Carter v Northmore Hale Davy & Leake

[1995] HCA 33

HIGH COURT OF AUSTRALIA

BRENNAN, DEANE, TOOHEY, GAUDRON AND McHUGH JJ

LOUIS JAMES CARTER v. THE MANAGING PARTNER, NORTHMORE HALE DAVY AND LEAKE AND OTHERS

(1995) 129 ALR 593

14 June 1995

Practice—Evidence—Legal professional privilege—Subpoena duces tecum—Privileged documents—Documents relevant to defence of accused in criminal trial.

Headnote

A person who has in his possession or power documents which are subject to legal professional privilege which is not waived cannot be compelled to produce them on subpoena issued on behalf of an accused person in criminal proceedings even though they may establish the innocence of the accused or may materially assist his defence.


So held, by Brennan, Deane and McHugh JJ, Toohey and Gaudron JJ dissenting.


R v Barton (1973) 1 WLR 115 at 118; (1972) 2 All ER 1192 at 1194, disapproved.


R v Craig (1975) 1 NZLR 597 at 599, and R v Ataou (1988) QB 798 at 807, not followed.


Decision of the Supreme Court of Western Australia (Full Court) affirmed.

Hearing

CANBERRA, 1994 November 15, 1995 June 14
#DATE 14:6:1995



APPEAL from the Supreme Court of Western Australia.

Louis James Carter was charged before the Supreme Court of Western Australia with conspiracy to defraud the public and four other offences. By subpoenas served upon Northmore Hale Davy and Leake, Wardley Australia Ltd, Wardley Australia Securities Ltd, Price Waterhouse and Jonathan Pope, Carter sought production to the Court of documents for the purpose of his defence. Some of the documents were brought into existence by a legal practitioner solely for the purpose of giving of confidential legal advice and fell within the ambit of legal professional privilege. Seaman J upheld objections taken to production of those documents (1). His decision was upheld by the Full Court (Malcolm CJ, Rowland and Franklyn JJ). Carter appealed from the judgment of the Full Court to the High Court by special leave.

(1) R v Connell (No 2) (1992) 8 WAR 148.


I McC Barker QC (with him P G Clifford), for the appellant. The legal professional privilege of others should yield to the public interest in an accused person having a fair trial where material the subject of the privilege may establish his innocence or materially assist in his defence. There is no direct authority in Australia beyond the judgments in the Court below. Statements in the judgments in this Court on the nature and scope of legal professional privilege should not be taken as applying to material required by an accused person to establish his innocence or for the purpose of materially assisting in preparation of the defence. Statements in Baker v Campbell (2) are in the context of a consideration of the scope of a search warrant and the disclosure of privileged documents to agencies of the Crown. The other leading cases deal with civil litigation (3). Criminal proceedings stand in a special position (4). The holding we contend for would be consistent with English law (5). Any access to documents otherwise privileged would be subject to appropriate orders of confidentiality; the documents would remain privileged for all other purposes (6). Attorney-client privilege in the United States rests on the same foundation as legal professional privilege (7). The privilege will yield in appropriate circumstances (8).
(2) (1983) 153 CLR 52 at 95, 105, 109, 115-118, 127-129.

(3) Grant v Downs (1976) 135 CLR 674 at 685; Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 515, 532; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 487, 490-491; Waterford v The Commonwealth (1987) 163 CLR 54.

(4) Sankey v Whitlam (1978) 142 CLR 1 at 42; Alister v The Queen (1984) 154 CLR 404 at 414, 456; Dietrich v The Queen (1992) 177 CLR 292 at 298; Marks v Beyfus (1890) 25 QBD 494 at 498; D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at 232-233; Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246-251; Rovario v United States (1957) 353 US 53.

(5) R v Barton (1973) 1 WLR 115; (1972) 2 All ER 1192; D v National Society for the Prevention of Cruelty to Children (1978) AC 171 at 190, R v Ataou (1988) 1 QB 798 at 804-808; R v Craig (1975) 1 NZLR 597; R v Dunbar and Logan (1982) 138 DLR (3d) 221; Halsbury's Laws of England, 4th ed (1976) Vol 17, par 252; Archbold, Criminal Pleading, Evidence and Practice (1993), Vol 1, p 1573; Cross on Evidence, 6th ed (1985), pp 399-400; Cross on Evidence, Aust ed (1991), Vol 1, par 25300.

(6) British Coal Corporation v Dennis Rye Ltd (No 2) (1988) 1 WLR 1113; (1988) 3 All ER 816.

(7) Baker v Campbell (1983) 153 CLR 52 at 79.

(8) Sepler v Florida (1966) 191 So 2d 588; Haynes v Nevada (1987) 739 P 2d 497; Washington v Bonds (1982) 653 P 2d 1024; McGranahan v Dahar (1979) 408 A 2d 121; New Hampshire v Easson (1990) 577 A 2d 1203; In the Matter of Kozlov (1979) 398 A 2d 882; Hoopes v Carota (1988) 531 NYS 2d 407; In the Matter of the Welfare of Henderson (1981) 630 P 2d 944; Cohen v Jenkintown Cab Co (1976) 357 A 2d 689.


