Aouad v R; El-Zayet v R

Judgment 1HIS HONOUR: With leave of the court and by separate notices of motion Ramzi Aouad and Naseam El-Zayet ("the applicants") seek the following orders: 1. That the document handed up in this court on 1st June 2012 by the Crown Prosecutor be produced to the court for inspection (pursuant to s 133 of the Evidence Act 1995 (NSW), if that Act applies). 2. A declaration that any privilege over the document handed up in this court on 1st June 2012 by the Crown Prosecutor has been waived. 3. That the applicants have immediate access to the document handed up in this court on 1st June 2012 by the Crown Prosecutor; or alternatively have leave to file in court a Notice to Produce directed to the New South Wales Director of Public Prosecutions returnable immediately seeking only the production of the document handed up in this Court on 1st June 2012 by the Crown Prosecutor. 4. An order that the respondent pay the applicants' costs of these motions. 2The issues raised in the proceedings include whether client legal privilege was waived when a Crown Prosecutor handed to the Judge a document to be placed with the court file and the Judge was informed that the criminal proceedings against the applicants had been terminated by a direction from the Director of Public Prosecutions ("the Director"). Another issue was whether the court became functus officio when a nolle prosequi was entered by the Director. Background 3The applicants had been arraigned on an indictment charging them with the murder of Ahmed Fahda and the trial had been set down to commence on 15 October 2012. On 30 May 2012, the Director directed that there be no further proceedings in relation to the murder of Ahmed Fahda for both applicants. 4An email was sent to the solicitors for the applicants advising them of the direction and the matter was listed on 1 June 2012 in this court. On 31 May 2012 letters were sent to the applicants' legal representatives confirming there had been a direction that there be no further proceedings and advising the parties that the matter was listed on 1 June 2012 for the purpose of "formally entering a nolle prosequi in relation to all counts on the indictment." 5Mr L Lungo, a Crown Prosector, appeared for the Crown and Ms Spence appeared for both the applicants when the matters were mentioned on 1 June 2012 before Barr AJ. The transcript reveals that Mr Lungo said: "Your Honour, there has been a direction by the Director that there be no further proceedings in relation to both accused and, your Honour, can I hand up a document to be filed with the court file." 6His Honour discharged the applicants. Ms Spence told the court that a cost application was foreshadowed. The application for costs was subsequently listed before Hidden J on 22 August 2012 and was opposed by the Crown. 7During the hearing of the costs application, Mr J Pickering SC for the Crown was asked by Hidden J if he was in a position to advise whether there was going to be evidence of the reason for the decision by the Director to direct no further proceedings against the applicants. Mr Pickering responded that he "would not be waiving the privilege in any way." Hidden J adjourned to consider written submissions, but shortly called the parties back, stating: "Mr Crown, you quite properly take the view that the Director exercises its privilege in respect of the reasons for its decision. Unfortunately on one of the files there's a copy of your brief report and the Director's decision. I don't know what it's doing there but it's there. So that, like it or not, I know what the decision was and why. The only solution I can think of, unless anybody else has got any other idea, is that I recuse myself and the documents are returned to the Director." 8The document was returned by his Honour to Mr Pickering. After a brief adjournment, Mr Pickering advised that the best that could be ascertained was that someone in the DPP may have handed it up at the Supreme Court arraignment on 1 June 2012, that no one had authority to waive the Director's privilege and there was no intention that the privilege would be waived. After further discussion, the matter was adjourned on the basis that if the document had come to the attention of the applicants' instructing solicitors, then the argument that may be mounted was that the privilege had been lost. 9When the matter came before Hidden J on 29 September 2012, Mr McLachlan (on behalf of Mr El-Zayet) noted that the transcript of the proceedings before Barr AJ revealed that a document was handed up to the court to be filed. The matter was adjourned for "a motion concerning waiver of privilege" and a timetable was set. Evidence on the motion 10Affidavits of Lloyd Babb, the Director, and John Pickering, a Deputy Director, were read by the Crown. Neither deponent was required for cross-examination. 11In an affidavit affirmed on 24 October 2012, Mr Babb states that he directed no further proceedings in relation to both applicants for the murder of Ahmed Fahda. Mr Lungo was not involved in any aspect of the prosecution and at no stage prior to 1 June 2012 did Mr Babb have any conversation with Mr Lungo about the matter. Mr Babb was unaware that the matter was listed on that day and that Mr Lungo was to appear. He only became aware that Mr Lungo handed up to the court his direction for no further proceedings when he was told by Mr Pickering what had occurred before Hidden J on 22 August 2012. Mr Babb states at pars 8-10: "At no stage, prior to 1 June 2012 did I give any express or implied consent to Mr Lungo, to waive my privilege in relation to the document that he handed up in the Supreme Court on 1 June 2012. Pursuant to my Prosecution Guidelines, particularly guideline 18, there are only very limited circumstances where a Crown Prosecutor has a right to waive my legal professional privilege without my express consent. None of those limited circumstances existed in this case. Had I been aware that Mr Lungo intended to hand up the document that he did on 1 June 2012, I would have immediately indicated to Mr Lungo that the document was privileged and I would not be waiving such privilege." 