Z v N

[2006] HCATrans 653

[2006] HCATrans 653

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S229 of 2006

B e t w e e n -

Z

Appellant

and

N

Respondent

GLEESON CJ
KIRBY J
HAYNE J
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 NOVEMBER 2006, AT 10.22 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MS B.A. ARSTE, for the appellant.  (instructed by Bolzan & Dimitri)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friends, MR P.F. SINGLETON and MS M.T. ENGLAND, for the respondent.   (instructed by New South Wales Crime Commission)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, the appeal turns, it is submitted, on the resolution of the two issues which are referred to in paragraph 1 of our written submissions and may I deal with those two issues in that order.

KIRBY J:   Mr Jackson, you may remember that on the special leave hearing I raised the question of whether X should be aware of these proceedings so that he could take whatever steps he wished in his own protection, if he wished to do so.  Was there any discussion between the parties about that or not?

MR JACKSON:   Your Honour, certainly consideration has been given to the issue by our side of the matter and we have taken the view that it was unnecessary to do that.

KIRBY J:   All right.  That view was also taken by the respondent, do you know?

MR JACKSON:   I assume so, your Honour, yes.

KIRBY J:   Yes.  Very well, thank you.

MR JACKSON:   Your Honours, as I said a moment ago, the appeal turns, it is submitted, on the resolution of the two issues to which we have referred in paragraph 1 of our written submissions.  May I come first, your Honours, to the relevant provisions of the Act and then move more seriously to the arguments in support of those two issues.

Your Honours, the relevant Act is the New South Wales Crime Commission Act 1985 and by section 5(1) of that Act there is established the New South Wales Crime Commission which, by section 5(2), has the functions conferred upon it by that Act or by any other Act. The principal functions of the Commission are to investigate matters to a, if I could use the defined term, relevant criminal activity which are referred to it by the Management Committee for investigation. Your Honours will see that in paragraph 6(1)(a).

Now, that provision contains a number of defined terms.  One is the Management Committee, and the Management Committee is the body which is established by section 24(1).  May I take your Honours to that for just a moment.  Your Honours will see the Management Committee established and its composition, and your Honours will see then in section 25(1)(a) what its functions are and, in particular, its principal function in 25(1)(a) is:

to refer (by a written notice) matters relating to relevant criminal activities to the Commission for investigation -

The term “relevant criminal activity” is defined by section 3(1) and your Honours will see that it:

means any circumstances implying, or any allegations, that a relevant offence may have been, or may be being, or may be about to be, committed.

The term “relevant offence” is then defined and your Honours will see both paragraphs (a) and (b) of that definition are the ones with potential present relevance.

Now, your Honours, as is set out in our written submissions in paragraph 4, your Honours will see that the Management Committee referred to the Commission for investigation matters involving the infliction of grievous bodily harm and attempted murder on a particular person and your Honours will see that referred to more particularly at page 21 of the application book.

KIRBY J:   This is the person known as N.

MR JACKSON:  Yes.  Your Honour, may I say I would prefer not to, and I think the parties would prefer me not to, say orally matters that may relate to some kind of ultimate identification.  If I can refer your Honours to parts in the application book, may I do that.  May I go to page 21.  Your Honours will see the notice under section 25 and the matters referred to between lines 25 and 30 on that page.

KIRBY J:   Does that last observation mean that we should not refer even by initials in the submission of the parties to either the client, if I can use that expression, or the person who was subject to earlier criminal wrong?  It just makes it awkward in reasons to ‑ ‑ ‑

MR JACKSON:   Your Honour, I understand that.  May I say that perhaps my learned friend would be better placed to state the extent to which it is preferred that that occurred.

KIRBY J:   There was an application on the special leave hearing to close the Court.  That was not accepted, but it was agreed that steps would be taken to use the so-called leveller expedient of care in the reference to identifiers.

MR JACKSON:   Yes, continuing the reference to Z and N.  Yes, your Honour.  What I was going to say was simply that in oral submissions I was simply going to refer to particular passages that your Honours will see.  The underlying circumstances of the matters referred to at page 21, between lines 25 and 30, are more fully set out at page 18 and the paragraph at the top of the page which is paragraph 7(8) of the affidavit there referred to.

KIRBY J:   The respondent accepted your statement of facts in the written submissions.  Have you taken care in that statement of facts to ensure that the way in which they have been expressed is acceptable to the parties because if so then they can readily be taken into any reasons that a court writes.

MR JACKSON:   I have.  I have taken the usual, and, your Honour, perhaps more than the usual care in relation to that, yes.  They are, and I think in each case we have given the reference to the particular passage from which the – the way in which we put it is taken.  The facts are very short, your Honours.  The appellant was subpoenaed to give evidence before the Commission in relation to the investigation.  You will see that at page 20 and you will see particularly between lines 25 and 30 on page 20 the matters in relation to which he was sought to be asked questions.

May I say immediately, it is not suggested that he had any personal knowledge of matters relating to the attempt to murder, rather, he was brought before the Commission because he had earlier, on two occasions, given the police information relating to the person, the subject of the attempt to murder.  It was information which he had been asked to convey by a client and the effect of the information on each occasion your Honours will see referred to in our written submissions in paragraphs 8 to 13.

KIRBY J:   The original encounter between your client and the client was on a social occasion and, indeed, there is a suggestion there may have been two such meetings and on that occasion I rather inferred from something Mr Temby said in the special leave that the first name of the future client was revealed to your client so that a question will arise at some stage that you will have to address as to whether that communication has any privilege, at least to that extent.

MR JACKSON:   Yes, your Honour, I intend to deal with that issue.  The evidence on that point is at page 8, paragraph 4.  Your Honours, what I was going to say was that if one goes to our written submissions at paragraphs 8 through to 13 you will see the events which took place.  Perhaps one should start at paragraph 7 of those.  That simply sets out the meetings and ‑ ‑ ‑

KIRBY J:   That paragraph 4 is a little bit contentious because the appellant says that:

It has always been my practice to avoid socialising with clients.

But the point that is made by Mr Temby, anyway, on the last occasion, is that at that stage there was no solicitor/client relationship at all at the time of the first meeting.  It was just a social ‑ ‑ ‑

MR JACKSON:   At the time they met at a function.  Certainly not, no.

KIRBY J:   I am sorry?

MR JACKSON:   Certainly not.  I do not suggest there was, your Honour.

KIRBY J:   No.

MR JACKSON:   Your Honour, our argument, if I may say so, would be the same if, for example, the person who was the client in the relevant case was a relative – a known relative of the solicitor – to put it at the highest.

The fact that the solicitor may have known the identity of the person before the person consulted the solicitor is not germane to the issue, in our submission.  So, your Honour, I put it at that high point to indicate that that is an issue.  I accept I have to deal with it, but may I come to it?  That is the point we would be seeking to make about it.