S P Charles QC (with him A M Kennedy), for the first to third respondents. Once legal professional privilege attaches to a document, there is no process of balancing competing public interests to determine whether the document is protected from production. Legal professional privilege itself is the product of a balancing exercise between competing public interests whereby, subject to the crime/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 into evidence of all relevant documentary evidence (9). Legal professional privilege is a rule of law, formulated and binding in the public interest. It is for the legislature, not the courts, to curtail the operation of common law principles designed to serve the public interest (10). Australian courts have accepted that legal professional privilege is available in the context of criminal proceedings (11). The English and New Zealand authorities relied upon by the appellant do not establish the proposition contended for. R v Ataou (12) and R v Craig (13) are based on the notion that the accused must show that there is no longer a recognisable interest in maintaining the privilege. The notion that privilege is finite is inconsistent with recognised Australian principles and does not in any event apply to the present case. The public policy supporting protection of the accused does not justify an encroachment upon the doctrine of legal professional privilege or the inevitable instability which must flow from that. The appellant's contention would result in the destruction of a fundamental bulwark of a free and democratic society, namely the ability of the individual to seek full and proper legal advice, where the citizen may candidly disclose everything to the adviser, secure in the knowledge that such disclosures, and the advice given, will be protected from the knowledge of all others, save to the extent expressly or impliedly consented to by that citizen. In the United States the federal courts have rejected an exemption to the privilege for criminal defendants (14). State courts have produced a variety of outcomes. (He referred to Pennsylvania v Sims (15); People v Godlewski (16); Vela v Superior Court of Los Angeles County (17); In re John Doe Grand Jury Investigation (18); United States v Franzen (19); Blitz v 970 Realty Associates (20); and Wells v Vazquez (21).)
(9) Waterford v The Commonwealth (1987) 163 CLR 54 at 65.

(10) Baker v Campbell (1983) 153 CLR 52 at 96.

(11) Baker v Campbell (1983) 153 CLR 52; Cain v Glass (No 2) (1985) 3 NSWLR 230; R v Cahill; Ex parte McGregor (1984) 61 ACTR 7.

(12) (1988) QB 798.

(13) (1975) 1 NZLR 597.

(14) United States v White (1992) 970 F 2d 328; United States v Nixon (1974) 418 US 683; Martin Marietta Corp v United States (1988) 856 F 2d 619; (1989) 490 US 1011; Washington v Texas (1967) 308 US 14; Valdez v Winans (1984) 738 F 2d 1087; Upjohn v United States (1981) 449 US 396; United States v Roberts (1988) 852 F 2d 671; 488 US 993; United States v McGrady (1974) 508 F 2d 13; (1975) 420 US 979; United States v Jacob (1971) 322 F Supp 1299; Jenkins v Wainwright (1985) 763 F 2d 1390; (1986) 476 US 1164.

(15) (1987) 521 A 2d 391.

(16) (1991) 21 Cal Rep 796.

(17) (1989) 255 Cal Rep 921.

(18) (1990) 562 NE 2d 69.

(19) (1982) 688 F 2d 496; 460 US 1072.

(20) (1989) 557 A 2d 1386.

(21) (1992) 952 F 2d 1400.



J J Garnsey QC (with him G H Murphy), for the fourth and fifth respondents. We adopt the submissions of the other respondents. The suggested exception to legal professional privilege is inconsistent with, and strikes at the heart of, the adversarial system. It involves the trial judges in a supervisory and perhaps inquisitorial function (22). It subjects every communication by any person to legal advisers, whether for advice or in contemplation of pending or actual litigation, to possible public scrutiny at the instance of any person accused of a crime at any time in the future. The existence of any such exception was rejected in Butler v Board of Trade (23). The suggested right is not an exception to legal professional privilege but an abrogation of the privilege generally. It applies to all persons, whether parties or not, without discrimination, and to all documents and communications without discrimination. The suggested exception cannot be derived by analogy with the existing exceptions: they are based on the consistency of the privilege with the administration of justice and the inconsistency of the exceptions. In Australia there is no recognised exception to the doctrine of legal professional privilege to the effect that an established claim for legal professional privilege can yield to the interests of an accused seeking evidence for the purposes of his criminal proceedings (24). The privilege is a common law right available in both civil and criminal proceedings (25). R v Barton (26), R v Ataou (27), R v Craig (28) and R v Dunbar and Logan (29) are inconsistent with the basis upon which this Court has explained the privilege. The Model Code of Evidence, rr 209-213 does not recognise the exception contended for. (He also referred to Morley v McFarlane (30); Haynes v Nevada (31); Washington v Bonds (32); New Hampshire v Easson (33); J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 1) (34); and Dalleagles Pty Ltd v Australian Securities Commission (35).)
(22) Jago v District Court of NSW (1989) 168 CLR 23 at 52; R v Sang (1980) AC 402 at 436, 455; Dietrich v The Queen (1992) 177 CLR 292 at 362.

(23) (1971) 1 Ch 680 at 686-689.

(24) Cain v Glass (1985) 3 NSWLR 39 at 42-43; R v Cahill; Ex parte McGregor (1985) 61 ACTR 7.

(25) Baker v Campbell (1983) 153 CLR 52 at 108, 114.

(26) (1973) 1 WLR 115; (1972) 2 All ER 1192.

(27) (1988) QB 798.

(28) (1975) 1 NZLR 597.

(29) (1982) 138 DLR (3d) 221.

(30) (1982) 647 P 2d 1215.

(31) (1987) 739 P 2d 497.

