Ms C O'Neill (Accused)
Mr DK Jordan (Applicant - Office of Environment and Heritage)
Source
Original judgment source is linked above.
Catchwords
Ms C O'Neill (Accused)
Mr DK Jordan (Applicant - Office of Environment and Heritage)
Judgment (2 paragraphs)
[1]
Judgment
JOHNSON J: The Accused, Ian Robert Turnbull, is to stand trial in this Court on a charge of murder and a charge of detaining a person with the intention of obtaining an advantage.
The Accused is charged with the murder of Glendon Turner on 29 July 2014. Mr Turner was employed as a Compliance and Regulation Officer for the Office of Environment and Heritage ("OEH"). His role involved investigating illegal land clearing and prosecuting individuals for breaches of s.12 Native Vegetation Act 2003. The background to the prosecution may be found in my judgment on venue: R v Turnbull (No 1) [2016] NSWSC 189.
There is no issue that the Accused shot dead Mr Turner on 29 July 2014.
In advance of the trial, the legal representatives for the Accused have caused subpoenas for production to issue directed to the OEH. This judgment relates to issues arising with respect to two subpoenas:
1. a subpoena issued on 22 February 2016 ("the 22 February 2016 subpoena"); and
2. a subpoena issued on 4 March 2016 ("the 4 March 2016 subpoena").
I have already dealt with some aspects of the 22 February 2016 subpoena.
By Notice of Motion filed on 3 March 2016, the OEH sought to set aside various paragraphs of the 22 February 2016 subpoena. The hearing of that Notice of Motion was brought on for hearing before me, as the trial Judge, on 17 March 2016. The Court was in a position to sit for a limited time only on that day, for reasons explained in the transcript of that hearing. The Court received written submissions, and limited oral submissions were made. The Court adjourned the hearing until 2.00 pm on 18 March 2016.
I pause at this stage to note that the Accused had indicated an intention to rely upon the partial defences of:
1. substantial impairment by abnormality of mind under s.23A Crimes Act 1900; and
2. extreme provocation under s.23 Crimes Act 1900.
The argument in writing and orally on 17 March 2016 operated at a level of generality.
Counsel for the OEH submitted that the challenged paragraphs of the subpoena constituted a fishing expedition. To the extent that the Accused indicated an intention to rely upon extreme provocation in support of the challenged paragraphs of the subpoena, counsel for the OEH submitted that the proposed defence was hopeless.
Counsel for the Accused submitted that a legitimate forensic purpose had been demonstrated and that it appeared to be on the cards that the documents would materially assist the Accused.
As the transcript of 17 March 2016 indicates, the Court asked a number of questions concerning the way in which it was said that extreme provocation could be raised in this case, including how it could be said that the conduct of Mr Turner could constitute an offence of stalking or intimidation with intent to cause fear of physical or mental harm under s.13 Crimes (Domestic and Personal Violence) Act 2007. Those matters remain open questions, with the Court to move to these issues as a separate matter at the pretrial hearing.
On 18 March 2016, I gave a short judgment indicating the way forward with respect to the hearing of the Notice of Motion. I was to be on leave from 21 March 2016 until 6 April 2016. A jury was expected, at that time, to be empanelled on 11 April 2016. I did not consider that the subpoena hearing could be progressed before another Judge. As the trial Judge, I considered that I was best placed to progress the matter.
In my judgment of 18 March 2016 (R v Turnbull (No. 2) [2016] NSWSC 678), I expressed the view that, on the limited material before the Court, I was not in a position to effectively dismiss out of hand the Accused's intention to rely on extreme provocation by a conclusion that his desire to do so was hopeless. I said (at [13] of that judgment) that I was satisfied that the appropriate course was to require production to the Court of the documents falling within paragraphs 2, 3 and 4 of the 22 February 2016 subpoena, for the purpose of the Court inspecting the documents so as to determine whether the Accused had satisfied the requirements for being granted access to them.
I made orders for the documents to be produced to the Court on 22 March 2016, divided into two categories:
1. documents which were not otherwise to be the subject of a claim of client legal privilege or public interest immunity; and
2. documents which were to be subject to a client legal privilege or public interest immunity claim.
I made arrangements to attend Chambers on 22 March 2016 for the purpose of inspecting the documents in the first category only.
Having examined the documents in the first category, I determined that access to those documents should be granted to the parties. In doing so, the Court considered the extreme provocation issue in the general way in which it had been raised. It may be that this approach was overly generous to the Accused. An answer to this proposition can only be expressed after full argument which lies ahead (and will involve the Crown) on other aspects of the trial.
