R v Rogerson; R v McNamara

THE RELEVANT LEGISLATIVE PROVISIONS

1. Section 117 of the Evidence Act 1995 (NSW) ("the Act") contains the following relevant definitions: 117 Definitions In this Division: "client" includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client-a manager, committee or person so acting, (e) if a client has died-a personal representative of the client, (f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made. "confidential communication" means 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. … (2) A reference in this Division to the commission of an act includes a reference to a failure to act."
2. Section 119 of the Act, upon which Ms Shead relied in support of her submissions, is in the following terms: 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.
3. Section 122 of the Act deals with the loss of client legal privilege and is in (inter alia) the following terms: 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

Submissions on behalf of McNamara

1. Although Ms Shead initially relied upon s. 118 of the Act, she subsequently eschewed such reliance and based her submissions solely upon the provisions of s. 119.
2. Ms Shead submitted that the conversation was a confidential communication made between a client (McNamara) and another person (his daughter) for the dominant purpose of McNamara being provided with professional legal services by Mr Lu in relation to the current proceedings. Ms Shead submitted that McNamara was, in effect, conveying his instructions to Mr Lu through his daughter in a way which rendered the conversation a confidential communication within the definition of that term. She submitted, in particular, that there was a clear inference that McNamara's daughter was under an obligation not to disclose (other than to Mr Lu) the contents of what she was told.
3. Ms Shead accepted that the conversation may have taken place for more than one purpose, and/or might have had some ancillary use. However, she submitted that viewed as a whole, it was evident that the dominant purpose of the conversation was for McNamara to be provided with professional legal services by Mr Lu in relation to the proceedings which had been brought against him.
4. Finally, Ms Shead submitted that there was no conduct on the part of McNamara which was in any way inconsistent with the objection which was now taken. She submitted, in particular, that the mere fact that McNamara chose to have the conversation in circumstances where he knew that the conversation may be monitored and would be recorded by the authorities, did not engage the provisions of s. 122(3)(a) or (b) of the Act.

Submissions on behalf of Rogerson

1. Counsel for Rogerson submitted that I would be satisfied, on the basis of evidence given by Ms McNamara before the jury, that this (and other) recorded conversations were little more than an attempt by McNamara to falsely further his allegation of duress. It was submitted that in these circumstances, the conversation was not a "confidential communication" and could not have been said to have taken place for the dominant purpose of McNamara being provided with professional legal services pertaining to the current proceedings.
2. In advancing these submissions, counsel emphasised that a conclusion that the conversation was a confidential communication necessarily relied upon certain inferences being drawn in relation to it. The essence of counsel's submission was that such inferences were not reasonably open.

Submissions on behalf of the Crown

1. The Crown submitted that the conversation was not a "confidential communication", for the simple reason that McNamara had chosen to disclose it to the person(s) who might be monitoring it, and who would record it. The Crown submitted that in these circumstances, simply by having the conversation, McNamara had knowingly and voluntarily disclosed its substance.
2. In advancing these submissions the Crown sought to draw an analogy between the present circumstances, and those in which conversation is conducted between two people in the physical presence of a third who overhears it. It was submitted that in such a case, any privilege which might otherwise attach to the conversation would be lost. In support of that proposition the Crown relied upon the decision of Howie J in R v Sharp [2003] NSWSC 1117; (2003) 143 A Crim R 344.

The issues

1. In light of the submissions of the parties, three issues arise: 1. is the conversation a "confidential communication" between a client and another person? 2. if so, was it made for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding? 3. if so, has the privilege been lost?

Is the conversation a "confidential communication"?

