El-Zayet v R [2013] NSWSC 760
Attorney-General (NT) v Kearney [1985] HCA 60
(1985) 158 CLR 500
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
(1998) 153 ALR 393
Banksia Mortgages Limited v Croker [2010] NSWSC 535
Carnell v Mann (1998) 89 FCR 247
(1998) 159 ALR 647
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3
Source
Original judgment source is linked above.
Catchwords
El-Zayet v R [2013] NSWSC 760
Attorney-General (NT) v Kearney [1985] HCA 60(1985) 158 CLR 500
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526(1998) 153 ALR 393
Banksia Mortgages Limited v Croker [2010] NSWSC 535
Carnell v Mann (1998) 89 FCR 247(1998) 159 ALR 647
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3(1997) 188 CLR 501
Kang v Kwan [2001] NSWSC 698
Mann v Carnell [1999] HCA 66(1999) 201 CLR 1
Marshall v Prescott (No 4) [2012] NSWSC 992
Northern Territory of Australia v Mengel [1995] HCA 65(1995) 185 CLR 307
Osland v Secretary to the Department of Justice (2008) 234 CLR 275[2008] HCA 37
Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357(2004) 207 ALR 217
R (Cth) v Petroulias (No 22) (2007) 176 A Crim R 309[2007] NSWSC 692
Re Southland Coal Pty Ltd (Recs & Mgrs Apptd) (in liq) (2006) 203 FLR 1[2006] NSWSC 899
R v BellEx parte Lees [1980] HCA 26(1980) 146 CLR 141
R v Burrell (Supreme Court (NSW), Wood CJ at CL, 1 May 2003, unreported)
Sparnon v Apand Pty Ltd (1996) 68 FCR 322(1996) 138 ALR 735
State of New South Wales v Jackson [2007] NSWCA 279
Trade Practices Commission v Sterling (1979) ATPR 40-121
(1979) 36 FLR 244
Waterford v Commonwealth [1987] HCA 25
Judgment (13 paragraphs)
[1]
New South Wales Commissioner of Police (Subpoenaed Party)
Representation: Counsel:
A Bannon SC & A Maroya (Plaintiff)
P Saidi (Defendant & Subpoenaed Parties)
HER HONOUR: There are two motions before this Court for determination. By notice of motion filed 3 March 2015, the Director of Public Prosecutions seeks an order that in respect of the subpoena to produce issued by the plaintiff on 8 December 2014, he be excused from producing documents pursuant to Rule 1.9 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") on the basis that the documents captured by the subpoena are subject to client legal privilege. By notice of motion filed 30 March 2015, the NSW Commissioner of Police seeks an order that the subpoena to produce issued by the plaintiff on 3 December 2014 be set aside under UCPR 33.4.
The plaintiff is Janice Hamilton ("Ms Hamilton"). She was represented by Mr Bannon SC. The defendant is the State of New South Wales ("State of NSW"). The Director of Public Prosecutions ("the DPP") and the New South Wales Commissioner of Police ("the Commissioner of Police") are the subpoenaed parties. The DPP and the Commissioner of Police were represented by Mr Saidi, as counsel for the State of NSW. The issue in relation to the subpoena addressed to the Commissioner of Police was resolved before the hearing. The only remaining issue is that of costs and it will be dealt with at the end of this judgment.
Ms Hamilton relied upon the affidavit of her solicitor Harland Sebastian Koops sworn 24 March 2015. The DPP relied on two affidavits of Johanna Pheils sworn 12 March 2015 and 20 March 2015.
[4]
Background facts
By amended statement of claim filed 16 April 2014, Ms Hamilton alleges that four police officers, namely Detective Inspector Paul Jacob, Detective Sergeant Stuart Owen, Detective Senior Constable Graham Norris and Detective Senior Constable John Southgate ("the police officers"), were each guilty of the tort of misfeasance in public office. The alleged misfeasance by each of the police officers occurred between April 2005 up until the death of Ms Hamilton's de facto spouse, Ken Dyers ("Mr Dyers").
