Hamzy v The Commissioner of Police; New South Wales Police Force

Supreme Court of NSW|2021-06-16|Before: Button J

Solicitors: Zali Burrows at Law (Plaintiff) Makinson d'Apice Lawyers (First Defendant) File Number(s): 2019/371923

Background

Mr Bassam Hamzy ("the applicant") and Mr Martin Churchill have been committed to stand trial together in the District Court of New South Wales on a number of serious charges. The trial has been delayed by the public health emergency, but I understand that it is now expected to commence shortly after 25 October 2021.
The allegation in a nutshell is as follows. The applicant was incarcerated in the High Risk Management Unit (the HRMU), an extremely secure section of Goulburn Gaol, whilst serving lengthy sentences for very grave offences. The contact of the applicant with the outside world was highly restricted. Mr Churchill, a solicitor of this Court, was acting, or purporting to act, as one of his lawyers. That relationship permitted them to have more private communication than they could otherwise. The Crown case is that the two of them took advantage of the less rigorous restriction and monitoring by the Department of Corrective Services (the DCS) of communications between prisoners and their lawyers, in order to engage in dealing in prohibited drugs on a large scale, and a number of associated offences.

Various logistical aspects

The following procedure was adopted at the hearing. Documents were tendered by both parties. An affidavit of the applicant was read. The applicant gave evidence on oath in a closed court room. As I explained in a separate judgment, I adopted that course for the following reasons.
The nub of the allegation in the trial is a joint criminal enterprise between the applicant and Mr Churchill. One of the ways the Crown seeks to prove that is by the communications themselves, including intercepted telephone conversations. If the applicant were to give evidence and be cross-examined about the seized documents in open court before me, that evidence could have been available to bolster the Crown case. I considered that apprehension of that outcome could lead the applicant to be either extremely restricted in the presentation of his claim for privilege, or feel forced to abandon it entirely. Such an outcome would not, of course, be in the interests of justice.
Furthermore, I considered that the media would not be in a position to report on his evidence about this interlocutory question in any event, bearing in mind the pendency of the trial. In due course, once the trial was over, I believed that I could make the transcript available to interested persons.
I also believed that the solution adopted in the unusual circumstances of this case was broadly consonant with the logistical solutions adopted in other cases in which efforts have been made to protect the accusatorial principle since X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29.
As a separate protective measure, arrangements were made whereby the legal team for the police resisting the claim for privilege before me were "insulated" from the legal team for the Crown prosecuting the trial, by way of undertakings and other measures.
Finally, because some of the affidavits were read confidentially, and because of the nature of some of the evidence, it is possible that there will need to be some redactions when my judgment is ultimately published to Caselaw. For the same reason, for the time being the parties should not promulgate this judgment to any other persons.

Evidence in support of the privilege

The applicant relied upon the following evidence.
First, a number of affidavits, some of them confidential, sworn by his solicitor now appearing in this matter. They set out the relief claimed, the procedural history of the matter, and a summary of the documents over which privilege was claimed, at least at an earlier stage.
Secondly, his own confidential affidavit of 9 June 2021 that largely constituted his examination-in-chief. The applicant made it clear that he was claiming privilege both with regard to documents created by Mr Churchill on his behalf, and also over documents created by the applicant that would have fallen within the privilege if he had sent them to his solicitor. I proceed to summarise the contents of that affidavit.
He explains that a number of the documents were draft submissions, instructions, and arguments that he had prepared for various litigation against the DCS based on administrative law, relating largely as I understand it to his extremely constrained conditions of custody.
As for another document, he asserts that he was "giving instructions about a Barrister to take on a case" for another person, "and my own legal fees". He also explains that he gave "further instructions" to tell another person "to plead guilty after I was allocated as an agent in his matter to give him my advice after reading his brief". The applicant makes reference in his affidavit to a member of the Bar, whose last name he could not recall.
The applicant gives evidence that some of the documents relate to negotiations he had entered into with the police and executive government whereby, in return for advantage, he would facilitate the retrieval from the community of a number of automatic firearms and even more dangerous weaponry.
He speaks of other interactions in which he was involved whereby dangerous items were to be removed from the community, to the benefit of relatives or friends of his on sentence, although in most cases he claims that the benefit to them did not actually eventuate.
The applicant also speaks of a number of interactions in which he felt he had upheld his side of an agreement, but had been betrayed by the police.
The applicant deposes to the involvement of a very large number of solicitors and barristers in his affairs over the years, including Mr Churchill. He explains that Mr Churchill was one of those who was involved in the protracted negotiations whereby various kinds of weapons and prohibited drugs might be able to be removed from the community with the assistance of the applicant, in return for lawful advantage to himself.
A further document over which privilege is claimed is identified as being a discussion of "appeal points", with regard to his most recent criminal conviction.
The applicant also refers to "commercial instructions" that had been given to lawyers, quite apart from negotiations with the authorities, litigation against the DCS, and at least one criminal appeal.
The applicant also asserts that some of the documents relate to the setting up of political and political lobbying organisations.
Other documents are said to relate to "a business and islands" in Belize, a country in Central America.
In oral examination-in-chief given remotely, the applicant confirmed the correctness of his affidavit despite having been unable to sign it. He also confirmed that he was in a position to cross-reference the assertedly privileged documents from the witness box.
In cross-examination, he denied ever having used to code in his discussions with Mr Churchill. He also denied ever having arranged for $4,000 to be provided to a person whom I shall call "Mr Jensen" whilst that person was a fugitive.
He agreed that Ms Bronwyn Brown, an associate of his, had never been a lawyer. He agreed that, at the relevant times, he was not permitted to have phone contact with Ms Brown.
He denied ever using code in conversation with persons with whom he was permitted to have telephone contact from the HRMU. He denied that a written reference in one of the documents to "You understand what is said but they won't" referred to the use of code to defeat the DCS; rather, it was because of previous discussions between the applicant and that lawyer, a Mr Abbas.
He agreed that, at one stage whilst in the HRMU, he had had illicit access to a mobile phone, but denied that he had used it to contact a particular lawyer.
With regard to a note that appears in the seized documents "I just sent the message 10 minutes ago", he was unable to recall the kind of message to which he was referring.
The applicant explained that he had retained a solicitor, Mr Mallinson, to undertake legal research for him, and was also paying him fees on behalf of other persons whom Mr Mallinson was to represent.
He explained that references to certain names were to "three lawyers in Mexico", whom he had asked one of his own lawyers to contact.
He agreed that it was possible that one seized note was to the effect of telling a person by the name of Abdul to pass on a message to a person named Raf that Raf should retain a barrister.
The applicant explained that the references in some notes created by him were unclear even to him, because of the passage of four years since they were created, and the "multitude of issues" with which he was and is dealing.
He denied that one of the documents constituted an instruction for a person named Alicia to pick up money from Mr Jensen.
He also denied that he gave an instruction to a person named Abdul to make payments to facilitate the supply of prohibited drugs.
He agreed that a reference to "Martin" was to Mr Churchill. He agreed that he trusted Mr Churchill at the time of giving evidence. He explained that a reference to Mona was to a former friend. A reference to "8K" was, he believed, asking Mr Churchill to tell Mona to either pay Mr Churchill $8,000, or otherwise provide it to the applicant.
The applicant agreed that, generally, in light of his incarceration, he would ask Mr Churchill to undertake tasks for him, including picking up money and communicating with other individuals on behalf of the applicant.
He denied that a reference "if she needs money go pick it up off Gong" referred to Ms Brown or Wollongong; the former could have been any one of many female associates whom he was helping, and Gong was explained to be a friend of Asian background. Having said that, the applicant accepted that he had helped Ms Brown many times with a great deal of money.
As for another seized document, he explained that "I've given a lot of money to a lot of people to help with a lot of cases". He denied that in the same document a reference to a "barrister" could be a coded reference to Ms Brown. He also denied that the document referred to funds provided for the purpose of the supply of prohibited drugs.
He agreed that he would communicate with Mr Churchill over the prison telephone.
The applicant agreed that he and Mr Abbas had recently been charged with offences connected to the infamous murder of a young male person. He agreed that, although he firmly denied any wrongdoing, the allegation in a nutshell was that he had tried to pervert the course of justice by way of playing some role in the preparation of a false document to thwart the investigation of that murder.
Turning from cross-examination about the documents seized from custody to documents seized from residences associated with Mr Churchill, he confirmed that he was claiming privilege over a handwritten draft affidavit prepared by Mr Churchill, in the preparation of which the applicant had had no involvement.
He denied that he ever had a conversation with Mr Churchill in which he had told Mr Churchill that the latter should tell another person to "keep his mouth shut". Nor had he had a conversation with Mr Jensen to that effect.
His position was that Mr Churchill had simply given him legal advice to have nothing to do with any aspect of the circumstances surrounding the recent murder. He explained that the draft affidavit the subject of the claim of privilege had in fact seemingly been drafted by Mr Churchill on the "instructions" of another person, not those of the applicant. His understanding was that another person had deceived Mr Churchill into thinking that the applicant had asked that person to convey his instructions to Mr Churchill for the purposes of the preparation of the affidavit relating indirectly to the murder.
He denied that Mr Churchill had told him that the person who had provided the document was Mr Abbas, another lawyer. He denied that he had a conversation with Mr Churchill about getting in contact with a person allegedly connected to the recent murder.
He explained that another document that referred to "My story" seized from a residence of Mr Churchill had not been prepared on his instructions; rather, Mr Churchill had read it to the applicant over the telephone, and given firm advice that the applicant have nothing to do with the document, or the aftermath of the recent murder.
The applicant separately asserted that he had a legitimate business project being developed in Belize. He explained that on countless occasions he had discussed the sum of $8,000 with Mr Churchill. The same could be said about conversations about obtaining a computer; his current solicitor, Ms Burrows; and the business proposition in Belize: he had discussed those topics on very many occasions with Mr Churchill.
He agreed that he had told Mr Churchill to tell another gentleman to go and live in Peru, South America, but Mr Churchill had firmly advised the applicant not to get involved in the matter.
He agreed that he had "requested" the brief of evidence against the person who had been charged with the recent murder. He explained that that was so that he could "go over the brief for him", with an eye to providing legal assistance as a friend who was well familiar with the criminal justice system.
Returning to documents seized from within the gaol, he agreed that certain notes over which privilege was claimed had been created by him but had never actually been provided to Mr Churchill. But he explained that the notes were part of the identification of the firearms that were to be "handed in" in return for the possibility of release of the applicant. He declined to identify two individuals referred to in those notes. He expressed his understanding of my initial thought that adoption of that position could affect my assessment of his credibility.
He explained that he was in negotiations with the authorities with an eye to obtaining "executive clemency" for himself at a later stage.
He agreed that, in the materials over which privilege was claimed, there were images of military weapons and explosives. He declined to identify the person who took those photos. His position was that the photographs were never ultimately supplied to the police.
He explained that Mr Churchill was the "leading lawyer" on the entirety of the proposed Belize development, the value of which was in the billions of dollars.
Finally, he explained that certain acronyms used in the documents were not to do with the Belize project but rather related to political organisations that he wished to set up.
No re-examination of the applicant took place.

