Director of Public Prosecutions (Cth) v Donald Galloway(a pseudonym)[1] , Robert Glenn (a pseudonym) , Stephen Palmer (a pseudonym) , Roger McKee (a pseudonym) and Commissioner of the Australian Federal Police

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2014 0221

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Applicant
v
DONALD GALLOWAY (A PSEUDONYM)[1]	First Respondent
and
ROBERT GLENN (A PSEUDONYM)	Second Respondent
and
STEPHEN PALMER (A PSEUDONYM)	Third Respondent
and
ROGER McKEE (A PSEUDONYM)	Fourth Respondent
and
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	Intervener

[1]To ensure that there is no possibility of identification of the respondents, this judgment has been anonymised by the adoption of a pseudonym in place of the name of each respondent.

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JUDGES:	MAXWELL P, NEAVE and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2014
DATE OF JUDGMENT:	30 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 272
JUDGMENT APPEALED FROM:	[2014] VSC 450R (Hollingworth J)

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EVIDENCE – Criminal proceedings – Legal professional privilege – Evidence sought to be elicited by accused in cross-examination – Whether witness can refuse to answer on ground of legal professional privilege – Whether statutory provision abrogated common law right – Principle of legality – No indication that legislature intended to abrogate right – Witness not required to answer – Baker v Campbell (1983) 153 CLR 52, R v Barton [1973] 1 WLR 115, R v Ataou [1988] QB 798, R v Craig [1975] 1 NZLR 597 considered – Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 applied – Evidence Act 2008 ss 118, 119, 123, 131A.
STATUTORY INTERPRETATION – Abrogation of common law rights – Principle of legality – Criminal proceedings – Legal professional privilege – Evidence sought to be elicited by accused in cross-examination – Whether witness can refuse to answer on ground of legal professional privilege – Whether statutory provision abrogated common law right –– No indication that legislature intended to abrogate right – Witness not required to answer – Evidence Act 2008 ss 118, 119, 123, 131A.

WORDS AND PHRASES – ‘Adducing evidence’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N T Robinson QC with Mr K T Armstrong	Commonwealth Director of Public Prosecutions
For the First Respondent	Mr M P Cahill	Hicks Oakley Chessell Williams
For the Second Respondent	Mr N Lucarelli QC with Mr C G Mandy	Jimmy Lardner & Associates
For the Third Respondent	Dr S McNicol QC with Mr C F Thomson	Holding Redlich
For the Fourth Respondent	Mr P F Tehan QC with Mr C T Carr	Slades & Parsons
For the Intervener	Dr S Donaghue QC with Mr P Melican	Australian Government Solicitor

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MAXWELL P
NEAVE JA
COGHLAN JA:

Summary

Legal professional privilege (‘LPP’) is an important common law right or, perhaps more accurately, an important common law immunity.[2] It is the right of a person to seek legal advice knowing that what is disclosed in the course of receiving advice will always remain confidential as between client and legal adviser.[3]
[2]Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543, 553 [11] (‘Daniels’).
[3]Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121, 163 (‘Carter’). There are exceptions to this principle: for example, privilege does not apply if the communication to the lawyer was made in the furtherance of a crime or fraud; see now Evidence Act 2008 s 125.

A right or immunity of this kind is presumed not to have been taken away or limited by a legislative provision unless the Parliament’s intention to do so is expressed with unambiguous clarity. That is the principle of statutory construction sometimes referred to as the principle of legality.[4]
[4]Daniels (2002) 213 CLR 543, 553 [11]; Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117, 134–5 [30]; Lee v New South Wales Crime Commission (2013) 87 ALJR 1082, 1151–3 [307]–[314].

The case stated before the Court raises a question of precisely that kind. When the Victorian Parliament enacted s 123 of the Evidence Act 2008 (‘the Act’), did it intend to abrogate LPP in criminal proceedings to such an extent that a prosecution witness would be precluded from objecting on that ground to answering a question in cross-examination?

The cross-examination which has given rise to the case stated is taking place not at a trial but at a preliminary hearing, in which the four accused (the respondents in this proceeding) have applied for a permanent stay of the charges against them. The applicant, the Commonwealth Director of Public Prosecutions (the ‘CDPP’), has brought the prosecution. One of the solicitors for the CDPP was asked in cross-examination to disclose the content of legal advice given by the CDPP to the Australian Federal Police (‘AFP’).

The trial judge ruled that the solicitor must answer the question, on the basis that s 123 of the Act had removed the right to object on the grounds of LPP. Although it is only a preliminary hearing, this construction of s 123 — if correct — would apply equally at the trial of the proceeding, and in any criminal proceeding.

The common law recognised an exception to LPP in favour of an accused who had come into possession — even by unlawful means — of a document or information to which LPP would otherwise attach. In those circumstances, the accused person could introduce the privileged information into evidence.[5] The present case is not of that kind, however. Those representing the accused are not in possession of the legal advice sought, and do not know its contents. If the argument which they advance is correct, then the enactment of s 123 effected a very substantial abrogation of LPP, going far beyond the limits of the common law exception.
[5]Baker v Campbell (1983) 153 CLR 52, 67 (‘Baker’); Carter (1995) 183 CLR 121, 151.

For reasons which follow, we have concluded that the Victorian Parliament intended no such abrogation of the privilege when it enacted s 123. We should acknowledge immediately that the arguments in support of this conclusion were put with much greater force and clarity in this Court than in the hearing before the judge. The argument on behalf of the CDPP before her Honour focused rather more heavily on the applicability of s 131A — which, as her Honour found, did not apply — than on the inapplicability of s 123. Moreover, unlike her Honour, this Court had the substantial assistance of separate submissions from counsel for the Commissioner of the AFP (‘the Commissioner’).

In our view, s 123 of the Act was intended to do no more than create a statutory exception (from the privilege created by ss 118 and 119) corresponding to the exception recognised by the common law.[6] Without s 123, the holder of the privilege would have been entitled under ss 118 and 119 to object to the accused adducing evidence of a privileged communication already in his/her possession.
[6]Subject to a qualification relating to a co-accused: see [27] below.

Plainly enough, if defence counsel could investigate without restriction the contents of any relevant privileged communication of which any prosecution witness had knowledge, LPP in the context of criminal proceedings would be virtually destroyed. As already mentioned, the Court would not conclude that such a step had been taken unless the legislature had declared in the clearest terms its intention to do so. The legislative record contains no such indication. As will appear, the only express reference to LPP is to the opposite effect.

The questions in the stated case should be answered accordingly.

