Baker v. Campbell.

Judges: Gibbs CJ
Mason J
Murphy J

Wilson J
Brennan J
Deane J
Dawson J

Court:
High Court of Australia

Judgment date: Judgment handed down 26 October 1983.

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Wilson J.

This is a case stated in proceedings arising out of an attempt by the defendant to execute a search warrant issued, pursuant to sec. 10(b) of the Crimes Act 1914 (Cth.) as amended, in respect of documents held by the plaintiff's firm of solicitors and claimed to be the subject of legal professional privilege. The question which the case asks the Court to answer is the following:

``In the event that legal professional privilege attaches to and is maintained in respect of the documents held by the firm can those documents be properly made the subject of a search warrant issued under sec. 10 of the Crimes Act?''

It will be noted that the question assumes the propriety of the claim to privilege so far as concerns the character of at least some of the documents themselves. We are not concerned, therefore, with the question whether any and if so which documents would in any event not be privileged. It is solely the threshold question of the relevance of legal professional privilege to the execution of a search warrant under sec. 10 of the Crimes Act that is in issue. So far as is material to that question, sec. 10 of the Crimes Act reads as follows:

``10. If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting that there is in any house, vessel, or place -

• (a) anything with respect to which any offence against any law of the Commonwealth or of a Territory has been, or is suspected on reasonable grounds to have been committed;
• (b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any such offence; or
• (c)...

he may grant a search warrant authorizing any constable named therein, with such assistance as he thinks necessary, to enter at any time any house, vessel, or place named or described in the warrant, if necessary by force, and to seize any such thing which he may find in the house, vessel or place.''

The search warrant in this case was granted in respect of documents falling within para. (b).

The plaintiff contends that the question should be answered ``No'' His counsel, Mr. Bennett, is confronted at the outset by the recent decision of this Court in
O'Reilly & Ors. v. Commr. of the State Bank of Victoria & Ors. 82 ATC 4671 ; (1982) 57 A.L.J.R. 130 . In that case, it was held by the majority ( Gibbs C.J., Mason and Wilson JJ., Murphy J. dissenting), that legal professional privilege is relevant only to judicial or quasi-judicial proceedings. In consequence of this ruling, a solicitor to whom a notice had been given under sec. 264 of the Income Tax Assessment Act 1936 (Cth.) as amended, was held to be bound to produce documents to which the notice referred notwithstanding that in the context of judicial or quasi-judicial proceedings they may have been the subject of the privilege.

By way of answer to O'Reilly, Mr. Bennett relies on three submissions, each independent of the others:

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ATC 4628

• (a) O'Reilly is distinguishable because of the use of the word ``evidence'' in sec. 10(b) of the Crimes Act, which must be taken to mean ``admissible evidence'';
• (b) O'Reilly is distinguishable because the issue of a search warrant is a judicial act unlike the ministerial act of the Commissioner of Taxation in that case;
• (c) O'Reilly is wrong in so far as it held that legal professional privilege is confined in its operation to judicial and quasi-judicial proceedings.

As to the first submission, it is plain that in using the term ``admissible evidence'' counsel intended merely to identify evidence which would in the ordinary course of events be available to the Court. Strictly speaking, legal professional privilege concerns only the compellability of a person to produce evidence to the Court; it has no bearing on the admissibility of evidence. In any event, the words ``afford evidence'' in sec. 10(b) are used, in my opinion, in their ordinary sense of ``make manifest'' or ``reveal''. It cannot be supposed that by using the word ``evidence'' the legislature intended to inject into the process of executing a search warrant a whole range of hypothetical questions touching admissibility and compellability, questions which ordinarily can be determined only when the evidence is sought to be adduced.

The second argument is also untenable because even though in issuing a search warrant a justice is obliged to act judicially (
R. v. Tillett ; Ex parte Newton (1969) 14 F.L.R. 101 ), such a description merely describes the nature and quality of that particular act. Although the form in which the case stated asks the question may on one view be thought to focus attention on the issue of the warrant, it is when the warrant comes to be executed that the question of privilege, if it can be raised at all, becomes relevant because that is the time when the claim to privilege must be made. Clearly, no judicial or quasi-judicial proceedings are involved in the execution of the warrant: it is a purely ministerial act.