Evidence in resistance to the privilege

The police relied upon affidavits of a solicitor that set out the procedural and administrative background of the matter.
Annexed was the fact sheet prepared by the police when the applicant was charged on 11 September 2019. At that stage, the charged offences were: supplying a commercial quantity of methylamphetamine, namely over 450 g; knowingly directing the activities of a criminal group; knowingly dealing with proceeds of crime in the sum of $14,000; and hindering the apprehension of a person by arranging for him to be given $4,000.
The fact sheet asserts that the applicant has been incarcerated for a number of serious offences, including murder.
It sets out the assertion that, between July 2017 and October 2018, the applicant, although being incarcerated in a very secure prison, was able to direct a criminal group that included Mr Churchill in the supply of methylamphetamine, and to arrange the provision of $4,000 to a person whilst he was a fugitive.
The document goes on to set out transcripts of monitored or intercepted conversations. In several of those it is said that Mr Churchill, contrary to DCS regulations, facilitated a "three-way conversation" when he was well aware that he was restricted to a telephone conversation between himself and the applicant only, and only for the purpose of the provision of legal instructions by the applicant or legal advice from Mr Churchill.
The document also asserts that Mr Churchill and another person met at a cafe in Sydney in February 2018 for purposes that were nothing to do with litigation or legal advice, but rather the furtherance of the joint enterprise.
Separately, the document asserts that, in an intercepted text message, Mr Churchill spoke of having "told the guy who committed fraud in Me that he had made a life time enemy of Bassam Hamzy will be thinking of ways to kill him or something worse… I said it was in my view inevitable…".
It is also asserted that, in March 2018, Mr Churchill sought to obtain the prosecution brief connected to the recent murder when he had no legitimate reason for having access to it.
Other documents annexed to that affidavit set out aspects of the procedural history, and do not need to be discussed.
A separate affidavit of an investigating detective sets out the understanding that the applicant is the founder and leader of a notorious criminal group. It explains that the monitoring of various intercepted telephone services is said to show that the applicant, with the assistance of Mr Churchill, operated a drug supply business from the HRMU that included the person whom I have called Mr Jensen and Ms Bronwyn Brown (aka Bronwyn or Bonnie Lee).
It is asserted that Ms Brown is the wife of a fellow prisoner of the applicant within the HRMU. Mr Jensen, a former criminal associate of the applicant, has given statements about the involvement of the applicant and Mr Churchill in the alleged enterprise.
The deponent goes on to assert that the applicant and Mr Churchill used various primitive codes whilst speaking on the phone: referring to Ms Brown as "the lawyer", "the barrister", or "B"; referring to amounts of money when in truth referring to amounts of prohibited drugs; and using well-known legal terms such as "paperwork", "brief" and "exhibits" when in fact referring again to prohibited drugs.
Extracts from asserted text messages between Mr Churchill and Ms Brown are said to demonstrate an unlawful commercial relationship between the applicant and Ms Brown that Mr Churchill was advancing. The proposition is that those texts had nothing to do with litigation or legal advice on behalf of anyone.
In similar vein, a text from Ms Brown to Mr Churchill that speaks of "the paperwork i was given" and "the briefs", and "ppl are goin 2 other lawyers n im beyond pissed off" can be readily inferred to be nothing to do with Ms Brown actually working as a legal adviser, but rather a simplistic code designed to hide the sale of prohibited drugs.
Later, it is said, Mr Churchill sent a text to Mr Jensen in which the former asked the latter to "pay his barrister $4,000. Bas needs your help on this one it is pretty urgent." Subsequently, it is said, a monitored conversation took place in which Mr Churchill facilitated a three-way conversation between himself, the applicant, and Mr Jensen, in which further reference was made by the applicant to "4000 when he has got money available, for the barrister".
Also placed before me was the agreed statement of facts that was tendered when Ms Brown pleaded guilty to supplying prohibited drugs, and was ultimately sentenced to imprisonment. In that document, she accepted that she had been involved in the supply of a prohibited drug with the applicant, Mr Jensen, and Mr Churchill.
Separately, the police relied upon an induced statement provided by a registered source, "Mr Smithson", in March 2019. (I interpolate that it is not entirely clear to me whether Mr Jensen and Mr Smithson may be the same person; in favour of the applicant, I shall assume that they may be, and therefore do not corroborate each other.) He asserts that, shortly after joining the criminal organisation founded by the applicant in 2017, he commenced to communicate with Mr Churchill about various business ventures. He also speaks of meeting the father of the applicant, and about plans to develop a high-rise apartment complex in a suburb of Sydney.
Mr Smithson asserts that the role of Mr Churchill in the organisation of the applicant was to take "instructions" from the applicant, and then pass them on to members and associates of the criminal organisation. He speaks of Mr Churchill organising "conference calls" contrary to DCS regulations, and of the applicant using code during those calls. In particular, Ms Brown would be referred to as "the barrister" or "B". Mr Churchill would also use those codes when speaking to Mr Smithson about Ms Brown.
Mr Smithson explains that he supplied prohibited drugs to Ms Brown, having first received her mobile number from Mr Churchill by way of a text message. He also claims that, during his business dealings with Ms Brown, Mr Churchill was "the middle-man" between the applicant and himself.
Mr Smithson claims that references to providing Ms Brown with "$4000" was in fact code for 4 ounces of the prohibited drug ice.
Mr Smithson also claims that Mr Churchill passed on "instructions" from the applicant to Mr Smithson about meeting other members and associates of the criminal organisation.
He details a meeting with Mr Churchill at the cafe in the legal precinct of Sydney, during which they discussed a number of things the applicant wanted Mr Churchill to ask Mr Smithson. They included various seemingly legitimate business ideas to be pursued in Australia and overseas. They also included discussions of developments in the criminal group in Wollongong, and the fact that one of its members was proposing to murder another man.