1. In the circumstances of the present case, whether the conversation constitutes a "confidential communication" essentially turns on the question of whether McNamara's daughter was under an express or implied obligation not to disclose its contents (other than to Mr Lu).
2. Obligations of the kind to which s. 119 is directed are varied. They can extend to those which are unspoken, ethical, moral and social. Where, as here, a lawyer is not a party to the communication, the circumstances in which the communication was made will determine whether or not the necessary obligation arises as a matter of inference: State of NSW v Jackson [2007] NSWCA 279 at [41] per Giles JA (Mason P and Beazley JA (as her Honour then was) agreeing).
3. In the present case, the relevant circumstances include the fact that: 1. the conversation was one between McNamara and his daughter; 2. its purpose, at least in part, was obviously to have Ms McNamara convey information to Mr Lu about a particular aspect of the current proceedings; 3. it occurred at a time when McNamara was in custody, as a consequence of which access to his lawyer was restricted to some degree.
4. In my view, these circumstances sustain an inference that Ms McNamara was under an unspoken and/or moral obligation not to disclose the contents of the conversation, other than to Mr Lu. The evidence supports a conclusion that McNamara was effectively using his daughter as a person through whom he could communicate with Mr Lu in relation to issues pertaining to the charges laid against him. Although it has been put to Ms McNamara that some of her conversations with her father were, in effect, conducted for the purpose of attempting to falsely construct a defence of duress, I am not able to draw that inference in respect of this particular conversation. Apart from any other consideration, Ms McNamara has not been cross-examined about this conversation at all.
5. As I have previously noted, the Crown relied upon the decision of Howie J in Sharp (supra) in support of the proposition that the communication was not a confidential one. In essence, the Crown submitted that this decision supported the conclusion that because the conversation was conducted in the hearing of a third party (i.e. the authority which was recording and possibly monitoring it) any privilege was lost. In considering that submission, it is necessary to make some brief reference to some authorities which preceded Sharp.
6. In Re Griffin (1887) 8 LR (NSW) 132, Innes J observed: "It seems to me that if a statement be made in the presence of a third party there can be no privilege properly so called. The only privileged communications are those made between solicitor and client when they are alone."
7. In R v Braham and Mason [1976] VR 547 Lush J considered the observations of Innes J and said (at 548): "I am unable to accept, if I may say so, with respect, Innes, J.'s categorical statement that the presence of a third party will always destroy privilege … In my opinion, each case must be examined to see whether the communication was one which should be classed as confidential. The fact of the presence of a third party should be examined to see whether that presence indicates that the communication was not intended to be confidential, or whether the presence of the third party was caused by some necessity or some circumstances which did not affect the primary nature of the communication as confidential; and it is with these matters in mind that I look at the situation here."
8. The decisions in both Griffin (supra) and Braham and Mason (supra) were, of course, determined according to common law principles, and well before the introduction of the Act. That of Lush J was referred to by Howie J in Sharp, which was a case in which the accused had entered premises in the company of police, in the course of which the telephone rang. The accused answered the call and was heard to have a conversation with a person who was identified as her solicitor. That conversation took place in the presence of the police. It was argued that what the accused had said in that conversation had been said in the course of obtaining legal advice from her solicitor and was therefore privileged. Howie J concluded that evidence of what the accused had said in the conversation was admissible.
9. Having referred to the judgment of Lush J in Braham and Mason his Honour said (commencing at [35]): [35] I believe that is the situation here. The accused was merely repeating to her solicitor what the police, in her belief, already knew: they had put pressure on her (by suggesting that she was in danger from Walsh) and she had told them what had happened (that Walsh had struck the deceased in the head with a hammer). The police were unaware that she was speaking to her solicitor at the time and the accused had done nothing to request that she be able to speak in private with the person on the phone. She, apparently, spoke in a manner that permitted the police to hear what she was saying and she could not have been under any misapprehension that they would overhear the conversation. [36] Because there was nothing said or done by the accused to indicate that she considered the conversation to be confidential, at common law she could not claim privilege in what she said notwithstanding that it was spoken to her solicitor in the course of seeking his advice. The ALRC appears to have intended that the same position would apply under the Act: the communication has to be confidential at the time it was made. Of course the accused found herself in the presence of the police involuntarily and that may be a factor in determining that the privilege was not lost even though the statement was made in the presence and hearing of the police. For example had the accused indicated she wished to speak to her solicitor in private, the claim would probably be upheld notwithstanding that it was made in the presence and hearing of police. [37] But on the evidence before me I do not believe that the accused intended that the conversation be confidential and the police had no reason to believe that it was. They were unaware that the accused was speaking with her solicitor. Because the statement was not made, or intended to be made, in confidence, the solicitor was, therefore, under no obligation not to disclose it. It was not a "confidential communication" within the meaning of that term in s 117 and there was no privilege in it. It was thus unnecessary for me to consider whether any privilege in the statement had been waived by the voluntary disclosure of it to the police.
10. The Crown relied upon the decision in Sharp in support of (inter alia) the proposition that the conversation in the present case was not a confidential communication. However in my view, the present case is factually distinguishable from that of Sharp. In my view, the terms of what McNamara told his daughter, and his purpose in doing so, are indicative of the fact that he intended the conversation to be confidential. Although he must have been aware of the fact that the conversation might be monitored, and would definitely be recorded, the circumstances in which he found himself were not by choice. In Sharp Howie J expressly acknowledged that if the circumstances in which the relevant communication took place were involuntary, that may be a factor which would support the conclusion that the communication was one which was properly regarded as confidential.
11. Further support for the conclusion that the conversation was a confidential communication is to be found in the observations of The Hon. JD Heydon QC in Cross on Evidence (at [25260]): "A communication made to a person mistakenly taken to be a legal advisor has been held privileged. Likewise, when a third party is present and within hearing by reason of circumstances outside the control of the client the privilege will be upheld on the basis that the circumstances did not affect the primary nature of the communication as confidential…Even if there is no express agreement that the communication in the presence of the third party is to be confidential, confidentiality may be inferred if all present assume it."
12. In the present case, any monitoring of the conversation had come about by reason of circumstances which, for all relevant purposes, were outside McNamara's control. The presence of a monitor did not affect what I have found to be the primary nature of the conversation, namely one in which McNamara was effectively conveying instructions to Mr Lu through his daughter. For all of these reasons I am satisfied that the part of the conversation to which objection is taken was a "confidential communication" for the purposes of s. 119 of the Act.

