Where a conviction appeal relies on fresh evidence in the form of a recanting affidavit by a now-deceased witness, the Crown has a legitimate forensic purpose in accessing documents relevant to the witness's credibility and motivation, and the threshold for the 'on the cards' test is relatively low given the witness is unavailable for cross-examination. A finalised affidavit prepared for use as evidence does not attract client legal privilege under s 119 of the Evidence Act 1995 (NSW). Bare assertions of privilege by a solicitor are insufficient to discharge the onus of establishing privilege on the balance of probabilities.
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