R v Gatt

Supreme Court of NSW|2018-04-10|Before: Schmidt J, Mr P

Judgment

An issue arose as to Mr Gatt's right to be given access to two letters sent to the Director of Public Prosecutions by Mr Borg's solicitors, during the course of plea negotiations. Mr Borg later entered his plea to the murder charge which had already been laid against him and of which he was later convicted and sentenced.
These proceedings are adversarial and while Mr Gatt was, on the Crown case, Mr Borg's co-offender, Mr Borg is not a party to the proceedings. His involvement in Bassil Hijazi's murder has already been dealt with to finality in other proceedings: R v Borg [2017] NSWSC 746.
There was no issue between the parties as to the relevance of the letters, given Mr Gatt's challenge to aspects of Mr Borg's evidence, pursued in cross-examination. His credibility and reliability were also in issue.

Mr Borg's voluntary disclosure

These questions arose in circumstances where not only was it known to Mr Gatt that Mr Borg was to be called as a prosecution witness, he having been convicted of the murder with which Mr Gatt was also charged, but on sentence he received a discount for his plea and assistance. That included a discount for his promised assistance at this trial.
What the disclosed part of the letters revealed, was that Mr Borg had earlier offered to plead guilty to lesser charges, an offer which clearly had not been accepted, given his late plea to murder. They accorded with what had been disclosed to a police officer in an email sent by Mr Borg's solicitor, where it was said: "As you know our client has offered to: ● Plead guilty to a different charge ● Provide a further statement. ● Give evidence against Mr Gatt."
There was no issue about that email having been disclosed to Mr Gatt, or that Mr Borg could be cross-examined about the matters there revealed.
In the result, Mr Borg could undoubtedly be cross-examined about lies which he told police in his initial police interview in 2014, from which he later resiled; that he had attempted, but failed to have the Crown agree to lay a lesser charge against him; that he later entered a plea to murder; and that he was later convicted and sentenced on agreed facts, which established the nature of the lies which he initially told police in 2014.

