Re CJC & Anor v Connolly & Ryan
[1997] QSC 48
•10 March 1997
IN THE SUPREME COURT
OF QUEENSLAND
10261 of 1996
Before the Hon. Mr Justice Thomas
[Re CJC & Anor v Connolly & Ryan]
BETWEEN:
THE CRIMINAL JUSTICE COMMISSION
First Plaintiff
AND:
PIERRE MARK LE GRAND
Second Plaintiff
AND:
PETER DAVID CONNOLLY QC and
KEVIN WILLIAM RYAN QC
Defendants
AND:
ATTORNEY-GENERAL
Intervenor
JUDGMENT - THOMAS J.
Delivered:10 March 1997
CATCHWORDS: EVIDENCE - privilege - legal professional - commission the subject of investigation by another commission - whether documents created for sole purpose of obtaining legal advice - some documents obtained through investigative status of CJC - whether privilege available in respect of such documents - extracts of transcripts assembled so as to reveal a certain line of defence - whether privileged.
Counsel:Mr Sofronoff QC, with him Mr G. Newton for the Plaintiffs
Mr McMurdo QC, with him Mrs D.A. Mullins for the Attorney-General Intervenor
Mr S.C. Couper for the Defendants
Solicitors:McCullough Robertson for the Plaintiffs
Crown Solicitor for the Attorney-General Intervenor and the Defendants
Hearing Date: 3 March 1997
IN THE SUPREME COURT
OF QUEENSLAND
10261 of 1996
Before the Hon. Mr Justice Thomas
[Re CJC & Anor v Connolly & Ryan]
BETWEEN:
THE CRIMINAL JUSTICE COMMISSION
First Plaintiff
AND:
PIERRE MARK LE GRAND
Second Plaintiff
AND:
PETER DAVID CONNOLLY QC and
KEVIN WILLIAM RYAN QC
Defendants
REASONS FOR JUDGMENT - THOMAS J
Judgment delivered 10 March 1997
The Criminal Justice Commission ("the CJC") is a corporation established by the Criminal Justice Act 1989. It has numerous statutory obligations and functions which include the monitoring of criminal justice in the State, and the discharge of such functions in the administration of criminal justice as the commission considers cannot be effectively discharged by the police service or other agencies of the State. The second plaintiff, Mr Le Grand, is the Director of the Official Misconduct Division of the CJC.
The defendants are Commissioners appointed by Order in Council of 7 October 1996 under the Commissions of Inquiry Act 1950 to examine and make recommendations in relation to the future role, structure, powers and operations of the CJC. The defendants at all relevant times have acted as commissioners conducting the inquiry thereby established. In order to avoid confusion between the respective parties, the defendants will be referred to as the Connolly-Ryan Commission.
On 20 November 1996 the Connolly-Ryan Commission issued a summons to the Chairman of the CJC to produce the following documents -
"(a)all files maintained by the Criminal Justice Commission relating to an investigation of the allegations made by Allan Grice in the Hansard Reports of Proceedings for the Legislative Assembly of Queensland on 13 September 1996 at pages 2915-2918.
(b)all documents obtained from third parties as a result of such investigation;
(c)all Notices to Furnish a Statement of Information pursuant to s. 69 Criminal Justice Act 1989 issued as part of such investigation."
This was resisted by the CJC, which appeared before the Connolly-Ryan Commission through counsel, on the grounds that such documents were the subject of legal professional privilege. On 2 December 1996 the Commissioners rejected the claim for privilege, expressing the view that it could not be said that the sole purpose for which the documents were brought into existence was for submission for legal advice or for use in legal proceedings. The present proceedings were then brought by the CJC for a declaration that the documents are the subject of legal professional privilege.
In the interim the CJC has abandoned its claim to privilege with respect to some documents and has supplied those documents to the Connolly-Ryan Commission. At present the declaration is sought in respect of documents described as follows -
"(1)the documents contained in sealed boxes in the possession of the Defendants consisting of:
(a)statements, draft statements and file notes gathered or produced by Russell Alfred Pearce and containing information from persons with whom he had conversed;
(b)correspondence to which Russell Alfred Pearce has been a party with persons to whom he was in contact, containing information relevant to the Grice allegations;
(c)a written memorandum in draft form, intended to be given to Counsel, containing the analysis and observations of the evidence, prepared by Russell Alfred Pearce and summarising his inquiries;
(d)other documentation being -
(i)copies of correspondence, invoices, file notes, briefing papers and reports, which were identified to Russell Alfred Pearce and incorporated into statements, or which he proposes to incorporate into statements;
(ii)extracts and copies of various newspaper articles;
(iii)copies of various extracts from Hansard Reports of both Commonwealth and State parliaments;
(iv)extracts of transcripts of court proceedings involving Arthur Christopher Nicholls;
(v)copies of extracts of various published parliamentary reports and submissions in respect thereof made to the respective parliamentary committees by interested parties;
(vi)copies of extracts of telephone call charge records,
are the subject of legal professional privilege;"
It is necessary to know something of the history of the matter in order to understand the nature of the documents that were brought into existence and the purpose or purposes for which they were produced.
