23. Privilege — ss 117–134 (Vic)¶
Scope and currency
Reference sheet · Evidence Act 2008 (Vic) Part 3.10 · client legal privilege, self-incrimination, religious confessions & public interest immunity
What Part 3.10 does. Privilege shields certain confidential material from being adduced — privileged evidence is inadmissible (s 134). Four privileges matter most in crime: client legal privilege (ss 117–126), religious confessions (s 127), the privilege against self-incrimination (ss 128, 128A), and public interest immunity (ss 129–131). The court must inform holders of their rights (s 132) and may inspect documents to rule (s 133). ss 118–119 govern adducing evidence; s 131A extends the protection to pre-trial disclosure (subpoenas, discovery).
Start here — the four criminal-law privileges¶
Privilege is a substantive right: client legal privilege is not merely a rule of evidence but a substantive legal right (Daniels Corporation v ACCC), reaching beyond the witness box to search warrants and subpoenas (Baker v Campbell; s 131A). Privileged evidence is inadmissible (s 134).
The four privileges at a glance¶
| Privilege | Sections | In a nutshell |
|---|---|---|
| Client legal (LPP) | ss 117–126 | confidential lawyer–client communications for the dominant purpose of advice (s 118) or litigation (s 119). |
| Religious confessions | s 127 | clergy may refuse to divulge a confession's fact or contents; no penitent consent; criminal-purpose exception. |
| Self-incrimination | ss 128, 128A | a witness may object; a certificate gives use & derivative-use immunity — not immunity from prosecution. |
| Public interest immunity | ss 129–131 | matters of state — balance the public interest in disclosure against secrecy. |
Client legal privilege — ss 117–126¶
GATE 1 Is there a privileged communication? (ss 118–120)
A confidential communication/document, for the dominant purpose of advice or litigation? s 118 — legal advice: a confidential communication (client↔lawyer, or lawyer↔lawyer) or document, for the dominant purpose of a lawyer providing legal advice to the client. s 119 — litigation: a confidential communication (including with a third party) or document, for the dominant purpose of legal services relating to a proceeding — actual, anticipated or pending. s 120 gives unrepresented parties an equivalent (dominant purpose of preparing/conducting the proceeding). → 'Confidential' (s 117): an express or implied obligation not to disclose — not confined to solicitor–client; it can be ethical, moral or social (Apple v Wily; NSW v Jackson; Rickard Constructions). A third party's presence at creation can show it was not confidential (R v Sharp). → 'Dominant purpose': the ruling purpose — not "sole", and a subsidiary purpose does not defeat it (Grant v Downs; confirmed for the UEA in Esso v FCT (1999) 201 CLR 49, rejecting the sole-purpose test).
Legal advice (s 118) vs litigation (s 119)¶
| Legal advice — s 118 | Litigation — s 119 | |
|---|---|---|
| Protects | confidential comms/docs client↔lawyer (or lawyer↔lawyer) | confidential comms/docs including with third parties |
| Dominant purpose | providing legal advice | legal services for a proceeding (actual/anticipated/pending) |
| Needs a proceeding? | No | Yes — actual or reasonably anticipated |
| GATE 2 Who proves it? | ||
| The party claiming privilege bears the onus of establishing the basis — the party seeking production need not disprove it (Mitsubishi Electric; Hastie Group). Prove the facts on the balance of probabilities (National Crime Authority v S); the purpose may be inferred. |
GATE 3 Has privilege been lost or waived? (ss 121–126)
Did the client act inconsistently with maintaining the confidence? s 122 — waiver: privilege is lost by consent, or where the client has acted inconsistently with maintaining it — knowingly disclosing the substance, or consenting to disclosure (s 122(2)–(3)). The touchstone is the client's conduct and the maintenance of confidentiality — not fairness "at large" (Mann v Carnell (1999) 201 CLR 1). s 122(5) safe harbours: no waiver from disclosure under duress or deception, under compulsion of law, to a person the lawyer is also advising, or where there is a common interest in the proceeding. → Other routes to loss: s 121 — a deceased client's intentions/competence; to enable enforcing a court order; or where it affects a person's right (broad, applied narrowly). s 123 — the accused may adduce, except an associated accused's privileged material. s 125 — misconduct (fraud, an offence, a civil-penalty act, or abuse of statutory power). s 126 — related documents reasonably necessary to understand a disclosed one.
Privilege against self-incrimination — s 128¶
GATE · s 128 A witness objects to self-incriminating evidence
Does the evidence tend to prove an offence, or civil-penalty liability? Procedure: the witness objects (s 128(1)); the court decides if there are reasonable grounds (s 128(2)); if so it informs the witness they need not answer unless required, and that a certificate will issue (s 128(3)). The court may require the answer if it does not tend to prove a foreign offence and the interests of justice require it (s 128(4); factors — R v Lodhi; s 192). The certificate = use + derivative-use immunity (s 128(7)) — the evidence, and anything derived from it, cannot be used against the witness (even as a prior inconsistent statement) — except a prosecution for the falsity of the evidence (perjury). It is not immunity from prosecution. Corporations cannot claim the privilege (Caltex). s 128(10): the section does not apply to an accused giving evidence of an act / state of mind that is a fact in issue — and where the evidence tends to prove the offence on trial, the accused cannot rely on s 128 even if it also incriminates for another offence (Cornwell). Not engaged on a voir dire (s 189(6)). s 128A governs disclosure orders. → Jury & credibility — per Spence: the court alerts the witness in the absence of the jury (s 132). Reliance on the privilege is not relevant to credit; but the grant of a certificate may bear on credibility (a "two-edged sword") — reveal it where credit is in play and direct the jury on its effect (it gives no immunity from prosecution and no licence to lie) (Spence v The Queen).