Legal professional privilege

The nature of legal professional privilege at common law was considered in Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80. At 490, Deane J explained it to involve "subject to defined qualifications and exceptions", a person being entitled to preserve the confidentiality of confidential statements and other materials made or brought into existence for the sole purpose of seeking or being furnished with legal advice by a practising lawyer, or for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings.
As also discussed in Maurice, a litigant can waive such privilege by intentional disclosure and by waiver by implication, including by the provision of privileged information to the other party. Waiver occurs "when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication.": at [487]-[488].
So approaching the letters, in my view apart from the parts of the letters which the Crown has already disclosed, at common law, the letters were privileged.
A person who engages in criminal conduct may thereby commit more than one offence, some more serious than others. Prosecutors have a discretion as to what charges will be laid and pursued against such an offender. In Mr Borg's case, the charge laid against him was murder. His offer to plead guilty to lesser offences, necessarily involved admissions that he had committed those offences.
There is no privilege in such admissions and at trial they would be admissible under ss 87 or 88 of the Evidence Act, that being defined in the Dictionary to the Evidence Act to mean "a previous representation" that is: "(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding."
That is why there could be no objection to the Crown's disclosure to Mr Gatt of the email which disclosed Mr Borg's admission to having committed an offence. The disclosed parts of the letters identified the actual offences which he had admitted having committed.
It does not follow that the balance of the disputed letters, where Mr Borg's solicitors sought to persuade the prosecutor to exercise the prosecutorial discretion to pursue these lesser charges against Mr Borg, were not privileged, unless involving other admissions or waiver. The letters were undoubtedly prepared and sent by Mr Borg's solicitors, for the sole purpose of the proceedings by which the murder charge was to be pursued, in order to persuade the prosecutor to accept a plea to a lesser charge, rather than pursuing the murder charge.
In the circumstances, that Mr Borg's privilege had been waived, so that the prosecutor was obliged to serve the disputed parts of the letters on Mr Gatt, or that he could call for their production at trial, did not follow.
In Carter the issue which arose was whether persons having in their possession or power documents which are subject to legal professional privilege can be compelled to produce those documents on subpoena issued on behalf of an accused person in criminal proceedings, when those documents may establish the innocence of the accused or may materially assist his defence, but the person entitled to the privilege does not waive it. Further, whether "the immunity from production which is generally conferred by legal professional privilege is subject to an exception in favour of protecting the liberty of the subject": at [3].
It was there concluded by majority, that a person cannot be compelled to produce documents or communications subject to legal professional privilege under a subpoena issued by an accused in criminal proceedings, even if that might assist their defence, or establish their innocence.
While it was contended for Mr Gatt that legal professional privilege had been waived in the disputed parts of the letter, it was accepted that there was also a privilege attaching to settlement negotiations at common law, which if it applied, meant that Mr Gatt was not entitled to have them served upon him pre-trial, or produced in answer to the call. But it was argued that this did not apply to plea negotiations in criminal proceedings.
In Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 522, Gleeson CJ explained the "without prejudice privilege" : "The policy of the law which underlies the 'without prejudice' privilege was Stated by Oliver LJ in Cutts v Head [1984] Ch 290 at 306, as follows: 'That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should ... be encouraged fully and frankly to put their cards on the table ... The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability.'"
For Mr Gatt no authority was referred to, in which it has been held that this rule did not apply in criminal proceedings, or that such public policy considerations do not also arise in relation to such proceedings.
That they do, is supported by the encouragement long given to negotiations as to entry of pleas being pursued in criminal prosecutions, by the discounts which can flow on sentence from the entry of pleas, as well as those which can follow the provision by an accused of assistance: see for example the conclusions reached in R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 304 in respect of discounts on sentence available on entry of plea, for the savings in time and cost which results, where reference is made to R v Winchester (1992) 58 A Crim R 345.
There Hunt CJ at CL explained at 350, that a plea of guilty may be taken into account as a factor in its own right, independently of contrition, as mitigation for the co-operation in saving the time and cost involved in a trial and that the amount of the discount will depend on when the plea of guilty was entered or indicated, so that leniency is afforded as a result of purely utilitarian considerations, as with the "discount" allowed for assistance given to the authorities. Such a discount is given "in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay".
That such considerations remain important to the criminal justice system, is revealed by the outcome of the June 2015 report 141 of the New South Wales Law Reform Commission Encouraging Early Guilty Pleas and the impending reforms which will result, including the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 coming into force.
For Mr Gatt reliance was placed on views expressed by McNicol in the Law of Privilege, (1st ed, 1992, The Law Book Company) at 478-480, that despite English cases there cited, Fisher & Co v Apollinaris Co (1875) 32 LT 628 and Re Ramsay (1870) LR 3 PC 427, the correctness of the view that this privilege extends to the compromise of criminal proceedings, was questioned. Reference is also there made to a view expressed by the Australian Law Reform Commission in Report No 15 Sentencing of Federal Offenders (1980), that plea negotiations should not be kept confidential and provisions in the New South Wales Evidence Bill 1991 and the Australian Law Reform Commission Evidence Bill 1987, which each contained provisions excluding from this privilege, settlement negotiations in criminal proceedings.
While no authority was cited where McNicol's views of the common law have been accepted, the Evidence Act does deal with the exclusion of evidence of settlement negotiations in s 131, which accords with the views expressed in the reports and bills to which she refers.
Despite this, I was not persuaded that at common law, the rule which Gleeson CJ discussed in Hong Kong Bank of Australia Ltd v Murphy, does not apply to criminal proceedings.
That was supported by the approach of the Victorian Court of Appeal in DPP (Cth) v Galloway (a pseudonym) (2014) 46 VR 809; [2014] VSCA 272 and the provisions made in s 131, to which I will return, which suggest that its enactment has altered the operation of the rule in both the case of civil and criminal proceedings.
In the result, I was satisfied that the Crown was correct in concluding, when it disclosed the part of the letters in which Mr Borg's admissions were made, that he did have a claim to privilege in the balance of the letters, even though the letters involved a communication to the prosecutor, who was known to have a duty of disclosure to Mr Gatt, if Mr Borg was to be called as a witness in his prosecution.