On 13 September 1996 Mr Allan Grice MLA alleged in the Legislative Assembly that he had been informed by an unidentified person that Mr Le Grand, Director of the Official Misconduct Division of the CJC, had unlawfully disseminated confidential documents relating to a CJC operation called "operation Wallah". It is common ground that someone had improperly obtained and published confidential documents relating to the operation of that name in 1994. In 1995 a commission of inquiry was conducted by Mr R.V. Hanson QC ("The Hanson Inquiry") to ascertain responsibility for the unauthorised release of this information. At that inquiry the CJC and its officers were represented by Mr Hampson QC. No finding adverse to Mr Le Grand or the CJC had resulted from that inquiry.
Mr Le Grand became aware of Mr Grice's allegations on the day they were made (13 September 1996). The contents of Mr Grice's speech were reported in The Courier-Mail on the following day. Mr Le Grand thereupon telephoned Mr Hampson QC at his home on Saturday morning, 14 September 1996, and arranged a meeting later that day in Mr Hampson's chambers between Mr Hampson, Mr Le Grand and Mr Clair (the Chairman of the CJC). Mr Hampson expressed the view that the unidentified witness to whom Mr Grice had referred was likely to be one Christopher Nicholls, and suggested that someone should immediately begin to assemble material to test the Grice allegations and, in particular, that would enable the credibility of Mr Nicholls to be challenged. Counsel's suggestion, adopted by Mr Clair and Mr Le Grand, was that such material should be the basis of a brief to counsel so that counsel could advice the CJC and its officers, and act for the CJC and its officers at any inquiry which might be established to investigate the Grice allegations. It was suggested that the person performing the task of assembling such material should make progressive reports to Mr Hampson, so that he could advise as and when required.
In considering the actions of the CJC at material times, and in particular the "purpose" of the CJC in authorising the actions which followed, the relevant directing mind should be taken to be that of Mr Clair. The CJC consists of the chairperson and four other part-time members, but the part-time members did not relevantly participate in these matters. Mr Clair seems to have adopted Mr Hampson's advice and to have instructed other persons in the CJC (including Mr Pearce) accordingly.
The person selected to carry out the task envisaged by Mr Hampson was Mr Russell Pearce, a barrister in full-time employment with the CJC. Mr Pearce was assigned full time to devote himself to the task suggested by Mr Hampson. Mr Pearce attended a conference with Mr Hampson on or before 20 September 1996 which resulted in the adoption of a modus operandi under which Mr Pearce would explain to persons from whom he sought information that he was acting to prepare a brief for the commission's legal advisers in respect of the Grice allegations, and that he was not conducting any official commission investigation.
The only file opened by Mr Pearce was personally maintained, that is to say it was kept separate from the official CJC files. He also organised a special subdirectory within his personal computer. All correspondence and other documents were placed in the file and/or recorded in his personal computer subdirectory.
There were however some occasions when information was obtained by the CJC by means other than the modus operandi described above. These occasions may be described as follows -
Documents obtained by means of s.69 notices
There were two occasions when it was considered desirable that notices be issued under s. 69 of the Criminal Justice Act. That section authorises the chairperson of the CJC to issue a notice requiring a person to furnish a statement or to produce records or things. The first notice was issued on 2 October 1996 to obtain certain records from the Park Royal Hotel in Brisbane which would enable the movements of Mr Christopher Nicholls to be established at a given time. Mr Pearce considered it desirable that those records be obtained. He had seen their contents, but the assistant manager had told him that she could not guarantee that the documents would be preserved. He accordingly sought specific instructions and assistance from Mr Clair in procuring the documents by means of a s. 69 notice. He informed Mr Clair that he did not require the documents for Mr Hampson's brief because he already had noted his observations, but that he was concerned that the documents should be preserved. The documents were duly obtained in this way.