Mr Smithson recalls a conference call with the applicant, during which he was in fact at a restaurant in Wollongong. Mr Churchill informed the applicant that a member of the organisation was "on the run", at the earlier request of Mr Smithson. Later, the applicant instructed Mr Smithson through Mr Churchill to provide the person who was a fugitive with $2,000.
Mr Smithson also speaks of the effort on the part of Mr Churchill to obtain the brief in the murder matter with which Mr Churchill was not legitimately connected.
Also placed before me was a transcript of a telephone conversation said to be between the applicant and Mr Churchill. In it, Mr Churchill passes on a message from "B" complaining about shoddy "paperwork", "the brief", and people "going to other lawyers". Later, the applicant says that "the barristers can rip us off, Martin.… if the barrister can take a million dollars off us, they're gonna take a million dollars off us". Mr Churchill subsequently says "if I knew how I could get a bit of that million dollars that the barrister's got, I'd be in it as well".
Other calls are between Mr Churchill and Ms Brown, and between Mr Churchill and the applicant, in which, one can similarly readily infer as a matter of subject matter and chronology, the former recounts his conversation with Ms Brown. Mr Churchill refers to Ms Brown as "B". The applicant responds that he will speak to the lawyer, who "has absolutely no right to disrespect anyone". They go on to discuss businesses in Belize and the raising of funds in Lebanon.
Further calls between Mr Churchill and Ms Brown, and Mr Churchill and the applicant, are transcribed. Their timing and contents strongly support the inference that Mr Churchill was conveying to the applicant what he had been told by Ms Brown, and vice versa.
The transcript of an alleged unlawful "conference call" in early February 2018 involving the applicant and Mr Jensen, and arranged by Mr Churchill, is also in evidence. Some of the discussion involves efforts on the part of the applicant to become eligible for "parole".
A conference call of the following day commences with a discussion between Mr Churchill and Mr Jensen about different sums of thousands of dollars before the applicant comes on the line. Later, when the applicant is connected, Mr Churchill says "okay, I've got him on so he can listen…" Mr Churchill goes on to refer to sums such as "eight and a half" and "six and a half", and makes reference to dealings with "Bonnie". Later, the applicant speaks of knowing "exactly how much [Mr Jensen] paid the barristers, okay".
Eventually, a dispute or misunderstanding between the applicant and Mr Jensen is seemingly resolved, with the intercession and mediation of Mr Churchill.
That concludes my conspectus of the evidence. I turn to summarise the legal principles applied by me to the question.

Legal principles

By the conclusion of the hearing, there was a useful refinement of the positions that had been laid out by the parties in written submissions, and significant agreement about the applicable legal principles. I have applied the following principles in my determination (J D Heydon, Cross on Evidence, 11th Australian edition (2017) LexisNexis at 948 - 985).
Although the position is not entirely clear, for abundant caution I have approached the question on the basis that it is not client legal privilege to be found in the Evidence Act 1995 (NSW) that needs to be established: see Abbas v NSW Commissioner of Police; Hamzy v NSW Commissioner of Police [2019] NSWSC 1841 (Bellew J); Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 at [18]-[28] (per Gleeson CJ, Gaudron and Gummow JJ). Rather, because this controversy has arisen before the stage of adduction of evidence, I need to reflect upon the common law doctrine of legal professional privilege.
A written submission based on an equitable doctrine of confidentiality was not advanced in oral submissions, and I infer that it was no longer pressed. If I be wrong in that, I put it to one side in any event, as having no application with regard to the fruits of a search warrant.
At the hearing, counsel for the police made it clear that he in no way relied upon the doctrine of accidental waiver or promulgation in order to defeat the claim of legal professional privilege.
It is incumbent upon the applicant to establish that the privilege attaches to the seized documents, and to do so on balance.
What is privileged are communications made for the dominant purpose of obtaining legal advice, or for the purpose of pending or anticipated litigation. The relevant time for assessment of the purpose is when the communication was made (subject to what I say immediately below).
A communication prepared by the applicant for those purposes, but never actually able to be sent, may nevertheless fall within the privilege. To provide hypothetical examples, a letter containing one's instructions but never able to be sent, or notes of topics for legal advice to be discussed in a telephone conversation that was never able to occur, may attract the privilege, even though they do not reflect communications that actually took place.
On the other hand, requests or commands to a lawyer to perform a non-legal task or chore do not fall within legal professional privilege.
Communications between the applicant and Mr Churchill in furtherance of a crime or other wrongdoing need not be thought of as "an exception" to the privilege. Rather, they inherently fall outside it, because a communication made (or intended to be made) for a criminal purpose cannot be for the dominant purpose of obtaining legal advice or for current or pending or anticipated litigation.
An overly strict delineation of the parameters of communications that fall within and without the privilege should not be undertaken; in other words, matters on the borderline should be determined in favour of the applicant.
Transactions such as contracts or conveyances do not fall within the privilege. Having said that, lawyers commonly provide legal advice about business matters and provide other legitimate legal services to do with them; such matters can attract the privilege.
One can look to a document itself in order to draw inferences about the dominant purpose that led to its creation. As can be seen below, in light of the inevitable circumspection with which I have approached the evidence of the applicant, and the absence of any evidence from Mr Churchill, the documents themselves have been my primary focus.
The claiming of the privilege is not a matter of mere ritual, and nor can it be established by evidence that is bland or generic. To state an important aspect of that: merely asserting in writing or orally that a document is privileged does not make it so.
Finally, the question of dominant purpose is one of fact, to be determined objectively on the evidence placed before me.

