Baker v. Campbell.

Members: Gibbs CJ
Mason J

Murphy J
Wilson J
Brennan J
Deane J
Dawson J

Tribunal:
High Court of Australia

Decision date: Judgment handed down 26 October 1983.

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Murphy J.

The issue

The issue is whether the common law principle of client's legal privilege operates outside judicial or quasi-judicial proceedings so as to protect from seizure documents otherwise covered by a federal search warrant. Section 10 of the Crimes Act 1914 (the Act) authorizes a Justice of the Peace to grant a search warrant if satisfied that there is ``reasonable ground for suspecting'' that there is in any place ``anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any... offence'' against a law of the Commonwealth or of a Territory; the warrant may authorize any named constable (with assistance) to enter the place, if necessary by force, and to seize any such thing which he or she may find there.

Client's legal privilege

The concept of client's legal privilege is ancient. It has existed for over 400 years in English law (see
Berd v. Lovelace (1577) Cary 62 ; 21 E.R. 33 ;
Dennis v. Codrington (1580) Cary 100 ; 21 E.R. 53 ;
Greenough v. Gaskell (1833) 1 My. & K. 98 ; 39 E.R. 618 ;
Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644 at p. 649 ; Holdsworth, A History of English Law, vol. 9 (1966) pp. 201-202). It is well established in the United States (see
Hunt v. Blackburn 128 U.S. (1888) 464 at p. 470 ;
United States v. Louisville & Nashville Railroad Co. 236 U.S. (1915) 318 at p. 336 ;
Upjohn Co. v. United States 449 U.S. (1981) 383 at p. 389 ; Wigmore on Evidence, vol. 8 (McNaughton rev. (1961) para. 2290) and in many other countries such as Belgium, Denmark, Germany, France, Greece, Italy Luxembourg and Holland (see opinion of Advocate General, Sir Gordon Slynn,
A.M. & S. Europe Ltd. v. Commission of the European Communities (1983) 3 W.L.R. 17 at pp. 26-28 ).

The privilege is commonly described as legal professional privilege, which is unfortunate, because it suggests that the privilege is that of the members of the legal profession, which it is not. It is the client's privilege, so that it may be waived by the client, but not by the lawyer (
The Queen v. Davies (1921) 21 S.R. (N.S.W.) 311 at pp. 313-314 ;
Re Golightly (1974) 2 N.Z.L.R. 297 at p. 303 ;
People v. Doyle 74 Cal. App. 3d (1977) 691 at p. 692 ). Its rationale is no longer the oath and honour of the lawyer as a gentleman (see Radin ``The Privilege of Confidential Communication Between Lawyer and Client'', vol. 16, California Law Review (1928) p. 487). It is now supported as ``a necessary corollary of fundamental, constitutional or human rights'' (see A.M. &

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ATC 4624

S. Europe Ltd. v. Commission of the European Communities p. 54). In
The Queen v. Uljee (1982) 1 N.Z.L.R. 561 , Mr. Justice Cooke referred to ``a strong sense that any person charged or in peril of a charge has a fundamental human right to professional advice - which may not be effectively given if facts are withheld'' (p. 569).

