Nye v State of New South Wales & ors

• 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 CORAM: A subpoena for the production of documents and a notice to produce have been served on the Director of Public Prosecutions as sixth defendant (the Director). They require production, inter alia, of the Informants' Register or Index relating to Danny Shakespeare. Objection has been taken by the Director to the production of the register on the basis that the whole of its contents is protected by legal professional privilege (the general or blanket claim) and alternatively that a number of the documents are the subject of such protection on the basis that they were brought into existence for the dominant purpose of obtaining or giving legal advice or for use in litigation which was then pending or intended or reasonably apprehended. 2 In a judgment delivered on 13 September 2002, I dealt with the alternative basis of claim to protection, and determined that a number of the documents in the various folders that were produced to the Court as constituting the relevant parts of the Informants' Register or Index consisted of legal advice that was tendered in connection with legal proceedings, being a prosecution for murder and certain drug-related offences, which were then either on foot or the commencement or continuance of which was in contemplation. Two documents were excepted from the protection of legal professional privilege on the basis that they fell within a well recognised category of excepted documents dealt with in such cases as: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996-1997) 188 CLR 501; Attorney General (NT) v Kearney (1985) 158 CLR 501; Clark v United States (1933) 289 US 1; Regina v Bell, ex parte Lees (1980) 141 CLR 14. 3 A determination in respect of the general or blanket claim was deferred to enable consideration to be given to it. 4 The submission made on behalf of the Director was that all of the actions taken in creating, maintaining or otherwise in connection with the Informants' Register are protected by legal professional privilege because they were actions taken in connection with either litigation then on foot or in the reasonable contemplation of the Director. Furthermore it was submitted that the Director's functions under the Director of Public Prosecutions Act 1986 were in the nature of legal functions of a kind that attracted legal professional privilege. In order to determine this claim, it is necessary to consider the terms of the Director of Public Prosecutions Act 1986 (the Act) and the nature of particular functions assigned by the Act to the Director. 5 Historically, a number of the functions now performed by the Director were functions that were vested in, and performed by, the Attorney General; others were performed by the Clerk of the Peace. Under the Common Law the Attorney General had the function of prosecuting criminal offences on behalf of the Sovereign. In addition under the Common Law there were a number of administrative functions, some of which had political overtones, that devolved on the Attorney General. These included the powers to determine that no Bill of Indictment should be found, to file an ex officio indictment, to enter a nolle prosequi and to formulate administrative policies concerning the prosecution of offenders. In addition, the Attorney General, as a Member of Parliament, had parliamentary duties which included not only responsibility to the Parliament and duties in the electorate, but also the function of advising the Parliament on matters of law. In New South Wales a number of these functions were made the subject of legislation in 9 George IV Chapter 83. 6 In 1986 significant changes were made to the system of administration of criminal justice as a result of a package of legislation that included the Director of Public Prosecutions Act 1986, the Crown Prosecutor's Act 1986 and the Criminal Procedure Act 1986. In his Second Reading Speech concerning the bills which constituted the package, the then Attorney General, Mr T Sheahan said that the "package of bills" then introduced was designed, inter alia, to establish "the office of Director of Public Prosecutions … (which) will mean that the general responsibility for the prosecution of serious criminal offences in this State will be vested in a single person, who is politically independent", and secondly, that "the office of Clerk of the Peace is to be abolished" (Hansard, 1 December 1986, vol 194, p 7339). He referred to various functions of the Attorney General that were to be conferred on the Director but which could still be exercised by the Attorney General. Indeed, the intent of the Act appears to have been to preserve the powers of the Attorney General in large measure. Thus, the then Attorney General said in his speech: "The measures in the Director of Public Prosecutions Bill will preserve the Attorney General's traditional role and the powers that go with it, but at the same time create an important new office to share responsibility for criminal prosecutions" (ibid at p.7340; bold added).

and: "The Attorney General retains some measures of control, and immediate responsibility, for the prosecution of serious criminal offences. Although the bill does not take away any of the Attorney General's functions or powers, it does ensure that the Attorney General is accountable to Parliament if, and when, he exercises them." (id; bold added) 7 Two of the traditional roles to be shared by the Attorney General and the Director were said to be the power to commence proceedings for indictable offences and the power to terminate such proceedings (ibid pp 7340-7341). One role not shared by the Attorney General with the Director was said to be the: "power to indemnify a person against prosecution for a specified offence, or in relation to specified acts, or omissions, committed by the person" (ibid p.7343) 8 The Act created the positions of Director of Public Prosecutions (s 4), Deputy Directors of Public Prosecutions (s 5) and Solicitor for Public Prosecutions (s 6). It provided that the Director: "shall have and may exercise the functions conferred or imposed on the Director by or under this or any other Act." (s 4(2)) 9 Under the Act the Director is made responsible to the Attorney General "for the due exercise of the Director's functions," (s 4(3)), but the Act provides that notwithstanding such responsibility to the Attorney General: "nothing in (s 4(3) affects or derogates from the authority of the Director in respect of the preparation, institution and conduct of any proceedings." 10 The functions of the Director are set out in Part 3 of the Act. The principal functions are defined in s 7 as being: "(a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court, (b) to institute and conduct, on behalf of the Crown, appeals in any court in respect of any such prosecution, and (c) to conduct, on behalf of the Crown as respondent, any appeal in any court in respect of any such prosecution. (s 7(1))."