The statutory provisions

The relevant sections of the Act are as follows:

118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of―
(a)a confidential communication made between the client and a lawyer; or
(b)a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person―

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of―
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b)the contents of a confidential document (whether delivered or not) that was prepared―

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
123 Loss of client legal privilege―accused
In a criminal proceeding, this Division does not prevent an accused from adducing evidence unless it is evidence of―
(a)a confidential communication made between an associated accused and a lawyer acting for that person in connection with the prosecution of that person; or
(b)the contents of a confidential document prepared by an associated accused or by a lawyer acting for that person in connection with the prosecution of that person.

131A Application of Part to preliminary proceedings of courts
(1) If―
(a)a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1C or 3; and
(b)the person objects to giving that information or providing that document―

the court must determine the objection by applying the provisions of this Part (other than ss 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.
(2)In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following―
(a)a summons or subpoena to produce documents or give evidence;
(b)pre-trial discovery;
(c)non-party discovery;
(d)interrogatories;
(e)a notice to produce;
(f)a request to produce a document under Division 1 of Part 4.6;
(g)a search warrant.

The judge’s ruling

The respondents have been indicted on serious criminal offences. As noted earlier, each of them has applied for a permanent stay. The grounds of that application contend that the evidence against the accused has been gathered unlawfully and that the conduct of the AFP and of the lawyers acting for the CDPP has been such as to destroy their right to a fair trial.

In accordance with directions given by the judge, affidavits and witness statements were filed by those CDPP and AFP witnesses whom the respondents had indicated they wished to cross-examine. When the first CDPP lawyer was called to give evidence, counsel representing all four accused gave notice that he proposed to ask this witness, and each other CDPP lawyer who gave evidence, about his/her knowledge of the contents of any legal advice given by the CDPP to the AFP concerning (potential) charges against the accused.

Counsel submitted that such a course was authorised by s 123 of the Act. Counsel for the CDPP made submissions to the contrary, contending in particular that the circumstances fell within the ambit of s 131A of the Act, which expressly preserves LPP where information is required to be provided pursuant to a ‘disclosure requirement’.

Her Honour ruled that the solicitor was obliged to answer the question notwithstanding the LPP objection. She concluded that, in eliciting the answer in cross-examination, counsel for the accused would be ‘adducing evidence … in a criminal proceeding’ within the meaning of s 123, and hence that ss 118 and 119 did not prevent the adducing of the evidence. Her Honour held that s 131A had no application.

The CDPP then applied under s 295 of the Criminal Procedure Act 2009 (‘CPA’) for leave to appeal against that decision. When the leave application came on for mention before this Court, attention was drawn to the strict limit imposed by s 295(3)(a) on the scope for a grant of leave to appeal in respect of a ruling on evidence.[7]
[7]See CGL v DPP (No 2) (2010) 24 VR 482, 483 [4]–[6].

The relevant provisions of the CPA are as follows:

295 Right of appeal against interlocutory decision
(1)This section applies to a proceeding in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence.
(2)Subject to this section, a party to a proceeding referred to in subsection (1) may appeal to the Court of Appeal against an interlocutory decision made in the proceeding if the Court of Appeal gives the party leave to appeal.
(3)A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies―
(a)if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case; and
(b)if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and
(c)if the interlocutory decision is made after the trial commences, either―
(i)that the issue that is the subject of the proposed appeal was not reasonably able to be identified before the trial; or
(ii)that the party was not at fault in failing to identify the issue that is the subject of the proposed appeal.[8]

[8]Emphasis added.

When the matter was before her Honour, counsel for the respondents had submitted that the decision concerned the admissibility of evidence and that her Honour would not be able to give the certificate required by s 295(3)(a), since it was not the case that ‘the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case’. Her Honour reserved her decision and ultimately gave a certificate under s 295(3)(b), to the effect that the decision was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.

Given the obvious importance of the issue sought to be litigated before this Court, we invited the parties to consider, as an alternative, the procedure by way of case stated under s 302 of the CPA. Adopting that course, it was suggested, would avoid the need for lengthy debate about whether the application for leave to appeal under s 295 was competent. In the event, with the ready cooperation of all parties and of the trial judge, that procedure was adopted and the substantive hearing of the legal issue was able to proceed as scheduled. If we might respectfully say so, this is a very good example of how these new procedures introduced in 2009 can be utilised to enable the resolution of a pre-trial question of major significance.

Her Honour reserved the following questions:

Question 1
Is each of the accused’s applications to stay the current prosecutions (‘the stay applications’) in a criminal proceeding within the meaning of s 123 of the Evidence Act 2008 (Vic) (‘the Act’)?
Question 2
In the stay applications, in asking questions of the CDPP and AFP witnesses (‘the witnesses’), the answer to which may disclose a confidential communication or the contents of a confidential document (within the meaning of ss 118 or 119 of the Act) (‘privileged matters’), are the accused adducing evidence from the witnesses within the meaning of s 123 of the Act?
Question 3
If the answer to questions 1 and 2 are in the affirmative, does s 123 of the Act require the witnesses to answer, if to do so would require the disclosure of privileged matters to the accused?
Question 4
If, by operation of s 123, Division 1 of Part 3.10 of the Act does not prevent an accused from adducing evidence of privileged matters from the witnesses, does common law legal professional privilege provide a valid ground of objection to answering a question the answer to which may disclose privileged matters?
Question 5
In the stay applications, when being asked questions by the accused in the circumstances set out in paragraphs 7 to 27 inclusive annexure B,[9] are the witnesses being required by a disclosure requirement to give information which would result in the disclosure of privileged matters, within the meaning of s 131A of the Act?[10]
[9]These paragraphs, which are not reproduced, describe the circumstances of the (proposed) cross-examinations.
[10]Emphasis added.

Section 131A not applicable

As noted earlier, the submission of the CDPP before her Honour was that the issue raised by the cross-examination — whether the witness should be required to disclose the content of a privileged communication — was covered by s 131A, and must therefore be resolved against the accused. According to the contention, which was maintained before this Court, the stay application was a ‘preliminary proceeding’ within the meaning of that phrase as used in the heading to s 131A. Further, it was said, the direction which her Honour had given — that the witness make an affidavit and attend for cross-examination — was a ‘disclosure requirement’ within the meaning of that term as defined as s 131A(2).

For reasons with which we respectfully agree, her Honour concluded that s 131A had no application. As she pointed out, the LPP provisions of the Commonwealth and New South Wales Evidence Acts, as originally enacted in 1995, applied only to the adducing of evidence in court proceedings.[11] At preliminary stages, on the other hand, when information and documents were sought to be obtained with a view to future use in a court hearing, it was the common law which governed questions of LPP.
[11]Esso Australia Resources Limited v Federal Commissioner of Taxation (1999) 201 CLR 49, 54–5
[3]–[4].