The relevant notice was issued in the usual form, reciting that it was suspected that the respondent had custody of records that were "relevant to the subject matter of an investigation by the commission in the discharge of the functions of an organisational unit thereof, namely the Official Misconduct Division". There were further statements within the notice to the effect that the Commission proposed that Mr Grice's allegations be investigated, and that the records in question "will assist the Commission to determine what further investigation, if any, is warranted concerning the allegations made by Mr Grice."
It has been conceded by Mr Pearce, and indeed by counsel for the CJC that a dual purpose existed with respect to the obtaining of the documents the subject of that s. 69 notice. The CJC was not at that time pursuing any active investigation in relation to what might be called "the Grice allegations" or the issue of the "leaked documents"; but it was possible that in the future the CJC would authorise an appointee to conduct an investigation into those allegations. Mr Clair had taken the stance that the matter had already been investigated and that if there was to be any further investigation the parliamentary CJC should undertake or authorise it. However that body had indicated by late September 1996 that it did not intend to do so. Irrespective then of what body might eventually conduct such an inquiry, it was appropriate that the CJC do what lay within its power to preserve evidence that might become material. The records thereby obtained were placed on the old Wallah file.
It may be noted that there is no issue between the parties in relation to those documents; they have long since been supplied to the Connolly-Ryan Commission. The potential relevance of this particular transaction is whether it taints or compromises the CJC's overall purpose of engaging Mr Pearce to gather information for submission to Mr Hampson for the reasons previously mentioned, and whether a mixed purpose ought to be inferred with respect to the other documents that Mr Pearce caused to come into existence.
The second s. 69 notice dated 12 November 1996, addressed to Media Entertainment and Arts Alliance succeeded in obtaining some documents relevant to former conduct or misconduct of Mr Christopher Nicholls. The reason for issuing the notice was, once again, a reasonable fear that the records, which were subject to considerable movement, might be lost unless they were quickly obtained. A similar consultation between Mr Pearce and Mr Clair preceded the issue of the necessary notice.
The Cassidy documents
On 19 September 1996 there was a meeting in Mr Le Grand's office, attended by Mr Pearce, Assistant Commissioner McDonnell, Chief Superintendent Cassidy and other senior investigators. The purpose of the meeting was to canvass what steps could be taken to investigate the Grice allegations. Mr Le Grand said that it was the CJC's view that the proper course was for the PCJC to undertake an investigation; that if nothing else happened the Grice allegations might have to be investigated by the CJC itself and that in that event consideration would be given to appointing a senior independent lawyer such as Mr Hanson QC to conduct such an inquiry. He indicated that it was important that steps be taken to secure whatever evidence existed. Superintendent Cassidy indicated that he would retrieve certain copy documents which had apparently been obtained in the course of the Hanson Inquiry. In due course he supplied them to the CJC.
These documents were in the nature of a copy of records previously obtained from Senator Chapman to whom the "Wallah" information had originally been released. Mr Le Grand conceded that that meeting was not called solely for the purpose of obtaining material for Mr Hampson's brief, and that the copy documents supplied by Superintendent Cassidy amounted to material properly discoverable to the Connolly-Ryan Commission. The decision to retrieve these records was the result of a meeting called soon after the Grice allegations, and once again it was an action motivated by the desire to preserve existing material. It does not at any stage seem to have been regarded as a part of Mr Pearce's function of preparing a brief for Mr Hampson.
Documents procured from Post Office, Cleveland
At a fairly early stage members of the staff of the CJC obtained some documents relating to the records of the Cleveland Post Office, probably as to the owner of a certain post-office box number. These documents were for a time placed in the boxes in which Mr Pearce retained his documents. It was not claimed that these documents were collected or brought into existence solely for the purpose of obtaining legal advice. They have been made available to the Connolly-Ryan Inquiry. They are mentioned here as another example of what might be called concurrent activity on the part of the CJC for the purposes of gathering information for what might eventually become its own active inquiry into the Grice allegations.
Telephone Charge Records
In the course of his work Mr Pearce obtained a bundle of copy telephone call charge records, said to form a pile approximately eighteen inches high. He achieved this by requesting the Intelligence Division of the CJC to provide him with such records in respect of given numbers. A member of the division then presumably contacted the relevant telephone "carrier" with a request for copies of such records. Section 88 of the Telecommunications Act 1991 (Cwth) provides that an employee of a carrier must not disclose any fact or document that relates to telecommunications services supplied to another person by the carrier. However disclosure of a fact or document is not prohibited "if the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty" (s. 88(3)(g)). The evidence is rather unsatisfactory, but it suggests that there is in existence a "protocol" between the relevant carriers and agencies such as the CJC under which requests by such agencies are regarded as reasonably necessary for such purposes. Obviously such information is not obtainable by an ordinary member of the public, and the CJC's ability to obtain such information, whilst not the direct result of an coercive power possessed by it, is indirectly the result of its function and character as a body that inter alia investigates the incidents of organised crime and investigates complaints of official misconduct.
