The Court then considered the factual basis of the claim. The Australian Taxation Office had sought advice from the Commonwealth Director in relation to suspected tax fraud by the applicants, but there was no information as to whether, at the time the advice was sought, any decision had been made to commence any proceedings. It remained open for the Australian Taxation Office to decide not to institute proceedings or to carry on the proceedings itself without further reference to the Commonwealth Director. In those circumstances, as the Court could not identify any function of the Commonwealth Director to which the giving of legal advice was incidental, the Court doubted whether the Commonwealth Director had any power to give legal advice. Nevertheless, the Court upheld the claim for legal professional privilege because it was prepared to infer that the advice was sought in the belief that the Commonwealth Director was entitled to give the advice. The Court determined that, as a matter of judicial policy, communications which would normally be privileged ought to be protected where the client genuinely believed that there was an entitlement to give the legal advice in question.

The power of the Commonwealth Director to give legal advice was again considered by the Full Court of the Federal Court in Health Insurance Commission v Freeman [1998] FCA 1340; (1998) 158 ALR 267. The respondent was a medical practitioner. During the course of a Medicare fraud investigation, documents were seized from the respondent. Subsequently the respondent was charged with a number offences. At the committal proceedings the Magistrate upheld a claim that the seizure of the documents was unlawful and ordered that the documents be returned to the respondent. Acting on advice from the Commonwealth Director, the Health Insurance Commission ("the Commission") obtained a search warrant and again seized the documents. The respondent took proceedings claiming that the search warrant was obtained for an improper purpose. In the course of those proceedings the Commission claimed legal professional privilege in respect of documents that recorded legal advice from the Commonwealth Director relating to the issue of the search warrant. The trial judge held that as charges had been laid and an investigation was no longer on foot, the search warrant was invalid. He ordered that the Commission produce to the respondent the documents over which privilege had been claimed.

In allowing the appeal, the Court held that a search warrant issued after charges are laid, and issued for the purpose of preserving evidential material in respect of the offences charged, was a valid warrant issued in connection with the investigation. Merkel J, with whom von Doussa and Carr JJ agreed, examined the provisions of the Commonwealth Act with respect to the powers of the Commonwealth Director to give advice. Dealing with s 6(1)(n) which confers a power "to do anything incidental or conducive to the performance" of the Commonwealth Director's statutory functions, his Honour said (282):

"Applying similar reasoning it would seem to be incidental or conducive to the DPP's function of prosecuting, carrying on or taking over proceedings, including considering prosecuting, carrying on or taking over proceedings, to give legal advice to any Commonwealth authorities or agencies involved in the investigation of matters which are likely to be the subject of such proceedings, irrespective of whether the proceedings are prospective, imminent or actual. The reasoning applies with particular force to a matter being investigated by the Commission under reg 3(2)(c). For example, it would clearly be "conducive" to the better fulfilment of the prosecutorial functions of the DPP, for advice to be given to an investigative agency to ensure evidential material being gathered by it for the purpose of a prosecution which is intended to be carried on by the DPP, is being gathered lawfully.

It is difficult to conceive of any reason why parliament would intend the power of the DPP to give legal advice to an authority of the Commonwealth only to arise when the authority is a party to a proceeding. Heerey J considered this question in Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd [1993] FCA 374; (1993) 43 FCR 408; 116 ALR 535. His Honour, in considering advice given by the DPP about possible criminal liability, said (at FCR 413) that it was incidental or conducive to the performance of the DPP's function to institute proceedings for offences under federal law:

'... for the DPP to give the advice sought by the AFP and ATO since they were engaged in an investigation of a kind which was necessary, or at least likely to be of assistance, for any such future proceedings.'

However, it is important to note that the power to give legal advice in any particular case only arises under s 6(1)(n) when the advice is incidental or conducive to a function of the DPP. In order to determine whether that criterion is met in a particular case it will usually be necessary for some consideration to be given to the facts of the case."

Merkel J addressed the suggested repugnance between the incidental power in s 6(1)(n) and the specific power contained in s 9(11) which is cited earlier in these reasons. In the course of rejecting that suggestion, his Honour said (284):

"In my view, for the reasons already expressed, prior to the enactment of s 9(11) the DPP, and legally qualified persons in the Office of the DPP were empowered under the incidental power in s 6(1)(n) to give legal advice sought by Commonwealth authorities or agencies engaged in the investigation of offences against Commonwealth laws for which the DPP would or might (as a real rather than theoretical possibility) in due course bear responsibility for prosecuting."

With one qualification, Merkel J agreed with the following passage in the judgment of Heerey J at first instance in Grofam (284):

"I am satisfied that up until the issue of the warrant (and thereafter) the ATO and the AFP were in substance in the position of clients of the DPP. They were seeking the DPP's legal advice as to matters arising in the investigation of possible criminal offences. Acceptance of the applicants' argument to the contrary would mean that the AFP and ATO would in this investigative phase be confined to such legal advice as they had in-house, or could be obtained from the private legal profession, because parliament had intended to prohibit them from seeking advice from the very body which parliament itself has established as the independent and expert authority for prosecution of breaches of the criminal laws of the commonwealth. I would not impute such an unlikely intention to parliament unless clear language in the statute compelled that conclusion. Such is not the case."

