A subpoena was issued on behalf of the accused on 27 July 2018 addressed to the office of the Commonwealth Director of Public Prosecutions. I have previously given a judgment setting out some detail as to the context in which the current prosecution proceeds. This subpoena requested the production of particular material relating to communications between the office of the Director of Public Prosecutions and the legal representatives of Peter Borgas, who is a principal Crown witness and is about to give evidence this morning.
The Crown by Notice of Motion, dated 31 July, seeks for the subpoena to be set aside on essentially two bases; one is that no legitimate forensic purpose has been identified for the call upon the Director's officers for the production of the relevant material, and, secondly, if there is a legitimate forensic purpose, the material ought not be produced because it is protected by the privilege relating to client communications for legal purposes set out in the Evidence Act.
I have had one affidavit in support of the Motion of the Crown, I also have another affidavit from the solicitor for the accused with many, many annexures setting out some history in relation to a request for information from the Crown in respect of the circumstances in which Mr Borgas comes forward to give evidence.
The schedule of the subpoena originally issued has been amended as late as yesterday in an endeavour to narrow the issues. The revised schedule is as follows:
"Any documents evidencing communications occurring after 15 October 2013 between members or representatives of the Commonwealth Director of Public Prosecutions and Peter Borgas or Peter Borgas' representatives in respect of:
The undertaking provided by the Commonwealth Director of Public Prosecutions on 2 February 2015 (undertaking) including any communications leading to that undertaking and;
Communications in respect of any other concession or proposed concession to be given by the Commonwealth Director of Public Prosecutions in exchange for the co-operation of Mr Borgas in the prosecution of Vanda Gould and/or John Leaver."
As I have earlier indicated, the Crown has produced various documents which I have inspected. The 'undertaking' which is referred to by the legal representatives of the accused of 2 February 2015 is Exhibit 12 on the voir dire. The Crown has produced written submissions which I will refer to shortly, in summary identifying legal issues that relate to the two substantive issues made.
In the course of discussion about this material, before the material was actually produced yesterday, the first day of the trial, counsel for the accused, by reference to two annexures in the affidavit of his instructing solicitor, took me to matters that were pertinent to the issue of 'legitimate forensic purpose'. In particular, in relation to annexure 14, there were identified two matters as having pertinence to establishing the knowledge on the part of the accused, or his legal representatives, that in fact documents did exist that related to a matter relevant to the conduct of the trial. One of those matters identified in annexure 14 to his solicitors' affidavit refers to,
"An approach by Mr Borgas' solicitor, asking for an indemnity of (sic) induced statement would be considered."
The knowledge of this would appear to be from a file note which has been produced, I assume, under subpoena. Perhaps as part of the Crown's duty of disclosure, which is Exhibit 15 on the voir dire. This is a document referred to as a "case note" and it deals with contact with Paul Hardin, who I believe to be a legal practitioner, who held himself out in some respects to be a legal representative of Mr Borgas during the period in late 2013. I will come back to his role and the role of counsel shortly.
This case note as it is described, dated 13 November 2013, identifies that a Federal Agent received a phone call from Mr Hardin, acting for Mr Borgas. It notes;
"Hardin stated he was not acting under instructions,"
which appears to be a mantra taken up by all of Mr Borgas' legal representatives in late 2013. The note goes on to say that Hardin;
"Wanted to know if the AFP would be willing to take an induced statement from Borgas."
The Federal agent told Hardin that;
"(A)n induced statement would not be taken and the conversation ended."
The matter had been previously discussed with the Commonwealth Director of Public Prosecution's officers. The 'note' states,
"…who were themselves approached by Hardin asking if an indemnity or induced statement would be considered and it was agreed that an induced statement should not be taken".
Then there is a note of a request for a further meeting by Mr Hardin.
I point out in a global way that the documents that I have seen are directly concerned with the character of the contact between Mr Harden and a barrister, with representatives of the Officer of Director of Public Prosecutions, concerned with the circumstances in which it could be considered that Mr Borgas should receive an "indemnity" as it was described in the communications.
