Citation: R (Cth) v Petroulias (No. 23) [2007] NSWSC 781
Court: Supreme Court of New South Wales
Date: 12 July 2007
Judge(s): Johnson J
Background
The accused faced a criminal trial on indictment in the Supreme Court. As part of the proceedings, the defence served a subpoena on the Commonwealth Director of Public Prosecutions (CDPP) seeking production of documents, including notes taken during conferences between prosecuting counsel or CDPP solicitors and Crown witnesses.
This judgment was the second occasion on which Johnson J addressed a privilege claim arising from that subpoena. The first, R (Cth) v Petroulias (No. 22), resolved the claim over 2007 conference notes involving fourteen nominated Crown witnesses (MFI11). The present judgment concerned an additional set of conference notes pre-dating 2007 that fell within the same subpoena (MFI27).
In support of the privilege claim, the CDPP filed an affidavit from the solicitor with current carriage of the prosecution, who deposed that the notes were created for the dominant purpose of a pending Australian proceeding. The deponent also confirmed that a prior disclosure review had found no material in those notes requiring disclosure to the defence.
Legal Issues
- Whether client legal privilege attached to the pre-2007 conference notes contained in MFI27, under section 119 of the Evidence Act 1995 (NSW)
- Whether privilege over those documents had been waived, under section 122 of the Evidence Act 1995 or at common law
- Whether the prosecution's independent disclosure review had identified any material in the notes requiring production to the accused
Decision
Johnson J upheld the claim for client legal privilege over all documents in MFI27. Applying section 119 of the Evidence Act 1995, His Honour was satisfied that the conference notes recorded communications made for the dominant purpose of a pending Australian proceeding. His Honour noted the same conclusion would follow from common law privilege principles.
On the question of waiver, counsel for the accused declined to advance any fresh submissions beyond those already made in the earlier hearing on MFI11, accepting that Johnson J's reasoning in Petroulias (No. 22) governed the issue. His Honour found that waiver had not been established under section 122 of the Evidence Act 1995 or at common law.
Separately, prosecuting counsel confirmed to the court that a review of both MFI11 and MFI27 had been completed in accordance with the CDPP's duty of disclosure. Counsel reported that neither set of notes contained material requiring disclosure to the accused. Johnson J accepted that prosecuting counsel had approached this task with a proper understanding of the duties and responsibilities of prosecution counsel in a criminal trial, referencing the High Court's statements on those obligations in Subramaniam v The Queen and Libke v The Queen.
Orders Made
- The claim for client legal privilege over the documents in MFI27 is upheld.
- The accused's application to inspect those documents is refused.
Key Takeaways
- Under section 119 of the Evidence Act 1995, conference notes recording communications between prosecution solicitors or counsel and Crown witnesses will attract client legal privilege where the dominant purpose of those communications was a pending Australian proceeding.
- The Supreme Court applied the same analytical framework to the pre-2007 conference notes (MFI27) as it had applied to the 2007 conference notes (MFI11) in Petroulias (No. 22), demonstrating consistency across successive privilege claims arising from a single subpoena.
- Privilege was not lost through waiver: the accused made no fresh submissions on waiver for MFI27, and no waiver was established under either the statutory or common law test.
- The CDPP's independent disclosure review process, examining privileged material for any content that nonetheless required production to the defence, was treated by the court as a meaningful safeguard consistent with the prosecutorial duties articulated by the High Court in Subramaniam and Libke.
- A subpoena directed at a prosecuting authority does not, of itself, override otherwise valid claims of client legal privilege over conference notes.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), sections 119 and 122
Cases
- R (Cth) v Petroulias (No. 22) [2007] NSWSC 692
- Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51
- Libke v The Queen [2007] HCA 30