Your Honours, the nature of the information in short your Honours will see set out in paragraph 8 that was conveyed to the police and then you will see it referred to again in paragraph 9.  The person’s home was searched.  Nothing incriminating was found.  Your Honours will see what happened then.  Then there was a second – in paragraphs 11 and 12, similar events took place, leading to what is set out in paragraph 13, the suggestion being no doubt that there had been some planting of these items so they could be found with a view to incriminating M and when that failed more condign action was taken.

Your Honours, the appellant was asked at the time of giving the information to identify X.  He declined.  He was contacted again after the attempted murder by the police asking him to identify X.  Again he declined.  Your Honours will that in our written submissions, paragraph 14.  It is also referred to ‑ ‑ ‑

GLEESON CJ:   The affidavit does not disclose the form in which the information was given.  I am just trying to relate the facts deposed to in paragraph 12 to your submissions in reply.

MR JACKSON:   I am sorry, your Honour, was there a particular part your Honour was referring to?

GLEESON CJ:   No, the whole of your submissions in reply which I am sure were accidentally omitted from the submissions in‑chief, and the way in which the information was given could have some bearing on this argument, could it not?

MR JACKSON:   Yes.  Your Honour, the way in which the information was given was by telephone conversations.  That appears more fully from the transcript of evidence before the Commission.  Your Honours, that evidence commences at page 25 and the relevant parts of it, your Honour, on that point commence at page 26, line 20, and they go through then I think to page 31, about line 15.

GLEESON CJ:   It just occurred to me, Mr Jackson, that you may have a useful argument along the lines that if X says, “I saw Y kill Cock Robin”, and the solicitor to whom X has given that information says to the police, “I know someone who saw Y kill Cock Robin”, the identification of the witness to the killing is itself information going beyond the name and address of the client of the solicitor.

MR JACKSON:   Yes, your Honour, that is so.

GLEESON CJ:   That was the argument that I was having some difficulty relating to paragraph 12.

MR JACKSON:   Your Honour, can I just say if one goes to the passages in the actual transcript where it is expressed more fully what took place, your Honour will see, if I could just go to page 26, line 20, there are discussions about the numbers of telephone calls that took place and that goes through to the top of page 27, about line 10, “How far apart were the two occasions”.  Then, your Honours, if one comes down a little further to, I think, a discussion about attempting to speak to the “Federal Police”.  Then eventually one comes to page 28, about line 40, “what was the information”, and he speaks then about the intention of the call to the Federal Police.  Finally, your Honours, at about line 50:

The amount would likely to be something that would have been included in such a conversation.  I can’t recall whether a name was given –

He refers to the name of the person.  He says he then referred, at the top of the next page, to the “State Police”.  Then, finally, your Honours, he says at page 29, about line 34:

Leaving aside that difficulty, what was the totality of the information you gave –

and your Honours will see the information set out in that paragraph.  Then that goes through to page 30, the top of the page, through the whole of page 30 and then page 31 to where one sees, about line 17, “MR BRADLEY”.

GLEESON CJ:   They key point that really ties in with those American authorities that you are relying on is the statement at line 35 and line 36 that this person had seen something, which is something over and above providing information to the effect that somebody is suspected of doing something.

MR JACKSON:   Yes, your Honour.  What he was saying was that he was conveying information by a person who was a client that the client had seen something at particular places.  Your Honours will see that on his appearance he was asked to identify the person.  You will see that at page 30, line 6, in the passage that goes through to page 31, line 10.  Your Honour, there was an application for direction.  He answered the question, which is at page 31, line 12, and then it was recognised he wanted to exercise his immunity to the contrary and the argument proceeded.  He then, on that point, it was ruled against him, your Honours will see and then the Commissioner, that was at page 39, line 41.  Your Honours, there was an indication that that was to be challenged.  That is at page 42, about line 30.

Your Honours, then the provisions of section 18B(4), the last sentence were brought into play and that is in the passage that appears at page 42, line 30, going through to page 43, line 25.  He was directed to answer the question and he took the matter then to the Supreme Court.  Your Honours will see then, if I could go back to the statutory provisions, from section 18(2) that the Act provides that:

A person appearing as a witness at a hearing before the Commission shall not, without reasonable excuse . . . 

(b)refuse or fail to answer a question that the person is required to answer –

There are three exceptions.  One is without reasonable excuse, one is except as provided by 18A, the other is except as provided by section 18B.

Your Honours, issues of reasonable excuse have been determined against the appellant in other proceedings in respect of which special leave was not granted, so that issue is no longer relevant, nor is 18A relevant.  It is concerned with evidence which would divulge the content of religious confessions.  The relevant provision is thus section 18B.  It provides in section 18B(1) in the first place, to put it shortly:

A witness . . . appearing before the Commission at a hearing is not . . . excused from answering any question –

on various grounds, including “any other ground of privilege”.  However, one then sees subsection (4) which provides in the first place that:

If:

(a)a legal practitioner or other person is required to answer a question or produce a document or thing at a hearing before the Commission, and

(b)the answer to the question would disclose . . . a privileged communication passing between a legal practitioner (in her or her capacity as a legal practitioner) and a person,

the legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so.  However, the legal practitioner must, if so required by the member presiding at the hearing, furnish to the Commission the name and address of the person to whom or by whom the communication was made.

That is the second question arising in the proceedings.  There is then provision for review by the Supreme Court of the decision requiring the answer.  Your Honours will see that in sections 19(2) and 19(4).

May I come then to the first question.  Central to the possible application of section 18B(4) is that the answer to the question would disclose a privileged communication which passed between the legal practitioner and another person.  That gives rise to the question of what is the communication, and that is a question which is answered in effect at two levels.  One, I suppose, is the bare answer that it is a communication of his name and in this case of a possible means of contact.  I use the expression “means of contact” rather than “an address” because the evidence was that there was a known probable or possible means of contact rather than an actual address.  Your Honours will see that at page 43, lines 10 to 25, but it would seem not to matter particularly.

Your Honours, the second level is that a communication is of such particulars in circumstances where legal advice is being sought about how the information that a person has seen these things, as your Honour the Chief Justice said to me, can be communicated to others without there being disclosure of the identity of the client.  That was an essential part of the contact with the solicitor.  As we say in our written submissions at paragraph 21, the non‑disclosure of the identity of the client, in our submission, was inextricably connected with the subject matter of the retainer.  That is clear from the material to which we have referred in that paragraph.  We have referred in our reply submissions to the New York decision of ‑ ‑ ‑

HAYNE J:   Just before you pass to the New York authorities, let it be assumed that a person consults a lawyer asking the single question, “How can I pass on information of a particular content to police without disclosing my identity?” and the lawyer answers, “I know no way in law to achieve that result.”  What do you say the position then is?