In the United States the client's legal privilege has been based on constitutional grounds - the fourth amendment guarantee against unreasonable searches and seizures and the fifth amendment guarantee against self incrimination (see
Couch v. United States 409 U.S. (1973) 322 at pp. 343-344 and
Granello v. United States 386 U.S. (1967) 1019 Mr. Justice Douglas; and
Fisher v. United States 425 U.S. (1976) 391 Mr. Justice Brennan and Mr. Justice Marshall affirming the ``private papers'' doctrine of
Boyd v. United States 116 U.S. (1886) 616 ). It has also been based on the sixth amendment right to counsel in criminal cases (see
United States v. Rosner 485 F. 2d (1973) 1213 at p. 1214 ;
United States v. Levy 577 F. 2d (1978) 200 at pp. 208-210 ; In
re Terkeltoub 256 F. Supp. (1966) 683 at p. 685 ;
Caldwell v. United States 205 F. 2d (1953) 879 ) which has been held to include the right to consult privately with counsel ( Caldwell v. United States;
Coplon v. United States 191 F. 2d (1951) 749 ;
Marsh v. Moore 325 F. Supp. (1971) 392 ;
People v. Brown 368 N.Y.S. 2d (1974) 645 , but see
Weatherford v. Bursey 429 U.S. (1977) 545 ). Inroads made upon these rights by recent Supreme Court decisions expanding the reach of search warrants (see
Warden v. Hayden 387 U.S. (1967) 294 ;
Andresen v. Maryland 427 U.S. (1976) 463 ;
Zurcher v. Stanford Daily 436 U.S. (1978) 547 ), have produced strong criticism:

``To insist that one has an unqualified right to effective counsel in criminal cases, and yet to take away the security that one's words to an attorney will not be used in evidence against him, is to make a cynical formality of a precious and inalienable right. To grant privacy in the narrowest sense of being left alone at the time of consultation, only to allow police officers to search the premises immediately thereafter for any written notation of what was said, is to manipulate words to fashion subtle traps instead of meaningful safeguards''

(``Commentary - Search of the Lawyer's Office - Court-Sanctioned Threat to Confidential Communications'', vol. 32, Alabama Law Review (1980) 92 at p. 130).

In civil cases the client's privilege has also been referred to the guarantee of fairness under the due process clause of the fourteenth amendment (see ``Commentary - Search of the Lawyer's Office - Court-Sanctioned Threat to Confidential Communications'' at p. 128).

Scope of the privilege

Under common law as recently declared for Australia, client's legal privilege protects from disclosure any oral or written statement, or other material, which has been created solely for the purpose of advice, or for the purpose of use in existing or anticipated litigation (
Grant v. Downs (1976) 135 C.L.R. 674 at p. 682 ; see also
National Employers' Mutual General Insurance Association Ltd. v. Waind & Anor. (1979) 141 C.L.R. 648 ). This defines the scope of the privilege more narrowly than elsewhere. In the United Kingdom it is enough if the dominant purpose for coming into existence of the material is legal advice or litigation (
Waugh v. British Railways Board (1980) A.C. 521 ).

The privilege does not attach to documents which constitute or evidence transactions (such as contracts, conveyances, declarations of trust, offers or receipts) even if they are delivered to a solicitor or counsel for advice or for use in litigation. It is not available if a client seeks legal advice in order to facilitate the commission of crime or fraud or civil offence (whether the adviser knows or does not know of the unlawful purpose) (see
The Queen v. Cox & Railton (1884) 14 Q.B.D. 153 ;
Bullivant v. A.-G. for Victoria (1901) A.C. 196 ;
The King v. Smith (1915) 11 Cr. App. R. 229 at p. 238 ); but is of course available where legal advice or assistance is sought in respect of past crime, fraud or civil offence. Hence the subject matter of the privilege is closely confined: in brief it extends only to oral or other material brought into existence for the sole and innocent purpose of obtaining legal advice or assistance.

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ATC 4625

Should the privilege apply outside the courtroom?

Should a federal common law rule be recognized attaching the privilege to federal statutory powers of search and seizure unless excluded expressly or by necessary implication? The existence of such a federal common law rule is not merely a question of statutory interpretation. I said in
Australian Broadcasting Commission v. Industrial Court of South Australia & Anor. (1977) 52 A.L.J.R. 31 :

``Federal common law completes the statutory patterns enacted by the Parliament and is as necessary for the effective operation of those laws as the common law of the Constitution is for the effective operation of the Constitution''

(p. 40).

The common law in the various States is not decisive of the content of federal common law but is an aid to ascertaining an appropriate federal common law rule. A federal common law rule can be adopted even if the common law in the States in analogous fields has been altered (see ``The Federal Common Law'' Harvard Law Review, vol. 82 (1969) at p. 1512).