(32) (1982) 653 P 2d 1024.

(33) (1990) A 2d 1203.



I McC Barker QC, in reply.

(34) (1992) 38 FCR 452.

(35) (1991) 4 WAR 325.
Cur adv vult


Counsel for the Appellant: I. McC. Barker QC and
P. G. Clifford



Solicitors for the Appellant: Freehill, Hollingdale and Page


Counsel for the First, Second S. P. Charles QC and
and Third Respondents: A. M. Kennedy


Solicitors for the First, Second Minter Ellison Northmore Hale
and Third Respondents:


Counsel for the Fourth and J. J. Garnsey QC and
Fifth Respondents G. H. Murphy


Solicitors for the Fourth and Blake Dawson Waldron
Fifth Respondents

Orders

Appeal dismissed with costs

Decisions

BRENNAN J Louis James Carter was the leader of a team of accountants who conducted the audit of Rothwells Limited, a merchant bank which, after an attempted rescue from financial failure in October 1987, went into liquidation. Carter now stands charged on indictment before the Supreme Court of Western Australia on five counts: on one count that he conspired with two directors of Rothwells to defraud the public and on four counts that, being an auditor of Rothwells Limited, he concurred in the publishing of false financial reports with intent to deceive members or creditors of Rothwells Limited. For the purposes of his defence, he caused to be issued five subpoenas duces tecum seeking documents and other records relating to the rescue and the provision of financial accommodation to Rothwells Limited or relating to three actions pending in the Federal Court of Australia. In those actions the State of Western Australia is seeking damages against Wardley Australia Limited and Wardley Australia Securities Limited (the Wardley companies). The first respondent in this appeal is the managing partner of a firm of solicitors acting for the Wardley companies in that litigation. The subpoenas are directed, inter alia, to the managing partner of that firm and to the proper officers of the Wardley companies. The documents sought by the subpoenas include documents which are the subject of legal professional privilege including proofs of evidence prepared for the purpose of legal advice in relation to the pending actions.


2. Objection was taken on affidavit to the production of documents which are the subject of legal professional privilege. Seaman J upheld the objection on that ground and an appeal against his decision was dismissed by the Full Court of the Supreme Court of Western Australia. The question for determination on this appeal is whether persons having in their possession or power documents which are subject to legal professional privilege can be compelled to produce those documents on subpoena issued on behalf of an accused person in criminal proceedings when those documents may establish the innocence of the accused or may materially assist his defence but the person entitled to the privilege does not waive it.


3. Counsel for the appellant accepts the general rule (laid down by this Court in Grant v. Downs (1); Baker v. Campbell (2); Attorney-General (N.T.) v. Maurice (3) and Waterford v. The Commonwealth (4)) that, subject to particular exceptions, legal professional privilege prevails over an obligation to produce documents on subpoena unless the privilege is excluded or cut down by a clear statutory provision (5). However, it is submitted that the position of an accused in a criminal trial is especially protected by the law (6) and that the immunity from production which is generally conferred by legal professional privilege is subject to an exception in favour of protecting the liberty of the subject. In support of this submission, counsel draws upon the approach taken by some courts in other common law countries and he points to other exceptions by which the general immunity conferred by legal professional privilege is qualified.


4. The arguments advanced in support of the submission should be considered in the light of the rationale of the privilege and its scope. In Grant v. Downs (7), Stephen, Mason and Murphy JJ stated the rationale thus:
" The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision."
In Attorney-General (N.T.) v. Maurice (8), Mason and Brennan JJ stated the raison d'etre of the privilege to be -
"the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client. The privilege is based on:
'... the need of laymen for professional assistance in the protection, enforcement or creation of their legal rights. They should have the benefit of that assistance, free of any restraint which fear of the disclosure of their communications with those advisers would impose'. (Reg. v. Bell (9), per Stephen J)


5. When the privilege applies, it enables the client to keep the communication from disclosure and interferes with the public's 'right to every man's evidence': Cobbett's Parliamentary History (10). Because of this conflict between the public interest in ensuring the availability of all relevant evidence in a particular case and the public interest in the administration of justice through effective legal representation, the privilege is confined within strict limits: Grant v. Downs (11), per Stephen, Mason and Murphy JJ."


6. The justification for the privilege is satisfaction of a public interest rather than enforcement of a private right, though there is no dichotomy between the two. As the Earl of Halsbury LC said in Bullivant v. Attorney-General for Victoria (12):
"for the perfect administration of justice, and for the protection of the confidence which exists between a solicitor and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production."
In my opinion, the basic justification for allowing the privilege is the public interest in facilitating the application of the rule of law.


7. Administration of the law is not the function of the courts alone. The law is administered more frequently and more directly by legal advisers than it is by judges. Legal professional privilege ensures that the law's writ can run effectively whenever a legal problem arises or a person seeks to chart a course of conduct in conformity with the law. The point was made by Advocate General Warner in A.M. and S. Europe Ltd. v. Commission of the European Communities (13):
"Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks."
In Waterford v. The Commonwealth (14), I said:
"the public interest served by legal professional privilege lies in its tendency to broaden the operation of the rule of law as well as to enhance the individual's capacity to secure its protection".