MR JACKSON:   Whether the advice be right or wrong, your Honour, that is ‑ ‑ ‑

HAYNE J:   Leave aside correctness.

MR JACKSON:   Yes.  That is the advice and the advice is sought in circumstances where the very subject matter of the advice – I am sorry, may I start again.  The communication to the solicitor is a communication of the person’s name and address for the purpose of seeking advice about whether information can be communicated to authorities without disclosure.  Inherent in the nature of the advice, given inherent in the nature of the consultation with the legal practitioner is the non‑disclosure of the client’s name in the sense that it is part of the matter that is the subject of the privilege, in our submission.  Your Honour, whatever the advice be, whether it be “You can do it and you can do it in this way” or “You can’t do it”, the situation would be the same.

One of the reasons why people go to see solicitors, sometimes, is because they do not wish the subject matter or their connection with the subject matter to be something that is publicly known and one of the – they go to see to see if there are ways in which a legal aim can be achieved without that becoming known.  Now, sometimes that may not be effective but that would only be if the steps were further taken such as the institution of litigation where there appears to be another rule, the other rule being that if you institute litigation the other side is entitled to know by whom they are being sued or, the other way, who they are suing.

HAYNE J:   But does it depend upon whether the would‑be client first goes to the lawyer saying, “My name is John Henry Smith.  I wish you to act as my lawyer in a matter concerning disclosure of information to the police.  Will you accept a retainer?”  Answer, “Yes.”  “The question I have is - I wish to pass on information” et cetera.  Do separate considerations arise in that kind of case from the case where the information is rolled up as your submissions seem to assume to be the case?

MR JACKSON:   Your Honour, probably the answer is no because in the ordinary course of events one would expect a solicitor to be made aware of the name of the person who is the client.  I say solicitor, because if one took that that would be the ordinary case.  You would find a client coming.  The client would, in the ordinary course of events, have to give a name to be allowed in and giving a name they then disclosure the subject matter of the advice.

Now, if the subject matter of the advice is one that does involve certain information being communicated without their name being communicated then the fact that the name is given prior to that information being communicated to the solicitor does not take the case away from the case that we are putting.  It is no different.  It is no different, really, from the solicitor knowing who the person is.  Very frequently, solicitors’ clients are people they have known before.  That is because the clients trust the solicitor, or they may be relatives, as I suggested earlier.  It does not really matter that there is the communication of the name or the knowledge of the name before the request for advice is given.

HAYNE J:   But the relevant communication is one which – that is the communication which is identified in 18B(4)(b) you identify as one which wraps up name, contact, subject matter.

MR JACKSON:    Well, your Honour, one looks in terms of 18B(4)(b) at the question that is asked and the answer required.  Now, would the answer disclose a privileged communication?  Now, the question is:  what is the privileged communication that the answer would reveal?  The answer need not be one that would reveal all the privileged communications that might relevantly have passed.  If the name and address is part of privileged communication, then the giving of the name and address by way of answer would be something to which (4)(b) would apply.

KIRBY J:   There is a legal exception which is, I think, listed in either your submissions or the respondent’s for communications which are in furtherance of a crime.

MR JACKSON:   Yes.

KIRBY J:   Now, at least it occurred to me as a possibility that that might have been the case here, not on the part of your client, but on the part of his client.  Now, was that ever suggested?  Has that ever been raised?

MR JACKSON:   No.

KIRBY J:   So we can ignore that for the moment?

MR JACKSON:   Your Honour, it has not been raised.  If it had been, we would have had to deal with it, of course.

KIRBY J:   Yes, I did not see it pursued, but it was listed as one of the exceptions.

MR JACKSON:   Yes, it is one of the exceptions to the privilege.  Your Honours, may I also say perhaps because the area is relatively – there is some closeness to the area, there was at common law an offence of misprision of felony.  That has been abolished in New South Wales.  It has been replaced by a statutory provision and I will give your Honours a reference to it later, if I may.

What I was going to say, your Honours, was this, that there is in the New York case of Blumenfeld v Kaplan (1960) 8 NY 2d 214 a case which has considerable similarities to the circumstances of the present. That was a case where an attorney for a body called the United Fruit Buyers Association refused to tell the New York City Commissioner of Investigation of the name of a client who gave information which he had given over to that Commission for investigation. Your Honours will see the facts set out at pages – it has a certain New York glamour, if I can put it that way.

HAYNE J:   No identification of the secretary of this body, is there?

MR JACKSON:   Your Honour, I have not pursued the history of the matter, but no doubt this and similar matters have been the subject of a number of television series.  At the bottom of page 216 your Honours will see the judgment of Chief Justice Desmond which is the judgment of the court.  At the last few lines, the respondent was an attorney representing the Fruit Buyers Association and the facts are set out to about two‑thirds of the way down page 217.  In essence, the place at the waterfront where the smaller trucks of the members might go were being blocked by semi‑trailers which had the fiat of some corrupt politicians, to put it shortly.  Your Honours will see at the bottom of page 217 the issues stated by the court in the last few lines:

The law question, then, is whether an attorney confidentially retained by a client to pass certain information to a public investigating body is to land in jail because he is willing to disclose the information but not his client’s identity.

Now, their Honours took the view which appears about halfway down page 218:

But there is a distinct cleavage of opinion in this State (see cases both ways cited by Fisch) and many exceptions, some of them for situations where giving out the client’s name would serve no necessary purpose but on the contrary would make public the very fact as to which the client desired and was entitled to secrecy . . . But here the client’s communication had already been divulged to the Commissioner and it was the client’s name that deserved and needed protection . . . for fear of reprisals, etc.  Since there was no reason to doubt that the informant was a client of appellant, it was unnecessary to investigate that relationship.

Could I pause to say just in relation to that sentence that of course this is a case where there is no doubt that the person was a client of the appellant.  Then your Honours will see the last five or six lines on that page:

Since the client’s communication to appellant was made in the aid of a public purpose to expose wrongdoing and not, as in the Vogelstein case, to conceal wrongdoing, the seal of secrecy should cover the client’s name, so long as his information was made available to the public authorities.

Your Honours will see the remainder of that paragraph.

HAYNE J:   That seems to have echoes of Cox and Railton, does it not, with the reference to concealing wrongdoing and notions of that kind seem to have somehow infiltrated the discussion.

MR JACKSON:   To a degree, your Honour, yes, but the fact that that is so in a sense supports the application of privilege as distinct from taking it away.  There are two other types of cases where it is appropriate for the privilege to extend to the name of the client.  Your Honours will see a number of those referred to in a Canadian case in ‑ ‑ ‑

GLEESON CJ:   Before you pass from Kaplan, what is the standing of Kaplan as an authority in the United States?

