Case No.:

AC-CR-REV-170-1962

Court:

The High Court

Issue No.:

1962

Principles

·  Evidence — Privilege — Lawyer-client communications — Exception — Furtherance of future crime

·  Criminal Law—Concealing stolen property—Penal Code, S. 356—Cannot be charged in addition to charge under Penal Code, S. 353

Accused spoke to an advocate in his professional capacity and stated that he had received a large quantity of money which he knew to be stolen, and wanted to know from the advocate how he could dispose of the money to benefit his sister. When accused refused to accept the advocate’s advice to report to the police, the advocate reported his conversation with accused to the police. At the magisterial inquiry of accused, accused objected to the introduction of the advocate’s testimony concerning accused’s communication to the advocate on the grounds that it was privileged. From the decision of the inquiring Magistrate to admit the evidence, and before the evidence was formally admitted accused appealed to the Province Judge who upheld the decision below on grounds that although the communication was to the advocate in his professional capacity, it was not privileged because accused sought advice in furtherance of a future intended crime. The accused applied for revision of this decision, and the Acting Chief Justice
Held: (1) Communications between a client and his lawyer in the course of that relationship and in professional confidence are privileged unless the legal service was sought in order to enable or aid the client to commit or plan to commit a crime or fraud.

(ii) The act contemplated by the accused about which he sought legal advice from his lawyer, namely, the disposal of stolen property he had received knowing it to be stolen, cannot legally form the basis of another charge’ under Penal Code. S. 356, for assisting in concealment of stolen property when accused is already charged under Penal Code, s. 353, for dishonestly receiving stolen property; therefore the legal service could not have been sought in furtherance of a future crime and the communication is privileged.

Judgment

(CRIMINAL REVISION)

SUDAN GOVERNMENT v. MOHAMED EL HASSAN HASHIM

AND OTHERS

AC-CR-REV-170-1962

Advocates: Mahgoub and Dafalla ... for the accused

Salah El Din Hassan P.J. June 2 1961, HC-CR-REV-496-1962: —This is an application against the decision of the inquiring magistrate overruling an objection raised by advocates Mahgoub and Dafalla and Au Mohamed Ibrahim on behalf of accused. They prayed the court to refuse to admit the testimony of advocate Abdin Ismail on the ground that what he was about to say in court was a confidential information which he received from his client in his professional capacity and is therefore privileged and not subject to disclosure.

From the evidence of Yahya Hussein Ali Nur the facts of the alleged communication are as follows:

On September 10, 1961, advocate Abdin Ismail reported to the police that a week before this date third accused, Mohamed El Tigani Abdel Aziz El Gindi, got in touch with him, and inquired from him as to the legal position of the thief and the receiver of stolen property. He replied that each case depends upon its own circumstances. Later, third accused contacted him again and told him that he received from fourth accused (the husband of his sister) the sum of £S.16000,000/ms, as part of the stolen money in the Nweila case. He explained that he was worried and that he wanted to know how he could best dispose or make away with this money in favour of his sister (wife of fourth accused) and her children. Advocate Abdin Ismail advised him to report to the police. Upon his refusal to do so, advocate Abdin Ismail reported to the police, whence this magisterial inquiry and this objection.

The learned magistrate and both advocates for accused have done good research into the question of confidential communications between advocates and their clients. I have gone through all authorities cited in both the court decision and the memorandum of the appeal. As I see it the law is very clear on this subject.

For the perfect administration of justice, and for the protection of the confidence, which exists between a lawyer and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production. This rule has been embodied in Advocates Ordinance, I9 s. ii, which says respecting this point: “ It is the duty of an advocate to act in the best interests of his client and . . . to keep secret all confidential information our law has no further modifications or exceptions. According to our practice we usually refer to the Indian and English authorities for guidance.

Ratanlal, Evidence, The Indian Evidence Act 258 (12th ed. 1953) comments in section 126 as follows: “No private obligation can dispense with that universal one which lies in every member of the society to disclose every’ design, which may be formed contrary to the laws of society. to destroy the public welfare.” On the same page Ratanlal makes illustrations and further comments which all tend to mean that all communications if being made in furtherance of a criminal purpose are not protected from disclosure.

The English common law was at first rigid as regards this privilege and then gradually by decisions the same exception was recognized. There arc a lot of authorities in this point the most famous of which was the case of R. v. Cox and Railton (1884—85) 14 Q.B.D. 153 It was one of the Crown cases reserved, and ten judges were unanimous on this finding which is summarised in these words:

“All communications between a solicitor and his client are not privileged from disclosure, but only those passing between them in professional confidence and in the legitimate course of professional employment of the solicitor. Communications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it, are not privileged from disclosure.”

In the same case part of the judgment of Lord Brougham in Greenough v. Gaskell, 1 my. & K. 98, was cited which reads as follows: “The reason on which the rule is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice, and to those of the administration of justice. Nor do such communications fall within the terms of the rule. A communication in furtherance of a criminal purpose does not come into the ordinary scope of professional employment.”

