HIGH COURT OF AUSTRALIA - GENERAL DIVISION
COMMISSIONER, AUSTRALIAN FEDERAL POLICE and ANOTHER v PROPEND FINANCE PTY LTD
Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
7 February 1997 - Canberra
Kirby J In this appeal and cross-appeal from the Full Court of the Federal Court of Australia, [1] special leave was granted to permit the consideration of two questions of law:
- 1. Whether legal professional privilege may apply to a communication in a copy document when no privilege attaches to the original; and
- 2. Whether hearsay material may be relied on to displace legal professional privilege where that privilege is claimed for a communication in the form of a document alleged to have been made in furtherance of an illegal or improper purpose.
Allowing an appeal from a single judge of the Federal Court [2] the Full Court determined the questions adversely to the police who now appeal to this court.
A challenge to search warrants and access to documents
The proceedings arise out of an allegation that certain companies in partnership had made false claims for deductions from income declared for income tax. The deductions were claimed in respect of the costs of testing of garments allegedly performed by an overseas company. It is suggested that only a small part of the moneys remitted for garment testing actually went to that company. The balance is said to have found its way to companies in Luxembourg and the Cook Islands, thence to a local company, Propend Finance Pty Ltd, which was the financier of the corporate partnership. The prosecution claims that a solicitor was a director of the financier and of the corporate recipient of funds in Luxembourg and the Cook Islands. By the round-robin arrangement described, it is alleged that the moneys sent overseas found their way back to Australia in the form of a loan to the financier under an agreement settled by the solicitor. The police, represented by the appellant, the Commissioner of Australian Federal Police, came to suspect that offences had been committed against the Crimes Act 1914 (Cth), ss 86(1)(e) and 86A , involving income tax fraud. Offences against ss 5 and 13 of the Crimes (Taxation Offences) Act 1980 (Cth) were also suspected.
In September 1993, members of the Australian Federal Police obtained nine search warrants pursuant to s 10 of the Crimes Act 1914 (Cth). These warrants, on their face, authorised nominated police officers to search residential and office premises connected with the respondents who were, in turn, connected with the companies allegedly involved in the round-robin. One of the premises so nominated was the offices of the solicitor. The search of those offices resulted in a number of challenges to the validity of the search warrant and the lawfulness of its execution. Some of these challenges were rejected by Davies J. [3] One of them was the subject of earlier proceedings before the Full Court of the Federal Court, differently constituted. [4] Davies J rejected all of the arguments contesting the initial validity of the warrants and the manner of their execution. The correctness of those decisions is not now in question.
In respect of documents for which legal professional privilege was claimed, the police conformed to a practice established by agreement with the Law Council of Australia as to the execution of search warrants on lawyers ' premises. Documents which had been seized and which fell within a claim of legal professional privilege were lodged, ultimately, in the registry of the Federal Court. Undertakings were given by the police not to inspect those documents until the resolution of all of the respondents ' legal challenges. Relevantly, those challenges claimed a return to the solicitor of the documents in respect of which legal professional privilege was claimed by him on behalf of his clients.
Decisions in the Federal Court
The point concerning legal professional privilege, now in issue, arose before Davies J in this way. The respondents (being relevantly the solicitor and the clients) prepared a schedule of documents in respect of which they claimed privilege. A group of these comprised copies of documents the originals of which would not themselves be privileged in the possession of the clients. The respondents argued that legal professional privilege attached to the communications in those copy documents because the copies had been made for the sole purpose of obtaining legal advice for the clients in connection with anticipated litigation. There was no evidence or suggestion that the documents were in any way marked, annotated or organised in ways different from the non privileged originals. The police asserted that privilege did not, in law, attach to the copies as such. They contended that it did not attach because the original documents were created in furtherance of the illegal schemes the subject of the anticipated criminal charges. The latter contention was expressed, otherwise, that, if privilege did in law attach, it was displaced by the " exception " applicable to communications in the furtherance of a crime or fraud. [5] In this way the two issues now before this court were presented for decision.