MR JACKSON:   Its standing would be first of all of course as a decision which applies in the State of ‑ ‑ ‑

GLEESON CJ:   I mean has it been applied, commented on?  Is it the subject of universal derision or applause?  It is very awkward for us sometimes dealing with judgments from other jurisdictions to know the standing.

MR JACKSON:   I appreciate that, your Honour.  I was going to say the case has been referred to on a number of occasions with apparent approval.  May I give your Honours a reference to one of the annotation series which deals with this.  I will not give your Honours copies of it but it deals with the issue and refers to this case, amongst others.

GLEESON CJ:   Thank you.

KIRBY J:   It did not go to the Supreme Court of New York?

MR JACKSON:   No.

HAYNE J:   The Court of Appeals is the final court, is it not, in New York, or am I wrong?

MR JACKSON:   I think the Supreme Court of New York, your Honour.

KIRBY J:   I think that sits in Albany.  That is where Justice Cardozo was the Chief Judge. 

MR JACKSON:   Yes.

KIRBY J:   You said that your client does not – did you wish to add to that?

MR JACKSON:   No, I did not, your Honour.

KIRBY J:   You said there was no question that the person was a client.  Was there any indication that he was charged or in any other way was entered in a client register of the appellant?

MR JACKSON:   I do not think so, your Honour.  I do not think the matter was really questioned.

KIRBY J:   But it was not suggested that this was in a sense a continuation of the social engagement?

MR JACKSON:   No.

KIRBY J:   It has been accepted that a solicitor/client relationship was established?

MR JACKSON:   Well, it has not been challenged.

KIRBY J:   The questioning of your client did not suggest to the contrary?

MR JACKSON:   No, your Honour.

KIRBY J:   That is all right.  That is all I want to know.

MR JACKSON:   Your Honours, I intend to come back to two of the American decisions and your Honours will see Blumenfeld v Kaplan referred to in some of the Federal Courts.  May I say that other types of cases were referred to by Justice Veit in a Canadian case, Lavallee, Rackel land Heintz v Attorney General of Canada (1998) 160 DLR (4th) 508 at 525. I would refer in particular to paragraph [39]. I do not think I need to go to the facts of the case, but your Honours will see at paragraph [39] the judge says:

It is true that some old authorities have held that there is no privilege in a client’s identity.  However, contemporary authorities recognize that, in some situations, it may be critically important for a client to be confident that no one will know that she has consulted a divorce lawyer, or a lawyer who specializes in sterilization claims, or in claims for individuals who contracted AIDS through the blood supply, or in defending drunk driving charges.

Your Honours, views may differ on perhaps some of those.  Yet the mechanism chosen by Parliament – and this was a challenge to the validity of the parliamentary law – requires a lawyer to breach their professional obligation in order to ensure that the lawyer’s client does not lose a fundamental legal right, and that was held to be unacceptable.  Your Honours, that passage was picked up in Sopinka and others The Law of Evidence in Canada, 2nd edition, at paragraph 14.47.  That is the former Justice Sopinka of the Supreme Court.  Your Honours will see the second sentence of paragraph 14.47:

For example, the identification or address of the client are matters which a client would rarely intend to be confidential.  Moreover, other considerations bear on the question of whether a solicitor should be compelled to disclose the identity and address of the client in an action or proceeding . . . In addition, in order to determine whether a solicitor-client relationship has been entered into, so as to raise the shield of privilege, it is first necessary to disclose the identity of the client.  Accordingly, one stream of Canadian cases has maintained that communications showing only the establishment of a solicitor-client relationship or the identity of the client do not constitute privileged communications.  Disclosure of the identity of the client takes on a different complexion, however, when the client intended the fact to remain confidential and where its revelation would have the effect of disclosing subject-matter which would otherwise be privileged.

Your Honours will see then the remainder of that paragraph quoting that passage.  Your Honours, may I come back to the Canadian position in just a moment for one other reference, but could I mention two decisions of this Court, namely, Esso Australia and Daniels Corporation, in which the ambit, indeed, the in some respects wide ambit, of legal professional privilege has been stated. 

Could I go first to Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 and the joint reasons of your Honour the Chief Justice and Justices Gaudron and Gummow at page 64, paragraph 35. Your Honours will see in paragraph 35 that the opening few sentences refer to “communications made in connection with giving or obtaining legal advice or the provision of legal services, including”, but not exhaustively including, “representation in proceedings in a court”. Your Honours will see at the top of page 65 the reference to Baker v Campbell and the observations of Justice Deane in that case.  That refers also, I think, in that passage in the last few lines of paragraph 35 to “The party denied access might be” and includes “an investigating authority.”

KIRBY J:   The reference to the “tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts” is something that at some stage you will have to address because we have here a very serious situation involving an attack on a person that could well have been fatal.  The net result of your success in this case is that even a body with exceptional powers to investigate is prevented from taking what would otherwise be an obvious and important lead which affects not just the parties but the public interests and other citizens whose life may equally be at peril.

MR JACKSON:   May I say this, your Honour, that at one level the tension has been resolved, albeit not completely for a reason I will come to, by the terms of section 18B(4).  I say at one level because what section 18B(4) does is to say that the privilege applies, that is, the legal practitioner is entitled to refuse to comply with the requirement.  That is the first part of it.  That states the basic proposition and then the last sentence of section 18B(4) sets out an exception to that.

The question which arises is really, we will be submitting, what the ambit of the last sentence of section 18B(4) is which is a question of construction.  Now, your Honour, the question of construction no doubt to a degree does, or the resolution of that question, does involve to a degree a reflection of the tension that your Honour mentioned but the broad concept has been resolved by the statutory mechanism in section 18B(4), in our submission.

KIRBY J:   I do not know where that leads, in the end, but we will just have to continue to follow the argument because on one view it might explain why, at the least, the name and address of the client have to be provided so that even though not getting it out of the lips of the client other leads can be pursued by the investigating authorities.

MR JACKSON:   Your Honour, the view that was taken by two members of the Court, Justice Brennan and Justice Dawson in Yuill’s Case, to which I will come shortly, was that the purpose of the provisions equivalent to the last sentence of section 18B(4) was so that the person whose privilege it ultimately was, the client, could be sought in order to bring them before the Tribunal and, in an appropriate case, to see if they waived the privilege, if that be the case, but may I come to that, your Honour.

HAYNE J:   To see whether they waived the privilege or to simply ask them about the underlying fact?

MR JACKSON:   Your Honour, that is why I put it in a somewhat tentative way.

HAYNE J:   Yes.

MR JACKSON:   Because, indeed, it may be, your Honour, that the – could I just answer your Honour by going back to the words of the section for a moment?  Your Honour will see that the last sentence says:

However, the legal practitioner must, if so required by the member presiding at the hearing, furnish to the Commission the name and address of the person to whom or by whom the communication was made.

