Citation: Nye v State of New South Wales & ors [2002] NSWSC 1267
Court: Supreme Court of New South Wales, Common Law Division
Date: 27 September 2002
Judge(s): O'Keefe J
Background
The plaintiff brought proceedings against the State of New South Wales and several other defendants, including the Director of Public Prosecutions (the Director), who was joined as sixth defendant. In connection with those proceedings, the plaintiff served a subpoena and notice to produce on the Director, requiring production of the Informants' Register or Index relating to a person named Danny Shakespeare. Shakespeare had been an informant proposing to give evidence in a murder prosecution involving the plaintiff.
The Director objected to production of the Register on two bases. The first, dealt with in an earlier judgment on 13 September 2002, was that particular documents within the Register attracted legal professional privilege because they were brought into existence for the dominant purpose of obtaining or giving legal advice, or for use in pending or contemplated litigation. The second, deferred for separate consideration, was a general or "blanket" claim that the entire Register was protected by legal professional privilege.
The present judgment addressed that blanket claim, requiring the court to examine the nature of the Director's statutory functions and whether those functions are, in their character, legal functions that per se attract the privilege.
Legal Issues
- Whether all documents in the Informants' Register or Index were protected by legal professional privilege on a general or blanket basis, by reason of the nature of the Director's functions under the Director of Public Prosecutions Act 1986 (NSW)
- Whether the functions of the Director are, in their totality, legal functions of a kind that per se attract legal professional privilege
- Whether, in any event, the documents were protected because criminal proceedings involving Danny Shakespeare were anticipated or reasonably apprehended at the time the Register was prepared
Decision
O'Keefe J began by examining the history and statutory framework of the Director's office under the Director of Public Prosecutions Act 1986. The Act confers a wide range of functions on the Director, including instituting and conducting prosecutions, conducting appeals, taking over private prosecutions, granting indemnities to witnesses, and formulating prosecution policies. The court found that these functions extend well beyond purely legal work. Not all of them are of a character that per se attracts legal professional privilege.
The court drew a significant distinction between the role of the Director and that of the Solicitor for Public Prosecutions. The Solicitor for Public Prosecutions is expressly required by statute to act as solicitor for the Director in the exercise of the Director's functions, a role that closely parallels that of a legal adviser to a client. The Director, by contrast, occupies a broader office combining legal, quasi-judicial, administrative, and policy functions. The blanket claim that all actions connected with the Register were privileged simply because the Director performed them could not be sustained on that basis alone.
However, on the specific facts, the court accepted that the Informants' Register relating to Danny Shakespeare was prepared by the Solicitor for Public Prosecutions in the performance of that office's statutory function of advising the Director on the conduct of prosecutions. Criminal proceedings in which Shakespeare was involved as a witness were either on foot or reasonably apprehended at the time. The preparation of the Register therefore fell squarely within the category of documents brought into existence for the dominant purpose of use in anticipated litigation. On that narrower ground, the claim to legal professional privilege over all twelve folders was upheld.
Orders Made
- The claim to legal professional privilege in respect of the twelve folders of documents produced to the court was upheld.
- Access to those documents was denied to the plaintiff.
Key Takeaways
- The functions of the Director of Public Prosecutions under the Director of Public Prosecutions Act 1986 (NSW) extend beyond purely legal functions to include administrative, quasi-judicial, and policy matters. Certain functions of the Director do not, by their nature alone, attract legal professional privilege.
- A blanket or general claim to legal professional privilege over all documents held by the Director cannot succeed simply by reason of the Director's office. The character of each function or document remains relevant.
- The court distinguished the Director from the Solicitor for Public Prosecutions: the Solicitor occupies a role closely analogous to a legal adviser acting for a client, whereas the Director's role is broader and more varied.
- Where a document such as an informants register is prepared by the Solicitor for Public Prosecutions as part of advising the Director on the conduct of prosecutions, and criminal proceedings involving the relevant person are either on foot or reasonably apprehended, legal professional privilege will attach to that material.
- For proceedings to be "reasonably apprehended" for the purposes of legal professional privilege, it is sufficient that litigation is likely. The threshold does not require proceedings to be already commenced.
Legislation and Cases Referenced
Legislation:
- Director of Public Prosecutions Act 1986 (NSW), ss 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 19, 20, 23, 25, Schedule 1 cl 2(2)
- Crown Prosecutor's Act 1986 (NSW)
- Criminal Procedure Act 1986 (NSW)
- 9 Geo IV Ch 83
Cases:
- Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996-1997) 188 CLR 501
- Attorney General (NT) v Kearney (1985) 158 CLR 501
- Clark v United States (1933) 289 US 1
- Regina v Bell; Ex parte Lees (1980) 141 CLR 14
- Jarman v Lambert & Cook Contractors Ltd [1951] 2 KB 937
- O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1