The qualification identified by Merkel J was a requirement that the function to which the advice is incidental or conducive must be identified. His Honour held that the Commonwealth Director does not have a general power to give legal advice to a commonwealth authority merely because the particular authority is investigating the possible commission of offences under commonwealth law. His Honour continued (285):

"Before the pre-condition in s 6(1)(n) is met there must be some nexus between the investigation being conducted by the authority and a statutory function of the DPP. The nexus must be something more than a mere theoretical possibility that the DPP might institute, carry on or take over a prosecution at some future date. The facts of the particular case or the nature of the alleged offence must, at the very least, establish that the possibility of the DPP becoming involved in a prosecutorial function is a real one. A course of conduct of past referrals of similar matters to the DPP or evidence of an intention to refer the particular matter to the DPP for prosecution may suffice. Ultimately, each case will depend on its own facts."

On the facts of the matter before the Court, Merkel J held that there was insufficient nexus between the investigation being conducted by the Commission and the statutory functions of the Commonwealth Director. There was no evidence that the Commonwealth Director had any role or was expected to have any role in the future conduct of the prosecution. Although it was possible that at some time in the future the Commonwealth Director might take over the prosecution or that it might be referred to the Commonwealth Director by the Commission, his Honour was of the view that "such steps were little more than a theoretical possibility" at the time that the legal advice was sought (285). However, although the giving of the advice was outside the powers of the Commonwealth Director, in view of evidence that it had been the practice of the Commission to obtain legal advice from the Director in the type of circumstances under consideration, Merkel J concluded that the claim based on legal professional privilege should be upheld for the same reasons that the claim was upheld in Grofam.

The issue of the specific relationship between the Director of Public Prosecutions in England ("the UK Director") and the police during an investigation was considered by Moore-Bick J in Goodridge v Chief Constable of Hampshire Constabulary [1999] 1 All ER 896. In the course of a murder investigation, a large number of statements were taken from potential witnesses. Three reports were submitted to the UK Director who advised that the evidence was not sufficient to justify a prosecution. Subsequently, a further investigation was conducted and additional statements were obtained. The second investigator arrested a suspect and charged the suspect with murder. That investigator subsequently presented a report to the UK Director who later discontinued the proceedings on the ground that there was insufficient evidence to justify the prosecution. The arrested person brought an action for damages for malicious prosecution and sought production for inspection of the reports sent to the UK Director. The documents were relevant because of an allegation that the second investigator did not have reasonable grounds for believing that there was sufficient evidence to charge the suspect with murder.

After observing that the doctrine of legal professional privilege extends to communications with salaried legal advisers, Moore-Bick J identified the question as being whether the evidence established the existence of a relationship, "tantamount to that of client and legal adviser", between the investigating officers and the UK Director. Against that background, his Honour said (903):

"In view of the fact that one of the functions of the Director of Public Prosecutions is to give advice to the police when they consider it appropriate to ask for it, I should be unwilling to say, on the basis of the material before me, that the relationship of client and lawyer cannot arise between the police and the Director of Public Prosecutions in an appropriate case. It seems to me that the statutory provisions which govern the relationship between them are such as might make it appropriate for the police to seek the advice of the director on matters with which they are concerned in such circumstances as would make it appropriate for the request for advice, and any advice given in response to that request, to attract the protection of legal professional privilege."

His Honour then considered whether the evidence established the existence of the necessary relationship. In rejecting the claim, his Honour said (903):

"Certainly, on the material before me, there is no evidence which suggests that this was a case in which the police were seeking legal advice for their own benefit of a kind or in circumstances which would be analogous to a client approaching his solicitor for legal advice. In those circumstances, although, as I have said, I would not rule out the possibility of legal professional privilege attaching to communications between the police and the Director of Public Prosecutions in an appropriate case, I do not think that the evidence before me bears out that case here."

Although some of the points taken by the accused and the Law Society were not raised in the authorities to which I have referred, those judgments are persuasive authority in favour of the proposition that if the Director or DPP practitioners are acting lawfully, the giving of advice in appropriate circumstances is capable of attracting the protection of legal professional privilege. As I have said, no authority to the contrary was cited.

In determining whether there is any basis upon which it can reasonably be said that the authorities to which I have referred do not apply to communications with the Director and DPP practitioners, regard must be had to the statutory context in which the Director functions. The statutory position of Director is established by s 4 of the SA Act. Pursuant to s 4(3), the Director must be a legal practitioner of at least seven years standing. Section 4(7)(a) provides that the Director must not engage in legal practice outside the duties of the office.

The Office of the Director is established by s 6. It consists of the Director and any persons assigned under the Government Management and Employment Act 1986 to work in that Office.