From 2002 to 2005, the NSW Police Force conducted investigations into allegations of sexual offences perpetrated by Mr Dyers against two complainants ("Complainant 1 and Complainant 2"). Complainants 1 and 2 were both children whose parents were members of an organisation called Kenja, of which Ms Hamilton and Mr Dyers were the founders and leaders. The sexual abuse purportedly occurred during individual counselling sessions conducted by Mr Dyers at the Sydney premises of Kenja.
In February 2005, following a case review, the investigations into the allegations made by Complainants 1 and 2 were suspended without any charges being laid against Mr Dyers.
On 8 April 2005, one of the police officers released a written report ("the Norris Report") recommending that an investigation and enquiry be undertaken into Mr Dyers. In October 2005, following the recommendations in that report, the NSW Police Force set up "Strike Force Caroola" to re-investigate the allegations made by Complainant 1 and Complainant 2 against Mr Dyers. The police officers were all involved in Strike Force Caroola.
On 27 October 2005, Mr Dyers was arrested in relation to the allegations. On 28 October 2005, a bail hearing took place at the Sutherland Local Court, with Mr Dyers being released on bail subject to conditions. On 24 and 25 May 2006, committal proceedings were held at the Downing Centre, and at the conclusion of such proceedings Mr Dyers was committed for trial, with bail being continued.
On 8 June 2006, Mr Dyers was indicted on 21 counts of aggravated indecent assault and aggravated sexual intercourse without consent. In September 2006, Mr Dyers made an application for a stay of the criminal proceedings. The application was opposed by the DPP. On 30 April 2007, the stay application was heard by Phegan DCJ over three days. On 3 May 2007, Phegan DCJ dismissed the application for a stay and decided that Mr Dyers was unfit to stand trial. On 7 June 2007, the Mental Health Review Tribunal determined, pursuant to the provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) that Mr Dyers would not become fit for trial within twelve months. Bail was continued.
[5]
The pleading framework
The basis of the misfeasance allegation pleaded in the amended statement of claim is that by releasing the Norris Report, and through Strike Force Caroola, the police officers acted upon accusations made by Complainant 1 against Mr Dyers in circumstances in which they knew that Complainant 1 was an unreliable witness, or failed to properly consider or investigate the allegations made by Complainant 1, or procured or caused to be procured an allegation by Complainant 1 that she was sexually assaulted by Mr Dyers. As Ms Hamilton allegedly witnessed Mr Dyers' suicide, she claims damages for psychological injury and harm as a result of the alleged misfeasance of the police officers.
By amended defence filed 19 December 2014, the State of NSW has denied any wrongdoing on the part of the police officers, has placed in issue firstly, whether or not any of the police officers have committed the tort of misfeasance in public office; secondly, any responsibility for the causation of the death of Mr Dyers, and thirdly, any foreseeability on the part of the police officers with respect to the death of Mr Dyers. In addition, any duty of care owed to Ms Hamilton is disputed. The defendant has raised a Limitation Act 1969 (NSW) defence.
[6]
Misfeasance in public office
While the law is still developing with respect to the tort of misfeasance in public office, what appears clear on the current state of the law is that, in order to succeed, a plaintiff must establish at least the following:
(i) That the alleged wrongdoer is a public officer (this is conceded in the case of the four nominated police officers);
(ii) Such public officer has exercised or failed to exercise a power as a public officer;
(iii) Maliciously;
(iv) Causing damage to the claimant of a type which was foreseen by the defendant: Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, Deane J at 370.
The critical element for the purpose of these proceedings is malice on the part of each of the police officers.