Your Honours will see that the opening words of (4)(a) refer to:

a legal practitioner or other person is required to answer a question –

It may not be the legal practitioner who takes the point in the first place.  In such a case it may be the legal practitioner then would have to be called in order to deal with that question.  It may be, too, that the person who takes the point is not the person – the person who is being sought to be investigated – if I can put it shortly – is the subject of question, not the legal practitioner, if one assumes for the moment might not be the person who has the authority to waive the privilege.  Your Honours, what I am saying is that it is perhaps a little more complicated than simply the client being the person being investigated.

Your Honours, could I just say then this?  I was going to refer for just a moment to the decision in Daniels Corporation v ACCC (2002) 213 CLR 543 at 553, paragraphs 9 to 11, but may I refer particularly to two passages. The first is the opening part of paragraph 9, and your Honours will see that is essentially saying what was said in the paragraph that I took your Honours to from Esso, but could we refer also, your Honours, to the observation in paragraph 11 referring to the fact that:

statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.

Now, your Honours, one of the matters that has been suggested is that if the lawyer already knows the client, then the privilege cannot exist.  Your Honour Justice Kirby referred to that earlier.  So do our learned friends’ submissions in paragraph 11.  Your Honours, if it be the fact that the subject matter would otherwise be privileged and if the fact of the solicitor/client relationship is established, why should it matter that the client is new or a previous client or a friend or an acquaintance or a relative?

HAYNE J:   Because the privilege is about communications, communications having a particular characteristic, but is not a privilege about subject matters, and are you not sliding into subject matter privilege?

MR JACKSON:   Well, not really, your Honour, with respect.  What your Honour put to me is the reason why in many cases – most indeed – the name and address of the client will not be something that is the subject of the privilege.  But one does have to look to see what the solicitor is being consulted about, and if one sees what the solicitor is being consulted about is something that the very nature of which is that it does not involve disclosure of the name or name and address of the client, then that is the subject of privilege, however the solicitor came to know the name.

HAYNE J:   Well, we return to the example I gave earlier.  Can I avoid disclosing my name?  Lawyer:  answer “No.  If I am summoned to the Crime commission I will have to say who my client is”.  Client:  “Pass the information on anyway.  Do not use my name, but pass it on”.  Do we get some bootstrapping where the communication of name in those circumstances is nonetheless privileged?

MR JACKSON:   Well, you may get a case of waiver of privilege, your Honour.  That would be a more likely resolution of the matter, with respect, because the client having sought A then seeks B; B being pass it on without the privilege.

KIRBY J:   There is a mention in the respondent’s submissions of Baker v Campbell at 86 to 87 in support of the proposition that privilege cannot later attach to a communication which was not originally privileged, and that is the matter that was troubling me.  It is paragraph 8 of the respondent’s submission now – does Baker v Campbell support that proposition?  In other words, if you had a communication and you later establish a client/solicitor relationship, is it the law as stated in Baker v Campbell that you cannot then retrospectively cast the net back to earlier communications by reason of the later establishment of that relationship?

MR JACKSON:   Well, your Honour, as a general proposition what is said in that passage in Baker v Campbell says that, and that is correct.  If something was not privileged at the time when it occurred, it does not later become privileged.

KIRBY J:   Is that not the case here, meeting in a social circumstance?  At the special leave, you will remember, the point was made, well, you may only get the first name.  Mr Temby said, “Well, we’d take that.”  He was avid for anything, which, of course, is what investigators are.

MR JACKSON:   Your Honour, what Mr Temby ‑ ‑ ‑

KIRBY J:   If it was “John” it would not be very helpful, but if it was “Cuthbert” it might be.

MR JACKSON:   You might find a lot of “David Jacksons” too, but, your Honour, may I just say in relation to it, unless one takes the view that there can never be a case of professional privilege attaching to the name of a client in circumstances where the client was known or gave the client’s name before the subject matter was raised then that is the end of the matter, there could never be legal professional privilege for that.

In our submission, what does need to be established is first that there is a solicitor/client relationship and that part of that solicitor/client relationship did involve the confidentiality of the client’s name, confidentiality, so far as the subject matter was concerned, of the client’s name.  Your Honour, it would mean that in cases of this kind the solicitor could not know, could not be told, even, the client’s name, before the client spoke to him.

KIRBY J:   If that is the law then if a client comes and says, “I’ve got a problem.  I don’t want to reveal my name” then maybe the solicitor has to say, “Well, look, I’m sorry, I can’t help you.  A statute stands against it and the principles of the common law stand against it.  It’s better that you don’t consult me if that is the condition you want to lay down.”

MR JACKSON:   Your Honour, the point I am seeking to demonstrate is that the principles of the common law do not say that, and really Baker v Campbell is not dealing with a case anything like this, on the one hand, and on the other hand, that the terms of the statute recognise the common law position and it is a question whether the terms of section 18B(4) – the sense of section 18B(4) apply to matters of the present kind.  I do not know that I can respond any other way than that to your Honour.

Could I just say that in relation to this aspect the notion that one has to name the client to establish the relationship does not appear to have been accepted in Blumenfeld v Kaplan at page 217 in the passage that I took your Honours to earlier, although it is not dealt with very fully – I am sorry, your Honours, I will start again. Blumenfeld v Kaplan is against that notion. Your Honours will see at page 218, about three‑quarters of the way down the page:

Since there was no reason to doubt that the informant was a client of appellant, it was unnecessary to investigate that relationship.

But could I refer also, your Honours, to an article dealing with this issue in Canada.  It is Manes and Silver – the authors – the book being SOLICITOR‑CLIENT PRIVILEGE IN CANADIAN LAW 1993.  I wanted to refer to pages 140 through to 144.  Your Honours will see in paragraph 3.01 on page 140 it is said:

The general rule is that the identity of a client is not privileged.  However, where the essence of the consultation with the solicitor is the identity of the client, then the client’s identity can be privileged.

Your Honours will see a reference then at page 141 to a decision in Thorson v Jones – I will come to it in a moment – and your Honours will see at the bottom of the page:

It is submitted that this holding is consistent with the a modern law practice which, in the course of its ordinary business, [the lawyer] may be called upon to uphold a client’s right to privacy in a myriad of different situations.

Your Honours will see footnote 61 which sets out some of those there referred to.  Going back to the text at the bottom of page 141:

In some situations, the client’s identity may be the very subject matter which the client is attempting to preserve by seeking the solicitor’s advice.  Therefore, to adopt a blanket rule that the client’s name must be disclosed would be to defeat the reason for which some clients consult solicitors.

