HIS HONOUR: There is before me a notice of motion filed on 14 October 2015. However, the prayers for relief contained in that document are no longer the matters that I am required to deal with, because of the narrowing of issues between the parties.
The first area of contention is an application by the plaintiff for access to documents contained in the file of the Director of Public Prosecutions in respect of which the director claims legal professional privilege. The plaintiff concedes today that prima facie the documents in respect of which the claim for legal professional privilege is made are so privileged but contends, nevertheless, that there has been a waiver of privilege relying on the provisions of s 122 of the Evidence Act 1995.
On 27 February 2015 the plaintiff's solicitors requested from the Crown Solicitor's Office particulars of the defence filed on behalf of the defendant on 27 February 2015. There were 17 requests for particulars. Those numbered 10 to 17 concerned par 14 of the defence. Paragraph 14 of the defence deals with par 21 of the statement of claim. Paragraph 21 of the statement of claim is this:
"On or about 29 May 2012 the criminal proceedings were terminated in favour of the Plaintiff.
PARTICULARS
21.1 The prosecution against the Plaintiff was discontinued.
21.2 The Director withdrew charges against the Plaintiff."
Paragraph 14 of the defence is this:
"In answer to par 21 of the statement of claim the defendant:
(a) pleads that the charges were withdrawn by the Director of Public Prosecutions on 19 June 2012 and that the charges were also dismissed on that date;
(b) admits that the matter terminated in the Plaintiff's favour for the purposes of the tort of malicious prosecution;
(c) otherwise does not admit the paragraph."
The request for particulars numbered 13 asked who was the solicitor who had the conduct of the prosecution of the charges within the ODPP. The particulars delivered by the defendant were that the solicitor allocated to the matter in the ODPP was Mr Burton Ko. The next request for particulars asked this:
"What were the reasons that the charges against the Plaintiff were withdrawn by the Director of Public Prosecutions on 19 June 2012?"
The answer provided by the Crown Solicitor was this:
"I am instructed the that the Director of Public Prosecutions was of the view that there was a prima facie case against your client but due to discretionary reasons it was determined that there should be no further proceedings. Beyond this I am instructed that the reasons are privileged. I enclose a copy of a letter to Mr Steven Sher of your office dated 11 February 2013 in this regard."
The letter from the ODPP to Mr Steven Sher of 11 February 2013 is a response to a request originally made by Mr Sher on 15 November 2012. The substance of the letter is:
"4.1 The charge sheets against your client have already been served on your client or his legal representative at the time.
4.2 This Office does not have any investigation notes and diaries. The Director prosecutes and has no investigative function. The police investigate criminal offences.
4.3 All witness statements have already been served on your client or his legal representative at the time.
4.4 All statements made by the complainant have already been served on your client or his legal representative at the time.
4.5 This Office does not have any material gathered during the investigation of your client other than the brief of evidence which has been served.
4.6 Any other material relevant to the charges against your client has already been served in accordance with this Office's disclosure obligations. The only documents not served are protected by legal professional privilege (internal advice and memorandum) and this Office is not prepared to waive the privilege attached to those documents."
The argument advanced by the plaintiff is that that in fact constitutes a waiver of legal professional privilege. Legal advice is often merely an opinion. It is clear from the letter which I have just quoted that Mr Ko, who was dealing with the matter on behalf of the ODPP, formed a view of the evidence which led to the decision to discontinue the prosecution of the plaintiff. In other words Mr Ko's opinion is the subject of the claim for legal professional privilege. It certainly has not been waived.
The argument advanced by the plaintiff is along these lines, if I understand it correctly. If the matter had proceeded to trial either by a magistrate at the committal stage or by Judge alone at trial or at a trial with judge and jury all the evidence would be disclosed and a final determination made which the plaintiff would understand either from reasons given by the magistrate at committal or by reasons given by a judge sitting alone or by the jury's verdict after hearing all the evidence. However, at no stage during such a process is the opinion of any lawyer relevant. Nor would the lawyer's opinion as to the strength or otherwise of the case against the person being prosecuted be disclosed. I cannot see how the fact that the proceedings were discontinued waives the opinion of a lawyer as to the strength or weakness of the case or the reasons for the matter being discontinued. For that matter, whether the evidence that was collected by the police and handed to the ODPP established a prima facie case is in itself an opinion about which any lawyer can provide his own opinion. Minds on these matters often differ. However, the mere fact that some discretionary matter was taken into account in making the decision to discontinue the proceedings does not, in my view, mean that any legal advice which led to the discontinuance of the proceeding has been waived by the fact that the proceedings were in fact discontinued.
