The Queen v Brady & Ors

For the Commissioner of the Australian Federal Police

1 Barry Brady, Peter Hutchinson, John Leckenby and Steven Wong ("the ACC accused") are all former employees of Note Printing Australia Limited or Securency International Pty Ltd. Together with other former employees, Christian Boillot and Myles Curtis, they have each been charged with conspiring to bribe a foreign official, contrary to ss 11.5(1) and 70.2(1) of the Criminal Code 1995 (Cth). Some of them have also been charged with false accounting, contrary to s 83(1)(a) of the Crimes Act 1958 (Vic), in relation to payments made in connection with foreign agents.

2 The current proceedings before this court were commenced by the filing of indictments by the Commonwealth Director of Public Prosecutions ("CDPP") in late 2013 and early 2014. In some cases, the accused had been committed to stand trial for the relevant charges; in other cases, the CDPP exercised his power to directly indict,[1] after the accused had been discharged at committal.

3 Each of the ACC accused was compulsorily examined before the Australian Crime Commission ("ACC") about the foreign bribery matters, prior to the laying of any charges against them. Numerous members of the Australian Federal Police ("AFP") who were investigating the alleged offences were present[2] during those ACC examinations, and/or have had access to the recordings, transcript or summaries of the examinations. The AFP provided copies of various ACC materials to CDPP lawyers. Some ACC materials were provided by CDPP lawyers to prosecuting counsel during the committal hearings. Precisely who received what ACC materials, and what use they have made of them, are matters which are the subject of the applications currently before the court ("the ACC applications").

4 In the ACC applications, the ACC accused seek to permanently stay the current prosecutions, based on numerous grounds including the following: the ACC examinations (and various decisions or documents relating to them) were unlawful or beyond power; the nature and extent of the release of ACC materials to the AFP and the CDPP was unlawful; and the conduct of the AFP and the prosecution lawyers in relation to the ACC materials has been such as to fundamentally change the accusatorial nature of a criminal trial, and has destroyed the right of the ACC accused to a fair trial.[3]

5 In the alternative to the ACC applications, the ACC accused, together with their co-accused, Messrs Boillot and Curtis, propose to seek the dismissal of the conspiracy charges in the interests of justice,[4] or a permanent stay of all charges on abuse of process grounds. The alternative applications are based on various other alleged instances of investigative or prosecutorial malpractice or unfairness, in addition to the alleged misuse of ACC materials. The hearing of the alternative applications will immediately follow the hearing of the ACC applications.

6 On 26 June 2014, I set a timetable for the delivery of affidavits and witness statements by those CDPP and AFP witnesses whom the ACC accused had indicated that they wished to cross-examine for the purposes of the applications.

7 On 25 August 2014, I commenced hearing the ACC applications. Since then, there have been numerous calls by the ACC accused for the production of documents, or unredacted versions of documents. As and when documents have been produced by the AFP or the ACC in answer to such calls, I have examined them - pursuant to s 133 of the Evidence Act 2008 (Vic) ("the Evidence Act") - in order to determine questions of legal privilege and public interest immunity, before making various oral rulings in that regard. The parties have not opposed that course, or sought to be heard in relation to any such rulings.

8 On 1 September 2014, the first CDPP lawyer, John Barrington, was called to give evidence. The following morning, a call was made by Mr Tehan QC, on behalf of all of the ACC accused, for the production of legal advice from the CDPP to the AFP relating to potential charges against the ACC accused. Immediately after making the call, Mr Tehan QC conceded that the call for documents may be validly resisted. However, he said that if the call was not answered, it was proposed to ask each CDPP lawyer in cross-examination about their knowledge of the contents of any such advice from the CDPP to the AFP. Mr Tehan QC submitted that such a course was permissible under s 123 of the Evidence Act, which deals with the circumstances in which client legal privilege may be lost in a criminal proceeding.

9 Shortly thereafter, counsel for Mr Leckenby, Mr Thomson, foreshadowed that he proposed to ask Mr Barrington whether the CDPP ever gave advice to the AFP about the scope of the relevant ACC determination, and about whether persons who were suspects could properly be examined by the ACC.

10 The CDPP submitted that s 123 would not permit the ACC accused to compel witnesses to answer questions about privileged matters such as those. The CDPP said that the current situation fell within s 131A of the Evidence Act, which excludes s 123 from applying to the compulsory disclosure of information pursuant to a disclosure requirement.

11 Given the importance of the issue, I allowed both sides time to prepare written and oral submissions concerning the interpretation and scope of ss 123 and 131A.[5] In the meantime, cross-examination of several witnesses proceeded, primarily in relation to matters that did not raise questions of legal privilege. However, when a question was asked which did enquire into a privileged matter, objection was taken; the objection was noted, without my ruling on it, and the cross-examination continued in relation to other, non-privileged, matters.