[7]
Subpoena to the Director of Public Prosecutions
On 8 December 2014, this Court issued a subpoena, at Ms Hamilton's request addressed to the DPP. After negotiation between the parties, on 10 February 2015 Ms Hamilton provided a revised schedule to the subpoena. As it now stands, the subpoena requests the following:
"Copies of all documents held by the DPP in the file concerning the prosecution into Kenneth Emmanuel Dyers for the period 2005-2007, which record:
Matters raised by the DPP in relation to the adequacy of the Police investigation into Kenneth Emmanuel Dyers generally, or the adequacy of any particular aspect of such investigation;
Communications with the NSW Police in relation to (i), above, and
Any requests by the DPP for further investigatory work to be undertaken by the Police."
This subpoena aims to retrieve documents held and created by the DPP in relation to communications with the police officers after the charges were first laid against Mr Dyers in 2007.
On 16 February 2015, solicitors from the Crown Solicitor's Office informed the solicitors for Ms Hamilton that "all documents captured by the revised schedule to the subpoena are subject to a claim of legal professional privilege" by the DPP. By letter dated 17 February 2015, Ms Hamilton's legal advisors advised the Crown Solicitor that Ms Hamilton did not accept that the documents were the subject of a proper claim of legal professional privilege. On 25 February 2015, solicitors from the Crown Solicitor's Office wrote to Ms Hamilton's solicitor stating that the claim for client legal privilege was made on the basis that the documents were created by legal officers of the Office of the Director of Public Prosecutions ("ODPP") for the dominant purpose of existing litigation, being the then criminal proceedings involving Mr Dyers.
Ms Pheils, a solicitor employed by the ODPP, sets out the documents located within the ODPP with respect to the claim for client legal privilege is made (Aff. 12 March 2015 at [20]). She says that those documents comprise materials created or gathered for the dominant purpose of providing legal advice to a client or legal services relating to court proceedings. Ms Pheils provided a brief description of each document as follows:
Internal memoranda, notes and summaries created by officers of the ODPP.
Notes of conference between solicitors of the ODPP and officers of the NSW Police Force.
[8]
Client legal privilege
The DPP objects to producing the documents pursuant to UCPR 1.9(3), and cannot be compelled to do so unless and until such an objection is overruled.
The relevant provisions of the Evidence Act are ss 118 and 119. They read:
"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."
The effect of s 118 is that, where a client objects, the Court is not to compel the production of material in answer to a subpoena which would result in the disclosure of confidential communications made between two or more lawyers acting for the client, or confidential documents prepared by a lawyer or another person, for the dominant purpose of providing legal advice to the client. The effect of s 119 is that the Court will not compel production of evidence of confidential communications made between a lawyer acting for the client and another person, or the contents of a confidential document prepared, for the dominant purpose of the client being provided with professional legal services in relation to actual or pending litigation in which the client was, or might have been, a party.
"Confidential communication" and "confidential document" are defined in s 117 of the Evidence Act to incorporate a requirement of "an express or implied obligation not to disclose its contents, whether or not the obligation arises under law".
[9]
Is the material privileged?
Counsel for the State of NSW, on behalf of the DPP, submitted that first and foremost, Ms Hamilton has failed to make out the necessary prima facie case in challenging the DPP's claim for privilege, in that she has presented no material capable of supporting any assertion to a prima facie level that there is a foundation in fact for such a challenge: R v Burrell (Supreme Court (NSW), Wood CJ at CL, 1 May 2003, unreported) at [59], citing Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 at 556 and Kang v Kwan [2001] NSWSC 698.
Further, the State of NSW submitted that it is clear, when one has regard to the contents of both affidavits of Ms Pheils and upon an inspection of the documents themselves, that the documents were created for the dominant purpose of providing legal advice to the DPP; as (1) at the time the documents were created (from 2005 to 2007), there were criminal proceedings on foot involving the DPP, the investigating police officers and Mr Dyers; (2) the documents were created by legal representatives attached to the ODPP; (3) the information contained in the documents related to the conduct of the criminal proceedings against Mr Dyers; (4) the information in the documents was sought by ODPP solicitors in order to advise the DPP and the investigating police officers about the conduct of the prosecution; and (5) the documents contain confidential communications between the legal representatives for the ODPP and the investigating police officers.