Her Honour said:

The plain purpose behind s 131A, when it was introduced into the NSW Act, was to achieve consistency, by applying the same law of privilege at both stages.
In Victoria, ss 123 and 131A were introduced into the Evidence Act when it was first enacted in 2008. But it is clear from the Explanatory Memorandum that s 131A was brought in for the same reason as in the NSW Act.
There is a clear dichotomy between adducing evidence (the stage at which s 123 has always governed privilege) and court processes or orders that require the disclosure of information or documents (the stage at which s 131A operates). That dichotomy has been carried through into the Victorian Act. The fact that s 131A(1) provides that the determination of an objection is to be made ‘as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence’ supports that conclusion.
I agree with the ACC accused [the present respondents] that the reference to ‘preliminary proceedings’ in the heading is an indication that the processes or orders of the court to which s 131A applies are proceedings which are ‘preliminary to adducing evidence’. They are preliminary to adducing evidence because they involve obtaining access to information or documents, rather than putting the information or documents before the court for its determination of the case.

The cross-examination of a witness falls squarely within the scope of the LPP provisions as originally enacted. It is part of the process of adducing evidence in court proceedings. Accordingly, the eliciting of evidence about the content of legal advice is prohibited by ss 118 and 119 unless s 123 applies. For completeness, we should record our view that neither a direction to a witness to attend for cross-examination, nor a direction to answer a question in cross-examination over objection, falls within the scope of ‘disclosure requirement’ within the meaning of s 131A(2).

The question, therefore, is whether s 123 applies. We respectfully agree with her Honour that the issue has arisen ‘in a criminal proceeding’, as those words are used in s 123. The question is whether the eliciting of evidence in cross-examination on behalf of an accused falls within the scope of the phrase ‘adducing evidence’ as used in s 123.

Does s 123 apply?

The judge expressed her conclusion in these terms:

I agree with the ACC accused [the present respondents] that, on the proper construction of ss 123 and 131A, legal privilege does not apply to evidence sought to be adduced by the accused at any stage in a criminal proceeding, unless it is a co-accused’s legal privilege. It follows that legal privilege would not be a valid basis for objecting to CDPP and AFP witnesses being asked questions in cross-examination in the ACC applications.

In this Court, the respondents advanced two principal submissions in support of that conclusion. The first directed attention to the phrase ‘adducing evidence’, as it appears in ss 118 and 119 and again in s 123. As can be seen above, ss 118 and 119 prohibit the adducing of evidence if to do so would result in the disclosure of a confidential communication, or the contents of a confidential document, to which LPP attaches. Section 123 exempts from that prohibition evidence adduced by an accused in a criminal proceeding (except where that would result in disclosure of information to which a co-accused’s LPP attaches).

According to the submission, the use of the same phrase — ‘adducing evidence’ — in both the prohibition and the exception demonstrates that the scope of the exception in s 123 was intended to be coterminous with the scope of the prohibition to which it relates. Accordingly, s 123 was intended to abolish LPP in connection with the adducing of evidence by an accused by any means, including by eliciting answers in cross-examination.

The second submission was that, although s 123 thus created a significant exception to LPP, it did not take away common law rights. According to the respondents’ written outline, s 123 ‘was purporting to codify the common law as set out in R v Barton[12] and R v Ataou’.[13] Far from ‘contradict[ing] or overturn[ing]’ the common law, it was submitted, s 123 amounted to a ‘statutory re-enactment’ of the common law. That being so, there was no occasion to invoke the principle of legality.
[12][1973] 1 WLR 115 (‘Barton’).
[13][1988] QB 798 (‘Ataou’). See the discussion of these decisions at [49]–[58] below.

We deal first with the textual argument.

Textual analysis

As the judge pointed out, ch 2 of the Act is headed ‘Adducing evidence’. There is a note at the beginning of the Chapter, in these terms:

Outline of this Chapter
This Chapter is about ways in which evidence is adduced.
Part 2.1 is about adducing evidence from witnesses.
Part 2.2 is about adducing documentary evidence.
Part 2.3 is about adducing other forms of evidence.

The Act does not contain a definition of the phrase ‘adducing evidence’. Although ch 2 comprises 43 sections dealing with the various ways in which evidence may come before a court, the phrase ‘adducing evidence’ itself appears only infrequently.[14] Unsurprisingly, the individual provisions in ch 2 use language appropriate to the particular forms in which evidence is adduced. Thus they speak of:

·a person giving evidence: ss 12–21, 29–34, 36–39 and 46;
·the questioning of witnesses: ss 26, 27, 29, 31 and 37;
·the stages in the giving of oral evidence — examination in chief, cross-examination and re-examination: ss 26, 28, 37–42; and
·the tendering of documents: s 48.

[14]See ss 43, 46-50, 52.

The phrase ‘adducing evidence’ therefore has no fixed meaning in the Act. As its repeated use in the ‘Outline’ of ch 2 makes clear, it is an umbrella term, used to cover a variety of means by which, and forms in which, evidence may come before a court. Depending on the context, the phrase ‘adducing evidence’ when used in a particular provision may encompass all, or some, or only one of the ways in which the Act permits evidence to be adduced.

The following examples illustrate how the phrase — in its different forms — is used both broadly (s 52) and quite narrowly (ss 65 and 155):

52 Adducing of other evidence not affected
This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.
65 Exception—criminal proceedings if maker not available
…
(6)Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by―
(a)the person to whom, or the court or other body to which, the representation was made; or
(b)if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or
(c)the person or body responsible for producing the transcript or recording.

155Evidence of official records
(1) Evidence of a Commonwealth record or of a public document of this State, another State or a Territory may be adduced by producing a document that―
(a) purports to be such a record or document and to be signed or sealed by―
(i) a Minister of the Commonwealth, or a Minister of this or another State or a Territory, as the case requires; or
(ii) a person who might reasonably be supposed to have custody of the record or document; or

(b)purports to be a copy of or extract from the record or document that is certified to be a true copy or extract by―
(i) a Minister of the Commonwealth, or a Minister of this or another State or a Territory, as the case requires; or
(ii) a person who might reasonably be supposed to have custody of the record or document.[15]

[15]Emphasis added. See also ss 174 and 177.

Section 131A itself highlights the variable scope of the phrase as used in this Act. As noted above, s 131A(1) obliges the Court to determine an LPP objection — for example, to the production of documents on subpoena — ‘as if the objection … were an objection to the giving or adducing of evidence’.[16] In this particular context, it seems, the legislature viewed the ‘giving’ and the ‘adducing’ of evidence as different things. In ch 2, by contrast, the latter includes the former.
[16]Emphasis added.

