Citation: R (Cth) v Petroulias (No. 22) [2007] NSWSC 692
Court: Supreme Court of New South Wales
Date: 29 June 2007
Judge(s): Johnson J
Background
The accused stood trial in the Supreme Court on three Commonwealth charges: defrauding the Commonwealth, corruptly receiving a benefit as a Commonwealth officer, and unlawfully publishing documents obtained in that capacity. The prosecution was conducted by the Commonwealth Director of Public Prosecutions (CDPP). This was the second trial on the same charges, the first having ended in a hung jury in 2005.
The accused served a subpoena on the CDPP seeking production of notes taken at conferences between prosecuting counsel or CDPP solicitors and 14 named Crown witnesses. Those conferences dated from 23 March 2000 (the date of the accused's arrest) onwards. The CDPP produced conference notes from 2007 relating to 12 of the 14 witnesses and claimed client legal privilege over the entire bundle.
The court was asked to determine whether the accused was entitled to inspect those documents, or whether the CDPP's privilege claim was valid and should be upheld.
Legal Issues
- Whether Part 3.10 of the Evidence Act 1995 (NSW) or the common law principles of legal professional privilege governed the CDPP's claim over the conference notes
- Whether the notes attracted client legal privilege, given they were created for the dominant purpose of conducting the prosecution
- Whether privilege had been waived by the prosecution calling the same witnesses at committal proceedings and at the first trial
- How the privilege claim interacted with the prosecution's duty of disclosure to the accused
Decision
Johnson J upheld the CDPP's claim of client legal privilege over the 2007 conference notes (MFI11) in their entirety. The court was satisfied, on the basis of the CDPP solicitor's affidavit, that the notes were created for the dominant purpose of conducting the prosecution at trial, meeting the requirements for privilege under either the statutory regime in Part 3.10 of the Evidence Act 1995 or the common law. The court did not need to finally resolve which regime applied, as the claim succeeded under both.
On the waiver question, the court rejected the argument that calling the same witnesses at the 2005 trial and at committal proceedings had waived privilege over the 2007 conference notes. Waiver requires conduct inconsistent with the maintenance of the privilege. Calling a witness to give evidence does not, of itself, waive privilege attaching to the solicitor's or counsel's preparatory communications with that witness.
The court acknowledged a separate, practical concern arising from the application. Evidence had emerged of delays in the CDPP disclosing relevant information about one Crown witness, including a prior criminal conviction and a bankruptcy. Prosecuting counsel acknowledged on the record that these matters had not arisen in conference but had only come to light through defence inquiries. The court directed that prosecuting counsel review all documents caught by the subpoena (including pre-2007 notes not yet produced) to confirm no undisclosed material subject to the prosecution's duty of disclosure was contained within them.
The court noted that the remaining documents predating 2007 had not yet been produced, and indicated that upon production it would inspect them to satisfy itself that privilege properly attached to those documents as well.
Orders Made
- The claim of client legal privilege over the documents in MFI11 is upheld.
- The accused's application to inspect the documents produced under subpoena is declined.
- The CDPP is required to produce all remaining documents caught by the subpoena (conference notes predating 2007) for further consideration by the court.
Key Takeaways
- Johnson J confirmed that conference notes prepared by prosecuting counsel or solicitors for the dominant purpose of conducting a criminal prosecution can attract client legal privilege, whether assessed under Part 3.10 of the Evidence Act 1995 or the common law.
- Calling witnesses at prior proceedings (including committal hearings and an earlier trial) does not, without more, constitute conduct inconsistent with maintaining privilege over counsel's preparatory conference notes with those witnesses.
- The relationship between privilege and the prosecution's duty of disclosure is not extinguished by the privilege claim. Even where privilege is upheld, the court expected prosecuting counsel to review the documents to confirm no disclosable material was withheld.
- Where privilege is claimed over a large body of documents produced under subpoena, a court may inspect those documents itself to verify that privilege properly attaches, particularly where disclosure concerns have already arisen in the proceeding.
- The decision reflects a fact-specific analysis: the court declined to resolve the broader question of whether the Evidence Act 1995 or the common law governed, finding the outcome identical under either framework on the facts before it.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), Part 3.10
- Crimes Act 1914 (Cth), ss 29D, 70, 73
- Director of Public Prosecutions Act 1983 (Cth)
- Supreme Court Act 1970 (NSW)
- Criminal Procedure Act 1986 (NSW)
Cases
- R v Reardon (No. 2) (2004) 60 NSWLR 454
- R v Spiteri (2004) 61 NSWLR 369
- Mallard v The Queen (2005) 224 CLR 125
- Goldberg v Ng (1996) 185 CLR 83
- Mann v Carnell (1999) 201 CLR 1
- Grant v Downs (1976) 135 CLR 674
- Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49
- AWB Limited v Cole (No. 5) (2006) 155 FCR 30
- Meteyard v Love (2005) 224 ALR 588; [2005] NSWCA 444
- Attorney-General (NT) v Maurice (1986) 161 CLR 475
- R v Petroulias (No. 1) [2006] NSWSC 788