[32] The observations of Gibbs CJ are apposite. If the accused were denied the opportunity of his legal advisers examining the notes, it may well leave him with a legitimate sense of grievance. The fact that he is assured by the Director that disclosure of all matters relevant to the defence have been made will not alleviate the sense of grievance from a denial to permit him to check the material himself. Given the extensive volume of material in this case, errors can be made, and it is fair that the defence has an opportunity to check for themselves whether complete disclosure has been made. It follows that fairness dictates that any relevant notes should be produced."
70 I do not consider that the calling of a prosecution witness at committal proceedings or at trial constituted an implied or imputed waiver for the purpose of a further trial. If this view was correct, than the mere act of the prosecution serving witness statements under the Criminal Procedure Act 1986, in advance of committal proceedings, would constitute waiver. The calling of a witness or witnesses at committal proceedings would have the same effect. The calling of the witnesses at trial would, likewise, have the same effect. Indeed, from the moment that the witness was sworn or affirmed, any privilege would be waived. With respect, this cannot be correct. I do not consider that the bare fact that a witness or witnesses have been called at committal proceedings or at an earlier trial satisfies the test for waiver at common law. I do not understand the judgment of Sulan J in R v Haydon (No. 5) as laying down such a broad principle.
71 I do not accept the defence submission that the calling of witnesses by the Crown, per se, constitutes waiver at common law (if that test was applicable). The authorities point to an additional requirement. For example, in Mann v Carnell at 13 [29], Gleeson CJ, Gaudron, Gummow and Callinan JJ said:
"Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law' [eg Goldberg v Ng (1995) 185 CLR 83 at 95] . This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank , the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."
72 In this passage, their Honours referred to the decision of the New South Wales Court of Appeal in Benecke v National Australia Bank (1993) 35 NSWLR 110 where waiver of privilege arose from the giving of evidence in legal proceedings concerning instructions to a barrister in related proceedings whilst the client attempted, at the same time, to prevent the barrister from giving the barrister's version of those instructions. For privilege to be waived at common law, an inconsistent stance must have been taken. That has not been demonstrated in the present case. Accordingly, even if the common law principles of waiver were applicable as the Accused submits, the privilege has not been waived in this case.
73 I do not accept that the calling of witnesses at committal proceedings or at earlier trials of the Accused gives rise to waiver applying the statutory test in s.122 Evidence Act 1995.
74 The specific defence submissions made concerning Mr Morgan and Mr Aivaliotes do not demonstrate that privilege has been waived. In any event, the position is theoretical at present concerning Mr Aivaliotes as no conference notes with him are contained in MFI11.
75 Whether the common law or the Evidence Act 1995 applies, I am satisfied that the privilege has not been waived in this case.