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High Court of Australia Transcripts |
Office of the Registry
Sydney No S170 of 1995
B e t w e e n -
THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE
First Appellant
DETECTIVE SERGEANT ALAN TACIAK, Member of the Australian Federal Police
Second Appellant
and
PROPEND FINANCE PTY LIMITED
First Respondent
RICHARD SCHEINBERG HOLDINGS PTY LIMITED
Second Respondent
CHUSAN NOMINEES PTY LIMITED
Third Respondent
GINGES HOLDINGS PTY LIMITED
Fourth Respondent
BEST & LESS (AUSTRALIA) PTY LIMITED
Fifth Respondent
BARNEY RICHARD SCHEINBERG
Sixth Respondent
ALBERT SCHEINBERG
Seventh Respondent
BEREL GINGES
Eighth Respondent
MICHAEL DUNKEL
Ninth Respondent
BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 12 MARCH 1996, AT 10.18 AM
Copyright in the High Court of Australia
MR D.H. BLOOM, QC: May it please the Court, I appear with my learned friend, MR N.J. WILLIAMS, for the respondent. (instructed by Minter Ellison)
BRENNAN CJ: Mr Rozenes?
MR ROZENES: May it please the Court. The first question, in our submission, can be answered quite shortly by saying only if the original, when placed in the position of the copy, would itself attract privilege and we would submit that this has nothing to do really with the sole purpose test which really is founded in protecting communications made for the sole purpose of seeking advice or giving advice and that the document issue really has been a gloss that is fitted over the communication because most communications are to be found in documents and, thereby, are rendering some documents privileged because they are created for the sole purpose of conveying a communication, either to the lawyer seeking advice or from the lawyer giving advice.
TOOHEY J: Is that submission on the basis that the copy document contains no other matter?
MR ROZENES: Yes. Clearly if the copy document contains matters which could be arguably a communication, whether it be a notation or a marking or something, a different test will have to apply.
TOOHEY J: Would that apply to an editing process to the document as well?
MR ROZENES: Then it would not be the same document, in our submission, your Honour, and it might then be a different document.
KIRBY J: But what is the reason for refusing access to it if it contains a note, but permitting access to it if it contains an indication of what the solicitor or lawyer is thinking about it? I mean, the rationale must be the same: not to invade the space of the advisers, not to prevent or diminish the capacity of people to get legal advice.
MR ROZENES: Yes. Your Honour, we would say that is almost a separate question. For some reason in this case it has become inexorably bound by the question of copy. Certainly the communications between lawyer and client should be protected and we would go so far as to say that one needs to consider a mechanism which would prevent the lawyer's brief or the solicitor's office for being trawled for information which would by necessity disclose the privileged communications contained therein.
DAWSON J: Is what you said at the beginning just a long way of saying that privilege attaches to communications, not documents?
MR ROZENES: Yes, that is quite right, your Honour.
McHUGH J: But that raises a real problem, does it not? If, for example, a client went along and summarised the contents of a document, the communication would be privileged. Why should it make any difference if, instead of summarising orally the contents, a client handed a copy to the solicitor?
MR ROZENES: Because the privilege will not attach, in our submission, to the handing of the copy. The document either is a privileged communication or it is not and the handing of it to the lawyer does not make it privileged. What is privileged about the exercise might be some instruction that goes with the document but if it were otherwise, your Honour, then original documents in the possession of the solicitor would be privileged, and we know that is not so.
DAWSON J: You take a contract and a copy contract.
MR ROZENES: Any document that has an existence for a purpose other than the giving or receiving of legal advice, whether it be a commercial contract or not, simply is not privileged, the original in the possession of the lawyer. The reasoning for it is obvious: one does not know why the document is there. It might be there for the purposes of seeking legal advice. It might be there for the purposes of instructing lawyers to transact the commercial transaction. It might be because a lawyer is interested in seeing a precedent document. There may be all sorts of reasons why the original document would be there, which would not disclose a privileged communication. Logic, in our submission, demands that there be no difference with a copy document; particularly in this day and age when copy documents are generated sometimes at the very same time as the original. Yet, the test propounded by two of the judges in the court below would have it that a document, for example, that was copied at the time that the original was made - in other words, the purpose for making it was not to submit to lawyers, but simply to have half a dozen copies in the office - and then, at some later time, one of those copies, which had not been produced for the sole purpose of provision to lawyers, is then provided to the lawyer for the purposes of acting.
McHUGH J: This seems to indicate, to my mind, that there is something wrong about this whole approach of categorising matters. It seems absurd, on the one hand, that the copy should be protected if the original is not protected. On the other hand, it seems equally as absurd to me that if the client summarises the document, the communication is protected, but if he, instead of summarising it, produces a verbatim copy of it in his own handwriting or through a photocopier, it is not protected.
MR ROZENES: I am not so certain, with respect, your Honour, that I would now accept your Honour's invitation that the summary is privileged. The summary would be privileged in the sense that if there was evidence, or if there was an assertion that it was a communication to the lawyer with a view to seeking advice it might be privileged. But it would be a communication quite separate, in our submission, from the provision of the document. Quite separate. It would be like, in our submission, the instructions to counsel; clearly privileged. But all the copy documents that are enclosed in counsel's brief, some of which are only there as copies fortuitously - they could just as easily have been originals - in our submission, those documents cannot be privileged.
KIRBY J: On your theory, then, there is not all that much left in the shield of communication with lawyers; you can just go there and trawl away and get all the documents and that will be the easy - that will become the general rule.
MR ROZENES: No, your Honour. Well, can I say this, if the - - -
KIRBY J: That is what, I think, we have to be concerned about, that we have to test your proposition by what happens if this becomes the general rule; instead of getting the documents from the original makers, you simply invade the office of the solicitors.
MR ROZENES: Your Honour, can I put it this way: if the linchpin for this argument is that one looks at the time that the copy is made to ascertain whether its purpose was for the provision to lawyers, then that creates such an enormous set of anomalies that it cannot be principally correct, because it will depend upon accident as to which document goes to the lawyer and which does not. It may depend upon accident; it may depend upon mistake. If the original document was sent, it could not be the subject of privilege; if the copy was, it might be. If the copy was returned to the client, then, as Justice Hill would have it, the document then which was previously privileged now loses its privilege. It produces a set of anomalies, we would submit, that simply do not make sense.
KIRBY J: Well, it is true that there are problems either way and Professor Heydon, or Mr Heydon, points out in his book that if the solicitor has the copy and loses the original then that may well, on the theory that the respondents urge, mean that you cannot get access to the copy as substitute for the original.
MR ROZENES: That is so.
KIRBY J: And that is certainly a problem for the other theory. But it is the question of what happens if this becomes the general mechanism of prosecutions in Australia that I am baulking at because then people will not go to solicitors, and as Justice Gummow pointed out in one of the cases, really, in Australia we have looked at this as fundamental to the rule of law and fundamental to human rights, not just as a rule of evidence.
MR ROZENES: That would, with respect, require your Honour to really re-examine Grant v Downs, Baker v Campbell, because, really, one would then have to find a new way, a new test to be applied, to determine whether or not inspection of a particular document would, in some respect, affect the privilege. It cannot any longer depend upon whether the sole purpose for the creation of the document fixes the privilege because that fails what we would submit is a fundamental test and the test is that if you replace the copy document in the brief of the lawyer with the original, and we say that is something that could happen quite fortuitously, can the original document be protected? As the law currently stands the answer is no.
KIRBY J: But, perhaps, the test then is to say, what is the true purpose for the creation of a document. The true purpose for the creation of the original was the business dealings of the parties. The true purpose of the creation of the copy was to get legal advice from the lawyer.
MR ROZENES: But the creation of the copy may have been - the point that we make, that raises all the anomalies, your Honour, because it depends on when that copy was created. The example I made before is this: if 10 copies are made of the document when it is first created and it is intended that one should go to party A and one should go to party B and one should be left on the file and one goes in the precedent drawer and one goes to the barrister for his precedent set, all those documents are clearly not privileged. Then there is a need to instruct lawyers to advise.
DAWSON J: Where is the problem? The true purpose of the creation of the copy is the creation of the copy.
MR ROZENES: But it depends on when it is made, your Honour.
DAWSON J: Why not? That is always the purpose.
MR ROZENES: If the true purpose for the creation of copy is to have a precedent in the drawer and that is the document that ultimately is delivered to the solicitor - - -
DAWSON J: That is the use you make of the copy, but the purpose of creation of a copy is the creation of a copy.
MR ROZENES: Your Honour, if one does look at the - - -
DAWSON J: In that sense, to take a contract, it is in no different position to the original contract.
MR ROZENES: We would say that is so.
DAWSON J: When you hand the original contract to the solicitor, it is not privileged. When you hand the copy, it is not privileged because it is a copy.
MR ROZENES: No.
DAWSON J: Where is all the problem?
MR ROZENES: No problem for me, your Honour; I agree with that proposition profoundly. I have no difficulty with that at all.
BRENNAN CJ: Except in the Kennedy v Lyell [No 3] situation.
MR ROZENES: That really does depend, your Honour, upon whether or not we are seeking to protect a document or seeking to protect the work of the solicitor. That really does not arise, in our submission, on the facts of this case. The one thing that is certain here is that the documents that were the subject of this matter were agreed to be pure straight copies of the originals and there is no suggestion that they were collated, collocated, segregated in some special way as to give any sort of indication as to what the - - -
DAWSON J: Then you are not looking at the copy document when you are looking at that; you are looking at the communication and the nature of the communication.
And that is why I said at the beginning, your Honour, that there really ought to be a separation in this issue between this simple question of what status a copy document should have, and we would, with respect, adopt that which is said by Justice Lindgren, that there really must be an assimilation, for all sorts or reasons, between the copy and the original but that if there is a concern about protecting the communication, then certainly we need to look to see how that can be done because the point that Justice Kirby makes is a telling one.
None of us want to see a regular trolling for documents through solicitors' offices to see what the concern of the client is and what the thinking of the lawyer is and yet, in modern civil litigation, that seems to be very much the way litigation goes. And discovery is particularly designed to achieve that end.
KIRBY J: But the discovery requires the production of the originals. What you are seeking is the production of that which is part of the material that is being copied for the purpose of getting legal advice, which itself reveals the thinking, to some extent, and sometimes quite tellingly one would think, of the communications between the lawyer. The wall is just being constantly breached and in the end there is no wall left.
MR ROZENS: We would submit, your Honour, that the cases where it would be quite obvious as to the nature of the communication would be few and far between. To give an example, if I go to my lawyer with a document that says I owe X $10,000 and I hand that to my lawyer and nothing more is known, that document is recoverable from the lawyer. I may have been giving it to him in order for him to sue or to defend me or to advise me whether it is a binding document or to tell me whether or not it is in breach of the law to have such a document, or whether it complies with the Stamps Act 1970 , or whether it needs to be submitted for duty, or anything else.
It is very difficult, in our submission, in commercial litigation where there are tens and thousands of documents usually and where the modern practice is, because of ease and simplicity of photocopying and word processing, to inundate counsel with every document that is available - you only have to look at this Court to see how easy that is done - for there to be a genuine concern that the discovery of a document that evidences a commercial transaction, with nothing more, would indicate to the inspector what it is that the lawyer is being asked to advise on.
And we would leave open the possibility that if there was such a case where it is clear from the inspection of the document itself what it was that the lawyer was being asked to advise upon, then room has to be made to protect that, and that will not make any difference whether, in our submission, it is the original or the copy.
DAWSON J: And you could test it by saying well, you sent a letter to your solicitor with enclosures, saying I am sending you this document which I executed in the following circumstances, and so on. The document itself is not privileged - it is just a document - the letter is.
MR ROZENS: And if you mark clauses 3 with respect to the penalty interest and clause 5 with respect to losing possession, it might be that the markings in the document indicate to the inspector of the document, well he is concerned about the penalty interest clause or he is concerned about whether he can lose possession.
DAWSON J: That may or may not be privileged.
MR ROZENES: May or may not be privileged. May or may not be capable or being blacked out or altered in some way so that the document which evidences the commercial transaction is not hidden from view.
KIRBY J: But does this not mean - I do not pretend that it is an easy problem, but does this not mean that in the future, instead of prosecutors and police seeking to gain the original documents from the depositories of those documents, the simple course will be adopted where a person has a lawyer, and going to that lawyer and seeking to, as you use the word, "trawl" through the lawyer's office to find the copies that have been deposited there for the purpose of getting legal advice and that is a highly undesirable development, in my opinion, because I think every Australian expects that they can go to their lawyer and get advice, within the well-known exceptions, protected by the law.
MR ROZENES: I cannot speak for all agencies, your Honour, but it has not been my experience that that is the way it goes, generally speaking.
DAWSON J: Whether it is desirable or not, the first question is whether privilege attaches.
MR ROZENES: Well, we would say it does not.
KIRBY J: But there is a choice to be made here. There is a choice and the question of whether the privilege attaches is the very choice that is before the Court.
MR ROZENES: Yes.
KIRBY J: And it may be that there is some intermediate position as Justice Lindgren seemed to suggest.
MR ROZENES: He says that would be an exceptional case and we would, with respect, agree that it would be exceptional.
KIRBY J: Some of the cases seem to say, if it is a compilation, if there are annotations, if it cannot be cut away and that that would provide the exceptions.
DAWSON J: But what we have got to do in the first place is to see how accepted principle applies and what the result is. That must be the approach.
MR ROZENES: Except the principle tells us that you look at the sole purpose test for the creation of the document, not its multiplication thereafter, in our submission.
KIRBY J: But what is the document? Is it a copy? If it is the sole purpose for the creation of a copy, its purpose will be legal advice.
MR ROZENES: We would say that in a modern word processing environment, the creation of the document is, in fact, the inputting of the material into the computer and everything that comes out thereafter is a copy. At the moment, your Honour, we come back to what we say is a fundamental proposition unless this Court is prepared to look at that again, and that is that if the original document cannot be privileged, then no matter how it is reproduced, in our submission, no copy can be privileged. Does your Honour say that the original documents could not be trawled for in the hands of the solicitor?
BRENNAN CJ: Well, "trawling" perhaps is a somewhat emotional word.
MR ROZENES: It is.
BRENNAN CJ: I mean the fact is that if you are doing an affidavit of documents, usually the solicitor goes through his file and produces them. I have no problem about "trawling" but the question is what are the principles which lead to the conclusion the documents which are produced solely for one purpose or another are or are not privileged?
MR ROZENES: The simple answer with respect in this case, your Honour, is that the mere copy, if it be the same as the original, does not attract the privilege and it does not matter, in our submission, whether the production of it or the inspection of it may indicate a line of thought or whatever because to test the principle we would say you put the original document into the position of the copy document and then ask the question whether you are entitled to inspect the original and if the answer to that question is yes then no amount of qualification changes the position for the copy of document and otherwise everything falls into the category of communications and if they are communications and if their sole purpose is for the giving or receiving of legal advice then they are clearly privilege and that is clear as well.
BRENNAN CJ: Mr Rozenes, you have given us the benefit of your views of the leading authorities in your notes of argument.
MR ROZENES: Yes. I do not propose to take - - -
BRENNAN CJ: What do the textbooks say?
MR ROZENES: The textbooks all say the same, your Honour, that in principle there ought be no difference between privilege - between copy and original.
BRENNAN CJ: Can you give us references to those this morning?
MR ROZENES: Yes. Cross on Evidence, which I think is referred to in the judgment - - -
GUMMOW J: Is that the eighth edition?
MR ROZENES: It is the loose-leaf service that I am looking at.
GUMMOW J: That is the Australian - - -
BRENNAN CJ: The Australian edition.
MR ROZENES: Australian Cross, yes. There is - - -
BRENNAN CJ: That is edited by Justice Byrne, is it?
MR ROZENES: That is so, your Honour. There is Suzanne McNicol, The Law of Privilege, 1992 edition.
BRENNAN CJ: What is the reference to Cross again?
MR ROZENES: The reference to Cross is at page - - -
GUMMOW J: It is paragraph 25,275, is it?
MR ROZENES: Yes, 25,275, thank you, your Honour. Suzanne McNicol, The Law of Privilege, 1992 edition, again:
In general terms, logic dictates that a copy should not stand in a different position from the original.
BRENNAN CJ: Page?
MR ROZENES: That is at page 94. I think Lichtenberger in an article in (1987) 11 Crim LJ 268 - I am sorry, I cannot give you the exact page reference for the proposition. I will have my learned junior have a look for that in the meantime.
KIRBY J: Do you have that English committee that criticised some of the authorities? I think Lord Denning referred to it. Do you have a copy of that because that may be a bit difficult to get?
MR ROZENES: No, I have not got a copy. I can arrange for that to be obtained. There is an interesting hybrid situation in Canada which I think is designed to make sure that the solicitor's office is not used as a hiding place for documents, and the position in Canada, as I understand it, is that the copy document is privileged but that if the original is destroyed or lost, then the copy document loses its privilege. That, I think, is to pick up the concern that persons who do not want their transactions to be inspected, but nevertheless want to keep a record of the transactions or copy their documents to solicitors and destroy originals, so the safeguard is made in Canada to ensure that does not ultimately put the documents beyond the gaze of parties or investigative agencies.
KIRBY J: Is that the case of Hodgkinson?
MR ROZENES: I am not sure about that, your Honour; there is certainly a - one of the texts that I have - - -
KIRBY J: It would be helpful to me to have reference to the Canadian case.
MR ROZENES: Yes. It is entitled "Solicitor-Client Privilege In Canadian Law". The authors are Manes and Silver. It is a Butterworth's publication. Under the heading "Copies" at page 170 - I cannot tell your Honours what edition this is - these points are made:
Generally, if the original document is not privileged, copies which are made are also not privileged. If the original was privileged, privilege will be accorded to a true copy.
The exception to this general rule is that copies of documents, the originals of which were not privileged, may be privileged if obtained for the purpose of legal advice or for the dominant purpose of contemplated litigation or for insertion into the lawyer's brief.
However, where the non-privileged original documents are lost or destroyed or lawfully unavailable, the copies thereof should not be privileged.
KIRBY J: I would like a copy of that in due course.
MR ROZENES: I will certainly arrange for that as well. They are the only academic works that we have been able to locate that assist us in this problem, your Honour.
KIRBY J: Is the position in the United States affected by constitutional concerns?
MR ROZENES: No, I think our searches through the United States cases and through the various law schools literature really takes up a different point, and that is the means by which the document should be inspected - whether they should be inspected by the judge or by somebody else; whether it is a voir dire, and particularly the difficulty arises with respect to investigative juries, and whether they should be entitled to look at these documents. We found very little assistance in the United States literature, your Honours. We have copies of the 16th Report of the Law Reform Committee here and we will make copies available to the Court before the day is out.
BRENNAN CJ: Mr Rozenes, is there anything in Wigmore or Bray of which you are aware?