12In an affidavit sworn 24 October 2012, Mr Pickering states that he had provided "a legal advising report" relating to the possibility of no further proceedings being directed in relation to both applicants for the murder of Ahmed Fahda. Subsequently Mr Babb directed that there be no further proceedings and wrote that direction on page 6 of the legal advice report. Mr Pickering states that Mr Lungo was not involved in any aspect of the applicants' prosecution and provided no legal advice to him in relation to his advice to Mr Babb. Mr Pickering was unaware that the matter was listed before the Supreme Court on 1 June 2012 and that Mr Lungo was to appear. Mr Pickering states at pars 7-9: "At no time prior to Mr Lungo appearing in Court on 1 June 2012 did I have any conversation with Mr Lungo about the matter of Naseam El Zeyat (sic) and Ramzi Aouad. I am now aware that Mr Lungo, on 1 June 2012, in the Supreme Court in Sydney, handed up to the Court page 6 of my advice report that also contained the direction for no further proceedings by Mr Babb. I only became aware that Mr Lungo had handed up this document in Court after Justice Hidden advised myself in the Supreme Court on 22 August 2012, that this document was on the Court file, and he subsequently handed two copies of page 6 down to me. I have maintained custody of those two copies since. At no stage, prior to 1 June 2012 did I give any express or implied consent to Mr Lungo, to waive my privilege in relation to the document that he handed up in the Supreme Court on 1 June 2012." 13Mr Pickering states that if he had been aware that Mr Lungo intended handing up page 6, he would have immediately indicated to Mr Lungo that the document was privileged and he would not be waiving such privilege under any circumstances. Argument 14On the hearing of the motions, Ms J A Girdham SC appeared for the Crown, Mr McLachlan for Mr El-Zayet and Mr Waterstreet with Ms Carroll for Mr Aouad. 15Mr McLachlan submitted that the filing of the document with the court papers - a public record accessible by all parties and even non-parties with the leave of the court - in the precise circumstances in which it was done was an action entirely inconsistent with a continuing intention to maintain any confidentiality over that document. Mr McLachlan contended that it was or ought to have been known, that upon the discharge of both applicants, that a costs application would almost certainly follow and it could be expected that any such applicant would rely, at least in part, upon the DPP document now filed with the court papers. 16Mr McLachlan argued that in such circumstances, any confidentiality cannot be maintained over the document, notwithstanding that neither the Director nor the Deputy Director may have expressly or impliedly consented to the actual document being filed. Any privilege was waived at common law or under s 122 Evidence Act 1995 by the intentional filing of that document in court by Mr Lungo. It was further submitted that Mr Lungo was carrying out, and was not in breach of, his function under the Director of Public Prosecutions Act 1986 (NSW) (DPP Act), the Crown Prosecutors Act 1986 (NSW) and/or the Director's Prosecution Guidelines. 17Mr Waterstreet contended that Mr Lungo was not acting outside of his function when the document was handed up on 1 June 2012. Mr Lungo had communicated a decision of the Director and provided a copy of the decision to the court. Mr Waterstreet pointed out that only page 6 of the report was handed up and it could be presumed that the Crown Prosecutor or another officer of the DPP made a decision at some point not to disclose the full report, but rather just the page evidencing the Director's decision. 18Ms Girdham submitted that if the court has jurisdiction, the court would hold that privilege exists and has not been waived. However, the Crown's position was that the document was handed up at a time, when the court was and remains functus in relation to the proceedings on indictment. The direction for no further proceedings pursuant to the power conferred by s 7(2)(b) DPP Act constituted an entry of nolle prosequi and neither the listing before the court on 1 June 2012 or the order for discharge was required at law. 19Ms Girdham contended that the document was provided to the court and not otherwise disclosed which demonstrated that it was provided on a confidential basis. The inference to be drawn from the handing up of the document was that there was an intention to provide written confirmation to the court that the direction announced had been made under the hand of the Director. The Crown Prosecutor's act of handing the privileged document to the court "to be filed on the court file" was not authorised, was wrong and could not amount to waiver of the Director's privilege. Ms Girdham argued that there was no scope for any imputed waiver of privilege in relation to the material. 