Stanizzo v State of New South Wales

Submissions

1. The State of New South Wales claims that s 119 of the Evidence Act applies because it is the DPP that is the client and Ms Rallis and Mr Barr are lawyers acting for the client, for the dominant purpose of the DPP being provided with professional legal services, in circumstances where the DPP is, or may be, a party to the proceedings for which the document was prepared.
2. The definitions, in s 117 of the Evidence Act, define a "client" as including a person or body that employs a lawyer, including employing them under a contract of service. As a consequence, an employed lawyer, who provides advice to the employer, is a situation contemplated by the statute to involve the privilege created by either s 118 or s 119 of the Evidence Act.
3. On the other hand, a "lawyer" means, relevantly, an employee of a lawyer referred to in paragraph (a), (b) or (c) of that definition. The DPP is appointed under the Director of Public Prosecutions Act 1986 (NSW) by the Governor and is responsible to the Attorney General.
4. Pursuant to the provisions of s 31 of the Director of Public Prosecutions Act, which, in turn, imports the provisions of Schedule 1, the DPP is required to be an Australian lawyer of at least seven years' standing. As a consequence, an employee or agent of the DPP is a "lawyer" within the meaning of s 117 as a "lawyer", being an employee of an Australian lawyer.
5. The fundamental difficulty with the argument, as noted earlier, is that it elides the notion of client and lawyer. A lawyer employed by the DPP is, at the time that he is acting as an employee, for all purposes, the DPP. It is the DPP that conducts prosecutions on behalf of the Crown: see s 7 of the Director of Public Prosecutions Act and, otherwise, acts on behalf of the Crown, in the institution and conduct of appeals in relation to indictable offences. It is stretching the ordinary meaning of the term "lawyer representing the client" to refer, in that way, to an employee of the DPP, acting in the prosecution of criminal proceedings, where the client is alleged to be the DPP, itself.
6. In the context of the plaintiff claiming absence of reasonable and probable cause to commence and maintain the prosecution and malice and the defendant denying each of those elements of malicious prosecution, the existence of reasonable and probable cause to commence or maintain the prosecution is an issue of fact in the proceedings. The information available to the defendant (through the particular officers) is a matter directly going to the reasonable and probable cause that was required in order to commence or maintain the prosecution.
7. The requirement to prove malice, is more difficult. It requires, as the authorities suggest, the existence of a state of mind in those operating as the prosecutors to commence the proceedings or maintain the proceedings for a primary purpose other than that of carrying the law into effect.
8. The plaintiff claims that the state of mind of the responsible officers, Mr Barr and Ms Rallis, in regards to the veracity, credibility and reliability of the complainants and certain Crown witnesses, is an aspect that is extremely relevant to the existence of malice or a primary purpose other than that required by the law.
9. The plaintiff, as a consequence of the foregoing, submits that the state of mind of each of Mr Barr and Ms Rallis was informed and formed by reference to the communications and/or conferences to which objection is taken. Therefore, the plaintiff submits, the communications and/or conference notes are directly in issue.
10. The fact, if it be the fact, that the communications and/or conference notes are directly in issue is not the requirement that determines or informs the objection to production of the documents on the basis of legal professional privilege embodied by s 119 of the Evidence Act. The Court accepts that Mr Barr and Ms Rallis formed their purpose and state of mind on the basis of the communications and/or conferences. So much, inferentially, arises from the evidentiary statements of each of Ms Rallis and Mr Barr.
11. Further, the plaintiff submits that the defendant's claim for privilege is misconceived, because the communications between the complainants and/or witnesses and the officers of the DPP were not "confidential communications", because neither the person who prepared it nor the person to or for whom it was prepared was "under an express or implied obligation not to disclose its contents": s 117 of the Evidence Act. In part at least, the plaintiff claims that the obligation of disclosure, resting on the DPP or the particular lawyers in his employ and concerned with the conduct of the criminal proceedings, is inconsistent with the required obligation of confidentiality that must be satisfied before legal professional privilege arises.