MR ROZENES: Yes.
KIRBY J: Would it be imposing too much on the resources of the Commonwealth, in your manifestation, if we could just have a little collection of - you obviously have some material and this is an important point. It would save us sending our staff searching for all these if you have got it.
MR ROZENES: We will do that today, your Honour. We will put them in a pamphlet and send them up. I do not think I can really advance the argument a great deal further.
BRENNAN CJ: Mr Rozenes, there is one further question. Ventouris v Mountain, the judgment of Lord Justice Bingham, has that received any further consideration that you know of?
MR ROZENES: It is discussed in Lubrizol (1992) 1 WLR 957which is, I think, in our list of authorities.
BRENNAN CJ: What page?
MR ROZENES: I am just having a look at that. Page 961C.
BRENNAN CJ: Yes, thank you.
MR ROZENES: Can I go to the second point. I saw that in researching this problem that one finds the triumvirate of cases repeated in almost every case in almost every jurisdiction in Reg v Cox & Railton, Bullivant v Attorney-General, and O'Rourke v Darbishire and it seems, in our respectful submission, that over the hundred-odd years when this has been before the courts, no one seems to have really spelt out in any more modern language than that that was used by Lord Halsbury what it is that needs to be established and how it needs to be established and we venture to submit that the reason for that must be that it is intended - and there is a reference to this effect to be found in Cox & Railton - that this issue will depend on a case-by-case basis, the circumstances surrounding the way in which it is raised.
At one end, I suppose, is the extreme of putting on legally admissible evidence which can be tested by way of cross-examination and it seems that all of the judges in all of the courts have said that simply cannot be the way to go, that you really end up trying the very issue that you set out to prove. On the other hand it is equally clear that the mere assertion of fraud will not suffice, query whether a mere assertion of fraud very specifically articulated with detail would suffice.
What we have sought to do is to take your Honours through the cases in an effort to demonstrate that nowhere is there a firm statement of principle that says you need to have admissible evidence. In our submission, that makes a great deal of sense; that the evidence may be shown to the Court by, we would submit, submission from the bar table, by the existence of documents that the Court can inspect for itself, by evidence in other jurisdictions in some instances, and, generally, from the circumstances surrounding the case, because from the very beginning, when this matter was ventilated in Cox & Railton (1984) QB 153- and that was a court of 10 judges constituted to deal with the principle of the issue, really, of whether or not fraud or crime will defeat privilege - nevertheless, when the court was urged to lay down a test or a policy, this is what emerged -and this is at page 175 of the report.
Before I perhaps go to that, I should indicate that in the argument before the court- and this emerges at page 157 - counsel submitted, about the middle of that page:
Such communication, if not absolutely privileged from disclosure, must at least be prima facie privileged, so that the evidence should not have been admitted without some reasonable foundation having first been laid by evidence to destroy the presumption of privilege.
And at page 161 a similar statement, approximately half-way down the page:
It is sufficient here to contend merely that a professional man's mouth is not to be opened as to what passed with him in what was prima facie professional confidence, without evidence being first given to show that no professional confidence could or ought to have existed, though, as we contend, authorities put the matter higher. Independent evidence should have been called to destroy the privilege before the solicitor was examined, and the case as stated does not show this.
KIRBY J: What page was that?
MR ROZENES: That was page 161. So, they were the arguments that were put to the court. I now go to page 175. The court, having dealt with the threshold question of whether fraud or crime does or does not dispense with the privilege, came to this view - the middle of the page:
We have one other matter to notice. We were greatly pressed with the argument that, speaking practically, the admission of any such exception to the privilege of legal advisers as that is not to extend to communications made in furtherance of any criminal or fraudulent purpose would greatly diminish the value of that privilege. The privilege must, it was argued, be violated in order to ascertain whether it exists. The secret must be told in order to see whether it ought to be kept. We were earnestly pressed to lay down some rule as to the manner in which this consequence should be avoided. The only thing which we feel authorized to say upon this matter is, that in each particular case the Court must determined upon the facts actually given in evidence or proposed to be given in evidence -
and I emphasise that sentence:
whether it seems probable that the accused person may have consulted his legal adviser, not after the commission of the crime -
et cetera. So that, urged to say something about the evidentiary basis for dealing with the privilege, the court felt constrained to say this is going to be a case-by-case exercise and not only does one look at whether or not there is evidence, but one looks at the evidence proposed to be given.
DAWSON J: That is a very difficult thing to do when you are talking about search warrants rather than proceedings in a court.
MR ROZENES: That is why we would submit that in a search warrant case in particular, the court is ideally placed to see what the evidence is proposed to be given because it has available to it, should it seek to examine it, the information laid before the justice which has to set out in sufficient detail to warrant the entry upon premises and the seizure of documents the allegations that are necessary to form that fairly serious interference with private rights.
DAWSON J: I do not understand that. All you will have will be a list of documents and a desired end.
MR ROZENES: And you have to have sufficient material so that the magistrate or the justice can be satisfied that there is a reasonable belief that offences have been committed by the persons named in the information. So the information that is put before an issuing justice contains in it fairly substantial detail of the crime alleged to have been committed, particularly since it has become common practice for warrants to be challenged and for the informations laid before justices to be produced in order to see whether the warrants are valid.
So, as in this case, there was a substantive information. The information was voluminous. It contained annexures which ran to three volumes. Those annexures consisted in part of sworn evidence before section 264 examinations, documents, information, hearsay, can say, observations of the police; all the sorts of things that would indicate, in our submission, and did indicate to Justice Davies when he examined them, that there was sufficient that could be proved, that was intended to be proved, to displace legal professional privilege.
We would go further to say that, had the policeman who swore that affidavit, Mr Taciak, been called before Justice Davies and been available for cross-examination, that would have satisfied the concerns that the Court of Appeal held about this evidence. At the end of the day the concern that was expressed by the judges of the Court of Appeal was that there was no evidence before the court in admissible form, Taciak not having been called and the evidence that the handing up of the information, if you like, being objected to.
In our submission, it just cannot depend upon whether or not it is objected to or not objected to, nor can it depend upon whether or not Taciak is or is not cross-examined. The contents of the information were never put into issue either before Justice Davies or before the Court of Appeal. So we would say there was information out there available for the court to examine and inspect and determine whether there was sufficient in the allegation to displace the question of legal professional privilege.
DAWSON J: You said, "in particular". What was the sort of thing that was relied on as displacing professional privilege? The relationship of the solicitor with some of the - - -?
MR ROZENES: Yes, there were a number of issues. First of all, the solicitor was a director of the companies that were used to bring the money back into Australia. Very briefly, this was a case where the manufacturer claimed a deduction for the cost of testing garments offshore. A large amount of money was said to have been paid. That money, in fact, found its way back through a number of intermediary companies back into Australia as loan and yet the deduction was claimed for testing.
The solicitor was a director of the very companies that were used to bring the money back. He was a signatory to the contractual arrangements between those companies that brought the money back. He was - and I say this without placing a great deal of weight on it - married to the daughter of the director of the company and himself, of course, was a director.
TOOHEY J: Does that mean that there should be some dissection of the material qua director and qua legal adviser?
MR ROZENES: No, your Honour, it just shows that there was a sufficient probability that he was party to the scheme, not in his capacity as lawyer but in his capacity as an active participant.
TOOHEY J: Perhaps I should have made myself clear. I was really carrying the argument back to the earlier argument where you have somebody occupying that dual position of director of the company and legal adviser. Do the authorities suggest that some dissection might be made in those circumstances?
MR ROZENES: Not that I know of, your Honour, no.
BRENNAN CJ: Mr Rozenes, the case of Reg v The Central Criminal Court Ex parte Francis, that does not appear in your notes of argument and yet, if I understand briefly by glancing at the case, it is something which indicates that the House of Lord has considered this very question. Is that right?
MR ROZENES: If your Honour will pardon me for one second, I will - - -
BRENNAN CJ: It is (1989) 1 AC 346.
MR ROZENES: Yes. I did not understand that it had, your Honour.
BRENNAN CJ: Well, perhaps that is not correct, I do not know.
MR ROZENES: Was your Honour referring to a paragraph of our outline of argument?
BRENNAN CJ: I thought that your outline of argument had not referred to this case.
MR ROZENES: I do not think it did. Your Honour, I have not detected that at all but having said that - - -
BRENNAN CJ: Well, what has subtracted me was the speech of Lord Bridge of Harwich at page 376 that suggested that there might be a quite different approach to be taken from that which was expressed by Mr Justice Stephen in Cox and Railton's Case in evaluating information that came forward in support of an application for a search warrant. That is at 376 between G and H.
MR ROZENES: Yes.
BRENNAN CJ: Well, if you have nothing further that you wish to put to us on that, ww can read it for ourselves, no doubt.
MR ROZENES: Yes. Your Honour, the only other matters would be to simply highlight, very briefly, the various other manifestations of this test as expressed by the judges firstly in Bullivant and, I know I have said this on the application for special leave, that the whatnot test seems to have survived until this very day. It seems to be repeated in the most modern applications of that and it demonstrates, in our submission, just how wide the possibility is for the use of material that does not strictly fall within what might otherwise be called legally admissible, in our submission, no different from the observations made by Justice Mason, as he then was, in Baker v Campbell when he dealt with the issue of whether or not the evidence had to be legally admissible evidence and the Court - or at least he there said that it did not. And obviously one ought not to have to look at that interlocutory stage of the exercise as to whether it is that you ultimately can prove that by admissible evidence that which you set out to prove.
KIRBY J: That is a powerful argument on your side but the other point on the other side is that once is out it cannot ever be put back. The secret is taken from the professional person's mouth. And normally such a serious consequence would not be inflicted on a party invading the wall of the communication with the lawyer, except for a serious reason and with serious material. Whether it has got to be evidence is another question, but it is a serious thing to do and, once done, the clock cannot be put back.
MR ROZENS: That is so, your Honour, and in this very case, his Honour found that the material presented to him was sufficient to establish, on the prima facie test, evidence of the commission of offences against the Crimes Act but not such as would commit offences against the Crimes (Taxation Offences) Act. So the balance is done by the judge on the material he has before him and if lawyers are the innocent conduits of criminal conduct, public policy demands that their privileged not protect the communication from disclosure, just as if lawyers were the criminal actors in the purpose. They should not be able to hide behind the shield.
Someone needs to look at the shield and the tests that we have seen articulated by the courts for a very long period of time now are fairly loose. I say that with the greatest respect, with respect to the mode by which those facts are to be established. And that must be so, in our submission, because of the time at which this exercise was undertaken.
KIRBY J: But you have assumed there that they are the innocent conduits, or parties to it, whereas the presumption of the law would be, I would think, that they are not and that this is a wall of privilege which is the client's business and should not be invaded except for good reason, established in a proper way before the judicial officer concerned.
MR ROZENS: But if that is taken to mean, your Honour, that at the end of the day one needs to litigate the issue, then - - -
KIRBY J: You cannot have that, I agree with that.
MR ROZENS: No, you cannot, it is putting the cart before the horse. And particularly in search warrant cases - quite different in civil litigation - but particularly in search warrant cases, where no one knows at the investigative end of things, what it is that is contained in the lawyers possession. At least in civil litigation there are affidavits, notice of discovery, affidavits of documents. Litigation is conducted in a fairly open environment. That is not so in the investigative stage.
TOOHEY J: Are you suggesting a different test, Mr Rozens, in those two sets of circumstances?
MR ROZENS: Well, your Honour, it is one of the observations that was made by Justice Lindgren in the Court of Appeal that there may - this is in the copy documents area - be a difference between the inter partes litigation and a search warrant. In principle, it is hard to understand why that should be so. In fact, it clearly is because for the reasons I just adumbrated a moment ago, that the investigator in the criminal environment knows nothing of the documents held by the law. In the civil litigation that is a matter almost of some knowledge.
TOOHEY J: Have you considered the decision of this Court in George v Rockett in relation to search warrants and whether that throws any light upon the burden that must be satisfied in order to displace legal professional privilege.
MR ROZENES: No, your Honour, I do not think there is anything in George v Rockett that assists in that. It is clear that the privilege is not one to lightly sweep aside, and I take Justice Kirby's point about that, in the way in which it is delivered. It is a significantly important privilege. There are cases when it should be swept aside. The real question is how does one go about doing that. It cannot be the trial of the issue. It has to be something else. It will vary from case to case, in our submission. The ancient authorities are correct in that respect.
Judges, on a case by case basis, will ask themselves, "Am I here satisfied that sufficient colour has been given to the bald assertion?" If counsel stand up and say, "I have five witness statements here which I propose to rely upon. I will call these five witnesses to say that they were present when A said to B, "I want to avoid my debts. Can you tell me how I go about doing that?" and B said, "Step this way into my office and I will explain it all". What needs to happen? Do they need to call the five witnesses? Is it sufficient to hand up the statements? Are the statements no more than hearsay anyhow? And in this case much of the information in an information is hearsay, but what else can it be? Does the prosecution in such a case call all the people who made the records, call the person who took the transcript in the section 264 examination, call all of the witnesses who have said, "I will say this and I will say that and here is my statement."?
In each case the reliance will be on hearsay material and the objection that was taken in this case and the one upon which the Court of Appeal ultimately decided was, "This is hearsay and therefore you did not show the court sufficient colour." And yet at the same time they said, "Well, of course, if Taciak had been there it would have been different." If Taciak had have been there, the information still would have been hearsay. The only difference would have been that Mr Taciak, I imagine, would have sworn that he honestly and reasonably believed that this was what could be established.
DAWSON J: And if you cross-examined, a lot of what he said would be hearsay.
MR ROZENES: Exactly. You could cross-examine him up hill and down dale, but he would still say the same thing, one imagines.
KIRBY J: What is the problem, from a machinery point of view, of having the witnesses' statements sworn by the witness and thereby, as it were, putting the evidence before the decision maker which is true evidence? Why could that not be the intermediate position that, at least, then, there is evidence that somebody put their oath to a statement but they are not subjected to cross-examination?
MR ROZENES: Well, it is a search warrant, your Honour. It is very, very early in the day to have witness statements sworn. One does not even know that an offence has been committed. One only reasonably believes that one has. And the practicalities of that would simply make the search warrant almost an impossible tool to utilise.
KIRBY J: Well, it is a serious thing to override the privilege, you see. You are wanting to do it in effect by the assertion.
MR ROZENES: It is no more serious, in our submission, than a search warrant which breaks down someone's door and interferes with the most important of private rights, and yet the law has it that search warrants are issued on information and belief. One could hardly imagine that it is a lesser vice, the execution of a search warrant or the granting of a listening device or an interception of a telephone call. They are serious interferences with private rights, in my submission, and much greater than the displacement of privilege on information - not that the privilege is being displaced on a mere assertion, but that there is information.
The only real question is: how do you put that information before the court? The minute your Honour proposes a test which has sworn statements, it then leaves open the possibility and perhaps even the probability that that ought to be tested because the point will then be: what is the point of having a sworn statement and not having it tested in court? Our friends will say, "Let's have these witnesses produced," and then you end up at the other end of the scale with the very thing that you are seeking to establish being proven before you get a chance to look at the evidence.
BRENNAN CJ: Perhaps the problem lies in seeing it too much in court context. It is a question of whether the statutory power is impliedly limited, is it not, that is, the statutory power to approve and authorise the taking of the documents?
MR ROZENES: That is right, your Honour. There is a difference.
BRENNAN CJ: So that the question really is: does the repository of the power act reasonably in granting a search warrant to take documents if the only information that he has in relation to those documents is the kind of information upon which you rely here?
MR ROZENES: Your Honour, I was not keen to adopt the search warrant example because the point your Honour makes, of course, is correct, that one is a creature of statute and this is not and there are special powers for search warrants.
DAWSON J: But you still say it is an administrative decision, do you, Mr Rozenes?
MR ROZENES: Yes, your Honour, but it is probably not a good example because, I mean, this is a right done away with essentially by statute, whereas of course here we are talking about a common law privilege. How good that is at the moment with the Commonwealth Evidence Act one is not certain because - - -
BRENNAN CJ: It is the common law privilege that is impliedly a limitation upon the statutory power.
MR ROZENES: It is, your Honour, but the point I was making was not so much that the statutory power deals with the privilege. The statutory power deals with a comparative injury, if one can describe it as such, to private personal rights and that is able to be done on the sort of information produced to a justice that we would say ought to be sufficient to produce to a judge dealing with the common law issue of whether or not that privilege is displaced.
DAWSON J: So it is an administrative decision, following upon that, by the justice that the privilege in these circumstances does not exist?
MR ROZENES: No, it does not, your Honour, because the justice is not required to deal with that issue at all. On the contrary, the guidelines that are put in place ensure that the seizure by the police of documents over which privilege is claimed does not constitute a seizure. It is - - -
DAWSON J: Prima facie the privilege does not exist.
MR ROZENES: No, your Honour, because again it is not an issue that can be - - -
DAWSON J: But is it a proper case to give to the police officer who is executing the warrant discretion to decide whether privilege exists?
MR ROZENES: No, it is a proper case to give to the judge before whom that issue needs to be resolved.
DAWSON J: I do not know that that issue arises at the stage of the issue of the warrant.
MR ROZENES: The issue does not arise at the time of the collection of the documents, your Honour, because the guideline says that any document over which the lawyer claims privilege is prima facie privileged.
DAWSON J: The justice has to come to some conclusion about privilege, does he not, in the circumstances?
MR ROZENES: The justice issues the warrant knowing full well that any document over which privilege will be claimed will be placed in a special container and not be the subject of a permanent seizure until such time as the owner of the privilege has the opportunity to - - -
DAWSON J: Does he wipe his hands of any decisions about this matter?
MR ROZENES: I do not think so, your Honour.
DAWSON J: Well, what does he decide? That is what I am trying to get you to say.
MR ROZENES: I think the warrant-giver decides that it is safe to allow the policeman to temporarily take a document which may ultimately be the subject of privilege or may not so that some other judicial officer can determine that issue.
BRENNAN CJ: But that cannot be accepted as any logical exposition of power, can it?
MR ROZENES: There is not, your Honour, but it is one of those instances where there is no other way of doing it, one suspects, that the warrant-giver is never going to be in a position ex parte to determine the question of privilege.
TOOHEY J: Then how does it arise? It could arise in the context conceivably of challenging the issue of the warrant. It may not arise in that context because that might be a difficult question to resolve, especially if the warrant authorises the seizure of categories of documents and does not specify them.
MR ROZENES: Yes.
TOOHEY J: So, all right, the documents are seized under the guidelines there held? Privilege is then claimed, so the inquiry then is moved away from the validity of a warrant, then looks to the question of whether the documents which have been seized and the seizure of which perhaps has not been challenged as such, whether those documents are then available for inspection.