Was there a "Cox v Railton" exception?

It was finally submitted for Mr Gatt that in any event, there was an exception to any privilege which Mr Borg had in the letters, because they were sent to the prosecutor, as part of Mr Borg's pursuit of another offence, identified to be perverting the course of justice. That had given rise to a "Cox v Railton" exception, of the kind considered in Attorney-General (NT) v Kearney (1985) 158 CLR 500; [1985] HCA 60. There it was held that the privilege does not exist in the case of crime or fraud, or where a communication is made to further an illegal purpose and Bell; Ex parte Lees (1980) 146 CLR 141; [1980] HCA 26, where the exception was described at 156 to arise when confidentiality is sought "in order to frustrate the processes of law".
What was relied on included the lies initially told by Mr Borg in his 2014 police interview, when amongst other things he denied that he had been in possession of a gun, when Bassil Hijazi was murdered; his later pursuit of the laying of lesser charges, by representations which were not accepted by the prosecutor; what was later revealed as to his earlier lies, by the facts agreed and on which he was convicted and sentenced for murder; and the evidence which he has given in these proceedings, which also establish that he had initially lied to police, when he said that he had left the gun which he was carrying when Bassil Hijazi was shot, behind in the car.
What the elements of the alleged offence of attempting to pervert the course of justice were and how it was that the evidence relied on established that what Mr Borg had done amounted to commit that offence were, however, not addressed.
That Mr Borg had pursued a course which involved the commission of such an offence, was not supported by the Crown.
What needs to be shown to establish that a "Cox v Railton" exception has arisen, does not need to be proven beyond reasonable doubt. Nevertheless, given the seriousness of what was alleged for Mr Gatt, the approach discussed in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 had to be applied.
That was because proof of what to be established by Mr Gatt on the evidence, had to be approached in accordance with the requirements of s 140(2) of the Evidence Act, which imports the principles discussed in Briginshaw. That required that the Court bear in mind the seriousness of what was alleged and their consequences, when determining whether the onus falling on Mr Gatt to establish what was submitted to establish Mr Borg's commission of the alleged offence, had been met, on the balance of probabilities.
In considering whether the onus which fell on Mr Gatt had been met, it was also necessary to take into account Mr Borg's evidence that he had not initially told police about the gun he had been carrying when Bassil Hijazi was shot, because he had not then expected that Mr Gatt would fire any shots; and that later he tried initially to distance himself from the shooting because, first he was unable to accept, as he finally came to, that he could have committed the offence of murder, when it was not he who had shot Bassil Hijazi, at a time when he had not anticipated that he would be shot.
This evidence was not addressed, but it was plainly relevant to the mental element of the offence it was alleged Mr Borg had committed, with the result the loss of any privilege which he had in the dispute parts of the letters.
In all of those circumstances, I was not satisfied that what was relied on had established that Mr Borg had attempted to pervert the course of justice, thereby losing the privilege which he had in the balance of the letters.
In the result I took the view that while those parts of the letters disclosed to Mr Borg were not privileged, involving as I have explained, admissions of offending which the prosecutor had a duty to disclose to Mr Gatt and on which he was entitled to rely at his trial, it had not established that Mr Gatt was at common law, entitled to be have the balance of the letters disclosed to him by the prosecutor.

