Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth

Land and Environment Court (NSW)|1996-03-05|Before: Jagot J, Gleeson CJ, Sully JJ

CITATION : Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 5) [2008] NSWLEC 150

PROSECUTOR Wollongong City Council PARTIES : DEFENDANTS Ensile Pty Limited Robert Martin (aka Bob) Hogarth

FILE NUMBER(S) : 50019 of 2007; 50021 of 2007; 50047 of 2007; 50048 of 2007

LEGISLATION CITED: Evidence Act 1995 Legal Aid Act 1977 (ACT)

Akins v Abigroup Ltd (1998) 43 NSWLR 539 Carter v The Managing Partner, Northmore Hale Davey and Leake (1995) 183 CLR 121 Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468 Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 CASES CITED: R v Pearson (Unreported, Supreme Court of NSW, Court of Criminal Appeal, Gleeson CJ, Smart and Sully JJ, 5 March 1996) R v Petroulias (No 22) [2007] NSWSC 692 Re Doran Constructions Pty Ltd (in liq) (2002) 194 ALR 101 The Queen v Barton [1973] 1 WLR 115 Waind v Hill (1978) 1 NSWLR 372 Williams v The Queen (2000) 119 A Crim R 490

J D Heydon, Cross on Evidence (7th Australian edition, 2004) TEXTS CITED: Jill Anderson, Jill Hunter and Neil Williams SC, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002) Peter Bayne, Uniform Evidence Law: Text and Essential Cases (2003) Kieran Smark, 'Privilege under the Evidence Acts' (1995) 18(1) UNSW Law Journal 95

PROSECUTOR Mr C W McEwen SC with Mr Matthew Fraser and Mr Michael Staunton SOLICITORS Kells the Lawyers LEGAL REPRESENTATIVES:

DEFENDANTS Mr T F Robertson SC with Mr T G Howard SOLICITORS Burrell Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ROBERT MARTIN (AKA BOB) HOGARTH Defendant

JUDGMENT Jagot J: 1 A further question has arisen in this matter in relation to the operation of s 123 of the Evidence Act 1995. That section provides: In a criminal proceeding, this Division does not prevent a defendant from adducing evidence unless it is evidence of: (a) a confidential communication made between an associated defendant 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 defendant or by a lawyer acting for that person in connection with the prosecution of that person.

2 The question in these proceedings concerns the preamble to the provision rather than sub-paras (a) and (b). The reference to "this Division" in the preamble is a reference to Div 1 of Pt 3.10 of the Evidence Act. Division 1 concerns client legal privilege and (relevantly) contains ss 118 and 119 dealing with client legal privilege in terms of legal advice (s 118) and litigation (s 119).

3 The question arises because yesterday there was a call by the defendants for various documents subject to a claim for privilege under s 119 of the Evidence Act. In a short ruling yesterday I decided s 123 operated so as to trump the prosecutor's claim for privilege and thereby enabled the defendants to obtain access to one of the documents the subject of the call. Today the prosecutor wished to be heard further in relation to the operation of s 123, given that the vast majority of documents had not yet been produced pursuant to the defendants' call. It was agreed by the defendants that there should be further submissions from both the prosecutor and the defendants about this issue. Each party helpfully provided references to various decisions, texts and other supporting material in support of their competing positions.

4 In short, the prosecutor says that s 123 discloses a distinction between the obtaining of evidence and the adducing of evidence. Adducing evidence, according to the prosecutor, is leading evidence rather than obtaining it. The prosecutor said that this distinction between adducing and leading evidence was supported by various authorities including Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at [16] and [17], Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 546, and Waind v Hill (1978) 1 NSWLR 372 at 385G.

5 The prosecutor submitted that the Evidence Act should not be interpreted so as to produce an anomalous outcome. The anomaly the prosecutor has in mind is that at an interlocutory stage with respect to a notice to produce or subpoena the common law would apply with the consequence that a person in the position of the prosecutor could maintain a claim for legal professional privilege (see Carter v The Managing Partner, Northmore Hale Davey and Leake (1995) 183 CLR 121) whereas under s 123 (if interpreted as proposed by the defendants and in accordance with the ruling I made yesterday) a call during a trial for the very same material would lead to the opposite result.