MR ROZENES: Yes, and that can emerge either as an issue by itself with the owner of the document seeking a declaration from the court that documents are privileged or, alternatively, as part of a wider-ranging investigation, as was the case here, where a number of issues are taken up including the width of the warrant, the means by which it was executed, the validity of the three-condition warrant and so forth. Part of that exercise involved the seeking of a declaration that documents were privileged which was then met with the allegation that they were brought into existence, or some of them at least were, for the purpose of a criminal purpose.
TOOHEY J: What do you say is the use that can be made of the material which grounded the issue of the search warrant in order to determine whether legal professional privilege has been misplaced?
MR ROZENES: I say it is information and material that is capable of being put to the judge, determining that issue to see whether or not privilege is lost or not. It is just another way of putting the "whatnot", in our submission, before the court.
TOOHEY J: Is that the material upon which the judge must rely?
MR ROZENES: He can rely.
TOOHEY J: I said "must" because, if you say "can rely", then you open the door, do you not, to some sort of trial abuse?
MR ROZENES: He or she might say, "It's not good enough. I look at this but it's not sufficient".
TOOHEY J: Not sufficient to what, displace the privilege?
MR ROZENES: Displace the privilege, yes; "I'm not satisfied".
TOOHEY J: Then what happens?
MR ROZENES: Then the privilege is not displaced.
TOOHEY J: You mean there is no scope for calling the further evidence?
MR ROZENES: The person seeking to have the privilege displaced may be able to produce other material, whether it be in the form of affidavit or in the form of other documents handed to the court, or the judge may be encouraged and invited to look at the very documents over which privilege is - - -
DAWSON J: So, the question then is not whether the warrant was validly issued?
MR ROZENES: No. That issue, for all intents and purposes, your Honour, has gone, and it went in this case. By the time Justice Davies was looking at the information for the purpose of determining whether privilege was lost, I think all other issues had been resolved.
DAWSON J: What would have happen if I or the person who was questioning the procedure said, "Oh, look, I do not want to determine the issue of privilege; I want to argue about the valid issue of the warrant."
MR ROZENES: Yes. Well, that is exactly what happened here, and he said that, and served the notice to produce on the informant to produce the information in order to challenge the validity of the warrant.
DAWSON J: Why cannot he do that?
MR ROZENES: He can. He did, and the warrant was produced - - -
DAWSON J: Well, then, if he could do that, what is the test in relation to the issue of the warrant - - -
MR ROZENES: Well, with respect, your Honour, the test, with respect - - -
DAWSON J: - - - apropo legal professional privilege?
MR ROZENES: Well, once the material - I mean, it would be convenient to say that once the information was before the Court for a purpose, it was before the Court for all purposes. But, in effect, the judge was seized of the information. He had looked at it, firstly, to determine the question of whether or not public interest immunity would apply to some- - -
DAWSON J: No, no, but the test is, so far as the magistrate who issued the warrant - if you contested the validity of the issue, the test is, you say, whether there is material upon which a judge could find that there was - or that there was not legal professional privilege. That is the test.
MR ROZENES: Well, I put it another way slightly, your Honour, and that is - - -
DAWSON J: Well, I thought that is the way you put it.
MR ROZENES: I put it that was this material upon which the judge could find that legal professional privilege was lost, and we would - - -
DAWSON J: That he could find, putting himself in the same position as the magistrate, or putting himself in a position of testing the thing as an issue.
MR ROZENES: No, testing the thing as an issue, we would say, your Honour.
DAWSON J: But there is a shift there, is there not?
MR ROZENES: But he would be looking for different things, your Honour. At the time he was - if he was sitting in the position of the magistrate issuing the warrant he would be looking at some different things than what he is looking at at the time when he is determining this issue. At this time - - -
DAWSON J: You are shifting from whether the issue of the warrant was valid to whether the privilege does, in fact, attach or not.
MR ROZENES: Yes.
TOOHEY J: Well, you may or you may not. I mean, it might depend upon the grounds on which the validity of the warrant is attacked. That may have nothing to do with questions of legal professional privilege.
MR ROZENES: It might not. And it may not even be attacked. The validity of the warrant may be quite an acceptable exercise for the - they may simply be saying, "We only consider about privilege here." I, with respect, do not see that the two are linked. They are separate issues which, for convenience in this case, were being determined at about the same time.
BRENNAN CJ: I mean, the reality is that after Baker v Campbell, the way in which the problems that that case gave rise to were dealt with was by way of the guidelines.
MR ROZENES: Yes.
BRENNAN CJ: So that there was, so to speak, a fictional issue produced which was remitted to the court for determination; namely, whether documents which have been seized in exercise of a statutory power were or were not privileged. So that, one cannot really do any more, if one is going to be faithful to Baker v Campbell, than to say this is an issue for the judge's determination.
MR ROZENES: That is so, your Honour, because the fiction that needed to be put in place was to stop the taking of the documents constituting the seizure, because Baker v Campbell said that you could not seize privileged documents. So, the mechanism that was put in place by the guidelines was almost like a - created a lacunae in the sense of time. It said, "This is not really a seizure; it is a sort of a temporary holding. It will become a seizure once the owner of the privilege has an opportunity to assert it," and I cannot remember - I think it is 48 hours or something like that.
BRENNAN CJ: But the problem that it gives rise to is that the logical foundation for it has to be limitation on the power to seize. There is only one power to seize, and that is a statutory power.
MR ROZENES: Yes.
BRENNAN CJ: The Baker v Campbell principle says that power is limited by reference to a fundamental principle of legal professional privilege, therefore there can be no authority given to seize documents which are subject to a legal professional privilege. Now, if one analyses it in that way, the question simply is, has there been a valid exercise of power? And the answer to that has to be resolved under the guidelines, however, by a judge deciding whether or not, at that time, on the material available to the judge, from whatever source, limitation on the power should be observed.
MR ROZENES: Unless, of course, the owner of the privilege makes no complaint, in which case the effluxion of time resolves the issue. It must always be in the hands of the owner of the privilege to say, "I do not claim privilege", or "I waive it", or "These documents are not privileged", so, if the owner of the privilege does nothing in the time scale provided under the guidelines, then there is no conduct, there is no act on the part of the judicial officer which determines the question at all. It happens by the effluxion of time.
DAWSON J: But it may be theoretical and I may be being obtuse, but is the practical answer that the issuer of the warrant, the giver of the warrant, need not really worry about questions of privilege at all? He or she could wipe his or her hands of the whole matter because it is going to be determined later on.
MR ROZENES: Except that the issue of the warrant has to be satisfied that the warrant will be executed and that the - - -
DAWSON J: Why should he worry about that? If someone raises an objection, on your argument, it will all go into a packet and a judge will determine it. If no one raises an objection, it does not matter, I thought you said.
MR ROZENES: Except that if the issuer of the warrant is not satisfied that the guidelines will be applied, then the issuer of the warrant is issuing a warrant which is outside the permissible warrants - - -
DAWSON J: As I understand your argument, he or she acts on the basis that the guidelines - - -
MR ROZENES: Exactly. That is the only function that the warrant issuer needs to be - - -
DAWSON J: So why should the giver of the warrant worry at all whether privilege is going to be breached or not?
MR ROZENES: Only to ensure that there is in place the mechanism that the informant says he will abide by the mechanism of the guidelines.
TOOHEY J: It may not be as straightforward as that because if you look at the question that was asked in Baker v Campbell 153 CLR at page 133, the question asked was:
In the event that legal professional privilege attaches to and is maintained in respect of the documents.....can those documents be properly made the subject of a search warrant -
to which the answer was, "No". At least so far as Baker v Campbell is concerned, it focus upon the warrant. That answer would indicate that those documents that are privileged could not properly have been made the subject of the search warrant.
MR ROZENES: That is right. That is why - - -
TOOHEY J: There is all sorts of practical reasons then intrude which have led to the guidelines and the way in which the courts have tried to deal with the question, but at least so far as Baker v Campbell is concerned it goes to the authority of the warrant.
MR ROZENES: Yes.
McHUGH J: But the same question arises whenever a search warrant is executed independently of professional privilege, does it not, as to whether or not documents are within the scope of the search warrant, that is to say, whether they afford probable evidence of a crime. In theory, there is nothing at all to stop a person who is the subject of a search warrant going up to a court, seeking a declaration and requiring certain documents to be returned on the basis that they do not show any probable evidence of a crime or whatever the terms of the statute - - -
MR ROZENES: I have a recollection that the argument in Baker v Campbell sought to draw a distinction of some substance between conduct that might take a searcher outside the width and ambit of the warrant and the foundation of the warrant which permitted legal professional - I mean, a warrant on its face does not permit documents that are not within the warrant to be taken. On its face; it says you can only take certain documents. If the collector collects documents outside the warrant that is, of course, able to be rectified. But the warrants never said you cannot take documents over which privilege is claimed. After Baker v Campbell it was very difficult in some jurisdictions to get a warrant issued until such time as the magistrates or justices were satisfied that the warrant would be executed, or the warrant sought would exclude the seizure of privileged documents. That goes back to the fiction, really, because once the policeman puts them in the box, one could really argue that it is a seizure. It seems that, even in this case, Justice Davies found that there was not a seizure within the meaning of that word, there was merely an isolation or a temporary taking - only becomes a seizure once the issue is resolved.
I do not know whether I have answered your Honour's concerns about that. I really did want to demonstrate that in this case, in particular, this information was before this Court in a permissible way and although objection was taken to it, his Honour assumed, because of the way in which the proceedings then transpired, that the document was available for his consideration. Counsel for the police argued extensively from the information. Our learned friend argued from the information seeking to persuade the judge that the contents of the information did not disclose improper purpose of a kind that would permit the privilege to be displaced and his Honour clearly went about missing the fact that buried back some pages before was the objection of our learned friend, Mr Bloom.
That is why he was able to announce, as he did, that both parties were content that he should have recourse to the information. But the point we make is that the information contained in it, a series of annexures, all of which would have been proper material for the judge to consider in determining whether or not the privilege was real evidence, some if it hearsay, some of it real evidence, all properly taken into account. Now, whether it got there by someone swearing a discrete affidavit as to that document or not, in our submission, makes not the slightest bit of difference.
DAWSON J: I thought you said the judge was determining the other question whether, in fact, the - - -
MR ROZENES: No, he determined both.
DAWSON J: Yes. Well he would not have got to the second?
MR ROZENES: No.
DAWSON J: Well, of course, that is right.
MR ROZENES: He first of all looked at this information to determine a public interest immunity point. That went off, I think, on appeal to a Full Federal Court. The matter then came back on again and there was arguments about Karina Fisheries and Lego and those issues and that had to do with the contents of the information because it was argued that this information shows you that they had in their position certain documents that they did not need to get a warrant. So, all those arguments that are generally agitated in that Karina Fisheries/Lego environment have, as their factual basis, the contents of the information.
Then they were finally disposed of and there was the remaining question of privilege and at first the privilege was established, I think, by an affidavit sworn by the solicitor himself and by a solicitor in his office. My learned friend, Mr Roberts, sought to cross-examine those people to demonstrate the fraud exception. His Honour said, "No, I will not permit that to take place at this time" and then the submission went on the information and the objection of our learned friend, Mr Bloom, was lost. His Honour never ruled on it.
McHUGH J: But ultimately if you analyse the issue right through as a matter of principle, surely this issue has to be resolved by evidence admissible in a court. Can I put these reasons to you? Strictly speaking, the form of the warrant should be subject to an exception, that is to say, you can obtain all documents that afford evidence of the crime subject to those that are legally privileged. So, if a dispute arises as to whether or not a document is legally privileged, it has to be determined by the courts.
MR ROZENES: Yes.
McHUGH J: And that means it is just determined by the courts in the ordinary way, is it not, with respect of who the onus is on?
MR ROZENES: We would say, no, your Honour.
McHUGH J: Why?
MR ROZENES: Because that question, for example, can be determined by the judge inspecting the documents without any evidence. It may appear from the face of the documents that they are documents brought into existence for the purpose of facilitating a crime or fraud.
McHUGH J: But that assumes that the judge is entitled to inspect them.
MR ROZENES: He must be entitled, in our submission, to inspect the documents.
McHUGH J: Why?
MR ROZENES: Because he has got to make a decision and he has to make a decision before he tries the issue of fraud or crime.
McHUGH J: Not necessarily. I mean, as was said in Cox & Railton, your argument is the secret must be told in order to ascertain whether it exists.
MR ROZENES: That was not my argument; that was the argument that was put.
McHUGH J: I know it was, but that is what your argument amounts to now.
MR ROZENES: But the argument is, your Honour, that that issue has to be resolved by the judge to determine the question of privilege.
McHUGH J: Why? You get a similar problem in relation to public immunity. It is not every case in public immunity that the judge automatically inspects the documents. There has got to be some ground for thinking that the documents which appear to be covered by public immunity are not.
MR ROZENES: That is a good example, your Honour, of where the court fashions the mode by which it is satisfied to meet the exigencies of the case. And in public interest immunity sometimes the only way of resolving the issue is to hand the documents to the judge. In the absence of the other party looking at them the judge makes a determination on the balance of probabilities whether there is an arguable case of public interest immunity. If he says there is, he grants it. And that is because it would be difficult to do otherwise.
It is difficult, in our submission, to resolve this issue of privilege as well. And that is why, in our submission, when one looks at Cox & Railton and O'Rourke v Darbishire and Bullivant that the language that is used by the judges indicates, in our submission, that it is going to be an instinctive exercise by judges depending upon the facts and circumstances of each case as to how they establish it. But nowhere is it said, in our submission, in clear terms, that it has got to be done by admissible evidence in the usual way. In other words, there has got to be a trial of the issue. The judge is entitled, in our submission, to inform himself of sufficient material to see whether or not there is a prima facie case for replacing the privilege and if he is, so be it.
McHUGH J: After the Western Australian Fisheries Department case, Jacobsen v Rogers, has there been any development of public interest immunity? I mean, one of the reasons I dissented in that case was that I did not think that public interest immunity could really be determined in the context of search warrants, but I think the majority of the Court, certainly some members thought public interest immunity could be raised as a defence even of a search warrant.
MR ROZENES: It was in this case, your Honour, because - well, it was not, with respect, to the warrant so much as it was with respect to the contents of the information. I have not considered that carefully, your Honour.
McHUGH J: But has there been any development? Have there been any subsequent cases since Jacobsen v Rogers?
MR ROZENES: No, not that I know of.
TOOHEY J: But the answer which the Court gave in Baker v Campbell, that may have been dictated in part by the question itself, that it suggests that in the end what the Court is saying is that these documents can or cannot properly be made the subject of a search warrant. And that is not the way in which the declarations ordinarily issue and certainly not the way in which it issued in this case, but that answer or the answer to that question suggests that that really is, in the end, what the inquiry is about. And having said that, I am not sure where it takes you.
MR ROZENES: I am not sure either, your Honour.
TOOHEY J: Because it still may be necessary to isolate, just as a matter of practicalities, attacks on the search warrant and the other questions of legal professional privilege.
MR ROZENES: If that were so, that would make it in every case, your Honour, where the documents, on their face, might be privileged. Irrespective of what the desires of the owner of the privilege are, the court would have to satisfy itself whether or not the documents can be seized and that cannot be right either. It has got to be claimed, the privilege, in our respectful submission, because, as I understand it, at the seizure stage the only thing that gets indicated is, "All these boxes have got documents in them. They could be privileged.", and into the privilege bin they go and then it is up to the owner of the privilege whether he seeks to assert the privilege. He may know perfectly well that the documents are not privileged or determine that he does not want to maintain the privilege for a reason that is not instantly apparent.
I think I have exhausted anything I had to offer that is not in our outline of arguments, unless there are any other questions that your Honours wish to direct to me. We have got the journal articles with respect to the copy documents point isolated and we will have them copied and produced to the Court sometime today, if that is acceptable.
GUMMOW J: There is also some treatment in what is now Cross and Tapper, that is the English Cross, in the eighth edition which is 1995. Have you looked at that?
MR ROZENES: No, probably not, your Honour, but we will certainly do that.
GUMMOW J: Page 488.
MR ROZENES: Thank you, your Honour.
KIRBY J: Were there any New Zealand cases on this on that first issue or not?
MR ROZENES: I think there is a New Zealand case in our outline of argument, your Honour. Keep Bros I think is a New Zealand case.
GUMMOW J: There is also Justice Sopinka's work on The Law of Evidence in Canada. Have you looked at that?
MR ROZENES: Yes. We will put that in our book, your Honour.
BRENNAN CJ: Yes, thank you, Mr Rozenes. Mr Bloom.
MR BLOOM: Your Honours, dealing with the first point first, the test in relation to legal professional privilege, and it is a stringent test in this country at that, the sole purpose test, has been laid down as applicable to any document. That is the test of Grant v Downs [1976] HCA 63; 135 CLR 674 and if I could just take your Honours to a passage in the judgment of Mr Justice Jacobs in that case at page 692, the first full paragraph, and his Honour says this:
I think that the question which the court should pose to itself is this - does the purpose of supplying the material to the legal adviser account for the existence of the material? I use the word purpose here in the sense of intention - the intended use. The question is one of fact.
Your Honours, the Court will be aware from the written submissions that there are two competing lines of decision in relation to copy documents, one which emanates principally from what Lord Denning said in his obiter remarks in Buttes Gas in reliance upon an earlier decision in Chadwick v Bowman, which itself concerned documents that had not been brought into existence for the purpose, and that line of cases is limited to discovery. Every case with which the principle is concerned is a discovery case.
None of the cases involved a search warrant or any other extra curial process and the pragmatic basis which is given for that principle is that one gets then accelerated production of the original document. The original is not privileged. A copy for which the claim is made should not be allowed to be claimed as privileged simply because if we can have the copy now we do not have to wait for the original and that is the basis of that. Again, something which really pays no regard to the situation of a search warrant in the extra curial process.
The second line of decision upon which we rely is that which divines from The Palermo and Watson v Cammell Laird & Co. In the second case, Lord Evershed, in reliance upon the former, applied the purpose test to the copy. If the copy was brought into existence for the requisite purpose, he said it is privileged - albeit that the original is not. Now it is, of course, our submission that that is what must be preferred, across the line, in relation to both search warrants and in relation to discovery. It is of universal application, and it applies the test in Grant v Downs, itself that stringent test, which is arrived at a point where the balancing exercise of competing public interests has already been completed.
DAWSON J: It does not, you see, because the purpose of making a copy is, as I said earlier, the making of the copy - not the ultimate use to which it can be put - and that means that a copy is in no different position to the original. You are in the end in the possession of two documents.
MR BLOOM: Your Honour, in depends on what one means by purpose. If one means what Sir Kenneth meant, namely look at the reason the document came into existence and its purpose in that sense, then if the purpose for making the copy is to submit it to a legal adviser, or for a legal adviser to send it to a client, then that satisfies the sole purpose test. That is the same test with respect to the original.