As we see it this exception would greatly diminish the value of this privilege as in most cases the privilege must be violated in order to see whether it exists. The secret must be told in order to see’ whether it ought to be kept. As a safeguard for this the judges in R. v.’ Cox and Railton laid down in this matter, that in each particular case the court must determine upon the facts actually given in evidence or proposed to be given in evidence, whether it seems probable that the accused person may have consulted his legal adviser, not after the commission of the crime for the legitimate purpose of being defended but before the com mission of the crime for the purpose of being guided or helped in committing it. The question whether the advise was taken before or after the offence will always be decisive as to the admissibility of such evidence.

In this case before us third accused has committed the offence of receiving stolen property before he came to consult the advocate and when he approached the advocate he did not ask for advice as to how he could defend himself, but he came to take advice as to how he could best make away with or dispose of this stolen property in the interest of his sister and her children with a view to defrauding fourth accused. In other words he wanted the advocate to assist him in concealing, disposing and making away with this stolen property. This is a distinct crime under Penal Code, s. 356, for the future commission of which third accused came to seek advice from his advocate. Accordingly I find that this evidence is not privileged, and the magistrate was quite right in deciding to hear the evidence of the advocate.

Application be dismissed.

M. .A. Hassib J. By authority of the Chief justice. September 25. 1962: —This is an application challenging the decision of the Province Judge. Khartoum dated June 25, 1962, dismissing an application dated May 31, 1962, made by the defence on behalf of first accused. El Tigani Abdel Aziz El Cindi, and second accused. Salah Kamal in the course of the magisterial inquiry against an order made by the magistrate on February 24. 1962, rejecting an objection raised by the defence (advocates Mahgoub and Dafalla) that the evidence of witness, advocate Abdin Ismail, is not admissible as being privileged, and that the said witness should not be allowed to disclose the oral communication passing between him and his client first accused, El Tigani Abdel Aziz El Gindi, which was made in professional confidence.

The facts relating to the question in this application were carefully  summarised by the learned Province Judge. I need not recapitulate them here.

Nice points of law were raised, argued and discussed in the two courts below and the learned Province Judge rightly found as a question of fact that the witness, advocate Abdin Ismail, was consulted by first accused in the latter’s professional capacity. Abdin’s allegation, that the communication between him and first accused was not in professional confidence, has no support in the surrounding circumstances.

The rule as to protection from disclosure of communications between a solicitor and a litigant, or an expected or possible litigant, is highly established, and should not, in any way, be departed from. However hardly the rule might operate in some cases, long experience has shown that it is essential to the due administration of justice that the privilege should be upheld. This statement makes a part of the judgment of Kekewich J. in Williams v. Quebrada Ry. (1895) 2 Ch.D. 751

The rule was established as a matter of public policy for the protection of the client and is founded on the impossibility of conducting legal business without professional assistance and on the necessity in order to render the assistance effectual of securing full intercourse between the two. Jones v. Great Central Rys. [1910] A.C. 4.

Phipson, Evidence 202 (9th ed. 1952) states that professional confidence is one of the matters protected from disclosure. In India the privilege is provided for by the Evidence Act, s. 126, and in Sudan it is protected by the Advocates Ordinance. s. 11.

In the Sudanese statute the rule is not subject to any exception, but in India and in the English law of evidence communications made if furtherance of a fraud or a crime are not protected. Logically, I see no reason why we should not follow the exception when interpreting the Sudan law. Public policy demands that communications in promotion of fraud and crime should not be protected. This is what the learned Province Judge has come to, and I must uphold his conclusion on this point.

This leads me to the consideration of the crucial point whether the communication between first accused and the witness, advocate Abdin, was in furtherance of a crime. The prosecution said it was. The defence said it was not; and the learned Province Judge found it was in furtherance of a crime. This application is made against his decision.

The law of evidence establishing the rule and the exception to the rule made it very clear that fraud or crime must be definite.

In Phipson, Evidence 205 (9th ed. 1952) the author said: “But, in order to displace the prima fade right to protection, there must be some definite evidence produced. or charge made, of fraud or illegality.” This view of the law of evidence is confirmed in the Indian law of evidence by 2 Raju, Commentary on the Evidence Act 1163 (1953).

The principle restricting the rule of R. v. Coz (1884) 14 Q.B.D. 153, was first created by the case of Bullivant v. The Attorney-General for Victoria [1901] A.C. 196, and was later confirmed in O’Rourke v. Darbishire [1920] A.C. 581.

In Bullivant v. The Attorney-General for Victoria [A.C. 196. 201, Earl of Halsbury L.C. said:

“The line which the courts have hitherto taken, and I hope will preserve, is this: that in order to displace the prima facie right of silence by a wit who has been put in the relation of professional confidence with his client, before that confidence can be broken you must have some definite charge either by way of allegation or affidavit or what not. I do not at present go into the modes by which that can be made out, but there must be some definite charge of something which displaces the privilege.”