12 Subsequently, the ACC accused have provided a document, which lists the potentially privileged topics in relation to which they wish to adduce evidence by way of cross-examination of AFP and CDPP witnesses. Some of the topics relate to matters in respect of which the AFP is the client of the CDPP, others to internal CDPP advice in which the privilege would be that of the CDPP.[6]

13 Those matters are said to be relevant to the following issues in dispute in the ACC applications:

(a) Who has had knowledge of the content of the ACC examinations? This will affect the question of who may or may not be involved in the prosecution of the ACC accused;

(b) Has that knowledge been used at any stage of the prosecution of the ACC accused? This goes to whether there has been impermissible use of ACC material;

(c) Were the ACC examinations unlawful (for example, because they were for an ulterior purpose)? This goes to whether there has been a lawful alteration of the accusatorial character of the trial of the ACC accused; and

(d) The knowledge of the relevant CDPP, AFP and ACC personnel about the purpose for which the examinations were being held, or the fact that the ACC accused were already suspects at the time of their examinations. This goes to whether there should be a stay on abuse of process grounds or a dismissal in the interests of justice.

14 The ACC accused accept that, in a civil proceeding, the CDPP and AFP witnesses could object to answering the proposed questions on the basis of legal privilege. However, they say that, by reason of s 123, legal privilege does not apply to evidence sought to be adduced by the accused in a criminal proceeding, unless it is a co-accused's legal privilege.

15 The ACC accused say that neither s 123 nor s 131A is concerned with a purely temporal distinction (such as a distinction between "pre-trial" and "at trial"). Rather, they are concerned with different processes: s 123 is concerned with the process of adducing evidence; s 131A is concerned with court processes prior to the adducing of evidence.

(a) The ACC applications are pre-trial or preliminary proceedings and therefore:

(i) Are not "criminal proceedings", within the meaning of s 123; and

(ii) Are governed by s 131A (which excludes s 123 from operating);

(b) In cross-examining the AFP and CDPP witnesses about privileged matters, the ACC accused:

(i) Are not "adducing evidence" within the meaning of s 123;

(ii) Rather, they are requiring the disclosure of information under s 131A.

17 The issue currently before the court is a novel one. The particular situation facing the court does not appear to have been considered in any of the authorities. Nor have any of the extrinsic materials, such as the explanatory memoranda or law reform reports, considered this particular situation.

18 The task of statutory construction must start with a consideration of the text itself. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision.

19 It is clear that in interpreting any provision of the Evidence Act, the court must prefer a construction that would promote the purpose or object underlying the Evidence Act to one that would not promote it.[7] The stated purpose of the Evidence Act is to make fresh provision for the law of evidence that is uniform with Commonwealth and NSW law.[8]

20 In construing the relevant provisions, the court may also have regard to relevant extrinsic materials, including reports of parliamentary proceedings, explanatory memoranda and law reform commission reports.[9]

Privilege under the Evidence Act

21 Part 3.10 of the Evidence Act deals with a number of privileges, which allow a party or a witness to refuse to disclose certain documents and communications.

22 Division 1 of that Part relates to client legal privilege, being the privilege which attaches to confidential communications or documents made or prepared for the dominant purpose of a lawyer providing legal advice (s 118), or providing legal services relating to litigation (s 119).

23 Sections 121 to 126 provide for various ways in which legal privilege may be lost. In the case of an accused adducing evidence in a criminal proceeding, legal privilege is lost, unless it is evidence of a privileged communication or document of a co-accused (s 123).

24 Division 2 of Part 3.10 deals with various other privileges; relevantly, it includes the privilege against self-incrimination in s 128. Division 3 of that Part deals with the exclusion of evidence on public interest grounds ("PI exclusion").

25 Division 4 contains a number of general provisions, which apply to all of the different types of privilege and PI exclusion. It includes s 131A, the terms of which will be considered shortly.

Construing s 123

The words of the Evidence Act

26 Section 123 provides as follows:

In a criminal proceeding, this Division does not prevent an accused from adducing evidence unless it is evidence of:

(a) a confidential communication made between an associated accused and a lawyer acting for that person in connection with the prosecution of that person; or

(b) the contents of a confidential document prepared by an associated accused or a lawyer acting for that person in connection with the prosecution of that person.

27 Both sides made reference to the general principle of legality, which involves the presumption that the legislature does not intend to make any alteration to the law beyond what it explicitly declares, either in express terms or by implication.