Accordingly, I reject the submission that the ODPP has somehow waived legal professional privilege by making a decision to discontinue the criminal proceedings in the Local Court.
The next area for my determination concerns the production by the defendant of a redacted case report numbered C44735360. The redacted version of that document is annexure CAHG9 to the affidavit of Cameron Andrew Heydon Giles sworn on 14 October 2015 which is exhibit A-A. The document commences on p 41 of that affidavit and the relevant redactions are on the bottom of p 41 and the top of p 42. The defendant, acting on behalf of the ODPP, claims the same legal professional privilege. For the purpose of this ruling I have been given an unredacted copy of the document which is marked exhibit 2-2. It has not been shown to the plaintiff and it will be returned to the defendant's solicitor at the end of this judgment.
I have carefully read the redacted matter. It clearly merely refers to communications between the officer-in-charge of the prosecution, Detective Senior Constable Steven Hicks, and Mr Ko of the ODPP and in essence records the advice provided by Mr Ko to the police and the reasons for the discontinuation of the proceedings, the discretionary matters which clearly are the subject of the internal advice or memorandum prepared by Mr Ko. It records legal advice given by Mr Ko to the police as to the reasons for discontinuing the proceedings which legal advice clearly was also communicated to the complainant as it must have been under the ODPP guidelines. The information continues to attract the legal professional privilege claimed by the ODPP.
The argument advanced on behalf of the plaintiff is that that privilege has been waived by the entering of the advice into the computerised police operating system ("COPS") and that that amounts in fact to a waiver. The submission put to me on behalf of the plaintiff is that the entering of the information into the COPS system made it in essence available to anybody who wished to have access to it. With the utmost respect I cannot accede to that submission. The first thing to note is that the document itself specifies in pars 10 and 11 all who have had access to it since the entry began. The last three entries are dated 11 April 2012, 20 June 2012 and 20 June 2012. One will note from the pleadings which I have already quoted that the proceedings were discontinued on 19 June 2012. No entry has been made since the entry made finalising the case because of dropping charges on 19 June 2012. The entries relating to the discontinuance appear on my reading of the unredacted document to have been made on 20 June 2012. That is that the information was only entered up on 20 June 2012 when the case had already been discontinued and the entry was finalised. There has been no access given to the document since that time to anybody other than to the defendant's solicitor but that is not shown on the redacted copy but is shown on p 12 of the unredacted copy. Therefore there has been no access granted to it by anybody other than the DPP since the final entries were made by Detective Senior Constable Hicks on 20 June 2012.
The document itself says that it has a security level which is noted to be "in confidence". The Court is prepared to take judicial notice of the fact that COPS is not available to the public at large, or to the legal profession at large. It may be available internally to members of the New South Wales Police Force but their having access to it is, by what is before me, automatically recorded. If one needed any authority for the proposition that the mere ability of other members of the police force to gain access to the relevant case report does not waive privilege, one need only consider cases such as Seven Network Ltd v News Ltd [2005] FCA 864 where Graham J stated, at [56]:
"Where a corporate client has received legal advice, any disclosure of the terms of that advice or the substance thereof from one officer to another within the corporation will not constitute a "disclosure to another person" and thereby result in a loss by the client of the relevant privilege."
His Honour cited Arrow Pharmaceuticals Ltd v Merck and Co Inc [2004] FCA 1131 for that proposition. That case turned on the application not of the Evidence Act but of the common law but the position appears to be the same under both. The author of Uniform Evidence Law 11th ed, Stephen Odgers, postulates that it is likely to be held that disclosures of legal advice or the substance thereof by officers of one corporation within a group of corporations to other officers in the group of corporations or between different officers of another corporation within the group would not result in the loss of relevant client legal privilege. Odgers refers to [56] of the judgment of Graham J, which I have cited. Accordingly, the fact that some other members of the New South Wales Police might be able to obtain access to the case report does not in my view establish the proposition that there has been a waiver of legal professional privilege. In any event, it is clear that no one has had access to the document since 20 June 2012 other than the current solicitor acting for the defendant in these proceedings.
For those reasons the relief sought by the plaintiff is not available. The notice of motion filed on 14 October 2015 is dismissed. I order the plaintiff to pay the defendant's costs. Exhibit 2-2 to be marked and returned to the defendant's solicitor.
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Decision last updated: 27 January 2016