Counsel for the State of NSW submitted that the lists and descriptions of documents set out in the affidavits of Ms Pheils disclose sufficient information to justify that the dominant purpose of their creation was to provide legal advice to a client or legal services relating to court proceedings; and that an inspection of the documents by this Court would confirm this.
Although Ms Hamilton accepted that the documents sought could be the subject of a valid claim for privilege, she argued that Ms Pheils' description of the documents is an unsubstantiated opinion which cannot be tested, and that as it is not possible to ascertain the dominant purpose of the creation of the documents merely from those descriptions, this Court should inspect the material.
In any event, Ms Hamilton submitted that the documents do not attract client legal privilege because it is "entirely possible" that they lack the necessary quality of confidentiality; and as it is unclear whether when they were created, either the police officers or the ODPP solicitors involved were under an express or implied obligation not to disclose their contents. Ms Hamilton argued that Ms Pheils' affidavits are silent as to whether any obligation of confidence existed, and such an obligation cannot exist in a vacuum: State of New South Wales v Jackson [2007] NSWCA 279, Giles JA (Mason P and Beazley JA agreeing) at [48]-[60].
[10]
Has privilege been waived under s 122?
Senior counsel for Ms Hamilton submitted that client legal privilege has been waived.
Loss of client legal privilege is addressed in s 122 of the Evidence Act. It relevantly reads:
"122 Loss of client legal privilege: consent and related matters
(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
…
(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or
(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers)."
[11]
Considerations of fairness
Ms Hamilton submitted that even if the documents were disclosed to the Crown Solicitor in confidence, "considerations of fairness" apply in the circumstances of this case so that privilege has been waived (see Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 15).
According to Ms Hamilton, the interest of the DPP originally protected by client legal privilege was his interest in ensuring that criminal proceedings against Mr Dyers were prosecuted effectively and expeditiously, and that although the significance of that interest has diminished greatly due to Mr Dyer's death, the DPP still seeks to maintain privilege over the documents. Whatever legitimate interest the DPP now has in maintaining that privilege, that course has provided the State of NSW's legal representatives with a potentially significant forensic advantage over Ms Hamilton in these proceedings. The State of NSW's legal representatives have had access to sensitive and very possibly informative material that Ms Hamilton has not. He argued that that material might well assist her case, as it goes specifically to the issue of the adequacy of the police investigation. According to Ms Hamilton, it would be contrary to a higher public interest to give effect to the DPP's privilege in these circumstances, referring to Gibbs CJ's remarks in R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at 147; as well as in Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 515.
Counsel for the State of NSW rejected Ms Hamilton's public interest argument on the basis that no factual material was provided in support of that argument and in effect, no public interest considerations arise.
As previously stated, client legal privilege has not been waived. It is my view that this is not a case where the interests of justice should dictate that that result should be otherwise. Any forensic advantage gained by the State of NSW over Ms Hamilton by claiming privilege over the documents is not so significant that the public interest warrants their disclosure.
Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the DPP's costs of the motion filed 3 March 2015.
[12]
Subpoena to the Commissioner of Police - costs
On 3 December 2014, Ms Hamilton filed a subpoena that was later served upon the Commissioner of Police requiring the production of various documents. Objections were taken on behalf of the commissioner to the subpoena as a whole on the basis that its terms were too wide, it was vexatious and oppressive and that many of the documents sought lacked a legitimate forensic purpose in regard to the issues in the proceedings. Negotiations subsequently took place but failed to secure a resolution. On 30 March 2015, the Commissioner of Police filed a notice of motion to set aside the subpoena.
On 18 May 2015, the parties agreed that if the diaries of Complainant 1 were produced the other documents sought would not be pressed. At the hearing before this Court, the only issue to be decided is costs.