Davies J upheld the police submission in respect of those communications constituted by copy documents. [6] However he left it to the parties, a judge, registrar, or other agreed independent person to determine which of the remaining documents were prima facie entitled to legal professional privilege and which were not. [7] As to these, he was obliged to resolve the suggested taint of illegality or fraud which either prevented the privilege attaching or resulted in its loss. Contrary to the submissions of the respondents, Davis J held that there had been " a sufficient particularisation of and verification of the allegations of crimes " under the Crimes Act 1914 (Cth) to " overcome the privilege which would otherwise attach " . [8] As to the suspected offences against the Crimes (Taxation Offences) Act 1980 (Cth) Davies J accepted that there was no evidence tending to show criminal involvement of the respondents. In respect of this category of documents, Davies J rejected the contention that the privilege, which would otherwise attach, had been lost.
The respondents ' appeal wholly succeeded on the point concerning the communications with the solicitor by way of copy documents. All Judges comprising the Full Federal Court (Beaumont, [9] Hill [10] and Lindgren JJ) [11] , for different reasons, rejected any general proposition that, in law, legal professional privilege could not attach to communications by a client with a lawyer by way of the copy of documents which were not themselves privileged. All held that such communications could, depending on the circumstances in which they came into existence, be entitled to the privilege if the copies of documents by which the communication was effected were shown to have been made for the sole purpose of obtaining legal advice. Lindgren J was inclined to confine the privilege to copy documents only if inspection of them would reveal the confidential communication or line of thought of the client or the lawyer which was privileged from disclosure. [12]
All Judges in the Full Court agreed that, in respect of communications by way of other documents which were claimed to have forfeited or lost legal professional privilege, because created or used in the furtherance of a crime or fraud, the primary Judge had erred in relying, in effect, on the police allegation of such wrongdoing without having any admissible evidence to support it. [13] Accordingly, to that extent, the Full Court set aside Davies J ' s orders and directed that there should be a fresh hearing on the claims for privilege. Those are the orders of the Full Court which are under challenge in the present appeal and cross-appeal.
Legal professional privilege and its importance
I address myself first to the question concerning the suggestion that legal professional privilege may attach to communications by way of copies of documents held by lawyers for the sole purpose of giving legal advice, where the original material would not itself be privileged in the hands of the client or some other person. A number of considerations inform my approach: 1. The point in issue is the subject of a great deal of conflicting judicial, academic and other legal opinion. Many (but by no means all) of the relevant English and Australian cases are collected in a helpful appendix annexed to the reasons of Lindgren J in the Full Federal Court. [14] It is not suggested that the point now before us is determined by earlier authority binding on this court. The respondents (including the solicitor) urged that the logic of this court ' s decision in Grant v Downs, [15] by focusing attention on the purpose for which the particular communication was brought into existence, provided the answer to the first question in the form of a simple test, sufficient in itself. If the " sole purpose " for creating the copies was to communicate them in order to secure legal advice, then the copies had an existence and a relevant " sole purpose " of their own, separate from the originals. [16] By the common law, they were therefore entitled to legal professional privilege under the authority of this court ' s decision. But nowhere in Grant v Downs did the court address its attention to the precise controversy now before it. In the absence of a clear statutory provision or of a binding rule of the common law, this court must resolve the problem now presented by reference to relevant decided authority, extended by logic and analogous reasoning, and to legal principle and policy. [17] 2. The starting point for the resolution of what the law is, must be a recognition of the importance, for the proper administration of justice, of having all relevant evidence available to the decision-maker. [18] This is as true in the investigation by police of suspected crime as it is in the conduct of pre-trial and trial proceedings, criminal and civil. Especially in the proof of crimes of a complex character, the facility to have access to relevant contemporaneous materials, is an extremely important one to confirm or dispel suspicion on the part of police and, where confirmed, to assist in the accurate proof of the offence to a court of law. Increasingly, in recent years, including, to some extent, in criminal proceedings, the Australian legal system has moved away from trial by ambush. The limits imposed by the common law upon essential procedural facilities such as search warrants, discovery, subpoenas, etc, are generally to be fixed in such a way as not unduly to impede the beneficial operation of these facilities where applicable. [19] A realisation of this consideration has contributed to a tendency in Australia to define narrowly the applicability of legal professional privilege. [20] Indeed, it has been suggested that a brake on the application of legal professional privilege is needed to prevent its operation bringing the law into " disrepute " , [21] principally because it frustrates access to communications which would otherwise help courts to determine, with accuracy and efficiency, where the truth lies in disputed matters. 