6 The prosecutor also placed weight on R v Petroulias (No 22) [2007] NSWSC 692 which concerned a subpoena for documents including notes taken during conferences between counsel or solicitors for the prosecutor and nominated Crown witnesses. Johnson J carried out a detailed analysis of the relationship between the relevant provisions of Pt 75 of the Supreme Court Rules 1970, the incorporated provisions of the Uniform Civil Procedure Rules 2005 and the Evidence Act. He concluded that the Evidence Act applied and noted at [67] when dealing with an issue of privilege that "No party submitted that s 123 Evidence Act 1995 has any bearing upon the present application". According to the prosecutor, it would be surprising if his Honour understood s 123 to operate in the way the defendants maintain in this matter given that it would have been a complete answer to the issue in Petroulias.

7 The defendants submitted that the context of s 123 (that is, the mischief it is intended to address) discloses a policy position that has swung in favour of a defendant having access to all material which might be potentially exculpatory. In particular the defendants point to the observations in Carter in which the High Court disapproved The Queen v Barton [1973] 1 WLR 115 and held that a person who has documents subject to legal professional privilege which has not been waived cannot be compelled to produce them on subpoena issued on behalf of an accused person in criminal proceedings even though they may establish the innocence of the accused or may materially assist his defence. In particular, the defendants point to the observations of Deane J at 142 to the effect that the competing policy considerations to which his Honour referred should "properly be seen as a matter for the legislature." According to the defendants s 123 is the outcome of that policy consideration.

8 The defendants also maintained that the relevant distinction is not that sought to be drawn by the prosecutor between (on the one hand) gaining access to documents and (on the other hand) tendering documents, but between interlocutory steps not regulated by the Evidence Act and proceedings as defined in s 4(1) of the Evidence Act which are regulated by that Act. The defendants emphasised that Ch 2 of the Evidence Act is headed "Adducing Evidence". That chapter, they say, contains various mechanisms to adduce evidence including, as referred to by Campbell J in Re Doran Constructions Pty Ltd (in liq) (2002) 194 ALR 101 at [104] - [105], s 26 (which appears in Ch 2 and deals with various ways in which evidence might be adduced including relevantly the production and use of documents and things in connection with the questioning of witnesses). This is supported by the presence also in Ch 2 of s 35 relating to calls for production of documents and s 45 relating to requirements for the production of documents.

9 The defendants also submitted that the words "adducing evidence" in s 123 must be construed consistently with the way those words are used in other sections of the Act. For example, ss 118 and 119 also use the word "adduced" in order to establish the protection of client legal privilege which is applicable in proceedings to which the Evidence Act applies. Hence in civil proceedings if a call is made for documents which are properly the subject of the claim for legal professional privilege then ss 118 and/or 119 would operate so that such evidence is not to be adduced; that is, is not to be the subject of inspection by the person making the call and also cannot be admitted into evidence in the proceedings.

10 There are various decisions that point in different directions about these issues.

11 In R v Pearson (Unreported, Supreme Court of NSW, Court of Criminal Appeal, Gleeson CJ, Smart and Sully JJ, 5 March 1996) the Court of Criminal Appeal noted that it had been agreed between counsel that the practical effect of s 123 of the Evidence Act when read together with s 118 is to reverse the effect of the decision of the High Court in Carter. They continued: It is common ground that in criminal proceedings to which the Evidence Act 1995 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.

12 The prosecutor has emphasised that this paragraph does nothing more than record the common ground between the parties (which in one sense it does, but it is also apparent that the common ground is not subject to any adverse comment by the Court).

13 To a similar effect is the observation of Hunt CJ at CL in Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468 at 478 where his Honour discussed various changes made by the Evidence Act to the common law position, including one he described as the second alteration as follows: The overriding by s 123 of the Act of the decision of the High Court in Carter so that the privilege which the common law had retained even as against a defendant to a criminal proceeding is now lost. The communication which such a defendant wishes to use must, of course, be relevant to the criminal proceedings in which he is the defendant.