The s 128 certificate — step by step¶
| Stage | What happens |
|---|---|
| Possible privilege appears | the judge must ensure the witness is aware of the right (s 132). |
| Witness objects | the court decides whether there are reasonable grounds (s 128(2)). |
| No reasonable grounds | the witness is compellable as usual. |
| Reasonable grounds | court informs: need not answer unless required; a certificate will issue either way; and its effect (s 128(3)). |
| Witness gives the evidence | evidence given → certificate issued (use & derivative-use immunity). |
| Witness still refuses | court may require it only if it is not a foreign offence and the interests of justice demand (s 128(4)). |
Religious confessions & public interest immunity¶
Religious confessions (s 127): a member of the clergy may refuse to divulge the fact or contents of a religious confession made in their professional capacity according to the ritual. The penitent cannot consent to disclosure, and there is no express loss provision — except where the confession was made for a criminal purpose (s 127(2)).
Judicial reasons (s 129): the (unpublished) reasons of judges and arbitrators are not admissible in other proceedings (this also applies to pre-trial disclosure).
Public interest immunity — s 130
for matters of state, the court balances the public interest in admitting the evidence against the interest in secrecy (factors in s 130(4)–(5): prejudice to investigation/prosecution; disclosing a confidential source). Categories are not closed (national security, Cabinet, police informers); a class claim differs from a contents claim; the party seeking access must show a legitimate forensic purpose, weighed against the accused's fair-trial rights (R v Yucel; Ryan v State of Victoria). Beware the jigsaw effect — disclosing even redacted material can reveal what is protected (State of Victoria v Orman [2024] VSCA 190). s 131 excludes settlement negotiations.
Provisions at a glance¶
| s | Effect |
|---|---|
| 117 | Definitions — client, lawyer, party, confidential communication. |
| 118 / 119 / 120 | Client legal privilege — advice / litigation / unrepresented party (all on the dominant purpose test). |
| 121–126 | Loss & waiver — general (121), consent/inconsistency (122), accused (123), joint clients (124), misconduct (125), related documents (126). |
| 127 | Religious confessions — clergy may refuse; criminal-purpose exception. |
| 128 / 128A | Self-incrimination — objection & certificate (use + derivative-use immunity); disclosure orders (128A). |
| 129 / 130 / 131 | Public interest — judicial reasons (129); matters of state / PII (130); settlement negotiations (131). |
| 131A / 132 / 133 / 134 | Pre-trial disclosure extension (131A); duty to inform (132); inspection (133); privileged evidence inadmissible (134). |
Case law at a glance¶
| Case | The point it stands for |
|---|---|
| Esso v FCT (1999) 201 CLR 49 | Adopts the dominant purpose test for LPP, rejecting the sole-purpose test. |
| Grant v Downs (1976) 135 CLR 674 | Source of the dominant (not sole) purpose formulation; a subsidiary purpose does not defeat privilege. |
| Mann v Carnell (1999) 201 CLR 1 | Waiver turns on conduct inconsistent with maintaining confidentiality — not fairness "at large". |
| Daniels Corporation v ACCC (2002) 213 CLR 543 | LPP is a substantive legal right, not merely a rule of evidence. |
| Baker v Campbell (1983) 153 CLR 52 | LPP extends beyond testimony — it protects against search warrants / compulsory production. |
| Apple v Wily [2002] NSWSC 855 | "Client" turns on an objectively-ascertained relationship of trust and confidence. |
| NSW v Jackson [2007] NSWSC 279 | "Confidential" can rest on an ethical, moral or social obligation, not only a legal one. |
| Rickard Constructions [2006] NSWSC 234 | Confidentiality turns on the relationship, circumstances and purpose of the communication. |
| R v Sharp (2003) 143 A Crim R 344 | A third party's presence at creation can show the document was not confidential. |
| Mitsubishi Electric (2002) 4 VR 332 · Hastie Group [2016] NSWCA 305 | The party claiming privilege bears the onus; the other party need not disprove it. |
| National Crime Authority v S (1991) 29 FCR 203 | Privilege must be established on the balance of probabilities; purpose may be inferred. |
| Caltex (1993) 178 CLR 477 | Corporations have no privilege against self-incrimination. |
| Cornwell v The Queen [2007] HCA 12 | An accused cannot rely on s 128 where the evidence tends to prove the offence on trial (s 128(10)). |
| Spence v The Queen [2016] VSCA 113 | Reliance on the privilege is not relevant to credit; a granted certificate may affect credibility — direct the jury on its effect. |
| DAS v VHREOC (2009) 24 VR 415 | Supports the prosecution having to prove later evidence was not derived from certificated evidence. |
| R v Lodhi (2006) 199 FLR 328 | The interests-of-justice factors for compelling a witness under s 128(4). |
| R v Yucel [2017] VSC 807 · Ryan v State of Victoria [2015] VSCA 353 | PII — identify the information with precision; legitimate forensic purpose; class vs contents; categories not closed. |
| State of Victoria v Orman [2024] VSCA 190 | PII — disclosing even redacted material can improperly reveal the protected information (the jigsaw effect); disclosure set aside. |
Key authority watch¶
• Newest: State of Victoria v Orman [2024] VSCA 190 — PII and the jigsaw effect; guard against redactions that reveal the protected material.
• The HCA pillars: Esso (dominant purpose), Mann v Carnell (waiver = inconsistency), Daniels & Baker v Campbell (LPP a substantive right, beyond the witness box), Caltex (no corporate self-incrimination privilege).
• Self-incrimination in practice: Cornwell (the s 128(10) accused limit) and Spence (certificates, the jury and credibility).