10 May

Legal professional privilege

Legal professional privilege protects communications between clients and their lawyers in the defence of criminal prosecutions. The privilege extends to documents which have come into existence for the dominant purpose of use in legal proceedings. It also extends to communications between lawyers or the client and third parties where they are made in contemplation of litigation and for the purposes of the litigation. In R v McNicol [2022] QSC 67, His Honour, Justice Davis SC outlines the steps a lawyer should undertake where the client has advanced an application to set aside their plea on the basis of the solicitor’s conduct.

The Applicant engaged solicitors to act on his behalf in relation to an allegation against the Criminal Code (Cth) 1995:

Between the thirtieth day of November 2017 and the third day of January 2018 at Brisbane or elsewhere in the State of Queensland, Applicant aided, abetted, counselled or procured the commission of an offence by another person against subsection 307.2(1) of the Criminal Code (Cth), namely that the other person imported a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a marketable quantity.”

On the 12th February 2021, the plea of guilty was entered and the Court administered the allocatus.

On the 17th November 2021, the Applicant filed an application seeking to withdraw the plea of guilty.

The Applicant sought to vacate his plea on two basis:

  1. the plea was not a voluntary one as he was overborne by pressure from his lawyers; and
  2. his mental health made him especially vulnerable to that pressure.

At the hearing of the Application to set aside the plea of guilty three witnesses were called including the Applicant’s solicitor at the time the plea of guilty was entered. In his two affidavits, the solicitor explained how the plea came about and what advice was given to the Applicant by both he and counsel. Various notes of the conversations were exhibited to the affidavits.

The conversations and the notes clearly attracted legal professional privilege.

Justice Davis SC at [26]

Was legal professional privilege waived?

His Honour considered whether the Application to set aside the plea of guilty waived the client’s privilege. At [29] Justice Davis said “Very generally speaking, legal professional privilege will apply to communications between lawyers and a client where the client is charged with a criminal offence and the lawyer is acting in defence of the charge. Also very generally speaking, where a client swears affidavits in an application such as this and swears to communications with his lawyers, legal professional privilege will be waived at least to some extent.”

His Honour observed at [32] “There is a trend which I have noticed that lawyers who have formerly acted for a client in criminal proceedings regard privilege as waived in toto once the client swears an affidavit criticising their handling of the client’s matter.”

This approach was described as being “fraught with risk” and one which had the potential to constitute a “serious breach of privacy”.

His Honour outlined the approach which should be adopted by a lawyer once approached by the prosecution:

1. prepare an affidavit in response to the assertions made by the client. That affidavit will no doubt contain privileged information;

2. send the affidavit to the former client’s current solicitors, not the prosecution, and seek instructions as to whether the client accepts that the privilege has been waived;

3. tell the prosecution that an affidavit has been prepared, that it contains privileged information and that instructions have been sought from the former client as to whether the privilege has been waived;

4. if the former client accepts that the privilege has been waived, then the affidavit can of course be delivered to the prosecution. If the instructions are that there is a dispute as to questions of privilege, then the prosecution should be informed of that and told that the lawyer will be in court on the hearing of the application with the affidavit and ready to give evidence and will abide any ruling of the court on the issue of privilege.

Justice Davis SC at [35]


While ultimately there was no issue raised about the waiver of privilege and His Honour was not required to make a ruling, the prudent position would be to adopt the approach suggested by His Honour.


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