In
O'Reilly & Ors. v. Commr. of the State Bank of Victoria & Ors. , 82 ATC 4671 , (1982) 57 A.L.J.R. 130 , this Court decided (Chief Justice Gibbs, Justices Mason and Wilson; Justice Murphy dissenting) that legal privilege was available to protect evidence from disclosure only in the actual course of judicial or quasi-judicial proceedings. The correctness of O'Reilly is now being reconsidered.

Unfortunately the majority in the O'Reilly case relied to some extent on
Crowley & Ors. v. Murphy (1981) 34 A.L.R. 496 (Mr. Justice Mason at ATC p. 4682, A.L.J.R. p. 138; Mr. Justice Wilson at ATC 4687, A.L.J.R. p. 143), which in turn relied on the judgment of Mr. Justice Osler in the Canadian case of
The Queen v. Colvin (1970) 3 O.R. 612 , the only relevant Canadian case on this aspect cited to the Court in O'Reilly. I say unfortunately because, even before Crowley v. Murphy was decided, Mr. Justice Osler had stated that the view he had expressed in Colvin (that the privilege was a rule of evidence to be applied only at the time material was tendered or demanded for evidentiary use) had been overruled by such authorities as Re Director of Investigation & Research & Shell Canada Ltd. (1975) 55 D.L.R. (3d) 713, and was now in his view ``erroneous'' (
Re Presswood v. International Chemalloy Corp. (1975) 65 D.L.R. (3d) 228 at p. 230 ). The authorities disposing of Colvin were approved by the Canadian Supreme Court in
Solosky v. The Queen (1979) 105 D.L.R. (3d) 745 at p. 757 . But this was not brought to the attention of this Court in O'Reilly's case.

The privilege should not be confined to protecting evidence from disclosure only in judicial or quasi-judicial proceedings. As I said in O'Reilly's case, ``The important public policy which justifies the privilege would often be defeated if the privilege were not generally available'' (ATC p. 4683; A.L.J.R. p. 139). The availability of the privilege against extra-judicial searches and seizures has been recognized in the United States (see
Burrows v. Superior Court (1974) 529 P. 2d 590 at p. 598 and
O'Connor v. Johnson 287 N.W. 2d (1979) 400 ). In Canada the Courts have strongly asserted that the privilege is not restricted to judicial or quasi-judicial proceedings (see Solosky v. The Queen and Descoteaux v. Mierzwinski (1982) 70 C.C.C. 385). The privilege applies against a search warrant (see
Re Borden & Elliott and The Queen (1975) 30 C.C.C. (2d) 337 at p. 342 and In
re B.X. Development Inc. & The Queen (1976) 31 C.C.C. (2d) 14 ). In Shell Canada Chief Justice Jackett stated:

``... 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 pre-prosecution discovery envisaged by the Combines Investigation Act as it would be by evidence in Court or by judicial discovery''

(p. 722).

In New Zealand also the privilege has been held to apply outside judicial or quasi-judicial proceedings. Its Court of Appeal held the privilege to be available despite sec. 12 of the Finance Act (No. 2) 1948 (N.Z.) which required ``Every person'' to ``furnish in writing any information or produce any books or documents'' in his or her ``knowledge, possession, or control'' which the Commissioner considered necessary or

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ATC 4626

relevant for any purpose relating to the administration or enforcement of the revenue legislation (
Commr. of I.R. (N.Z.) v. West-Walker (1954) N.Z.L.R. 191 ). There Mr. Justice North rejected the claim that the privilege was only a rule of evidence or of limited application, and held that it rests ``on the wider ground of public policy and, therefore, applies generally unless the terms of a particular statute either expressly or by necessary implication remove the protection'' (p. 219); see also Uljee's case. Although the New Zealand Court of Appeal is an intermediate Court of Appeal (still subject to the Privy Council) and its decisions are therefore not of the same persuasive authority as those of final Courts such as the Supreme Court of Canada, nevertheless they are evidence of a firm trend in common law countries against restriction of the privilege to judicial or quasi-judicial proceedings. In Rosenberg v. Jaine (High Court of New Zealand, unreported judgment of 7 February 1983), Chief Justice Davison found that sec. 198 of the Summary Proceedings Act 1957 (N.Z.) did not ``authorise the issue of a search warrant abrogating the common law privilege in relation to the solicitor-client relationship'' (see also The Queen v. Uljee ).