General approach

The following general findings of fact inform my determination of this matter.
One document may contain some material that I am satisfied is privileged and some that I am not so satisfied. Accordingly, a detailed analysis of each document has been undertaken by me.
The applicant is an intelligent person who is well-versed in the ways of the legal system.
On his own evidence, he is capable of engaging with that system in his own interest.
He is capable of strategic and tactical thinking.
The refusal of the applicant to answer certain questions, even in closed court and with the other measures that I have described above, affects his credibility adversely.
So does his criminal record for serious offences, not least murder.
Demeanour plays a negligible role in my determinations, not least because the applicant gave evidence by AVL.
Separately, of course I have not heard from Mr Churchill as party or witness. Nor has cross-examination been undertaken or any submissions been made on his behalf. Accordingly, the following adverse findings must be approached circumspectly, and they should of course be regarded as efficacious in these proceedings only.
Even so, on the material placed before me, there is very strong evidence that Mr Churchill was facilitating three-way telephone conversations that were supposed to be between client and lawyer to include another person, in clear contravention of the rules of the DCS.
Furthermore, there is very powerful evidence, as a matter of inference from chronology and subject matter, that Mr Churchill was conveying messages between the applicant and Ms Brown.
As well as that, there is very strong evidence that Ms Brown used a code based on legal terms, when speaking to Mr Churchill about an enterprise in which she was engaged. Relatedly, there is reasonably strong evidence that the applicant and Mr Churchill adopted code, at least on some occasions.
Separately, there is direct evidence from an intercepted telephone call that suggests that Mr Churchill used his professional relationship with the applicant inappropriately, by way of threatening a person who was in a financial dispute with Mr Churchill with the prospect of death.
Finally, there is powerful evidence - not least her plea of guilty, and adoption of agreed facts on sentence - that Ms Brown was dealing in prohibited drugs for profit.
All of those findings have led me to approach the claim of privilege with significant caution. They also provide a context in which the claim is to be assessed.
On the other hand: the inevitable caution with which I approach the credibility of the applicant himself does not automatically rule out the possibility that the privilege can be established.
Furthermore, it is the case that, at the times in question, Mr Churchill was a legally qualified person admitted to practice in New South Wales.
Separately, I accept that the applicant has engaged an unusually large number of solicitors and barristers to attend to his legal affairs.
I also accept that the latter are multifaceted, and not just restricted, for example, to a single appeal against conviction.
Finally, I also accept on balance that the applicant, despite his incarceration, has various business and investment ideas on foot, some of which may progress to fruition.