Ms Hamilton's position was that the parties should bear their own costs. She referred to Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, McHugh J at 624-5 referred to a number of situations in which a costs order may be made against a party to litigation not determined on its merits, noting that "the court cannot try a hypothetical action between the parties". McHugh J at 624 stated that the trying of a hypothetical action between the parties would effectively "burden the parties with the costs of a litigated action which by settlement or some extra-curial action they had avoided". McHugh J at 625 observed that:
"If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases."
Counsel for Ms Hamilton submitted that the conduct of the parties in these circumstances bespeaks a result which embodies the rationale of law, practice and policy which underpins the decision in Lai Qin. Negotiations took place, which on any view of it, were appropriate: see Ken Tugrul v Tarrants Financial Consultants Pty Limited ACN 086 674 179 (No 5) [2014] NSWSC 437 at [64]).
Counsel for the State of NSW argued that due to the excessive width of the subpoena, Ms Hamilton should bear the costs of the motion.
[13]
Amendments
28 October 2015 - An order to cover sheet and last page of judgment.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 October 2015
Sometime in 2007, a further complainant ("Complainant 3") made allegations of sexual abuse against Mr Dyers. In 2003, Complainant 3 had been interviewed by police, and had denied that she had been sexually assaulted by Mr Dyers. She provided reasons for retracting her denial, and assisted police with their investigations relating to her allegations. She was interviewed by the police officers, as were other witnesses.
On 24 July 2007, one of the police officers wrote to the Mr Dyers' solicitors informing them that he was continuing investigations into allegations by Complainant 3, and a request was made that Mr Dyers be interviewed in relation to these allegations.
On 25 July 2007 at approximately 9.00 am, Mr Dyers was informed by his solicitor of the request made for a formal police interview. On 25 July 2007, shortly after being notified of this request, Mr Dyers committed suicide. Ms Hamilton alleges that she witnessed the suicide of Mr Dyers.
Draft submissions created by officers of the ODPP.
On 20 March 2015, Ms Pheils swore a further affidavit. She deposed that further material had been located that is also captured by the amended subpoena. Apart from one document which has been produced, a claim for client legal privilege is also made in relation to the further documents. Ms Pheils deposed that the further documents are materials created or gathered for the dominant purpose of providing legal advice to a client or legal services relating to court proceedings. They are:
Internal emails between ODPP solicitors, an ODPP Trial Advocate and a ODPP Crown Prosecutor regarding status of the criminal proceedings, evidence and further conduct of the criminal proceedings; and
Notes of conferences and telephone conversations between ODPP solicitors and officers of the NSW Police Force regarding obtaining further evidence for the criminal proceedings.
It was not in issue that under s 117(1)(c)(ii) of the Evidence Act 1995 (NSW), the DPP meets the definition of "client" for the purposes of ss 118 and 119 and as such is entitled to make a claim of client legal privilege. Under s 23 of the Director of Public Prosecutions Act 1986 (NSW), a solicitor at the ODPP acts as a solicitor of the DPP in the exercise of the DPP's functions and instructs the Crown Prosecutors and other counsel on behalf of the DPP: see R (Cth) v Petroulias (No 22) (2007) 176 A Crim R 309; [2007] NSWSC 692 at [56]; Aouad v R; El-Zayet v R [2013] NSWSC 760 at [31]. Hence, the main issues are firstly, whether the subpoenaed material is privileged, and secondly, whether there has been a loss or waiver of any such privilege.
The DPP bears the onus of establishing the basis of the claim for privilege on the balance of probabilities: Re Southland Coal Pty Ltd (Recs & Mgrs Apptd) (in liq) (2006) 203 FLR 1; [2006] NSWSC 899 at [14]. Ms Hamilton, as the applicant, bears the onus of persuading this Court that client legal privilege has been lost: R (Cth) v Petroulias (No 24) [2007] NSWSC 783 at [9]; Aouad at [35].