It follows that the (rebuttable) interpretive presumption — that a word used more than once in a statute has the same meaning wherever it appears — has no application to this phrase in this Act. The intended meaning of ‘adducing evidence’ in any particular provision falls to be determined by reference to the purpose of that provision and its context. (Even where the presumption applies, it readily gives way where context indicates that a different meaning was intended.)[17]
[17]D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011) 121 [4.7].

It is highly relevant, therefore, that ss 118 and 119 serve a quite different purpose from that of s 123. The former sections were enacted to give statutory force and protection to LPP, a ‘fundamental and general principle of the common law’.[18] The sections protect the two recognised forms of LPP — advice privilege and litigation privilege. That being so, and in the absence of any indication to the contrary, Parliament is to be taken to have intended the broadest scope for the phrase ‘adducing evidence’ in ss 118 and 119, in order to provide LPP protection for evidence in whatever form it is brought before a court.
[18]Baker (1983) 153 CLR 52, 117.

Quite different considerations apply to provisions — like s 123 — which remove the privilege. For obvious reasons, the consideration which favours a broad reading of the phrase ‘adducing evidence’ in ss 118 and 119 — that it preserves a fundamental common law right — does not apply in relation to a provision which abrogates that right. Applying the principle of legality, the contrary must be true. That is, a section which abrogates the right must be interpreted as having no broader scope than Parliament can be seen clearly to have intended.

This analysis is consistent with decisions of the Supreme Court of New South Wales, cited by counsel for the Commissioner, which have read down provisions creating exceptions from LPP. The provisions in question are these:

121 Loss of client legal privilege—generally
(1)This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died.
…
(3)This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.

In d’Apice v Gutkovich,[19] White J held that the broad language of s 121(1) (‘relevant to a question concerning’) was to be read as abrogating only the privilege of the deceased person and not that of an executor in his or her own right. In Talbot v NRMA Limited,[20] Hodgson CJ in Eq said that the words ‘affects a right of a person’ in s 121(3)

cannot mean a communication or document that is relevant to a right of a person because that would virtually eliminate the legal professional privilege as a ground for non-admission of evidence. In my opinion, that must mean a communication or document that affects in some fairly direct way what are the actual rights and perhaps also duties of a person.[21]

[19][2010] NSWSC 1336, [17]–[20].

[20][2000] NSWSC 602, [3].

[21]Emphasis added. See also Green v AMP Life [2005] NSWSC 95, [24]–[29].

To give the phrase ‘adducing evidence’ in s 123 the construction contended for by the respondents would likewise ‘virtually eliminate the legal professional privilege as a ground for non-admission of evidence’ in criminal proceedings. It would mean, quite simply, that no prosecution witness could decline to answer a question in cross-examination on the ground that to do so would result in the disclosure of a privileged communication or the contents of a privileged document.

Plainly, that would represent a profound change in the way criminal trials are conducted. (If s 123 did indeed effect such a change when first enacted in 1995, it seems remarkable that defence counsel in trials have not until now exploited the forensic opportunity opened up by the change). It is therefore necessary to consider the respondents’ second submission, to the effect that on its first enactment in 1995 s 123 reflected, rather than changing, the common law of Australia as it stood at that time. Before doing so, however, we should point out that the existence of s 131A is itself a serious obstacle to the broader interpretation of s 123.

As can be seen from the text of s 131A set out earlier,[22] its manifest purpose is to preserve LPP as a ground of objection when a person is required to produce documents or provide information under a coercive process of a court (‘disclosure requirement’). Section 131A(2)(a) gives, as an example of a ‘disclosure requirement’, a subpoena to produce documents or to give evidence. Counsel for the respondents accepted, as they were bound to, that if the CDPP solicitor presently under cross-examination had been subpoenaed to produce copies of the relevant legal advices or to give evidence about their content, and had objected on the grounds of LPP, the judge would have been bound by s 131A to uphold the objection (absent any argument about waiver or illegality).
[22]See [11] above.

It follows that, if the respondents’ construction of s 123 were correct, a wholly anomalous position would have been created. Disclosure of legal advice in answer to a subpoena could be resisted on the grounds of LPP but disclosure of the content of the same advice, in answer to a question in cross-examination, could not. When it is appreciated that s 131A would also apply where a subpoena was made returnable at the trial of the proceeding, the anomaly becomes even more striking.

Section 131A was, of course, introduced into the Commonwealth and New South Wales Acts long after s 123 had been enacted. Counsel for the respondents could advance no reason in logic or policy why those legislatures would have introduced a provision which expressly preserved the privilege at the pre-trial stage of a criminal proceeding, if s 123 had already abrogated the privilege at the trial stage of the very same proceeding.

Such an inconsistent approach to LPP defies rational explanation. Parliament would hardly have legislated in such careful terms (in s 131A) to preserve a right to object on grounds of LPP in response to compulsory process if the same privilege, in respect of the same communication, would inevitably be lost once relevant witnesses were cross-examined.

Did s 123 change the common law?

As noted earlier, the submission for the respondents was that, in effectively removing LPP as a ground of objection in criminal trials, s 123 was a codification of the common law of Australia as it stood in 1995. The decisions in Barton[23] and Ataou[24] were said to express the common law ‘principle’ thus given expression in s 123. Both were decisions of English courts, however, and counsel were unable to identify any Australian authority which supported the proposition. The only reference to an Australian decision was to the dissenting judgment of Gibbs CJ in Baker.[25]
[23][1973] 1 WLR 115.
[24][1988] QB 798.
[25](1983) 153 CLR 52.

This submission must be rejected. First, as will appear, the English authorities established no such broad ‘principle’. Secondly, and in any event, such modification of LPP as those decisions may have temporarily effected in English law (until they were both overruled by the House of Lords in 1995)[26] was never part of the common law of Australia. (We should point out that no such submission was advanced before the trial judge. On the contrary, as noted below,[27] counsel for the accused advanced the opposite contention, namely, that s 123 had reversed the common law position as declared in Carter.)[28]
[26]R v Derby Magistrates’ Court, ex parte B [1996] 1 AC 487, 508–9 (‘Derby’).
[27]See [63] below.
[28](1995) 183 CLR 121.

In Barton,[29] a trial judge refused to set aside a subpoena to produce documents which had been served on behalf of the accused in a criminal trial. In giving his reasons for ruling in favour of production of the documents, Caulfield J said:

I think the correct principle is this, and I think 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.[30]

[29][1973] 1 WLR 115.

[30]Ibid 118.