Specifics of documents

With the legal principles and the general factual context established, I turn to a close analysis of the seized documents themselves.
94 photographs of documents were the subject of the claim of privilege. Some of them were close-ups of others. Some of them were one document captured by more than one photograph. As I have said, they show documents seized from four locations.
I believe that it is incumbent upon me to make a decision consistent with the legal principles that I have summarised above with regard to each of them, and in some cases, parts of them, in accordance with the distinctions that were drawn in the evidence of the applicant, and the inferences that I have drawn. In the interests of a judgment of reasonable length, I shall make rulings that capture more than one document when I can. When I cannot, I shall be concise, for the same reason.
In identification of documents, I have used the numbers of the tabs that proceed each document in exhibit J. I shall also identify the documents by their title or opening words for clarity.
Furthermore, at the hearing, it became clear that the applicant was not claiming privilege over some portions of some documents, but was claiming privilege with regard to other portions of those same documents. In order to avoid the possibility of a further judgment in case I am confused by that process, for abundant caution I shall determine matters even if I suspect that a claim for privilege over a portion is in truth no longer pressed. In similar vein, if there is any other confusion on my part, in light of the complexity of my task and the granularity of the necessary analysis, I expect the police to behave as a model litigant and err on the side of not having access to the document in question.
Separately, I will rely upon the "insulated" legal team for the police to prepare carefully and promptly a redacted copy of the documents in accordance with my rulings, and to supply it to the police.
Finally, I shall not repeat my delineations by way of formal orders; this judgment performs that function definitively.
Document 1 is entitled "Security Fallacy". On its face it appears to be arguments about whether the use of AVL by the applicant is a security risk, designed to be made to a judge. I accept on balance that it is not in code, and is what it appears to be. I also accept on balance - just barely, as it were - that it was intended to be communicated to a lawyer (whether Mr Churchill or not).
For those reasons, the police will be prohibited from access to document 1.
Document 2 appears on balance to be a continuation of document 1. The police will be prohibited from access to it.
Document 3 appears to be a photograph of document 4 contained in a plastic bag. Document 4 is addressed to a person named "Ali". I accept on balance that that is Mr Abbas, lawyer. The opening words of the document claim privilege, though that is not of course determinative. Document 4 is a handwritten argument that the HRMU is not rehabilitative, but rather leads to recidivism. I accept on balance that it was intended to be provided to a lawyer for the purpose of possible litigation against the DCS. The police will be prohibited from accessing document 4.
Documents 5 to 15 appear to be a continuation of document 4. Although different coloured pens are used, they appeared to me as a layperson to be all in the same handwriting. They make other criticisms of the HRMU, including religious bias against Muslim prisoners. Document 7 includes a notation "be ready to record the call". The police will not have access to those documents for the same reasons as document 4, save for the following.
Document 14 intersperses complaints about the HRMU with other material. There are circled paragraph numbers 39, 1, 2, 3, 4, and 5. Paragraph 1 is a command to deal with money. Paragraph 3 is a command to obtain a phone bill. Paragraph 4 is a command as to how to handle litigation of another person. Paragraph 5 is a command to convey a message to another person to plead guilty to a certain offence.
Accepting on balance that those paragraphs were intended to be conveyed to a lawyer, I do not accept that they would have been for the purpose of obtaining legal advice, or for the purpose of pending or anticipated litigation in which the applicant was engaged as client. To be clear about that: I do not consider that the privilege extends to communications, or proposed communications, whereby an individual is conveying commands to a solicitor with regard to the conduct of litigation in which other persons are parties, and the communicating individual is not.
Accordingly, the police will be prohibited only from accessing paragraphs 39 and 2 in document 14; they may have access to the rest of it.
Document 15 is headed "Legal Privilage". It contains references to what I infer are various semiautomatic and automatic weapons. The applicant gave evidence that these were weapons that he was seeking to have returned to the authorities in return for personal advantage, and that this list was prepared for the purposes of that negotiation. On balance I accept that evidence. The police will not have access to document 16.
Document 17 appears to be a photo of subsequently numbered documents in a plastic sheath.
Document 18 is headed "Khanzir 2". It appears to be part of preparations for negotiations to obtain "the maximum available discount" for an individual facing sentence. On balance, I accept that it was prepared for the purpose of being communicated to obtain legal advice, broadly defined. The police will not have access to it.
Document 19 is headed "Khanzir". It appears to be a list of occasions in which the applicant was unable to have contact with lawyers whilst in the HRMU. I infer on balance that it was prepared either for litigation criticising the DCS, or in an effort to change the circumstances in which the applicant could see his lawyers and obtain legal advice. On balance, the police may not have access to it.
Document 20 is headed "Ali" in red pen. It refers, amongst other things, to court, at least one well-known member of the Bar, legal aid, solicitors, and an originating process in civil proceedings. Although I suspect that there may be matters "mixed in" to document 20 that do not attract the privilege, on balance the police may not have access to any part of it.
Document 21 is headed "Khanzir 1". It addresses somebody as "you". It is to be recalled that the applicant was cross-examined, and claimed that this was a note prepared for Mr Abbas, solicitor. He denied that it contained a reference to code.
On its face, and on balance, I am satisfied that the document does not contain code. It is a series of explanations about logistical problems. Although it is possible that references in paragraph 4 are to something other than legal advice and litigation, on balance I think the police should be prohibited from having access to the entirety of document 21.
Document 22 is similar but not identical to document 16. It refers again to automatic and semiautomatic weapons. On balance I accept that it was prepared for use in the process of negotiation to which I have already referred, which was to be advanced by a lawyer. Although such a process cannot be characterised as litigation, is it is directed towards the ultimate release of one's client from custody. In the circumstances, the police may not have access to document 22.
Document 23 is divided into two columns, each headed "Ali". It appears to refer to an appeal against the severity of sentence, civil litigation, business propositions, and previous negative experiences in earlier litigation. Although I think it is possible that "mixed in" to the document are notes about proposed offences, on balance I accept that it was prepared for legal advice, litigation anticipated as possible, and business propositions in which a lawyer could play a legitimate role. Having reflected, I believe that the police should be prohibited from accessing document 23.
Document 24 commences with the phrase "Encripted Email". It appears to be a mixture of notes about legal and non-legal matters. I am prepared to accept that some of the non-legal matters were to do with business planning, in which a lawyer could have played a legitimate role. Even so, the five words commencing with "Diamonds" and concluding with "Text" are not shown on balance to attract the privilege. Nor do the two website addresses. The police should have access to those parts of document 24, but not otherwise.
Document 25 is headed "Reporter 1". It recounts a large number of gangland shootings in Sydney, many of them said to be unsolved. It says nothing about law, lawyers, or litigation. Taking it at face value, one can infer that it was prepared not for the purpose of legal advice or litigation, but for dissemination to a journalist. On balance, it does not attract legal professional privilege. The police may have access to the entirety of document 25.
Document 26 appears to be a continuation of document 25. For the same reasons, the police may have access to it.
Document 27 is a photograph of document 28 and perhaps other documents.
Document 28 is divided into four columns, each of which is headed by a first name. Those names correspond to lawyers who, I accept, have appeared for the applicant at various times.
Under the column headed "Brad", a large number of statutory instruments, judgment names, and the name of a textbook appear. However, a name also appears in the first line. That is the name of a person alleged to have been involved in the distribution of prohibited drugs on behalf of the applicant. I am not satisfied on balance that that name was noted on that document for the purposes of legal advice or litigation. The police should have access to the first line only of column 1 on document 28.
Under the column headed "Ali", there are references to various names, at least one judgment, and other entries that could, on balance, be connected to the work of a lawyer in representing a client and preparing litigation. However, I am not satisfied on balance that the second line that commences with a name beginning with "A" has that attribute, nor the penultimate line, nor the last line. The police will have access to those portions only of the second column of document 28.