8. There is, of course, a public interest in having available all evidence relevant to the issues in litigation. And that public interest encompasses the public interest in achieving fairness in the trial of a person charged with a criminal offence. Although the public interest in having all relevant evidence available is, to an extent, defeated by the privilege, there is no occasion for the courts to undertake a balancing of public interests: the balance is already struck by the allowing of the privilege. As Mason and Wilson JJ said in Waterford (15):
"Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognized crime or fraud exception (cf. Reg. v. Bell; Ex parte Lees (16)), the public interest in 'the perfect administration of justice' (per Earl of Halsbury LC in Bullivant v. Attorney-General (Vict.) (17)) 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."

I respectfully agree with an observation by Dawson J in Attorney-General (N.T.) v. Kearney (18):
"The policy which lies behind the doctrine views unrestricted communication between lawyer and client upon professional matters as being necessary for the proper functioning of our legal system. If inroads could be made upon the privilege in individual cases by involving a 'higher public interest', its application would become uncertain and the policy behind it would be effectively undermined."
Of course, an individual charged with a criminal offence has his own interest in securing evidence that may tend to assist in his defence. But if there be no public interest which defeats the privilege, there can be no individual interest which does so. I do not subscribe to the view that legal professional privilege is a fundamental human right which sterilizes the operation of any law which infringes it. The privilege facilitates the giving of legal advice on any subject and consultations on legal problems of all kinds. An exception created in order to serve the interests of a person charged with a criminal offence would create, at least potentially, a right in such a person to destroy any privileged communication between legal adviser and client and perhaps to publish the contents of the privileged communication to the public generally by disclosing the communication in court. No a priori assurance of confidentiality could be given to a client consulting a legal adviser, since confidentiality of such consultations would be contingent on the absence of an accused person's subpoena seeking production or evidence of the communication. The contingency would have a chilling effect on the seeking of advice as to the law governing proposed conduct or relating to an event or transaction.


9. The appellant sought to deny the blanket protection of the privilege, however, pointing to the exceptions to the scope of the privilege which have been recognized. Our attention was drawn to the opinion of Cooke J in Reg. v. Craig (19) where his Honour thought that it might be possible for the prosecution in criminal proceedings to show that a claim of privilege could not be sustained by demonstrating, inter alia -
"that there is no ground on which the client could any longer be reasonably regarded as having a recognisable interest in asserting the privilege".
In England, the Court of Appeal, basing themselves on the observations of Cooke J in Craig, said in Reg. v. Ataou (20):
"When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned or his solicitor, it should be for the defendant to show on the balance of probabilities that the claim cannot be sustained. That might be done by demonstrating that there is no ground on which the client could any longer reasonably be regarded as having a recognisable interest in asserting the privilege. The judge must then balance whether the legitimate interest of the defendant in seeking to breach the privilege outweighs that of the client in seeking to maintain it."
This passage is not without its difficulties. If the client otherwise entitled to the privilege has no "recognisable interest" in asserting the privilege, what is the client's interest "in seeking to maintain" the privilege which has to be weighed against the interest of the defendant in the criminal trial? Counsel for the appellant was not concerned to argue for this limitation on the scope of the privilege, and the correctness of this view is not material to the present case. The exception for which counsel contended in favour of a person charged with a criminal offence was suggested to be merely an addition to the recognized categories of exceptions. Those exceptions - communications in furtherance of crime, fraud (21) or abuse of power (22), to conceal the whereabouts of a ward of court (23) or to frustrate the execution of a court order (24)- show that the privilege cannot be invoked to effect an illegal purpose. The exceptions preclude the possibility of the privilege being used contrary to the public interest. But those exceptions offer no analogy to the present case.


10. However, counsel's submission is supported by the judgment of Caulfield J in Reg. v. Barton (25):
"the principle I am going to enunciate is not supported by any authority that has been cited to me, and I am just working on what I conceive to be the rules of natural justice. If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man, then in my judgment no privilege attaches. I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which, if disclosed to the jury, would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown."
The view which his Lordship embraced would have some validity if legal professional privilege be regarded simply as an individual right. And Lord Denning M.R. apparently approved of Barton in D. v. National Society for the Prevention of Cruelty to Children (26). But if the purpose of the privilege is to facilitate the application of the rule of law in the public interest, it is not possible to allow the interest of an individual accused to destroy the privilege which is conferred to advance that public interest.


11. An exception which permits a person charged with a criminal offence to compel production or evidence of privileged communications would not only be out of harmony with the purpose of the privilege; it would also permit absurd anomalies. The clearest illustration is the case where two are charged as parties to the same crime and at trial each seeks to exculpate himself by inculpating the other. If the exception were allowed, each would be entitled to compel production of the other's communications with his solicitor and counsel. This scenario led the Ontario Court of Appeal in Reg. v. Dunbar and Logan (27) to say:
"One limitation of the wide principle enunciated by Caulfield J that suggests itself is that an accused ought not to be required to disclose privileged information, the disclosure of which might assist a co-accused to the detriment of the accused who is required to disclose the privileged communication."
But that is not the only anomalous situation that could be envisaged. Would a person charged with a minor criminal offence be entitled to breach the confidentiality of a professional consultation of another person on a matter of great moment? And, if an exception were admitted in favour of an accused person, it would be unfair not to admit a like exception in favour of the Crown.


12. The proposed exception is flawed both in principle and in practice. I would not admit an exception allowing a person charged with a criminal offence to breach the legal professional privilege attaching to another person's communication with his legal adviser unless that other person waives the privilege. It follows that I would dismiss the appeal.