In taking this approach, I proceeded by reference to the way in which the matter had, to that point, been argued. I had in mind, as well, the fact that the Accused was to stand trial for murder and the need for early resolution of aspects of the subpoena argument.
I propose to proceed upon the same basis in determining the balance of subpoena issues to which this judgment relates. This judgment will not consider the public interest immunity claim, which has for the moment been put to one side.
On 22 March 2016, I stood over until 10.00 am on 6 April 2016 the further return of the subpoena. Between 22 March and 6 April 2016, the parties had access to the documents caught by the 22 February 2016 subpoena to which an order for access had been made.
On 6 April 2016, the Court was informed that the outstanding subpoena issues were as follows:
1. a claim of client legal privilege by the OEH relating to documents falling within the 22 February 2016 and 4 March 2016 subpoenas;
2. a claim of public interest immunity by the OEH relating to documents caught by the 22 February 2016 subpoena;
3. a number of claims that particular documents were outside the scope of the relevant subpoena.
The hearing of the public interest immunity claim was deferred until 2.00 pm on 7 April 2016, with the OEH to be separately represented by the Crown Solicitor's Office on that claim.
I proceeded on 6 April 2016 to receive a variety of documents relevant to the client legal privilege claim and the scope of subpoena argument. These included the affidavit of Mark Kelly sworn 5 April 2016. I heard submissions on those issues from Mr Jordan, counsel for the OEH, and Ms O'Neill, counsel for the Accused.
On 6 April 2016, I commenced to make rulings on these issues (PT32ff, 6 April 2016). Those rulings related to MFI5, the volume of documents concerning the 22 February 2016 subpoena.
At a certain point, I invited further submissions on particular topics affecting MFI5 and the hearing was stood over to 7 April 2016.
On 7 April 2016, the Court received further written and oral submissions on these topics and an affidavit was read for the OEH on the client legal privilege claim, being an open affidavit of Gordon John Plath affirmed 7 April 2016.
I reserved my decision on the client legal privilege and scope issues at that point until 2.00 pm on 8 April 2016. The parties were informed of the Court's substantial obligations with respect to the Arraignments List on 8 April 2016, which impacted upon the Court's ability to consider and determine the subpoena issues.
At 2.00 pm on 7 April 2016, Mr Hill, appearing for the OEH on the public interest immunity claim, was permitted to file in Court a Notice of Motion which raised, with respect to the 22 February 2016 subpoena only, a claim for public interest immunity and a limited claim of client legal privilege. Mr Hill was unable to furnish at that time any open or confidential affidavit with respect to the Notice of Motion. The proceedings were stood over to 9.15 am on 8 April 2016.
By that time, open and confidential affidavits had been provided to the Court, together with written submissions on the public interest immunity claim.
In due course, the Court commenced to undertake a hearing of the public interest immunity claim at 3.00 pm on 8 April 2016, with the hearing being adjourned until this morning at the conclusion of the court day on Friday.
This morning, after some further submissions were made on the public interest immunity claim, I determined that that part of the subpoena hearing should be deferred (PT91-92).
Since Friday afternoon, I have read all documents which have been received, including documents in relation to which claims relate and the written submissions relating to the claims. I have had an opportunity to undertake a level of consideration which was more difficult to undertake in the somewhat fractured course of the hearing last week.
It is against that background that I move now to make rulings on the client legal privilege claims and the scope issues which remain outstanding. As I have observed, the public interest immunity aspect has been detached from this hearing and will not be the subject of further reference in this judgment.
As I mentioned earlier, I made a number of rulings on 6 April 2016 with respect to areas requiring determination. By reference to the documents in MFI5 (the folder concerning the 22 February 2016 subpoena), as listed in the table at page 26ff of the affidavit of Mr Kelly, I had made a number of rulings. There are some aspects of documents in that table which remain to be considered.
The first group are pages entitled "Injury Management Case Notes", which are said to be notes of Ms Edith Arns. I had reached that point on 6 April 2016 (PT37). I note that a foreshadowed objection based upon s.126B Evidence Act 1995 concerning these documents is no longer pressed. I note, as well, that parts of these documents have been disclosed to the parties. As to the balance of these pages, it is submitted for the OEH, that the material lies outside the scope of the 22 February 2016 subpoena.
I have inspected these pages with the terms of that subpoena in mind. I am satisfied that the material in those documents lies outside the scope of the subpoena and I decline to grant access to it.
MFI5 contains further documents which are the subject of a claim of client legal privilege by the OEH. These are the documents referred to in the table of documents at pages 15 to 17 of the affidavit of Mr Kelly of 5 April 2016. I will use that table as an aid for the purpose of these rulings.