DAWSON J: That is not the way you should look at it, that is quite unrealistic. I mean, I understand that you have to say it is not, but - - -
MR BLOOM: I had to, and do so, your Honour. It gives certainty. I mean when a search warrant is executed, and privileged documents are at least initially wrongly taken, it is then incumbent upon the person who needs to claim privilege to make good his claim. I might just say in passing, the onus must be upon those who claim the privilege does not exist, if it is to fall within one of the exceptions, not upon the person who makes the claim to show that the exception is not satisfied.
It is in that context that there must be a test for privileged documents. And it is in the context, too, of what underlies the whole fundamental rationale behind legal professional privilege, namely, the secrecy of the act of communication - not the content of communication - but the freedom which the citizen must feel to go to the legal adviser and to, as one of the judges said in an older case, bare his breast, to say I want to make a clean breast of the entirety of everything I have to tell you and he must feel free to do that. And that, if it involves copying documents, is an example of what he must feel free to do. And there should be no principle, your Honour, which somehow limits that freedom.
DAWSON J: Copying a document involves no act of communication.
MR BLOOM: No, it is the sending of it, but if it is copied for the purpose of being sent, then that is all part and parcel of the act of obtaining or giving legal advice.
KIRBY J: The consequence of the rule that has been urged on us by the appellant would be that clients would either not disclose copies, or keep them to themselves, or take them away; not leave with them with the lawyer. I mean that is a possibility, because otherwise they are vulnerable - the search warrant will be executed upon them.
MR BLOOM: Most certainly, your Honour. That is a certain result.
KIRBY J: But, if they can be executed upon the original, is the point you make that the original, the purpose of the production of the original, was the original purpose, whereas the purpose of the production of the copy was the purpose of getting the legal advice.
MR BLOOM: Yes, your Honour, that is the distinction and that is what attaches the privilege to the copy.
KIRBY J: It does seem that the argument that you are advancing would put this Court out of line with what has emerged as the principle in the United Kingdom, in England and also in Canada.
MR BLOOM: The United Kingdom, yes, but not so much Canada perhaps, your Honour. But if I could just deal with the United Kingdom for a moment. What is the basis for the diversion from Watson v Cammell Laird, which is the position for which we contend, is generally the judgment of Lord Denning in Buttes Gas, and that was obiter and that was pragmatic. That was in the context of discovery and it was also without regard to the sort of principles for which this Court has striven in cases dealing with privilege, the last of which is Carter.
KIRBY J: I am thinking more of the present Master of the Roll's decision which really rested upon the fact that the law has to get realistic; there are photocopiers everywhere, copies are being made, and that your rule would overlook or ignore that reality.
MR BLOOM: Your Honour, all of us can probably remember receiving briefs from solicitors who hand wrote part of them who would say, "My client entered into an agreement of a certain date and I now set out in hand clauses 4 and 6 and 7 of that agreement and I seek counsel's advice". No solicitor in his right mind would do that today. He would go immediately to the photocopier, he would photocopy the document and he would say in his observations, "Please look at clauses 4, 6 and 7 and give me your advice". Why should it make a difference, with respect, your Honour? That is what we say. If the sole purpose of making the copy in that case is to obtain legal advice, it is no different from making copies in handwriting of parts of the document, as was within, I dare say, all of our memories, done. Photocopies of the suburban solicitor's file would find their way to junior counsel's chambers certainly quite often.
Your Honours, the other thing that comes from England is the idea that you can somehow have a balancing process after the balancing process has been completed, because the balancing process which is spoken about in Waterford's Case is completed and manifests itself in the rule in Grant v Downs. Carter's Case makes that abundantly clear. There is no further balancing process to be done. Even in the interests of a man's defence in criminal proceedings, that public interest cannot prevail over the rule in Grant v Downs that is the product itself of the previous balancing exercise.
In the United Kingdom the balancing exercise seems to go on, so that one satisfies what over there is the dominant purpose rule, and perhaps under our new Evidence Act is the same but at least at common law remains here a sole purpose rule. One comes to the purpose rule and one then in England looks at the public interest of expeditious trial. The public interest of expeditious trial prevails over the privilege. Of course, it is in discovery circumstances where you can always, or generally always, get hold of the original document, although there are some cases where it is pointed out that may be in the hands of a third party if it still exists.
The search warrant situation is not necessarily the same. There is a case I will take your Honours to shortly: Goldberg's Case. It was one of those to which we referred. Mr Goldberg was a barrister practising in England and his instructing solicitor was an American attorney who sent documents to him, the originals of which were not in the country. They related to some Panamanian transaction. The inspectors of tax under a similar power to section 10 sought to seize the copy documents in Mr Goldberg's chambers and were denied the ability to do so, the line of country being followed being that of course for which we contend.
May I take your Honours to Carter 183 CLR 121, because it is important, I think, to look at the basis. Your Honour the Chief Justice, at page 127, points out towards the bottom of the page that:
Administration of the law is not the function of the courts alone.
And over the page, 128:
It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks."
That is a quote from Advocate General Warner in a decision
of European Communities and then your Honour referred to what you said in Waterford and to what Justices Mason and Wilson said in Waterford at the middle of the page:
"Legal professional privilege is itself the product of a balancing exercise between competing public interests whereby, subject to the well-recognised crime or fraud exception, the public interest in `the perfect administration of justice' is accorded paramountcy over the public interest that required, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence. Given its application, no further balancing exercise is required.
And then your Honour agrees with an observation by Justice Dawson in Kearney:
"the policy which lies behind the doctrine views unrestricted communication between lawyer and client upon professional matters as being necessary for the proper functioning of our legal system. If inroads could be made upon the privilege in individual cases by involving a `higher public interest', its application would become uncertain and the policy behind it would be effectively undermined."
And then Justice Deane, at 131, second paragraph in his Honour's judgment:
The relevant documents were all brought into existence solely for the purpose of the giving of confidential legal advice by a qualified legal practitioner acting in his or her professional capacity. It is common ground that they all fall within the ambit of legal professional privilege which prima facie attaches to any confidential oral or recorded communication or any document (or other material) which has been made or brought into existence for the sole purpose of seeking or giving legal advice or being used in existing or anticipated litigation.
And then, at the bottom of 132:
In the courts below, both Seaman J and Rowland J correctly pointed out that a majority of this Court in Baker v Campbell clearly accepted that legal professional privilege is not a mere rule of evidence but is a substantive and fundamental common law principle.
If I might pause there, Justice Gummow has pointed out in Goldberg that the English cases seemed to regard it more as a procedural matter than a substantive matter; more as something to do with the rules of evidence.
Indeed, that acceptance constituted the basis of the actual decision in that case, which was to the effect that the doctrine was not confined to judicial and quasi-judicial proceedings but protected documents subject to the privilege from seizure pursuant to a search warrant duly issued under s10.
Now, at 134, the first full paragraph:
The point that legal professional privilege is itself the outcome of a balancing exercise and is conclusive when it attaches has also been made in a number of recent judgments in this Court.
The passage from Waterford to which I have already taken your Honours:
To the same effect is the following extract from.....Dawson J -
in Kearney, to which I have also taken your Honours:
As Dawson J's reference in the above passage to "the recognised exceptions" suggests, legal professional privilege is subject to a number of established and settled "exceptions". In particular, the privilege does not extend to communications or documents made or brought into existence for the purpose of, or as part of the process of, crime, fraud, abuse of statutory powers or, in some circumstances, defeating or frustrating the administration of justice by the courts. For present purposes, a critical characteristic of those "exceptions" is that they are exclusions from the reach of legal professional privilege rather than exceptions to the scope of the protection which it affords. They are directed to circumstances in which the privilege does not attach with the result that the particular communication or document is not protected by legal professional privilege at all. They are not directed to circumstances in which, notwithstanding that legal professional privilege does attach, the courts will override the privilege and order that the privileged document be produced for inspection or that the privileged communication be disclosed. Nor, in accordance with what has been said above, are they directed to identifying circumstances in which the courts will embark upon a balancing process to determine whether the considerations favouring disclosure outweigh the considerations favouring confidentiality. In that regard, the established position in this country is that, in the absence of waiver or loss of confidentiality and subject to.....qualification in relation to wardship or custody.....the protection which legal professional privilege accords to the communications or documents to which it actually attaches is, for so long as that attachment persists, unqualified.
Then, in the next paragraph:
As has been seen, the focus of the modern theory of legal professional privilege is upon the removal of "apprehension" of compelled disclosure: "the necessity of providing subjectively for the client's freedom of apprehension in consulting his legal adviser".
We interpolate there, that includes photocopying documents for that purpose:
The achievement of that "necessity" is not frustrated by the established exclusions in the form of particular identified circumstances in which legal professional privilege will not attach. Those circumstances can be identified in advance and the client can be advised that, provided they do not exist at the time when the relevant communication or document is made or comes into existence, legal professional privilege will attach to it and will, in the absence of waiver or loss of confidentiality, provide conclusive protection in the future subject only to the possible qualification in respect of wardship or custody proceedings. In contrast, if the privilege could be overridden by the courts by reason of the outcome of some subsequent balancing process or whenever particular circumstances arise in subsequent litigation, an assurance of confidentiality could never be given and the "necessity" for "the client's freedom of apprehension" could never be fully achieved.
Then at page 138 about point 6 of the page:
That fundamental principle is now so well entrenched in the common law of this country that it should not be overturned or significantly curtained by the courts, in the absence of compelling legal considerations. Indeed, so much has been expressly recognised on a number of occasions in this Court where it has been acknowledged that "legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision" and that, any curtailment of the operation of the privilege "is for the legislature, not the courts".
Then at 139 about point 3:
Quite apart from those more general considerations, including the essential function served by legal professional privilege in our adversarial system of administering justice, there is the practical consideration that, if legal professional privilege were not completely secure, the likelihood is that the privileged communication or document would not be made or would not come into existence in the first place.
And that is again right - - -
TOOHEY J: What do those passages tell us about this case, unless they are aimed at demonstrating the high onus of proof that is upon someone who seeks to displace the privilege.
MR BLOOM: More than that, your Honour. They tell us that the balancing exercise is complete at the point at which the sole purpose test is manifested, and that if one then applies that test to any document passing between legal adviser and client, one has done all the balancing that one is entitled to do. But one cannot then go to some other public interest - just as one could not go in Carter's Case to the other public interest - and say that other public interest may now be considered. On the basis of Carter's Case, your Honour, it may not.
TOOHEY J: But the balancing exercise does not exclude the objection based upon fraud or illegality.
MR BLOOM: No, but the balancing exercise only applies when one is talking about a document that can be privileged. The exception, the so-called exception, is, as his Honour Justice Deane says, not really an exception at all. It is a situation where the document will not be privileged.
TOOHEY J: That is true as a matter of language but I am not sure what the point is that you are making.
MR BLOOM: The point is this, that the English cases that say that a balancing, or seem to say, that a balancing exercise can still go on and that some other interest can be considered after one has concluded that the document satisfies the sole purpose test are contrary to what is the basis of this Court's decisions culminating in Carter's Case.
BRENNAN CJ: One can accept that but, I mean, when you come to apply the sole purpose test to a copy, the question really is is the sole purpose test intended to apply to copies of documents which are themselves not privileged? Take the most usual of circumstances, the ordinary motor car collision. If the loss assessor takes statements from by-standers or witnesses for the purpose of submitting them to the insurer's solicitor, one might say that they are privileged. If he takes a photocopy of a public map of the intersection, is that privileged?
MR BLOOM: If a photocopy is made for the purpose of submission to the solicitor, yes, your Honour, it is.
BRENNAN CJ: That seems ludicrous, does it not?
MR BLOOM: It does and it does not. It, nonetheless, means that although there will be situations in which that observation may be perfectly, with respect, correct, it will also cover all the other situations where it is not ludicrous. When a search warrant is executed and copy documents are taken, there is no context of the original as an available thing at that point in time.
BRENNAN CJ: The assumption on which this argument is proceeding is that there is an original which is not privileged.
MR BLOOM: Somewhere.
BRENNAN CJ: Somewhere, of course.
MR BLOOM: But not there, not where the search is being - I mean, it may be but ordinarily one would not automatically assume that it will be on the same premises.
BRENNAN CJ: No, the question whether or not the document that is the subject of a seizure is privileged is a question which is, in this context, being debated on the assumption that there is an original document which is not privileged.
MR BLOOM: There is somewhere, quite so, your Honour, quite so. But, the point is that when the search warrant is executed, that which is taken is a document which answers the Grant v Downs test, the sole purpose test.
BRENNAN CJ: Well, assuming the Grant v Downs test applied to it.
MR BLOOM: Yes.
BRENNAN CJ: And that is the point that I am drawing your attention to, to inquire whether or not the Grant v Downs test does apply to copies of non-privileged documents.
MR BLOOM: Your Honour, the idea being to promote this freedom of the act of communication between solicitor and client and vice versa.
BRENNAN CJ: Well, accepting that but, I mean, there seems to be an artificiality in suggesting that they are at a greater liberty in a client taking a copy document to his solicitor than there is in taking the original.
MR BLOOM: Well, he may not have the original.
BRENNAN CJ: But, assuming that he has.
MR BLOOM: Yes.
BRENNAN CJ: On your argument there is a greater privilege attaching to the sanctity of that communication when he takes the copy with him than if he takes the original.
MR BLOOM: There is no privilege attaching to the original. We do not suggest that for a moment.
BRENNAN CJ: Why? Well, then, how is the confidentiality being affected by the circumstance that the document that is taken is a copy rather than the original?
MR BLOOM: Your Honour assumes that the client was in a position to take the original. He may have got the copy from someone else who has the original but even so, the taking of the copy to take to the solicitor forms part of his act of getting advice. That is part of the relationship between them. If he takes the original it is quite clear it, not having been brought into existence for the necessary purpose it, is not and will not ever be privileged but the copy has been.
One must have - I mean, the situation is either this, your Honour, that copy documents are another exception to the privilege rule or, alternatively, one applies the rule in Grant v Downs across the board to all documents; copy documents included and in that sense copy documents are not treated as inferior, if I may say it, for the purposes of the test. It is going to be difficult - - -
McHUGH J: One of the problems in the whole area of legal professional privilege seems to me is that it has been overlayed, probably by an unconscious desire on the part of the judges in days gone by, to prevent the other side getting access to documents which have been prepared by the other party. It is rather ridiculous, in a sense, that if, for the purposes of litigation, a solicitor gets a surveyor to go and make a report on property; that document should be privileged. It has always seemed to me that it has been privileged only because there has been this unconscious desire on the part of the judiciary not to allow the other side to get access to documents that the other side have prepared for the purposes of the litigation.
I think this has overlayed this whole problem and a case like this becomes quite important, I think, really to try and see what is the true basis of many of these documents. I think you are probably right about what you said about the photograph, but that is absurd and the reason is that if that sort of material was discoverable, well, the other side would not have to do too much work. They could rely on discovery. They could get hold of the surveyor's reports, get hold of photographs, get hold of everything under the sun. I think maybe we have got to really look at the whole doctrine a lot more closely than we have.
KIRBY J: But that has a greater force, it seems to me, in the area of the criminal law because it means that the easy path to proving a prosecution's case is simply to raid the solicitors for the accused and I do not think that is what the law should allow.
MR BLOOM: Certainly, your Honour. One must have a rule about privilege. Privilege is a difficult question in itself and one must have a rule about it. That rule is the rule in Grant v Downs. It is a rule which is formulated as the result of balancing all the relevant public interests and when one gets to that rule and applies that rule to a document, albeit a copy, one has the answer: Is it privileged or not? And that gives rise to a certainty in all those who are dealing with the law. I mean, what is suggested here - and I will take your Honours in due course to examples - is that copies of documents which are actually in counsel's brief, as long as there is no annotation on them and as long as one cannot see from the document itself what was the subject matter of the advice are themselves available. I think that was the decision, indeed, of Mr Justice Byrne in Roux's Case.
If that means that all the policeman needs to do is to go into the barrister's chambers and detach from the observations all the photocopies which are annexed to it or which come in the various folders that one finds these days with it and take those away, that is not in the interests of the communication between the client and the solicitor and the solicitor and counsel in the first place that has led to the very production of those documents.
BRENNAN CJ: That would be an easy situation to cope with, would it not? It would just simply be offensive to the whole notion of adversary litigation to allow that to occur.
MR BLOOM: But this is a case where briefs prepared to counsel after the events have been kept assembled in the solicitor's office after having been returned and the police have done just that: they have removed all of the copy documents from the observations to counsel and they regard themselves as entitled to keep all of those copy documents because the originals of those would not be privileged. That is how the situation basically has arisen.
GUMMOW J: One of the problems, and it is a problem with Grant v Downs in a way, is that it is framed in terms of documents rather than communications.
MR BLOOM: Yes, which is why I endeavoured to lay stress in reading the passages from Justice Deane's judgment in Carter on the alternatives to which he refers, communications or documents. But what we had hoped to demonstrate from Carter's Case was that what is sought to be fostered by the privilege rule is the act of communication, not the content, but the freedom to communicate anything which may be in the form of a statement, it may be in the form of a copy of part of a document, it may be in the form of a copy of a whole document.
GUMMOW J: You said there were some Canadian authorities on this point, did you?
MR BLOOM: I do not think I said that, your Honour. I think I did say that - - -
GUMMOW J: Justice Kirby said.....and you said - - -
MR BLOOM: Yes, I did not think that the Canadian authorities went the other way but I will look at that over the lunch hour, your Honour.
GUMMOW J: There is a case called Regional- and it seems to be the only one left off your list. It is called Regional Municipality of Ottawa v Consumers' Gas Company (1990) 74 DLR (4th) 742 at 747. I have not had a chance to read it.
MR BLOOM: We shall look at it, your Honour, and return to it after lunch if we may.
GUMMOW J: It is mentioned in the latest edition of the English Cross on Evidence which is now Tapper and Cross or Cross and Tapper.
MR BLOOM: Thank you, your Honour. While one is dealing with the Australian authorities, may I just take your Honours briefly to the judgment of Justice McHugh in Giannarelli v Wraith [1991] HCA 2; 171 CLR 592. At the bottom of 600 your Honour Justice McHugh said:
Baker v Campbell decides that a claim of legal professional privilege can be made in administrative as well as judicial and quasi-judicial proceedings. It follows that such a claim can be made in a taxation of costs. As Deane J said in Baker v Campbell -
Then in the middle of page 601 your Honour follows a decision of Hobbs v Hobbs and Cousens, a judgment of Justice Stevenson:
"There is, however, an abundance of authority in support of the proposition that once legal professional privilege attaches to a document ... that privilege attaches for all time and in all circumstances."