28 The CDPP and AFP also referred to the more specific statement by the High Court in Daniels Corporation International Pty Ltd v ACCC[10] that:

Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.[11]

29 The application of those general principles is not disputed and requires no further discussion.

30 On the face of the provisions themselves, the Evidence Act does evince a clear statutory intention to abrogate legal privilege in ss 121 to 126 inclusive:

(a) Each of those sections has a heading which commences with the words "Loss of client legal privilege" followed, after a hyphen, by a brief reference to the type of circumstances to which the section applies. In the case of s 123, the heading is "Loss of client legal privilege - accused"; and

(b) Each of those sections includes the phrase "this Division does not prevent" the adducing of specified evidence. "This Division" is Division 1, which deals with client legal privilege.

31 There is no doubt that s 123 was intended to abrogate legal privilege in the circumstances to which the section applies. The dispute is as to what those circumstances are.

32 The introductory words to s 123 are "[i]n a criminal proceeding".

33 In the Dictionary to the Evidence Act:

criminal proceeding means a prosecution for an offence and includes -

(a) a proceeding for the committal of a person for trial or sentence for an offence; and

but does not include a prosecution for an offence that is a prescribed taxation offence ...

34 Many of the provisions in the Evidence Act apply to both civil[12] and criminal proceedings; however, some apply only to one or the other. The words "in a criminal proceeding" appear in numerous places in the Act,[13] in order to signify those provisions which apply only in a criminal proceeding.

35 The ACC accused are being prosecuted for offences in the current proceedings. Each of the current proceedings is therefore "a criminal proceeding", within the meaning of the Dictionary definition.

36 I agree with the CDPP and AFP that the trial of the criminal proceedings has not yet commenced.[14] The ACC applications are "pre-trial procedure[s]", within the meaning of Part 5.5 of the Criminal Procedure Act 2009 (Vic) ("CPA"), being applications made prior to trial under s 199 of the CPA.

37 But the concept of a "proceeding" in the Evidence Act is not synonymous with a "trial". That much is clear from s 4(1) of the Act, which provides that the Act applies to "all proceedings" in a Victorian court, including "interlocutory proceedings or proceedings of a similar kind", and proceedings that "are heard in chambers."

38 Furthermore, the definition of a "criminal proceeding" expressly includes both a committal hearing and a bail application, in neither of which could it be said that there is a "trial" - either in the ordinary sense of that word, or in the specific sense in which "trial" is used in the CPA.

39 Although the ACC accused chose to make the ACC applications prior to the commencement of the trial, under s 199 of the CPA, there is no dispute that the ACC applications could have been made during the trial (albeit in the jury's absence).[15] If the CDPP/AFP contention (that, in s 123, "a criminal proceeding" means "the trial of a criminal proceeding") was correct, that would simply encourage accused persons who wished to rely on s 123 to delay making any stay application until after jury empanelment. That would lead to considerable delay and inconvenience in the running of the trial, be of no benefit for anyone, and serve no obvious purpose.

40 The CDPP and AFP argue that the NSW decision in DPP (Cth) v Kane[16] is authority for the proposition that an application for a stay is not a criminal proceeding, for the purposes of s 123. Kane is not authority for such a broad proposition.

41 During the course of committal proceedings, the solicitors for Mr Kane and his co-accused were inadvertently sent copies of a privileged internal CDPP legal advice. Once the inadvertent disclosure was discovered, the CDPP requested the return of copies of the advice; all of the co-accused eventually complied with the request, except for Mr Kane.

42 The CDPP commenced a proceeding in the Common Law Division of the NSW Supreme Court, seeking orders restraining the use of the advice and delivery up of copies of it, on the grounds of the equitable obligation of confidence and/or legal privilege. Hunt CJ at CL granted the orders sought by the CDPP at the end of the hearing, and published his reasons for decision in the Common Law proceeding later ("the reasons").

43 Relying on the contents of the advice, Mr Kane then applied to the Supreme Court to stay the committal proceeding as an abuse of process. In the reasons, his Honour noted that after he had granted the relief sought by the CDPP "in these proceedings", Mr Kane's application for a stay was called, but "he produced no evidence and the application was dismissed."[17] His Honour referred to the stay application for the purpose of satisfying himself that there had been some detriment arising from the inadvertent disclosure of the advice (that being a matter which was relevant to the equitable claim based on confidentiality).

44 In the course of discussing the changes which the Commonwealth Act had made to the common law of privilege, Hunt CJ at CL observed that the effect of s 123 was to override the High Court decision in Carter v Northmore Hale Davy & Leake,[18] "so that the privilege which the common law had retained even as against a defendant to a criminal proceeding is now lost."[19]

45 He then made the following comments by way of obiter dicta:

The communication which such a defendant wishes to use must, of course, be relevant to the criminal proceedings in which he is the defendant and, although the document in question here was said to be relevant to the application to this Court to stay the committal proceedings ... there is nothing in the document which could assist the defendant in the present case in his conduct of a trial in the event that he is committed. It was conceded that it would not be admissible in any such trial. That that is so is again acknowledged by the concession referred to in the last paragraph. It was also conceded that the application to this Court for a stay did not itself fall within the s 3 definition of a criminal proceeding; if the document otherwise remains privileged, s 123 would not permit the defendant to adduce it in evidence in that application.[20]

46 That passage largely consists of recording concessions made by counsel, in relation to an issue that his Honour was not deciding. In so far as it might be taken as endorsing the proposition that s 123 can only be relied upon at trial, it is unsupported by authority and contrary to the ordinary meaning of the provision.

