The prosecutor's claim for privilege
9The prosecutor's evidence is contained in the affidavit of Mr McFadzean sworn on 21 January 2014. In that affidavit Mr McFadzean does not attest to the circumstances surrounding the creation of any of the documents over which privilege is claimed. With the consent of the parties it was agreed that I should inspect the documents in order to review the privilege claims.
10The prosecutor has conveniently set out the documents over which privilege is claimed and the reasons for that privilege in a table in Mr Fadzean's affidavit sworn on 21 January 2014. For ease I have included that table but added three columns, one for the defendants challenge, one for my ruling and the other for my brief reasons. The document numbers are consistent with numbers used by the parties in previous correspondence.
11The defendant withdraws their challenge to the prosecutors privilege claim in respect to the notice to produce. In any event, I have briefly perused those documents and would have upheld a claim for privilege.
12The defendant drew my attention to three cases. The first of which was New South Wales v Jackson [2007] NSWCA 279. In that case it was held that there was nothing in the evidence to establish that the Department of Education and Training was unable to disclose the contents of witness statements that had been prepared for the Department in relation to an accident involving a student, therefore they were not "confidential documents" within the meaning of the Evidence Act.
13The next case the defendants relied on was Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 975 in which Hamilton J held that a witness statement sent to a witness "without comment and with no restriction imposed in his use of it" did not impose an obligation of confidentiality on him, the privilege was therefore lost.
14I note that the above two cases concern witness statements and that the documents over which privilege is claimed are, in general, notes of conferences rather than the witnesses statements. After reviewing the documents I am not convinced that these cases are totally relevant to the application before me.
15The defendant also pointed out that according to Mallard v R [2005] HCA 68 that a prosecutor has a duty to disclose all relevant evidence to an accused and a failure to do so may, in some circumstances, require a quashing of a verdict of guilty. The prosecutor acknowledged this duty in their oral submissions.
16Neither party to took me to any cases that discussed the relationship between the duty of disclosure and legal privilege. In my research I came upon the case of R v Petroulias (No 22) [2007] NSWSC 692 in which Johnson J dealt with this exact point in relation to notes of conversations with potential witness. The case seems to be relevant to the issues I need to determine in this application. I gave both parties an opportunity to make further written submissions on this case.
17This case involved a claim for privilege in respect to a number of notes taken during conferences between counsel and/or Commonwealth Director of Public prosecution solicitors and 14 nominated Crown witnesses. The evidence stated that the conference notes recorded communications made for the dominant purpose of pending litigation.
18At paragraph 64 Johnson J said:
64 The duty of disclosure operates so that the CDPP ought disclose to the defence all documents to which the duty attaches, irrespective of whether client legal privilege applies to the relevant documents. However, it is for the CDPP to exercise his independent prosecutorial discretion to decide whether information is subject to the duty of disclosure. It is not for the Court, in the context of a subpoena hearing, to supervise or review the CDPP's discharge of his duty during the course of the trial: Mallard v The Queen at 155-156 [81]-[84]; Island Maritime Limited v Filipowski [2006] 226 CLR 328 at 355 [81]; R v Petroulias (No. 1) at [65]. Apart from this question of principle, at a practical level, the CDPP and his officers, no doubt advised by prosecuting counsel, will be in a far better position than a trial judge to form a view as to whether documents ought be disclosed in the discharge of this duty. The trial judge will not usually be aware of the course of prior disclosure, the range of statements taken from Crown witnesses and the variety of other issues and factors bearing upon the duty of disclosure, especially in the context of a complex fraud case with a long litigious history, such as the present case. Even given the advantages which I have as the trial judge engaged in a range of interlocutory applications and trials since July 2006, I am not in a position to review, in some way, the Crown's discharge of its duty of disclosure.
19The defendant's response to my invitation to make further submission was as follows:
We maintain the submission at [16] of the defendant's written submissions on privilege hearing which were handed up to you by Mr O'Gorman-Hughes .......
Should you be minded to decline the defendant's application to inspect (among other things) file notes of conversations with prosecution witnesses, we ask that you direct the prosecutor, through Shaw Reynolds Lawyers, to examine those notes so that assurances may be given to the defendant and the Court that there is no material contained within those documents that are subject to the prosecutor's duty of disclosure."
20I found the first part of this submission to be rather curious as I had already told the parties at the hearing that I would be inspecting the documents and the parties encourage me to do so.
21In relation to the second submission, I am not sure that it is appropriate for me to make the order suggested in the second paragraph, it is clear from Johnson J's comments in Petroulias that "it is not for the Court, in the context of a subpoena hearing, to supervise or review the CDPP's discharge of his duty during the course of the trial". Making such an order would, in my view, be supervising the prosecutor's exercise of his duty. If the prosecutor fails to exercise his duty properly there will be consequences but it is not up to this court to force them to exercise the duty. I would note however, that there could be no objection from the court if the prosecutor was willing to accept such an obligation.
22The prosecutor's response to my invitation to make further submissions was to say that they did not wish to make further submissions. However, they said that without admission, they were prepared to provide the defendant with copies of documents 11, 19, 23, 26 and 45 of the documents produced by SRL and all the disputed documents in relation to the documents produced by Joe Lorincz.
23In my view, it is clear from Petroulias that the fact the prosecutor has a duty of disclosure does not mean the documents loss their privileged status. However, the fact that the documents are privileged does not exclude them from the prosecutor's duty of disclosure.
24Therefore, in this application, it will be a matter for me to examine each of the remaining documents in dispute to ensure it is a confidential document or communication "prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client", or "for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party". Once that is determined I would need to consider if the privilege has been lost. It is up to the prosecutor to determine if the duty of disclosure applies to the communications or documents. If the documents are subject to the duty to disclosed they should be disclosed whether or not they are privileged.