I take your Honours to that simply because your Honours will recall that Justice Hill, for instance, said the document would be privileged if brought into existence for the sole purpose but, if it subsequently was detached from the brief, that privilege would be divested. There are passages in Carter which support the proposition here that, once legal professional privilege attaches unless subsequently waived, it attaches for all time; it cannot divest; it is absolute.
KIRBY J: So you take issue with what Mr Heydon said in his book that, if you have a copy and the original is lost, that that is it? If the copy was produced for the purpose of legal advice, then the privilege attaches; it cannot be divested?
MR BLOOM: Yes.
KIRBY J: If that means that the law does not get at the truth, so be it?
MR BLOOM: Yes, and that is no different to the situation, your Honour, where the original is destroyed in any case and there is no copy. Somehow evidence will have to be given of the contents of that document without the original available. But that anomaly is no reason for retreating from the clear and certain position that Grant v Downs gives us even if applied to copy documents. The fact circumstances in Ex parte Goldberg (1989) 1 QB 267 I referred to before, your Honours - this is the English case - are of interest in examining how what our learned friends contend for would work and why it was rejected at least by the Divisional Court there. It was an application for judicial review.
GUMMOW J: But this was criticised in the Dubai Bank Case, was it not?
MR BLOOM: It was, your Honour, yes, but again on the pragmatic basis, not on the basis of the soundness of the authorities which are followed in this case. Mr Goldberg was senior counsel practising in London. One sees from page 268 that he:
had received copy documents from his instructing solicitor, Mr Elwood Rickless, an American attorney based in London, to enable him to provide legal advice to clients, including a Mr Al-Atia whose tax affairs were the subject of investigation by the Board of Inland Revenue. The board wished to obtain documentary evidence of the receipt by Mr Al-Atia, or by his Panamanian companies, of commission on oil shipments from Abu Dhabi to an American company but had been unable to do so. The documents had been copied by Mr Rickless who had afterwards parted with the originals at the request of Mr Al-Atia and their whereabouts, and that of Mr Al-Atia, were not known. On 17 March 1987 the applicant had been served with notices under section 20(3) of the Taxes Management Act requiring him to produce the documents in his possession. Previous notices to disclose the documents, served on Mr Rickless and Mr Al-Atia, had not been complied with. On 16 June 1987 the board had notified the applicant, through solicitors, of their decision to reject his claim to professional privilege and to commence penalty proceedings against him under section 98(1) of the Act. The grounds of the application were that the documents requested were copies of documents brought into existence solely for the purpose of obtaining advice from counsel and that a claim for professional privilege could be maintained as the documents had been made in contemplation of proceedings to be brought against, or involving, Mr Rickless or Mr Al-Atia, neither of whom had consented to disclosure.
Then at page 271 at the bottom of the page, paragraph 7 in the affidavit of Mr Goldberg of Queen's Counsel is set out:
Mr Rickless came to see me in conference.....To enable me to advise, Mr Rickless either brought with him or later sent to me (I cannot now remember which) a bundle of copy documents. I believe that the documents were copied by Mr Rickless solely for the purpose of enabling me to give legal advice and I used them in giving such advice.
And, Mr Rickless, in his affidavit at the top of page 273, confirms in paragraph 4 what Mr Goldberg says. And then at the bottom of 273:
Since at least 1873 it has been clear that a request for legal advice and the advice given are both privileged, whether they are written or oral, and whether the subject matter does or does not precede litigation.
and refer to Minet v Morgan and Anderson v Bank of British Columbia.
That the privilege extends only to the instructions given by the client to the solicitor, or by the solicitor to the barrister, but also to documents which come into existence for the purpose of instructing the lawyer and obtaining his advice is apparent from what was said by Lord Justice James in the Court of Appeal in Anderson's case, where he said..:
"as you have no right to see your adversary's brief, you have no right to see that which comes into existence merely as the materials for the brief."
However Anderson's case is also authority for the proposition that a document which comes into existence for some purpose other than to instruct the lawyer or to form part of his brief is not privileged and it does not become privileged simply because it goes to the solicitor or barrister as part of his instructions.
In Southwark and Vauxhall Water Co. v. Quick ... the defendant argued that the documents spontaneously procured by the plaintiff to be submitted to his solicitor were not privileged, but the Divisional Court and the Court of Appeal found against him. In the Court of Appeal, Lord Justice Brett said:
"if a party seeks to inspect a document which comes into existence merely as the materials for the brief, or that which is equivalent to the brief, then the document cannot be seen, for it is privileged."
And Lord Justice Cotton said, at p.322:
"That, I think, is the true principle, that if a document comes into existence for the purpose of being communicated to the solicitor with the object of obtaining his advice, or of enabling him either to prosecute or defend an action, then it is privileged, because it is something done for the purpose of serving as a communication between the client and the solicitor."
As Justice Butt and the Court of Appeal recognised in The Palermo (1883) 9 PD 6, privilege may attach to copies of documents which are not themselves privileged, because of the copies it can be said that they only came into existence to obtain legal advice.
Then, at 275:
But everything does depend upon the circumstances in which the copies came into existence.
Chadwick v. Bowman is referred to and of course that is the case that is the basis for the Lord Denning line of decision and Justice Matthew is there shown at letter C on page 275, as saying:
"It does not appear to me that these documents really came into existence for the purposes of the action -
So that the case that is the foundation for the opposing view was not a case where the documents answered the purpose test at all. And then there is a reference to Lyell v Kennedy and the skill test and then Watson v Cammell Laird & Co where The Palermo and Lyell v Kennedy are both followed, and then Buttes Gas is referred to at the bottom of 276.
Then in 1981, the Court of Appeal decided Buttes Gas.....and in his review of the law relating to the privilege Lord Denning M.R.said, at 244B:
"if the original is not privileged, a copy of it also is not privileged - even though it was made by a solicitor for the purpose of the litigation: see Chadwick v. Bowman (1886) 16 QBD 561."
With great respect Lord Denning M.R.'s proposition is not supported by the authority to which he refers and is contrary to the other authorities to which we have referred in the course of this judgment. His judgment continued:
"There are some cases which appear to give a privilege to copies on their own account, even when the original are not privileged. They range from The Palermo down to Watson v. Cammell Laird & Co But those cases are suspect. They were adversely commented on in the Sixteenth Report of the Law Reform Committee on Privilege in Civil Proceedings.... Since Waugh's case it is open to us to reconsider them. In my opinion, if the original is not privileged, neither is a copy made by the solicitor privileged. For this simple reason, that the original (not being privileged) can be brought into court under a subpoena duces tecum and put in evidence at the trial. By making the copy discoverable we only give accelerated production to the document itself."
It has to be recognised that adverse comment in the report of a Law Reform Committee does not render "suspect" decisions of the Court of Appeal, and we do not understand on what basis it was asserted that since Waugh v British Railways Board the Court of Appeal has been free to reconsider the earlier decisions to which Lord Denning referred. Waugh's case was concerned with whether a railway report on an accident had to be disclosed. It was not concerned with copy documents. However for present purposes suffice it to say that the observations of Lord Denning M.R. in the Buttes Gas case were obiter and do not bind this court.
Then at the bottom of 278:
Of course this is a narrow battleground. If a solicitor sends counsel originals which are not themselves privileged Mr Thomas accepts that in respect of those documents no claim to privilege can arise. On the other hand if the solicitor by dictation incorporates the documents into the body of his instructions Mr Moses accepts that he would have difficulty in attempting to obtain discovery of any part of the instructions, although he was not prepared to as much as concede that discovery could not be obtained.
But in this case we are concerned with copy documents which, on the evidence, came into existence for the purpose and only for the purpose of obtaining legal advice from Mr Goldberg. As the law stands we have no hesitation in saying that because the documents came into existence for that purpose they do attract privilege so that Mr Goldberg cannot without the consent of his client comply with the requirements of the notice which has been served upon him.
They say the Lyell v Kennedy basis is the alternative basis because of the work done by the solicitor who personally reviewed and photocopied the cases. There is a good illustration of what would happen otherwise. There are documents quite clearly copied. Whether this is a good thing or bad thing is not a matter upon which I make comment, but it is quite clear the documents that were without the jurisdiction were copied so that they could be sent within the jurisdiction for the purpose of obtaining advice. It is the obtaining of that advice and the copying of documents for that purpose which is intended to be fostered. That is what the rule about legal professional privilege involves. It cannot be that as a penalty for seeking legal advice from someone within the jurisdiction, documents which are not within the jurisdiction are effectively brought within it for the purpose of their discovery, or alternatively, for the purposes of search warrants. In Australia the same position - - -
BRENNAN CJ: Mr Bloom, I have a red sticker in here that Dubai Bank doubted this case.
MR BLOOM: Yes, your Honour, as Justice Gummow pointed out.
BRENNAN CJ: Is there anything that you want to say about that?
MR BLOOM: Yes, Dubai follows the pragmatic approach, your Honour. It prefers the Lord Denning Buttes Gas and Oil Co approach instead of what we say is the correct approach, and it prefers it for the wrong reasons. It prefers it because it balances after the event, not before.
BRENNAN CJ: Yes.
MR BLOOM: In McCaskill v Mirror Newspapers Ltd (1984) 1 NSWLR 66, Justice Hunt of the New South Wales Supreme Court took the Watson v Cammell Laird line. I take your Honours to it only because there is some reference in it by his Honour to some texts on discovery. At page 70C his Honour says:
I turn finally to the two recently published textbooks on the subject of discovery. The first is "The Law of Discovery in Australia" by Cairns (1984). The author deals with the privilege afforded to copies of unprivileged documents. He disagrees with the decision of the Full Court in Shaw v David Syme & Co -
which is the other way to the way we put it:
but he says that it remains t be seen whether the decision of Master Weld in Kaye v Hulthen will be followed.
Master Weld is along the lines that we contend for.
The second textbook is "Discovery and Interrogatories" by Simpson, Bailey & Evans (1984). The authors deal with this topic (at 144, 145). They assert that it is too narrow an interpretation of Shaw v David Syme & Co as holding that a copy cannot be accorded more protection than its original, but they say that the problem remains unresolved. They suggest that Lord Denning's view in the Buttes Gas and Oil Co case is more likely eventually to establish itself, for there is little commonsense in protecting the copy when production of the original can usually be ordered. For the reasons already given, the commsense view does not always produce the fair and proper result, and that argument does not persuade me that the principle of legal professional privilege as restated by the High Court should be ignored where the sole purpose for bringing the copy document into existence was for its submission to legal advisers for advice or for use in existing or anticipated litigation.
Now, the judges below, firstly Justice Beaumont at 519 to 520 in volume 2 - the bottom of page 519, citing from another - - -
GUMMOW J: The case is reported in 128 ALR 657.
MR BLOOM: Does your Honour prefer the Australian Law Reports?
GUMMOW J: No.
MR BLOOM: Yes, this is page 671 of that report.
GUMMOW J: Thank you.
MR BLOOM: At line 46 on page 519 his Honour is at the end of citing from a Mr M.J. Williams an article that he wrote, and towards the end of the last two sentences he says this:
Invariably, however, reproducing a document mechanically is the soundest way to get a record of its contents. The reproduction will be a true copy and will be cheaper and faster to make than a summary of the original."
I mean, that is what one does these days, rather than make a summary of the original. And if the rule is not the case that the copy is privileged, litigation will be slowed down because people will, your Honours, be reduced, if they want to make sure that the summary is protected, to not copying documents that they submit to solicitors and counsel. He says:
There is force in these comments.....privilege is concerned with communications, and only incidentally with the form in which they are made or preserved. Thus, even if, literally speaking, a photocopy of a document may be said to have been brought into existence solely for the requisite purpose, it may not be fair to characterise it as, in truth, part of the substantive process of seeking or obtaining legal advice or of preparing for litigation.
In my opinion, the fact that a document is a copy does not mean that it cannot be privileged, even if the original is not; but, on the other hand, in such a case, the circumstance that the copy was brought into existence solely for the requisite purpose should not always mean that the copy is privileged. Rather, in both situations, a broader inquiry is, in my opinion, called for; that is, in the particular circumstances in which the copy document came into existence, should it be treated as, in truth, part of the substantive process of the seeking or of the obtaining of legal advice or of preparing for litigation.
Now, the difficulty, of course, with superadding anything on the sole purpose test is that the sole purpose test is a certain test which is easily satisfied as a matter of fact. If one has to add, indeed, another test that needs to be satisfied as a matter of fact, it makes it extremely difficult to have a test which applies again to extra curial processes, as well as curial processes, which is of certain application.
Justice Hill, at 565 to 567 - and that commences in the Australian Law Reports at page 690, line 29:
If legal professional privilege is to be held to attach to copies of otherwise unprivileged documents, this can only be, in principle, because disclosure of those copies may tend to indicate, in the case of advice sought by a client, the subject matter of the advice to be taken. Giving of access to documents briefed to counsel to advise, likewise may tend to disclose the matter on which advice is sought or at least those matters which the solicitor deems relevant to brief counsel, if any selection process is involved. In both those cases it is not the contents of the photocopy as such which is the subject matter of the privilege. It is the communication between solicitor and client or solicitor and counsel which is protected.
This leads me to the conclusion that copies of documents otherwise not the subject of legal professional privilege are themselves the subject of such privilege only where the copies are made for the sole purpose.....and in circumstances where to compel production of the copy would or could operate to reveal the subject matter upon which the advice was sought.
So, he favours the sole purpose test and he again superadds a requirement that to compel production would or could reveal the subject matter of the advice which, again in our respectful submission, goes too far and he later comes to say that if the document was initially privileged but has become detached from the brief, then privilege is lost which, with respect, cannot be right even if the earlier part was.
Justice Lindgren deals with the question at length at 582 and that commences in the Australian Law Reports at 696 and his Honour, in effect, lays down a general principle. He says because copies of privileged documents are themselves privileged, copies of unprivileged documents are not. That is his general principle. One is a corollary from the other. With respect, it does not follow that copies of privileged documents are privileged because that protects the privilege attaching to the first document in the first place, but the corollary does not follow if the sole purpose test applies to the copy even though it did not to the original.
He then has a number of exceptions to his rule which he sets out at page 585 which, again, go back to the question of whether it might tend to expose the advice or the line of thinking or whether the document is "so integrated and mixed up" with advice that you cannot really separate them and says there are exceptions to the general principle. At page 589, he says:
A claim of privilege calls for resolution of a conflict between the two public interests referred to in Grant v Downs. One is the availability of all relevant documentary evidence in the interests of a fair contest between informed and equipped litigants and of truth-finding. The other is uninhibited communication in the lawyer-client relationship in the interests of the effective seeking and providing of legal advice and legal representation.
But what his Honour does not recognise, in our respectful submission, is that that balancing was already done and reflects itself in the test that Grant v Downs provides and in Carter the Court was adamant that whatever public interests might otherwise exist, there is no further public interest to be considered, even one that might give a defendant in a criminal case information that might prove his innocence. Even that was no exception to the privilege.
Your Honours, the learned trial judge deals with it at page 472 of the appeal book. I will not take your Honours to it. He favours the Lyell v Kennedy approach which Mr Justice Wood referred to in Nickmar, which your Honours have the reference to.
KIRBY J: Where does Justice Davies deal with it?
MR BLOOM: Page 472, your Honour, about line 31, 32. And he relies upon the decision of Justice Wood in Nickmar but when one goes to that one sees that that judgment again is based on what Lord Denning has said in Buttes Gas & Oil and, indeed, the passage immediately before the passage cited by his Honour from the judgment of Justice Wood is a passage from the judgment in Buttes Oil about the pragmatic approach.
The problem, your Honours, with the Lyell v Kennedy approach - although I suppose one should settle for anything better than nothing, the difficulty with the Lyell v Kennedy approach is it takes no account of the fact that when the client himself is producing copies for the purpose of submission to the solicitor, arguments about skill and selection process as a professional matter can have, unless the solicitor has previously been involved, no application. Your Honours, it is our submission that in order to accommodate the rationale behind the privilege there must be a rule of universal application subject to the recognised exceptions and not to judge-made exceptions but if there are to be any further exceptions, legislative exceptions.
The rule is provided by Grant v Downs. It is of universal application whether incurial or extracurial processes. It is a stringent test in itself being the sole purpose test as opposed to the dominant test but it results from the balancing process in relation to the competing public interests and any document which, in our respectful submission, satisfies that stringent test is itself privileged and a copy should not be treated as any different. Your Honours, that brings me, subject to the matter which Justice Gummow raised which we will look at over lunch, to the question of a legal purpose; the second matter.
Your Honours, might I start by taking your Honours to what Justice Goff, as his Lordship then was, said in Butler (1971) 1 Ch 680, at page 689. At page 689C in his Lordship's judgment he says this after referring to O'Rourke v Darbishire:
what has to be shown prima facie is not merely that there is a bona fide and reasonably tenable charge of crime or fraud but a prima facie case that the communications in question were made in preparation for or in furtherance or as part of it.
Now they are two separate things and, in our respectful submission, his Honour Justice Davies did not appreciate the difference any more than those who made submissions to him concerning this aspect of the matter.
If one goes to page 479, in volume 2, his Honour says at line 15:
Taking account of and weighing up as best I can the public interest in the identification and prevention of crimes and the competing public interest in maintaining that basic element of client/lawyer confidentiality upon which the attainment of justice in our society depends, it seems to me that there has been a sufficient particularisation of and verification of the allegations of crimes under ss.86(1)(a) and 86A of the Crimes Act -
He does not say, as Justice Goff says, that the communications in question were made in preparation for or in furtherance or as part of it, and that is the fact which, at least on a prima facie basis, had to be proved. Now, if one goes to page 487, one has his Honour's orders, and order No 5 is a declaration that:
by reason of the allegation of offences under section 86(1)(e) and section 86A of the Crimes Acts 1914 (Commonwealth) and of the proof given in support thereof, the following documents are not subject to legal professional privilege -
Those categorisations are categorisations which were suggested by our learned friends at - - -
GUMMOW J: Were these order were brought in after the judgment was delivered?
MR BLOOM: Yes, your Honour.
GUMMOW J: Was there debate before they were made?
MR BLOOM: Yes, your Honour, but his Honour said, "No, that's the way I want to deal with it".
GUMMOW J: These were the orders proffered by your opponents, were there not?
MR BLOOM: Yes. We most certainly disputed, and that is why there were three grounds of appeal in the notice of appeal to the Full Court that said that if we were wrong on the admissibility question then there were still three questions to be determined, namely, whether there was anything in the information which really lay the foundation for the prima facie evidence which must be shown. Those grounds were never dealt with by the Full Court because, of course, they held that there was no admissible evidence at all. And if your Honours are against us on that point we ask that you send the matter back to them so that they may deal with those three grounds of appeal, and that is the final matter dealt with in paragraph 59 of our written submissions.
But at 344, which is in volume 1, this is all that was proffered to the court in relation to the fact which had to be proved. At number 3 on 344:
Documents suspected of being created for or in furtherance of the conspiracy to defraud.