DEANE J Mr Louis James Carter ("the appellant") awaits trial by jury in the Supreme Court of Western Australia on an indictment charging him with conspiracy to defraud the public and with four other offences. By subpoenas served upon one or other of the respondents, he sought production to the Supreme Court of documents to which he desires access for the purposes of his defence on his trial. In pre-trial proceedings in the Supreme Court, Seaman J upheld objections taken to the production of some of the documents, ruling that they were protected from production and inspection by legal professional privilege. An appeal by the appellant to the Full Court of the Supreme Court (Malcolm CJ, Rowland and Franklyn JJ) was unanimously dismissed. The appellant now appeals to this Court from the judgment of the Full Court.


2. The relevant documents were all brought into existence solely for the purpose of the giving of confidential legal advice by a qualified legal practitioner acting in his or her professional capacity. It is common ground that they all fall within the ambit of legal professional privilege which prima facie attaches to any confidential oral or recorded communication or any document (or other material) which has been made or brought into existence for the sole purpose of seeking or giving legal advice or being used in existing or anticipated litigation. The only issue between the parties on the appeal is in relation to a question of pure law which can be stated in abstract terms, namely, whether there is a right in an accused person on or awaiting trial to the production of, and access to, documents which may establish his or her innocence or materially assist in his or her defence notwithstanding that the documents would otherwise be protected from production and access by legal professional privilege. If that question is answered in the negative, the appeal must be dismissed. If it be answered in the affirmative, the appellant seeks orders that the judgment of the Full Court be set aside and that the matter be remitted to the Supreme Court so that, subject to a judge satisfying himself or herself by inspection or otherwise that the documents may establish the appellant's innocence or assist in his defence, he and his legal representatives may be given access to them.


3. Seaman J at first instance and Rowland J in the Full Court (28) each examined in some detail the current state of authority and concluded that the effect of the cases in this Court was that the respondents' claim of legal professional privilege must be upheld even if it be assumed that the subpoenaed documents might materially assist the appellant on his trial. I agree with their Honours' analysis of authority and with that conclusion. The importance of the question involved in the appeal leads me to expand upon what their Honours have written in that regard.


4. Legal professional privilege has been accepted by the common law as "unquestioned" since at least the second-half of the sixteenth century (29). By the late eighteenth century, when the common law accompanied the first European migrants to this country, the modern rationale of the privilege, as the client's and not the attorney's privilege, had been recognized and firmly established. That modern rationale was concisely identified by Dean Wigmore (30):
"In order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by the legal advisers must be removed; hence the law must prohibit such disclosure except on the client's consent."
In accordance with it, the privilege extends to protect the client, as well as the legal adviser, from being compelled to disclose confidential communications about legal matters.


5. In the courts below, both Seaman J and Rowland J correctly pointed out that a majority of this Court in Baker v. Campbell (31) clearly accepted that legal professional privilege is not a mere rule of evidence but is a substantive and fundamental common law principle. Indeed, that acceptance constituted the basis of the actual decision in that case which was to the effect that the doctrine was not confined to judicial and quasi-judicial proceedings but protected documents subject to the privilege from seizure pursuant to a search warrant duly issued under s.10 of the Crimes Act 1914 (Cth). To no small extent, legal professional privilege, like the privilege against self-incrimination, is an established facet of our adversarial system of justice. In the context of the complicated electronic and sophisticated forms of criminal activity which pervade modern society, it may be arguable that the adversarial system of administering criminal justice itself requires re-examination and at least some modification. While the adversarial system remains, however, legal professional privilege is of fundamental importance in the administration of justice. It "promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline" (32). It plays an essential role in protecting and preserving the rights, dignity and freedom of the ordinary citizen - particularly the weak, the unintelligent and the ill-informed citizen - under the law (33).


6. 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 common law's verdict in that regard was explained by Knight Bruce VC in a judgment (34) which Lord Selborne LC was later to describe (35) as "one of the ablest judgments of one of the ablest Judges who ever sat in this Court":
"The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination ... Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much. And surely the meanness and the mischief of prying into a man's confidential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, and suspicion and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself." (emphasis added)


7. The point that legal professional privilege is itself the outcome of a balancing process and is conclusive when it attaches has also been made in a number of recent judgments in this Court. Thus, in Waterford v. The Commonwealth, Mason and Wilson JJ said (36):
"If the conditions giving rise to legal professional privilege are satisfied, and the privilege is not waived, then the document is not disclosed. ... Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognized crime or fraud exception (cf. Reg. v. Bell; Ex parte Lees (37)), the public interest in 'the perfect administration of justice' (per Earl of Halsbury LC in Bullivant v. Attorney-General (Vict.) (38)) 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."
To the same effect is the following extract from the judgment of Dawson J in Attorney-General (N.T.) v. Kearney (39):
"More importantly, once it (i.e. legal professional privilege) is claimed it is conclusive, provided that the relevant communication does not fall within the recognized exceptions. It is not for the court to enter upon a balancing exercise as in the case of Crown privilege in order to determine where the public interest lies in the individual case. It is established that as a matter of principle the public interest lies in preserving the confidentiality of those communications falling within the ambit of the doctrine."


