Background
EA is the subject of two ongoing murder investigations by NSW Police relating to historical homicides in New South Wales. Following execution of search warrants at EA and his wife LA’s Queensland residence in August and September 2024, police seized handwritten notes prepared by EA, LA’s dictation of those notes on her iPhone, and a draft statement LA created from them. During seizure, EA and LA asserted legal professional privilege and indicated they were represented by solicitor Matthew Cuskelly and barrister David Cole. The primary judge (Elkaim AJ) found the documents subject to legal professional privilege and ordered their return to EA. The Commissioner of Police appealed on four grounds challenging this conclusion and seeking to maintain suppression orders that had been made.
The sequence of events began when EA and LA sought legal assistance following the first search warrant on 20 August 2024. Prior to a conference call arranged for 30 August 2024 with their legal representatives, EA prepared handwritten notes in a notebook, which LA then dictated into her iPhone and converted into a draft statement. These documents were seized on 11 September 2024 when police executed further search warrants. The Commissioner contended the documents lacked the requisite privileged purpose and challenged the primary judge’s reliance on LA’s evidence and inspection of the documents.
The Court’s Holding
The Court of Appeal (Kirk JA, Ball JA, Free JA) held that legal professional privilege properly attached to the handwritten notes and affirmed the primary judge’s orders for their return. The Court rejected the Commissioner’s arguments concerning the admissibility of LA’s evidence and the proper use of document inspection. The Court held that while facts necessary to establish privilege must be proved by admissible evidence, the key fact of purpose may be established by inference from other facts proved by admissible evidence, not solely by direct evidence from the person whose purpose is in question. LA’s evidence was admissible to explain how she obtained EA’s notes and why she prepared the statement. Given that EA was aware of the murder investigation, sought legal representation at the same time, and LA began using the notes to prepare a statement for solicitors immediately thereafter, it was reasonable to infer that EA prepared the notes to assist LA in creating a statement for a privileged purpose.
The Court also rejected the Commissioner’s argument that legal professional privilege is not an actionable right and therefore does not support declaratory and injunctive relief. The Court held that the proper juridical basis for EA’s claim was breach of confidence. By asserting legal professional privilege, EA was asserting that the documents were confidential, and in the context of the proceedings and relief sought, the Commissioner must have understood that EA was claiming the documents should be returned as confidential material. Although EA had not pleaded breach of confidence, the circumstances made this basis sufficiently clear.
On suppression orders, the Court held that no sound justification was offered for the comprehensive suppression orders under the Court Suppression and Non-publication Orders Act 2010 (NSW). The Court found that any justificatory purpose—such as protecting an ongoing criminal investigation—could be achieved through the adoption of pseudonyms for EA and LA without suppressing all information relating to the proceedings and investigation. Accordingly, the suppression orders made by Yehia J and Harrison AJA were revoked.
Key Takeaways
- Legal professional privilege can be established by reasonable inference from admissible evidence, not only by direct evidence from the person claiming privilege, provided admissible evidence establishes the foundational facts supporting that inference.
- Breach of confidence is the proper juridical basis for ordering return of confidential documents obtained by police, particularly when the claimant has asserted privilege and sought relief in a privileged context.
- Suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) require significant justification; courts must consider whether less restrictive alternatives (such as pseudonyms) can achieve the protective purpose without blanket suppression of proceedings.
- When an opposing party invites inspection of documents and inspection reveals facts favoring the privilege claimant, the opposing party cannot complain that inspection was improperly used; however, inspection generally should not substitute for the claimant’s own proof of facts necessary for privilege.
Why It Matters
This decision provides important guidance on the evidentiary foundation for establishing legal professional privilege in circumstances where the document creator does not testify. It clarifies that privileged purpose can be inferred from surrounding circumstances and admissible evidence given by others, reducing the burden on accused persons or investigation subjects who may be unable or reluctant to testify about their legal consultation activities. This is particularly significant for criminal defendants preparing statements in anticipation of legal advice or prosecution.
The decision also establishes that breach of confidence—a more accessible and flexible doctrine than privilege itself—provides an independent basis for courts to order return of confidential documents seized by authorities. By grounding relief in breach of confidence rather than privilege alone, the decision demonstrates how common law confidentiality principles can operate as a practical safeguard against misuse of seized materials. The Court’s firm rejection of overly broad suppression orders reflects contemporary Australian jurisprudence favoring open justice principles and the use of least restrictive means to protect legitimate investigative interests.