The Evidence Act procedure

What was also pressed for Mr Gatt was that the call made for the letters during the course of the trial, as Mr Borg was giving his evidence, was governed by the provisions of the Evidence Act, with the result that the procedure provided in s 131A applied, given Mr Borg's objection to the prosecutor producing those part of the letters.
That was not disputed by the Crown or Mr Borg, that being an issue which could have been dealt with pre-trial, but had been the subject of ongoing discussions.
Section 131A requires that: "131A Application of Part to preliminary proceedings of courts (1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following: (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6."
Section 166 appears in Division 1 of Part 4.6, relevantly providing: "166 Definition of request In this Division: request means a request that a party ("the requesting party") makes to another party to do one or more of the following: (a) to produce to the requesting party the whole or a part of a specified document or thing,"
Client legal privilege is provided for in Division 1 of Part 3.10 "Privileges". Privilege in legal advice is dealt with in s 118 and for confidential communications and documents made or prepared for "the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding", in s 119. Such privilege is not confined to client/lawyer dealings, but extends to communications with a third party. "The control is in confidential communication or confidential document and the necessary dominant purpose": State of New South Wales v Jackson [2007] NSWCA 279 at [36].
The position of unrepresented litigants is dealt with in s 120 and ss 121-126 deal with the loss of these privileges, in identified circumstances.
Section 131A accordingly requires consideration of whether the disputed letters are privileged under s 119, without reference to the provisions of s 123, which provides an exception to the privilege in the case of certain defendants in criminal proceedings, or to s 128, which provides a separate privilege in relation to self-incrimination.
That at that stage, when what was being sought was access to a document, in determining whether there was an entitlement to such access, account was not to be taken of s 123, which provides an exception to privilege in the case of criminal proceedings in specified circumstances, accords with the conclusion I had reached as to the operation of the common law, which regulates pre-trial disclosure. Section 123 alters the common law, but it only applies "at trial".
What is not excluded from consideration in the s 131A procedure includes ss 121 and 120, which govern the loss of client legal privilege generally; s 125, which regulates the loss of the privilege by misconduct; s 126 which regulates its loss by related communications and documents; and s 131, which regulates the exclusion of evidence about settlement negotiations.
Section 131 appears in Division 3, "Evidence excluded in the public interest". It is the statutory form of the common law "without prejudice" privilege. That exclusion does not extend to communications about "an attempt to negotiate the settlement of a criminal proceeding, or an anticipated criminal proceeding": s 131(5).

Are the letters privileged under s 119?

Mr Gatt's case was that the letters did not fall within s 119 and even if they did, that privilege in them had been waived or lost.
Both the Crown and Mr Borg contended that the letters were confidential documents, as defined in s 117 and that despite the Crown's partial disclosure, Mr Borg had not waived his privilege in them.
Section 119 provides: "119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party."
As found in Galloway at [37], ss 118 and 119 are cast in terms which make it apparent that the Parliament "intended the broadest scope for the phrase 'adducing evidence' in ss 118 and 119", in order to provide client legal privilege for evidence "in whatever form it is brought before a court". This conclusion reflects that the term is not defined in the Act, but the topic is dealt with in Chapter 2 "Adducing evidence" where adducing evidence at trial is dealt with, including by cross-examination of witnesses, in Division 5.
"Confidential communications" are defined in s 117 to mean: "a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law."
The letters were sent by Mr Borg's solicitor in pursuit of his plea negotiations. That is the time that the question of confidentiality arises. At the time that they were sent, his solicitors undoubtedly had an obligation to Mr Borg, arising from the nature of their relationship with him, not to disclose those letters to anyone other than the prosecutor, including to Mr Gatt. Accordingly, both letters fell within the definition of "confidential communications" in s 117. As I have explained, in so far, however as they contained admissions, those parts of the letters would be admissible at trial under s 87.
It followed that even if, given the prosecutor's obligation of disclosure to Mr Gatt, the prosecutor was obliged to disclose the other parts of the letters to Mr Gatt once it decided to call Mr Borg as a witness at his trial, it is enough that at the time that the letters were sent to the prosecutor, the person who made the communication was then under an obligation not to disclose its contents, for the privilege to arise: Jackson at [55].
That the letters were privileged under s 119 follows from the fact that the section applies to evidence which would result in disclosure of a confidential communication "of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party."
Despite the arguments advanced for Mr Gatt to the contrary, I was satisfied that at the time the letters were sent to the prosecutor, that was their purpose. Mr Borg had then already been charged with murder. When they wrote the letters his solicitors were thus undoubtedly acting for him and providing him with their professional services in relation to the then pending criminal proceedings on that charge, by advancing arguments by which they sought to persuade the prosecutor, to accept his pleas to lesser charges.
Accordingly, on its face s 119 applied to the balance of both of the disputed letters.