The third submission, advanced by leave of the Court, invites reconsideration of the decision in O'Reilly. It is a submission which has given me cause for much anxious thought, in the course of which my opinion has fluctuated from one conclusion to another. In the end, I have arrived at the only result which affords me lasting satisfaction. That result is that in O'Reilly I took too narrow a view of the problem. In my reliance upon English authority, culminating in
Parry-Jones v. Law Society (1969) 1 Ch. 1 , I allowed the public interest which supports the privilege to be confined too closely to the context in which the relevant common law has evolved. Naturally enough, that context was supplied by judicial and quasi-judicial proceedings. I therefore expressed the opinion that the privilege is available to be claimed only in such proceedings. In the present case, the arguments of counsel ranged over a wide field and embraced Canadian and American decisions which had not received attention in the earlier case. In addition, since the conclusion of the hearing, reports have come to hand of cases involving the further consideration of aspects of the problem by the Supreme Court of Canada (
Descoteaux v. Mierzwinski (1982) 141 D.L.R. (3d) 590 ) and the Court of Appeal of New Zealand (
R. v. Uljee (1982) 1 N.Z.L.R. 561 ). The European Court of Justice has also undertaken recently a comprehensive review of the problem in the European context in
A.M. & S. Europe Ltd. v. Commission of the European Communities (1983) 3 W.L.R. 17 . All this has provided rich material for further reflection.

It may be accepted that the basic reason why the law has come to respect professional confidences between lawyer and client is the belief that in so doing the client will be encouraged to be entirely open and candid in telling his story to the lawyer - to bare his breast to his lawyer, as Sir George Jessel M.R. said in
Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644 at p. 649 . Conversely, the cloak of secrecy may encourage the lawyer to be completely frank in the expression of his advice. But confidentiality alone cannot supply the reason for the privilege. Originally it may have done so, in common with the protection which the law at that time afforded to other confidential relationships. In the sixteenth and seventeenth centuries the privilege was based in the duty of the solicitor to respect professional confidences. It was a matter of honour and consequently the privilege belonged to him rather than to the client:

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ATC 4629

Wigmore on Evidence (McNaughton rev. 1961), vol. 8, para. 2290. However, in the eighteenth century the law moved decisively away from this approach, with the Duchess of Kingston's case (1776) 20 State Tr. 355 providing the turning point. The public interest, not merely the protection of confidentiality, became the reason for the rule. Thereafter, the only profession to have the privilege of non-disclosure was the legal profession. The historical evolution of the privilege is described by Lord Simon of Glaisdale in
D. v. N.S.P.C.C. (1978) A.C. 171 at pp. 237-239 .

The public interest which led the common law to favour the relationship between solicitor and client over other confidential relationships was the recognition that the involvement of representatives skilled in the law who had been fully instructed was indispensable to the proper functioning of the legal system, the law ``being a complex and complicated discipline'':
Grant v. Downs (1976) 135 C.L.R. 674 at p. 685 . The breadth of that interest found expression in many of the cases in the last century. In
Russell v. Jackson (1851) 9 Hare 387 ; 68 E.R. 558 , Turner V.-C. said, at Hare p. 391; E.R. pp. 559-560:

``It is evident that the rule which protects from disclosure confidential communications between solicitor and client does not rest simply upon the confidence reposed by the client in the solicitor... but upon the necessity of carrying it out. Lord Brougham in
Greenough v. Gaskell ( 1 My. & K. 98 ; 39 E.R. 618 ) gives, I think, the true foundation of it.''

The well-known statement of Lord Brougham referring to ``the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence'' (My. & K. at p. 103; E.R. at p. 621) is then cited. The Vice-Chancellor's remarks were approved by the Court of Crown Cases Reserved in
R. v. Cox & Railton (1884) 14 Q.B.D. 153 .

In earlier times, of course, it has been the demands of the adversary system which enlivened the principle and nourished the notion that the privilege was a rule of evidence confined to judicial and quasi-judicial proceedings. However, I do not now think that the conception can be so limited. In
Bullivant v. A.-G. for Victoria (1901) A.C. 196 at pp. 200-201 , the Earl of Halsbury L.C. declared ``the perfect administration of justice'' as an object of the public policy underlying the privilege. The perfect administration of justice is not confined to legal proceedings. The object and indeed the result of consulting a solicitor will often be the settlement of a dispute which otherwise may have had to be fought out in Court. The fostering of a professional relationship which obviates recourse to litigation is very much in the public interest. Cf. D. v. N.S.P.C.C. at pp. 231-232;
Waugh v. British Railways Board (1980) A.C. 521 at pp. 531 and 535-537 .

Furthermore, the extension of the privilege more than a century ago (as described by Lord Selborne L.C. in
Minet v. Morgan (1873) L.R. VIII Ch. App. 361 at p. 366 ) beyond communications between the chent and his professional adviser in relation to pending or anticipated litigation to embrace any communications undertaken with the object of seeking or giving legal advice serves, in my opinion, to emphasize that the public interest involved extends beyond legal proceedings. In fostering the confidential relationship in which legal advice is given and received the common law is serving the ends of justice because it is facilitating the orderly arrangement of the client's affairs as a member of the community. Furthermore, in promoting the faithful discharge of his responsibilities and the enjoyment of his rights under the law the ends of justice are being served. It is in the public interest to encourage the service of such ends.