3. Where the power to secure access to documents is provided by or under a statute, the limitations upon the right of access thereby conferred are any that have been expressed by, or are implied in, the legislative grant of power. The common law principles governing the ambit of legal professional privilege may be over-ridden by the legislative grant of power. Each statutory provision must be construed according to its own language and to achieve its expressed purposes. Sometimes, legislation has been held to indicate a purpose of extinguishing legal professional privilege. [22] But in respect of s 10 of the Crimes Act 1914 (Cth), which is here in issue, a majority of this court held that the Act did not manifest a legislative purpose to oust the privilege, so important is it. [23] Any such ouster must be made plain because of the high public interest which the privilege defends. This principle, and the decision which supports it, were not called into question in these proceedings. 4. The fundamental basis of legal professional privilege, which has been upheld by the common law since at least the sixteenth century, has been variously described. Early cases suggested that it belonged to a solicitor and derived from his honour as a " professional man and a gentleman " . [24] However, this explanation gave way to the current understanding that the privilege belongs to the client. It protects the client ' s interests; but also the interests of the entire community in the proper administration of justice. In some jurisdictions of the common law, notably England, the doctrine has, at least until lately, been seen as no more than a rule of evidence. [25] However, in other jurisdictions, it is described as resting upon a more fundamental basis. In Canada it has been suggested that, in criminal proceedings at least, its character may now be derived from the Canadian Charter of Rights and Freedoms, which guarantees to accused persons access to counsel. [26] It has therefore been characterised as a basic civil right. [27] Similar language has been used in New Zealand. [28] In this court, the language has been, if anything, even more emphatic. In Attorney-General (NT) v Maurice [29] Deane J described the doctrine as " a substantive general principle of the common law and not a mere rule of evidence " . It is " of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law " . It defends the right of the individual to consult a lawyer and that is " a bulwark against tyranny and oppression " . For these reasons it is not " to be sacrificed even to promote the search for justice or truth in the individual case " . [30] No more vivid illustration of the strength of the principle in this country, and of its rigorous application by this Court could be found than in Carter v Northmore Hale Davy & Leake. [31] A practical consideration called to notice by McHugh J in Carter needs to be kept in mind. A great deal of material in the possession of legal advisers (and clients) would not be admissible at common law as hearsay. But, under legislation for the admission of business records and other documentary evidence now applicable in most Australian jurisdictions, it would be admissible in defined cases. If that legislation were available, it might be necessary to call the legal adviser or some other person, to give evidence concerning the fact or matter referred to in the communication. That, in turn, could open up the nature and existence of the communication which would display the secret, contrary to the client ' s wishes and interests. 5. Once the doctrine applies and is not excluded by the various derogations and exceptions recognised by the common law, it attaches to the communications concerned. No further balancing of public interests, for example between that of protecting the privilege and that of securing the truth, is either necessary or possible. [32] Legal professional privilege is itself the product of a balancing exercise between competing public interests. The derogations and exceptions are sufficient to express the competing public interests. [33] Thus the search, where the doctrine is invoked, concerns solely whether, given its definition, it applies to the communications in question or not. 6. Various reasons of a practical character have been suggested as to why the common law developed such a strong principle which would be " accorded paramountcy over the public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence " . [34] Many of these reasons refer to the need to provide to every person a protected zone for completely candid communication with a lawyer concerning civil or criminal proceedings commenced or apprehended. The doctrine ' s practical object is thus to remove from the client ' s concerns an apprehension that matters communicated to the lawyer for the purpose of securing such advice might thereafter be used against the interests of the client. [35] If that were a possibility, and the rule were not simple and clear in its operation, clients might not frankly and fully communicate their problems to lawyers and produce all documents and other evidence relevant to the provision of proper legal advice. This would be counter-productive to the efficient and accurate provision of advice, the best available presentation of the client ' s case (if need be) and the achievement of well-informed settlements in civil litigation or pleas in criminal trials. Other authorities view the doctrine as an outgrowth of the adversary system of trial observed by the common law. [36] That system may have defects and be in need of reform. [37] But while it is maintained, the boundaries of the doctrine of legal professional privilege must take into account