Was Mr Borg's s 119 privilege waived or lost?

There was no suggestion that the privilege had been lost under s 121 or s 122. Mr Gatt relied on ss 125 and 126.

Section 125

Section 125 provides: "125 Loss of client legal privilege: misconduct (1) This Division does not prevent the adducing of evidence of: (a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or (b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power. (2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that: (a) the fraud, offence or act, or the abuse of power, was committed, and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power, the court may find that the communication was so made or the document so prepared. (3) In this section: power means a power conferred by or under an Australian law."
As I have discussed, the offence identified was attempting to pervert the course of justice.
To come within s 125, the evidence thus had to establish that "reasonable grounds" existed for finding that Mr Borg had committed that offence. Whether Mr Gatt met the onus which fell on him to establish that such reasonable grounds existed was in issue. That also had to be approached by the elements of the offence being considered in light of what the evidence establishes. As I earlier discussed, that had to be approached in accordance with the provisions of s 140 of the Evidence Act and Briginshaw.
For the reasons earlier explained, I was also not satisfied that the onus falling on Mr Gatt to establish the existence of such reasonable grounds, had been satisfied.
Mr Borg undoubtedly told lies in his first 2014 police interview, which were relied on, when his solicitors later sought to persuade the prosecutor to accept his plea to lesser charges. Those representations failed, not doubt because of the nature of the prosecutor's case against him. The final result was the entry of his plea to the charge of murder, his conviction and the discounts on sentence which resulted from his plea and the assistance which he gave and promised.
I was also not persuaded, however, that this was a sufficient basis upon which it could be concluded that reasonable grounds existed for the conclusions urged for Mr Gatt.
That was because the case advanced did not grapple with either the elements of the offence, or all of the evidence which was relevant to the question of whether or not the course Mr Borg pursued, with the assistance of his solicitors, could have amounted to an attempt to pervert the course of justice, a conclusion which on the Crown case, was not available. In the circumstances, I was satisfied that the onus which fell on Mr Gatt had not been met.

Section 126

Section 126 provides: "126 Loss of client legal privilege: related communications and documents If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document."
The meaning of s 126 was considered by Sackville J in Towney v Minister for Land & Water Conservation (NSW) (1997) 76 FCR 401. There his Honour observed that consideration must be given to the forensic purpose for which the document which has been voluntarily disclosed, is to be used: at 413.
The document relied on by Mr Gatt to establish the loss of the privilege under s 126 was exhibit V8, which refers to an offer Mr Borg had made to plead guilty to a lesser charge, which it is known was not accepted by the prosecutor.
Mr Gatt proposed to use exhibit V8 to advance his attack on Mr Borg's credit. In all of the circumstances, I have discussed, I was satisfied that Mr Gatt had not established that in order to properly understand that communication, it was reasonably necessary for the balance of the letters to be disclosed to him.
That was because, given how and when this issue arise to be resolved, consideration had to be given to all that was known to Mr Gatt, when the call was made. That was during the course of Mr Borg's evidence.
By that time what the prosecutor had disclosed to Mr Gatt included those parts of the disputed letters which identified the lesser offences he had unsuccessfully offered to plead to, before entry of his plea to the murder charge; the various statements which Mr Borg had made after the letters were sent; as well as the agreed facts on which he was sentenced and the evidence he had given to that point.
In his evidence Mr Borg had admitted the lies he had initially told police on interview in 2014, which were established by his later statements and the agreed facts on which he was convicted and sentenced for murder.
There could thus be no question that Mr Gatt also knew both the reasons why Mr Borg's offers had not been accepted, namely, the prosecutor's view that Mr Borg was guilty of murder and that Mr Borg had finally accepted the correctness of that view.
In all of those circumstances, I was satisfied that it could not be concluded that "a thorough apprehension or appreciation of the character, significance or implications of what was conveyed" in the email, that there had been an offer to enter pleas to lesser charges, required disclosure of the balance of the letters: Towney at 414.
All that had already been disclosed to Mr Gatt, gave him what he required in order to thoroughly appreciate the character, significance and implications of the offers Mr Borg had made to pled guilty to lesser charges, to which reference was made in exhibit V8.