Several points may be noted about this ruling. First, as the House of Lords pointed out when overruling Barton,[31] the decision of Caulfield J was ‘one of first impression. It was given as an interlocutory ruling in the course of a criminal trial on circuit’.[32] Secondly, Caulfield J himself recognised that the ‘principle’ which he enunciated was not supported by any authority. He made clear that he was ‘just working on what I conceive to be the rules of natural justice’. Thirdly, as the Court of Appeal noted in Ataou,[33] Caulfield J ‘was careful, in an uncharted sea, to confine himself to the facts before him’.
[31][1973] 1 WLR 115.
[32]Derby [1996] 1 AC 487, 502.
[33][1988] QB 798, 805.

In passing, we note that the particular facts of the case may go some way to explaining why Caulfield J ruled as he did. The accused was charged with offences allegedly committed in the course of his employment with a firm of solicitors, and it was those solicitors who were asserting the claim to privilege. Special considerations of fairness may be thought to arise in such circumstances, comparable to those which arise where a client sues a solicitor for negligence and is deemed — as a matter of fairness — to have waived the privilege in respect of documents on which the solicitor needs to rely in order to defend the claim.[34]
[34]See Mann v Carnell (1999) 201 CLR 1, 13 [28]–[29].

Be that as it may, it is clear that the decision in Barton[35] did not purport to effect a wholesale abrogation of LPP in criminal trials of the kind which — according to the respondents’ argument — was effected by s 123. In any case, the decision in Barton[36] — or at least the broad statement of ‘principle’ — was effectively overruled by the Court of Appeal in Ataou,[37] on which the respondents also relied.
[35][1973] 1 WLR 115.
[36]Ibid.
[37][1988] QB 798.

In that case, the appellant was being tried for a drug offence. His co-accused had pleaded guilty and was giving evidence for the prosecution. He sought to cross-examine the co-accused on a previous — and allegedly inconsistent — statement he had made to his solicitor. The co-accused claimed privilege successfully. The question before the Court of Appeal was whether that claim to privilege should have succeeded.

The Court in Ataou[38] (Wolff LJ, Waterhouse and French JJ) discussed Barton[39] and also the New Zealand decision of R v Craig.[40] In the latter case, the defendant had been indicted for perjury, alleged to have been committed in a civil action brought against an insurance company in which the defendant had been a witness for the plaintiff. The Crown wished to call the solicitor who, when acting for the plaintiff in the civil action, had taken the proof of evidence from the defendant. The Crown sought to rely on the proof in support of the charge of perjury. The solicitor claimed privilege over the document.
[38]Ibid.
[39][1973] 1 WLR 115.
[40][1975] 1 NZLR 597 (‘Craig’).

In Craig,[41] Cooke J ruled that the privilege claim should be upheld. Noting that he was in a ‘situation of indecisive authority’, his Honour enunciated the following ‘general principle’:[42]

When a communication was originally privileged and in criminal proceedings the privilege is claimed, against the prosecution, in respect of evidence by the client originally concerned or his solicitor, the onus should be on the prosecution to show that the claim cannot be sustained. That might be done either by demonstrating that there is no ground on which the client could any longer be reasonably regarded as having a recognisable interest in asserting the privilege or that an established exception applies. Here the first of those things could not be said.

[41]Ibid.

[42]Ibid 599.

In Ataou,[43] far from affirming Barton,[44] the Court of Appeal approved and adapted the (quite different) statement of principle from Craig,[45] in these terms:

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.[46]

[43][1988] 1 QB 798.

[44][1973] 1 WLR 115.

[45][1975] 1 NZLR 597.

[46][1988] 1 QB 798, 807.

As the High Court’s decision in Carter[47] makes clear, Australian law has never viewed the determination of a claim for LPP as involving any ‘balancing’ exercise of the kind described in the concluding sentence of this passage. As Deane J explained, the privilege itself ‘represents the outcome of a such a balancing process and reflects the common law’s verdict that the considerations favouring the ‘perfect security’ of communications and documents provided by the privilege must prevail’.[48] The position is the same under English law, as the House of Lords made clear[49] in overruling Barton[50] and Ataou.[51]
[47](1995) 183 CLR 121.
[48]Ibid 133.
[49]Derby [1996] 1 AC 487, 508 (Lord Taylor CJ), 509 (Lord Lloyd).
[50][1973] 1 WLR 115.
[51][1988] 1 QB 798.

What matters for present purposes is that the authorities relied on by the respondents did not establish any ‘principle’ that LPP in criminal trials was overridden whenever the accused could show that access to the privileged information was required for his/her defence. On the contrary, Ataou[52] affirmed that LPP would remain a proper ground for refusing to disclose information in a criminal trial, unless the defence could establish that the holder of the privilege no longer had ‘a recognisable interest in asserting the privilege’.[53] Where such an interest subsisted, the court would have to weigh its significance against the forensic interest asserted by the accused.
[52]Ibid.
[53]Ibid 599.

Not part of Australian common law

Whatever might have been the exact scope of the short-lived Barton/Ataou ‘principle’, no such principle ever formed part of the common law of Australia. So much was made clear by the majority judgments in the High Court in Carter.[54] But it had been made clear a decade earlier, by the 1985 decision of the New South Wales Supreme Court in Cain v Glass.[55]
[54](1995) 183 CLR 121.
[55](1985) 3 NSWLR 39 (‘Cain’).

In that case, the Commissioner of Police had produced documents in answer to a subpoena issued on behalf of defendants charged with murder. The magistrate conducting the committal proceeding had upheld the Commissioner’s claim for LPP, on the basis that the documents had been brought into existence for the purpose of obtaining legal advice with a view to litigation.

The claim of privilege was upheld on appeal to the Supreme Court. Lusher J rejected the contention advanced on behalf of the defendants — expressly based on Barton[56] — that ‘no professional privilege exists in criminal proceedings’.[57] His Honour pointed out, correctly, that according to the majority judgments in Baker[58] ‘the privilege attaches to criminal proceedings’.[59] His Honour noted that the defendants had relied (as the respondents in the present proceeding did) on the reference to Barton[60] in the dissenting judgment of Gibbs CJ in Baker,[61] and said:

As I read it, his Honour did no more than mention the case, it was not the subject of any judicial acceptance or approval.[62]

With respect, that statement was plainly correct. The reference by Gibbs CJ in Baker[63] was just that — a passing reference in a dissenting judgment.

[56][1973] 1 WLR 115.

[57]Cain (1985) 3 NSWLR 39, 42.

[58](1983) 153 CLR 52.

[59]Cain (1985) 3 NSWLR 39, 43.

[60][1973] 1 WLR 115.

[61](1983) 153 CLR 52.

[62]Cain (1985) 3 NSWLR 39, 42.

[63](1983) 153 CLR 52.