These particular documents raise a number of problems. In the first place, whilst some of them are obviously photocopies, it is not possible to tell whether others are original documents or photocopies. It is difficult however to think that the telephone carriers would have parted with their original records of charges, and it seems quite likely that they are all copies, as Mr Pearce believes them to be. I shall act on that footing. In the second place, I accept that Mr Pearce's intention in causing these copies to be created and obtained was that they should go into Mr Hampson's brief to enable him to advise the CJC and Mr Le Grand in relation to the Grice allegations and in relation to any inquiry that might result from such allegations, in which he would represent the interests of Mr Le Grand and the CJC. I do not think that Mr Pearce had in mind any other purpose, such as an ultimate investigation by the CJC itself. But the problem arises from the method by which they were obtained. The Intelligence Division, which Mr Pearce asked to get the documents, probably acted on the assumption that Mr Pearce was investigating some official misconduct. The warning that he was preparing a brief for the Commission's legal advisers on the Grice allegations and that he was not conducting an official investigation was not given on this occasion.
Mr Pearce conceded, rightly in my view that he could not properly use the CJC's coercive powers for the purpose for preparing a brief for the CJC's own purposes. Whilst no coercive power was directly used, advantage seems to have been taken of the status and public character of the CJC in order to obtain information that would not be available to a private citizen. The question will therefore have to be considered whether the documents so obtained are beyond the protection of legitimate privilege.
Discussion
The CJC is a statutory body incorporated under s. 6 of the Criminal Justice Act. Its functions and responsibilities are contained in ss. 21 and 23. These include monitoring, reviewing and reporting functions. The Official Misconduct Division has as its function the investigation of misconduct as defined (s. 29). Such a body must have a power to do "whatever may fairly be regarded as incidental to, or consequent upon, those things which the legislature has authorised . ." (Attorney-General v Great Eastern Railway [1885] App. Cas. 473, 478). It must therefore be able to do what is reasonably necessary in order to discharge its functions, and must have the power to protects itself and its reputation. It can sue and be sued. It is of course a statutory creature, but subject to that it is entitled to the same protections as any other litigant.
Mr Grice's allegations were to the effect that a senior officer of the CJC, namely the Chairman of its Official Misconduct Division had himself been guilty of misconduct including a breach of s. 132 of the Criminal Justice Act. The allegations were prone to involve the integrity of the CJC itself. Its officers correctly anticipated that a commission of inquiry would be set up to inquire, inter alia, into the Grice allegations. These were expressly included in the terms of reference of the Connolly-Ryan Commission. If defamatory comments were left unchecked, or if it were to be subject of adverse findings by a commission of inquiry, its standing and credit in the eyes of the public would be affected, and its capacity to fulfil its express functions and responsibilities might be adversely affected.
It was within the powers of the CJC to delegate to one of its officers the task of obtaining information about Mr Grice's allegations for the purpose of submitting that information to its counsel for advice. It cannot be doubted that the CJC is entitled to claim legal professional privilege in the same way as any other person or entity, and I do not understand the defendants, or the Attorney-General who intervened, to suggest otherwise.
The Commissioners have accepted that under the Commissions of Inquiry Act legal professional privilege is preserved in favour of a person summoned to attend to give evidence and produce books, on the ground that it provides a "reasonable excuse" as defined in s. 3 of that Act. This is consistent with the view in Baker v Campbell (1983) 153 CLR 52 that a statute should be considered as preserving a right to legal professional privilege unless the privilege is abrogated by express words or necessary intendment. I can find nothing in the Commissions of Inquiry Act that directly or indirectly removes the privilege, and no submission was made to the contrary.
It was accepted by counsel for the plaintiffs and by counsel for the Attorney-General that in order for documents to be subject to legal professional privilege they must have been brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings (Grant v Downs (1976) 135 CLR 674, 688; Baker v Campbell (1983) 153 CLR 52; Commissioner AFP & Anor v Propend Finance Pty Ltd (High Court, unreported, 7 February 1997)). This is the main issue that has been litigated.
