Citation: R v Gittany (No 3) [2013] NSWSC 1670
Court: Supreme Court of New South Wales
Date: 13 November 2013
Judge(s): McCallum J
Background
The accused stood trial for the murder of his fiancée, who died after falling from the balcony of their 15th-floor apartment. The Crown alleged he deliberately lifted her over the railing. The accused maintained she ran to the balcony and climbed over of her own accord.
The accused served a tendency notice under s 97 of the Evidence Act 1995, identifying four potential witnesses who would give evidence that the deceased had a tendency to place herself in danger, self-harm, and attempt suicide. The notice listed specific incidents, including occasions when the deceased had alighted from moving vehicles and an historical incident of self-harm.
At the outset of the trial, the Crown made a formal call for any witness statements, conference notes, or other notes the accused's solicitor had taken from the persons identified in the tendency notice. The accused resisted the call, asserting client legal privilege under s 119 of the Evidence Act.
Legal Issues
- Whether client legal privilege under s 119 of the Evidence Act 1995 had been lost by the service of the tendency notice
- Whether client legal privilege would be lost upon the accused calling each tendency witness to give evidence
- Whether either step constituted a knowing and voluntary disclosure of the substance of a confidential communication, rendering privilege inapplicable under s 122
Decision
Issue 1: Whether service of the tendency notice waived privilege
McCallum J accepted that the documents called for fell within the class protected by s 119. The Crown argued that serving the tendency notice amounted to knowingly and voluntarily disclosing the substance of the confidential communications, triggering loss of privilege under s 122(2) and (3). Her Honour rejected this argument. The notice disclosed the anticipated substance of the witnesses' evidence about underlying events, not the substance of what those witnesses had communicated to the lawyer in confidence. The two are conceptually distinct.
Her Honour also considered whether a tendency notice is served "under compulsion of law" within the meaning of s 122(5)(iii), which would separately preserve privilege. She declined to accept the accused's submission on that point: while failure to serve a tendency notice carries a forensic consequence, it does not amount to legal compulsion. However, this was not determinative, because the notice did not disclose the substance of confidential communications in any event.
Issue 2: Whether calling a witness waives privilege over statements and conference notes
The Crown's position, taken to its logical conclusion, would mean that client legal privilege over witness statements and conference notes is lost in every proceeding at the point a witness is called. McCallum J declined to accept that proposition. Calling a witness, or giving notice of anticipated evidence, is materially different from deploying the content of a confidential communication in the proceedings, as occurs when a client sues a lawyer for negligent advice and relies on what the lawyer said. The choice to call a witness does not involve putting the confidential communication itself into play.
Her Honour noted the contrast with the Crown's own duty of disclosure at common law, observing that service of witness statements pursuant to that duty is arguably not inconsistent with maintaining privilege, because the Crown acts under compulsion of law. That question did not arise here, as the accused had not served any statements and was under no obligation to do so.
Orders Made
- The Crown's call for production of documents over which client legal privilege was claimed by the accused was rejected.
Key Takeaways
- Serving a tendency notice under s 97 of the Evidence Act 1995 does not waive client legal privilege over witness statements or conference notes, because the notice discloses the substance of anticipated evidence about underlying events, not the substance of confidential communications with the lawyer.
- The critical distinction under s 122 is between disclosing the substance of a confidential communication and disclosing the anticipated evidence about the underlying facts to which that communication relates. These are not the same thing.
- Calling a witness to give tendency evidence does not, of itself, constitute conduct inconsistent with maintaining privilege over documents generated in the course of preparing that witness's evidence.
- A tendency notice is not served "under compulsion of law" within the meaning of s 122(5)(iii) merely because failure to serve one carries a forensic disadvantage. No privilege exception on that basis was established.
- Under s 122, a client loses privilege only where the conduct amounts to deploying the confidential communication itself in the proceedings, such as where a former client sues a solicitor for negligence and relies on the words of the advice given.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995, ss 97, 119, 122, 167
- Evidence Regulation 2010, cl 5
Cases
- Grey v R [2001] HCA 65
- Lee v New South Wales Crime Commission [2013] HCA 39
- Mallard v R [2005] HCA 68; (2005) 224 CLR 125
- Petroulias (No 22) [2007] NSWSC 692; (2007) 176 A Crim R 309
- R v Haydon (No 5) [2005] SASC 19
- South Australian Government Financing Authority v Bank of New Zealand [2002] SASC 56