12. The requirement to disclose, which arises under s 141 and is detailed in s 142 of the Criminal Procedure Act 1986 (NSW) and the provisions of s 149F(6) of the Criminal Procedure Act, as it currently exists, provides that the Division does not affect "any immunity" that applies by law to the disclosure of any information. The predecessors to the provisions of s 149F and ss 141 and 142 were, relevantly, to the same effect.
13. The plaintiff submits that the saving provision for legal professional privilege does not elevate a document that is not otherwise the subject of legal professional privilege to such a document. Because the notes would not otherwise be confidential information, the provision saving legal professional privilege from abrogation does not assist the plaintiff.
14. Next, the plaintiff submits that the State of New South Wales has waived the privilege that otherwise may exist in regard to the documents. The waiver has occurred because the statements of Ms Rallis and Mr Barr refer to their states of mind based on the communication contained within the documents and, in attempting to establish the presence of reasonable and probable cause to prosecute and the absence of malice, refer to such communications. As a consequence, the communications at conference or otherwise are relied upon by the defendant and the privilege has been waived
15. The defendant raises three fundamental issues: whether the states of mind of Ms Rallis and Mr Barr are, in truth, in issue; whether the claim for privilege over documents is inconsistent with the duty of disclosure, such that privilege did not attach to those notes; and, thirdly, whether the privilege, if it were to have existed, was abandoned or lost or waived, either because of the duty of disclosure or by the service of evidentiary statements of Mr Barr and Ms Rallis.
16. The defendant, correctly, submits that the plaintiff must prove that the prosecutors did not honestly or reasonably form the view that there was a proper case for prosecution, or formed that view on an insufficient basis, in order to prove that there was an absence of reasonable and probable cause. Further, the defendant submits that, in order for the plaintiff to prove malice, the plaintiff must prove that the dominant purpose of the prosecutors was a purpose other than the proper invocation of the criminal law. Again, this is a correct statement of the law as has been explained earlier in these reasons.
17. Ultimately, the defendant submits that the nature of the claim does not necessarily involve the proposition that the plaintiff has put in issue the state of mind of Mr Barr and Ms Rallis. The Defence to the Statement of Claim has denied that either officer acted with an absence of reasonable and probable cause or acted with malice. The defence makes no positive assertions concerning the state of mind of either Mr Barr or Ms Rallis.
18. As to the detailed aspects of the argument, the defendant refers to the definitions in s 117 and to the privilege in s 119 of the Evidence Act.
19. The defendant submits that the DPP was the client as referred to in s 119 of the Evidence Act and was entitled to object to the production of the conference notes and/or communications. The purpose of the communication between the witnesses and the lawyers was for the purpose of pending criminal proceedings and were confidential communications. As a consequence, both the documents and the conference notes (if they be different) are documents that are privileged: Sugden v Sugden [2007] NSWCA 312 at [68]-[69], [74], per McDougall J, with whom Mason P and Ipp JA agreed.
20. There is no dispute by the defendant that the DPP had a continuing duty to disclose certain matters pursuant to common law obligations and to the duties imposed upon the DPP by the Criminal Procedure Act. The defendant relies upon the discussion in R v Petroulias (No 22) (2007) 213 FLR 293; [2007] NSWSC 692, particularly at [63]-[65]. It is not, according to the defendant's submission, relying on the discussion in Petroulias, for the Court to review the DPP's discharge of his duty, and the obligation to disclose all documents, to which the duty attaches, does not bear upon the existence of the privilege under the Evidence Act or at common law.
21. The defendant submits that the discussion in Petroulias covers precisely that which is before the Court in the current proceedings.

Consideration

1. As indicated earlier, I have serious doubt as to whether the provisions of s 119 of the Evidence Act apply to the DPP as a client in circumstances where it is the Office of the DPP that is purporting to act as the lawyer. Employed solicitors and Crown Prosecutors at the DPP, when carrying out their functions under the Director of Public Prosecutions Act, are the DPP. The provision in the definition of "lawyer" that includes employees of a client is intended to apply to a lawyer employed by a person or body that is not, itself, acting as the lawyer. The alternative means that the DPP would be both a client and a lawyer under the definitions in s 117 of the Evidence Act.