The submission for the plaintiffs is that all the remaining documents were brought into existence for the purpose of obtaining information to be placed before Mr Hampson QC to enable him to advise the CJC and Mr Le Grand of their position and in particular how to defend the Grice allegations, and ultimately for Mr Hampson to use such information in representing the Commission and members of its staff before the foreshadowed inquiry. Mr Pearce has sworn that in pursuing his inquiries and gathering these documents, he did so to prepare a brief of evidence information and observations for use by use by Mr Hampson to advise the Commission and its officers and in representing the Commission and its officers before any inquiry. Leaving aside for the moment the special instances earlier discussed, it is not challenged that he has faithfully followed Mr Hampson's advice and methodology in assembling the remainder of the documents. His purpose was that initially suggested by Mr Hampson and adopted by Mr Clair.
Mr McMurdo QC, for the Attorney-General intervening, submitted that in fact Mr Pearce had been performing two functions and that he was simultaneously performing two investigations - one for the defence of the CJC and Mr Le Grand, and the other a "preliminary" investigation into whether any official misconduct could be found arising out of the subject matter raised by Mr Grice. In this respect it was submitted that official misconduct might be shown to exist on the part of either Mr Nicholls, Mr Le Grand, or someone else. Mr McMurdo submitted that in practice it would have been very difficult to separate these two functions. The separation could more easily have been maintained, he submitted, had an outside solicitor been engaged rather than an in-house barrister. The submission, in effect, was that Mr Pearce at material times wore two hats without realising it. Mr McMurdo conceded that it might be accepted that the primary purpose was what might compendiously be called the defence of the CJC and of Mr Le Grand, but submitted that that would not be enough; it must be the sole purpose.
Mr Sofronoff QC for the plaintiffs drew a distinction between dual relevance and dual purpose. The subject matter of Mr Pearce's inquiries and collection might well be relevant to a subsequent inquiry (if the CJC conducted one) into the Grice allegations as well as to the protection of the position of the CJC and Mr Le Grand; but the real question is the purpose of the work, and more specifically the purpose for which the documents were brought into existence. It does not matter that, if documents are created for a privileged purpose, they might later be used for another purpose (Electrical Trust v Mitsubishi (1991) 57 SASR 48).
Some reliance was placed by Mr McMurdo upon words used by Mr Clair in evidence with respect to what was called the "suspended" or "preliminary" investigation of the CJC, and its ultimate interest in investigating the Grice allegations. However the evidence as a whole was that any such "investigation" was very much on a back-burner or in a state of suspension. As I see the evidence the CJC was essentially in a defensive mode looking after its own interests and reputation, and only occasionally asserting itself by choosing to use a coercive power in order to preserve evidence that might otherwise disappear.
I have set out in some detail the occasions when Mr Pearce or other persons associated with the CJC departed from this purely defensive role. The question is whether these were genuine exceptions to a course of conduct in which a defensive brief was assembled or whether they compromise the whole exercise originally planned with the assistance of Mr Hampson. It is true that from time to time there was concurrent activity in which the CJC acted in its proactive role as an investigator. This included the issue of the s. 69 notices. That activity was however in my view separate. In my view those occasions were discrete and the documents that resulted from them are easily identifiable. With the exception of the telephone charge records they have already been provided to the Connolly-Ryan Commission. I do not think that the essential strategy of conducting inquiries and assembling a brief for the purposes mentioned has in any fundamental way been compromised.
The CJC could have decided to make a thorough investigation of Mr Grice's allegations, and to cooperate with the Connolly-Ryan Commission by giving it the benefit of the information that it was able to elicit both informally and by the use of coercive powers. It chose not to do this. Instead it adopted a very defensive posture and decided to do what it could to protect itself and Mr Le Grand. Whether this was a wise decision is not for me to say. But subject to any special inhibition by reason of its statutory origin, it is entitled to look after itself to the same extent as any other corporation. The real question is whether it succeeded in carrying this intention into effect.
With the exceptions that have already been discussed, and leaving aside the telephone account records, I think that the documents prepared and obtained by Mr Pearce were prepared and obtained solely for the purposes that has been mentioned.
It is not necessary for me to embark upon a specific examination of the documents. The categories of documents in issue have been set out above on pages 2-3. In Trade Practices Commission v Sterling (1979) 36 FLR 244 Lockhart J's judgment contains (with respect) a useful statement of the classes of documents to which privilege has traditionally been held applicable. It includes the following:(a)Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. See Wheeler v Le Marchant; Smith v Daniell; Bullivant v Attorney-General for Victoria; Jones v Great Central Railway Co., and O'Rourke v Darbishire.