47 It is not clear from the reasons whether the stay application had been made in that Common Law proceeding, or in some separate Supreme Court proceeding.[21] In either event, the concession that the stay application had not been made in a criminal proceeding was undoubtedly correct; the only criminal proceeding then on foot was in the NSW Local Court.

48 The remarks made in Kane have no bearing on whether a stay application in the trial court before a jury is empaneled is "in a criminal proceeding".

49 Section 123 applies when an accused is "adducing evidence". The concept of adducing evidence appears throughout Division 1 (client legal privilege), as well as elsewhere in the Evidence Act.

50 In Esso Australia Resources Ltd v Federal Commissioner of Taxation (Cth),[22] the High Court considered the meaning of "adducing evidence" in the context of ss 118 and 119 of the Commonwealth Act.

The statutory language is clear. It deals with the adducing of evidence. That would cover adducing evidence in interlocutory proceedings as well as at a final hearing, or on an appeal, but it does not cover all the circumstances in which a claim for privilege might arise. To take the most obvious example, it would not cover the circumstances considered in Baker v Campbell.[23]

51 There is no basis in principle, or in the words of the statute, to give a different meaning to "adducing evidence" in different sections within Division 1. The concept of "adducing evidence" in s 123 should not be construed so as to limit it to adducing evidence at trial.

52 What does "adducing evidence" mean? It is not a term which is defined in the Evidence Act.

53 Chapter 2 of the Evidence Act is headed "Adducing evidence." It contains provisions concerning what evidence may be adduced from witnesses (including by way of cross-examination), what documents may be tendered, as well as other permissible forms of evidence (such as a view). Chapter 2 is not limited to the adducing of evidence at trial, and applies to all proceedings to which the Act relates.

54 There seems to be no case that has considered what "adducing evidence" means in the context of s 123.

55 The CDPP and AFP argue that s 123 only applies to the adducing of evidence that the accused already has in their possession.

56 The CDPP and AFP seek to rely on the decision in R v Wilkie[24] in support of that argument. Wilkie concerned an application to set aside a subpoena which the accused had served on the CDPP, seeking the production of notes of a conference between prosecuting counsel and a particular witness. Grove J upheld the CDPP's objection to production on the basis that no legitimate forensic purpose had been established, and the accused was simply "fishing"[25]; this was the ratio decidendi.

57 In the course of his very brief extempore reasons, his Honour made the following obiter dicta comments about s 123:

3. ... In my view the statute in s 123, whilst it does not prevent an accused from adducing evidence about matters which would be the subject of privilege in the hands of a prosecutor, it is to be observed that it says nothing in its terms about enforced production of such material. A wholesale change in such a fundamental legal concept of privilege would in my view require much clearer statutory expression than appears in s 123.

4. ... I consider that the Crown's submission is correct, that the effect of the section is to enable an accused to use what would otherwise be privileged information if he has possession of it, but it does not in its own terms provide a vehicle for enforced production of such material. To the extent that a different view might be deduced from the decision in Wollongong City Council v Ensile Pty Ltd [2008] NSWLEC 250 I would not concur.

5. It is not however necessary for me to be finally conclusive about my views. ...

58 His Honour was quite right to observe that s 123 did not operate so as require the compulsory production of privileged documents. However, he was only dealing with the question of whether objection could be taken to the production of documents under a subpoena; no question arose as to the adducing of oral evidence from a witness.

59 I agree with the ACC accused that it is not appropriate to parse this extempore judgment as if it were a statute, in an effort to find comments that may be bent to suggest a particular view of an issue that was irrelevant to the issue before the court.

60 In concluding that s 123 did not operate so as require the compulsory production of privileged documents, Grove J did not refer to an earlier NSW decision to the contrary, being the decision of the NSW Court of Criminal Appeal in R v Pearson.[26] In Pearson, the accused issued a subpoena in a criminal proceeding, seeking to compel the production of clearly privileged documents. The trial judge refused to order their production.

61 Mr Pearson then sought a permanent stay of the proceeding, arguing that he could not receive a fair trial without access to the privileged documents. The trial judge did not grant a permanent stay; instead, he granted a conditional stay of the criminal proceeding, pending the completion of a related civil proceeding, apparently on the assumption that Mr Pearson would get sufficient access to the documents in the civil proceeding to be able to have a fair criminal trial.