the fundamental assumption of the system that parties should ordinarily be able to communicate with their lawyers without fear that the confidentiality of their communication will be invaded except in clear, limited and defined circumstances. Respecting that fundamental assumption has been said to contribute to community respect for the law. [38] 7. In considering the boundaries of the operation of the doctrine of legal professional privilege, it is essential both to fulfil the purposes upheld by the doctrine, as described above, and to confine its operation to the extent strictly necessary for the fulfilment of those purposes. In Australia, two relevant limitations in the expression of the ambit of the common law doctrine of legal professional privilege may be mentioned. The first is that it is now settled that the privilege, at common law, extends only to communications brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings. [39] In England, Canada and other common law jurisdictions, a test of " dominant purpose " was adopted. [40] But not by the Australian common law. [41] Second, it is repeatedly emphasised that what is protected is communication between lawyer and client and with a third party in connection with the giving of legal advice. It is not the documents, as such, which attract the privilege, still less the information within them. It is the communication to and by the lawyer. [42] However, for practical purposes, in response to search warrants, orders of discovery and subpoenas, proof of the communication in the past would ordinarily involve documents. Because of advances in information technology, compulsory process will now, increasingly, involve the multitude of material forms used in effecting communication: ranging from photocopies of original documents to audio/video tapes and computer software. Necessarily, the doctrine of legal professional privilege must adapt to a world in which these media are the stuff of disputes concerning criminal and civil obligations and the rights of clients.
A large controversy exists in respect of the duration of legal professional privilege. Some authorities support the proposition that, once it attaches, it endures for all time, unless waived or otherwise lost by the operation of the doctrine. [43] Other authorities suggest that communications with third parties (as distinct from with the client itself) may not continue to enjoy privilege beyond the end of the relevant litigation or dispute. [44] Other authorities (including the opinion of Hill J in the Full Court in the present case) are prepared to accept that the privilege may be spent in time. [45] In the circumstances of this case, it is unnecessary to explore that issue as the proceedings are still current.
Legal professional privilege and copies - four possible approaches
Various responses have been expressed in judicial opinions in respect of communications constituted by copies of evidentiary materials not themselves entitled to privilege but which are submitted to legal advisers for advice or for use in legal proceedings and for that use only. Four different responses can be discerned. It will be helpful to conceptualise the competing possibilities by mentioning the approaches hitherto endorsed by courts. 1. First, there are the cases which have held that no copy acquires the protection of legal professional privilege, in whatever circumstances, if the original is not itself privileged. The contrary view has been described as " absurd and anomalous " [46] and " suspect " . [47] It has been said that, to accept it, is to defy commonsense. [48] Various hypotheses have been paraded to demonstrate the unacceptability of extending the privilege, notably the possibility that the client could destroy the original documents, give a copy to its lawyer for advice and then shelter behind the privilege. [49] Since the advent of photography, it is argued, the copy is but the mirror image of the original. So it is with electronic reproductions. The original, held in the lawyer ' s office would not be entitled to protection of legal professional privilege simply because of its locus. [50] Accordingly, the facsimile or photographic copy could not do so. This view probably commands majority judicial assent in common law countries and much support in academic writing, including in Australia. [51] 2. Then there are the authorities which disclaim a universal rule for communications with lawyers by copies but would allow, in certain circumstances, that copies might attract the protection of legal professional privilege. Thus, if copy documents bore the notes of a lawyer they would, to that extent, be privileged; [52] if selective copying revealed the line of the client ' s concerns or the lawyer ' s advice, the copies to that extent would be privileged; [53] if the copies come into the hands of the lawyers after the compulsory process in question and are placed in counsel ' s brief, they may be exempt from production. [54] 3. A third approach suggests that copies may be the subject of the privilege but not in respect of documents available in public registers or otherwise legally exempt. [55] 4. A fourth group of cases supports the proposition that, in every disputed instance, a simple task of characterisation must be performed. If the sole purpose of the production of the particular medium of communication (original or copy) is for submission of that medium to legal advisers for advice or for use in actual or apprehended legal proceedings, that is enough. The privilege attaches to it. If those with access to compulsory process wish to enforce that process, they must do so by directing that process to the holder of the original, if they can. They cannot invade the confidentiality of the communication between the client and the legal advisers unless, for other legal reasons, the privilege is excluded or lost.