The DPP practitioners whose communications are in issue were legal practitioners employed by the Crown in the Attorney-General's Department. Those salaried practitioners were required to carry out lawful instructions given to them by the Director.

The relevant powers of the Director are set out in the following provisions of s 7 of the SA Act:

(a) to lay charges of indictable or summary offences against the law of the State;

(b) to prosecute indictable or summary offences against the law of the State;

(c) to claim and enforce, either on behalf of the Crown or other persons, civil remedies that arise out of, or are related to, prosecutions commenced by the Director;

(d) to take proceedings for or in relation to the confiscation of profits of crime;

(da) to institute civil proceedings for contempt of court;

(e) to enter a nolle prosequi or otherwise terminate a prosecution in appropriate cases;

(f) to grant immunity from prosecution in appropriate cases;

(g) to exercise appellate rights arising from proceedings of the kind referred to above;

(h) to carry out any other function assigned to the Director by regulation;

(i) to do anything incidental to the foregoing."

Subject to the power of the Attorney-General contained in s 9(2) to give directions and furnish guidelines to the Director in relation to the carrying out of the Director's functions, s 9(1) provides that the Director is entirely independent of direction or control by the Crown or any Minister or officer of the Crown. Section 10 requires the Commissioner to comply with any request from the Director to investigate or report on the investigation of any matter. Pursuant to Section 11, the Director may give directions or furnish guidelines to the Commissioner or other persons investigating or prosecuting offences on behalf of the Crown.

All parties accepted that the Director has been vested with the prosecutorial powers and functions formerly exercised by the Attorney-General. However, the Director's powers reach beyond the traditional prosecutorial powers to involvement in identified civil remedies and proceedings in connection with the confiscation of profits of crime. Significantly, the power contained in s 7(1)(c) is to claim and enforce civil remedies "either on behalf of the Crown or other persons". In granting such additional powers, in the absence of a clear indication to the contrary, the legislature must be taken to have contemplated that in appropriate circumstances the exercise of those powers would attract the principles of legal professional privilege. There is nothing in the SA Act inconsistent with that view. The Director and DPP practitioners are subject to the same professional standards as private practitioners and they owe the same duties to the Court. In that sense they are as independent as any other legal adviser. These are the safeguards to which Mason and Wilson JJ referred in Waterford.

A submission was developed by the accused to the effect that when the Director is exercising prosecutorial powers, in substance the Director stands in the shoes of the Attorney-General and is the Crown. Counsel argued that in those circumstances, the Director or DPP practitioners cannot be seen as legal advisers of the Commissioner or any other person or entity when carrying out the prosecutorial functions formerly carried out by the Attorney-General.

The Solicitor-General, who appeared for the Attorney-General, agreed that in exercising some of the statutory powers the Director stands in the shoes of the Crown. He submitted that when standing in the shoes of the Crown, the Director is effectively the client rather than the legal adviser and there is no reason in principle why a legal practitioner/client relationship could not exist between DPP practitioners and the Director. Similarly, provided the DPP practitioners are exercising a professional legal function, there is no reason in principle why the relationship between the Director and DPP practitioners should not give rise to legal professional privilege in appropriate factual circumstances. The Solicitor-General argued that analysed in this way, it will usually make no difference whether the Director is characterised as the client or as a practitioner having the Crown as a client.

There is no dispute that in South Australia, as in other States, the Attorney-General came to be vested with all the functions and powers vested in and exercised by the Attorney-General in England: Attorney-General v Adams [1966] SASR 129; Barton v R [1980] HCA 48; (1980) 147 CLR 75. When the statutory position of Director was established, the powers of the Attorney-General to present an Information at any criminal sessions of the Supreme or District Courts were conferred upon the Director: s 275 and 276 of the Criminal Law Consolidation Act 1935 ("the CLCA"). In exercising those powers, the Director stands in the shoes of the Attorney-General. However, it is necessary to bear in mind that the position of Director was created by statute and that, as the recipient of statutory powers, the Director must comply with the SA Act, the CLCA and any other legislation conferring powers upon the Director.

It is unnecessary to embark upon a detailed review of the history of the Office of the Attorney-General. In his paper The Attorney-General, Politics and the Judiciary (October 2000) 29 University of Western Australia Law Review 155, the former Chief Justice of South Australia LJ King QC provides a very helpful overview of the history of the Office.

While the Attorney-General is an adviser to the Crown, the history of the role of the Attorney-General tends to favour the view that, when exercising prosecutorial powers, the Attorney-General was regarded as the Crown. The Attorney-General was independent and did not take instructions from a client. In essence, for the purposes of legal professional privilege, the Attorney-General was the client. The Director stands in the shoes of the Attorney-General who was, for these purposes, the Crown. The Director is independent and is the client. On that basis, and subject to the impact of the duty of disclosure, I am unable to discern any reason in principle why, in appropriate circumstances, the necessary confidential relationship could not exist between the Director and DPP practitioners thereby giving rise to privileged communications: Austin. For example, in my view advice by a DPP practitioner to the Director concerning the likelihood of a conviction resulting from a prosecution would be privileged. Similarly, appropriate communications between a DPP practitioner acting on behalf of the Director and a third party would also attract the privilege: Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 246.