62 The Crown appealed against the grant of the conditional stay; Mr Pearson sought leave to appeal against the refusal of a permanent stay. The NSW Act came into force before the matters had come on for hearing by the appeal court. The parties reached agreement as to the disposition of the appeal and leave application, so the appeal court was not required to make any decision. In brief extempore reasons, Gleeson CJ (with whom Smart and Sully JJ agreed) noted as follows:

It is agreed between counsel before this Court that the practical effect of s 123 of the [NSW Act] when read together with s 118, in a case of the present kind, is to reverse the effect of the decision of the High Court in Carter. It is common ground that in criminal proceedings to which the [NSW Act] applies, s 123 produces the practical result that legal professional privilege does not stand in the way of obtaining access to subpoenaed documents, at least in circumstances where a legitimate forensic purpose of the accused at a criminal trial is served by being given access to such documents for the purpose of potential use at the trial.[27]

63 The Chief Justice simply noted the parties' agreement in this regard, he did not offer any comment as to the correctness of it. No authority was cited in support of the proposition. With respect, the parties' agreement in that regard was simply wrong: s 123 has never applied to the production of documents in answer to a subpoena.

64 Pearson was briefly mentioned, with apparent approval, in Wollongong City Council v Ensile Pty Ltd,[28] as were several inconsistent opinions in various commentaries on the uniform evidence acts. In Wollongong City Council, the accused called for various privileged documents in the possession of the prosecutor. In her brief reasons, apparently given during the running of a hearing, Jagot J held that s 123 defeated the claim to privilege, and the privileged documents would have to be produced (as long as there was a legitimate forensic purpose for seeking access to them). However, I agree with the parties in this proceeding, that Wollongong City Council was wrongly decided; s 123 is not concerned with the compulsory production of privileged documents.

65 In construing s 123, the extrinsic material is only of limited utility and is, at times, rather confusing.

66 The Commonwealth Act came about as a result of work done by the Australian Law Reform Commission ("ALRC") over a period of some 15 years, beginning in 1979. During that period, the ALRC produced an Interim Report ("ALRC 26") in 1985, and a Final Report ("ALRC 38") in 1987.

67 To understand why s 123 was first introduced into the Commonwealth and NSW Acts, it is necessary to have regard to some common law authorities which commenced with the 1972 case of R v Barton.[29]

68 In Barton, the accused was charged with fraudulent conversion, theft and falsification of accounts, allegedly committed in the course of his employment as a legal executive with a firm of solicitors. The defence served on one of the firm's partners a subpoena to give evidence and produce certain documents, which had come into existence while the solicitor was acting in a legal capacity for a client. The solicitor objected to producing the documents, on the ground of legal privilege.[30]

69 Caulfield J overruled the solicitor's objection, holding that:

If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man, then in my judgment no privilege attaches. I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which, if disclosed to the jury, would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown. I think that is the principle that should be followed.[31]

70 Caulfield J acknowledged that the point was a novel one, which had been argued on circuit, and without the benefit of any authority. However, he said he was applying what he perceived to be the rules of natural justice.

71 Barton was later cited with approval in the New Zealand case of R v Craig[32] and a Canadian case, R v Dunbar and Logan.[33] In the United Kingdom, it was also followed with approval by the Court of Appeal in R v Ataou,[34] and in obiter dicta by Lord Denning in the D v NSPCC case.[35]

72 Both ALRC 26 and ALRC 38 considered the circumstances in which client legal privilege should be lost. They both cited Barton with approval in footnotes, although did not attempt to analyse its scope.

The Administration of Justice. The privilege should not be upheld where to do so would prevent a court enforcing an order of a court or result in the withholding of evidence relevant to the defence of the accused.[36]

74 In ALRC 38, it was noted[37] that the interim proposal had been criticised as being too wide. ALRC 38 recommended that the provision be limited "so that it operates only in respect of evidence adduced by a defendant in a criminal proceeding and should not operate in respect of communications between persons charged with related offences and their lawyers." That recommendation was adopted in s 123, as enacted.

75 Neither ALRC 26 nor ALRC 38 suggested that s 123 should be limited to evidence adduced at trial.

76 Barton was overruled by the House of Lords in late 1995, in R v Derby Magistrates' Court, ex parte B.[38] However, that was after s 123 had been enacted in the Commonwealth and NSW Acts.