Legal professional privilege may attach to copies
In my view, the Full Federal Court was right to conclude that legal professional privilege may attach to the copies of communications provided to a lawyer for the sole purpose of advice or use in actual or apprehended legal proceedings. Legal authority on this point has, until now, been unclear, at least in this country. Here, as in England and elsewhere, it has vacillated. To resolve the difference, it is necessary to recall the basic reason for legal professional privilege. The trend in English judicial authority, generally supporting the limits which the appellant has urged on this court, is to be understood by viewing the doctrine of legal professional privilege as a mere rule of evidence. Until recently, that is how the English Courts have seen it. [56] But as repeated and recent authority of this court has made plain, in Australia it is more than that. In its modern understanding, it is a fundamental feature of our system for the administration of justice. It is essential to the defence of rights and freedoms and for the protection of the individual who is, or apprehends that he or she may be, in legal difficulties. It is true that, sometimes, hiding behind the privilege, are powerful wrong-doers. But the law protects them because the privilege is deeply embedded in our society ' s notions as to how the rule of law can best be achieved for all. The privilege protects the weak, the frightened, the unpopular and the disadvantaged.
Having regard to the way in which this court has lately portrayed the privilege, and explained its purposes, it should defend the right of the individual to provide to legal advisers all relevant copy material necessary to obtain accurate legal advice. It would be artificial, absurd and anomalous if a client were forced to seek advice by oral communications, rote learning of documents or summaries, only or mainly, to avoid the peril that the provision of actual copy documents, and copies of like evidentiary material, would be susceptible to compulsory process. Far from reducing the argument for extending the privilege to copies because of technological developments, such advances make it essential that the law acknowledges their existence and that they need to be provided to lawyers in the course of a client ' s securing appropriate legal advice.
If the task of characterising the " sole purpose " of bringing the material communication into existence is properly performed, it affords a sufficient answer to the first question before the court in the appeal. Thus, if, properly characterised, a copy document was brought into existence to permit the original to be destroyed and not solely for the purpose of securing legal advice, it would fall outside the protection of the privilege. If the destruction of the original were done in pursuance of a crime or fraud, the privilege could be lost. Conceding that there are some anomalies whichever view the court adopts, there are fewer artificialities if the court insists upon the logic of the principle established by it in Grant v Downs. [57] Only by doing so will the Court safeguard the zone of professional confidentiality which serves the high purposes which have repeatedly and rightly been upheld. Only in this way will we offer a principle appropriate to the adversary system which is a cardinal feature of the administration of justice in this country.
The view to which I have come was well expressed by a Canadian Judge: [58]
[A]ny benefit that might flow to the parties and the court in this case by ordering such production would be gained at the expense of serious interference with our adversarial system of justice and would reduce the likelihood of full and early disclosure in future cases.
The adversarial system is based on the assumption that if each side presents its case in the strongest light the court will be best able to determine the truth. Counsel must be free to make the fullest investigation and research without risking disclosure of his opinions, strategies and conclusions to opposing counsel. The invasion of the privacy of counsel ' s trial preparation might well lead to counsel postponing research and other preparation until the eve of or during the trial, so as to avoid early disclosure of harmful information. This result will be counter-productive to the present goal that early and thorough investigation by counsel will encourage an early settlement of the case. Indeed, if counsel knows he must turn over to the other side the fruits of his work, he may be tempted to forgo conscientiously investigating his own case in the hope he will obtain disclosure of the research, investigations and thought processes compiled in the trial brief of opposing counsel …
[Although statute may derogate] I believe, that the … privilege is required to preserve the integrity of the adversarial system.