2. Nevertheless, for the present purposes I am prepared to accept that, for the purposes of s 119 of the Evidence Act, the DPP is the client and lawyers employed by the Office of the DPP are lawyers acting for the DPP. As a consequence, the communication between the complainants and the lawyers engaged by the DPP is a communication between a lawyer, or more than one lawyer, acting for the DPP and another person, the dominant purpose of which was the DPP being provided with professional legal services related to the initial criminal proceedings. Even in relation to that latter aspect, it is an odd suggestion or construction that the DPP is employing staff for the purpose of the provision of professional legal services, when it is the DPP that exercises the legal duties imposed upon the DPP by the Director of Public Prosecutions Act.
3. The question then arises as to whether the communication between a potential witness and/or the complainants, on the one hand, and, on the other, lawyers acting for the DPP, is a confidential communication. First, it should be noted that the complainants were not under any duty to keep confidential the communication between them and the DPP. Further, the complainants and all witnesses were not under any duty to keep confidential that which was communicated to them by the DPP.
4. The second aspect of the determination of whether the conference notes and other documents are confidential communications is whether the lawyers, employed by the DPP, were under an obligation, either under law or otherwise, whether express or implied, not to disclose the contents of the communication.
5. In answering that question, the first aspect is that the DPP, himself or herself, is under no such obligation. The only express or implied obligation that may arise is an obligation reposed in the lawyer or lawyers not to disclose the contents of the communications, other than to the DPP.
6. I do not consider that the obligation to disclose all relevant matters to the accused or the accused's legal representative, pursuant to the duties imposed upon prosecutors, of itself, renders the communication to be other than a confidential communication. The fact, if it were the fact, that a communication was required to be disclosed, does not undermine the confidentiality of the communication otherwise made. It merely imposes an overriding duty to disclose the contents of certain communications and says nothing about the communications in general. I am comforted in this approach by the provisions of s 149F(6) of the Criminal Procedure Act.
7. If, as earlier accepted, the DPP is the client and the employed solicitor and/or Crown Prosecutor is the lawyer, for the purposes of s 119 of the Evidence Act, then the bifurcated role of the lawyers employed by the Office of the DPP would tend to a construction that the communication was confidential. The lawyers would be taking the statements as lawyers acting for the DPP. Those statements were confidential to the DPP.
8. When the lawyers decide, themselves, to release statements (whether under an obligation to notify or otherwise), they would be acting as the DPP itself, and exercising the discretion available to a client to release confidential information. This somewhat casuistrous result is the product of treating the DPP as the client and its employed solicitors and/or counsel as employed lawyers. None of these tensions would arise were the DPP not covered by s 119 of the Evidence Act, which is my preferred view.
9. It is unnecessary to deal finally with the issue of the application of s 119 of the Evidence Act to the DPP. It remains unnecessary, even though the Court's view is that the communication by a witness and/or complainant to lawyers employed by the DPP would be a confidential communication, once one accepts that the DPP is the client.
10. The last question to be decided is the operation of s 125 of the Evidence Act. There are plainly reasonable grounds for finding that the complainants were seeking the commission of an abuse of power and/or a fraud and possibly a criminal offence. These reasonable grounds arise notwithstanding the very preliminary evidence that is available to the Court at this stage.
11. As earlier stated the substantive claim is for malicious prosecution, which is an abuse of power. The relevant elements that may be in contention have already been the subject of comment.
12. It is sufficient for present purposes to make clear that the plaintiff claims that each of Valvano/Fregnan and Badarne falsely and maliciously induced the prosecution of the plaintiff by making false and malicious allegations to police. It is they that the Court has referred to as the complainants. Each of the complainant is a party to proceedings in which the plaintiff claims damages against them. So too is the State of New South Wales, representing the police officers and/or the Office of the DPP.
13. The terms of s 125(2) of the Evidence Act, as already identified, allow the Court to make a finding, at this preliminary stage, that the communication was made as an abuse of power or in furtherance of the an abuse of power, if there are reasonable grounds for so finding. I have made clear that there are reasonable grounds for so finding at least in relation to the complainants.