The alternative view is that when the Director is exercising prosecutorial powers, the Crown is the client and the Director acts as legal adviser. The Director has statutory authority to perform various functions, including prosecutorial functions and instructing practitioners who are acting for the Crown: Selway QC The Duties of Lawyers Acting for Government (1999) 10 Public Law Review 114 at 118. If that view is adopted, for the purposes of legal professional privilege the position of the Director would be the same regardless of whether prosecutorial powers or the powers contained in s 7(1)(c) were being exercised. Section s 7(1)(c) enables the Director to act on behalf of the Crown or other persons for the purposes of claiming and enforcing civil remedies. When exercising the powers contained in s 7(1)(c), the Director acts as a legal practitioner with a client. If that view is applied when the Director is exercising prosecutorial powers, in appropriate circumstances and subject to the impact of the duty of disclosure, in my opinion there is no reason in principle why the necessary confidential relationship could not exist with the Director or DPP practitioners.

At the heart of the submissions advanced by the accused, the Law Society and the Bar Association is the undisputed proposition that as an independent prosecutor, the Director acts in the public interest in ensuring that every accused receives a fair trial and that justice is done. It was said that such independence and underlying purpose are the antithesis of the confidentiality attaching to a legal practitioner/client relationship by reason of legal professional privilege. As part of the duty at common law to ensure that an accused person receives a fair trial, the Director and DPP practitioners are under a duty to disclose information relevant to the defence of an accused person ("the duty of disclosure"). That duty is of fundamental importance to the duty to ensure a fair trial. Counsel emphasised the view of the Supreme Court of Canada that "the fruits of the investigation which are in possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done": Stinchcombe v The Queen (1981) 68 CCC (3d) 1 at 7. It was said that as these obligations of fundamental importance are repugnant to the confidential nature of privileged communications, legal professional privilege is incapable of applying to communications that occur with the Director and DPP practitioners when those persons are carrying out prosecutorial functions. In addition, counsel contended that privilege is excluded by the statutory duty imposed on the prosecution by s 104 of the Summary Procedure Act 1921 ("the SPA") to disclose to the Magistrates' Court all material relevant to a charge for the purposes of a preliminary examination.

As to the effect of s 104, there is no doubt that legal professional privilege can be abrogated by statute. The Solicitor-General submitted that it is implicit in the statutory duty of disclosure imposed by s 104 of the SPA that legal professional privilege does not apply to the material that s 104 requires the prosecution to file in court. However, in my view the privilege is so fundamental and entrenched that, in the absence of express abrogation, the Court should not readily infer that the legislature intended to deprive a party of the right to rely upon the privilege.

Section 104 requires the prosecution to file in the Magistrates' Court all the statements and copies of documents on which the prosecution intends to rely together with a document describing any other evidentiary material on which the prosecution relies as tending to establish the guilt of an accused. In addition, s 104(1)(a)(iv) directs that the prosecution place before the Court "any other material relevant to the charge that is available to the prosecution". In Goldsmith v Newman (1992) 59 SASR 404 King CJ, with whom Duggan J agreed, held that the word "relevant" in sub-paragraph (iv) excludes material which merely affects the credit of a witness. His Honour included in the category of matters relevant only to the credit of a witness the fact that a witness had been granted immunity from prosecution. He regarded sub-paragraph (iv) as "no more than a statutory recognition of the well-recognised responsibility of the prosecution to place before the court all relevant and admissible material available to it irrespective of whether it assists the prosecution case" (409).

As I have said, the duty of disclosure is a duty imposed by the common law. On the view of s 104 taken in Goldsmith v Newman, the statutory duty imposed on the prosecution by that section is a narrower duty than the duty of disclosure. For example, in my opinion the duty of disclosure requires the prosecution to disclose the fact that a witness has been granted an immunity from prosecution. In these circumstances, if the duty of disclosure does not "prevail" over legal professional privilege by some means consistent with principle, in the absence of a plainly expressed intention in the SPA to override legal professional privilege, in my opinion an intention to do so should not be inferred: The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49.

In considering the impact of the duty of disclosure, it is not necessary to attempt to analyse the "duty" in the legal sense or to consider the question whether the duty is owed to an accused, the public or the court. These issues were helpfully discussed by Smith J in Tache v Abboud [2002] VSC 42. Similarly, I have not attempted to define the precise contents and limits of the duty. For present purposes I have proceeded on the basis that it is clear that a prosecutor owes a duty at common law to ensure a fair trial and that such a duty encompasses the duty of disclosure which requires disclosure to an accused of material or information that might be relevant to an accused's defence or might assist an accused in defending the prosecution ("relevant information").

