R v Bunting

Case [2002] SASC 412

R v BUNTING & OTHERS
[2002] SASC 412

Criminal:  Reasons for Rulings

  1. MARTIN J            John Justin Bunting, Mark Ray Haydon and Robert Joe Wagner were charged jointly with 11 counts of murder alleged to have been committed between December 1995 and May 1999.  In addition, Bunting and Haydon were jointly charged with a further count of murder alleged to have been committed in 1992 and Wagner was charged with Assisting Offenders in connection with that crime of murder.  Haydon issued subpoenas directed to the Commissioner of Police (“the Commissioner”) and the Director of Public Prosecutions (“the Director”) seeking production of various documents relating to communications involving the Director or legal practitioners employed in the Office of the Director (“DPP practitioners”).  Among the grounds of objection taken by the Director was a claim that a number of the communications were protected from disclosure by reason of legal professional privilege.  I ruled that the doctrine of legal professional privilege was capable of applying to communications involving the Director and DPP practitioners.  I now set out my reasons for that ruling.

  2. Broadly speaking, the communications sought by the accused fell within four categories.  First, Haydon sought access to all communications between the Commissioner and the Director or DPP practitioners concerning a witness, James Spyridon Vlassakis.  Mr Vlassakis had been jointly charged with the accused with five of the counts of murder.  Prior to the conclusion of the preliminary examination he was presented in the Supreme Court on an Information charging him with four of those five counts of murder.  He pleaded guilty to those four counts.  The Crown discontinued the fifth count.

  3. The second category of communications also related to Vlassakis.  Haydon sought all documents and notes of communications between the Director or DPP practitioners and Vlassakis or his legal advisers concerning both the pleas of guilty and the provision of information by Vlassakis to the Director or the police.  The third category related to communications between the Director or DPP practitioners and investigating police officers in connection with the investigation into the deaths that are the subject of the charges.  Fourthly, access was sought to notes made by DPP practitioners of communications with prosecution witnesses during proofing sessions.

  4. In respect of some of the documents, the Director submitted that access was being sought to the content of communications which, in the hands of a private client, would be privileged.  By way of general description, the communications were made for the dominant purpose of the giving or the obtaining of legal advice in connection with anticipated or existing litigation or were between the Director or DPP practitioners and third parties with a view to obtaining evidence to be used in the litigation.  The Director argued that the doctrine of legal professional privilege applies in the same way as it applies to communications between a legal practitioner and a private client.  In opposing the claim, the accused submitted that the necessary confidential relationship was absent and that the nature of prosecution obligation of disclosure…

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Details
AGLC
R v Bunting [2002] SASC 412
Case
[2002] SASC 412
Decision Date

CaseChat Overview and Summary

The case of R v Bunting, which came before the court, involved a dispute regarding the Director's ability to assert legal professional privilege over specific types of communications. The issue was considered significant to the administration of criminal justice in South Australia, prompting the Law Society and the Bar Association of South Australia to intervene and present joint submissions. The Attorney-General was also granted leave to intervene, given the broader implications of the case.
The primary legal issue before the court was whether the Director could successfully claim legal professional privilege for the communications in question. This question had not been thoroughly examined by the court previously. The court needed to determine the scope of legal professional privilege and how it applies to communications between salaried practitioners and their clients.
The court's reasoning focused on the rationale behind legal professional privilege, as outlined in previous judgments. The court emphasised the importance of encouraging clients to seek legal advice and disclose relevant information fully and frankly. The privilege serves the public interest by facilitating the administration of justice. The court recognised the need to balance the privilege's benefits with the potential disadvantages of limiting access to relevant information. The court found that the Director could claim legal professional privilege for the communications in question, provided they met the necessary criteria. This decision was based on the importance of protecting confidential communications between salaried practitioners and their clients to ensure effective legal representation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MARTIN J

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Ratio Decidendi

Legal Principle Established

Established by: MARTIN J

The question whether the Director is able to claim legal professional privilege in respect of communications of the type under consideration has not previously been the subject of detailed consideration by this Court. The claim by the Director is of recent origin and I was informed that the Law Society and the Bar Association of South Australia regard the issue as one of significance to the administration of criminal justice in this State. Against that background, I granted leave to the Law Society and the Bar Association to intervene and present joint submissions. Following the grant of that leave, I also granted leave to the Attorney-General to intervene.Legal Professional Privilege – Rationale The rationale for the existence of legal professional privilege at the hands of the client was explained in a frequently cited passage in the judgment of Stephen, Mason and Murphy JJ in Grant v Downs (1976) 135 CLR 674 at 685:“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. None the less there are powerful considerations which suggest that the privilege should be confined within strict limits.” The rationale was confirmed by Gleeson CJ, Gaudron and Gummow JJ in a joint judgment in Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49 [35]:“Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v Campbell [(1983) 153 CLR 52], and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth, Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. [(1987) 163 CLR 54 at 64-65. See also Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128, per Brennan J; at 134, per Deane J; at 147, per Toohey J; at 163, per McHugh J.] As Deane J expressed it in Baker v Campbell [(1983) 153 CLR 52 at 114], a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations.” (my emphasis)Salaried Practitioners