Ten years later, in Carter,[64] the High Court majority emphatically rejected the contention that the ‘principle’ enunciated in Barton[65] should be recognised in Australia. McHugh J said:

[I]n my opinion, given the settled interpretation of the doctrine of legal professional privilege in Australia and its rationale, it cannot be accepted in this country.
First, it is inconsistent with the terms in which the doctrine of legal professional privilege has been formulated and applied in this Court. Apart from the statement in a dissenting judgment of Gibbs CJ[66] which arguably accepted the proposition, those formulations contain no hint of any such exception to the doctrine of legal professional privilege. Implicitly, they have accepted that any reform of the doctrine, if it is in need of reform, is a matter for the legislature.[67]

Deane J likewise noted that the Court was being asked to alter ‘the common law of this country’.[68] His Honour described the statement by Caulfield J in Barton[69] as ‘contrary to all general statements of authority in England and in this country of which I am aware.’[70] The House of Lords, overruling Barton[71] only months later, expressed essentially the same view.

[64](1995) 183 CLR 121.

[65][1973] 1 WLR 115.

[66]The reference was to Baker (1983) 153 CLR 52, 68.

[67]Carter (1995) 183 CLR 121, 162 (citations omitted).

[68]Ibid 136.

[69][1973] 1 WLR 115.

[70]Carter (1995) 183 CLR 121, 137.

[71][1973] 1 WLR 115.

In the present proceeding, the respondents relied on the fact that the decision of the High Court in Carter[72] was handed down after s 123 had come into force at the Federal level and in New South Wales. (Before the trial judge, counsel for the accused made a submission which was the reverse of the one advanced in this Court. Far from contending that s 123 reflected the common law of Australia, counsel submitted to her Honour that s 123 had been enacted to overrule the decision in Carter.[73] As her Honour pointed out in her reasons, however, the decision in Carter[74] was not handed down until after s 123 had come into force.)
[72](1995) 183 CLR 121.
[73]Ibid.
[74]Ibid.

Nothing turns on the date of the High Court’s decision in Carter.[75] First, as is clear from the majority judgments in that case, the Court was simply confirming what was apparent from the long line of decisions of the Court on LPP dating back to Grant v Downs[76] in 1976, namely, that the established common law principles left no room for such a broad exception. As we have already pointed out, the ‘balancing’ exercise propounded by the Court of Appeal in Ataou[77] was wholly inconsistent with the established common law position in Australia.
[75]Ibid.
[76](1976) 135 CLR 674.
[77][1988] 1 QB 798.

Secondly, as senior counsel for the Commissioner pointed out in reply, the common law position had been clearly stated by the Full Court of the Western Australian Supreme Court well before the enactment of s 123. In July 1993, that Court rejected as inconsistent with High Court authority the contention that a ‘Barton’ exception should be recognised in Australia.[78] That was the decision from which Mr Carter unsuccessfully appealed to the High Court, and it was an authoritative statement of the common law of Australia as at that date.
[78]Carter v Northmore Hale Davy & Leake (Unreported, Supreme Court of Western Australia, Malcolm CJ, Rowland and Franklyn JJ, 15 July 1993).

It follows that, if s 123 as originally enacted in 1995 had been intended to operate as the respondents contend, it would have fundamentally altered the common law of Australia. There is, however, nothing in the language of s 123, or in the extrinsic materials of the time, to suggest that such a change was ever contemplated. As will appear, the 1985 interim report of the Australian Law Reform Commission (‘ALRC’)[79] had proposed an LPP exception based on Barton.[80] But that report contained no analysis of the common law position in Australia, and said nothing to suggest that a substantial abrogation of the common law was contemplated, less still recommended.
[79]Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985).
[80][1973] 1 WLR 115.

But even if the common law position had been otherwise as at 1995, by the time the Victorian Parliament passed the Act in 2008 the common law applicable in Victoria was as stated definitively by the High Court in Carter.[81] That is, there was no ‘Barton’ exception. LPP continued to be a proper ground of objection in criminal trials except in the limited circumstances referred to earlier, that is, where an accused was already in possession of privileged information.[82] Counsel for the respondents accepted that this must be so.
[81](1995) 183 CLR 121.
[82]See [8] above.

It followed that, if the construction of s 123 advanced by the respondents were correct, the enactment of that provision in Victoria in 2008 abrogated existing common law rights. Counsel for the respondents were asked to explain why, if that were the correct construction of s 123, Parliament in 2008 had said nothing about the fact that such a major change was taking place nor about why such a change was thought to be necessary or justified.

The explanation, counsel submitted, was that although the enactment of s 123 had had the consequence of abrogating the common law as declared in Carter,[83] that had not been Parliament’s intention. Rather, it was said, the driving purpose behind the 2008 Act had been to achieve uniformity in the law of evidence between Victoria and the Commonwealth and New South Wales. According to the submission, the abrogation of the privilege was simply the ‘passive consequence’ of the drive for uniformity. Counsel was unable to say whether this was an intended or an unintended consequence, as there was ‘no evidence either way’.
[83](1995) 183 CLR 121.

This argument (which was not advanced before the trial judge) must also be rejected. It cannot seriously be supposed that the Victorian Parliament effected a wholesale abrogation of LPP in criminal proceedings without intending to do so or realising that it was doing so. Common law rights cannot be removed inadvertently or accidentally. As we have already pointed out, such a change in the law can only be effected by the clearest statutory language,[84] expressing unambiguously the Parliament’s intention to make the change.
[84]See [2] above.

In any case, the Attorney-General’s Second Reading Speech in 2008 makes clear that the matter of LPP was not overlooked. Far from signalling any significant abrogation of LPP, the Minister stated simply that the ‘client-lawyer privilege is continued broadly along traditional lines’.[85]
[85]Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2633–4 and 2636.

The law reform materials

We have left until last any reference to the successive reports of the Australian Law Reform Commission (‘ALRC’) on evidence law, including most relevantly the 2005 joint report with the Victorian Law Reform Commission (and the New South Wales Law Reform Commission) which preceded the enactment of the Act. As will be apparent from the foregoing, we have not found it necessary to refer to those materials in order to decide the question of construction. Moreover, as the judge at first instance noted, they are of very limited assistance.