The client's legal privilege is essential for the orderly and dignified conduct of individual affairs in a social atmosphere which is being poisoned by official and unofficial eavesdropping and other invasions of privacy. The individual should be able to seek and obtain legal advice and legal assistance for innocent purposes, without the fear that what has been prepared solely for that advice or assistance may be searched or seized under warrant. Denying the privilege against a search warrant would have a minimal effect in securing convictions but a major damaging effect on the relationship between the legal profession and its clients. It would engender an atmosphere in which citizens feel that their private papers are insecure and that relationships they previously thought confidential are no longer safe from police intrusion. As Mr. Justice Douglas stated in Couch v. United States, ``The constitutional fences of law are being broken down by an ever-increasingly powerful Government that seeks to reduce every person to a digit'' (p. 344).

Many commentators have criticized the increasing threat to the confidentiality of the lawyer-client relationship brought about by a weakening of the privilege: ``At stake is more than an evidentiary privilege; the relationship of attorney and client, based on trust, is not so strong that it can withstand the gradual erosion of public confidence that would necessarily accompany an increase in governmental intrusions'' (``Commentary - Search of the Lawyer's Office - Court-Sanctioned Threat to Confidential Communications'' at p. 134; see also Bloom ``The Law Office Search: An Emerging Problem and Some Suggested Solutions'', vol. 69, Georgetown Law Journal (1980) 1; Charles ``Legal Professional Privilege: Continued Erosion'', vol. 57, Law Institute Journal (1983) 832; Nyman ``Search Warrants and Legal Professional Privilege'', vol. 18, Law Society Journal (1980) 423; Gurfein ``The Assault on the Citadel of Privilege Proceeds Apace: The Unreasonableness of Law Office Searches'', vol. 49, Fordham Law Review (1981) 708).

Parties should be able to prepare for litigation without that preparation being subject to search and seizure. This protection should apply not only to client-lawyer communications, but also to preparation by a litigant in person, and to communications between the litigant and others. In so far as client's legal privilege extends to material which was created for legal advice unassociated with pending or anticipated litigation, there is some force in the argument that legal advice should not be elevated above other professional evidence, such as medical or financial advice. However, in Grant v. Downs the privilege was held to extend to communications for advice and the question whether it should so extend has not been agitated in the present case. Further the privilege is necessary so that persons may confidently seek and receive advice about conduct which has, or may have, constituted crime, fraud or a civil offence.

If the privilege does not avail outside the Courts why should it continue to be available in the Courts? Courts would have less access than non-judicial authorities to that which can expose the truth; thus lowering the authority of judicial findings and decisions in contrast with those of non-judicial bodies. The long term tendency would be for law

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ATC 4627

enforcement authorities to press for extra-judicial methods of investigation and decision-making. Further, search and seizure is really a pre-trial investigative process closely connected with judicial proceedings.

The Crimes Act sec. 10 should be interpreted so that it applies uniformly despite any differences in the various State laws which have arisen by statutory modification of the common law. The appropriate common law rule is one that attaches legal privilege to the statutory powers of search and seizure so as to protect those documents or other material created solely and innocently for the purpose of legal advice or for use in existing or anticipated litigation. Contrary to what was held in O'Reilly the privilege should apply to any form of compulsory seizure or production of documents, unless Parliament unmistakably excludes or confines it. There is not the slightest indication that Parliament intended to do so.

The question in the case stated ``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? '' should be answered ``No''