The other matter identified as material to the issues in the case, and thus giving rise to a legitimate forensic purpose for the issue of the subpoena, was mentioned in the annexure to the accused's solicitor's affidavit, an AFP diary entry made on Australia Day 2014. The Crown has assured the Court that that reference in the diary entry has nothing at all to do with this accused or this case. I accept that indication. It would appear that is a matter that I need not concern myself with.
In dealing with the issue of 'legitimate forensic purpose', by reference to the Crown submissions, there are some background factual matters to just briefly point out. Firstly, I understand from the material available to me that this accused, Mr Borgas, and a man called John Leaver, were, on 15 October 2013, charged with tax evasion and money laundering charges pursuant to the relevant provisions of the Criminal Code (Cth).
I am informed, both in the Crown's submissions and from the bar table yesterday, that those charges were withdrawn on 13 May 2014. This is a matter, as said by the Crown, to be of some significance in the context of consideration of, as I would understand the Crown's submission, the issue of legitimate forensic purposes.
The proceedings brought against this accused, which brings him to trial, were commenced in 2016. As I have said, the 'undertaking', exhibit 12, given by the then learned Director of Public Prosecutions, was dated 2 February 2015. This accused, Mr Gould, was in fact charged on 15 September 2016 with conspiring with Mr Borgas to pervert the cause of justice, which was subsequently changed to two charges, one of giving false testimony, and the other of attempting to pervert the course of justice as the current indictment reflects.
With regard to the issue of the legitimate forensic purpose I accept in general terms the essence of what the Crown has put in its very helpful written submissions. In submitting that there is no legitimate forensic purpose in the issue of the subpoena, it correctly identifies the fact there is an onus upon the accused, who issued the subpoena, to establish the legitimate forensic purpose. It correctly states that an accused person must identify a legitimate forensic purpose for which access is sought, and establish that it is "on the cards" that the documents will materially assist the case.
The expression "on the cards" which, amongst other cases, was referred to by Hunt J in R v Saleam (1989) 16 NSWLR 14, is an expression that reflects something that is, quoting from the Crown's written submissions, "within the range of barely probable and highly probable". The Crown says, and I am prepared to accept, that whether it is 'on the cards' that documents relate to the subject matter of the litigation requires establishment of the fact that the material is "sufficiently relevant to the action in the sense that it is likely to add in some way to the relevant evidence of the case". The Crown has cited a number of cases including Saleam and, of course, a decision of the Court of Criminal Appeal which in passing referred to this matter in the litigation conducted by this accused in 2018 to seek a 'stay of the proceedings'. That decision is Gould v Commonwealth Director of Public Prosecutions [2018] NSWCCA 109.
It is clear to me, in the context of the specific matters identified by the accused's counsel some time ago as to the information available to the defence, there was material that the accused seeks production of that is relevant to the circumstances of the giving of the 'undertaking' to this forthcoming witness in February 2015. In relation to that aspect of the matter it would appear to me that the legitimate forensic purpose is concerned with the issue of how, why and when decisions were made leading to the granting of the 'undertaking' to Mr Borgas.
This is a matter, I should point out, that is already available to the defence in part from the statement of Mr Borgas. Having regard to the material I have read I do not believe, and I am not criticising Mr Borgas because it is a matter he may not have been asked to address, his statement in its terms in the passages that were referred to by the Crown, and were further referred to by me yesterday, adequately covers the circumstances in which it came to pass that the 'undertaking' was given.
To understand the significance of the need for the defence to have as much appropriate information about the circumstances in which Mr Borgas received the benefit of an 'undertaking' one need to only go to the opening of the Crown Prosecutor yesterday. He raised the topic of the significance of the 'undertaking' and he said these things, if I could just quote from his opening p 133:
"So there are some riddles in relation to Mr Borgas. He is of course the Crown's principal witness whose word I'm going to ask you, on behalf of the prosecution, to believe in this Court despite the fact that he will tell you that he was a liar in other proceedings.
So typically in that case, and this case may be no exception to it, if the Crown case is disputed it usually - that is not always - but it usually involves questions of the credibility of the witnesses. That is the Crown puts forward witnesses usually, mostly, not exactly always, because the Crown has certain obligations about who it calls, but usually the Crown witnesses are put forward as witnesses of truth, and that's the case here, we'll be putting forward Mr Borgas as a witness of truth to you but he comes with baggage, the baggage of the previous proceedings five years ago when he lied through his teeth he will tell you, in effect, on behalf of Mr Gould, as a result of Mr Gould's request."