Under the heading "Zali", there appear references to matters that could on balance be connected to the representation of the applicant, and the advancement of his legal interests, including litigation and other steps relating to his conditions of custody. However, I do not believe that line 2, containing the word commencing with the letter "R", has been shown to have that attribute, nor line 23, commencing with "2 X", nor line 20, commencing with the numeral "1". The police shall have access to those lines only of column 3 of document 28.
As for column 4, headed "Cris", on balance I infer that it is to do with the negotiations that were proposed to be undertaken with the police and the authorities, to which I have referred. The police may not have access to it.
The final column is headed "Martin". I infer on balance that that is a reference to Mr Churchill. In light of the contextual matters to which I have referred pertaining to Mr Churchill, I am not satisfied on balance that any of the contents of that column were for the purpose of legal advice or litigation, except for the phrase commencing with the word "Subordinate", and concluding with the word "law". Save for that phrase, police may have access to the entirety of that column of the document.
Document 29 is similarly divided into columns. Again, the top portion of the first column is headed "Martin". For the reasons given above, I am not satisfied on balance that any part of that note was created for the purpose of legal advice or litigation. The police may have access to the entirety of the entry under the heading "Martin" and above the word "Ali".
In the lower portion of the first column of document 29, the heading "Ali" appears. Save for the first line, I believe that all of those entries attract the privilege on balance. The police may have access only to the line under that heading that commences with the numeral "2".
The next column is headed "Zali". It refers more than once to affidavits, aspects of contract law, and statutory instruments. On balance, I accept that the entirety of that column was prepared for the purposes of a communication with a lawyer with the dominant purpose of obtaining legal advice or advancing pending or anticipated litigation. The police may not have access to column 2 of document 29.
The third column is headed "obstructions + fustrations". One can infer that it consists of a list of negative aspects of life in the HRMU. On balance, I accept that it was prepared for the purposes of possible litigation against the DCS. For that reason, the police will not have access to column 3 of document 29.
The final column is headed "BML". It consists, I infer, of a list of complaints about, and comparisons of decisions within, the punishment regime within the HRMU. On balance, I accept that it was prepared for the purposes of possible litigation. For that reason, the police may not have access to it.
Document 30 is a photograph of a number of further documents.
Document 31 is headed "Abdul". It is divided into two columns. The first column refers to members of the executive government, and to at least one lawyer ceasing to act. It also refers to the High Court. On balance, I am satisfied that the majority of the first column of document 31 was proposed to be a communication with regard to legal advice or litigation.
However, I am not so satisfied with regard to the six lines that commence with the symbol "$" and conclude with the lined-through word "Dad" towards the bottom of column 1. The police may have access to those lines.
As for column 2, it consists of disparate phrases, some of which have been lined through. Save for the line towards the bottom of column 2 that commences with "USB", I am not satisfied that any of those entries are for the dominant purpose of a communication to do with legal advice or litigation. For those reasons, the police may have access to column 2 of document 31, except for that identified line.
Document 32 commences with the word "Reality". On balance, I am satisfied that it is to do with the negotiations to be undertaken with the executive government, already discussed. The police may not have access to document 32.
Document 33 appears to be a continuation of document 32. Although by way of a derogatory reference to lawyers it appears that it may be intended to be addressed to a person who is not a lawyer, even so on balance I believe that the same ruling should apply. The police may not have access to document 33.
Document 34 is divided into two columns. It is also headed "Abdul". Save for the entries written in red pen commencing with the word "failure" that form the bottom right hand quadrant of the document, and the line a little above them that commences with the word "Assistance", I am not satisfied that legal professional privilege attaches to document 34. The police may have access to document 34, subject to those identified exceptions.
Document 35 is headed "Mo Khan". That, I understand, is the name of a lawyer who at one stage was appearing for the applicant. The document is not easy to read. Its first entry, however, seems to me consistent with the work of a lawyer. So does its last entry. For abundant caution with regard to legal professional privilege, the police will be prohibited from accessing the entirety of document 35.
Document 36 commences with the words "Type 2". It appears to be to do with various business ventures. Whilst it is true that it does appear to refer to a statutory instrument, in my opinion it is not established that it was created for the purpose of a proposed communication about legal advice or litigation, even if one defines legal work very broadly. The police may have access to document 36.
Document 37 is headed "Mo Legal". It is replete with references to litigation in various courts, documents commonly prepared for that litigation, and various orthodox subject matters of evidence. I am satisfied on balance that the document was prepared for the purpose of a communication to do with litigation. The police may not have access to document 37.
Document 38 is entitled "Khan". Save for one entry, it appears to pertain entirely to progress in various business ventures. Whilst, as I have said, I appreciate that a lawyer can undertake legal work broadly defined with regard to business ventures that will attract the privilege, there is no flavour of that here. Rather, the flavour is of a lawyer being proposed to be asked about commercial work undertaken by that lawyer. Save for the first line that commences with the words "what about", the police may have access to document 38.
Document 39 is entitled "To Do List". It is divided into two columns. It refers to the privilege in question, a reference that is important but by no means determinative.
In my opinion, it is established on balance that column 1 of document 39 was created as a list of topics for discussion with a lawyer when the lawyer had contact with the applicant. The police may not have access to the entirety of the first column of document 39.
On the other hand, the entirety of the second column relates to commercial matters. It is not established on balance that it relates to legal work to be undertaken by a lawyer with regard to those commercial matters. The police may have access to the second column of document 39.
Document 40 is headed "4/9/18". It is divided into three columns. It appears to relate to various topics, including international investments. Some of the references are legible but inscrutable. Although there is a reference to "Martin" near the bottom of the second column, I am not satisfied on balance that any part of document 40 was prepared for the purpose of a proposed communication to obtain legal advice or for the purpose of litigation. The police may have access to document 40 in its entirety.
Document 41 is entitled "Compile Everything". It is comprised of three columns. Again, there are disparate references, the subject matter of which is often impenetrable to me. Although the document refers again to "Martin", and a well-known member of the Sydney Bar, and although it may be that the document was prepared for the purpose of a communication with a lawyer, I am not satisfied on balance that the dominant purpose for its preparation was the obtaining of legal advice or to do with litigation. The police may have access to the entirety of document 41.
Document 42 commences with the word "Arrogance". It is divided into two columns. Yet again, it is in the nature of a list, some entries of which are crossed off, a few of which are illegible, and many of which are inscrutable. It features a very large number of names of individuals, and a large number of mobile phone numbers. I am not satisfied on balance that the document was prepared for the purpose of communication with a lawyer, the dominant purpose of which was obtaining legal advice or to do with litigation. The police may have access to document 42 in its entirety.
Document 43 is headed "Abdul". It is divided into two columns. The first column contains a number of circled paragraphs. Paragraph 4 of the first column may, on balance, refer to the fees of a member of the Sydney Bar. I accept on balance that that was prepared for the purpose of a communication to do with litigation. The police may not have access to paragraph 4 of the first column of document 43.
The rest of the entirety of column 2 seems to refer to various chores that were to be undertaken, perhaps by a lawyer. I am not satisfied that the document was prepared for the purpose of a proposed communication with a lawyer for the dominant purpose of obtaining legal advice or to do with litigation. Subject to the exclusion I have identified, the police may have access to document 43.
Document 44 commences with the words "Priority Follow Up". It is divided into three columns.
My orders about document 44 will need to be even more granular than previously, because close analysis leads me to the view that some of it, on balance, is protected by legal professional privilege, but some of it, on balance, is not.
The first paragraph in the first column concluding with the words "the law" is consistent with other materials in the nature of a submission about conditions in the HRMU. The police will not have access to that paragraph.
The rest of column 1 seemingly includes a list of individuals to whom payments are to be made. Save for the line that ends with the word "Barrister?", The police may have access to the rest of column 1.
Column 2 refers to a large number of names, some items, and includes a list of names that commences with the symbol "$". I am not satisfied that any part of column 2 is captured by the privilege, and the police may have access to it.