Section 131

Mr Gatt also relied on s 131. It provides: "131 Exclusion of evidence of settlement negotiations (1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute. (2) Subsection (1) does not apply if: (a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent, or (b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute, or (c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced, or (d) the communication or document included a statement to the effect that it was not to be treated as confidential, or (e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute, or (f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue, or (g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify or to qualify that evidence, or (h) the communication or document is relevant to determining liability for costs, or (i) making the communication, or preparing the document, affects a right of a person, or (j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or (k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power. (3) For the purposes of subsection (2) (j), if commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that: (a) the fraud, offence or act was committed, and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act, the court may find that the communication was so made or the document so prepared. (4) For the purposes of subsection (2) (k), if: (a) the abuse of power is a fact in issue, and (b) there are reasonable grounds for finding that a communication was made or document prepared in furtherance of the abuse of power, the court may find that the communication was so made or the document was so prepared. (5) In this section: (a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding, and (b) a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding, and (c) a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person, and (d) a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent, and (e) a reference to commission of an act includes a reference to a failure to act. (6) In this section: power means a power conferred by or under an Australian law."
Contrary to the conclusions urged for Mr Gatt, I did not consider that s 131 provided for any exceptions to the client legal privilege provided for by ss 118 or 119. As is apparent from the structure of the Evidence Act and the terms of these sections, s 131 rather deals with a different matter, exclusion of evidence even when privilege in it may have been lost, in circumstances where there is a public interest in its exclusion.
It is undoubtedly the position that client legal privilege in either legal advice or communications to which ss 118 or 119 apply, can be lost during the course of settlement negotiations, whether that be of civil or criminal proceedings, including in the circumstances dealt with in ss 120 to 126.
Despite such a loss of privilege, with the exceptions specified in s 131(2) for civil proceedings and in the case of all attempts to negotiate the settlement of a criminal proceeding, as s 131(5)(b) provides, s 131 prevents documents or communications made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, from being adduced in evidence at trial.
What is provided by way of exception in s 131(2) and s 131(5), are thus not exceptions to client legal privilege, which is regulated by ss 121 to s 126. What s 131(2) and (5) rather provide for are exceptions to the public interest exclusion of evidence of settlement negotiations, provided for separately in s 131(1).
In the result, s 131(5)(b) did not assist Mr Gatt. That was because s 131A required that Mr Borg's objection be dealt with as if it were an objection to the giving or adducing of evidence at trial, to which s 119 applied.