Later on in the same area of the opening the Crown referred to the previous charges brought against Borgas, this accused and the other gentleman. Those charges were,
"withdrawn in April or May of the following year 2014. Mr Borgas went back to Switzerland and Mr Gould and Mr Leaver presumably remained in Australia".
"these men" were left to "get on with their normal lives".
The Crown said this:
"So during the time that Mr Borgas was in Australia charged with those offences, on bail, but under conditions which prevented him leaving the country, he approached the Federal police and sought to tell them what had happened in the Federal Court proceedings and other things with the object of getting the charges against him, those tax evasion charges, dropped.
And he did that, at least in part, because he wanted to go home. He will explain to you his motivation. He certainly did it hoping he would not be prosecuted. In the end he was not prosecuted, but neither were the other two men; the authorities dropped those charges.
Although it is hard to predict what can happen in a case like this one we expect that these matters will loom large in the contest there will be about Mr Borgas' truthfulness. For example it might be put to him that he lied in what he told the police about Mr Gould just in order to get away from those tax evasion charges. And, Mr Borgas, if he is asked that question, will respond in the way that he did. You will have to listen to his explanations and weigh up all that material in order to determine whether or not you would think he was telling the truth to the police now, or whether or not you are able to determine sufficiently to find that the Crown has proved those charges beyond reasonable doubt".
So it went on.
Mr Dhanji, for the accused, in his opening address referred to the significance of the 'undertaking' and the relevance it had to the assessment of the matter. The Crown, in fact, at one point, quite properly, pointed out to the jury that they may be warned in particular ways, as the law may require, because of the fact that the witness had been given a relevant 'undertaking'. So the matter was introduced to the jury in very wide terms, but particularly the issue of the circumstances of the giving of the 'undertaking' was identified by both the Crown and the defence as a significant matter in this case.
I note from what I have already said by way of background history, of course, that Mr Gould and Mr Borgas and the other gentleman Mr Leaver were charged with offences other than the two offences with which this accused is now charged. Those charges were withdrawn and the charges against this accused that are currently before the Court were essentially revived after Mr Borgas had been given his 'undertaking' by the Crown.
If I could just briefly turn to the Crown's duty of disclosure, which is provided to me, very helpfully, by the learned Crown Prosecutor. It is called a "Statement on Disclosure" and the Crown refers to it and its common law duty disclosure in submissions. There is nothing remarkable about what the Crown says in that regard. I am particularly drawn to Part One of the document provided under the heading "Duty of Disclosure", and the various matters set out therein under Part One about complying with that duty and related matters. There are particulars given about disclosure affecting the credibility or reliability of a prosecution witness. One of those matters identified includes;
"Any concessional benefit which has been offered or provided to a witness in order to secure that person's testimony for the prosecution".
The issue of how that benefit or concession came to pass is, of course, a matter one would have thought intrinsically connected to that particular matter. I do not propose to dwell upon the detail of the duties of disclosure set out in the document. It is, as I have said, an exhibit in these proceedings.
In the Crown's written submissions he had noted the decision of R v Petroulias (No 22) (2007) 176A Crim R 309, particular at [64], being the prosecution of a former senior member of the Australian Tax Office. Quoting from the Crown's written submissions, and accepting what is contained in this judgment, which from memory would be the judgment of Johnson J, during the course of the trial or in the preliminary proceedings. His Honour said:
"The duty of disclosure operates that Commonwealth Director of Public Prosecutions ought disclose to the defence all documents to which the duty attaches irrespective of whether the client legal privilege applies to the relevant documents. However, it is for the Commonwealth Director of Public Prosecutions to exercise his (sic) independent prosecutorial discretion to decide whether information is subject to the duty of disclosure. It is not for the Court, in the context of subpoena hearing to supervise or review the CDPP's discharge of his duty during the course of the trial."
I accept that to be true. But the first point to be made is when one talks about a prosecutorial discretion one is not talking about a judicial discretion. When one considers the issue of the discretion not to disclose the documents one must have regard to what is identified as the legitimate forensic purpose, and consider whether there has been either a misunderstanding or a failure to, in fact, address a matter pertinent to the issue of the legitimate forensic purpose identified.
