The Supreme Court recently considered, on appeal, client legal privilege and section 119 of the Evidence Act 1995 (NSW) in the case of Hamilton v State of New South Wales  NSWSC 1213.
Ms Hamilton sued the State of NSW for the alleged misfeasance in public office of four police officers involved in the investigation and prosecution of her late partner for sexual offences against children. Ms Hamilton issued a subpoena upon the Director of Public Prosecutions (DPP) seeking the production of the Office of the Director of Public Prosecutions’ (ODPP) file in relation to the prosecution.
The DPP sought to set aside the subpoena on the basis that the documents captured were subject to client legal privilege arguing that documents that recorded meetings and telephone conversations between the ODDP solicitors and/or a Crown Prosecutor and police officers were privileged pursuant to section 119 of the Evidence Act.
Section 119 of the Evidence Act provides:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or
(b) the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Section 117 defines “confidential communication” and “confidential documents” as communication or documents made/prepared in such circumstances that the person who made or prepared it or the person to whom or for whom it was made/prepared was under an express or implied obligation not to disclose its contents.
At first instance, Harrison AsJ found that the documents were privileged, noting that the ODPP solicitors and the police officers who were party to the meetings and telephone calls were under an obligation of confidence derived from the “solicitor client relationship” and the ODPP’s Code of Conduct.
One of the grounds of appeal concerned the documents that recorded meetings and telephone conversations between ODPP solicitors or a Crown Prosecutor on the one hand and police officers on the other. Ms Hamilton, whilst accepting that the ODPP were subject to an obligation of confidence, argued that the police officers were not under such an obligation and accordingly the documents were not privileged. The Court noted that this contention was not of assistance to Ms Hamilton as section 117 makes it clear that only one of the parties to the communication must have an obligation of confidence. Further, the court held that in any event the police officers were under an obligation of confidence.
Ms Hamilton further argued that the situation was analogous to that of the State of New South Wales v Jackson  NSWCA 279 (Jackson). In Jackson the Court of Appeal rejected a claim of client legal privilege over two witness statements obtained by a teacher in respect of an accident at a high school. The court held that neither the witnesses making the statement or the Department whom the statements were being prepared for were under an obligation of confidence. Accordingly, the statements were not “confidential documents” and did not attract client legal privilege pursuant to section 119.
The Court concluded that the decision in Jackson had no relevance to the current matter as it did not concern communication between “a lawyer acting for a client and another person”.
Whilst no evidence was adduced to show an express obligation of confidence of any kind was imposed on the police officers who participated in the meetings and telephone calls, that is, no discussion with the officers to the effect that their communications with the ODPP solicitor were confidential or that any direction to that effect was given, the Court found that an obligation of the kind referred to in the definition of confidential communication can be implied.
In assessing whether a confidential obligation is implied in relationships or circumstances outside that of solicitor/client, the Court will have regard to the nature of the relationship in question and the circumstances surrounding the communications or documents in question.
For abundant caution, where the relationship is unclear, it is advisable to preface any important conversation or document with a discussion or note that the communications are confidential.
This case also serves as a reminder that where one person is under an obligation of confidentiality, such as a solicitor, section 119 can be used to protect communications and documents outside of the solicitor/client relationship.
Contributor - Kate Dobbie