The multiplicity and complexity of the demands which the modern state makes upon its citizens underlines the continued relevance of the privilege to the public interest. The adequate protection according to law of the privacy and liberty of the individual is an essential mark of a free society and unless abrogated or abridged by statute the common law privilege attaching to the relationship of solicitor and client is an important element in that protection.

It is not only a matter of protection of the client. The freedom to consult one's legal adviser in the knowledge that confidential communications will be safeguarded will

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ATC 4630

often make its own contribution to the general level of respect for and observance of the law within the community: see an article by Charles A. Miller, ``The Challenges to the Attorney-Client Privilege'', 49 Virginia Law Review, p. 262.

Finally, I have been burdened by the consideration that to deny the relevance of a valid claim to legal professional privilege in the face of a search warrant would effectively deny the availability of the privilege in any prosecution that followed. The same is probably true in the case of other forms of legislation which provide statutory authority to extra-judicial measures requiring compulsory disclosure. The very existence of the privilege as providing any significant protection and thereby making its contribution to the public welfare must be threatened unless as a matter of principle the protection extends to all forms of compulsory disclosure: cf. the words of Thurlow J. quoted below.

It must be recognized that competing public interests may be involved. New forms of criminal activity pose a clear threat to the public welfare and may call for new measures of criminal investigation and law enforcement. The dictates of good administration of complex social and commercial legislation may require increasing resort to compulsory procedures. But it is for the legislature, not the Courts, to curtail the operation of common law principles designed to serve the public interest. In any event, the limited range of communications to which the privilege extends will of itself ensure that the area of possible conflict is strictly confined.

For these reasons I now respectfully accept as correct the statement of Jackett C.J., with whom the other members of the Federal Court of Appeal agreed, in
Re Director of Investigation & Research & Shell Canada Ltd. (1975) 55 D.L.R. (3d) 713 at p. 722 . After referring to the privilege afforded to the client against the compulsory revelation of communications between solicitor and client in the giving of evidence in Court or in the judicial process of discovery, his Honour continued:

``In my view, however, this privilege is a mere manifestation of a fundamental principle upon which our judicial system is based, which principle would be breached just as clearly, and with equal injury to our judicial system, by the compulsory form of preprosecution discovery envisaged by the Combines Investigation Act as it would be by evidence in Court or by judicial discovery.''

I also agree, with respect, with the statement by Thurlow J. in the same case at p. 723, as follows:

``Secondly, it appears to me that the confidential character of such communications, whether oral or in writing, comes into existence at the time when the communications are made. As the right to protection for the confidence, commonly referred to as legal professional privilege, is not dependent on their (sic) being litigation in progress or even in contemplation at the time the communications take place, it seems to me that the right to have the communications protected must also arise at that time and be capable of being asserted on any later occasion when the confidence may be in jeopardy at the hands of anyone purporting to exercise the authority of the law.''

It is now necessary to decide whether resort to the privilege has been abrogated by sec. 10(b) of the Crimes Act. The principle is clear. A statute will not be construed to take away a common law right unless a legislative intent to do so clearly emerges whether by express words or necessary implication:
Sorby & Anor. v. The Commonwealth & Ors. (1983) 57 A.L.J.R. 248 at p. 260 and the authorities there cited. Here we have a perfectly general law empowering a justice of the peace to authorize the entry of premises named in the warrant and the seizure of things described in the warrant, being things relating to the commission of offences against laws of the Commonwealth or of a Territory. In
R. v. Bishop of Salisbury (1901) 1 K.B. 573 at p. 579 , Channell J. said:

``A general Act must not be read as repealing the common law relating to a special and particular matter unless there is something in the general Act to indicate an intention to deal with that special and particular matter.''

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ATC 4631

I do not think there can be any doubt about the matter. The statute does not evince any intention to oust the privilege. Indeed, I do not think that a contrary view was advanced by counsel for the defendant. The whole thrust of the argument was directed to a determination of the scope of the privilege at common law.

It is asserted that a claim of privilege in circumstances where the proceedings in respect of which it is made have not begun immediately raises procedural difficulties if the claim is contested. There is no Judge already seized of jurisdiction in the matter to determine the disputed claim. The interests of all parties must be protected pending a determination of the dispute. In my experience the procedural difficulties can be overcome consistently with that objective if the members respectively of the police force and the legal profession co-operate in a reasonable and responsible way. I do not think that it is necessary for the purposes of the stated case to explore the problem.

It remains to say two things. The first is that I have refrained from a detailed discussion of the recent decisions in Canada, New Zealand and elsewhere in the interests of brevity and because they are sufficiently canvassed in the judgments of my brethren. The second is to acknowledge my indebtedness to, and concurrence with, the reasons for judgment prepared by my brother Dawson.

I would answer the question in the stated case in the negative.