What has emerged from the documents that are provided to the Court is information as to meetings that occurred between an officer of the Director of the Director of Public Prosecutions and two legal representatives of the witness Borgas, Mr Hardin and a barrister. The conduct of the Commonwealth in the context of what I have read was entirely impeccable, the Commonwealth met with these two people to discuss matters relating to Mr Borgas' interests.
I pause for a moment to point out the documents make clear, as does the Case Note that was provided to the defence, that these lawyers were conducting themselves on the basis that they "had no instructions" from their client. There are a couple of rather unusual features about that proposition. I have difficulty, having been a lawyer myself, understanding how you can act in a way without instructions. The whole purpose of being a lawyer, representing an interest, is that you act upon the instructions that you have. You are not an independent agent in relation to the matter. It seems to me that either the assertion that they were acting without instructions was untrue, or if it was true, it was being raised as a preliminary matter on each occasion that there was meeting to try and give the character of the "negotiations" the feature of some type of "without prejudice" quality.
It seems to me, with respect, that the detail in one document presented to the prosecution could not possibly have been obtained without instructions. Because it seems to me that information which was provided to the Commonwealth Director of Public Prosecutions could only be within the knowledge of the client Mr Borgas. Be that as it may, the claim of not having instructions and the stamp of "confidential" upon relevant documents, in my view, is not a matter that operates as a bar to access to the documents. Of course, the ultimate use that can be made of them in those circumstances in terms of questioning Mr Borgas is another issue. The issue of what ultimately can be made of the documents is a matter of tactical determination by the accused. Although as I would see it, without knowing how the accused is going to run his case, there seem to be very confined and limited issues that arise.
I do not have, or I did not have up until about eight minutes before I came on the bench and so I have not read it, the transcript of all the discussion that I had with the learned Crown Prosecutor yesterday about the matters that arose from his very helpful written submissions by reference to the documents that have been produced. One of the matters raised by the learned Crown, as I understood it, was that the documents that have been produced relate to discussions concerning exercising powers, or taking particular action, by the Director of Public Prosecutions in relation to charges that were dropped and also, significantly, before the accused was ever charged with the current matters.
I have taken the liberty of setting out the chronology of those particular matters. As I understood the submission, it was put in different ways at different times, in fairness in the context of the Crown and I discussing the matter, the material produced in response to the subpoena was pertinent only to the charges that were ultimately withdrawn as against Mr Borgas and this accused. It was not relevant to the current proceedings. In my view, that proposition put by the Crown either misunderstands, or at least does not fully appreciate, the significance of some of the representations that were made on behalf of Mr Borgas, apparently "without instructions", a matter that might be examined or not as the case may be.
It certainly may have been the position of the Office of Director of Public Prosecutions quite properly that they were at that time concerned with negotiations that were directed at the current charges. But the records that have been provided to me demonstrate very clearly that propositions were put to the Office of Director of Public Prosecutions that are particularly pertinent, not only to the very character of the charges that are brought against the accused now, but also to the basis upon which this accused is prosecuted, specifically in relation to count 2.
I am in a difficult position I hasten to say, to the extent to which I can disclose this publicly. At the moment my preference would be to allow the documents to be examined without me setting out on the record what they contain. But I am happy to do so if needs be in closed court or in some other way that would not require publication of the detail.
Both in handwritten notes of a conference that occurred on 11 December 2013 between the solicitor acting on behalf of the learned Director, Mr Hardin, and Peter Bruckner of counsel, although it is difficult to identify which note relates to what particular people are saying, there are noted a number of potential crimes about which Mr Borgas may be able to provide assistance to the authorities.
Those crimes including 'perjury', as I understand it by the accused, and particularly 'attempting to pervert the course of justice', in the context of information being represented to the Director, that Mr Borgas would claim that evidence that he gave at the Federal Court proceedings had been directed by the accused.