(b)Any document prepared with a view to its being used as a communication of this class, although not in fact so used. See Southwark Water Co v Quick.
. . .
(d)Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. See Woolley v North London Railway Co; Greenough v Gaskell; Corporation of Bristol v Cox; Woolley v Pole; Seabrook v British Transport Commission; Grant v Downs, and Bray, Principles and Practice of Discovery (1885) pp. 388-389.
(e)Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. See Wheeler v Le Marchant; Laurenson v Wellington City Corporation, and O'Sullivan v Morton.
(f)Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. See Wheeler v Le Marchant; Cork v Union Steamship Co, and In Re Holloway.
(g)Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent. See Kennedy v Lyell and Lyell v Kennedy (No. 2)."
I consider that all the categories of documents described as the contents of Mr Pearce's boxes fall within one or more of those categories. It may be noted that it is now clear from the Propend Finance case (above) that legal professional privilege attaches to copies of documents, if the copy is made solely for the purpose of obtaining or giving legal advice or for use in legal proceedings.
A question may arise in relation to the "extracts of various newspaper articles" and "extracts of transcripts of court proceedings involving Arthur Christopher Nicholls" (para (d)(ii) and (iv) of Mr Pearce's affidavit). It would seem that such items, which are of public and unprotected origin, would not be privileged unless they were put together in such a way as to make apparent a certain line of defence or forensic approach. (Lyell v Kennedy (No. 3) (1884) 27 Ch.D. 1 at 26, 31; Dubai Bank Ltd v Galadari (No. 7) [1992] 1 WLR 106; Leslie v Attorney-General (Tasmania) (Supreme Court of Tasmania, Slicer J, 1477 of 1994, 10 February 1995 unreported)). Mr Pearce states in his affidavit that a perusal of the documents would allow an inference to be drawn as to the particular line of enquiry being pursued by him for the purpose of briefing Mr Hampson. Counsel for the Attorney-General made no point in relation to such items. Accordingly I see no reason to except these particular documents from the general claim of privilege which I have upheld.
Finally then there is the question of the telephone account records. Whilst not obtained by means of direct coercive power, they were obtained by reason of the CJC's status as a criminal investigator. Furthermore the procedure designed to make it clear to those who would be supplying relevant information (namely, express disclosure of the nature of the exercise in hand) was not followed. I am satisfied that in fact Mr Pearce's personal intention in having these documents brought into existence was the purpose (shortly stated) of inclusion in Mr Hampson's brief and that that was the purpose of the CJC under the authority of which he was acting. But such a subjective purpose may not be enough; or its character may be changed by the methods used to obtain the material.
The basis of legal professional privilege is public policy:
"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." (Grant v Downs (1976) 135 CLR 674, 685.)
"Its justification is to be found in the fact that the proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients which would not exist if either could be compelled to disclose what passed between them for the purpose of giving or receiving advice." (Baker v. Campbell (1983) 153 CLR 52, 128 per Dawson J.)
The primary purpose of the CJC, in performing any investigatory function, must be to use those powers to serve the public, not to serve itself. It seems to me that privilege that otherwise might arise in favour of the CJC would be lost with respect to documents obtained by it in the course of performing its investigative functions. This may be because a different public policy prevails over that which would otherwise permit privilege to be obtained. Alternatively, it may be that when the CJC obtains information by reason of performance of investigative functions, it must be deemed to have a purpose over and above the defensive purpose that has been here relied on. In such an instance it should not be heard to say that its sole purpose in obtaining the documents was to look after its own interests.
I have found it difficult to articulate the precise reason why such documents should be excepted from the main body of documents obtained by Mr Pearce in the course of this exercise. It certainly seems wrong that the CJC should be able to obtain evidence by reason of its own special powers and position which could not be obtained by an ordinary person, and then be heard to say that the information can only be used for its private purposes and cannot ever be exposed to others unless it chooses. Perhaps the simplest answer is to say that in such circumstances the documents are not obtained solely for the necessary purposes. This particular part of the exercise should in my view be regarded as falling outside the exercise of preparing the relevant defensive brief. The onus is on the plaintiffs to establish the existence of the privilege for which they contend. I do not consider that these particular documents are privileged.
There will therefore be a declaration that all the documents described in the affidavit of Mr Pearce filed on 18 February 1997, except the telephone charge records, are the subject of legal professional privilege.
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