8. As Dawson J's reference in the above passage to "the recognized exceptions" suggests, legal professional privilege is subject to a number of established and settled "exceptions". In particular, the privilege does not extend to communications or documents made or brought into existence for the purpose of, or as part of the process of, crime, fraud, abuse of statutory powers or, in some circumstances, defeating or frustrating the administration of justice by the courts. 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. In that regard, the established position in this country is that, in the absence of waiver or loss of confidentiality and subject to one apparent (and, in my view, anomalous) qualification in relation to wardship or custody proceedings (40), the protection which legal professional privilege accords to the communications or documents to which it actually attaches is, for so long as that attachment persists, unqualified (41). And there is a powerful reason why that is so. I turn to identify it.


9. As has been seen, the focus of the modern theory of legal professional privilege is upon the removal of "apprehension" of compelled disclosure: "the necessity of providing subjectively for the client's freedom of apprehension in consulting his legal adviser" (42). The achievement of that "necessity" is not frustrated by the established exclusions in the form of particular identified circumstances in which legal professional privilege will not attach. Those circumstances can be identified in advance and the client can be advised that, provided they do not exist at the time when the relevant communication or document is made or comes into existence, legal professional privilege will attach to it and will, in the absence of waiver or loss of confidentiality, provide conclusive protection in the future subject only to the possible qualification in respect of wardship or custody proceedings. In contrast, if the privilege could be overridden by the courts by reason of the outcome of some subsequent balancing process or whenever particular circumstances arise in subsequent litigation, an assurance of confidentiality could never be given and the "necessity" for "the client's freedom of apprehension" could never be fully achieved.


10. Apart from an apparently approving reference to the English case of Reg. v. Barton (43) (see below) in the dissenting judgment of Gibbs CJ in Baker v. Campbell (44), the many general statements in judgments in this Court about the applicability and scope of legal professional privilege, and the settled exclusions therefrom, contain no suggestion that the privilege either does not apply at all or applies only to a qualified extent in relation to criminal proceedings. To the contrary, any such suggestion would be quite inconsistent with the overall effect of those judgments. Nonetheless, it was submitted on behalf of the appellant that the Court should breach the general protection which legal professional privilege accords to communications and documents to which it has attached by holding that the privilege is overridden in any case where the protected communication or document may materially assist in the defence of the accused in a criminal trial. In support of such an alteration to the common law of this country, the appellant points to the judgment of Caulfield J in Reg. v. Barton (45) in which his Lordship declined to set aside a subpoena duces tecum which had been served on behalf of the accused in a criminal trial in Lincoln Crown Court. The central passage in Caulfield J's judgment reads as follows (46):

"I think the correct principle is this, and I think that it must be restricted to these particular facts in a criminal trial, and the principle I am going to enunciate is not supported by any authority that has been cited to me, and I am just working on what I conceive to be the rules of natural justice. If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man, then in my judgment no privilege attaches. I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which, if disclosed to the jury, would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown. I think that is the principle that should be followed."
The qualification of legal professional privilege contained in that passage has been subsequently accepted in some leading text books (47). In my view, it should not be accepted in this country.


11. Four points should be made about the above passage from Reg. v. Barton. The first is that, as Caulfield J himself suggested, the "principle" which it adopted was unsupported by authority. Indeed, it was contrary to all general statements of authority in England and in this country of which I am aware. The second is that the reason given to support that principle in the penultimate sentence ("I cannot conceive" etc.) would be equally applicable to override any claim to privilege regardless of its basis, including a witness' or co-accused's claim to privilege on the ground of self-incrimination, in respect of information of the designated kind on a criminal trial.


12. The third point which should be made about the above extract from Caulfield J's judgment is that the statement that no privilege "attaches" to documents which "help to further the defence of an accused man" cannot properly be seen as equating the suggested qualification with one or other of the recognized exclusions which preclude communications or documents made or brought into existence in certain circumstances from ever coming within the ambit of legal professional privilege. As has been said, those recognized 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.


13. The final point to be made about the judgment in Reg. v. Barton is that, with respect, it addressed but one side of the argument in that it failed to advert to the fact that, as has been seen, legal professional privilege is a fundamental principle of the common law which has itself evolved from a balancing process between considerations favouring compulsory disclosure and other considerations (to which Caulfield J did not refer) favouring the preservation of complete confidentiality.


14. Clearly, there is force in the argument that legal professional privilege should, as a matter of policy, give way in any case, particularly a criminal case, in which a conclusion is reached that the considerations favouring the disclosure of privileged material in the particular circumstances of the particular case outweigh the considerations favouring the preservation of confidentiality. A possible answer to that argument may be that the cases in which the privilege significantly impedes the ascertainment of the truth are so exceptional that they do not justify its curtailment. A possible answer as regards suggested unfairness to the accused on a criminal trial may be that, in the hands of the skilled advocate, the refusal of access to the privileged communication or document is likely to be a more potent weapon than would the communication or document itself and that, if there ever were a case where it became apparent that refusal of access precluded a fair trial, it would be possible to invoke the inherent power of the courts to stay proceedings. The compelling answer to the argument in this Court is, however, that which has already been indicated, namely, that the argument was considered and firmly rejected in the course of the development of the common law when it was established, as a fundamental principle, that the confidentiality which should be afforded to communications and documents protected by legal professional privilege was, in the words of Fletcher Moulton LJ (48):
"the very highest - so high that the solicitor is absolutely privileged and cannot be made to state what passed between him and his client. To that extent the solicitor is made, as it were, a part of his client for the purposes of those communications".
That fundamental principle is now so well entrenched in the common law of this country that it should not be overturned or significantly curtailed by the courts, in the absence of compelling legal considerations. Indeed, so much has been expressly recognized on a number of occasions in this Court where it has been acknowledged that "legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision" (49) and that, any curtailment of the operation of the privilege "is for the legislature, not the courts" (50).