The duty of disclosure stands in stark contrast to the duty of confidentiality enforced by legal professional privilege. As the privilege is that of the client, a legal practitioner is not at liberty to disclose a privileged communication unless the privilege is waived by the client. This rule applies notwithstanding the fact that the information contained in the privileged communication is relevant to the defence of an accused person in a criminal trial: Carter v The Managing Partner, Northmore Hale Davy & Leake and Others (1995) 183 CLR 121.

The decision of the majority of the High Court in Carter well demonstrates the dominant position occupied by legal professional privilege in the administration of justice. In Carter the appellant was charged with conspiracy to defraud. He sought production from a third party of documents relevant to his defence. The documents were the subject of legal professional privilege and privilege was not waived by the third party. Notwithstanding the public interest favouring disclosure to the appellant of material relevant to his defence, the majority held that the material was protected from disclosure by reason of legal professional privilege. Deane J made the point, subsequently confirmed in Esso, that legal professional privilege is itself the outcome of a balancing process between competing public interests. His Honour said (133):

"Where legal professional privilege attaches, there is no question of balancing the considerations favouring the protection of confidentiality against any considerations favouring disclosure in the circumstances of the particular case. The privilege itself represents the outcome of such a balancing process and reflects the common law's verdict that the considerations favouring the 'perfect security' of communications and documents protected by the privilege must prevail."

The Director initially submitted that legal professional privilege applies notwithstanding possession of relevant information which should be disclosed pursuant to the duty of disclosure, but readily proffered an assurance that the Director will always waive privilege if the privileged communication contains relevant information. If the Director is the client, the privilege belongs to the Director and can be waived by the Director. If the Crown is the client, implicit in the prosecutorial functions exercised by the Director is the right of the Director to waive privilege on behalf of the Crown.

Counsel for the Director acknowledged that, the assurance having been given, if an unusual circumstance arose in which the Director felt obliged not to waive privilege, that fact would be made known to both the Court and the accused. From a practical point of view, therefore, regardless of whether the Director or the Crown is the client, the end result of disclosure in accordance with the duty of disclosure is achieved or, in the unusual case, the fact that disclosure has not been made is known. However, if the Commissioner or another government department is the client, the privilege will belong to the Commissioner or such government department and the Director is not able to waive privilege unless instructed to do so by the client. In addition, the Director may not be in possession of the relevant information. The implications of these situations are discussed later in these reasons.

The Solicitor-General readily conceded that legal professional privilege "cannot sensibly apply to any communication, or to the results of any communication, where the prosecutor is under a duty to disclose the material whether that duty arises at common law or by statute". He submitted that information and material held by the prosecution will not be subject to legal professional privilege if there is a duty to produce it or if production is ordered. Once the information is relevant and disclosure is required, the information ceases to be confidential. Faced with the Attorney-General's concession, counsel for the Director reluctantly adopted that concession.

From the point of view of the public interest in the administration of justice there is much to be said in favour of the concession by the Attorney-General. The role of the prosecutor in ensuring a fair trial is of fundamental importance to the administration of criminal justice. Central to fulfilment of that role is compliance with the duty of disclosure. Accordingly, it is an appealing proposition that if the Director is the client for these purposes, the Director should not be able to withhold relevant information on the basis of legal professional privilege without a review and balancing process being undertaken by the Court such as that which occurs when a claim for confidentiality based on public interest immunity is advanced. If the Director is the adviser, those seeking advice would always know that if the information contained in an otherwise privileged communication or the fact of the communication itself is relevant or becomes relevant, the Director will be under a duty to disclose the information or fact of the communication and that duty will "prevail". Considerations of public interest immunity would not be affected. If an accused has a privileged communication with the Director or DPP practitioner, the accused will be entitled to maintain the privilege: R v Reci [1997] SASC 6802; (1997) 70 SASR 78.

The observations of Toohey J in his dissenting judgment in Carter are significant (147 and 154):

"Important, indeed entrenched as legal professional privilege is, it exists to serve a purpose, that is to promote the public interest by assisting and enhancing the administration of justice. It is not an end in itself.

While legal professional privilege is well established as the product of a balancing exercise between competing public interests, it may seem somewhat paradoxical that 'the perfect administration of justice' should accord priority to confidentiality of disclosures over the interests of a fair trial, particularly where an accused is in jeopardy in a criminal trial for a serious offence."

In my view it is also pertinent to note that the "balancing exercise" which resulted in a "verdict" in favour of legal professional privilege occurred in the 16th century: R v Derby Magistrates' Court Ex parte B [1995] UKHL 18; [1996] 1 AC 487, Lord Taylor 508. The existence and importance of the duty of disclosure were not recognised until much later.

However, notwithstanding the public interest in favour of disclosure and the appeal which it holds, there are a number of difficulties facing acceptance of the concession by the Attorney-General. First, there is no room for a suggestion that the Court should undertake a process of balancing the competing public interests. As the binding judgments to which I have referred demonstrate, that process has already been undertaken and the "verdict" reached in favour of privilege.