Your Honours will see the remainder of that paragraph.  Then the discussion goes on to paragraph 3.04, but there are two decisions that are referred to there that I wanted to refer to specifically.  One of them is United States v Mammoth Oil Co [1925] 2 DLR 966, the Appellate Division of the Ontario Supreme Court. In that case the court dealt with the particular point that the solicitor or the lawyer knew the employer before they met to discuss the issue. You will see that referred to at page 975 in the last paragraph on the page. The primary judge, Justice Riddell, it is said:

was of opinion that because Mr. Osler knew his employer before they met in New York in reference to the business which it is now sought to investigate, the name could not have been taken to have been communicated to Mr. Osler in confidence for the purpose of the business.

Now, that is discussed through that paragraph and onto the top of the next page.  His Honour says at page 976 at the third line:

With deference, I am unable to agree in this opinion of the Judge appealed from.  It seems to me the essence of the question is not, whether Mr. Osler knew the name of the client before or when Mr. Osler accepted the retainer, but the identification of Mr. Osler’s client with the confidential legal business in reference to which Mr. Osler was retained.

That goes on through the remainder of the paragraph and your Honours will see ‑ ‑ ‑

KIRBY J:   What was the process in this case?  Was it discovery or something of that kind?

MR JACKSON:   It was ‑ ‑ ‑

KIRBY J:   Examined on commission.

MR JACKSON:   Yes, it related to evidence being taken for the purpose of proceedings in the United States.  You will see at page 969 it relates to the sales of bonds and ‑ ‑ ‑

KIRBY J:   Anyway, it is a civil law proceeding ‑ ‑ ‑

MR JACKSON:   Civil litigation.

KIRBY J:   ‑ ‑ ‑ and we have to be a little careful of picking up these principles from civil cases and planting them into a wholly exceptional environment of very serious criminal activities and an exceptional statutory body set up by Parliament for the purpose of being able to attack and deal with those activities.

MR JACKSON:   Your Honour, accepting every word of what your Honour has just put to me, in doing that, what Parliament has chosen to do is to preserve legal professional privilege on the common law basis and it remains to be determined what that is.  Now, the ambit of the common law privilege derives both from civil and criminal cases and your Honours have seen it expressed in broad and, if I may say so, with respect, strong terms in Daniels.  That is a rule of law.  The rule of law is recognised, and the question of the ambit of the rule of law is a matter for the court.

CALLINAN J:   Mr Jackson, I just wanted to ask you this question.  On one view of the facts, it might appear that your client consulted the solicitor ‑ ‑ ‑

MR JACKSON:   I am sorry, I am the solicitor, your Honour.

CALLINAN J:   I beg your pardon, that you were consulted by the client, not in order for legal advice, to enable you to give legal advice, but rather for the purposes of achieving anonymity, and if that be the correct view of the facts, then it might be much harder to see how a privilege is attracted.

MR JACKSON:   Well, your Honour, the ‑ ‑ ‑

CALLINAN J:   The very purpose was anonymity and nothing else really because why did your client not get some other conduit pipe or simply make an anonymous telephone call himself?  The purpose on one view seems to be simply and solely anonymity.

MR JACKSON:   Well, your Honour, could I say this?  What he said about it you will see at page 9 between the top of the page and I think about line 20 and going through to about line 35.

CALLINAN J:   What is the issue of passing on certain information?

MR JACKSON:   Well, the issue, your Honour, was how it could be done without his name being disclosed.  Now, it is right to say in one sense that it was related to anonymity but, your Honour, there is no doubt that things can have multiple characterisation, as I think I read in one of the judgments that the Court gave yesterday with a large number of cases listed in some of the judgments.  But, your Honours – and that is true, that is part of it, your Honour, to seek anonymity in conveying this information.

CALLINAN J:   What is the legal advice he wants?

MR JACKSON:   Well, the legal advice ‑ ‑ ‑

CALLINAN J:   Legal advice as opposed to personal sort of advice that you would give anybody?

MR JACKSON:   Well, it is legal advice as to how it could be done, your Honour, how it might be done.

CALLINAN J:   Leaving out for present purposes anonymity, it is done by looking in the telephone directory and picking up the telephone and ringing, communicating the information.

KIRBY J:   Or writing an anonymous letter, which is done every day to the Tax Department and followed up.

MR JACKSON:   Your Honour, I suppose one way of saying it is that people sometimes go to people who are lawyers with a view to having the information conveyed on their behalf by someone who is thought to have a higher status, more independent view of matters, convey the ‑ ‑ ‑

HAYNE J:   On that basis the privilege would attach if he went to a priest.  Why is the identity as a lawyer relevant?  How do you establish the dominant purpose of the communication of the name is for the purpose of obtaining legal advice?

MR JACKSON:   Your Honour, the dominant purpose was to obtain legal advice as to how the information might be communicated in the first place but an equal part of it being that his name was not to be disclosed.  When I say “equal”, they are all part of the same thing.  That is why I sought to use the fact that the two are inextricably mixed.  Your Honours will see that on a number of occasions in the evidence when the solicitor was asked for the information to the client to identify the client, the client is beside him, he said, “I am not allowed to.  This is part of what I’ve been told to do.  What are the means by which I can do it, the means by which I can do it without my name being disclosed.”

GLEESON CJ:   What do you say was the legal advice that was sought?

MR JACKSON:   The legal advice that was sought was how the information, the nature of which I have dealt with already, what this man said was there and what he had seen, was how that could be conveyed in circumstances where it would be conveyed to the appropriate authorities but his name as the person involved not be disclosed.  That is made clear in the various passages in the appellant’s actual evidence and also in his affidavit.

KIRBY J:   I suppose you can say that the subsequent events show that the people involved here were all walking on eggshells because the fact is that somebody tried to kill another person and therefore there was at least some intuitive or other information that led to a great care in dealing with this matter but perhaps a civic feeling that it should be dealt with and then going to a lawyer to get advice on how that could be balanced out.

MR JACKSON:   Go to the lawyer and say, “I have seen this and I suppose inferentially, these are hard people.  How can I convey this information to the police without my name being mentioned?”  Why is that not the subject of legal advice?  I am sorry, your Honour, I do not want to ask questions ‑ ‑ ‑

KIRBY J:   It is what we are meant to debate in a sense.

MR JACKSON:   Yes, that is the submission.  Why is that which serves, prima facie, as was said in the Blumenfeld Case, a public purpose, why is that not the subject of legal advice?  He also, you will see from the material, sought information about witness protection programs and so on.

Your Honours, I had referred to that passage in United States v Mammoth Oil and that deals with the particular point to which reference was being made earlier.  Could I refer also to the decision in Thorson v Jones (1973) 38 DLR (3d) 312 at 313.

KIRBY J:   That is a good way to begin judicial reasons:

I have read all the cases cited to me by counsel and am of the opinion that Mr Heller should not be compelled to disclose his client’s name.

Then he just refers to one of them.