20Another argument advanced was that the handing up of the document "to be filed on the court file" did not equate to disclosure to another person, especially as the document was not otherwise disclosed. Ms Girdham contended that the submission that the contents of the court file are available for inspection at large should be rejected. 21There was some discussion as to how two copies of page 6 of Mr Pickering's legal advising report came to be on the court file, but I am satisfied on the balance of probabilities that the only rational inference is that Mr Lungo handed up to Barr AJ two copies of the document as there were two accused. Is the court functus officio? 22The Crown's position is that the handing up of the document was made at a time when the court was and remains functus in relation to the proceedings on the indictment. 23There is strong support for the contention that the direction for no further proceedings by the Director pursuant to the power conferred by s 7(2)(b) of the DPP Act constitutes an entry of nolle prosequi: R v Howard (1992) 29 NSWLR 242 at 249; R v GKA (1998) 99 A Crim R 491 at 494; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at 35-36 [181]. In Beckett v New South Wales [2013] HCA 17; (2013) 297 ALR 206, the plurality (French CJ, Hayne, Crennan, Kiefel, and Bell JJ) said at 218 [43]: "It is far from clear when the older authorities speak of the entry of a nolle prosequi as 'putting the defendant sine die' that more is being said than that it does not bar a subsequent prosecution. It is rare for proceedings to be revived after termination by nolle prosequi, and there is an absence of authority on the point. The preferable view, which accords with practice, is that stated in Allen: the entry of a nolle prosequi brings proceedings on the indictment to an end without barring a subsequent prosecution on a fresh indictment." 24And at 220 [53]: "There is no principled reason to distinguish a prosecution terminated by the entry of a nolle prosequi by the Attorney-General or a direction by the director under the statutory power from other forms of termination falling short of acquittal." 25In GKA, Cole JA (with whom Gleeson CJ and Barr J agreed) said at 496: "If follows, in my view, that once the Director of Public Prosecutions exercised the power under s 7(2)(b) and communicated that to the court, the court was deprived of a power to further proceed upon the current indictment." 26Barr AJ was deprived from further proceeding on the indictment by the entry of nolle prosequi. However, his Honour was not prevented from formally discharging the applicants and standing the proceedings over for a costs application. I do not think that his Honour was functus officio when the document was handed up to him by the Crown Prosecutor as his Honour did not proceed further on the indictment. 27The entry of the nolle prosequi terminated the proceedings against the applicants on the indictment for the murder of Ahmed Fahda, but it does not prevent a costs application being instituted by them for the costs that they have incurred in the proceedings. The costs application is not a proceeding on the indictment. The issue of waiver arose in the proceedings for costs and this court is not functus officio in respect of that application. I reject the Crown's argument. Does client legal privilege apply? 28The onus of establishing a claim for client legal privilege lies upon the Crown. 29Section 117(1) of the Evidence Act relevantly defines the term "client" as follows: "client includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), ... (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, ..." 30The definition of the term "lawyer" in s 117 includes: "(a) an Australian lawyer ..." 31In R v Bunting [2002] SASC 412; (2002) 84 SASR 378, Martin J was of the view that legal professional privilege is capable of applying to communications between a Director of Public Prosecutions (SA) and DPP practitioners. In R (Cth) v Petroulias (No 22) [2007] NSWSC 692; (2007) 213 FLR 293, Johnson J accepted at 307 [56] the Commonwealth Director of Public Prosecutions' (CDPP) submission that the CDPP was the "client" as defined in s 117(1) and lawyers working within the office of the CDPP were persons providing legal services to the CDPP as the client. There is no reason why the same conclusion does not apply to the relationship in this case between the Director and Mr Pickering. The Director is the client to whom Mr Pickering, as a Deputy Director, and an Australian lawyer provides legal services. There is nothing in the DPP Act that is inconsistent with this conclusion. 32Section 118 and 119 of the Evidence Act are as follows: "118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party." 33It appears from Mr Pickering's affidavit that the document handed up to Barr AJ by Mr Lungo was page 6 of his legal advice report relating to the possibility of no further proceedings being directed in relation to both applicants for the murder of Ahmed Fahda. Page 6 also contained the direction by the Director for no further proceedings. The contents of page 6 are a confidential communication made for the dominant purpose of Mr Pickering providing legal advice to the Director about pending proceedings, being the re-trial of the applicants. Both ss 118 and 119 of the Evidence Act are engaged. The document is a confidential communication that is protected by client legal privilege, unless the privilege has been waived. The applicants do not contend otherwise. Has client legal privilege been waived? 34The loss of client legal privilege is governed by s 122 of the Evidence Act and by common law principles: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; Cooper v Hobbs [2013] NSWCA 70. 