77 In Australia, Barton and the cases which followed it were disapproved by the majority of the High Court in the decision of Carter v Northmore Hale Davy & Leake.[39] Brennan, Deane and McHugh JJ upheld the validity of the objection to production of privileged documents in answer to a subpoena.[40] Toohey and Gaudron JJ came to a contrary conclusion.[41]

78 It is not accurate to say that s 123 was brought in as a reaction to Carter, or in order to overturn the effect of Carter, as some judges and commentators have suggested. Carter was decided in June 1995, after s 123 had been introduced; Carter only concerned the position at common law.[43]

79 In December 2005, the ALRC produced a further report on the uniform evidence legislation ("ALRC 102"). Included in that report was the recommendation that s 131A should be introduced, so as to extend the privilege sections of the uniform acts to apply to what it referred to as "pre-trial" matters. There was a discussion of the reasons why it had been suggested that s 123 should not apply to such "pre-trial" contexts. But it seems, on a fair reading of the relevant parts of the report, that "pre-trial" was simply being used as shorthand for the various preliminary processes which were then being dealt with by the common law. The recommendation[44] that "s 123 of the uniform Evidence Acts should remain applicable only to the adducing of evidence at trial by an accused in a criminal proceeding" did not follow any analysis of why the adducing of evidence in a criminal proceeding should be limited to evidence at trial; the earlier ALRC reports, which predated the introduction of s 123, had recommended no such restriction.

80 The language used in ALRC 102 found its way into the relevant parts of the Explanatory Memorandum to the Evidence Act in Victoria, apparently without any further analysis.

81 It would have been easy for parliament to have inserted words into s 123 limiting its scope to evidence adduced "at trial", had it intended to do so. It did not do so, either when s 123 was first enacted in any of the uniform acts, or when s 131A was enacted.

Section 131A

82 Section 131A in the Evidence Act[45] provides as follows:

Application of Division to preliminary proceedings of courts

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1 or 3;[46] and

(b) the person objects to giving that information or providing that document -

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128[47]) with any necessary modifications as if the objection to giving evidence or producing the document were an objection to the giving or adducing of evidence.

(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following -

(a) a summons or subpoena to produce documents or give evidence;

(f) a request to produce a document under Division 1 of Part 4.6;[48]

83 The "Division" referred to in the heading is Division 4 of Part 3.10. Division 4 is headed "General" and contains four sections which apply to all of the different types of privilege and PI exclusion. The four sections apply to all proceedings, and are not limited to criminal proceedings.

84 The heading to the section refers to "preliminary proceedings of courts". The heading forms part of the section.[49] The question is: what does the heading actually mean?

85 In their written submissions, the CDPP argued that s 131A draws a distinction between "the trial proper" and the preliminary stages of a proceeding. In oral submissions, it was said that "preliminary proceedings" means everything preliminary to the resolution of the trial (which, in the case of a criminal trial, means resolution by verdict).

86 The ACC accused argue that it refers to court processes or orders prior or preliminary to the adducing of evidence.

87 While many of the "disclosure requirements" which are included in s 131A(2) might ordinarily be employed only at the pre-trial stage, some of them are processes that may take place, or orders that may be made, during a trial. For example, a summons or subpoena to produce documents,[50] and a notice to produce,[51] could be issued and served prior to or during the trial. That supports the conclusion that "preliminary proceeding" is not synonymous with "pre-trial proceeding".

88 The heading to s 131A is readily understood in light of the history of the provision in the NSW Act (which is the provision upon which s 131A of the Evidence Act was modelled). Prior to the introduction of s 131A, the NSW Act governed privilege when evidence was adduced in court, and the common law governed privilege at preliminary stages when information and documents were sought to be obtained with a view to their future use in a court hearing. The plain purpose behind s 131A, when it was introduced into the NSW Act, was to achieve consistency, by applying the same law of privilege at both stages.

89 In Victoria, ss 123 and 131A were introduced into the Evidence Act when it was first enacted in 2008. But it is clear from the Explanatory Memorandum that s 131A was brought in for the same reason as in the NSW Act.

90 There is a clear dichotomy between adducing evidence (the stage at which s 123 has always governed privilege) and court processes or orders that require the disclosure of information or documents (the stage at which s 131A operates). That dichotomy has been carried through into the Victorian Act. The fact that s 131A(1) provides that the determination of an objection is to be made "as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence" supports that conclusion.

91 I agree with the ACC accused that the reference to "preliminary proceedings" in the heading is an indication that the processes or orders of the court to which s 131A applies are proceedings which are "preliminary to adducing evidence". They are preliminary to adducing evidence because they involve obtaining access to information or documents, rather than putting the information or documents before the court for its determination of the case.

92 The CDPP and AFP also contend that the examination of a witness is a "disclosure requirement" within the meaning of s 131A(2)(a); s 123 is therefore excluded by reason of s 131A(1). In their written outline, they put this contention in very broad terms: "the process of a witness in the witness box giving evidence is such a process".[52] In oral argument, they appeared to narrow the proposition to a witness who had been subpoenaed to give evidence.

93 "Disclosure requirement" is defined in s-s (2) as meaning "a process or order of a court that requires the disclosure of information or a document." There is then a list of seven things which are said to be included within the definition.