If Mr Borg's objection were to the letters being adduced in evidence

It follows that Mr Borg objecting as he did to the letters being produced to Mr Gatt, in order that they could be used for the purpose for which they had been called, namely, so that they could be adduced in evidence, either through his cross-examination or by tender, it had to be concluded that the disputed parts of the letters could not be produced to Mr Gatt by the Crown, as he sought by the call which he made.
While Mr Gatt relied on the provision made in s 123 as to loss of client legal privilege in criminal proceedings, that did not avail him, given the way in which that section has been construed and the provisions made in s 131A(1).
Section 123 provides: "123 Loss of client legal privilege: defendants In a criminal proceeding, this Division does not prevent a defendant from adducing evidence unless it is evidence of: (a) a confidential communication made between an associated defendant and a lawyer acting for that person in connection with the prosecution of that person, or (b) the contents of a confidential document prepared by an associated defendant or by a lawyer acting for that person in connection with the prosecution of that person."
The "defendant" in this case is Mr Gatt.
In Galloway it was observed at [38], that s 123 being a section which abrogates the right to client legal privilege, it "must be interpreted as having no broader scope than Parliament can be seen clearly to have intended". It was there concluded that the scope of the section did not have the breadth for which Mr Gatt contended that it has, namely to permit him to call for those parts of the letters which are not in his possession. At [85] - [87] it was observed: "85 When s 123 uses the phrase 'adducing evidence', it refers to - and only to - the adducing by an accused of evidence already in the accused's possession or knowledge. The statement to that effect in The New Law of Evidence, on which the CDPP and the Commissioner both relied, is correct. 86 Section 123 preserved the recognised common law exception to LPP in criminal trials. Without s 123, ss 118 and 119 would have prevented an accused person from adducing evidence of privileged communications already in his/her possession. As Grove J held in R v Wilkie: [T]he effect of the section is to enable an accused to use what would otherwise be privileged information if he has possession of it, but it does not in its own terms provide a vehicle for enforced production of such material. 87 The intended operation of s 123 is, in our view, helpfully illustrated by the following example set out in the submission for the Commissioner. (We have made one modification, as marked): To illustrate, a company director may be charged with a criminal offence in circumstances where that director, in the course of his or her duties, had come into possession of legal advice provided to the company. The director may wish to give evidence about that advice in order to explain his or her state of mind (because, for example, it may assist to meet an allegation of dishonesty or recklessness). In the absence of s 123, s 118 would allow the company (the client) to claim LPP, with the result that evidence of the advice could not be adduced, and therefore would be inadmissible pursuant to s 134. Properly construed, s 123 reverses that situation so that the advice is admissible. Critically, however, in a case where the director did not already have the advice, s 123 would have no work to do. If any attempt was made to require the company to produce the advice, s 131A would prevent any reliance on s 123. Further, if a witness was asked about the advice during cross-examination, the witness could claim LPP [under s 118] to avoid answering the question because LPP operates at the point of compulsion, rather than at the subsequent point of determining the admissibility of the answer." [footnotes omitted]"
It was not contended that Galloway had been wrongly decided. It followed that s 123 also did not assist Mr Gatt. He could also not rely on it, to call for the production of the disputed parts of the letter, which were not in his possession.
The position which arose for consideration in Warburton v The Director of Public Prosecutions (NSW) [2017] NSWSC 69, where Galloway also arose for consideration, was different. What there arose to be considered was the use which could be made of confidential documents in other legal proceedings, by the holder of the privilege, attracting s 122 of the Evidence Act, as an exception to the s 119 privilege.
The circumstances which here arose for consideration were entirely different, because there had been no such voluntary disclosure of the disputed parts of the letters to Mr Gatt by Mr Borg.
Whichever foreshadowed use of the documents was sought to be pursued by Mr Gatt, either in Mr Borg's cross-examination or by tender, that would involve use of parts of the letters which were not in Mr Gatt's possession and to which he was not entitled to have access under s 123, because they were privileged and that privilege had not been waived or lost.
In the result, what arose to be resolved did not turn on whether Mr Gatt was an "associated defendant", as was contended for him. That term is defined in the Dictionary to the Act to mean in a criminal proceeding such as this: "a person against whom a prosecution has been instituted, but not yet completed or terminated, for: (a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose, or (b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted."
On Mr Gatt's case, even though at the time the letters were sent, Mr Borg was an associated defendant, at the time of his trial Mr Borg was no longer one, because he had already been both prosecuted and sentenced for his involvement in the murder. The result of this was that s 123 did not then preclude Mr Gatt from adducing the balance of the two letters, even though they fell within s 119.
Even if that construction was accepted, Mr Gatt was not entitled to require production of the balance of the letters, given Mr Borg's privilege in the letters under s 119 and Mr Gatt having no right, either at common law or under s 123 of the Evidence Act, to have them produced to him, as was concluded in Galloway.
Accordingly, it had to be concluded that the Crown was not obliged to produce the letters to Mr Gatt, in answer to his call.

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: 01 May 2018

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (22)