The same section provides that the Director has "the same functions as the Attorney General" in relation to: "(a) finding a bill of indictment, or determining that no bill of indictment be found in respect of any indictable offence in circumstances where the person concerned has been committed for trial, (b) directing that no further proceedings be taken against a person who has been committed for trial or sentence, and (c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial." 11 The foregoing principal functions are, of their very nature, administrative or executive. Such functions envisage the Director acting as the surrogate for the Crown (s 7(1)), or in lieu of the Attorney General (s 7(2)). The principal functions cannot, in my opinion, be said to have as their dominant purpose the obtaining or giving of legal advice, nor the bringing into existence of documents for use in litigation, other than perhaps a bill of indictment or charge or nolle prosequi. 12 Section 8 of the Act enables the Director to institute and conduct committal proceedings for indictable offences, proceedings for summary offences and summary proceedings for indictable offences. The powers conferred by this section extend to conducting appeals, but are restricted in respect of summary offences to prescribed summary offences or in other cases in which the person responsible for the prosecution has consented in writing. 13 Section 9 empowers the Director to take over prosecutions or proceedings, whether for an indictable or summary offence, where they have been instituted by some other person, but a limitation on such taking over is provided in terms similar to those referred to in s 8. Where the Director decides to take over a matter in accordance with s 9, he is required to give notice in accordance with s 10. 14 The nature of the functions conferred by ss 8, 9 and 10 is not of a kind that would per se attract legal professional privilege to all activities undertaken in the course of exercising such functions. 15 Other powers or functions conferred on the Director include:

(b) assisting a coroner, but only with the consent of the coroner (s 12);

(c) furnishing guidelines "to the Deputy Directors, the Solicitor and Crown Prosecutors" with respect to the prosecution of offences, including guidelines as to the exercise of specified functions (s 13);

(d) recommending to the Commissioner of Police or any other person that proceedings be instituted in respect of any offence (s 14);

(e) giving directions to the Police Commissioner or any other person who institutes or conducts a prosecution requiring the provision of specified information for the purpose of enabling the Director to consider instituting or carrying on a prosecution, taking over proceedings or carrying on proceedings in connection with any function conferred on the Director (s 16);

(f) requesting the Attorney General to grant indemnity from prosecution or to give an undertaking that certain material will not be used in evidence (s 19);

(g) the exercise of "such functions as are prescribed" (s 20(1)(a));

(h) doing "anything incidental or conducive to the exercise of any functions of the Director" (s 20(1)(b));

(i) advising and assisting any Crown Prosecutor or any member of the Police Force or, if so directed by the Attorney General, any other person in respect of the conduct of criminal proceedings (s 20(2)). 16 From the foregoing examination, I conclude that whilst some of the functions of the Director of Public Prosecutions may include the obtaining of legal advice, or the creation of documents for use in litigation then pending, or intended, or reasonably apprehended, not all functions of the Director fall within the ambit of legal professional privilege. The documents relevant to the exercise of any particular function must be looked at in order to determine whether or not such documents attract legal professional privilege. What is clear, in my opinion, is that the Director is not a solicitor, and does not act as such, notwithstanding that the qualifications for appointment to the office of Director require the appointee to be a legal practitioner of at least seven years standing (Schedule 1, Cl 2(2)). 17 The Office of Solicitor for Public Prosecutions is also created by the legislation. As with the Director, so too with the Solicitor, his appointment is by the Governor (s 6(1)). The Solicitor for Public Prosecutions has functions conferred by s 23 of the Act. These are:

(a) to act as solicitor for the Director in the exercise of the Director's functions;