94 The list of processes or orders in s-s(2) is not exhaustive. For example, the parties concede (correctly) that a call for documents is a process of a court that requires the disclosure of information or a document, and thus would fall within s 131A.[53]

95 All witnesses have to answer relevant and admissible questions. If the mere process of a witness giving evidence in the witness box is a "disclosure requirement" (the broad CDPP/AFP argument), then every witness would fall within the scope of s 131A (and ss 123 and 128 would never operate).

96 The narrow CDPP/AFP argument is that s 131A applies to any witness who has been subpoenaed to give evidence. On this argument, evidence of a privileged communication could only be adduced from a witness who has attended voluntarily (not in answer to a subpoena) and is prepared to waive privilege. But, in such a case, there would be no need to rely on s 123.

97 The CDPP and AFP argue that the presence of s 131(2)(a) - "a summons or subpoena to produce documents or give evidence" - in the list of disclosure requirements supports their narrow argument. Interestingly, the reference to "or give evidence" did not appear in the draft of s 131A produced by the Victorian Law Reform Commission.[54] That draft was subject to some amendment before it was introduced, including the inclusion of the words "or give evidence." However, there is no explanation in any of the extrinsic material as to why that was done; the desire to achieve uniformity as far as possible seems to be the most likely explanation.

98 The CDPP/AFP argument ignores the context in which s 131A came to be introduced into the NSW Act. The section was not introduced to alter the operation of privilege at the point of adducing evidence; but rather to apply the statutory law of privilege to disclosure requirements that allow a party to obtain by compulsion information or documents which might, subsequently, be adduced in evidence.

99 For these reasons, I agree with the ACC accused that, on the proper construction of ss 123 and 131A, legal privilege does not apply to evidence sought to be adduced by the accused at any stage in a criminal proceeding, unless it is a co-accused's legal privilege. It follows that legal privilege would not be a valid basis for objecting to CDPP and AFP witnesses being asked questions in cross-examination in the ACC applications.

100 Of course, objection may be taken to any question which seeks to adduce irrelevant evidence. Section 55 of the Evidence Act sets out the test for relevance under the Act: to be relevant, it must be evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue in the proceeding.

101 There is no reason in precedent or principle to adopt a different concept of relevance when considering evidence to be adduced under s 123. In particular, I reject the suggestion by the CDPP and AFP that the ACC accused can only ask a question of a CDPP or AFP witness if the ACC accused already know what the answer would be.

102 Relevance (and any other admissibility issue) will need to be determined as and when particular questions are asked.

103 In most criminal proceedings, the contents of the prosecution's legal advice simply will not be relevant to any issue before the court. That may help explain why the issue currently before the court has not been the subject of previous judicial consideration. But, in the present cases, such legal advice is likely to be highly relevant to the very important issues raised by the ACC applications and the alternative applications.

104 The proper construction of ss 123 and 131A is a matter of great significance to the parties to the ACC applications, and may have major consequences for the outcome of the applications. Given the difficulty of the construction task, and the novelty of the issues, it is possible that the CDPP will seek to appeal my determination. In the circumstances, it is appropriate that I make a formal ruling which can be the subject of appellate consideration (if appropriate).

105 Mr Thomson asked Mr Barrington whether he ever saw advice from the CDPP to the AFP about the use of ACC examinations.[55] That question is clearly relevant to the ACC applications. The only objection taken to that question was legal privilege. For the reasons just given, I propose to formally rule that Mr Barrington must answer the question.

[1] Pursuant to s 6(2D) of the Director of Public Prosecutions Act 1983 (Cth).

[2] Either in the examination room itself, or in an observation room from which they could see and hear what was taking place, and could communicate via email with those in the examination room.

[3] The ACC accused rely in particular on the recent High Court authorities of X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 and Lee v NSW Crime Commission [2014] HCA 20; (2014) ALR 252.

[4] Pursuant to s 11.5(6) of the Criminal Code.

[5] Mr Tehan QC, who appeared with Mr Carr for Mr Wong, made the submissions on behalf of all of the ACC accused. Although separately represented, the AFP adopted the submissions of the CDPP.

[6] The proposed topics include the following:

(a) Advice from or obtained by the CDPP, AFP or ACC concerning: whether the relevant ACC determination authorised the issuing of the summons to each ACC accused; the classes of persons who ought to be examined by the ACC; whether a suspect may be examined by the ACC on the topic of the charges they are facing; to what extent examination of evidentiary holdings is necessary before the conduct of ACC examinations; the procedural steps that the AFP should take before requesting the issue of a witness summons by the ACC; the application of the "ACC coercive examinations - information for investigators" guideline in the circumstances of this case; the lawfulness of the dissemination of the ACC examinations of each ACC accused; the conduct of the investigation; the sufficiency of the evidence against each ACC accused; whether any of the ACC accused ought be charged, and if so, when; why it was decided to charge the accused with conspiracy rather than the substantive offence; why it was decided to lay direct indictments against those accused who had been discharged at committal.

