criminal proceedings [131] . In Adams v Anthony Bryant & Co Pty Ltd [132] , for example, Wilcox J held that witness statements prepared by the Trade Practices Commission were the subject of legal professional privilege and that the defendants who were being prosecuted for breaches of the Trade Practices Act 1974 Cth were not entitled to production of the statements. The privilege is not available, however, in respect of communications that are made to facilitate the commission of a crime or fraud [133] or the abuse of an exercise of public power [134] or the frustration of the order of a court [135] .

1. Grant v Downs (1976) 135 CLR 674; Attorney-General (NT) v Kearney (1985) 158 CLR 500; Attorney-General (NT) v Maurice (1986) 161 CLR 475; Waterford v The Commonwealth (1987) 163 CLR 54. 2. Minet v Morgan (1873) 8 Ch App 361; Bullivant v Attorney-General (Vict) [1901] AC 196. 3. Baker v Campbell (1983) 153 CLR 52. 4. R v Cahill; Ex parte McGregor (1985) 61 ACTR 7; Cain v Glass [No 2] (1985) 3 NSWLR 230; Adams v Anthony Bryant & Co Pty Ltd (1986) 15 FCR 513; Grofam Pty Ltd v Australia & New Zealand Banking Group Ltd (1993) 45 FCR 445. 5. (1986) 15 FCR 513. 6. R v Cox and Railton (1884) 14 QBD 153 at 165; Bullivant [1901] AC 196 at 201; Varawa v Howard Smith & Co Ltd (1910) 10 CLR 382 at 385, 386, 390. 7. Kearney (1985) 158 CLR 500. 8. R v Bell; Ex parte Lees (1980) 146 CLR 141.

One rationale put forward for the protection of communications concerning pending or contemplated litigation is that the protection of such communications "assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline" [136] . This rationale assumes that, without the protection of legal professional privilege, a client and his or her witnesses would often be reluctant to make a frank disclosure to the legal adviser of all relevant circumstances, including those of a damaging, embarrassing or incriminating nature. The existence of the privilege is therefore said to promote trust and candour between the client and the legal adviser and to assist the legal adviser to advise with confidence whether legal action should be initiated, defended or compromised. In Attorney-General (NT) v Maurice [137] , Gibbs CJ said that, without the doctrine, the administration of justice in accordance with the adversary system would be greatly impeded. In Bullivant v Attorney-General (Vict) [138] , the Earl of Halsbury LC said that legal professional privilege exists for the more "perfect administration of justice".

1. Grant (1976) 135 CLR 674 at 685; Kearney (1985) 158 CLR 500 at 511. 2. (1986) 161 CLR 475 at 480. 3. [1901] AC 196 at 200.

However, legal professional privilege also protects communications that seek or give legal advice in cases where no litigation is pending or contemplated [139] . The rationale that the doctrine is necessary for the "proper functioning of the legal system" [140] or the "perfect administration of justice" [141] hardly seems applicable to non-litigious communications between legal adviser and client unless the concepts of "the legal system" and "the administration of justice" are given extended and artificial meanings.

1. Minet (1873) 8 Ch App 361. 2. Kearney (1985) 158 CLR 500 at 511. 3. Bullivant [1901] AC 196 at 200.

Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is "a practical guarantee of fundamental, constitutional or human rights" [142] . By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality.

1. A M & S Europe Ltd v Commission of European Communities [1983] QB 878 at 941 and see Solosky v The Queen (1979) 105 DLR (3d) 745 at 760; R v Uljee [1982] 1 NZLR 561 at 569; Descôteaux v Mierzwinski [1982] 1 SCR 860 at 880; (1982) 141 DLR (3d) 590 at 609 citing R v Littlechild (1979) 108 DLR (3d) 340 at 347; Geffen v Goodman Estate (1991) 81 DLR (4th) 211 at 232; Maurice (1986) 161 CLR 475 at 490.