(b) to instruct the Crown Prosecutors and other counsel on behalf of the Director. 18 The Act thus confers the status of client on the Director. The Director is the client of the Solicitor for Public Prosecutions. 19 The functions conferred by s 23 of the Act are conventional functions performed by a solicitor. However the fact that a person, or public officer, is, or performs functions as, a solicitor does not carry with it the consequence that all documents produced, or even all advice given, by such person, will be protected by legal professional privilege. What the Act does envisage, however, is that where legal advice is required by the Director in the exercise of his functions, it will be sought from the Solicitor for Public Prosecutions. 20 The existence of the Office of Solicitor for Public Prosecutions and the functions conferred on such officer in my opinion support the conclusion that the Director is not and does not perform functions as a solicitor or barrister. In the terminology of the Legal Profession Act 1987, the Director is not, and does not act as, a legal practitioner in the exercise of his statutory functions. Indeed, the functions performed by the Director are largely administrative in nature. The Director is in many instances the client of the Solicitor for Public Prosecutions and in other instances is exercising statutory functions conferred by the Act. 21 An examination of Part 4 of the Act, which relates to the Attorney General, is also illuminating in relation to the general or blanket submission put on behalf of the Director. In s 25 of the Act, there is provision which requires the Director to "consult with the Attorney General with respect to matters concerning the exercise of the Director's functions". No such provision is made in respect of the performance of function by the Solicitor for Public Prosecutions. In my opinion this highlights an important difference between the two offices, stressing the administrative or executive functions of the Director on the one hand (which are subject to executive, administrative and political oversight), and the legal functions of the Solicitor for Public Prosecutions on the other hand (which are not subject to such executive, administrative or political oversight). 22 In view of the conclusion to which I have come in relation to the functions performed by the Director, it is necessary to consider the miscellany of documents that are said to constitute the Informants' Register or Index in relation to Danny Shakespeare. The documents are contained in 12 files. As already indicated, a number of the documents consist of legal advice to the Director from either the Solicitor for Public Prosecutions, or from Crown Prosecutors, in relation to proceedings then on foot or contemplated. Legal professional privilege attaches to all of these documents. Some of the documents, however, are not in this category. For example, the files include correspondence passing between the solicitor for the plaintiff and the Director, correspondence passing between a solicitor for a third party and the Director concerning a trademark used at the laundry of Roy Thurgar, newspaper clippings and requests from the Police Service for indemnity in respect of Danny Shakespeare. A number of other documents from police addressed to the Director are also included. All, however, are said to be part of the Informants' Register. 23 While the production of a number of the documents (being those contained in folders 6, 7 and 8), was not pressed, there are a number of documents which would not be the subject of legal professional privilege unless the whole of the relevant portion of the Informants' Register is within the ambit of such privilege. 24 A solicitor employed in the office of the Solicitor for Public Prosecutions has sworn two affidavits in support of a claim for legal professional privilege. He was involved in the design and setting up of the Informer's Index, and continues to be involved in and responsible for its maintenance. Each individual who is proposed to be used, or in respect of whom approval for use is sought, as a witness in criminal proceedings conducted by the Solicitor for Public Prosecutions, and who is an informer is recorded on the Informers' Index. However, in order to fall within this category, such a person must have attributes that "are essentially that (he/she) is an alleged co-offender of the person being prosecuted or proposed to be prosecuted (the accused) or is a fellow prison inmate alleging admissions by the accused, or is a civilian under cover operative used as part of the investigation of the accused". Danny Shakespeare fell within the category of alleged co-offender. 25 When an individual is recorded on the Informers' Index, a collection of papers relating to such person is kept in the office of the Solicitor for Public Prosecutions. The papers in the Index concerning the particular individual are said to be "used as the basis for the preparation of advice or submissions or both as to whether the individual should be approved to be called as a witness in a commenced or proposed criminal prosecution". Such documents may also be a source of reference where applications are made for immunity. 26 According to an affidavit filed on 26 September 2002, "the Informers' Index papers are kept for the main purpose of giving legal advice concerning either then existing legal proceedings, or in anticipation of possible future legal proceedings, whether then contemplated or otherwise". 27 In Jarman v Lambert & Cook Contractors Limited (1951) 2 KB 937, the Court of Appeal consisting of Evershed MR, Denning and Hodson LJJ, considered the ambit of "anticipated proceedings" as that phrase was used in the Evidence Act 1938 (UK). Evershed MR said that "anticipated" meant "regarded as likely" or "reasonably probable" (at 942) rather than "regarded as certain" (id.). Hodson LJ expressed the view that "anticipated": "should be construed as including 'likely'". Denning LJ said that for proceedings to be "anticipated": "there must be a likelihood of them" (at 946). 28 In my opinion, the approach adopted in Jarman v Lambert & Cook Contractors Limited (supra) is appropriate to the field of legal professional privilege insofar as that privilege is called in aid to prevent the production of documents that have, either as originals or copies, been brought into existence for the dominant purpose of use in litigation that is reasonably apprehended or anticipated. 29 In the present case, Danny Shakespeare was an informant who was proposing to give evidence in relation to a charge of murder against the plaintiff. Furthermore, as the Informants' Register or Index indicates, he was, until later removal from the Register or Index, an informer in respect of other persons, and an actual or possible witness in criminal proceedings against such persons. One of the functions of the Solicitor for Public Prosecutions is to act as solicitor for the Director in the exercise of the Director's functions (s 23(a)). The performance of such a function will comprehend the giving of advice to the client, the Director, in relation to the performance by the Director of the functions conferred by the Act. One of those functions is instituting and conducting prosecutions (s 7(1)(a)). Incidental to the performance of such function will be the determination of whether or not a particular witness should or should not be called in a criminal proceeding. In these circumstances, the preparation by the Solicitor for Public Prosecutions of a dossier, described as the Informants' Register or Index relating to Danny Shakespeare, falls within the ambit of the statutory functions conferred on the Solicitor for Public Prosecutions by the Director of Public Prosecutions Act 1986. 30 In the case of Danny Shakespeare, criminal proceedings in which he was, or was to be, involved, were anticipated or reasonably apprehended (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996-1997) 188 CLR 501 at 508-509; O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 22-23), if not actually on foot. Accordingly, I am of opinion that the claim to legal professional privilege which has been made in respect of the documents in the 12 folders produced to the Court is correct and that access to such documents should be denied to the plaintiff.

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