I have already ruled on Document 1 in that table (PT41-42).
Documents 2 and 3 in this table concern aspects of the report of Mr Brian Gilligan. The report of Mr Gilligan constitutes a significant part of the claim of client legal privilege which falls for consideration with respect to MFI4, the folder of documents relating to the 4 March 2016 subpoena. I will return to Documents 2 to 3 in MFI5 at the time of consideration of the related client legal privilege claim concerning MFI4.
Returning to the table of documents at pages 15 to 17 of Mr Kelly's affidavit of 5 April 2016, I note that access is not sought on behalf of the Accused to the documents referred to as Documents 4, 5, 6, 7 and 8 in that table.
Moving to Documents 9, 10 and 11 in the table, these documents relate to a draft affidavit of Gary Spencer dated 5 November 2012. I have read the documents to which the claim relates. The draft affidavit of Mr Spencer was prepared in relation to proceedings in the Land and Environment Court. I was informed that a final affidavit of Mr Spencer was filed in those proceedings. Having read the documents which are the subject of the claim, I am satisfied that the draft affidavit of Mr Spencer was brought into existence and provided to Rasheed Sahu-Khan, Legal Officer, for the dominant purpose of the provision of legal advice and that legal advice was provided by Rasheed Sahu-Khan with respect to it.
This conclusion involves determination of a question of fact which I have resolved, keeping in mind the provisions of the Evidence Act 1995 concerning client legal privilege and the principles referred to in cases to which I was taken, including New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Limited [2007] NSWSC 258.
Further, I am not satisfied that the filing of a final form of Mr Spencer's affidavit in the Land and Environment Court proceedings gives rise to a waiver of client legal privilege with respect to a draft affidavit in relation to which legal advice was furnished. In this respect, I have had regard to the relevant provisions in the Evidence Act 1995, including ss.122 and 126, and the decision of the High Court of Australia in Mann v Carnell [1999] HCA 66; 201 CLR 1.
Document 12 in the table is described as an email exchange between N Allan, Legal Officer, and G Turner, P Christie and C Nadolny, regarding instructions on the Turnbull remedial directions appeal before Chief Judge Preston. It was noted that this document was not contained in MFI5, but was contained separately in MFI3.
I have inspected these documents. Having done so, I am satisfied that they involve a process of seeking and giving legal advice with respect to proceedings. I uphold the claim of client legal privilege with respect to them.
I turn now to the claims of client legal privilege with respect to the 4 March 2016 subpoena, being the documents contained in MFI4. For the purpose of these rulings, I shall utilise the expanded table of documents which is MFI12.
The first item in MFI12 is described as a handwritten note re conference with clients for the purpose of confidential legal advice, the author being Steve Garrett, Executive Director, Legal Services. Having inspected the documents in question, I am satisfied that the claim of client legal privilege should be upheld.
What follows in MFI12, and in the folder, MFI4, are a series of related categories of documents in relation to which a claim of client legal privilege is made. These are:
1. the preliminary draft and final draft reports of Mr Brian Gilligan;
2. Mr Gilligan's notes and documents relied upon by Mr Gilligan for the purpose of his report;
3. legal advice provided after the final draft Gilligan report; and,
4. other documents associated with the Gilligan review.
I have examined the documents to which the client legal privilege claim attaches, together with the affidavits of Mr Kelly of 5 April 2016 and Mr Plath of 7 April 2016.
Some matters of chronology are pertinent. Mr Turner was shot dead on 29 July 2014. On 6 August 2014, the WorkCover Authority of New South Wales issued a notice to the OEH under s.155(2) Work Health and Safety Act 2011 seeking information in relation to a possible contravention of s.19 Work Health and Safety Act 2011.
On 22 August 2014, Mr Gilligan, a former Director General of the National Parks and Wildlife Service, was engaged to conduct a review and furnish a report into the circumstances surrounding the death of Mr Turner. According to the affidavit of Mr Plath (paragraphs 9 and 10), the main purpose of this review and report was so he (Mr Plath) could provide confidential legal advice to the Chief Executive of the OEH concerning the potential exposure of the OEH in the event of WorkCover action. Mr Plath said that another purpose of the review was to identify areas for improvement in respect of policies, procedures and training that could be implemented. This was to enable the OEH to improve its systems to provide a safer working environment for its officers.
In due course, Mr Gilligan provided a preliminary draft report (as to which comment was made) and a final draft report. Following the delivery of the final draft report, Mr Plath, on 19 January 2015, provided a written legal advice to the Chief Executive of the OEH concerning the Gilligan report and the matters contained in it.