The "dominant purpose" of the communications in ss 118 and 119 must be determined objectively: Banksia Mortgages Limited v Croker [2010] NSWSC 535 at [13]. It will be the purpose which, at the time, led to the making of the communication or the preparation of the document: Carnell v Mann (1998) 89 FCR 247; (1998) 159 ALR 647. The Court must consider whether the communication would have been made, or the document prepared, even if the suggested dominant purpose had not existed: S Odgers, Uniform Evidence Law, 10th Ed at [1.3.10520] citing Sparnon v Apand Pty Ltd (1996) 68 FCR 322; (1996) 138 ALR 735 at 741 per Branson J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526; (1998) 153 ALR 393; and Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357; (2004) 207 ALR 217.
The possible classes of documents protected by client legal privilege were set out by Lockhart J in Trade Practices Commission v Sterling (1979) ATPR 40-121; (1979) 36 FLR 244 at 245-246 (and approved by Deane J in Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 87). They are:
"(a) Any communication between a party and his professional legal advisor if it is confidential and made to or by the professional advisor in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent or either of them.
(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used.
(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance.
(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf.
(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence.
(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action.
(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent."
Section 133 of the Evidence Act provides that the Court may order that the document be produced to it for the purposes of determining the claim of privilege: Grant v Downs (1976) 11 ALR 577; (1976) 135 CLR 674 at 689.
In relation to whether an obligation of confidentiality existed, counsel for the State of NSW submitted that that confidentiality arises out of a solicitor client relationship, as well as from clause 15 of the Code of Conduct applicable to solicitors within the ODPP. It reads:
"15. PUBLIC COMMENT/CONFIDENTIALITY
Officers will:
not publish or disseminate outside the ODPP any internal email, memorandum, instruction, letter or other document, information or thing without the author's or owner's consent, unless this is necessary for the performance of official duties or for the performance of union duties or is otherwise authorised by law (for example, pursuant to a legislative provision or court order);
within the constraints of available facilities, securely retain all official information, especially information taken outside the ODPP. Information should not be left unattended in public locations, including unattended in motor vehicles or unsecured courtrooms, unless there is no reasonable alternative course available in the circumstances. The degree of security required will depend upon the sensitivity of the material concerned and the consequences of unauthorised disclosure…"
At the request of both parties, I have inspected the documents. I am satisfied firstly, that the documents were created for the dominant purpose of providing legal advice to the DPP and professional legal services relating to the criminal proceedings against Mr Dyers, in which the DPP was a party; and secondly, that although there are no express notations on the documents regarding their confidentiality, the ODPP solicitors and the police officers were under an obligation not to disclose their contents. Thus, the documents sought to be produced are the subject of client legal privilege.
Pursuant to 122(2) privilege will be lost if a client has acted in a manner inconsistent with the maintenance of the privilege. The question of inconsistency will "depend upon the circumstances of the case" as "questions of waiver are matters of fact and degree": see Osland v Secretary to the Department of Justice (2008) 234 CLR 275; [2008] HCA 37 at [49]. Pursuant to s 122(3), a client will be taken to have acted in an inconsistent manner if the substance of the material over which privilege is asserted has been "knowingly and voluntarily disclosed" to another person, with the "express or implied consent" of the client or other party.
Ms Hamilton submitted that the DPP has acted in an inconsistent manner by knowingly and voluntarily disclosing the documents to the Crown Solicitor, an agent for the State of NSW, in September 2014 and that possibly others, including the officers of the NSW Police Force whose conduct is impugned in the proceedings, have had access to the documents or knowledge of their contents.
The State of NSW conceded that the documents were knowing and voluntarily disclosed by the DPP to the Crown Solicitor, but argued that since the DPP, by September 2014, had engaged the Crown Solicitor to act on his behalf, s 122(5) applies so that there is no waiver. By that time, the NSW Police Force had also instructed the Crown Solicitor.
