R v BUNTING & OTHERS No. SCCRM-01-205 [2002] SASC 412 - SASC 2002 case summary — Zoe

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

BUNTING & OTHERS No. SCCRM-01-205 \[2002\] SASC 412

Legislation Cited (12)

Director of Public Prosecutions Act 1991(SA)s 4, s

Criminal Law Consolidation Act 1935(SA)

Summary Procedure Act 1921

Public Prosecutions Act 1983

Services Act 1975

Government Management and Employment Act 1986

Criminal Law Consolidation Act 1935(SA)

Summary Procedure Act 1921

Services Act 1975

Director of Public Prosecutions Act 1991(SA)s 4, s

Public Prosecutions Act 1983

Government Management and Employment Act 1986

Cases Cited (22)

R v BUNTING & OTHERS No. SCCRM-01-205 [2002] SASC 412 (17 December 2002)

Director of Public Prosecutions Act 1983 (Cth) s 6(1)(n), s 9(11), s 32;

Director of Public Prosecutions Act 1991 (SA) s 4, s 6, s 7, s 9, s 10, s 11;

Criminal Law Consolidation Act 1935 (SA) ;

Summary Procedure Act 1921 s 104, referred to.

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685;

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

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54;

Health Insurance Commission v Freeman [1998] FCA 1340; (1998) 158 ALR 267;

Attorney-General v Adams [1966] SASR 129;

Barton v R [1980] HCA 48; (1980) 147 CLR 75;

Trade Practices Commission v Sterling ; ;

The rationale was confirmed by Gleeson CJ, Gaudron and Gummow JJ in a joint judgment in Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 [35]:

"Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v Campbell [(1983) [1983] HCA 39; 153 CLR 52], and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth, Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. [(1987) [1987] HCA 25; 163 CLR 54 at 64-65. See also Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128, per Brennan J; at 134, per Deane J; at 147, per Toohey J; at 163, per McHugh J.] As Deane J expressed it in Baker v Campbell [(1983) [1983] HCA 39; 153 CLR 52 at 114], a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations." (my emphasis)

As is apparent from the passages cited, at the heart of the doctrine is the legal practitioner/client relationship and the public interest in protecting confidential communications between the practitioner and the client. The privilege attaches to confidential communications within such a relationship notwithstanding that the practitioner is a salaried employee: Attorney-General (N.T.) v Kearney [1985] HCA 60; (1985) 158 CLR 500; Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54.

The significance of the statutory context in which the Commonwealth Director operates was considered by the Full Court of the Federal Court in Grofam Pty Ltd v Australian and New Zealand Banking Group Ltd [1993] FCA 501; (1993) 117 ALR 669. The applicants took proceedings alleging that a search warrant was unlawful. In the course of those proceedings an officer of the Australian Federal Police disclosed the existence of a number of documents in respect of which the officer claimed exemption from production on the ground of legal professional privilege. Some of the documents were said to have been brought into existence by officers of the Australian Federal Police or the Australian Taxation Office for the sole purpose of obtaining legal advice and assistance from the Commonwealth Director in relation to an investigation of the affairs of the applicants. Other documents were said to have been brought into existence solely with a view to the Commonwealth Director giving legal advice and assistance to officers of either or both the Australian Taxation Office and the Australian Federal Police. A third category of documents was described as having been brought into existence solely for the purpose of obtaining or giving legal advice and assistance in relation to the presentation of information to a magistrate in support of various search warrants and the drawing of those warrants. The applicant claimed that, as a matter of construction of the Commonwealth Act, at the time the documents were brought into existence the Commonwealth Director and legally qualified members of the staff of that office were incapable of giving legal advice to any of the respondents.

(1976) 135 CLR 674

(1999) 201 CLR 49

(1987) 163 CLR 54

(1998) 158 ALR 267

(1980) 147 CLR 75

(1979) 36 FLR 244

(1999) 201 CLR 1

(1995) 185 CLR 83

(1995) 183 CLR 121

(1997) 70 SASR 78

(1985) 158 CLR 500

(1986) 67 ALR 616

(1986) 67 ALR 585

(1993) 117 ALR 669

(1992) 59 SASR 404

(1993) 43 FCR 408

R v BUNTING & OTHERS No. SCCRM-01-205 [2002] SASC 412

At a glance

Court

Decision date

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Catchwords

Source

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Judgment (98 paragraphs)

Parties

Legislation Cited (12)

Cases Cited (22)

R v BUNTING & OTHERS No. SCCRM-01-205 [2002] SASC 412 (17 December 2002)