The following summary is sufficient for present purposes:

·in ALRC 26 (the 1985 interim report),[86] the ALRC said that LPP should be lost where ‘it would result in the withholding of evidence relevant to the defence of an accused’. The decision in Barton[87] was cited as supporting this proposition but — as mentioned earlier — the report did not address the common law position or evince any awareness of how significant a change in the law this would represent;
·in ALRC 38 (the 1987 final report),[88] the ALRC described the earlier proposal as ‘too wide’ and recommended that it be limited ‘so that it operates only in respect of evidence adduced by a defendant in a criminal proceeding’. Once again, there was no discussion of the intended scope of this recommendation or of its implications (other than that it should not affect the privilege of a co-accused);
·in ALRC 102 (the 2005 joint report),[89] the Commissions were primarily concerned with the extension of LPP to pre-trial proceedings. This was the report that led to the enactment of s 131A. The joint view expressed by the Commissions was as follows:
It is the clear position of the courts in Australia since Baker v Campbell that legal professional privilege is a fundamental right that applies to court, administrative and investigative proceedings. The Commissions’ view is that, in the interests of clarity and uniformity, the client legal privilege sections of the uniform Evidence Acts [ss 118 and 119] should be extended to apply to these pre-trial contexts [subpoenas, interrogatories, notices to produce and so on], as currently regulated by the common law rules of legal professional privilege.[90]

[86]Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) (‘ALRC 26’).

[87][1973] 1 WLR 115.

[88]Australian Law Reform Commission, Evidence, Report No 38 (1987) (‘ALRC 38’).

[89]Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) (‘ALRC 102’).

[90]Ibid [14.63] (citations omitted).

The Commissions considered the implications of extending s 123 to pre-trial contexts, before recommending that there should be no such extension:

The Commissions agree that it would be undesirable if the extension of the privilege sections of the uniform Evidence Acts to pre-trial proceedings had the effect of abrogating client legal privilege in relation to any legal advice given to the DPP. The policy foundation of client legal privilege — frank and complete communication between lawyer and client — applies equally to the DPP. Given the obligation on the prosecution to reveal all material evidence, significant court time could be spent in applications by the defence to gain access to advice that will have little bearing on the substantive issues in the case. Counsel or solicitors may also feel constrained in the provision of their advice for the DPP if such information could be made available later.
The extension of s 123 to pre-trial contexts may also have an impact beyond the difficulties for prosecutors described above. It would effectively overturn the decision in Carter and remove the basis on which any person could claim the privilege in response to a subpoena to produce documents from an accused. This would go against the narrowing of the proposal in ALRC 38, which, as mentioned above, expressly sought to limit the section to evidence adduced by a defendant in a criminal proceeding. Whilst the first proposal would address the concerns raised by prosecutors, it leaves open the issue of the otherwise privileged material of other parties being open to access by the accused. The Commissions are concerned that there has not been adequate time to explore the full impact of such a change, and recommend keeping the original limitation on s 123 intended by the previous Evidence inquiry. Therefore if Recommendation 14–1 is adopted [to extend statutory LPP to pre-trial compulsory processes], s 123 should remain only applicable to the adducing of evidence at trial by an accused in a criminal proceeding.[91]

[91]Ibid [14.168]–[14.169] (emphasis added).

As can be seen from the highlighted passages, the Commissions considered that to extend the s 123 exception to pre-trial compulsory processes ‘would effectively overturn the decision in Carter’. That would mean, they said, that LPP would disappear entirely as a ground of objection to production of documents on subpoena. For that reason, the Commissions recommended there be no such extension.

These remarks appear to imply a very broad view of the scope of s 123. But, if that was indeed the view of the Commissions, it is nowhere made explicit in the report. Nor, relevantly, is there any suggestion in the report that the enactment of s 123 in Victoria would abrogate — in all criminal proceedings — the common law of LPP as stated in Carter.[92] Nor did the report suggest that the enactment of s 131A (preserving LPP) would create any inconsistency with the exception to LPP created by s 123.
[92](1995) 183 CLR 121.

Finally, we should mention two New South Wales decisions, which were referred to in ALRC 102 and on which the respondents relied. The first is R v Pearson,[93] a 1996 decision of the New South Wales Court of Criminal Appeal. In that case, the accused was on trial for arson. His counsel sought access to materials in the possession of the insurers, thought to be relevant to investigations that had been made, and opinions formed, as to the cause of the fire. It was common ground that all of the documents ultimately produced by the insurers were the subject of LPP. The question arose as to whether, in those circumstances, the accused ought to be entitled to have access to the documents.
[93]Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Smart and Sully JJ, 5 March 1996.

On the authority of Carter,[94] the trial judge upheld the LPP objection to production. That prompted an application on behalf of the accused for a stay of proceedings on the basis that, by reason of his inability to have access to the documents, he could not receive a fair trial. The judge refused to grant a permanent stay, but granted a conditional stay pending the hearing of relevant civil proceedings. Both parties sought leave to appeal from that ruling. In the meantime, on 1 September 1995, the Evidence Act 1995 (NSW) came into force.
[94](1995) 183 CLR 121.

Gleeson CJ (with whom the other members of the Court agreed) said:

It is agreed between counsel before this Court that the practical effect of s 123 of the Evidence Act 1995, when read together with s 118, in a case of the present kind, is to reverse the effect of the decision of the High Court in Carter. It was common ground that in criminal proceedings to which the Evidence Act 1995 applies, s 123 produces the practical result that legal professional privilege does not stand in the way of obtaining access to subpoenaed documents, at least in circumstances where a legitimate forensic purpose of the accused at a criminal trial is served by being given access to such documents for the purpose of potential use at the trial.[95]

[95]R v Pearson (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Smart and Sully JJ, 5 March 1996) (emphasis added).

On that basis, the Court concluded, the order granting a conditional stay should be set aside:

The circumstances that now exist are such that if the criminal trial is conducted in the usual way before the civil proceedings, but is conducted under provisions of the Evidence Act 1995, then the reason advanced in support of the proposition that the accused will be unable to obtain a fair trial is no longer valid.[96]

[96]Ibid.

Plainly enough, the agreement between counsel to which Gleeson CJ referred made it unnecessary for the Court to consider for itself the question now before this Court, namely, whether the legislatures in enacting s 123 had intended to ‘reverse’ the common law as stated in Carter.[97] Had that question fallen for determination by the Court of Criminal Appeal, that Court would of necessity have had to deal with the full range of issues canvassed by the High Court in Carter[98] regarding the history and purposes of LPP, and with the principles of statutory interpretation dealt with in this judgment. Accordingly, the decision in Pearson[99] did not stand as authority for the proposition that s 123 had reversed Carter.
[97](1995) 183 CLR 121.
[98]Ibid.
[99]Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Smart and Sully JJ, 5 March 1996.

The second decision is Director of Public Prosecutions (Cth) v Kane.[100] There, defendants charged with Commonwealth offences had applied to the CDPP for a discontinuance of the committal proceedings against them. A solicitor employed in the office of the CDPP provided detailed written advice recommending that the application be refused. Inadvertently, copies of this advice came into the hands of the defendants’ solicitors. When the solicitors for some of the defendants refused the Director’s request to return the copies of the advice, the Director applied to the Court for orders restraining the defendants from making any use of the copy advice, on the grounds of the equitable obligation of confidence, alternatively LPP.
[100](1997) 140 FLR 468 (‘Kane’).

