Citation: R (Cth) v Petroulias (No. 24) [2007] NSWSC 783
Court: Supreme Court of New South Wales
Date: 12 July 2007
Judge(s): Johnson J
Background
An important Crown witness in an ongoing criminal trial had retained a solicitor in 2000 for advice after Australian Federal Police executed a search warrant on premises connected to him. Following that legal advice, the witness provided an induced statement to police and subsequently gave evidence for the Crown at committal proceedings and multiple trials under an undertaking provided pursuant to s 9(6) of the Director of Public Prosecutions Act 1983 (Cth).
A subpoena was directed to the witness's former solicitor seeking production of the solicitor's file. When the documents were produced to the court, the witness (with the assistance of counsel granted leave to appear as amicus curiae) claimed client legal privilege over eleven of those documents.
The accused argued that the privilege had been lost because the witness had, in the course of giving evidence in 2001, 2005, and 2007, voluntarily disclosed the substance of otherwise confidential communications. The issue arose mid-trial while the witness was still under cross-examination, adding urgency to the resolution of the privilege question.
Legal Issues
- Whether client legal privilege existed in the first place over the disputed documents under s 118 of the Evidence Act 1995
- Whether, if privilege had existed, it was lost by operation of s 122 of the Evidence Act 1995 through the witness's prior disclosures in evidence
- Whether those prior disclosures qualified as "knowing and voluntary" disclosures for the purposes of s 122(2), or whether they were made "under compulsion of law" so as to preserve the privilege
- Whether the witness's failure to be informed of his right to object under s 132 of the Evidence Act 1995 was relevant to the analysis
Decision
Johnson J found that client legal privilege did exist over documents 2 to 11 in MFI33. The documents fell within s 118 of the Evidence Act 1995 as confidential communications made for the dominant purpose of the solicitor providing legal advice to the witness.
The central question then became whether that privilege had been lost under s 122. The accused relied on the fact that, across three separate proceedings in 2001, 2005, and 2007, the witness had made statements in evidence that disclosed the substance of his otherwise confidential communications with his former solicitor. Johnson J found these disclosures were volunteered by the witness in the form of narrative, non-responsive statements rather than answers compelled by direct questioning. They were therefore "knowing and voluntary" disclosures within the meaning of s 122(2) and did not fall within the exception for disclosures made "under compulsion of law."
The witness's failure to be informed of his right to object under s 132 was considered but did not alter the outcome. The court distinguished the circumstances from cases where a witness is directly questioned and required to answer, thereby being compelled to disclose privileged material. Here the voluntary, narrative character of the disclosures was determinative.
Although the court noted it was surprising that the issue had not been raised earlier, given that the key disclosures dated back to 2001, Johnson J resolved the matter on the merits. On the question of whether certain internal accounting records of the solicitor (documents 3, 4, 6, 8 and 11) satisfied a legitimate forensic purpose, the court found, on balance, that such a purpose had been demonstrated and granted access to those documents as well.
Orders Made
- Client legal privilege with respect to documents 2 to 11 in MFI33 was found to have been lost by operation of s 122 of the Evidence Act 1995
- The Crown and the accused were granted access to all documents contained in MFI33, including photocopy access
Key Takeaways
- Under s 122(2) of the Evidence Act 1995, privilege is lost where a client has knowingly and voluntarily disclosed the substance of otherwise privileged communications to another person, unless one of the specified exceptions applies.
- The "compulsion of law" exception in s 122(2)(c) does not protect a witness who volunteers confidential information in a narrative, non-responsive way during evidence; it is directed at situations where a direct question requires a compelled answer.
- A failure to inform a witness of the right to object under s 132 of the Evidence Act 1995 does not, of itself, convert an otherwise voluntary disclosure into one made under compulsion of law.
- Privilege can be lost incrementally across multiple proceedings: the court found that disclosures made as far back as 2001 and 2005 were relevant to the loss of privilege analysis in 2007.
- The onus of establishing that privilege existed rests on the party claiming it, while the onus of establishing that privilege has been lost under s 122 rests on the party seeking to overcome it.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 118, 122, 132, 133, 142
- Director of Public Prosecutions Act 1983 (Cth), s 9(6)
Cases
- R (Cth) v Petroulias (No. 1) [2006] NSWSC 788
- R (Cth) v Petroulias (No. 9) [2007] NSWSC 84
- R (Cth) v Petroulias (No. 22) [2007] NSWSC 692
- Libke v The Queen [2007] HCA 30
- Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission (2002) 213 CLR 543
- Chen v City Convenience Leasing Pty Limited [2005] NSWCA 297
- Firns v Tzovaras [2006] NSWSC 925
- Avanes v Marshall [2007] NSWSC 191
- New Cap Reinsurance Corporation Limited (In Liq) v Renaissance Reinsurance Limited [2007] NSWSC 258
- Fisher v Marin [2007] NSWSC 473
- R v Ahmed [2001] NSWCCA 450
- R v Parkes (2003) 147 A Crim R 450
- Global Medical Imaging Management Limited (In Liq) v Australian Mezzanine Investments Pty Limited [2003] NSWSC 430
- Australian Competition and Consumer Commission v George Weston Foods Limited (2003) 129 FCR 298