The upper part of column 3 of document 44 refers to a court, to well-known members of the Bar, and a website to do with the administration of justice. I am satisfied on balance that those portions attract the privilege, and accordingly the police will not have access to any part of column 3 above and including the word "unit".
The lower part of column 3 of document 44 does not attract the privilege on balance, and the police may have access to it.
Document 45 commences with the words "To Do". It is divided into three columns. As for column 1, I accept on balance that it sets out a list of chores that the applicant proposed to ask a lawyer to do. However, I am not satisfied that those chores pertained to legal advice, broadly defined, or pending or anticipated litigation. The police may have access to column 1.
The same may be said with regard to the whole of column 2, and the police may have access to it.
As for column 3, I am not satisfied that the material below the middle line above the word that may be "Remember" attracts the privilege. The lower portion in particular commencing with "cost/benefit" appears to be a self-reflection. The portion of document 45 commencing with the word "Remember"(?) will be available to the police.
As for the first portion of column 3 above that word, despite the use of legal terms as code words to which I have referred earlier in this judgment by, at the least, Ms Brown, and despite my suspicions, on balance the applicant- as it were, just barely - has persuaded me that those notes pertain to the conduct of litigation. The uppermost section of column 3 of document 45 will not be available to the police.
Document 46 is headed "Visit". It is divided into two columns. The first part of the first column, on balance appears, at least to some degree, to be to do with litigation. The police may not have access to the portion of the first column above the word "Penisini" inclusive.
In contrast, the portion of column 1 below that word, and the whole of column 2, appear to be regarding real estate investments. The police may have access to those portions of document 46.
Document 47 commences with "HGTV". It is divided into two columns. The portion of column 1 above the diagram appears, on balance, to pertain to litigation, and negotiations with the police. That portion will not be available to the police.
In contrast, the diagram in column 1, the remainder of column 1, and all of column 2 are seemingly either to do with various real estate investments; or inscrutable; or, under the heading "Promises", apparently a note to oneself, rather than something proposed to be communicated to another. All of that will be available to the police.
Document 48 is headed "Business". Although it includes the phrase "rights in law" in the second column, I am not satisfied that any part of it was proposed to be the basis of a communication with the lawyer that falls within the privilege. Document 48 will be available to the police in its entirety.
Document 49 is divided into two columns. The first is headed "Martin", and the second is headed "Zali". I accept that those names refer to Mr Churchill and Ms Burrows.
Column 1 refers to various public bodies, socio-political propositions, foreign cities and countries, and what appear to be various chores. I am not satisfied that it falls within the privilege. The entirety of column 1 of document 49 will be available to the police, including the notations in red above the ruled lines.
Column 2, on the other hand, refers to aspects of litigation, a member of the executive government, and various reported cases. On balance, I think that the police should not have access column 2 of document 49, because it attracts the privilege.
As for document 50, it is divided into four columns. Column 4 is headed "Zali". It was made clear at the hearing that only the text under that heading is the subject of a claim of privilege. Portions of that text refer to aspects of litigation, a criminal offence, a legal privilege, and a member of the executive government. On balance, I think that that portion attracts legal professional privilege. The part of column 4 of document 50 that appears below the word "Zali" and above the word "App" will not be available to the police, but the rest of document 50 will be.
Document 51 commences with the phrase "Seprate Deeds". It is divided into four columns. The first column refers to members of the executive government and a deed. On balance, I accept that column 1 relates to the negotiations intended to be to the advantage of the applicant. The police may not have access to column 1.
The top part of column 2 provides the details of persons who, I accept, were relevant to those negotiations. The police will not have access to the whole of column 1, and the portion of column 2 above the "$" symbol.
As for the bottom part of column 2, and the whole of column 3, however, I am not satisfied that that portion of the document falls within the privilege. The police may have access to the bottom portion of column 2, and to the entirety of column 3.
Document 52 is headed "Abdul", although that word is blacked out by scribble. It consists of five columns of tightly written handwriting. The majority of the entries are names of individuals. There are also columns that seem to relate to "money in and money out". Although document 53 shows by movement by the photographer of a yellow scrap of paper that part of document 52 bears the heading "Lawyers", I am not satisfied that any portion of the document was prepared for the dominant purpose of obtaining legal advice or assistance with pending or anticipated litigation from a lawyer. For that reason, the police will have access to the entirety of document 52.
Document 54 is headed "Distributors". It is divided into four columns. Column 1 is entitled "Zali Points". However, it does not set out, for example, possible appeal points. Rather, on balance it seems to set out a number of non-legal chores that Ms Burrows may be asked to undertake. The police may have access to column 1 of document 54.
Columns 2, 3, and 4 set out lists of names of individuals, institutions, banks, web addresses, and companies. Although they do mention a judgment and a judicial complaint, in my opinion, on balance they do not fall within the privilege, and the police may have access to them.
Column 5, however, is headed "Ass Argument". On balance, I accept that it lists possible grounds of appeal, or arguments in support of them. I infer that it was prepared for the purpose of communication with a lawyer about a pending or possible appeal.
For those reasons, the police will have access to the entirety of document 54, except column 5.
Document 55 commences with the word "Adnan". On its right-hand side, it bears the words "Mo Khan". It is divided into sections. Documents 56 and 57 are close-ups of document 55.
On balance, some sections, I accept, are to do with possible litigation against the DCS, and negotiations with the executive government. However, I do not accept that the contents of the yellow tab attached to the document, the section commencing with the word "AIAF", the section commencing with the word "Kim", or the section commencing with the word that seems to be "Saudi" attract the privilege. The police may not have access to document 55, except for those identified portions.
Document 58 commences with the word "Mi". It sets out a number of names and telephone numbers. It refers concisely to diverse topics. Other than the line commencing with "31 Crime" in column 2, it has not been established that it attracts legal professional privilege, and the police may have access to it.
Document 59 commences with the word "Opening". It appears to relate to overseas investment possibilities, not legal matters. The police will have access to the entirety of document 59.
Document 60 commences with the phrase "MRT" or "MRI". It sets out a number of names and topics, divided into two columns. It also includes one word written in large handwriting. I am not persuaded that any of it pertains to a proposed communication for the dominant purpose of obtaining legal advice or legal assistance from a lawyer to do with litigation. The police will have access to the entirety of document 60.
Document 61 commences with "BML". It is decided into two columns. It refers to various judges of this Court, a well-known decision of the New South Wales Court of Criminal Appeal, and aspects of remission systems. On balance, I accept that it was prepared for a communication with a lawyer about a possible appeal. The police will not have access to document 61.
Document 62 consists of two pages, the first of which is divided into two columns.
There is nothing to suggest that the first page is anything to do with legal advice or litigation, and it will be available to the police.
The same may be said of the second page, except for the entry at its bottom, which commences with the word "Did", and concludes with the letter "G", to which the police may not have access.
Document 63 consists of two pages. It commences with "NSW". The first page mentions a member of the executive government, members of the New South Wales Bar, and "Deedz". On balance, I accept that it relates to negotiations with the authorities. The police may not have access to the first page of document 63.
The second page of document 63, however, consists of a number of names, addresses, and phone numbers, and what seems to be a note of self-encouragement. That page is not shown on balance to be for the purpose of a communication with the lawyer with regard to legal advice or litigation, with the result that the police may have access to page 2 of document 63.
Document 64 is headed "Affidavit". It bears the name of Mr Churchill. On its face, it appears to be a document prepared by Mr Churchill, a copy of which was supplied to his client, the applicant, for the purpose of litigation on behalf of the applicant. The police may not have access to it.
Document 65 is a continuation of document 64, and the same ruling applies to it.
Documents 66, 67, and 68 together constitute a letter from Mr Churchill to the ambassador of the People's Republic of China (PRC) in Australia. It proposes a very significant commercial development by Mr Churchill in Central America, assisted by the PRC by way of the Belt and Road Initiative, in return for Mr Churchill facilitating the recognition of the PRC by Belize. One is entitled to infer on balance that the applicant stood behind the proposal that was made in the name of Mr Churchill.