His Lordship continued at [1901] A.C. 196, 203 to state as follows:

“What you would have to do when you got to trial and the privilege was pleaded would be this: the judge would have to satisfy himself whether there was really established to his satisfaction a charge of fraud or something that would displace the privilege—I do not say prove it—but it would be a reasonable and proper thing under the circumstances to establish the proposition that the issue to be tried was whether there was really a fraud or not, and that this was a piece of evidence relevant to establish the fraud.”

In O’Rourke v. Darbishire [1920] A.C. 581, 613, Lord Sumner said:

“No one doubts that the claim for professional privilege does not apply to documents which have been brought into existence the course of, or in furtherance of, a fraud to which both solicitor and client are parties. To consult a solicitor about an intended course of action, in order to be advised whether it is legitimate or not, or to lay before a solicitor the facts relating to a charge of fraud, actually made or anticipated, and make a clean breast of it with the object of being advised about the best way in which to meet it. is a very different thing from consulting him in order to learn how to plan, execute, or stifle an actual fraud.”

There is no doubt that in order to displace the privilege there must have been a definite charge of a crime not only pleaded, but also really established to the satisfaction of the court, as stated in the judgment of the Earl of Halsbury in Bullivant’s case.

It follows to consider whether there is really a charge of a crime against first accused El Tigani Abdel Aziz El Gindi. The learned Province Judge thought that there was a charge under Penal Code, s. 356, and that that was the ground on which he rejected the application for revision made to him against the order of the magistrate rejecting the objection made by the defence, that the evidence of witness, advocate Abdin, was inadmissible. He thought that the statement made by first accused to the witness might amount to a confession which if accepted in evidence against first accused might make a prima fade charge against first accused.

First accused admitted to the witness that second accused delivered to him the sum of £S. Out of the stolen money from Nweila which is the subject-matter of another case. He further consulted the witness about his intended course of action in order to be advised whether it is legitimate or not in order to make a clean breast.

If there had been a charge against first accused it should have been one for receiving stolen property under Penal Code, s. 3 and not one under Penal Code, s. 356. First accused consulted the witness, advocate Abdin, after the commission of a crime for the legitimate purpose of being defended. He did not consult him for being assisted in committing a crime.

A person who committed an offence under Penal Code, s. 3 cannot be charged of committing another offence under Penal Code, s. 356, when he disposes of the stolen property. This is the law under Penal Code, s. 356, which we quoted from the Indian Penal Code, 5. 414. 3 Gour, Penal Law of India 1950 (6th ed. 1956) in commentary on this section states:

This section is not intended to punish those whose acts constitute a distinct offence punishable as such under section 411 [receiving stolen property and equivalent to our Penal Code s 3531 412 or 413 It is intended only to punish those acts of assistance which fall short of actual receipt or retention of the property

This view of the Indian jurists is supported by the interpretation given by Williams, Criminal Law, s. 138, at 411 (2nd ed. 1961):

“To constitute a man as an accessory after the fact (assisting in the crime commission) he must commit a positive act of assistance. Mere failure to inform the authorities, or failure to prevent an escape, is not sufficient. Nor is it even enough that he agrees not to prose cute. Again the receiver of stolen goods is not as such an accessory to the felony.”

From the above it is very plain that a receiver of stolen property could not be charged for assisting in disposing thereof under Penal Cede, S. 356. This undoubtedly defeats the reasoning of the learned Province Judge who stated the grounds for his decision as follows:

In this case before us first accused has committed the offence of receiving stolen property before he came to consult the advocate and when he approached the advocate he did not ask for advice a. to how he can defend himself but he came to take advice as to how he can best make away or dispose of this stolen property in the

interest of his sister and her children with a view to defraud second accused. In other words he wanted the advocate to assist him in concealing, disposing and making away with the stolen property. This is a distinct crime under Penal Code, s. 356, for which first accused came to seek advice as how he can commit it.”

Assuming that first accused committed the offence of receiving stolen property before he came to the witness, advocate Abdin, for consultation, and assuming that first accused came purposely for advice in order to dispose of the stolen property, there could be no charge displacing the privilege. The offence of assisting under the Penal Code, s. 356, cannot be preferred as already mentioned. Accused did no positive act towards committing either a crime or fraud. The law, therefore, protects him against a charge under the Penal Code, s. 356.

In the result and because of the above-mentioned reasons, I am of opinion that this application must succeed and the order of the learned Province Judge, who took pains in making it, be quashed.

I admit, this case is of unusual gravity and importance; but I must also admit that the rule as to the privilege of the protection from disclosure of communications which pass between the clients and their solicitors is paramount and most essential to the due administration of justice.