In considering the claim for client legal privilege concerning the Gilligan report (and associated documents) and Mr Plath's legal advice, I have kept in mind the principles as stated in a number of cases, including Sydney Airports Corp Ltd v Singapore Airlines Limited and Qantas Airways Limited [2005] NSWCA 47 ("Sydney Airports") and Priest v State of New South Wales [2006] NSWSC 1281.
It is for the OEH to establish the claim on the balance of probabilities. Mere assertion of the claim is not enough. What is required is exposure of facts from which an informed decision can be made as to whether the claim for privilege is supportable. The test of "dominant purpose" has been expressed in terms of clear paramountcy, with the word "dominant" requiring that the purpose be the ruling, prevailing or most influential purpose: Sydney Airports at [7].
I have examined the documents with these principles in mind. Having done so, I am satisfied that the Gilligan review and report were undertaken for the dominant purpose of the provision of legal advice, with such legal advice being by Mr Plath in January 2015.
As Mr Plath's affidavit states, this was not the sole purpose for the provision of the Gilligan report, but the law no longer requires that onerous test to be applied. I am satisfied that the dominant purpose test, as applied to the facts of this case, supports the claim of client legal privilege made with respect to the documents gathered and notes made by Mr Gilligan during this review, together with his reports (both preliminary and final), and comments made concerning those drafts and the legal advice of Mr Plath furnished in January 2015.
I proceed to rule on those parts of the documents in light of this finding.
I return firstly to the outstanding issues in MFI5 which concerns the 22 February 2016. Documents 2 and 3 constitute a page of Mr Gilligan's final draft investigation report, and an email from Mr Celebrezze (the Sydney-based Regional Co-Ordinator regarding Native Vegetation in the OEH) to Mr Gilligan containing information for consideration in his investigation for the purpose of the giving of legal advice. I have examined those documents. I am satisfied that each of them is caught by the claim of client legal privilege and I uphold the claim in respect of those documents.
I return to MFI12 which relates to the Folder MFI4. The second Tab "A" in MFI12 predates the Gilligan investigation. It is a November 2013 email to Mr Plath and Ms Patricia Lenehan, a Senior Legal Officer, from Mr Turner, updating the status of certain proceedings then on foot. I am satisfied that those documents are subject to client legal privilege and I decline to grant access to them.
Under Category "B" in MFI12, there are a series of documents, all of which relate, in one way or another, to the Gilligan review and report and the advice of Mr Plath. I note that Document 2 is no longer sought on behalf of the Accused.
I have considered the documents described under Category "B" in this table. They include handwritten notes of Mr Gilligan for the purpose of his investigation, copies of his draft report (or preliminary report), documents and comments provided to Mr Gilligan for the purpose of the preparation of his report, the preliminary draft report of Mr Gilligan, comments on the preliminary draft report and the legal advice of Mr Plath dated 19 January 2015 with respect to the Gilligan review and report.
I note that the Court was informed by Mr Jordan that some of the material otherwise falling within this category has been provided to the defence. This was material relating to two persons, who are to be called by the Crown, Chris Nadolny (an expert ecologist) and Arthur Snook (the Dubbo-based Team Leader of Compliance and Regulation regarding Native Vegetation).
The documents in relation to which the client legal privilege claim is made, involve several copies of the preliminary draft report or the final draft report of Mr Gilligan being sent to different persons within the OEH for different purposes associated with the ultimate purpose of the giving of legal advice. Some of these aspects are incidental ones, but I am satisfied that the balance of the documents referred to in MFI12, and the documents themselves contained in MFI4, are subject to client legal privilege and I decline to grant access to those documents.
There are two further documents which were the subject of submissions which fall outside the Folders MFIs 4 and 5.
The first of these is MFI14 (referred to at PT61). These are pages where a redacted version of a document has been provided to the legal representatives for the Accused, and the outstanding argument relates to the unredacted version of the document. The argument put on behalf of the OEH with respect to MFI14 was that the material not provided by way of access lies outside the scope of the subpoena. Having examined the material contained in MFI14, I am satisfied that the material not produced does in fact lie outside the scope of the subpoena and I decline to grant access to it.
The other group of documents is MFI15 (referred to at PT77). Again, some pages have been furnished in redacted form to the legal representatives for the Accused. The submission put for the OEH is that the material not provided lies outside the scope of the subpoena. I have considered the documents lying within MFI15. I am satisfied that the material not provided to the defence does in fact lie outside the scope of the subpoena and I decline to grant access to the unredacted versions of the documents contained in MFI15.
[During the course of the trial, the Court was informed that the Accused no longer sought access to the documents which were subject to the claim of public interest immunity.]
[2]
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Decision last updated: 08 June 2016