MR JACKSON:   Your Honour, there have been decisions of some members of the court in which there are annexures containing lists of cases that have been digested by the judge, not perhaps in more recent times but in the past.

KIRBY J:   Yes, we saw that yesterday in a case.  Justice Campbell had an annexure of cases.  You are thinking of General Steel.  Chief Justice Barwick had a long list of ‑ ‑ ‑

MR JACKSON:   And others.

GLEESON CJ:   It seems to have been an extempore judgment.

MR JACKSON:   Yes, it may well have been, your Honour.  I really do not want to get into a debate, with respect, about the judicial method of the judge.

KIRBY J:   Let us pass on.

MR JACKSON:   Could I just say that he does refer in the first paragraph to the fact that in certain cases the privilege does not extend to revealing the client’s name.  He goes on to then say at the top of the next page:

In the matter before me the undisclosed client was a hit‑and‑run driver whose identity as a hit‑and‑run driver was concealed; he was in fact hiding his identity as a hit‑and‑run driver and disclosed his identity to Mr. Heller confidentially, as his solicitor, for the purpose of being advised professionally by his solicitor and has not communicated his identity in this regard to the rest of the world.  By virtue of the nature of the matter as to which the client consulted the solicitor, the essence of the confidence was the identity of the person, and this was the crux of the communication between the client and his solicitor, and accordingly the name of the client under the circumstances is a privileged communication –

Your Honours will see that the point taken there was that there was the solicitor/client relationship and the identity of the client was the crux of the matter.

GLEESON CJ:   I am sorry to come back to this point, Mr Jackson, but some of these cases are cases where clearly the client was seeking legal advice, so if, for example, a well‑known public figure consulted a well‑known family law specialist seeking advice about a divorce, the identity of the person who was seeking the advice about divorce might well be something that you would expect ought to be able to be kept confidential.  But here, to come back to Justice Callinan’s point, the communication “I saw these things in that person’s house” is not the communication that was made for the purpose of finding out how you could pass information on to the police, is it? 

In order to get advice as to how you can pass information on to the police in circumstances where your identity is kept secret, you do not have to actually give any hard information at all.  You simply have to say, “I have some information that I would like to be passed on confidentially to the police.  Can that be done?”  That is the communication that is made for the purpose of getting the legal advice that you specify.  The communication “I saw these things in that person’s house” is the communication that you want passed on to the police.

MR JACKSON:   Your Honour, could I say this.  In the example your Honour put to me, no doubt it is not essential that the information that you want communicated or you might think should be communicated is specified in detail.  In that case the result may be that the response by the solicitor is, “Well, it depends really what the information is”.  That may have some effect.  It may affect the quality of the advice given and the detail.  The fact that the information that the person does want to communicate is set out in more detail, together with the fact that the person’s identity is to be preserved, does not remove from the communication of the identity the fact that it is the subject of the privilege.  The fact that one could do it more sparely does not mean that doing it more fully takes it away, your Honour.

Your Honours, I referred earlier to the position in the United States.  We have endeavoured to summarise that in our reply submissions in paragraphs 9 to 12, but may I refer specifically, and do so briefly, to three decisions in the United States in the Federal Courts.  One is Baird v Koerner (1960) 279 F 2d 623. In that case, Baird was a taxation lawyer of some considerable experience on both sides of the United States revenue and he was consulted when in private practice on behalf of persons who thought they had underpaid their taxes and who wanted to be in as favourable position as possible if they were investigated.

His advice was to pay anonymously what was due.  That was done and your Honours will see that referred to at page 626 in the left column, about point 4 on the page, going through to the same page in the right column, about point 9, and he himself was consulted by the attorney for those taxpayers.  He was summoned but refused to give the names of the persons on the ground of legal professional privilege – you will see that about point 3 in the left column on page 627 – and his claim was upheld. 

If I could just refer your Honours to the principal passages in the case, at page 629 in the right column, paragraph [5,6], the general proposition is stated in the first two sentences.

KIRBY J:   You just have to be a little careful about this because otherwise people can, by going to solicitors and saying “I am retaining you and I want to keep my anonymity”, immure themselves from disclosure at all.  They can build a wall around themselves to prevent the public authorities getting access to them or their identity.

MR JACKSON:   Your Honour, could I say that it is only in a really limited group of cases that that is so.  The general proposition is the one to which I just referred, that is that generally speaking that the name and address of the client are not matters that are the subject of legal professional privilege.  Occasionally they will be.

KIRBY J:   But, as has been pointed out in some of the cases, in order to claim the privilege you have to establish the relationship and to do that you normally have to establish the name of the client and that they consulted in a legal capacity. 

MR JACKSON:   Well, your Honour, normally, but if it is established that there is a client and that the relationship was that of solicitor and client, then the need to demonstrate the name of the client has been satisfied.  The point is, in what your Honour was just putting to me, that when it is said that you have to show the client, then the ordinary way of showing that is saying who the client is, but if you establish there was a client, then that issue as such, the issue of the relationship, is established.

HAYNE J:   The distinction is made in the New York case that was referred to as overly broad, that is, Vogelstein 270 NY Supp 362, where at 367 Judge Shientag said that:

The name or identity of the client was not the confidence which the privilege was designed to protect; the statements of the client for the purpose of seeking advice from his counsel were the disclosures which were to be kept secret.  As Lord Esher, M.R., succinctly put it:  “The client does not consult the solicitor with a view to obtaining his professional advice as to whether he shall be his solicitor or not.” 

The mere fact of the engagement is not the privilege.

MR JACKSON:   Your Honour, if I could say two things about that.  As such that is true, but it does not really cover, with respect, every case.  That is the point that is sought to be made in the Blumenfield v Kaplan Case at page 218, having referred to Justice Shientag’s “brilliant and comprehensive opinion in Vogelstein’s case”, as it is put, it is then said that it does not cover every case.  That is dealt with at halfway down page 218 in the Blumenfield v Kaplan Case. 

Your Honours, I was going to refer to Baird v Koerner at page 631 in the paragraph [7-9]:

We conclude there is no federal body of law that requires the exclusion of the identity of the client from the extent of the attorney‑client privilege. 

They then go on to say it must be dealt with on a case to case basis.  Then at the top of page 632, in the left column, third line:

If the identification of the client conveys information which ordinarily would be conceded to be part of the usual privileged communication between attorney and client, then the privilege should extend to such identification in the absence of other factors.

Then some other factors are referred to and at page 633 there is a passage quoted there:

“The name of the client will be considered privileged matter where the circumstances of the case are such that the name of the client is material only for the purpose of showing an acknowledgment of guilt on the part of such client of the very offences on account of which the attorney was employed”

Then your Honours will see they refer to that exception and say:

The facts of the instant case bring it squarely within that exception . . . But it may well be the link that could form the chain of testimony necessary to convict an individual of a federal crime.