With some adaptation, the same comments apply to the search warrant in issue here. Test it further thus. If copies of original documents could be secured by the simple expedient of executing search warrants in complex criminal cases, upon offices of the known legal advisers of the accused, various consequences might follow. Certainly, documents and other materials would in some cases be secured under search warrant which may help to win cases, prove difficult points, bring the guilty to justice and establish their wrong-doing. But these consequences would be bought at too high a price. Clients would lose their faith in their supposed entitlement to consult legal advisers with copies of all relevant materials produced for their advice. The legal advisers themselves would doubtless advise the client not to provide copy documents or other materials and to store them elsewhere than in the legal offices. The disruption to solicitors ' offices and the orderly provision of advice, including advice to other, unconnected, clients, would be considerable. Lazy prosecution practices would be encouraged so that instead of going to the source for the original medium, police and other investigators would be tempted to seek copies from suspects ' or accuseds ' legal advisers. An undesirable practice of " trawling " , to use the word of the Director of Public Prosecutions, in the offices of legal advisers might become the norm. Evidentiary materials, the originals of which are outside the jurisdiction, could be obtained by this expedient whereas the originals could not. Such consequences would undermine not only the adversary system, as it has heretofore operated, but also respect for the rule of law. Of course, it is said that these extreme possibilities would never, in practice, occur. Perhaps not. But the legal proposition advanced for the appellants must be tested by the consequences that would follow if it became a general rule and a common occurrence. Following the logic of Baker v Campbell, [59] if it is to become such in respect of search warrants such as those here in question, it must happen with the express authority of Parliament.
In every case, it is for the lawyer whose materials are seized, and who believes them to be the subject of legal professional privilege to claim that privilege on behalf of the client. If the materials apparently fall within the warrant, and there is a dispute as to excepting them, it is then necessary to invoke the process of differentiation in which Davies J became engaged in the present case. Neither the assertion of the privilege, nor an allegation that it is lost, will establish those propositions if they are disputed. It is for a judicial officer or other appropriate decision-maker, if it goes so far, to examine the materials and to rule upon them seriatim. [60] There is thus a safeguard which permits the conflicting public interests at stake to be evaluated and the law to be upheld in deciding a contested claim for legal professional privilege.
The question as to whether legal professional privilege can apply to a copy document when no privilege attaches to the original should therefore be answered in the affirmative. To that extent, the appeal from the orders of the Full Court of the Federal Court should be dismissed. To clarify what should now happen I agree in the course which Gaudron J has proposed for the disposal of the appeal and cross-appeal.
Attempt to overcome the privilege
A second point was argued, upon which it is convenient to make some comments. Davies J determined that the material provided to him by the police was sufficiently persuasive of the existence of a disqualifying crime or fraud, as to displace any legal professional privilege in relation to documents allegedly connected with offences against the Crimes Act 1914 (Cth), but not the Crimes (Taxation Offences) Act 1980 (Cth).
In respect of the documents falling into the latter class, the police relied upon the sworn information which was placed before the primary Judge as an annexure to an affidavit of an Assistant Commissioner of Federal Police read in an early interlocutory stage of the proceedings. That affidavit had been produced in connection with a claim of public interest immunity made in respect of part of the information no longer relevant. The Assistant Commissioner was neither the informant who had sworn the original information for the purpose of securing the search warrant. Nor was he able personally to swear to the truth of the matters contained in the information or even his belief in such truth. When the question arose before Davies J as to whether identified documents were covered by legal professional privilege, no affidavit was supplied by the police officer who had sworn the information, viz, the then Detective Sergeant Alan Taciak, the second appellant before this Court. Nor was Mr Taciak called to give oral evidence before Davies J. The police representative simply read again, over objection, the affidavit of the Assistant Commissioner.
In these circumstances, the respondents contend that Davies J erred in upholding [61] the submission that any part of the material, the subject of the claim for legal professional privilege, lost that privilege on the ground that it had been shown to have come into existence in furtherance of a disqualifying purpose, ie a crime or fraud. In the Full Court, Beaumont J [62] sustained this complaint. He found that, in the absence of " some admissible evidence to show why the court should disallow the privilege " , Davies J had erred in upholding the police contention that any privilege had been lost. Hill J [63] concluded that, absent any evidence as to the truth of its contents, the copy information did not prove the truth of the matters stated in it, so that the objection for the respondents to its being read should have been upheld. Lindgren J [64] agreed.
The appellant argued that it was permissible to rely on the information itself to prove that there was evidence supporting the truth of the allegations made [65] and that Davies J had been entitled to look at its contents to see whether, on its face, a case had been made for displacement of legal professional privilege on the ground, relevantly, of illegality. In support of this argument it was urged that search warrants are, of their nature, investigative facilities. They are secured to ascertain if a suspected criminal offence has occurred and if there is sufficient evidence to lay criminal charges against identified persons. In these circumstances, it would defeat the achievement of their lawful purpose to require the informant, seeking the issue of a search warrant, to establish in every case, with particularity, proof that illegality had in fact occurred when the investigation of such illegality was the very subject-matter of the proposed search.
