Appeal - Legal professional privilege - Parties consent to the appeal being allowed

Criminal Appeals Act 2004 (WA)

Criminal Investigation Act 2006 (WA), s 151

Criminal Procedure Rules 2005 (WA), r 73

Respondent : Legal Services Unit of the Western Australian Police

1 MARTIN CJ: The appellant, Mr Rayney, appeals from the decision of a magistrate made pursuant to s 151 of the Criminal Investigation Act 2006 (WA) (the Act) to the effect that a document previously in his possession and which had been seized pursuant to the exercise of investigative powers conferred by the Act was not subject to legal professional privilege.

2 The parties to the appeal have filed a minute of orders to which each consent, allowing the appeal, setting aside the decision of the magistrate, and in its place substituting a decision to the effect that the document in question is the subject of legal professional privilege and an order that it be returned to Mr Rayney forthwith.

3 The parties are also agreed that there be no order as to costs.

4 The minute of consent orders was filed pursuant to r 73 of the Criminal Procedure Rules 2005 (WA), which provides for the settlement or compromise of appeals brought under the Criminal Appeals Act 2004 (WA), which is, by virtue of s 151(15) of the Act, the legislation governing appeals from determinations made pursuant to that section.

5 Rule 73 provides that when a minute of consent orders is filed, it is to be referred to a judge who is to either direct the registrar to issue a final order in accordance with the minute, or to notify the parties that the judge will decide the final orders to be made at a hearing. This provision is only consistent with the view that when a minute of consent orders is filed pursuant to r 73, it is necessary and appropriate for the judge to whom the minute is referred to consider and determine whether, having regard to the issues raised on the appeal, orders in the terms proposed by the parties should be made.

6 Put another way, when a minute of consent orders compromising an appeal is filed pursuant to r 73, the court does not act as a mere rubber stamp, endorsing the agreement of the parties without consideration as to the merits of the matter under review. On the other hand, when a minute of consent orders is filed, it will not ordinarily be necessary for the court to undertake the same detailed analysis of the factual and legal issues as if the appeal had been contested. The degree of judicial scrutiny of the orders proposed will depend upon the nature of the issues raised by the appeal, and the nature of the orders proposed.

7 In this case, the issues raised by the appeal are quite straightforward, and it is easy to see why the parties have arrived at the conclusion that the appeal should be allowed.

8 On 20 September 2007, police searched the residence and business premises of Mr Rayney, and seized a number of items including a large quantity of documents. Mr Rayney claimed legal professional privilege over some of those documents. Pursuant to the procedure mandated by s 151 of the Act, on 24 September 2007 a police officer applied for a determination as to whether the documents in question were subject to legal professional privilege. Process orders were made by a magistrate dealing with questions of custody and access to the documents pending the determination with respect to privilege.

9 The magistrate provided reasons for his determination in which he set out the principles which he had applied, and attached a schedule in which he set out, in respect of each document, his findings and the reasons for his determination that the document was either privileged, or not privileged, as the case may be.

10 In relation to the document the subject of the appeal, in that schedule, the magistrate set out his findings and reasons in the following terms:

It is a brief legal opinion on a matter that would be expected to be raised by Mr Rayney as a person of interest in the police investigation into the suspected unlawful killing of Corryn Rayney. The author of the document is not clear. Importantly, the date of creation of the document is not apparent from the document itself. In the absence of evidence as to the date of creation of the document, I cannot be satisfied that it was created for the purpose of legal advice or anticipated litigation.

11 Earlier in his reasons, the magistrate had correctly observed that a document will be subject to legal professional privilege if it was made for the dominant purpose of giving or receiving legal advice (Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49). With respect to the magistrate, assuming that the findings set out in the schedule accurately reflect the nature of the document, I would have thought there was a clear inference from its nature that the document was brought into existence for the dominant purpose of providing legal advice, quite irrespective of the date upon which it was created.

12 At all events, any doubt or ambiguity as to the provenance of the document has been resolved by an affidavit which has been filed by a solicitor acting on behalf of Mr Rayney. She deposes that on a date which she does not now know, but during September 2007, and prior to the seizure of Mr Rayney's documents on 20 September 2007, she drafted a document concerning legal research about particular legislation. She deposes that she had conducted the research on the instructions of Mr Rayney. She further deposes that the purpose of the document was to summarise the legal research and to provide legal advice to Mr Rayney. According to her affidavit, the document was not on her firm's letterhead, and was not dated or signed because she handed it directly to Mr Rayney, together with a copy of sections of the relevant legislation, during a conference where the legal issues were discussed.

13 The solicitor has not been able to see the document which was seized, because she does not come within the scope of the process orders made by the magistrate. However, Mr Rayney has seen the document and described it to her. From his description, she believes that the document, the subject of the application before the magistrate, and this appeal, is the document to which she has referred.

14 Accordingly, having regard to this affidavit, if there was any doubt or ambiguity as to the provenance and purpose of the document, it has now been resolved in terms which make it clear that the document was brought into existence for the dominant purpose of providing legal advice. Accordingly, the document falls within the scope of legal professional privilege. In those circumstances, it was entirely proper and appropriate for the respondent to consent to an order allowing the appeal.

15 For these reasons, I will direct that the registrar of the court issue final orders in accordance with the minute of consent orders filed by the parties. Those orders will be in the following terms:

1. The appeal be allowed.
2. The decision of the learned magistrate that item 160(vii) in Annexure B of the Reasons for Ruling delivered 18 July 2008, as amended on 28 July 2008, is not the subject of legal professional privilege, be set aside.
3. Decisions that:

(a) item 160(vii) is the subject of legal professional privilege; and

(b) item 160(vii) be returned to the appellant forthwith,