May I move from that to R v Bell 146 CLR 141. Your Honours, whether the decision was argued by one side only for whatever might be its ultimate weight, what we would say is that Justice Gibbs at the bottom of page 144 in the page that goes over on to page 145, does state the general rule and then goes on to deal with whether an exception to it is applicable and the general rule does, in our submission, at least in relation to address, rather favour our side.

We would refer also to Justice Stephen at page 155 about point 7 on the page.  He said:

There may be cases in which knowledge of an opponent’s address is an element essential to any real knowledge of his identity -

speaking about the position in litigation, and says -

In such cases it would seem right that privilege should not attach.  On the other hand, if the likelihood of disclosure of a person’s address would operate as a real deterrent from his seeking professional advice, this would suggest that the privilege should apply, as James L.J. observed in Ex parte Campbell.

Your Honours, could I come to the question of specificity, and it has been raised, I think, by two of your Honours particularly?  Your Honours, if I could go to the first of the terms of the affidavit that appear at page 9.  Now, your Honours, may I say one thing immediately by way of apology and that is that until lunchtime today I was not aware that two sentences in paragraph 8 had been in fact ruled out at the trial, but otherwise those paragraphs 7, 8 and so on – while objected to, the two sentences are the first sentence of paragraph 8 and the third sentence commencing “Furthermore”.  I do not think it affects the matter, your Honour, one way or the other ‑ ‑ ‑

GLEESON CJ:   So we should run a line through those?

MR JACKSON:   Yes, indeed, your Honour.

GLEESON CJ:   Objected to, rejected?

MR JACKSON:   Yes.  However, having said that, your Honours, there was no objection to paragraph 7 or to the remainder of paragraph 8.

KIRBY J:   Could you just clarify that.  Is that in paragraph 7 from the words “In the course of” down to “relation to M”?

MR JACKSON:   Paragraph 7 is not objected to at all.

KIRBY J:   I see, right.

MR JACKSON:   The parts objected to and struck out are the first sentence of paragraph 8, commencing “I consider” and the third sentence, commencing “Furthermore, I also consider”.

KIRBY J:   The third sentence is the one that starts “I am prevented”.

MR JACKSON:   No, your Honour, “Furthermore, I also consider”.

GLEESON CJ:   They were no doubt objected to on the ground that what the deponent considered was irrelevant.

MR JACKSON:   Well, I have no doubt a conclusion or something of that kind.  Your Honour, the point I was going to make, however, was this, that if one looks at paragraph 7 and looks also at the remainder of the paragraphs 8, 9, 10, 11 and 12, it seems clear that the advice was given, if one looks at, in effect, the chronology in paragraphs 7 and 9 – that is in paragraph 7.  Paragraph 9, “Following that discussion”, et cetera.  If one bears in mind also what appears at page 33 between lines 10 and 15, and lines 42 to about 50, it is clear enough, in our submission, that the advice was given in circumstances where an essential issue was how the identity of X could be kept confidential. 

Your Honours, certainly Justice Grove, when dealing with the matter at page 53 in his reasons, in paragraph – I am sorry, your Honours, I think I have mislaid the paragraph.  Could I also say, your Honours, as to specificity, this was an affidavit which had to be made five years, a little more, I think, after the event and in circumstances where the undertaking had to be given, which appears at page 13, that there would be no communication, in effect, with the client.  Your Honours will appreciate evidence has to weighed according to the proof which is in the power of one side to produce.  I think your Honours have said that in a number of occasions, Justice Callinan, for example, in the Placer (Granny Smith) Case. 

CALLINAN J:   I think a number have said it in Vetter too.

MR JACKSON:   In Vetter, yes, your Honour.

CALLINAN J:   Mr Jackson, you say that the legal advice sought was to how to keep the name confidential, among other things?

MR JACKSON:   Amongst other things, yes.

CALLINAN J:   But critically the legal advice sought was how can the name be kept confidential?

MR JACKSON:   No, your Honour, importantly, how to keep the name confidentially but, importantly, in the context of the means by which information of this kind could be communicated in circumstances where the name of the informant was not to be disclosed.  Now, one really cannot separate one thing from the other in that regard.  They are combined, they are interrelated, however one describes it, but they are two parts of the same thing.

CALLINAN J:   In circumstances – I am sorry, I just ‑ ‑ ‑

MR JACKSON:   In circumstances, your Honour, I think I was saying, where the name – or perhaps I should simply say where the identity of the client would not be disclosed. May I give to your Honours copies – perhaps I do not need to hand them up at this moment – of the provisions of section 341 of the Crimes Act 1900 which abolished the offence of misprision of felony in, I think, 1990 and the “replacement” provision of section 316(1), first of all, of the Crimes Act 1900 which says, in short:

If a person has committed a serious indictable offence –

a term which is defined in the definitions –

and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse –

in short to bring it to the attention of the authorities, that is an offence.  Then in subsection (4):

A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Attorney General if the knowledge or belief that an offence has been committed . . . by the person in the course of practising or following a profession, calling or vocation prescribed –

and we include the regulation which prescribes legal practitioners as falling within that ‑ ‑ ‑

GLEESON CJ:   Does it also define what would be a reasonable excuse?

MR JACKSON:   No, your Honour.  There is a decision of a judge of the Supreme Court of New South Wales – I do not have it, your Honour, but can I give you a short reference to it?  It is R v Tuan Duc Thai [2004] NSWSC 1204 in which Justice Bell at paragraph 14 appears to suggest that “a genuinely held fear” that to disclose the information will expose the person or his family to serious physical harm would be sufficient to be a reasonable excuse.

GLEESON CJ:   The sensitivity about legislation of that kind is the impact it has on victims of crime.

MR JACKSON:   Yes, your Honour, there are difficult issues in relation to those.  May we give your Honours copies after the Court has adjourned?  Your Honours, can I also say one final thing.  There was a reference to conflicting considerations and we have referred already to the New York case, Blumenfeld v Kaplan, which indicates some of the important considerations.  Your Honours, there are provisions relating to misprision of felony and there are some provisions of the Act in question here which deal

with some aspects.  Could I just refer in passing to the sections.  Section 21 which in circumstances where a Commissioner believes that:

the safety of the person may be prejudiced or the person may be subject to intimidation or harassment, the Commissioner may make arrangements  . . .  as are necessary to avoid prejudice to the safety of the person –

et cetera.  There is section 21A which allows for indemnities and undertakings, section 28 which says that sittings may be held in public on some occasions and section 29 which is a secrecy provision.  But, having said all that, your Honours, none of those provisions really casts any significant light, we would submit, on the effect to be given to section 18B(4).  Those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  We will reserve our decision in this matter and we will adjourn until 10 o’clock tomorrow morning.

AT 3.27 PM THE MATTER WAS ADJOURNED