An issue has arisen concerning questions which are sought to be put to the witness Sundip Ghedia. Mr Ghedia previously acted as the solicitor for Fortunato Gattellari ("Gattellari"), the Crown's principal witness in respect of the charge of the murder of the deceased (to which Gattellari has pleaded guilty). Gattellari gave evidence for the Crown for some weeks in the current trial. The period over which Mr Ghedia acted for Gattellari is not entirely clear. It extended at least until about mid-October of 2010, although there has been some suggestion in argument today that Mr Ghedia in fact acted for Gattellari up to and including the time that he appeared before this Court for sentence in 2011.
In 2016 the Crown issued a subpoena to Mr Ghedia for production of the following:
"All file notes in your possession relating to conferences with Fortunato 'Lucky' Gattellari between 13 October 2010 and 31 October 2010."
At the time, the Crown explained that the legitimate forensic purpose for which production of (and access to) the material was sought concerned the request made to the accused for the provision of money to assist in the payment of Gattellari's legal fees. There has been evidence given in the trial thus far which, if accepted, establishes that at the time of his arrest Gattellari asked the accused place a sum of $1 million in Mr Ghedia's trust account to cover his (Gattellari's) legal fees. It is alleged that Gattellari threatened that if the money was not paid (and it was not) he would implicate the accused in the deceased's murder. Gattellari has denied any attempted blackmail of the accused although he agreed that the money had been requested.
I granted access to the parties to one of the documents produced by Mr Ghedia: R v Ronald Edward Medich (No.9) [2016] NSWSC 1917. In the course of that judgment I observed that a number of the documents which were produced did not fall within the terms of the schedule to the subpoena. The one document to which I granted access was a file note of Mr Ghedia relating to a conference that he had with Gattellari and Mr Bellanto QC shortly after Gattellari's arrest. That document is now exhibit 56 in the present trial.
In granting the parties access to that document I concluded (inter alia) that although the document prima facie attracted client legal privilege, the contents of Gattellari's statement to the police of 2 November 2010 (at paragraph [225]) constituted a waiver of any such privilege pursuant to s 122(3) of the Evidence Act 1995 (NSW) ("the Act"). As a consequence of other conclusions that I reached on that occasion, the parties have not been granted access to the remaining documents produced by Mr Ghedia.
Mr Ghedia then made a statement to police on 6 February 2017, at paragraph [3] which he said the following:
"I make the statements below on the understanding that Lucky Gattellari has waived his legal professional privilege in relation to the following statements."
He then proceeded to detail conversations he had with Gattellari concerning the request that the accused provide Gattellari $1 million. In the course of his cross-examination yesterday (commencing at T1972) Mr Ghedia was asked about these (and other) conversations that he had with Gattellari in October 2010. It is evident from other exhibits tendered before the jury that at around that time Mr Ghedia had attended for legal conferences with Gattellari whilst in custody. The import of the questions asked of Mr Ghedia was that around 18 October 2010, Gattellari was continuing to protest his innocence. I am left to conclude, in light of Gattellari's plea of guilty to his role in the accused's murder, that it will be submitted that such initial protestations of innocence adversely affect his credit.
Mr Ghedia was asked the following (at T1973.7):
"Q. I suggest to you if he changed his approach and said he was guilty, you would remember it, wouldn't you?
A. No.
Q. No?
A. I would rather refer to my file notes."
Senior counsel for the accused then sought production of the file notes. Upon an inquiry from me (at T1973.22) Mr Ghedia said that he thought that they had been produced "under subpoena". To my knowledge, only one subpoena has been issued to Mr Ghedia, namely that to which I earlier referred. However the matter is further complicated by the fact earlier in the cross-examination (at T1969.8) when asked about whether or not he had a note of another conversation with Gattellari, Mr Ghedia responded by saying:
"A. No. I might. My files - I've got about ten folders.
Q. You were asked to produce your file notes to the police?
A. I produced my entire file, sir."
It should be made clear, if it is not otherwise apparent from what I have said, that the documents produced by Mr Ghedia under the previous subpoena do no, on any view of it, amount to ten folders of material.
Yet a further complication arises from the fact that on 10 June 2014 Gattellari signed a letter headed "To Whom It May Concern" which is in the following terms:
"I, Lucky Gattellari, give my consent and waive any legal professional privilege for Mr Sundip Ghedia, of Wyndham Prem Commercial Lawyers, to supply a statement to the police regarding his representation of me as my solicitor for the criminal matters related to the murder of Michael McGurk."
It will be apparent from its terms that the waiver is, to say the least, wide. Gattellari expressly gave his "consent", and waived "any" privilege in respect of matters regarding Mr Ghedia's "representation of (him)" in respect of matters pertaining to the murder of the deceased.
Senior counsel for the accused now seeks that Mr Ghedia be given access to all of the material produced on subpoena so as to allow him to answer the questions put to him at T1973. The Crown objects to that course, and has submitted that evidence of the kind which is sought to be elicited by those questions is covered by client legal privilege. The Crown submitted that in the circumstances, the waiver should be read as being limited to one regarding the issue of the $1 million that was allegedly sought from the accused by Gattellari to assist the payment of his (Gattellari's) legal fees. In that regard, the Crown Prosecutor indicated that she was in a position to call evidence as to what was said to be the limited purpose of the waiver.
Section 122 of the Act is in the following terms.
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.
(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:
(a) the substance of the evidence has been disclosed:
(i) in the course of making a confidential communication or preparing a confidential document, or
(ii) as a result of duress or deception, or
(iii) under compulsion of law, or
(iv) if the client or party is a body established by, or a person holding an office under, an Australian law--to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or
(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or
(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).
As I have already pointed out, the waiver signed by Gattellari is wide. I am left to interpret it according to its express terms. Those terms do not bespeak any qualification or limitation whatsoever. In particular, there is nothing on the face of the waiver which would support a conclusion that it should be limited in the manner suggested by the Crown. It may well be that the forensic purpose of seeking documents from Mr Ghedia in the first place was limited to a particular issue. It certainly does not follow from that the waiver was similarly limited. This is particularly so when its terms are so fundamentally at odds with the suggested limitation.
Bearing in mind the terms of s 122(1) of the Act, I am satisfied in light of the terms of the waiver that Gattellari has "consented" in the relevant sense. Even if I am wrong in that view, the execution of the waiver amounts to Gattellari having acted in a way which is inconsistent with objecting to evidence on the basis that it would result in a disclosure of material which would otherwise be privileged. It follows, in those circumstances, that if the privilege is not lost by virtue of the operation of s 122(1), it is lost by virtue of the operation of s 122(2).
It follows that in my view, the questions which are sought to be put by senior counsel for the accused are permissible and not covered by client legal privilege.
[2]
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Decision last updated: 26 April 2018