Any doubt about who said what in the course of the recording of those notes is to my mind removed because one of the documents I have is a 12 page submission written by a barrister, as I understand it Mr Bruckner, who calls himself "counsel for Borgas" dated 19 December 2013, which commences with this forenote:
"This note is in response to you acceding to our proposal that you might be aided by a serious of dot points for you to accept or reject as you see fit in preparing a report to the director on the subject of indemnity".
It goes on to say:
"This is a submission by counsel and is not intending to contain admissions on instructions. Although Mr Borgas is aware that such a submission is being made it has been prepared without consultation with Mr Borgas as to its content".
Then it goes on to detail various matters including, as I said, particular matters that focus upon aspects of what this current prosecution is about.
It is also clear from this material that Mr Borgas in his bargaining with the Office of Director of Public Prosecutions, was only prepared to bargain on one basis. I do not propose to go into the detail of that. But it seems to me to be a basis consistent with the ultimate outcome. That is an 'undertaking' which I would, for the purposes of the discussion I have had with the parties and the purposes of my judgment, regard as akin to an "indemnity". Although the word "indemnity" was used from time-to-time.
Thus, the facts are, in my view from this material, the material that was being provided on behalf of Mr Borgas claimed to be without instructions relating to matters pertinent to this litigation and not just the issue of being granted an indemnity or having charges withdrawn in respect of the matters for which Mr Borgas, Mr Gould and Mr Leaver had been charged at the time of these particular discussions.
I do not propose, because I have not had a chance to read the transcript to go back to the detail of what I discussed with the learned Crown. But, in summary, I simply state that the documents speak of information being provided that has a connection with the current proceedings which could be interpreted to provide a platform for subsequent negotiations after the charges were withdrawn.
It is material pertinent to two issues. Firstly, the circumstances in which the course of negotiation leading to the granting of the 'undertaking' were given and secondly, a related matter, the basis upon which Mr Borgas was prepared to commence those negotiations and provide information in one form or another.
It seems to me with respect, in the context of what I have just outlined, the issue of the Crown's 'duty of disclosure' prevails. The other claim of legal professional privilege, as was pointed out in Petroulias with due respect to the discretion of the Director to determine what material should be released, has been 'trumped' by that 'duty of disclosure'.
I should just point out some other matters too. When I had regard to the statement of Mr Borgas, which apparently was given in April 2016 which I take to be before the accused was charged, it contains information which in my view was offered to the prosecutor before the 'undertaking' was given and before the original charges were withdrawn.
The Crown, at one point as I understood his submission, suggested that such information he provided was information pertinent to a "particular prosecution" of Borgas, (at the point of the negotiations with which I am concerned in these documents) for the matter he was then currently charged.
It seems to me that the material that is contained within this document, or much of it, provides a proper and true context for the circumstances in which ultimately an 'undertaking' was provided and before Mr Borgas gave a statement to the police 14 months after the 'undertaking' was issued.
It seems to me that it has the potential for disclosing information that is also relevant to the circumstances in which he was approached by the AFP after the withdrawal of charges in May 2014, leading up to the giving of the 'undertaking'.
I do not propose to dwell upon the detail of what is contained within Mr Borgas' statement. As I said, the Crown referred me to several paragraphs that he had said were concerned directly with the issue of how the 'undertaking' was issued and the subsequent events - and this is no criticism of Mr Borgas.
To be fair, the way in which the statement is prepared the issue of other "matters" may not have been relevant at the taking of the statement. I am not suggesting for a moment the witness, or those who obtained the statement from the witness, were trying to hide any information. But the statement from Mr Borgas is not a complete picture.
In my view there are important matters to be understood about the circumstances in which Mr Borgas was prepared to adhere to an 'undertaking' and provide a statement. It is thus, in these circumstances that I do not propose to dwell upon the issue of privilege.
I have had regard of course to ss 117, 119 and 122 of the Evidence Act. I was at one point proposing to undertake some analysis of that. I had concerns in the context of what had been made known to me as to the issue of 'dominant purpose', particularly of the material that came from the legal representatives of the witness as opposed to material that comes from the Office of the Director of Public Prosecutions, who is acting in the interests of the Director. But in the circumstances I do not believe I need to analyse that at the present time.
Thus I propose to grant access of some of these documents and I will identify what they are in due course.
[2]
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Decision last updated: 28 August 2020