15. Accordingly, the question arises whether there are any compelling legal considerations which would justify this Court in curtailing the protection afforded by legal professional privilege by holding that the privilege is unavailing in any case where compulsory disclosure of the privileged communication or document is sought by a person charged with a criminal offence and it appears that such disclosure might materially assist in his or her defence. In my view, the answer to that question is that there are not. It is true that one's instinctive reaction to the question whether an accused person should be given access to any material which might materially assist in his or her defence is an affirmative "of course". The more general considerations relating to the administration of justice which have been identified above and which have led the common law to reject that instinctive reaction are, however, extremely strong. Quite apart from those more general considerations, including the essential function served by legal professional privilege in our adversarial system of administering justice, there is the practical consideration that, if legal professional privilege were not completely secure, the likelihood is that the privileged communication or document would not be made or would not come into existence in the first place. Ultimately, much depends upon one's assessment of the extent of the detriment to the efficacy of legal professional privilege which would be likely to result from the proposed curtailment of the protection which it affords. In my view, that detriment could well be significant. As has been seen, such a curtailment would reduce the conclusive and unqualified protection afforded by legal professional privilege to a provisional and qualified protection. Even more important, it would, in the administration of criminal justice, to some extent undermine the rationale of the privilege by precluding the removal of apprehension of compulsory disclosure which is its focus.


16. A person in need of legal advice in respect of an apprehended criminal charge will commonly, even if innocent, be implicated to some extent in the circumstances surrounding the alleged offence. If the professional advice is to be informed, it will often be inevitable that some damaging admissions will either deliberately or inadvertently be made. If the position were that any documents prepared by such a person for the information of his or her lawyer were susceptible to compulsory disclosure on the trial of another person, the competent lawyer would warn the client of that danger. A possible result of such a warning would be that no uninhibited written statement was made. If the lawyer's own note of any oral communication was susceptible to such compulsory disclosure, the lawyer would be conscious of the danger to the client involved in the making or retaining of an uninhibited record. Even if communication between lawyer and client were confined to the completely oral, the danger would persist that the client and the lawyer could, if called to give evidence and subject to the limits of admissibility, be cross-examined about the content of the communication to the disadvantage of the client. Nor could reliance be placed upon the privilege against self-incrimination for protection in such circumstances since that privilege would offer no protection in respect of damaging admissions which, however injurious to standing, reputation and civil liability, did not tend to incriminate or in respect of incriminating documents or information in the possession of the legal adviser (51). In that regard, the suggested curtailment of legal professional privilege would inevitably, to some extent, also reduce the efficacy of the privilege against self-incrimination (52).


17. In these circumstances, the task of balancing the considerations favouring disclosure to an accused person in the postulated circumstances against the more general considerations favouring the "perfect security" of the protection afforded by legal professional privilege is a difficult one. There is not, however, any compelling legal consideration requiring rejection of the common law's entrenched conclusion that the outcome of that balancing process should be the complete protection of the privileged communication or document. It follows that I am not persuaded that this Court would be justified in curtailing the protection afforded by legal professional privilege in the manner sought by the appellant.


18. Moreover, there are some practical reasons why any such curtailment should be by legislative enactment rather than judicial decision. Such a legislative alteration of the common law would, one would expect, be made only after proper inquiry and informed advice about a variety of questions which would arise for essentially pragmatic decision. One such question would be whether the privilege should be overridden whenever disclosure of the protected material would materially assist in the defence of any person charged with a criminal offence, however minor (53), or only pursuant to some new balancing process in which account could be taken of matters such as the seriousness of the alleged offence, the amount of material assistance to the defence which is likely to be derived from disclosure and the damage which disclosure might cause to the person entitled to the benefit of the privilege. Another question would be what, if any, provision should be made to seek to restrict the infringement of confidentiality to what is necessary in the interests of the particular accused and the open administration of justice by the courts. Another is, whether, and to what extent, associated rights of access should be accorded to the Crown. For example, should the Crown be given access to privileged material produced at the behest of the accused and be entitled to destroy its confidentiality by leading it in evidence on the trial in which it was produced if the accused decided not to rely on some or all of it? There are also several associated problems which would need to be addressed as a consequence of such a curtailment of the protection of legal professional privilege and which would be more appropriately addressed by the legislature. One such problem would be whether the arguments favouring a curtailment of the protection of legal professional privilege in the interests of the defence of a particular accused should also prevail, to some extent and subject to what were seen as appropriate safeguards, over the related privilege against self-incrimination (54) of a person who is not a co-accused on a joint trial. Another associated problem would be the extent to which, if at all, the curtailment of the protection of legal professional privilege should apply in circumstances where there are two or more persons charged with the same or related offences and compulsory disclosure by the legal adviser of one accused of privileged communications or documents would materially assist in the defence of another accused. If, in such circumstances, the privileged communications or documents of one accused were susceptible to compulsory disclosure to assist in the defence of another accused on a joint trial, legal professional privilege would have been effectively negated in some important areas of the administration of criminal justice. If, in such circumstances, compulsory disclosure were only available where there were separate trials, a question would arise about whether the disclosed material should be available to be used against the accused entitled to the benefit of the privilege on his trial and, if it should not, what steps could be taken to avoid the administration of criminal justice being brought into ridicule?