And they were identified by reference to the numbers which were by reference to documents which we had provided a list of for the purpose of the claim for privilege. Now, this is a matter which, in our respectful submission, of course, our learned friends, not ourselves, bore any onus because it was for them to show that the privilege that would otherwise attach did not attach.
If one goes to the sample of the document, for instance, document No 61 which is there mentioned, that is at appeal book, page 49. Iit is at the bottom of page 49. It is a brief to counsel. Indeed, to myself, undated, in relation to anticipated tax litigation which is defined at pages 24 to 25. Your Honours do not need to go to it, but that is litigation arising out of the audit and the issue by the Commissioner of Taxation of assessments, so it is well after the events, the subject of the offences particularised in the search warrant. And it is a brief prepared by somebody, Karen Garner, who is not suggested to have been involved in any fraudulent purpose and it is some 200 pages together with its annexures.
Another example at page 29 is No 7 and, indeed, most of the other documents that follow this are attachments to document No 7. It is a memorandum from Mr Scheinberg to Mr Dunkel dated 30 July 1991, again outside the period of the alleged offences, and the supplementary description of it is:
The document is a memorandum by Richard Scheinberg in which he seeks legal advice from Michael Dunkel in connection with the documents attached.
And attaches the documents. So, they are the documents which are put in the suspect list by our learned friends who, of course, have not seen the documents, nor has the judge seen the documents, and his Honour makes a finding solely that there is a basis for the allegation of the offences in the information and then on the basis of that suspects' list, applies it to documents of the kind to which we have referred.
So, your Honours, even if we are wrong and the information is admissible, the matter must, in our respectful submission, go back to the Full Court to deal with the problem to which we have just adverted, namely that his Honour the trial judge did not seem to make a distinction between the finding of the allegations of fraud and the prima facie finding that particular documents were in furtherance of fraud. Is that a convenient time, your Honour?
BRENNAN CJ: Yes, Mr Bloom. The Court will adjourn until 2.15.
AT 12.43 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
BRENNAN CJ: Yes, Mr Bloom.
MR BLOOM: Thank you, your Honour. Your Honours, before lunch I said to your Honours that it was the appellantS who brought in the short minutes which are reflected in the orders of his Honour Mr Justice Davies. In fact, what occurred is that following his Honour's invitation at page 484 of the appeal book that counsel might address him within seven days if they propose different orders to the draft orders set out at that page, 484, an attempt was made in chambers to dissuade his Honour from order No 5. That attempt was unsuccessful and his Honour required that we bring in the short minutes which actually contained order No 5, but it was after an attempt to dissuade him from that course on the basis that I put to your Honours before lunch. Your Honours, there is an affidavit of Ms Garner at pages 287 to 288 of the appeal book concerning - - -
KIRBY J: Can I just ask you about that passage on 484. It says:
Declare that, by reason of the allegation of offences -
which is not.....-
and of the proof given in support thereof,
what was the proof given in support thereof?
MR BLOOM: The information, your Honour.
KIRBY J: That only?
MR BLOOM: That only.
TOOHEY J: When you say "that only", you are including the various annexures, are you?
MR BLOOM: His Honour makes no reference to those annexures but, of course, the information did have annexures to it, certainly. His Honour certainly makes no reference to any of those annexures and, again, the point that we seek to make is that his Honour relies upon whatever he relies upon to find an allegation of offences but not any evidence that any particular documents are brought into existence in furtherance of the fraud. He makes no finding of fact concerning that issue.
KIRBY J: How do you say that without getting into an interlocutory trial of the issue you could, nonetheless, get something more than the allegation and the information? Because you would not want to have, at that stage, a pre-trial of the whole issue.
MR BLOOM: No.
KIRBY J: The affidavit by the policeman really would not take it very far, would it, because all he can say is that this is his information and belief? He really would not be able to prove the facts.
MR BLOOM: What he has to do is, in some form, give some evidence of the fact which has to be proved, your Honour. And the fact which has to be proved, at least on a prima facie basis, is that particular documents were brought into existence in furtherance, et cetera. Now, if the information, or if the evidence before the Court contains no such allegation, and nothing to give support to that proposition, there is no evidence of the very fact which must be before the Court, even allowing for the moment that the information is admissible in evidence, which, of course, we say it was not in that form. Your Honours, there is an affidavit of - - -
TOOHEY J: The informant could depose as to matters of belief.
MR BLOOM: Quite so, your Honour. He did not do so. Mr Taciak was available to be called and he did not - - -
TOOHEY J: Well, I was not thinking of oral evidence, but of what he might have said, or what might have appeared from the material either in the information or accompanying it, which might have gone as to the belief of the informant.
MR BLOOM: But that evidence was sought to be put on by another policeman, and not for that purpose at all; really for the purpose of a public interest immunity aspect of the case which took part a long time earlier in an interlocutory stage.
KIRBY J: I thought I saw, at the very end of the appellants' written argument, that you waived the policeman's attendance. It suggested that he was available and would have given evidence if he had been wanted, but - - -
MR BLOOM: No, what is suggested by them, your Honour, is that although it was his information and he was available to give evidence that we should have called him. Now, he was never proffered and never made available in the witness-box; never called.
KIRBY J: Should have called him or required him to be present. He is giving the affidavit, it being - - -
MR BLOOM: No, he had not, your Honour. He did not swear the affidavit, another policeman swore the affidavit. Detective Constable Baer swore the affidavit and he said, "For the purpose of dealing with this public immunity issue, I annex a copy of the information which is sworn by Detective Sergeant Taciak". We deal with that in our written submissions - - -
KIRBY J: There is not much light he could have thrown on that matter.
MR BLOOM: Absolutely not.
KIRBY J: But even the Detective Sergeant could not have really thrown much light on it except by way of elaborating hearsay evidence.
MR BLOOM: He could have been asked questions about it. He could have been asked questions about the fact in issue, namely whether there was anything in that material that alleged that a particular document or documents were brought into existence in furtherance and, of course, there is nothing that goes to that question at all. All that was sought to be done below was to tender the information by rereading the affidavit of Mr Baer. That, of course, was over objection.
When that was done the argument was that, based upon what was in the information, there was a sufficient allegation and evidence of crime. It was never even submitted that there was sufficient allegation and evidence of documents brought into existence in furtherance. That was no part of our friend's submission, and yet that is the fact that they had, in our respectful submission, to prove.
We deal with the circumstances concerning the affidavit - it is Assistant Commissioner Baer, I meant to do him no discourtesy - in paragraph 51 of our written submissions, your Honour, and we there say the copy information was exhibited to an affidavit of Assistant Commissioner Baer, which had been read by the present appellants at an early interlocutory stage of the proceedings on a claim to public interest immunity in respect of part of the information.
Production of the information had been sought by the respondents for the purpose of that part of the proceedings which involved a challenge to the validity and execution of the warrants. The claim to public interest immunity in respect of parts of the information was a separate and distinct issue. Commissioner Baer was neither the informant nor a person who swore to the truth of the information or even to his belief therein.
DAWSON J: But the information was on oath of Taciak.
MR BLOOM: Yes.
DAWSON J: And it was on the basis of that that the warrant was issued.
MR BLOOM: Yes.
DAWSON J: I thought you said he did not give any evidence.
MR BLOOM: He did not give any evidence before his Honour.
DAWSON J: Why did he have to if what he had said was already on oath?
MR BLOOM: Because, your Honour, what was sought to be tendered was Mr Taciak's out-of-court statement. It was not in the form of an affidavit. It was his out-of-court statement that was sought to be tendered in these proceedings.
DAWSON J: But the information itself would be evidence, would it not?
MR BLOOM: Well, the information is hearsay, your Honour.
DAWSON J: Well, it may be. No one is suggesting hearsay is excluded here.
MR BLOOM: Yes, your Honour, that is one of our submissions.
DAWSON J: Why should it be? If you are testing the validity of the warrant, why should it be?
MR BLOOM: No, what you are testing, your Honour - let us just come to grips with that.
GUMMOW J: Well, this is a judicial review case.
MR BLOOM: It was judicial review, yes.
GUMMOW J: Yes, which is different from a trial in the ordinary sense.
MR BLOOM: But this was a trial, if one likes, within the trial. This was on the issue of whether or not the privilege that was claimed in relation to certain documents should be lost, and on that our learned friends bore the onus. It was for them to show that there was, to use the words of this Court in Kearney, "evidence; at least prima facie, that documents were brought into existence in furtherance" et cetera. They could not do that by tendering an information even properly with the deponent of an affidavit as the person who swore that information unless there was something in the information that allowed the conclusion to be drawn that documents in furtherance et cetera were brought about in that manner. But, they most certainly could not do it, even if there was material in that information which there was not, by an affidavit from somebody who was not the person who swore that information, when there was no reason given for not calling Detective Sergeant Taciak, who was then still with the Federal Police, and then available, as we understood it, to be called.
DAWSON J: Unless there is a problem that occurs by eliding the two issues in the case, and the guidelines have no force of law. If the warrant was issued validly on the basis of the information which is sworn by Taciak and he had taken the documents pursuant to that search, pursuant to the warrant, and then he had them, there would be no privilege in them any longer. The privilege would be lost. I know that the procedure that is devised, and it is a voluntary procedure, is that of the guidelines, but it really introduces another dimension into the whole debate.
MR BLOOM: Quite so, your Honour. It is a very unsatisfactory situation. The situation is, of course, the application for a search warrant is ex parte.
DAWSON J: We know that, but let us assume that the search warrant was validly issued and Mr Taciak had gone along and seized the documents and copied them all for the purposes of the prosecution. Nothing could be done about it.
MR BLOOM: Assuming it was validly executed?
DAWSON J: Yes, on the basis that the information established sufficiently that the documents were brought into existence in furtherance of a fraud or crime.
MR BLOOM: Well, that was not something, of course, which was ever agitated before the justice.
DAWSON J: Well maybe it was not, but we are just testing the situation. What I say is right, is it not?
MR BLOOM: Your Honour, in that those proceedings are ex parte, the point that - - -
DAWSON J: We want you to make the assumption that the warrant was validly issued.
MR BLOOM: One makes the assumption?
DAWSON J: Yes.
MR BLOOM: The warrant says - - -
DAWSON J: There was no reference to the guidelines, Mr Taciak just went and seized the documents and copied them all.
MR BLOOM: But, no, there was a reference to the guidelines.
DAWSON J: I know there was, but assume there was not, and he had done this.
MR BLOOM: Well, then there would not be valid execution of the warrant.
DAWSON J: Why not?
MR BLOOM: Because documents the subject of legal professional privilege may not be seized.
DAWSON J: But that is not the point that is to be established before the issuing magistrate - merely a prima facie case.
MR BLOOM: The way in which it is done, of course, is that the magistrate, once satisfying - - -
DAWSON J: Let us forget about the way it is done. Let us assume you have a particularly enthusiastic police officer who says I am not going to worry about the guidelines - - -
MR BLOOM: I think one can assume that generally, your Honour, when it comes to taking documents in a search warrant - - -
DAWSON J: Well, let us say he does not want to worry about the guidelines. If he goes along and validly gets a warrant and executes it, and copies all the documents. What could you do about it?
MR BLOOM: You could allege that in his conduct in taking documents the subject of legal professional privilege, he was acting improperly.
DAWSON J: Well, he could, you could say that till the cows come home probably.
MR BLOOM: Well, we said it, indeed, to Justice Davies and - - -
DAWSON J: But once that has happened, you cannot restore the privilege and the point is that the warrant is issued upon, not proof, but some sort of colour.
MR BLOOM: Yes.
DAWSON J: Now, there is a problem.
MR BLOOM: Yes, although there is nothing in the information or its annexures which suggests that any document or documents be brought into existence in furtherance of the fraud.
DAWSON J: Well, I know that we are getting back to that but assuming that the warrant was validly issued, what I say is right, is it not?
MR BLOOM: If your Honour asks me to assume that it was validly issued because a claim was made in the information to the effect that there were documents brought into existence in furtherance and that was accepted by the justice in issuing the warrant then, yes, what your Honour says is right but that also involves making assumptions.
DAWSON J: And that claim only need go so far as establishing some colour, as I understand the cases.
MR BLOOM: Well, in Kearney's Case this Court said evidence, prima facie evidence, and prima facie evidence, in our submission, is a little more than just colour or it may mean what colour means in the earlier decisions.
DAWSON J: You certainly do not have to, at the stage of the issue of the warrant, go through the exercise that Justice Davies was forced to go through.
MR BLOOM: Your Honour, it cannot be the case that a policeman upon a mere allegation of fraud in relation to the coming into existence of the documents, can deprive documents which would otherwise be privileged from the privileged. That is why Kearney's Case talks about the need to have allegation and evidence.
DAWSON J: That is not the point. Once you have lost the privilege, it is to deprive the documents of privilege. Once lost, it is lost.
MR BLOOM: Yes, but then mechanisms exist to deal with that as well.
DAWSON J: But they are voluntary mechanisms.
MR BLOOM: Well, no. Mechanisms exist to enable the court, for instance, to make orders that because the document should not have been taken, should not have been looked at, that that policeman cease and desist from parting with any of the knowledge he has got from looking at the documents and restore them. Such orders are made because again, in a practical sense, those proceedings down before the magistrate or justice being ex parte, there is no way that a solicitor against whom such an allegation as this made, can deal with that.
DAWSON J: Well, you say that. I wonder if that is so. That poses the question, if the documents were validly seized pursuant to a valid warrant and thereby lose their privilege, whether any such order could be made by a court.
McHUGH J: Well, is the point not that there is no power in a magistrate to issue a warrant in respect of documents that are the subject of legal professional privilege?
MR BLOOM: That is precisely so, your Honour.
McHUGH J: So he has no power and the warrant cannot extend that far. If by chance a police officer gets hold of documents that are the subject of legal professional privilege then the privilege is lost because the privilege is a privilege against compulsory process. Your relief is in equity.
MR BLOOM: Yes.
McHUGH J: It may or may not be granted to you but it is a question of whether the court would then injunct the police officer from using the information which has been obtained and the court may or may not, depending on all of the circumstances of the case.
MR BLOOM: Certainly.
GUMMOW J: But is that not what you are really doing here? You were using 39B, were you not, as Justice McHugh has just said to you, in aid of.....rights and that is what the declaration was to go to, the declaration you sought on page 5 and 6 of the appeal books.
MR BLOOM: Yes, and, indeed, we - - -
GUMMOW J: Which makes it more than an administrative or judicial review case that Justice Davies was triable.
MR BLOOM: Yes, your Honour.
GUMMOW J: It was all wrapped up but when it is disentangled had distinct elements in it.
MR BLOOM: Yes.
McHUGH J: I do not think it has been clearly enough articulated, if it has been articulated at all in the cases, that the orders that you seek are really orders in the exercise of equitable jurisdiction.
MR BLOOM: What we did is under the Judicial Review Act and under section 39(b), as Justice Gummow points out, challenge, amongst other things - and this appears from the bottom of page 3 and the middle of page 5 - to have reviewed the conduct of the members of police in the execution of the warrants.
GUMMOW J: No, but you were claiming declarations and at the bottom of page 5 declaration No (4) is the one that really matters and it goes over to page 6 and that is really, an.....rights.
MR BLOOM: Yes.
BRENNAN CJ: What is the jurisdiction of the Federal Court?
MR BLOOM: 39B, an action against an officer of the Commonwealth, your Honour.
DAWSON J: Can equity restrain the use of evidence in criminal proceedings?
MR BLOOM: It does so, your Honour. Orders are made from time to time restraining the dissemination of information which has been illegally obtained.
DAWSON J: That is a different thing.
McHUGH J: That is all it can do, is it not?
MR BLOOM: Certainly, your Honour, that is all that can be done here.
McHUGH J: Over lunch time, Justice Gummow gave me an article by Zuckerman in the Modern Law Review, and he points out that the law - the rule concerning legal professional privilege is not a rule concerned with the admissibility of evidence; it is a rule directed against compulsory process. It is a right to resist compulsory process. But if, by one means or other, the document is obtained, then it is a different world. The genie is out of the bottle and the question is, what can you do? You see, the Court's remedies have got to be designed to restrict the use of the information that is contained in these documents, and, maybe, as an ancillary right, to direct the return of the documents.
MR BLOOM: But the way that that is, in effect, dealt with is for the guidelines to be promulgated, for the search warrant to be subject to them, for the police to put into sealed bags documents which are the subject of a claim for privilege, to take those down to the police station but to keep them separate, to not look at them, in fact - and the documents here have not been looked at - and to then allow this sort of dispute to take place, ordinarily in the Federal Court, concerning whether or not the police can look at them. That is the way in which it is done, and that is the way in which it was done here.
KIRBY J: So, you say the genie has been kept in the bottle for the time being?
MR BLOOM: So far, your Honour, yes.
KIRBY J: The cork is a little loose, but - - -
MR BLOOM: It is wiggling, your Honour. It is wiggling.
GAUDRON J: One of the difficulties I am having is this, that it seems to me the argument must go back to whether or not the warrant was valid -back to Baker. The guidelines cannot make the warrant valid.
MR BLOOM: Yes, your Honour, that is so.
DAWSON J: But the corollary is, if it is valid, what is done cannot be undone.
MR BLOOM: Well, if it is valid. But in so far as it authorised the taking of documents the subject of legal professional privilege, it was not.
DAWSON J: Well, that is not so. You see, you keep saying that. The point is that it can authorise the taking of documents which appear not to be the subject of legal professional privilege, and what must be established to make it appear is very vague on the authorities.
MR BLOOM: Your Honour, no, with respect, if I may disagree with you. The power to take documents does not extend to those which are the subject of legal professional privilege. That is the essence of Baker v Campbell; you just cannot take - - -
TOOHEY J: It is certainly the message that comes through in the answer the court gave to the question posed to it.
MR BLOOM: Yes, your Honour.
McHUGH J: The statute is as though it has got read into it the words, "subject to legal professional privilege".
MR BLOOM: And in Jacobsen, in the passage to which your Honour referred before lunch - - -
DAWSON J: That is very true. But legal professional privilege does not extend to documents which are brought into existence in furtherance of a crime or fraud, and all we are talking about, in relation to the issue of the warrant, is the standard of proof.
MR BLOOM: Somehow, your Honour, that has to be dealt with. The documents are prima facie subject to legal professional privilege. What is sought to do here is to say because of the exception they are not privileged.
McHUGH J: In Carter I said the question of furtherance of fraud are not exceptions at all. They are not exceptions to legal professional privilege. Legal professional privilege never attaches. But that does not help you, does it?
MR BLOOM: Somebody has to show by more than allegation, by what the High Court in Kearney said is evidence, at least prima facie, that there are grounds for not attaching the privilege.
McHUGH J: They are not grounds for not attaching, but it is grounds for having a look at it, is it not?