This Court has accepted that, although the doctrine is based on the requirements of the public interest, its application in particular cases does not depend upon balancing it against other rights that are grounded in the public interest [143] . Not even the public interest in courts having all relevant evidence before them has been considered sufficient to override the public interest in maintaining the unqualified operation of the privilege. As Deane J pointed out in Attorney-General (NT) v Maurice [144] :

Its efficacy as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced. That being so, it is not to be sacrificed even to promote the search for justice or truth in the individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials. 1. Waterford (1987) 163 CLR 54. 2. (1986) 161 CLR 475 at 490.

The argument that any document that might assist a person to defend a criminal charge should be available to that person might seem instinctively to be unanswerable. But to uphold it would be inconsistent with the rationale of the doctrine of legal professional privilege and that privilege has been recognised since the reign of Elizabeth I [145] . Its "scope and conditions" [146] were settled by the middle of the last century. To uphold it would undermine the right of the individual to consult a lawyer on legal matters secure in the knowledge that, in the absence of a statutory command to the contrary, what passes between them is confidential and forever safeguarded from disclosure unless the communication is made to facilitate the commission of a crime or a fraud or the abuse of an exercise of public power or the frustration of the order of a court. If any exception to this fundamental right of the citizen is to be made, it should be done by the elected representatives of the people and not by the judiciary [147] .

1. Berd v Lovelace (1577) Cary 62 [ 21 ER 33]. 2. Holdsworth, A History of English Law, 3rd ed (1944), vol 9, p 202. 3. See Grant (1976) 135 CLR 674 at 685.

In England, the doctrine of legal professional privilege was severely qualified in 1972 by the ruling of Caulfield J in R v Barton [148] where his Lordship, in the course of presiding over a criminal jury trial on circuit, held that:

If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man, then in my judgment no privilege attaches. I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which, if disclosed to the jury, would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown. Caulfield J recognised that this proposition was not supported by any authority that had been cited to him. His Lordship said that he was "just working on what I conceive to be the rules of natural justice" [149] . Text book writers [150] have given general support to the proposition. The appellant relied on it. But in my opinion, given the settled interpretation of the doctrine of legal professional privilege in Australia and its rationale, it cannot be accepted in this country. 1. [1973] 1 WLR 115 at 118; [1972] 2 All ER 1192 at 1194. 2. Barton [1973] WLR 115 at 118; [1972] 2 All ER 1192 at 1194. 3. Halsbury's Laws of England, 4th ed vol 11(2), par 1163; Cross on Evidence, 4th Aust ed (1991), vol 1, par 25,300; Archbold, Criminal Pleading Evidence & Practice (1993), vol 1, p 1573; McNicol, Law of Privilege (1992), pp 101-104.

First, it is inconsistent with the terms in which the doctrine of legal professional privilege has been formulated and applied in this Court. Apart from a statement in a dissenting judgment of Gibbs CJ [151] which arguably accepted the proposition, those formulations contain no hint of any such exception to the doctrine of legal professional privilege. Implicitly, they have accepted that any reform of the doctrine, if it is in need of reform, is a matter for the legislature. Indeed, in Grant v Downs [152] , Stephen, Mason and Murphy JJ said that as "a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision".

1. Baker (1983) 153 CLR 52 at 68. 2. (1976) 135 CLR 674 at 685.

Secondly, the making of an exception to the doctrine of legal professional privilege, such as that formulated in Barton's case, could be justified only if this Court ruled that the public interest in an accused person obtaining all relevant evidence outweighed the public interest justifying the doctrine of legal professional privilege. To so rule would be inconsistent with the ratio decidendi of Waterford v The Commonwealth [153] which held that:

Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognised crime or fraud exception the public interest in "the perfect administration of justice" is accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence. Given its application, no further balancing exercise is required. The ratio decidendi of Waterford could not logically stand with the Barton exception. 1. (1987) 163 CLR 54 at 64-65.

Thirdly, the established "exceptions" to legal professional privilege provide no ground for developing a further exception along the lines formulated in Barton's case. The so-called exceptions to the doctrine are in truth not exceptions at all. Rather they identify circumstances where the doctrine does not apply to communications between legal adviser and client. They exclude from the protection of the privilege communications that are designed to facilitate future wrongdoing. Thus, communications that come within the exceptions never attract the grant of legal professional privilege. The rule formulated in Barton, however, qualifies the operation of the privilege. It seeks to divest of protection communications that have become the subject of privilege. No valid analogy can therefore be drawn between the established "exceptions" and the exception formulated by Caulfield J in Barton.