Although as I have said a communication with a lawyer to do with a commercial enterprise may attract the privilege if the lawyer is engaged in legal work, that is not the case here. Mr Churchill is putting himself forward as a businessman making a proposal with financial and political purposes, not in any sense as a lawyer engaged in legal work. The police may have access to those three documents.
Documents 69 and 70, in contrast, although also constituting a portion of a letter written by Mr Churchill, in my opinion fall within legal work on behalf of an incarcerated person. One can infer that they were written by Mr Churchill on behalf of the applicant, and thereafter provided to him for his information. The police may not have access to documents 69 and 70.
Document 71 commences with the handwritten word "Tell". Because of the handwritten sentence commencing with the word "The", I accept on balance that it relates to negotiations with the authorities. The police may not have access to document 71.
Documents 72, 73, and the first page of 74 all appear to be the one handwritten document in one ruled notebook. They commence with the word "Affidavit". Much of it is illegible to me. One can infer from its opening phrases that it includes legal advice to the applicant, either provided in handwriting, or noted down by him during a telephone conversation.
Some portions of the handwritten document suggest that there may be an element of dishonesty behind it. On balance, however, I accept that it is what it appears to be on its face: a draft affidavit prepared for the purposes of litigation. Whilst I suspect that it may have criminality attached to it, I believe the privilege is established on balance. The police may not have access to documents 72, 73, and the first page of document 74.
The second page of document 74 is written in different coloured ink. It consists of addresses and a name, and a statement. The statement does not in terms relate to legal advice or litigation. I am not satisfied that the privilege attaches to the second page of document 74, and the police may have access to it.
Document 75 is a statement about a person with the same first name as Mr Jensen. One can readily infer that it refers to him. On balance, I accept that it appears to be a note for a communication to a lawyer. However, I do not accept that it is for the purposes of legal advice or litigation. Rather, I consider on balance that it is for the purpose of furthering wrongdoing, at least in the form of misleading the authorities. To the extent that the evidence of the applicant in cross-examination was to the contrary, I reject it. The police may have access to document 75.
Document 76 consists of handwritten notes on two pages of a ruled notebook. Document 77 is a close-up of the second page. Much of it is illegible to me. There is more than one reference to Belize. There is a reference to Thailand, and a beach resort. A number of names appear. On balance, not least because of its degree of illegibility, I am not satisfied that the privilege attaches to any part of document 76. The police may have access to it.
Document 78 is two pages of handwriting on a ruled notebook. It commences with the word "Tell". Most of it is, if not illegible, then very hard to read. A granular analysis suggests that some of it is the result of a communication from the applicant for the purposes of legal advice or litigation, but some of it is not. Accordingly, the document needs to be dissected as follows.
With regard to page 1, the uppermost portion from "Tell" to "exhibits", I accept on balance, was for the purposes of litigation. The police may not have access to it.
As for the rest of that page, in contrast, whilst I accept that it reflects a communication between the applicant and Mr Churchill, I do not accept that it falls within the privilege. Accordingly, the portion that commences with "$8,000" and concludes with an illegible word seemingly beginning with the letter "D" at the end of the page, will be available to the police.
Turning to page 2 of document 78, the uppermost portion that commences with an illegible word and concludes with the phrase "him OK" is not shown to have been for the purpose of legal advice or litigation. In my opinion, it constitutes a request from the applicant through Mr Churchill to another person as to what that other person can or should do. The police may have access to that section of document 78.
The next section however, which commences with the phrase "B needs" and concludes with the number "6" is, I am satisfied on balance, to do with negotiations with the authorities. The police may not have access to that section, including the portion written in red pen.
The final portion, I accept on balance, is a series of calculations to do with sentence expiry. I am satisfied on balance that that is to do with legal advice, and the police may not have access to it.
Document 79 is a close-up of the second page of document 78.
Document 80 comprises six colour photographs. I am satisfied on balance that it was obtained and retained for the purposes of negotiations with the authorities. The police may not have access to it.
Documents 81 and 82 are close-ups of document 80, and are captured by the ruling immediately above.
Document 83 is a number of handwritten notes on ruled paper commencing with the entry "7. Pilot". I accept that entries 10 and 11 are to do with negotiations with the authorities. On balance, I accept that entry 9 is also so connected. I do not accept, however, that entries 7, 8, or 12 are to do with negotiations. For that reason, the police may have access only to entries 7, 8, and 12 on document 83.
Document 84 is a handwritten note that commences with the word "Why". I am satisfied on balance that it pertains to complaints to be made to the DCS by a lawyer on behalf of the applicant about his conditions of custody, and possible litigation in that regard. The police may not have access to any part of document 84.
Document 85 commences with "15". I am satisfied on balance that it relates to negotiations with the authorities. The police may not have access to document 85.
Document 86 commences with the word "Marco". Although it includes the phrase "PNG" and makes reference to "guns", I am not satisfied on balance that it is proposed for, or the result of, a communication between client and lawyer to do with the receipt of legal advice or the conduct of pending or anticipated litigation. The police may have access to document 86 in its entirety.
Document 87 is a handwritten document that commences with a circled word beginning with "C". I am satisfied on balance that it is a note of a communication created for the purpose of negotiation with the authorities. The police may not have access to document 87.
Document 88 commences with the word "UNC". I am satisfied on balance that it was a note of a communication to do with negotiation with the authorities. The police may not have access to the entirety of document 88.
Document 89 is typewritten, and commences with the phrase "Item number". Although it may pertain to negotiations with the authorities, I am not satisfied of that on balance. The police may have access to document 89 in its entirety.
Document 90 is two pages of handwriting in a ruled notebook. It commences with the word "Islamic". Much of it is illegible. As best I can tell, it deals with socio-political and religious matters. I am not satisfied on balance that it is to do with legal advice or litigation. For that reason, the police may have access to document 90 in its entirety.
Document 91 is a close-up of the first page of document 90.
Document 92 commences with the phrase "Pay phone". Again, it is difficult to decipher. It is divided into seven paragraphs.
Paragraph 3 refers to a cause of action and a well-known member of the Sydney Bar. I am satisfied on balance that that paragraph was a note for, or of, a discussion engaged in for the purpose of legal advice and possible litigation. The police may not have access to paragraph 3, which commences with that number and concludes with the word "it".
The rest of the document, however, seemingly refers to everyday chores, names and telephone numbers, politicians, the Islamic fatih, and sums of money. I am not satisfied that any of that falls within legal professional privilege, with the result that the police may have access to the entirety of document 92, except paragraph 3.
Document 93 commences with the words "Los Vegas". It refers to a well-known historical gangster, and contains a diagram, the meaning of which is obscure. It refers to a very large sum of money and a very large weight of something. I am not satisfied on balance that any of it falls within the privilege, with the result that document 93 will be available to the police.
Finally, document 94 comprises five colour photographs. Again, I am satisfied on balance that it relates to negotiations with the authorities. For that reason, the police may not have access to the entirety of document 94.

Conclusion

I have made a ruling with regard to every document depicted in the photographs that comprise exhibit J before me. Of course, I do not propose to repeat myself by very lengthy formal orders: this granular judgment constitutes the metes and bounds of my injunction.

Order

Accordingly, I make the following order: 1. The NSW police are granted access, and denied access, to the documents seized by search warrant, in accordance with this judgment.

Costs

No submissions were made contingently at the hearing about the question of costs, including as to whether they should be ordered at all in these proceedings, which were in one sense civil but in another sense interlocutory to a criminal trial.
Accordingly, my Associate will be in touch with the parties in due course to provide a timetable and other logistical aspects for the provision of written submissions about the question, with the intention that I shall resolve it in Chambers, unless she receives signed draft consent orders resolving any such issue. An oral hearing will only be conducted if, after the provision of all of those written submissions, a party successfully moves on a notice of motion seeking that mode of resolution.
For the time being I make the following further order: (2) Costs reserved.

Amendments 21 August 2024 - Publication restriction removed. 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: 21 August 2024

At a glance

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Judgment (12 paragraphs)

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Cases Cited (5)