MR BLOOM: No, your Honour, with respect. The reason one requires both allegation and evidence is because such claims cannot be lightly made.
DAWSON J: True enough, but the standard is very much lower than the standard which you would say Justice Davies had to apply when he was considering the second question.
MR BLOOM: It is the same issue, your Honour.
DAWSON J: That is not the point. It is not the same standard of proof.
MR BLOOM: Prima facie evidence, your Honour, is prima facie evidence. At whatever level it must be - - -
DAWSON J: But it is not proof on probabilities or anything like that.
MR BLOOM: No, but Justice Davies was not about that either. He certainly was not about proof on probabilities. The cases do not suggest that one must make that out, but what they do require is, in addition to the allegation, some prima facie evidence that the documents were brought into existence in furtherance, et cetera. Prima facie evidence must exist and, if it does not exist, it becomes very difficult.
DAWSON J: Yes, but the problem is that once one goes beyond prima facie evidence, it may be established that the decision was wrong. What appeared prima facie was not the fact and yet, if the warrant has been issued on that basis and executed, that is it. I do not understand if then the prosecution seeks to tender the evidence in a trial that equity can do anything about it at all. It is a novel proposition to me.
MR BLOOM: Your Honour, the documents are in the bag, the bottle with the genie in it. They are there, they are there now. The police have made no attempt to look at them.
DAWSON J: I am not talking about the present situation. I am talking about a situation in which the guidelines are not applied.
TOOHEY J: I mean, ordinarily, if the matter were pursued in strictness I should think that there would be a trial upon the claim of privilege. I mean, nobody really wants it and it would slow down the legal process unduly but I do not see why, as a matter of theory, that should not be the consequence of a claim that privilege does not attach because of the circumstances in which the documents came into existence. It is pragmatics that have sensibly brought about the guidelines and perhaps divorced the initial question, the validity of a warrant as a general proposition, from the determination of the question of whether privilege has been displaced.
MR BLOOM: What has been done is to take away from the justice who issues the warrant the question both of privilege and of in furtherance. That is what the guidelines have sought to achieve as a practical measure to deal with the problem.
TOOHEY J: It would be impossible for the justice who issues the warrant to know, perhaps any more than it would be possible for the informant to know, whether some claim was going to be made that legal privilege did not attach because there was fraud or illegality attaching to the circumstances in which the documents came into possession at the first - - -
MR BLOOM: The first thing, ordinarily, one would expect is that a claim for legal professional privilege would be made and that as a counter-claim, the in furtherance claim would be made. So, there, really is no mechanism either for the claim for legal professional privilege to be made.
TOOHEY J: But the matter, having got this far, how do you suggest that - or on what footing do you suggest this Court should dispose of these questions?
MR BLOOM: There are two alternatives we have put to your Honours. One is that the evidence that was before his Honour was not evidence in the sense used in Kearney and so there was no sufficient evidence a fortiori of the fact that needed to be proved. That evidence was hearsay. Taciak was not called, and it was not admissible evidence and that is how we won in the Full Court of the Federal Court on that point.
TOOHEY J: That assumes, does it, that there is enough material at least to decide that on the face of it legal professional privilege does attach. I mean, say the evidence was quite neutral on the point.
MR BLOOM: That legal professional privilege attaches? It was only with respect to those documents in respect of which a claim for legal professional privilege was made that a counter-claim of in furtherance was made in respect of some of those documents.
TOOHEY J: Yes, I understand that, but you appear to be saying that the very claim to professional privilege in some way creates a prima facie position that has to be displaced. I am not sure why that follows.
MR BLOOM: The claim is made, and the counter-claim is made and one resolves the two together. That would, presumably, be the position, your Honour.
TOOHEY J: That is why I asked you. What about if the evidence is quite neutral on the point or the information available to the court is quite neutral?
MR BLOOM: On the question of privilege or on the question of fraud?
TOOHEY J: Well, both. You are proceeding as if it is apparent that these documents were the subject of legal professional privilege unless that privilege had been displaced. My question is really on what is that assumption based other than that they were in the possession of the solicitor.
MR BLOOM: Affidavits from the solicitors, and a very large schedule of documents. The affidavit of Miss Garner is at page 287 to 288.
TOOHEY J: That is sufficient answer to my question, I think, Mr Bloom.
MR BLOOM: It is convenient, perhaps, your Honour, to go to it because it is in relation to that document 61 that I wanted particularly to take your Honour to it. Page 287 to 288. It is an affidavit of Miss Garner. In paragraph 2, she says:
In relation to the following numbered documents referred to in paragraph 9 of my first Affidavit, namely -
and then she refers to 61. Over the page, (e):
where the document takes the form of a brief to Counsel, I prepared that brief by selecting and copying (or causing to be copied) documents for inclusion therein. In particular, I refer to Document 61. I say that that is a copy of the original brief to Counsel, the original is amongst the seized documents and the copy was made after seizure.
What happened is that we were permitted to make copies of all of the documents for which a claim for legal professional privilege was made, and they were in court, and his Honour was invited to look at those documents in the course of going through them. Something he personally declined to do. There is the evidence; there is evidence of Miss Garner in relation to that document, for instance, and that is a document in respect of which the claim of fraud is made.
TOOHEY J: It may be that having regard to the form in which the proceedings took that legal professional privilege, having been deposed to, then there was an onus on those who sought to displace that privilege, which is not necessarily answered by going back to the material that was before the justice who issued the warrant, although, strictly speaking, it is the reach of the warrant with which the Court is concerned.
MR BLOOM: The difficulty is that those proceedings before the magistrate being ex parte, there is just nothing until the search warrant is executed that one can do, and one cannot persuade large police officers not to at least take the documents in respect of which a claim for legal professional privilege is made and put them in the bag. That is a very difficult thing to try to persuade them not to do.
TOOHEY J: Yes, but my point, Mr Bloom, is simply that whatever be the way in which these matters should be approached strictly, this matter has taken on a life of its own and this Court, perhaps, has to deal with it in the form in which it comes before it.
MR BLOOM: And was litigated before his Honour, and in the Full Court without any question of jurisdiction arising.
McHUGH J: But once the bag with the documents comes before the court, what is the standard of proof that the prosecution must prove? They surely cannot have to prove there was a crime, otherwise you would be retrying the whole case.
MR BLOOM: No, they do not have to prove that. They have to show an allegation of crime, and they have to show prima facie evidence that the document or documents in question were brought into existence in furtherance.
GAUDRON J: I wonder if that is correct?
MR BLOOM: It is what the cases say, your Honour
GAUDRON J: Yes, I am aware of that, but it is your application in the Federal Court - - -
MR BLOOM: Yes.
GAUDRON J: - - - whether AD(JR) or equitable does not matter; it is your application. You have got to prove something in that application. What you have to prove, it seems to me, may well depend on whether we are talking about true exceptions to the privilege or a situation in which privilege never attaches. On one view, you might have to go further than your affidavit.
MR BLOOM: Your Honour, it is a really a case, in our respectful submission, of a shifting onus, that once we have put in sufficient evidence to show that the document is prima facie privileged, then the onus switches to those who would suggest that it is not for another reason.
GAUDRON J: If it is a true exception perhaps, but if it is not - - -
MR BLOOM: Again, your Honours keep saying that it is not and that, rather, it stops the privilege from attaching at all. It is a bit like an allegation of sham. It has always been said that the onus lies on the person making the allegation of sham to show that it is a sham and that is the case, for instance, in income tax cases where otherwise the taxpayer bears the onus of proof under the statute but, when one gets to that issue, sham, the onus has always been said to be upon the party alleging it who is more often to be the Commissioner than the taxpayer, for instance.
BRENNAN CJ: You are talking about the shifting of an evidential onus, are you not?
MR BLOOM: Yes, your Honour.
BRENNAN CJ: The question surely is: where does the ultimate onus lie and what is the issue in respect to which the onus must be discharged?
MR BLOOM: The ultimate onus presumably lies with the person claiming the privilege in that sense unless one can turn it around and say that because - - -
BRENNAN CJ: What then must the judge address his or her mind to in determining that ultimate onus; what question?
MR BLOOM: Firstly, the question of whether privilege is, prima facie, made out. Secondly, the question of whether there is some evidence that would bring it within the so-called exception so the privilege will not, at the end of the day, attach.
DAWSON J: That is if it is an exception but, if it is not an exception, what you would have to prove is that the documents were brought into existence for the obtaining of advice in relation to litigation and were not in furtherance of a crime or fraud.
GAUDRON J: Or simply for the sole purpose. You really do only have to concentrate on the sole purpose test.
MR BLOOM: Well, that is what the evidence goes to. The evidence put on by our side goes to that very question; sole purpose, and a bit to the Lyell v Kennedy point.
DAWSON J: But in establishing sole purpose, you have to address yourself to prove that it was not in furtherance of a fraud or crime.
MR BLOOM: Only if the suggestion is made, your Honour, that it is and there is something to give colour to this.
DAWSON J: The suggestion is made that it is, is it not?
MR BLOOM: The basis upon which it is sought to be proved is the affidavit from Mr Baer. Mr Williams reminds me, if one takes document 61, for instance, it must speak for itself that that brief is prepared after the event.
BRENNAN CJ: Document 61 may be in a very special case. I mean, you may have documents which fall outside the privilege for the very reason that they were prepared with a fraudulent intention in mind, but if those selfsame documents, or copies of them, are then picked up and put into a brief for counsel, different considerations may apply. When I say different considerations may apply, I am not presuming to say that they acquire a privilege but the content of the brief, surely, is exempt from compulsory production.
MR BLOOM: Yes. It is a situation where the way the case was run, certainly we put on evidence of privilege and our opponents sought to read an affidavit of Mr Baer as evidence going to the fraud aspect, something for which they assumed the obligation to show at least on the Kearney test. There was no question about our having to disprove it as a fact in the course of going to the documents. Document 61, document 7, they account for about 400 pages out of the 800 pages in question. Those documents are clearly brought into existence after the alleged crimes have run their course, after the last date to which the conspiracy is said to relate. They postdate that and in those circumstances that would automatically speak for itself in terms of the allegation that they are in furtherance and something else, presumably, would have to be shown to deal with particular documents in counsel's brief or particular documents annexed to the witness statement that shows that they were brought into existence in furtherance.
BRENNAN CJ: That seems to me to really not quite touch the point. Let us take a hypothetical case where documents are clearly not privileged because they fall within the Cox and Railton proposition and then there is some prosecution and those selfsame documents are put into counsel's brief and the case goes to court. You would not think that at that stage there would be a right to riffle through counsel's brief in order to extract the documents from that brief as such.
MR BLOOM: Quite, your Honour.
BRENNAN CJ: But when the case is over and the documents are returned and some other problem arises, why then should there be any inhibition against acquiring them under the exercise of a compulsory power?
MR BLOOM: If one takes the view that they were privileged at some point, then it is a question of whether the privilege attaches forever, as Justice McHugh said in Giannarelli v Wraith, and whether it can subsequently divest. If they were never privileged at any point, then certainly they can be seized subsequently. I had briefly taken your Honours to paragraphs in our written submissions that dealt with the information. That it is hearsay and inadmissible, we rely upon - - -
KIRBY J: Could I just get clear in my mind what you say would have been the correct procedure. You simply say it would have been enough for the police officer having charge of the investigation or who lays the information to put on an affidavit of information and belief?
MR BLOOM: Yes.
KIRBY J: And would that have opened up to cross-examination inquiry as to the basis of his information and belief?
MR BLOOM: Well, as a matter of discretion, probably not, your Honour.
KIRBY J: I would share Justice McHugh's concern, if you turn that into the trial. I mean, that obviously cannot be, but you accept that?
MR BLOOM: Yes, and, as a matter of discretion, one would expect such line of cross-examination to be excluded, just as an attempt by Mr Roberts to cross-examine the solicitors when they were in the witness-box on the fraud exception was, as a matter of discretion, not permitted. But we do not even have here, your Honour, Commissioner Baer swearing to the best of his information and belief what is in the documents annexed to his affidavit is true and correct. Even he does not go that far. Nobody swears to this document at all. It is just a copy of the information which is sought to be tendered without anything going to its truth or veracity and, on the basis of what your Honour the Chief Justice said in Pollitt's Case [1992] HCA 35; 174 CLR 558 - I give your Honours simply the reference: pages 571 to 572 - it was hearsay evidence, it was inadmissible to prove the fact in issue, which fact was whether any particular document or documents were brought into existence in furtherance, et cetera.
BRENNAN CJ: Could I just delay you for one moment longer - back to the question of jurisdiction.
MR BLOOM: Yes, your Honour.
BRENNAN CJ: The jurisdiction which was invoked was the jurisdiction of the Federal Court to grant an injunction against an officer of the Commonwealth - - -
MR BLOOM: That and a review under the Judicial Review Act of the decisions and the conduct involved in obtaining, granting and executing the warrant.
BRENNAN CJ: Well, if it is judicial review, it seems to be that there is a different line of country to be investigated. Then it is a question of the availability of the power which was to be exercised and the manner in which that power was exercised. Now, if that is the way in which one approaches it, what warrant is there for going beyond the material that was before the decision maker or the person to whom the execution of the warrant was entrusted?
MR BLOOM: When you look at the material before the decision maker and you look at what the decision maker decided, it was not something that ought to be taken as an authority to seize documents which were the subject of legal professional privilege and in so far as documents the subject of legal professional privilege were seized, the matter about which we are now fighting, there was conduct which was beyond power.
McHUGH J: Whose conduct?
MR BLOOM: In execution of the warrant.
BRENNAN CJ: In other words, although to the repository of all relevant powers what was done may have appeared to be done in accordance with the statute and not outside it, nonetheless, by reason of material that is subsequently ascertained by the judge in court, it can be seen that those powers were exceeded.
MR BLOOM: No, the powers were exceeded when documents the subject of legal professional privilege were taken.
BRENNAN CJ: That is what I am saying, because of material which subsequently becomes available.
MR BLOOM: The claim for legal professional privilege is made at the time the policeman executes the warrant.
BRENNAN CJ: That may be so, but that is not binding on anybody.
MR BLOOM: No, but what is asserted to the policeman is, "You have no power to take this material because it's the subject of legal professional privilege." And he says, "Why don't I put it in a bag and if you can establish it is, I won't take it."
BRENNAN CJ: No, the policeman says, "I have got power to take it. Here's my warrant to take it."
MR BLOOM: But he does not say that, your Honour. He says, "I put it in my bag in this special sealed bag and I promise not to look at it and we will fight about it in some other place and if it is legally professionally privileged I won't look at it and I won't take it in that sense. I will somehow preliminarily seize it so that you don't have it but I will also do it on some sort of trust to give it back to you".
BRENNAN CJ: Where does he get the power to put it in the bag?
MR BLOOM: He does not but it is very hard to refuse him. That is what it boils down to.
GUMMOW J: You seem to be elevating these guidelines to some status I do not understand, and having done that you do not answer the Chief Justice's question, if I may say so.
MR BLOOM: But I am not sure I am doing that, your Honour, with respect. I do not give the guidelines a status of any kind. It is just that the guidelines are there to overcome this practical problem. We say the policeman has no power to seize documents the subject of legal professional privilege at all.
McHUGH J: So it is the policeman's acts that is being judicially reviewed.
MR BLOOM: Amongst those acts that were reviewed, yes, but in this context, yes. We also relied upon 39B of course and associated and accrued jurisdiction. We wanted everything that we could possibly get in terms of an ability - - -
GUMMOW J: Yes, I know, but the Chief Justice was asking about the administrative review side of it.
MR BLOOM: Yes, he was and what we sought to review was the conduct of the policeman in executing the warrant and taking documents that were the subject of legal professional privilege.
BRENNAN CJ: Did he take them or did he not?
MR BLOOM: He took them away and - the answer is, yes, he took them although at the same time as a quid pro quo giving us a promise that he would not look at them.
BRENNAN CJ: That may be so, but the conduct that was being reviewed, was that his taking of them?
MR BLOOM: Yes.
BRENNAN CJ: Was that in purportive exercise of a statutory power?
MR BLOOM: Yes.
BRENNAN CJ: What was the statutory power?
MR BLOOM: Section 10 of the Crimes Act.
BRENNAN CJ: So that he did something in purportive exercise of a statutory power, being section 10, and what you are saying is that that power was exceeded by reason of the facts that were subsequently discovered?
GAUDRON J: Or subsequently established.
MR BLOOM: Subsequently established, yes, I accept that.
GAUDRON J: The facts were already - - -
MR BLOOM: The facts were there on the day. He took documents - - -
BRENNAN CJ: Yes, subsequently established.
MR BLOOM: Yes, your Honour, I accept that.
BRENNAN CJ: Although unknown to the repository of the power.
MR BLOOM: Yes, your Honour.
BRENNAN CJ: Yes, I see.
DAWSON J: But he had - correct me if I am wrong - a duty to execute the warrant which was to seize the documents mentioned in it, not to seize those documents if they were not the subject of legal professional privilege.
MR BLOOM: Well, he had a duty to not seize them if they were the subject of legal professional privilege.
DAWSON J: Where does that come from?
MR BLOOM: Baker v Campbell.
DAWSON J: But that was concerned with the validity of the issue of the warrant.
MR BLOOM: But it suggests, if I may say so - - -
DAWSON J: Well, it may suggest it, but that is what we are examining now.
MR BLOOM: And Jacobsen certainly says that that is what it is authority for.
BRENNAN CJ: What you are saying is that the power to issue the warrant has got the implied limitations Justice McHugh put to you earlier?
MR BLOOM: Yes, your Honour.
BRENNAN CJ: And that, even though the policeman was unaware of that implied limitation, he executed the warrant according to its terms and it subsequently appeared, though he did not know it at the time, that he exceeded his power because he entrenched upon that limitation.
GAUDRON J: Well, he had notice, you say - - -
MR BLOOM: He was on notice. He was on notice.
BRENNAN CJ: He may have had notice, but the facts were not then known.
MR BLOOM: Yes. And he said, "I agree with you, I may be, and let us put these in the corner and we will work that out later."
BRENNAN CJ: Yes.
McHUGH J: Is it correct that he is exercising a power under section 10? Is not his power the warrant?
MR BLOOM: Yes, his power is the warrant. Section 10 authorises the giving to him of a warrant which allows him to take documents which are not the subject of legal professional privilege, yes. Yes, your Honour.
GUMMOW J: Well, what decision was there under an enactment, so far as the policeman is concerned?
MR BLOOM: Conduct.
GUMMOW J: Yes.
MR BLOOM: Conduct, in the exercise of the warrant. That is what we challenged. That was at page 3:
Conduct of members of the Australian Federal Police in the execution of each warrant.
GUMMOW J: Yes.
MR BLOOM: And the decisions were the decisions to apply for warrants, the decision of the magistrate to issue warrants and the conduct.
