EVIDENCE — public interest immunity — public interest immunity claims made by Commonwealth entities — no issue of principle
Quick Take
1Where a judge is listed to hear both interlocutory privilege claims and the substantive application to which the subpoenaed documents relate, the judge should decline to determine a s 125 Evidence Act challenge to client legal privilege if doing so would require factual findings that risk creating a perception of prejudgment of the central issues in the substantive hearing.
2In assessing public interest immunity claims over the identities of individuals associated with foreign partner agencies, the balance between non-disclosure and disclosure may be struck by replacing names with ciphers or unique identifiers, preserving the accused's ability to understand each individual's involvement without revealing actual identities.
3The three-stage PII balancing process requires the claimant to establish only a real possibility (not probability) of harm to the public interest from disclosure, but the underlying facts said to give rise to that risk must be proved on the balance of probabilities.