Counsel for the State of NSW submitted that the DPP has not acted in a manner inconsistent with the maintenance of the privilege as the interests of the DPP and of the NSW Police Force are one and the same in these proceedings. He argued that since the Crown Solicitor was already acting for the DPP, the disclosure falls within s 122(5)(a) and (b), and under both sections, a disclosure by the DPP to the Crown Solicitor, being the same lawyer providing professional legal services to both the DPP and the NSW Police Force, is not a waiver of privilege. Under s 3 of the Crown Proceedings Act 1988 (NSW), the DPP and the NSW Police Force fall within the definition of "Crown". Both are represented by the Crown Solicitor, and if there is a flow of information from one Crown agency to another for the purpose of pending proceedings, or for the purposes of obtaining legal advice, then privilege applies in terms of the sharing of that information.
Ms Hamilton disputed the fact that the DPP had instructed the Crown Solicitor before September 2014. She accepted that the Crown Solicitor was instructed by the DPP in December 2014, but not before. The State of NSW was given leave to file affidavit evidence in order to clarify the exact date that the Crown Solicitor was engaged.
On 3 July 2015, the affidavit of Helena Christina Maamary was filed by the State of NSW. In her affidavit, Ms Maamary deposed that she is a solicitor from the Crown Solicitor's Office who has the day to day supervision of this matter on behalf of the State of NSW. She says that on 28 February 2013, the NSW Police Force instructed the Crown Solicitor to act on its behalf in these proceedings. On 25 July 2014, the DPP formally instructed the Crown Solicitor to act on his behalf in relation to his interests in these proceedings; and on 9 December 2014, the DPP instructed the Crown Solicitor to act on his behalf, not only with respect to the matter generally, but specifically with respect to issues arising from the service of the subpoena. The actual letter of instructions from the DPP to the Crown Solicitor was not attached on the basis that the contents of that letter were also the subject of client legal privilege. I accept Ms Maamary's evidence as she is a solicitor and an officer of the Court.
It follows that I am satisfied that in September 2014, when the subpoenaed documents were disclosed to the Crown Solicitor, the agent for the State of NSW, the Crown Solicitor also acted for the DPP. In September 2014, the Crown Solicitor also acted for the NSW Police Force. In my view, in such circumstances, a sharing of privileged information between those Crown agencies falls under s 122(5)(b) as they were joint clients.
So far as s 122(5)(c) is concerned, I am satisfied that the Crown agencies share a "common interest" in the anticipated legal proceedings instigated by Ms Hamilton. In Marshall v Prescott (No 4) [2012] NSWSC 992, Bellew J at [62] stated that a mere common interest in the outcome of litigation will be sufficient to enable any party with that interest to rely upon s 122(5)(c). While the DPP is not named as a party to the litigation, Ms Hamilton's case is based in part on the allegation that criminal proceedings were never justified due to the state of the evidence and the DPP should not have maintained the continuation of the prosecution.
In these circumstances, I am of the view that as the Crown agencies share a common interest, client legal privilege has not been waived.
While the subpoena was originally cast in wide terms by way of correspondence and an attempt by Ms Hamilton to limit it, resulting in agreement between the parties that the diaries of Complainant 1 would be produced. The conduct of the parties in negotiating this outcome was reasonable and represented a compromise on both side. In these circumstances, where both parties compromised, the most appropriate order is that the approach in Lai Qin be adopted and the parties bear their own costs of this motion.
The Court orders that:
(1) The claim by the Director of Public Prosecutions for client legal privilege is upheld.
(2) The Director of Public Prosecutions is excused from producing documents under the subpoena to produce issued at the request of the plaintiff.
(3) The Director of Public Prosecutions' notice of motion filed 3 March 2015 is otherwise dismissed.
(4) The plaintiff is to pay the Director of Public Prosecutions' costs of the notice of motion filed 3 March 2015.
(5) In relation to the notice of motion filed 30 March 2015, each party is to pay their own costs.