Secondly, the question as to whether a communication is privileged is determined by reference to the facts that exist at the time of the communication. The requirement of disclosure may not exist at the same time. If relevant information is received after the institution of a criminal prosecution, as the receipt coincides with the requirement of disclosure, it can be said that the requisite degree of confidentiality is lacking and that the information conveyed in the communication is beyond the reach of legal professional privilege. In such circumstances, as the Director is under a duty to disclose the relevant information at the time that the information is received, and as the Director intends to comply with that duty, the Director does not intend that the information will remain confidential.

In my opinion, this argument is sound. If receipt of the relevant information in an otherwise privileged communication coincides with the requirement of disclosure, legal professional privilege does not apply to the information received in the communication because the Director does not intend that the information will be confidential.

A difficulty remains, however, where the requirement of disclosure does not coincide with receipt of the relevant information. The duty of disclosure only exists in the context of prosecution proceedings. The duty is not "activated" until the information becomes relevant information in the context of such proceedings. Information is frequently received in a privileged communication before a prosecution is commenced and before it is known that the information is relevant information for disclosure purposes. In those situations, as the communication is privileged at the outset, the principles emphatically endorsed by the High Court appear to pose an insurmountable obstacle to determining that the information ceases to be confidential or to regarding the circumstances as an exception to the application of legal professional privilege which is created at the time that the duty of disclosure is "activated".

When the existing "exceptions" are analysed, it is readily apparent that they are not, in reality, exceptions. This point was made in R v Cox and Railton (1884) 14 QBD 1884. Communications had occurred with a solicitor as a step preparatory to the commission of the criminal offence of conspiracy to defraud. In determining that privilege did not apply, the Court of ten Justices held that if a client conspires with a solicitor to commit a criminal offence, or with a criminal object in view deceives the solicitor, the client does not consult the adviser professionally and no privilege attaches to the communications. The Court approved the following statement of Lord Cranworth in Follett v Jefferyes 1 Sim (NS) 1:

"It is not accurate to speak of cases of fraud contrived by the client and solicitor, in concert together, as cases of exception to the general rule. They are cases not coming within the rule itself; for the rule does not apply to all which passes between a client and his solicitor, but only to what passes between them in professional confidence, and no Court can permit it to be said that the contriving of a fraud can form part of the professional occupation of an attorney or solicitor."

Numerous authorities have confirmed that circumstances which are often referred to as exceptions are properly seen as exclusions. In Carter, Deane J referred to communications beyond the reach of legal professional privilege such as those occurring for the purpose of crime or abuse of statutory powers. His Honour continued (134 and 135):

"For present purposes, a critical characteristic of those 'exceptions' is that they are exclusions from the reach of legal professional privilege rather than exceptions to the scope of the protection which it affords. They are directed to circumstances in which the privilege does not attach with the result that the particular communication or document is not protected by legal professional privilege at all. They are not directed to circumstances in which, notwithstanding that legal professional privilege does attach, the courts will override the privilege and order that the privileged document be produced for inspection or that the privileged communication be disclosed. Nor, in accordance with what has been said above, are they directed to identifying circumstances in which the courts will embark upon a balancing process to determine whether the considerations favouring disclosure outweigh the considerations favouring confidentiality."

Later in his judgment, Deane J addressed the proposition advanced by Caulfield J in R v Barton [1973] 1 WLR 115 that no privilege "attaches" to documents which might assist the defence of an accused person. His Honour expressed the view that such circumstances cannot properly be seen as equating with one or other of the recognised exclusions which preclude communications from coming within the ambit of legal professional privilege. His Honour continued (137):

"As has been said, those recognised exclusions do not defeat the rationale of legal professional privilege or undermine the protection of the confidentiality of communications or documents to which the privilege attaches. They operate only if the relevant circumstances exist at the time the relevant communication or document is made or comes into existence. If those circumstances exist at that time, there will simply be no privilege. If they do not exist at that time, the relevant exclusion is spent. Obviously, it would ordinarily be impossible to say at that time whether a particular communication or document might 'help to further the defence of an accused man' on some subsequent criminal trial. That being so, it would seem that Caulfield J's statement that no privilege 'attaches' must be understood as meaning not that legal professional privilege does not attach at all to the relevant communications or documents but that, notwithstanding that it has attached, it will be unavailing if and wherever the designated circumstances might subsequently arise. That means that the qualification would, if accepted, conflict with the rationale and undermine the efficacy of legal professional privilege by creating a necessarily unpredictable gap in the general protection which it accords to documents to which it has attached. It would convert an unqualified and conclusive privilege into a qualified and provisional one." (my emphasis)

McHugh J also dealt with the ruling of Caulfield J in Barton. His Honour observed that the ruling is inconsistent with the terms in which the doctrine of legal professional privilege has been formulated and applied by the High Court. His Honour continued (163):

"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 [(1987) [1987] HCA 25; 163 CLR 54 at 64-65] 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.

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."