35The applicants bear the onus of persuading the court that client legal privilege has been lost: R (Cth) v Petroulias (No 24) [2007] NSWSC 783 at [9]. Although the court has the power to inspect a document to determine a claim for privilege, I do not think in this case that it is necessary for me to do so. 36Section 122 relevantly provides: "(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: (i) in the course of making a confidential communication or preparing a confidential document, or ... (iii) under compulsion of law, or ..." 37At common law, the benefit of legal professional privilege could be waived by a client. Waiver of the privilege could be express or implied. The majority (Gleeson CJ, Gaudron, Gummow, and Callinan JJ) said in Mann v Carnell at 13 [28]-[29]: "At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that 'waiver' is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege... Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law'. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege." (emphasis added) 38It is well established that consent under s 122(1) includes consent that will be imputed to the client on the same principle where, at common law, a client will be taken to have waived privilege, even though the client did not subjectively intend to do so: Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297 at [29]-[33]; R v Petroulias (No 24) at [37]. 39Before proceeding further, it is necessary to consider the powers and functions of the Director and a Crown Prosecutor. 40The power of the Director to enter a nolle prosequi is found in s 7(2)(b) of the DPP Act. Section 7 relevantly provides: "7 Principal functions (1) The principal functions and responsibilities of the Director are: (a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court, ... (2) The Director has the same functions as the Attorney General in relation to: (a) finding a bill of indictment, or determining that no bill of indictment be found, in respect of an indictable offence, in circumstances where the person concerned has been committed for trial, (b) directing that no further proceedings be taken against a person who has been committed for trial or sentence, and (c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial." 41The Director may not delegate the exercise of the function to direct that no further proceedings be taken against a person who has been committed for trial or sentence, except to a Deputy Director: s 33(2)(b) DPP Act. 42The Crown Prosecutors Act expressly provides in s 5(3) that a Crown Prosecutor does not have the function of determining that no bill of indictment be found or directing that no further proceedings be taken against a person. The functions of a Crown Prosecutor are (s 5(1)): "(a) to conduct, and appear as counsel in, proceedings on behalf of the Director, (b) to find a bill of indictment in respect of an indictable offence, whether or not the person concerned has been committed for trial in respect of the offence, (c) to advise the Attorney General or Director in respect of any matter referred for advice by either of them, and (d) to carry out such other functions of counsel as the Attorney General or Director approves." 43It has been said that the procedure for the entry of a nolle prosequi is normally effected by "a simple memorandum upon the indictment by the Attorney-General (or by an authorised person)": GKA at 494. The evidence before me provides no explanation for the handing up of the document by the Crown Prosecutor. 44When a Crown Prosecutor appears in court on behalf of the Director, the Crown Prosecutor is providing legal services for the Director who is his client. When Mr Lungo appeared on 1 June 2012, the Director was his client. The Director had not authorised Mr Lungo to hand up page 6 of the legal advice report nor was the Director aware that Mr Lungo intended to hand up the document. 45The Director's Prosecution Guidelines No 12 indicates that the disclosure of reasons for decisions made in the course of prosecutions or of giving advice remains the province of the Director. The Guideline, however, notes that "the terms of advice given to or by the Director may be subject to legal professional privilege". Guideline 18 records a prosecutor's duty of disclosure but confirms that "legal professional privilege ordinarily will be claimed against the production of any document in the nature of an internal ODPP advising (eg. a submission to the Director...)". None of the matters referred to in Guideline 18 permitted Mr Lungo to waive client legal privilege for any part of the Deputy Director's legal advice report. He neither had the express nor implied consent of the Director to disclose the document. 46It does not matter that another lawyer in the Director's office may have given consideration to page 6 of the advice being handed up to the Judge. The privilege could only be waived by the Director. There is no inconsistency between the Director's conduct and the maintenance of the confidentiality. The handing up of the document was not authorised by the Director and in the circumstances he cannot be deemed to have consented, nor can consent to waiver be implied. 47I conclude that client legal privilege was not waived when the document was handed up by the Crown Prosecutor. Accordingly, the applicants' motions must fail. Orders 48I make the following orders: (1)Ramzi Aouad's notice of motion is dismissed. (2)Naseam El-Zayet's notice of motion is dismissed. 49I will hear the parties on costs.