14. There are evidentiary statements before the Court and, of course, there are the pleadings. As Santow J said in Kang v Kwan [2001] NSWSC 698, the material requires that there is "colour to the charge", which plainly there is in these circumstances.
15. Nevertheless, because the claim of malicious prosecution requires "malice", it is necessary to determine whether an inference can be drawn of such malice, even where all, of which the Court must be satisfied, is reasonable grounds for such a finding. As to the complainants, as already made clear, such is manifest.
16. As to the issue of whether malice has been shown, or there are reasonable grounds for a finding that there exists malice, in relation to the DPP, there is a serious issue. The Court, as presently constituted, is not minded to consider that, on the evidence that is currently before the Court, there are "reasonable grounds" for finding that the DPP or the police have acted in furtherance of an abuse of power in that they, themselves, have acted maliciously. Nevertheless, inferences would be available, depending upon the manner in which the evidence may be adduced and taking the plaintiff's evidence at its highest.
17. However, the terms of s 125(1) of the Evidence Act renders inapplicable s 119 where a communication, being a confidential communication, has been made "in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty".
18. At this stage of the proceedings, the Court is prepared to find, that there are reasonable grounds that the communication between the complainants and the police and/or lawyers was a communication "in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to civil penalty". In this case, the communication, by the complainant to the lawyers for the DPP, was made with the intention of facilitating the fraud by the complainants: Zemanek v Commonwealth Bank of Australia (Federal Court of Australia, Hill J, 2 October 1997, unrep). The document is evidence of the communication. It is unnecessary, in order to fit within the provisions of s 125(1), for the lawyer, in this case the DPP or the lawyers employed by the DPP, to commit, themselves, the fraud, offence or act that renders a person liable to a civil penalty. It is sufficient if the communication were made in furtherance of the commission of the fraud.
19. Thus far, the Court has paid little attention to the meaning of the term "fraud". Fraud, at the very least, must include an element of dishonesty and includes, as Santow J said in Kang v Kwan, supra, "to include the kind of sharp practice often associated with equitable fraud encompassed by [a] sense of dishonesty, namely 'lack of probity; disposition to deceive, defraud or steal'.": Kang v Kwan at [37], See also ATH Transport v JAS (International) [2002] NSWSC 956, per Barrett J, where Barrett J accepted that the term "fraud", where used in s 125 of the Evidence Act, "is a statutory emanation of the principle that there is no privilege in iniquity": at 12].
20. As a consequence, it is unnecessary for the Court to delve further into whether Detective Murdock, Ms Rallis or Mr Barr were or should have been aware of the fraud that had been perpetrated, at least in relation to the civil proceedings and the cheque for $134,518 to which attention has been drawn in the evidence adduced. It is sufficient, for present purposes, that there are reasonable grounds for finding that the communication between the complainants and the police and/or DPP was in furtherance of the commission of a fraud.
21. Even though it is unnecessary to find any further, I would, on the preliminary material already before the Court, also find that there are reasonable grounds that the communication by the complainants to the police and/or DPP ought reasonably to have been known to have been made or prepared in furtherance of a deliberate abuse of power. That latter finding is based upon the timing of the complaint, the known fraud in relation to the civil proceedings and the cheque, together with the other evidence adduced.
22. For the foregoing reasons the Court finds that any legal privilege, which pertained to the communication between the complainants and the police and/or DPP (or its employees), under s 119 of the Evidence Act, had been lost under the provisions of s 125 of the Evidence Act.
23. The Court makes the following orders: 1. No privilege arises in relation to the documents that evidence a communication between the complainants and the Office of the Director of Public Prosecutions; 2. Documents for which privilege has been claimed under s 119 of the Evidence Act 1995 (NSW) shall be produced to the Court; 3. The plaintiff, Mr Stanizzo, shall have access to such documents; 4. The State of New South Wales shall pay the plaintiff's costs of and incidental to the motion and the claim for privilege.

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