(b) The content of discussions within the CDPP about plea negotiations with the ACC accused, before or after their respective ACC examinations.

[7] Section 35(a) of the Interpretation of Legislation Act 1984 (Vic) ("the Interpretation Act").

[8] Evidence Act s 1. The first Act in the uniform evidence scheme was the Evidence Act 1995 (Cth) ("the Commonwealth Act"), which was enacted in February 1995. The almost identical Evidence Act 1995 (NSW) ("the NSW Act") was enacted in June 1995. The Evidence Act was enacted in September 2008, and came into effect in Victoria on 1 January 2010. Prior to the introduction of those Acts, the rules of evidence were largely part of the common law.

[9] Interpretation Act s 35(b).

[10] [2002] HCA 49; (2002) 213 CLR 543.

[12] The Dictionary provides that a "civil proceeding" means a proceeding other than a criminal proceeding.

[13] The phrases "in a criminal proceeding", "in criminal proceedings" or "in any criminal proceeding" appear in at least the following sections in the Evidence Act: ss 17-20, 33, 41, 60, 65-6, 73-4, 85-6, 89, 90, 93, 101, 104, 108B, 109, 113, 128, 130, 137, 141, 147, 165, 165A, 165B, 184, 189, 190 and 194.

[14] A trial does not commence until the accused pleads not guilty on arraignment in the presence of the jury panel _(_CPA s 210(1)).

[15] Section 213 of the CPA provides that a trial judge may make any order or other decision during trial that could have been made prior to trial under various Divisions of the CPA, including the Division in which s 199 appears.

[16] (1997) 140 FLR 468.

[18] (1995) 183 CLR 121; the decision in Carter will be considered in detail later in these reasons.

[21] He referred in several places to the stay application having been made "in this Court".

[22] [1999] HCA 67; (1999) 201 CLR 49.

[23] At 59. Baker v Campbell [1983] HCA 39; (1993) 153 CLR 52 involved a claim of privilege in response to the execution of a search warrant.

[24] [2008] NSWSC 885.

[26] Proceeding 60593 of 1995; BC 9600553.

[28] [2008] NSWLEC 150.

[29] [1972] 2 All ER 1192, [1972] 1 WLR 115.

[30] The ruling did not consider whether or not the solicitor, who was already proposed to be called as a Crown witness, would have to give evidence in relation to privileged matters.

[32] [1975] 1 NZLR 597.

[33] (1982) 138 DLR (3d) 221.

[34] [1988] 2 All ER 321, [1988] QB 798.

[38] [1995] UKHL 18; [1995] 4 All ER 526.

[40] The majority acknowledged the public interest in having available all evidence relevant to the issues in litigation, which encompassed the public interest in achieving fairness in a criminal trial. However, that public interest was not to be weighed against legal privilege in some sort of balancing exercise in an individual case; the privilege itself represented the outcome of a balancing exercise, in which the law's decision was that privilege must prevail: Brennan J at 128; Deane J at 133; McHugh J at 161-2.

[41] Toohey J held that where an accused facing trial satisfies the court that the production of documents subpoenaed by the accused is "necessary for the proper conduct of his or her defence", then (subject to any valid objection on a ground other than privilege) the court may order the production of those documents.42 His Honour noted that, expressed in those terms, the principle left a number of questions unanswered, including what the position would be in summary proceedings, or where a co-accused was involved; but that was not a reason for refusing to recognise the principle. Gaudron J generally agreed with Toohey J, although preferred to express the principle in terms of "documents the withholding of which would impede the conduct of the defence." Toohey J at 156; Gaudron J at 158.

[43] Section 131A was not in existence in the Commonwealth or NSW Acts at that time.

[45] Section 131A is not in identical terms in the Commonwealth, NSW and Victorian Acts. Section 131A is in almost identical terms in the NSW and Victorian Acts, whereas s 131A in the Commonwealth Act is limited to dealing with journalist privilege.

[46] Division 1 deals with client legal privilege; Division 3 deals with the PI exclusion.

[47] Section 128 deals with the privilege against self-incrimination.

[48] Division 1 of Part 4.6 creates a new procedure for requesting documents, which was designed to give procedural protection to parties affected by changes made by the Act in relation to hearsay, documentary and conviction evidence.

[49] By virtue of s 36(2A)(a) and (c) of the Interpretation Act.

[53] As mentioned earlier, it is common ground that the contrary decision of Jagot J in Wollongong City Council is wrong.

[54] VLRC Implementing the Uniform Evidence Act: Report.