In my opinion, these observations well demonstrate the difficulties facing the proposition that an "exception" exists such that a communication privileged at the time that it occurred subsequently ceases to be privileged or loses the protection afforded by the privilege when the duty of disclosure is "activated". Such an approach would also be in conflict with what Lord Taylor described in R v Derby Magistrates' Court as the "long established rule that a document protected by privilege continues to be protected so long as the privilege is not waived by the client: once privileged, always privileged" (503). Later in his judgment Lord Taylor rejected the approach approved in R v Ataou [1998] QB 798 that an accused could obtain access to a privileged communication by demonstrating that the "client" could no longer reasonably be regarded as having a recognisable interest in asserting the privilege. Having observed that such an approach is in conflict with the rule that privilege continues until it is waived by the client, Lord Taylor continued (503):

"It also goes against the view that the privilege is the same whether the documents are sought for the purpose of civil or criminal proceedings, and whether by the prosecution or the defence, and that the refusal of the client to waive his privilege, for whatever reason, or for no reason, cannot be questioned or investigated by the court."

In R v Derby Magistrates' Court the House of Lords overruled the decisions in Barton and Ataou.

The conflict between the maintenance of confidentiality and the duty of disclosure gives rise to consideration of whether waiver of privilege is "imputed by operation of law".

In a joint judgment in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 7, Gleeson CJ, Gaudron, Gummow and Callinan JJ identified inconsistency between the conduct of the client entitled to the benefit of the privilege and maintenance of confidentiality as the basis of waiver which is imputed by operation of law. Their Honours said [29]:

"What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."

The conduct in question is the conduct of the client entitled to maintain the confidentiality. Waiver is imputed at a point when that conduct becomes inconsistent with the maintenance of the confidentiality. Underlying the relevance of the conduct is the concept that, in view of the conduct of the client, it would be unfair for the client to maintain the privilege: Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 95-97.

In the absence of conduct by the Director such as disclosure of part only of otherwise privileged communications about a particular topic, the question is whether there is any conduct on the part of the Director which gives rise to an inconsistency between that conduct and the maintenance of the confidentiality.

When the Director institutes or maintains a prosecution, the Director does so in the knowledge that the prosecution carries with it an essential feature, namely, the duty of disclosure. The Director is aware that the duty is inconsistent with the maintenance of confidentiality in respect of relevant information. In those circumstances, consistent with principle, it can be said with considerable force that the conduct of the Director as the privilege holder in instituting or maintaining a prosecution is inconsistent with the maintenance of confidentiality in respect of relevant information which would otherwise be disclosed. The relevant conduct is the institution or maintenance of a prosecution. In such circumstances, it can be said that it is unfair for the Director to both institute or maintain a prosecution and to maintain the privilege in breach of the duty of disclosure that accompanies the prosecution. In the words of the joint judgment in Mann v Carnell, "the law recognises the inconsistency and determines its consequences" [29].

In my opinion, consistently with the principle identified in Mann v Carnell, at the point when the duty of disclosure requires disclosure of relevant information, if disclosure of the relevant information requires disclosure of a privileged communication, the conduct of the Director in instituting or maintaining a prosecution becomes inconsistent with the maintenance of the confidentiality of the communication by reason of legal professional privilege. In those circumstances, in my view it would be unfair for the Director to maintain the privilege in respect of the communication. Waiver of privilege is, therefore, imputed. In that sense the duty of disclosure "prevails" over legal professional privilege.

I have identified imputed waiver as applying to information contained in a privileged communication. In this context it is necessary to distinguish between discovery in civil proceedings and the duty of disclosure. Discovery in civil proceedings is concerned with the disclosure of relevant documents. There is no right of discovery in criminal proceedings. The duty of disclosure encompasses disclosure and production of documents if the documents themselves are relevant information. However, the duty is not limited to requiring disclosure of relevant documents. It extends to relevant information. In some circumstances, disclosure of relevant information will require production of the document in which that information is recorded. However, it will not always be necessary to produce such a document in order to comply with the duty of disclosure. For example, if relevant information is received orally by an investigator who reports in a privileged written communication to the Director seeking advice, the duty is likely to be discharged by disclosure of the relevant information to the accused without production of the report. Similarly, it may not be necessary to produce notes made by DPP practitioners recording the receipt of relevant information in a privileged communication in order to comply with the duty. Whether such a report on notes should be produced for other reasons is an issue that need not be discussed.

The conclusion that I have reached gives effect to the compelling reasons founded in the interests of the proper and fair administration of justice why, in the sense I have discussed, the duty to disclose relevant information to an accused charged with a criminal offence should "prevail" over legal professional privilege. The public interest in a fair trial and in ensuring that no innocent person is convicted of a crime is very powerful. That public interest is served by imputing waiver when the duty of disclosure exists.

As mentioned earlier in these reasons, the Director is not always the privilege holder. In some situations the Commissioner or another government department is the client and privilege holder. While it might be possible to envisage circumstances in which the principles that lead to a finding of a lack of confidentiality or to imputed waiver by the Director can be applied to the Commissioner or government department, in many circumstances such reasoning is unlikely to be applicable. There are likely to be circumstances in which privilege in the hands of the Commissioner or government department will "prevail" over the duty of disclosure.