Fourthly, the exception formulated in that case is contrary to and undermines the rationale of legal professional privilege. If a person has a fundamental human right to obtain legal advice secure in the knowledge that what passes between the lawyer and that person is forever safeguarded from disclosure, the suggested exception impairs that right. In many cases, adoption of the exception would have serious consequences for a person seeking legal advice and assistance.

If the rule formulated in Barton is to be introduced into Australian law, it will have to be on pragmatic grounds, based on general notions of justice to the accused, that ignore the symmetry of legal doctrine. From time to time in any common law system of justice, cases arise where an entrenched legal rule operates so unjustly in a particular situation that it is the duty of an ultimate appellate court to modify the rule's operation in that situation, notwithstanding that the modification is based on nothing more than the consequences of the rule. But even when the outcome of applying a legal rule to a particular situation seems plainly unjust, before a court modifies the rule it needs to be sure that the modification does not produce undesirable consequences in that or other situations or undermine the operation of other legal rules. Small modifications of legal rules sometimes have large effects that are not foreseen at the time.

One difficulty with the suggested exception is that it is impossible to know to what extent it would prevent people from obtaining legal advice or would inhibit frankness and candour in communications between legal adviser and client. In situations giving rise to legal controversy, matters that support and matters that undermine a person's case are frequently found together. Under the present doctrine, clients can put all the circumstances of which they are aware before their legal advisers secure in the knowledge that what passes between them is privileged. Whether they would continue to be so frank if they knew that those communications could be made public if they might assist an accused person cannot be known with certainty. In the majority of cases, one would think that it would make little difference. But in cases where revelation of the contents of a communication demonstrated actual or arguable wrongdoing on the part of a potential client, it does not seem fanciful to suppose that that person would be extremely reluctant to seek legal advice or to put all the circumstances before the legal adviser. One does not have to accept the argument of counsel for the fourth and fifth respondents that the exception contended for by the appellant is a "virtual abolition of legal professional privilege" to accept that adoption of the exception could have serious consequences for the general administration of justice.

Some consequences of and difficulties with the suggested exception are apparent. If the exception applied to a communication between a co-accused and his or her legal adviser, revelation of the communication might lead to the conviction of that person without securing the acquittal of the accused person who had obtained access to the communication. What may further the defence of the accused will not necessarily establish that person's innocence. Nor will it necessarily establish the guilt of a co-accused. But it may seriously prejudice that person's defence by revealing matters that undermine his or her case or support the prosecution's evidence. The case where a communication between a lawyer and a co-accused points unmistakably to the latter's guilt and exculpates the accused is likely to be truly exceptional. It is much more likely that, where the contents of a legally privileged communication between a co-accused and a legal adviser assist the accused, it will do so by implicating the co-accused or undermining that person's defence rather than positively proving the innocence of the accused. The result may be that the co-accused is convicted without the accused being acquitted. Whether or not the conviction of the co-accused is wrong, that person may not have been convicted if the Barton exception had not required disclosure of the privileged communication. Plainly, that exception has serious consequences for a co-accused.

Similarly, the exception has serious consequences for any person who is or could be charged with an offence if disclosure of the contents of an otherwise privileged communication might incriminate or tend to undermine the defence of that person. Even when a person has been charged with but acquitted of an offence, disclosure of a communication may result in a charge of perjury against that person. The civil or social consequences of disclosure may also have repercussions for a person that he or she would regard as worse than the imposition of a penalty for a minor criminal offence. Quite apart from any exposure to a civil action for damages, disclosure of a legally privileged communication may reveal shameful conduct that would seriously damage the reputation or standing in the community of the person entitled to the benefit of the privilege. To uphold the Barton exception would seem sure to cause serious damage to persons entitled to the benefit of the privilege. While legal professional privilege continues to exist, it seems difficult to justify that exception when it would produce such consequences. This is particularly so when the exception applies to documents that merely help to further the accused's defence.

