Resolution of Competing Submissions
33 With the exception of document 1, I am satisfied that each of the documents contained within MFI33 were subject to client legal privilege. Mr Morgan retained Mr Swan for the purpose of legal advice on a single issue for a short period between late March and early April 2000.
34 Having examined document 1, I infer that it is a third party document which was provided to Mr Swan by the Australian Federal Police. No privilege attaches to this document.
35 The real issue on the present application is whether client legal privilege has been lost under s.122 of the Act arising from Mr Morgan's evidence set out above on various occasions in 2001, 2005 and 2007.
36 The onus lies upon the Accused to demonstrate that privilege has been lost. I take, as a starting point, the proposition that client legal privilege is a rule of substantive law. In Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission [2002] 213 CLR 543, Gleeson CJ, Gaudron, Gummow and Hayne JJ observed at 553 [11] that legal professional privilege is an important common law right, more accurately characterised as an important common law immunity. The statutory form of the privilege contained in s.118 Evidence Act 1995 must be characterised as an important statutory right or immunity which may only be lost in circumstances specified by the Act, including s.122. In these circumstances, it is understandable that the onus lies upon the party contending that the privilege has been lost to demonstrate that fact.
37 Consent under s.122(1) includes consent which will be imputed to a person on the same principle where, at common law, a person will be taken to have waived privilege, even though he or she did not subjectively intend to do so: Chen v City Convenience Leasing Pty Limited [2005] NSWCA 297 at [29] - [33]; Firns v Tzovaras [2006] NSWSC 925 at [40] - [42]; Avanes v Marshall [2007] NSWSC 191 at [31] - [32]; New Cap Reinsurance Corporation Limited (In Liq) v Renaissance Reinsurance Limited [2007] NSWSC 258 at [44]; Fisher v Marin [2007] NSWSC 473 at [1]. In my view, this principle is relevant as well to other provisions in s.122 of the Act.
38 I accept that Mr Morgan did not know that he had a right to object to answering questions upon the grounds of client legal privilege. I accept that no objection was taken by the Crown to any questions asked of Mr Morgan is cross-examination. Nor did the Crown seek to confine Mr Morgan in his answers to questions asked in chief by the Crown at the pre-trial hearing in March 2005, where disclosures were made by him of communications with his solicitor. On no occasion did the presiding judicial officer, including myself in February 2007, inform Mr Morgan of his right to object for the purposes of s.132 of the Act.
39 Section 132 requires the Court to satisfy itself that a witness is aware of his or her right to object to giving evidence where it appears that the witness may have grounds for making an objection. The provision extends to the variety of privileges contained in Part 3.10 of the Act and is not confined to client legal privilege. Section 132 imposes an obligation on a trial judge to inform a witness that he or she may have grounds for making an objection to giving evidence. The provision operates to ensure fairness to the witness who has a basis for making an objection: R v Ahmed [2001] NSWCCA 450 at [35], [37]. Section 132 requires the Court to inform a witness of his rights in the absence of the jury, if evidence is being given in a jury trial: R v Parkes (2003) 147 A Crim R 450 at 466.
40 In practice, the circumstances in which s.132 is engaged sometimes involve the assistance of counsel appearing in the trial. Counsel will have a better understanding of the issues in the trial than the presiding magistrate or judge. A magistrate or judge operates essentially in a reactive way when a s.132 issue appears to have arisen. Even if counsel provide no assistance to the Court on the question, however, s.132 places the responsibility for informing a witness of his right to object upon the presiding judicial officer. At times, compliance with s.132 may have a sudden and dislocating effect on the adducing of evidence, especially in a criminal trial before a jury where the section requires a witness to be informed of his right to object in the absence of the jury.
41 These observations are made by way of background to the present question. It seems to me, on a fair reading of the transcript excerpts set out earlier in this judgment, that questions were not asked by counsel that would ordinarily trigger a possible objection and therefore the requirement for a s.132 explanation to the witness. In hindsight, it is clear that steps may, and perhaps ought to have been taken in the various proceedings, including those before me in February 2007, to ensure that Mr Morgan understood his rights. That said, however, the fundamental point here is that Mr Morgan volunteered in narrative non-responsive answers the substance of confidential communications between himself and his solicitor. He was not asked to reveal these matters by the questions asked of him. Rather, his answers volunteered this material.
42 Subject to the question of whether his disclosures were "under compulsion of law" for the purpose of s.122(2)(c) of the Act, it seems to me that the Accused has demonstrated that Mr Morgan's disclosures were made, for the purpose of s.122(1) with his consent, whether imputed or implied, or, for the purpose of s.122(2) were made knowingly and voluntarily. In this respect, I have in mind the principles and authorities referred to at [37] above.
43 Although the question of disclosure of otherwise privileged material in a non-responsive answer, and its relationship to s.122, were examined in the context of a civil case in Global Medical Imaging Management Limited (In Liq) v Australian Mezzanine Investments Pty Limited [2003] NSWSC 430, I regard the decision of Einstein J in that case as providing support for the Accused's submissions on the present application. The fact that otherwise privileged material is volunteered by a witness in a non-responsive answer fortifies a conclusion that the disclosure is a consensual one and has been given knowingly and voluntarily.
44 I do not consider that Mr Morgan's disclosures were made "under compulsion of law" for the purpose of s.122(2)(c) of the Act. The fact that he was called as a witness under subpoena and was required to answer questions which were put to him as a witness does not, of itself, render all disclosures made by him in answers disclosures made "under compulsion of law". This is not a case where a direct question was put and Mr Morgan was required to answer it, thereby disclosing otherwise privileged material. In my view, this case is distinguishable from circumstances considered in Australian Competition and Consumer Commission v George Weston Foods Limited (2003) 129 FCR 298, a decision relied upon by Mr Mehigan. Here, as I have already observed, Mr Morgan volunteered this information in the form of narrative non-responsive statements made by him in evidence. I am satisfied that the disclosures made by him were not made under compulsion of law.
45 I accept Mr Mehigan's submission that Mr Morgan was not represented by the Crown Prosecutor in the various proceedings in which he has given evidence. I accept, of course, that the particular duties and responsibilities of a Crown Prosecutor mean that he does not act for a witness in criminal proceedings. I do not consider, however, that these circumstances affect the outcome on the present application.
46 I agree with Mr Mehigan's submission that it is surprising that this issue has emerged for the first time in June and July 2007, given that the Accused seeks to rely upon disclosures made by Mr Morgan in evidence as long ago as 2001 and 2005 in support of the submission that privilege has been lost. I have already mentioned that the timing of this subpoena, and subsequent argument, has disrupted the trial and caused the loss of time for the adducing of evidence before the jury. That said, it is my responsibility to deal with the issues raised on the present application on their merits, although the timing of the application has added an element of urgency to the question and my need to resolve it for the purposes of the trial.
47 In summary, I am satisfied that client legal privilege existed with respect to documents 2 to 11 in MFI33. However, I am satisfied that that privilege has been lost by operation of s.122 Evidence Act 1995.
48 I propose to grant the parties access to each of the documents contained in MFI33. Although there is a borderline question as to whether documents 3, 4, 6, 8 & 11 (which are internal accounting records of Mr Swan) relate to a legitimate forensic purpose identified by the Accused, I am satisfied, on balance, that such a purpose has been demonstrated, and access to those documents will be granted as well.
49 I grant the Crown and the Accused access to the documents contained in MFI33, including photocopy access.