It is unnecessary for me to explore this issue. Counsel did not advert to the question of the Commissioner's practice concerning waiver of privilege should the Commissioner be the client. As a consequence, I have not received any assurance from the Commissioner that the Commissioner will follow the same policy as the Director concerning waiver if disclosure would otherwise be required. However, in the proceedings before me I have assumed that the Commissioner has followed and will continue to follow the same policy as the Director. I have been given an undertaking by the Director that I will be advised if my assumption is incorrect.

It is also important to emphasise two further matters. First, the discussion in these reasons concerning the conflict between the duty of disclosure and the confidentiality attaching to privileged communications obviously assumes that the relevant information was received during a privileged communication. By way of contrast, if an investigating police officer receives relevant information during an investigation in a communication that does not attract legal professional privilege, that information must be disclosed to an accused pursuant to the duty of disclosure. If the investigating officer subsequently has a privileged communication with the Director or DPP practitioner concerning such information, while the content of that privileged communication might be protected from disclosure, the relevant information previously received is not protected from disclosure.

Secondly, it is of fundamental importance to the administration of criminal justice that investigating authorities and the Director comply with duty of disclosure. To date the criminal courts and accused persons have proceeded on the assumption that both the Director and the Commissioner will comply with that duty. In future trials, the criminal courts and accused persons are entitled to proceed on the same assumption unless advised otherwise by the Director or the Commissioner.

As I have said, if information that would otherwise be disclosed is withheld by reason of legal professional privilege, that fact must be made known to the court and to the accused. The duty to ensure a fair trial requires nothing less. The court will then be in a position to determine whether the information should be examined by the court and whether the failure to disclose the information might result in an unfair trial. As Doyle CJ observed in a different context in Reci, "the court will be alert to prevent the prosecution manipulating legal professional privilege to escape its duty of disclosure ..." (104). Those words apply equally to the police and other investigating authorities. If failure to disclose will result in an unfair trial, the court has ample powers to prevent an unfair trial proceeding: Adams.

With respect to each category of document over which legal professional privilege is claimed, it is necessary to carefully examine the role and function being performed by the Director or DPP practitioner at the time of the communications recorded in the documents and to assess whether the necessary legal practitioner/client relationship existed. It is also necessary to consider whether the function or power being exercised at the time of the communication was authorised by s 7 of the SA Act or any other legislation. In this regard, I respectfully agree with the judgment of Merkel J in Health Insurance Commission v Freeman. In particular, in my opinion the Director is empowered by the incidental power contained in s 7(1)(i) to give legal advice to the Commissioner through the Commissioner's investigating officers concerning matters arising during the investigation of criminal offences for which the Director will bear the responsibility of prosecuting if charges are laid. The fact that the Director will bear responsibility for prosecuting provides the sufficient nexus between the investigation and a statutory function of the Director. Similarly, in my view the Director is also empowered to negotiate with an accused and to interview witnesses when criminal proceedings are anticipated or have been commenced.

It follows from these reasons that, in my opinion, the Director and DPP practitioners were authorised by the legislation to engage in the activities during which the communications occurred that fall within the four categories identified earlier in these reasons. In my view, legal professional privilege is capable of applying to communications in each category. As I have said, it is necessary to examine the circumstances in which each communication occurred in order to determine whether legal professional privilege applies.

The first general category involved communications between the Director or DPP practitioners and the legal advisers of Vlassakis concerning the pleas of guilty and the provision of information by Vlassakis to the police. Privilege was waived by both the Director and Vlassakis in respect of written communications with the exception of those passages which relate to the security of Vlassakis. The Director continued to maintain the claim for privilege in respect of notes made by DPP practitioners of oral communications with Vlassakis' legal advisers. However, regardless of imputed waiver discussed earlier in these reasons, as privilege had been waived in respect of written communications on the same topics, I was of the view that waiver should be imputed in respect of oral communications: Mann v Carnell. For those reasons, subject to excision of entries recording discussions concerning the security of Mr Vlassakis, I ordered that the Director disclose a number of the notes of oral communications. Having inspected the notes, I declined to order production of those notes which were irrelevant and of no assistance to the accused. A decision as to whether I would require disclosure of communications concerning the security of Vlassakis was deferred until Vlassakis was giving evidence.

As to written communications between the Director and investigating police officers concerning Vlassakis and the investigations generally, having examined the documents I was satisfied that the claim for legal professional privilege was made out. Regardless of imputed waiver, I was satisfied that the documents were irrelevant. As disclosure of the documents to the accused would not have assisted the accused, I declined to order production.

The fourth category of documents comprised notes made by DPP practitioners of communications with prosecution witnesses during proofing sessions. In my view those communications occurred in privileged circumstances: TPC v Sterling 246. Bearing in mind the undertaking given by the Director that in respect of information received in those privileged communications the Director has complied and will continue to comply with the duty of disclosure by waiving privilege, I declined to inspect the notes and upheld the Director's claim.