Was the communication made for the necessary dominant purpose?

1. In order for s. 119 of the Act to apply, I must be satisfied that the communication which I have found was confidential was made for the dominant purpose of McNamara being provided with professional legal services relating to an Australian or overseas proceeding to which he was a party. There is obviously no issue that what was discussed related to an Australian proceeding to which McNamara was a party. The issue is whether the communication was made for the dominant purpose of McNamara being provided with professional legal services relating to that proceeding.
2. In the context of statutes dealing with taxation and revenue law it has been observed that the word "dominant", when used to describe a purpose, is indicative of that which was the ruling, prevailing, or most influential purpose: Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 146 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ; Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 at [7] per Spigelman CJ.
3. A communication may obviously have more than one purpose. In the present case, Ms Shead expressly accepted that communications between McNamara and his daughter may have been made for multiple purposes. In such a case, whether one particular purpose is dominant in the sense contemplated by s. 119 will be a question of objective fact. However, the subjective purpose for which the communication was made will remain a relevant consideration. On occasions, such a consideration may be decisive: Esso Australia Resources Ltd v Federal Commission of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [172] per Callinan J; Asahi Holdings (Australia) Pty Ltd v Pacific Equity Parties Pty Ltd [2013] FCA 998. If the communication would have been made irrespective of any intention to obtain professional legal services, it is doubtful that the purpose of obtaining professional legal services could be regarded as the dominant purpose: Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at [328]; Westpac Banking Corp v 789 TEN Pty Ltd[2005] NSWCA 321 at [57]; Tabcorp Holdings Limited v Victoria [2013] VSC 302 at [82].
4. When viewed as a whole, the focus of the conversation in the present case was the provision of information to Mr Lu for the purposes of him providing legal services to McNamara. Given the entirety of what was discussed, I am satisfied that the communication would not have been made but for that purpose. It follows that I am satisfied that the dominant purpose of the communication was the provision of such services.

Has the privilege been lost?

1. The final issue is whether, in all of the circumstances, the privilege has been lost. In the circumstances of the present case, this issue falls to be determined according to whether, in light of his knowledge of that the conversation would be recorded and might be monitored, McNamara knowingly and voluntarily disclosed its substance to another person.
2. The Crown submitted that simply by having the conversation as he did, McNamara had knowingly and voluntarily disclosed its substance. Such a submission tends to proceed upon a literal interpretation of the words "knowingly and voluntarily" and, in my view, reflects a degree of oversimplification.
3. In determining whether any privilege attaching the conversation was lost as a consequence of what the Crown submitted was McNamara's knowing and voluntary disclosure of its substance, McNamara's subjective intention is a relevant consideration. In Sovreign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521, in reference to the words "knowingly and voluntarily", Austin J said (at [23]): "Whatever may be the precise limits of those words, they do not apply in a case where everything indicates an intention to claim privilege … and what has gone wrong is attributable to sheer inadvertence or carelessness".
4. A generally similar approach was adopted by Jacobsen J in Boensch v Pascoe [2007] FCA 532 at [38].
5. McNamara has not been called to give evidence on the present application. Whilst I am not able to infer that his disclosure was inadvertent or careless, I am nevertheless of the view that the nature of the conversation, its content, and what I have found to be its dominant purpose, all point to an intention on the part of McNamara that the conversation would be privileged.
6. In these circumstances, I am not satisfied that McNamara knowingly and voluntarily disclosed the substance of the conversation, or that he expressly or impliedly consented to such disclosure.
7. For these reasons, the evidence of that part of the conversation to which objection was taken shall be excluded.

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: 15 June 2016