14 As I have said, Carter is directly concerned with the question of access to documents.

15 One case pointing in the other direction is Williams v The Queen (2000) 119 A Crim R 490 at [32] where the relationship between s 123 of the Evidence Act and s 92 of the Legal Aid Act 1977 (ACT) was under consideration. Section 92 of the Legal Aid Act provided "that a person to whom the section applies shall not be required to produce before a court documents of a certain class". The Full Court said: However, in this case there is no inconsistency, express or implied, between the two Acts. Section 123 of the Evidence Act concerns only the adduction of evidence. The ACT Legal Aid Act provision deals with production of documents to the Court. There is no warrant to construe the Evidence Act so as to bring about symmetry as to tests for legal professional privilege between interlocutory and the substantive hearing stages of legal proceedings.

16 The parties also drew my attention to various commentaries which themselves reach inconsistent conclusions. Jill Anderson, Jill Hunter and Neil Williams SC, the authors of The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), at [123.05] state that s 123 is a significant departure from the common law rule reaffirmed in Carter but notes that it will have in practice a limited operation: Because the Division applies only to the adducing of evidence defendants will be unable by compulsory process to obtain a privileged document in order to be able to adduce evidence of it and will rarely know the content of otherwise privileged oral communications in order to be in a position to ask questions of a witness about them.

17 Peter Bayne, the author of Uniform Evidence Law: Text and Essential Cases (2003) at [14.670] describes s 123 as to a large extent overriding Carter, so that an accused can adduce evidence of a privileged communication and, accordingly, could obtain witness statements of prosecution witnesses (or indeed communications between third persons and their lawyer.)

18 The author of Cross on Evidence (7th Australian edition, 2004) at [25295] noted that there was no common law right in an accused person to the production of or access to documents protected by legal professional privilege, but then observed, "However, s 123 of the [Evidence Act] grants that right (save for confidential communications between "associated defendants" and their lawyers…)."

19 Mr Kieran Smark, barrister, is the author of 'Privilege under the Evidence Acts' (1995) 18(1) UNSW Law Journal 95. He deals with s 123 at pp 101-102 in the context of the decision of Carter noting that s 123 effectively overcomes the common law position and does not contain any of the balancing considerations referred to by Deane J in Carter (other than with respect to associated defendants).

20 The matter is not an easy one to resolve because the terms of s 123 are somewhat obscure. However there are a number of considerations which lead me to the view that the conclusion drawn yesterday is correct and should be maintained. In particular I have in mind that the express purpose of the whole of Ch 2 of the Evidence Act is adducing evidence. It contains many provisions by which evidence can be adduced, including in particular those means of adducing evidence set out in sections such as ss 26, 35, and 45. This strongly suggests that the Evidence Act treats adducing evidence as something that occurs by any one or more of the methods set out in Ch 2, in contrast to the admissibility of evidence which is otherwise specifically regulated by express reference and various provisions throughout the Act.

21 I also accept the defendants' submission that the words "adducing evidence" in s 123 have to be given a meaning commensurate with the meaning of adducing evidence in the various protective provisions. This suggests that adducing evidence in s 123 is a broader concept than allowed for by the prosecutor in this matter. I further accept the defendants' submission that if there is any anomaly it arises as a consequence of the fact that the Evidence Act applies to proceedings, including interlocutory proceedings of the relevant character, but not to interlocutory steps leading up to proceedings. There is, as the defendants have said, an extended definition of criminal proceedings which includes committal proceedings.

22 In these circumstances I am satisfied that s 123 does not prevent the defendant from obtaining access to documents which might otherwise be the subject of a claim for client legal privilege under s 119 of the Evidence Act by means of a call for the documents under s 35, provided of course that the call is suitably circumscribed so that there is a legitimate forensic purpose for seeking access to the documents.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (34 paragraphs)

Legislation Cited (1)

Cases Cited (7)