BRENNAN CJ: Could I just ask you one further question arising from that? If one regards the Baker v Campbell doctrine as imposing a limitation upon power and, therefore, everything that follows from it we are looking at it simply in terms of the existence of power, is the criterion for determination of power this; if the document in question were tendered in the prosecution of the person claiming the privilege, would the document be admitted in evidence?
MR BLOOM: Yes, your Honour.
BRENNAN CJ: That question would then be determined by the judge hearing the application according to whatever information was then available to him?
MR BLOOM: Yes.
BRENNAN CJ: Why would he not have the information that is contained - why would he be taken not to have the information before him that is contained in the information laid before the issuing magistrate?
MR BLOOM: He would if it is put in in a proper form.
BRENNAN CJ: Why should it be any different form from what it is?
MR BLOOM: As what it is before the magistrate or the justice, it is a police officer appearing and swearing on oath.
BRENNAN CJ: Quite.
MR BLOOM: As what it was tendered here; it was an annexure to an affidavit of another policeman who did not even swear to a belief in its truth and contents.
BRENNAN CJ: The judge then knows that there has, in the past, been an occasion when a police officer appeared before the magistrate seeking the warrant and swore on oath the following information.
MR BLOOM: Yes.
BRENNAN CJ: Why is that not sufficient for the judge to act upon in determining the Cox & Railton point?
MR BLOOM: Because it is hearsay, your Honour. We say that more than hearsay is required.
BRENNAN CJ: Hearsay, yes, I see. That is the point.
MR BLOOM: That is our submission. But, there is this additional point, which is that if we are wrong in that, there is still nothing in the information from which his Honour could have concluded that there was any evidence that supported the in furtherance point. That was the fact that had to be proved, and that is not in there. That was a matter that we sought to agitate unsuccessfully with his Honour. It was in our notice of appeal when we went to the Full Court of the Federal Court, and if your Honours are against us on the hearsay point, then it should go back to the Full Court of the Federal Court for determination of those issues. Your Honours are certainly not concerned with determination of those issues.
GUMMOW J: Now, the conduct of the policeman - do you say that is conduct attracted to section 6 of the AD(JR) Act,; that the policeman in putting the documents in the bag?
MR BLOOM: In executing the warrant.
GUMMOW J: All right. It does not seem to follow the language of section 6. That is conduct for the making of a decision; something to come, not something that has passed.
MR BLOOM: One has to hang one's hat as best one can in order to find some jurisdiction that will allow these issues to be litigated, because one is not afforded the opportunity of appearing when the warrant is obtained - - -
McHUGH J: Ashburton v Pape establishes the jurisdiction, does it not, and Chancery has got the jurisdiction. If somebody gets a document that is legally professionally privileged, in breach of the owner's privilege, then equity will restrain, in an appropriate case, the use of the information, and may order the document back.
MR BLOOM: So the confidence is preserved. Most certainly, we relied upon 39B and the pendant jurisdiction in order to - Unquestionably, there were decisions to issue warrants; there were decisions to apply for them.
McHUGH J: In earlier times if New South Wales police seized documents from a solicitor's office, he ran off to the Equity Court and he got an interlocutory injunction and he relied on Ashburton v Pape to restrain the use of the information and a return of the documents.
MR BLOOM: That is, in effect, probably the basis upon which his Honour was exercising jurisdiction at the end of the day.
BRENNAN CJ: What do you say about Calcraft v Guest?
MR BLOOM: Your Honour will have to help me on that.
BRENNAN CJ: Well, there has been some thought that Ashburton v Pape and Calcraft v Guest cannot quite stand together.
MR BLOOM: Well, since, your Honour, I have not read either of them, it is very hard for me to say.
DAWSON J: Once the confidentiality has gone, the privilege is lost.
MR BLOOM: If the confidentiality is gone in truth, but the confidentiality is not gone here. This is a case where the confidentiality has been preserved because the policeman was on notice, so the privilege has not been lost in that sense. If I may come back to the copy documents point finally, your Honour Justice Gummow kindly gave us a reference to Cross and Tapper and to Canadian decisions. We see that the learned authors of that text, like the author in Australia, prefers the judgment of Justice Byrne in Roux's Case for authority for the proposition that our learned friends contend for which is perhaps not surprising, but the Canadian case, your Honours should have had - - -
GUMMOW J: Well, I think we have it now.
MR BLOOM: Yes, it has been handed up. This is the decision of the Divisional Court of the General Division of Ontario and it is Regional Municipality of Ottawa-Carleton v Consumers' Gas Co Ltd 74 DLR (4th) 742 and the relevant passage is at page 747. They refer earlier to Lyell v Kennedy and Watson v Cammell Laird and at 747 after the quotation say:
The reference by McEachern CJBC in the passages just quoted.....relate to the rule that has been applied in England and in Canada that for any document be it an original document or a copy thereof to be privileged, the dominant purpose for which it was prepared must have been that of submitting it to a solicitor for advice and use in litigation.
It follows that neither an original document nor a copy thereof becomes privileged simply because it gets into the hands of a solicitor. It is only where the original itself was prepared with the necessary dominant purpose or the copy thereof was prepared with the requisite purpose that the original or copy respectively are privileged.
And they cite an earlier decision in Hodgkinson v Simms which is at the bottom of page 746 which is likewise a Canadian decision.
McHUGH J: I notice at 748 that they really ground their decision on the point I was mentioning this morning that:
any benefit that might flow to the parties in the court in this case by ordering such production would be gained at the expense of serious interference with out adversarial system of justice -
MR BLOOM: That is the "access to your opponent's brief" idea.
McHUGH J: Yes.
MR BLOOM: You do not go looking for the documents yourself; you simply go to his brief.
McHUGH J: Yes.
MR BLOOM: Your Honours, I did not take you to on the other point a judgment of Justice Cardozo in America. It is another case which your Honours have - Clark's Case. It is Clark v United States [1933] USSC 52; 289 US 1. It shows that the position in the United States is the same as the position here so far as the need to have evidence in the Kearney sense for the purpose of establishing unlawful purpose. The passage in the judgment of Justice Cardozo is at page 15:
We turn to the precedents in the search for an analogy, and the search is not in vain. There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told. There are early cases apparently to the effect that a mere charge of illegality, not supported by any evidence, will set the confidences free. But this conception of the privilege is without support in later rulings. "It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud." O'Rourke v Darbishire. To drive the privilege away, there must be "something to give colour to the charge;" there must be "prima facie evidence that it has some foundation in fact." When that evidence is supplied, the seal of secrecy is broken. The judgment of the House of Lords in O'Rourke v Darbishire has given to the whole subject a definitive exposition. Nor does the loss of the privilege depend upon the showing of a conspiracy, upon proof that client and attorney are involved in equal guilt. The attorney may be innocent, and still the guilty client must let the truth come out.
Now, that has not been reversed so far as our searches are able to ascertain and it still sets out the position in the United States. If your Honours please, those are our submissions.
BRENNAN CJ: Thank you, Mr Bloom. Mr Rozenes?
MR ROZENES: If it please the Court, Mr Roberts will address some matters in reply to the Court. There is just one observation that I thought I would make with respect to the matter that your Honours were concerned about very recently about the nature of the conduct of the police officer and whether it amounted to a seizure of the documents pursuant to the power vested by section 10 of the Crimes Act. I think the finding that was made by Justice Davies, and which we would submit is, with all respect, probably correct that the warrants, because they were couched in the terms that they were, did not themselves authorise the seizure of documents over which a claim of legal professional privilege was made.
BRENNAN CJ: Was properly made.
MR ROZENES: Properly made, so that the Baker v Campbell position was not thwarted. And his Honour found that, firstly, the warrants were so couched that when one looks at the appeal book, volume 1, page 341, paragraph 149 of the warrant preserves the privilege issue, and there provides that the warrant will be executed in accordance with the provisions of the Law Society's document. And, his Honour then made the finding in fact - and I do not think I can give you the reference to it immediately - and that is that the seizure of the documents was not a seizure in the sense as referred to in section 10 of the Crimes Act. Really, it was a taking rather than a seizure, the seizure not being permitted because of Baker v Campbell, and we would submit that until this point the documents have not been seized pursuant to section 10. They have merely been preliminarily seized or taken in some other way, and, therefore, not in accordance with the section. That is the only observation I want to make and my learned friend, Mr Roberts has got the rest of the reply.
MR ROBERTS: Your Honours, a short point in relation to the submission latterly made that the seizure of the documents by the police answers a description of conduct within the Judicial Review Act. Can I refer your Honours to Bond v Broadcasting Tribunal. I think the reference is at 151 CLR. In the judgment of Chief Justice Mason there is a reference to what constitutes conduct and, in my submission, when one understands what conduct is it is referable to an action taken under a statutory power, something that occurs beforehand, and the conduct of the police in seizing documents has nothing to do with the exercise of statutory power under section 10 which is the magistrate issuing the warrant to the police officers.
The next point concerns the alternative order that the respondent seeks. The alternative order is set out at page 650 of the appeal book and what the respondent asks the Court to do in the event that it is unsuccessful in relation to the admissibility point is to remit the matter to the Full Court, it is said, to deal with grounds 14, 15 and 16 of its notice of appeal, as to which I will say something in a moment.
The respondent submits inter alia that Justice Davies and, indeed, the police at the hearing before Justice Davies, failed to appreciate that only documents made in furtherance of an improper purpose are not privileged, and so the argument runs. This is demonstrated, so it is said, by the fact that document 61 illustrates the proposition that this is not a document so made. Now, a number of submissions in relation to that argument. The first is this: such an argument has never been put before. What has been put before is that his Honour failed - I am sorry, that his Honour should not have accepted the categorisation of the documents that the Federal Police put forward.
The categorisation of the documents that was put forward, as your Honours have had your attention drawn to, is in appeal book, volume 1, at page 344, which illustrates that those who drew the document, at least, were not under any misapprehension because what are included there in category 3 are:
Documents suspected of being created for or in furtherance of the conspiracy to defraud.
Now, the way the argument went is this: the information that was before the magistrate, including all the annexures, clearly demonstrated that there was a conspiracy to defraud of the type alleged in our submissions at page 616, paragraph 3, and that there did exist this conspiracy. Any documents that were made in furtherance of that conspiracy clearly could not be the subject of privilege. So, what we attempted to do, merely on the basis of the schedule that the respondents prepared, was to list documents which we, at least, suspected fell within that list as being at least a guide for his Honour in relation to such documents, and we prepared this schedule.
It was done fairly late in the piece, because there was a continual change in relation to the schedule and the numbering. So, this was not prepared until fairly late in the piece, and it was handed up as being a document which at least were those that we suspected may have been so created.
Now, it is clear that his Honour was under no misapprehension about what was required and could I refer your Honours to page 475 of the appeal book at line 30 where Justice Davies during the course of his reasons says:
The privilege will not protect communications made in furtherance of an improper purpose, such as a crime or fraud.
So there is no question at all that his Honour fully understood what was necessary, so the only question was, assuming that the information in the information before the magistrate and the attachments constituted proof sufficient to displace fraud, whether these documents fell within that category or, alternatively, another way of looking at it, which documents, if any, did fall within that category. So we put forward these documents as falling within that class to which either privilege never attached or it was displaced, depending how one approaches the problem.
Could I then hand up if I may an extract from the transcript which your Honours do not have. It is at page 144 of the transcript before Justice Davies. I hand up two documents, if I may. The first is the extract from the transcript and the second document are these submissions of the respondent which were filed after the oral hearings had concluded and, as your Honours will see, at page 144 my learned friend, Mr Bloom, asked for the opportunity at line 28 - he said:
We have only received this -
this is our document -
this morning -
and he asks for permission to:
consider it a bit further and perhaps make short submissions in writing concerning particular documents -
and what eventually his Honour received was the very lengthy document that I have now handed to your Honours and what your Honours will not find in that lengthy document is any argument with our categorisation. So all his Honour had before him was our best guess as to which documents were created in furtherance of the conspiracy that was demonstrated in the information and annexures and no response in relation thereto even though they had the opportunity from the respondents. Now, in our submission, his Honour was fully entitled in those circumstances to accept our categorisation as being correct. Whether in fact they were documents which perhaps did not fall within the ambit or not, we say, is a matter at this stage which should not trouble this Court.
What my friend has sought to do by reference to document 61 is to somehow demonstrate that obviously those documents could not properly have fallen within that category. But there are a number of problems with that submission. Could I emphasise - I think my friend has already mentioned this, but what document 61 consisted of was not the brief to Mr Bloom but the attachments. The police did not take the brief. So we are dealing with attachments. And what those attachments were, as the evidence reveals and as has been read to your Honours, were copies of documents.
So we are back to the old copies argument and the argument is those documents were privileged because they were copies made for the purpose of seeking advice. Our argument in relation to that is the copies do not have any greater privilege than the originals and if we are right that they were transactional type documents made in furtherance of this conspiracy, of course, they are not privileged. So my friend's illustration of document 61 proves nothing except as an example of where he was seeking to show that these were copies of documents which we should not get hold of. And we said if they are copies of transactional documents, obviously, if they were created in furtherance of the alleged conspiracy, either privilege does not attach or else it has been displaced, so we should get them.
BRENNAN CJ: By transactional documents, do you mean documents which effected some alteration to the rights and the liabilities of the parties thereto?
MR ROBERTS: Well, not having seen the documents, it is difficult for us to say precisely what they were, but the evidence reveals that there were transactions going on in furtherance of this conspiracy and obviously we actually had contained within the annexures, letters and the like which indicated that there were letters going to and fro, there were agreements being made, some of which we had, some of which we did not. So there were obviously transactions going on.
What was contained within these attachments was apparently copies of documents, the dates of which there was no evidence, and we said, "Well, if they are documents made in furtherance of this conspiracy, then obviously they can't be privileged", and, as I said, there is no answer from my friends; they do not say, "Look the fourth of the annexures here was a document made four years after the event and therefore couldn't possibly have been made in furtherance of the conspiracy, or anything of that nature," and, in the absence of any complaint, his Honour has acted on our document and we say his Honour was so entitled to act.
When the matter went to the Full Court, this complaint was agitated; again, it was not agitated in the form that it was first put to your Honours, that is, that his Honour did not understand that only documents made in furtherance of a conspiracy were caught by this Cox & Railton rule, and really the argument that was put was the categorisation argument, and there were some submissions put by both sides, and it is true that their Honours in the Full Court were able to dispose of the matter, apparently, without reference to it.
Now, why it should be at this stage that, in the event that your Honours find that the matter of our appeal is correct, that the evidence was rightly admitted before Justice Davies, why this should go back to the Federal Court is never really explained. It was argued there. If there was a problem with categorisation - if your Honours feel that his Honour Justice Davies really ought to have looked at the documents himself, as opposed to doing what his Honour did, then the matter should go back to Justice Davies to ascertain whether, in fact, the various documents rightly fall within our categorisation, but we say the way the matter was conducted, really it would be otiose for this Court to intervene given the conduct of the respondents and the conduct of the litigation. They had every opportunity of putting this type of material to Justice Davies; in the event that they did not, well, it is a little bit late in the piece to raise it at this stage.
But if it is to be raised, then we say it is not a matter for the Full Court, which will be a third go in the Full Federal Court. Really, we would suggest that there must come an end, at some stage, to this litigation; that it should go back to Justice Davies to ascertain whether these documents truly fell within our class 3 or not.
The alternate order that is sought on the cross-appeal, which is at page 613 of the appeal book, in that, at ground 2(b), the respondent in effect asks that if we lose on the fraud ground, then they say that the order of the Full Court was wrong in remitting the matter to Justice Davies for a rehearing. Our answer to that, in the event that we are unsuccessful in our argument in relation to the admissibility of the information, is twofold; we say that if Justice Davies had have ruled that we were not entitled to rely on the information, either at all or in the absence of producing Mr Taciak, then obviously it is something that could have been remedied before his Honour, and we ought to have that opportunity of remedying any defect that your Honours found or find was committed.
Secondly, although I do not put too much emphasis on this point, but his Honour, of course, did rule that we were not entitled to cross-examine the deponents as to fraud, and that would have been one way of possibly establishing the fraud which we were alleging. And his Honour may not have decided that, in the event that his Honour came to a view that we were not entitled to rely on the information. So, for those two - - -
GUMMOW J: His Honour's decision there may be bound up with the perception of the nature of the proceeding before him, and so far as it was purely an administrative review decision, one can well understand what his Honour did. In so far as it was on another footing involving - footing that has been discussed, there might be a question about it.
MR ROBERTS: Certainly, your Honours.
GUMMOW J: That is one of the reasons why it is important to know just what the elements were of the action as it was framed.
MR ROBERTS: His Honour did not allow cross-examination of Chief Superintendent Baer on the question of public interest immunity, either. I am not quite sure which way that goes, but - - -
GUMMOW J: That would more or less be so no matter what form the proceedings would - - -
MR ROBERTS: Probably, yes. In any event, we put those two reasons as reasons why, in the event that we are unsuccessful in relation to the fraud argument, the matter should go back to Justice Davies, otherwise, we submit, that, in the event that we are successful, the matter should not arise at all.
Justice Hill, at least, in the Full Court, seemed to have perceived there to have been a natural justice point as opposed to an admissibility point, perceiving some injustice that Taciak was not there. The point that we sought to make in the written submissions was, if, really, our friends had wished to cross-examine for whatever reason, they only had to ask that he be brought forward, and we would have brought him forward. But, one wonders in what possible way this would have advanced the case, and what could have been asked. If our friends had really wished to put things to him, they only had to ask, or at least put the submission to his Honour that by not calling Taciak and by having the evidence admitted in this fashion, they were disadvantaged, but none of this was ever put. It was merely put, "You cannot act on hearsay", and that was the submission that was put. Those are our submissions in reply, if your Honours please.
BRENNAN CJ: Yes, thank you.
MR BLOOM: Your Honours, might I just trouble the Court briefly with one matter that arose out of what my learned friend, Mr Roberts, said. Your Honours, the affidavit of Ms Garner at page 288 of the appeal book makes it abundantly clear that the document 61 is the original brief to counsel together with its attachments. I should also mention this: his Honour Justice Davies did issue an invitation to the parties to further discuss the form of his orders. That was taken advantage of in chambers before him but he declined to make any change to the draft orders in his judgment. If your Honours please.
MR ROZENES: Perhaps before anything else there is one housekeeping matter that we need to raise with the Court. The annexures to the search warrants were not included in the appeal books but we have brought them to Court and they are available and we wonder whether the Court would be assisted by having them left somewhere in the Court in case someone wants to look at them.
BRENNAN CJ: How many copies are there, just one?
MR ROZENES: There are multiple copies of them.
BRENNAN CJ: Multiple copies. They can be left no doubt with the Court Clerk and they can be distributed to the Justices afterwards. The Court will consider its decision in this matter.
AT 3.37 PM THE MATTER WAS ADJOURNED
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