Displacement of the privilege for crime or fraud
The principles applicable to the resolution of these conflicting arguments are not in doubt, although their application sometimes gives rise to difficulty: 1. The person alleging that legal professional privilege is lost for illegality must state clearly the charge of illegality made for the purpose of showing, with some precision, what it is. [66] Vague or generalised contentions of crimes or improper purposes will not suffice. 2. The mere making of an allegation of a crime or of fraud is not sufficient to " get rid of privilege " . [67] Something more must be added, as it has been described, to " give colour to the charge " . [68] The reason for this requirement is simple enough. It is a serious thing to override legal professional privilege where it would otherwise be applicable. Once overridden, it is difficult, or impossible, to restore the status quo ante. That is why, where a contest arises, it is important that it be resolved accurately and lawfully because the situation can rarely, if ever, be retrieved. Where, as is sometimes the case, it is suggested that the lawyer has been a party to the relevant crime or fraud, the allegation, if made good, will ordinarily have extremely serious consequences for the person so accused. This is another reason why a mere allegation, without more, is insufficient to displace the privilege. [69] 3. Some decisional authority suggests that evidence, even " strong evidence " is required to " do away with the privilege " . [70] While what is required will depend upon the particular facts of each case [71] and although surmise and conjecture will never be sufficient, something less than the full proof of illegality by admissible evidence must suffice. This is because of the nature and purposes of the compulsory process, the interlocutory stage at which the consideration of this issue typically takes place and the complete unacceptability of turning that stage into a full-scale trial of the suggested illegality. [72] The primary decision-maker is certainly entitled to look at the sworn information. [73] But something more is required, by way of " admission or affidavit allegations of facts " . [74] Otherwise, the information amounts to no more than the prosecutor ' s assertion of what it is hoped may be proved. When some evidence is supplied then, " the seal of secrecy is broken " . [75] But not before.
Loss of privilege: conclusions
When the foregoing principles are applied to the facts of this case, I come to the same conclusion as did the Judges in the Full Court of the Federal Court. Something more was required than the information attached to an affidavit, prepared for a different purpose by a deponent who could not be questioned on it and who did not even swear to his information and belief.
It is impossible to fix with precision the material that will be required. But it is such as would " lead a reasonable person to see " a strong probability that there was a disqualifying crime or fraud, [76] although not necessarily that the lawyer was a party to it. [77] The line lies short of the full trial of the issue, for that would be inappropriate to the process invoked. Indeed, in many cases it would defeat or frustrate the achievement of its purpose. Equally, it falls short of the requirement to make out with " strong evidence " a prima facie case of crime or fraud. But it also goes beyond an unchallengeable allegation by hearsay evidence such as was offered in this case.
The second question upon which special leave to appeal was granted therefore requires an elaborated answer. Hearsay evidence may be relied upon to displace legal professional privilege where that privilege is claimed for materials alleged to have come into existence in furtherance of crime or fraud. But hearsay evidence alone, which amounts to no more than the assertion of what is suspected and sought to be proved, will not be sufficient to displace the privilege. Something more will be required to warrant the serious step of overriding the legal professional privilege and thus of depriving the client of the protections of such privilege. Something more was required in the facts of this case.
This was especially so because the proceedings in this case were not conducted upon the basis that the copy documents in question were provided by the lawyer in furtherance of a fraud or to frustrate the processes of the law. What was suggested was that the originals were the means of effecting the fraud or illegality and that the copies were, for that reason, equally tainted by the illegality of the original. Once that view is rejected, the documents were properly seen as communications prima facie entitled to the shield of legal professional privilege. To penetrate that shield the police needed more than a mere assertion about the originals, and that based upon untestable hearsay evidence.
Future cases must be decided on their own facts taking into account the preliminary character of the decision as well as its serious consequences for the various interests involved. But in this case the Full Court rightly exposed a defect in the procedure followed by the primary Judge. The challenge to that finding fails.
Orders
I agree in the orders proposed by Gaudron J.
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