In R v Ataou [154] , the English Court of Appeal reformulated the Barton exception to overcome the difficulties that arise if the Barton exception applies to any communication that furthers the defence of an accused person. After referring to that case and R v Craig [155] , the Court of Appeal said [156] :

When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned or his solicitor, it should be for the defendant to show on the balance of probabilities that the claim cannot be sustained. That might be done by demonstrating that there is no ground on which the client could any longer reasonably be regarded as having a recognisable interest in asserting the privilege. The judge must then balance whether the legitimate interest of the defendant in seeking to breach the privilege outweighs that of the client in seeking to maintain it. 1. [1988] QB 798. 2. [1975] 1 NZLR 597. 3. Ataou [1988] QB 798 at 807. See also the judgment of Cooke J in Craig [1975] 1 NZLR 597 at 599, which is the source of much of the rule formulated in Ataou, where his Honour said: "When a communication was originally privileged and in criminal proceedings the privilege is claimed, against the prosecution, in respect of evidence by the client originally concerned or his solicitor, the onus should be on the prosecution to show that the claim cannot be sustained. That might be done either by demonstrating that there is no ground on which the client could any longer be reasonably regarded as having a recognisable interest in asserting the privilege or that an established exception applies."

Adoption of this exception to the doctrine of legal professional privilege would not assist the appellant in this case. The respondents have recognisable interests in maintaining the privilege that each claims. But in any event it is not possible, having regard to the decisions of this Court, to uphold the exception formulated in Ataou. Quite apart from the difficulty in identifying whether a person still has a recognisable interest in asserting the privilege, this Court has rejected the notion that the public interest in legal professional privilege can be balanced against other interests.

Moreover, with great respect to those who think otherwise, I think that there are practical difficulties in the suggestion that the rights of persons otherwise entitled to the privilege can be protected by orders controlling access to the documents. It is the communication and not the document that needs and is given protection. In many cases, once the contents of a communication become public, the damage to the person otherwise entitled to the privilege will be done. Moreover, a court may restrain the use of the documents but it is not always as easy to restrain the use of information derived directly from those documents or from the consequential tender of evidence based on that information. A document may assist the defence of the accused without being admissible in evidence. No doubt many documents recording communications between legal advisers and clients that would not be admissible at common law would now be admissible under the business records and documentary evidence legislation of many jurisdictions. But, if the exception were available, it would often be necessary to call the legal adviser or some other person to give evidence concerning a fact or matter referred to in the communication. In other cases, the value of the privileged communication to the accused would lie in the avenues of inquiry that it opened up or in the information that it provided to cross-examine witnesses. Making orders that would prevent persons other than the accused from profiting from the disclosed information would be no easy task.

Furthermore, if an exception to the doctrine of legal professional privilege were made in favour of the accused in criminal trials, it would seem difficult to resist making some exception in favour of the Crown. If the accused is entitled to privileged documents that might further his or her defence, why should the Crown be denied access to privileged documents that might establish the accused's guilt or undermine that person's defence where those documents contain the accused's own communications with his or her legal adviser? The Crown as well as the accused has the right to a fair trial. It hardly seems consistent with the idea of a fair trial that the accused should have access to legally privileged documents for the purpose of attacking the evidence of the prosecution witnesses when the Crown is denied access to the same class of documents for the purpose of attacking the evidence of the accused or that person's witnesses.

In my opinion, to uphold the appellant's claim would interfere with the operation of the doctrine of legal professional privilege in ways that are altogether hostile to its rationale. Established principle unquestionably requires rejection of the appellant's contention that the Court should hold that documents that may assist the furtherance of an accused person's defence must be produced to the court notwithstanding that they are the subject of legal professional privilege. And an examination of the likely consequences of the suggested exception does not persuade me that making it can be justified on the pragmatic ground that the interests of justice demand it. No doubt in some cases access to such documents may considerably improve a person's chance of acquittal. In other cases, however, the exception may seriously damage interests which the doctrine of legal professional privilege is designed to protect without securing the acquittal of the accused. If any exception is to be made to the fundamental right of the citizen that is protected by the doctrine - and I do not suggest that it should - it should be done by the legislature after a full investigation and consideration of the matter. [157]