19. It should be mentioned that I have not, in the foregoing, referred to some recent decisions in common law courts which support the proposition that the protection of legal professional privilege should be liable to be overridden in a criminal case if the court concludes "that there is no ground on which the client could any longer reasonably be regarded as having a recognisable interest in asserting the privilege" (55). The acceptance of that proposition would effectively subject a claim of legal professional privilege in a criminal court to critical examination for the purpose of determining whether the client could "reasonably be regarded as having a recognisable interest", whatever that may mean (56). It would, in my view, involve a significant curtailment of the protection which the privilege affords. It is unnecessary for the purposes of the present case that I express any view about whether such a proposition should be accepted in this country since it is not suggested that any of the respondents lacked "a recognisable interest in asserting the privilege". It should, however, be apparent from what has been written above that my present inclination is that any such curtailment of the protection of legal professional privilege should properly be seen as a matter for the legislature.


20. The appeal should be dismissed.

TOOHEY J The issue raised by this appeal is encapsulated in the notice of appeal to the Court. Referring to the judgment of the Full Court of the Supreme Court of Western Australia given on 15 July 1993, the ground of appeal asserts:
"The Court erred in not holding (that) there is a right in an accused person to production of documents which may establish the innocence of the accused person or may materially assist in his or her defence and that such right is an exception to legal professional privilege."


The background
2. The appellant, Mr Carter, has been indicted together with Mr Connell and Mr Lucas on a charge of conspiring with others
"to defraud the public by deceitfully concealing and falsely portraying the true financial position of Rothwells Limited so as to induce persons to do or continue to do business with or to refrain from taking action in relation to Rothwells Limited".
There are other charges in the indictment including four charges against Mr Carter arising from his position as an auditor of Rothwells Limited ("Rothwells"). Those charges allege that Mr Carter concurred in the publishing of annual reports and financial statements relating to Rothwells which were to his knowledge false in material particulars.


3. Mr Carter's solicitors issued subpoenas addressed to the respondents for the production of documents. Each subpoena was issued in the criminal proceedings against Mr Carter and required the recipient to attend at a hearing in the Supreme Court of Western Australia on 24 August 1992, pursuant to s.611A of the Criminal Code (W.A.). That section empowers a judge, who need not be the trial judge, to determine questions of law or procedure in order to facilitate the preparation for or the conduct of a trial, at any time before a jury is sworn.


4. The respondent Northmore Hale Davy and Leake ("Northmore Hale") is a firm of solicitors which acts for the respondents Wardley Australia Limited ("Wardley") and Wardley Australia Securities Limited ("Wardley Securities"). Both companies were involved in the "rescue" of Rothwells from its financial difficulties. The State of Western Australia brought action in the Federal Court claiming damages from Wardley and Wardley Securities in connection with the rescue. The companies filed cross-claims against Mr Connell and against KMG Hungerfords, of which Mr Carter is a partner, claiming damages and contribution orders in respect of their involvement in the rescue and in relation to the accuracy of annual accounts of Rothwells. The respondent Mr Pope is a partner in the accounting firm of Price Waterhouse, which firm was retained by the liquidator of Rothwells to prepare reports and provide advice in relation to certain audits of Rothwells by KMG Hungerford and to act as the liquidator's tax adviser in a particular matter pertaining to Rothwells.


5. It is unnecessary, for the purposes of this appeal, to detail the Rothwells rescue. However the subpoenas call for the production by the recipients of documents and other material relating to the rescue and to the financial affairs of Rothwells since October 1987. Additionally, the subpoenas to Mr Pope and Price Waterhouse call for material relating to work done whilst engaged by Rothwells and, in the case of Mr Pope, transcripts of evidence given by him to Mr McCusker Q.C., as an inspector inquiring into the affairs of Rothwells, and also transcripts of evidence given by him to the National Companies and Securities Commission. The subpoenas to Northmore Hale, Wardley and Wardley Securities also call for material relating to the Federal Court action.


6. The response of each recipient of a subpoena was to take formal objection to the production of any document, particularly on the ground that some of the material sought was the subject of legal professional privilege. That objection has been refined by affidavits identifying categories of documents and particular documents claimed to be the subject of privilege. Otherwise, it appears, documents have been made available for inspection by Mr Carter's solicitors. Northmore Hale, Wardley and Wardley Securities have claimed legal professional privilege for a number of documents which came into existence for the purpose of the Federal Court proceedings. They object to the production of transcripts of evidence given by various persons to Mr McCusker's inquiry, to the Royal Commission into Commercial Activities of Government in Western Australia, to the National Companies and Securities Commission and to the Australian Securities Commission, on the ground that this material was provided by those organisations to them on a confidential basis. Mr Pope and Price Waterhouse have claimed legal professional privilege for documents relating to Price Waterhouse obtaining legal advice on behalf of the liquidator.

157 cf. Evidence Act 1995 (Cth), s.123.