Hunt CJ upheld the claim based on the equitable obligation of confidence, and ordered the delivery up of the copies.[101] His Honour held that the equitable obligation had arisen independently of LPP, but that in any event the privilege had not been lost by waiver. As to privilege, his Honour noted that his attention had been drawn to ‘three main alterations’ of the law effected by the Evidence Act 1995 (Cth). The first concerned the replacement by ss 118–119 of the sole purpose test with the dominant purpose test. The second, said to have been effected by s 123, was described in the judgment in these terms:

The second alteration discussed was the overriding by s 123 of the Act of the decision of the High Court in Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121 so that the privilege which the common law had retained even as against a defendant to a criminal proceeding is now lost. The communication which such a defendant wishes to use must, of course, be relevant to the criminal proceedings in which he is the defendant and, although the document in question here was said to be relevant to the application to this Court to stay the committal proceedings (to which reference was made earlier), there is nothing in the document which could assist the defendant in the present case in his conduct of a trial in the event that he is committed. It was conceded that it would not be admissible in any such trial. That that is so is again acknowledged by the concession referred to in the last paragraph. It was also conceded that the application to this Court for a stay did not itself fall within the s 3 definition of a criminal proceeding; if the document otherwise remains privileged, s 123 would not permit the defendant to adduce it in evidence in that application.[102]

[101]Ibid 476–7.

[102]Ibid 478.

As can be seen, Hunt CJ made only the briefest of references to s 123, expressed no opinion on its construction, and concluded that it had no application to the question before the Court. As in Pearson,[103] his Honour had no occasion to consider whether it was correct — as he had been told — that s 123 had made such an alteration to the common law. Like Pearson,[104] therefore, Kane[105] did not stand as authority for the proposition that s 123 had overridden Carter.[106]
[103]Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Smart and Sully JJ, 5 March 1996.
[104]Ibid.
[105](1997) 140 FLR 468.
[106](1995) 183 CLR 121.

Conclusion

When s 123 uses the phrase ‘adducing evidence’, it refers to — and only to — the adducing by an accused of evidence already in the accused’s possession or knowledge. The statement to that effect in The New Law of Evidence, on which the CDPP and the Commissioner both relied, is correct.[107]
[107]J Anderson, N Williams, L Clegg, The New Law of Evidence – Annotation and Commentary on the Uniform Evidence Acts (LexisNexis Butterworths, 2^nd ed, 2008) 562-3 [123.2].

Section 123 preserved the recognised common law exception to LPP in criminal trials. Without s 123, ss 118 and 119 would have prevented an accused person from adducing evidence of privileged communications already in his/her possession. As Grove J held in R v Wilkie:[108]

[T]he effect of the section is to enable an accused to use what would otherwise be privileged information if he has possession of it, but it does not in its own terms provide a vehicle for enforced production of such material.

[108][2008] NSWCA 885, [4].

The intended operation of s 123 is, in our view, helpfully illustrated by the following example set out in the submission for the Commissioner. (We have made one modification, as marked):

To illustrate, a company director may be charged with a criminal offence in circumstances where that director, in the course of his or her duties, had come into possession of legal advice provided to the company. The director may wish to give evidence about that advice in order to explain his or her state of mind (because, for example, it may assist to meet an allegation of dishonesty or recklessness). In the absence of s 123, s 118 would allow the company (the client) to claim LPP, with the result that evidence of the advice could not be adduced, and therefore would be inadmissible pursuant to s 134. Properly construed, s 123 reverses that situation so that the advice is admissible.
Critically, however, in a case where the director did not already have the advice, s 123 would have no work to do. If any attempt was made to require the company to produce the advice, s 131A would prevent any reliance on s 123. Further, if a witness was asked about the advice during cross-examination, the witness could claim LPP [under s 118][109] to avoid answering the question because LPP operates at the point of compulsion, rather than at the subsequent point of determining the admissibility of the answer.

[109]The submission said ‘under the common law’, but the statutory privilege would seem to govern the position.

The alternative argument advanced by counsel for the Commissioner was that, even if s 123 had abrogated the statutory privilege conferred by ss 118 and 119, those provisions did not constitute a code and — hence — the common law as declared in Carter[110] had survived and could be invoked to support the claim of privilege in the present case.[111] In view of our conclusion about the limited scope of s 123, it is unnecessary to consider this argument.
[110](1995) 183 CLR 121.
[111]Cf Haddara v The Queen [2014] VSCA 100.

Finally, we should say this. As noted earlier, the stay applications are based on allegations of investigative and prosecutorial illegality, malpractice and/or unfairness. If the CDPP (or the AFP) had knowledge of any circumstances, or had possession of any documents or information, which substantiated any such allegation, the Director or the Commissioner (as the case may be) would be obliged to disclose those matters irrespective of any questions of privilege.

The questions in the case stated should be answered as follows:

Question 1
Is each of the accused’s applications to stay the current prosecutions (‘the stay applications’) in a criminal proceeding within the meaning of s 123 of the Evidence Act 2008 (Vic) (‘the Act’)?
Answer
Yes.
Question 2
In the stay applications, in asking questions of the CDPP and AFP witnesses (‘the witnesses’), the answer to which may disclose a confidential communication or the contents of a confidential document (within the meaning of ss 118 or 119 of the Act) (‘privileged matters’), are the accused adducing evidence from the witnesses within the meaning of s 123 of the Act?
Answer
No.
Question 3
If the answer to questions 1 and 2 are in the affirmative, does s 123 of the Act require the witnesses to answer, if to do so would require the disclosure of privileged matters to the accused?
Answer
Does not arise.
Question 4
If, by operation of s 123, Division 1 of Part 3.10 of the Act does not prevent an accused from adducing evidence of privileged matters from the witnesses, does common law legal professional privilege provide a valid ground of objection to answering a question the answer to which may disclose privileged matters?
Answer
Unnecessary to answer.
Question 5
In the stay applications, when being asked questions by the accused in the circumstances set out in paragraphs 7 to 27 inclusive annexure B,[112] are the witnesses being required by a disclosure requirement to give information which would result in the disclosure of privileged matters, within the meaning of s 131A of the Act?
[112]These paragraphs, which are not reproduced, describe the circumstances of the (proposed) cross-examinations.
Answer
No.
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Director of Public Prosecutions (Cth) v Donald Galloway(a pseudonym)[1] , Robert Glenn (a pseudonym) , Stephen Palmer (a pseudonym) , Roger McKee (a pseudonym) and Commissioner of the Australian Federal Police [2014] VSCA 272

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[2014] VSCA 272

30 October 2014